Case Summary and Outcome

The Supreme Court of Bermuda held that the prosecution of the Applicant for unlawful defamation pursuant to section 214(1) of the Criminal Code contravened his right to freedom of expression under section 9(1) of the Constitution. The Applicant, a prominent criminal defense lawyer of African-Bermudian descent, was charged for a Facebook post suggesting that a police inspector involved in his prosecution for a previous minor criminal offence, might be a racist. The Court also held that the Applicant was entitled to a declaration that section 214(1) was invalid on its face for contravening section 9 of the Constitution: it ordered a modification of  section 214(1) requiring the written consent of the Director of Public Prosecutions for a person to be tried under it and  that the impugned person knew the defamatory matter to be false. In reaching its decision, the Court drew extensively on jurisprudence from the European Court of Human Rights (ECHR), specifically Article 10, from which section 9 of the Bermudan Constitution is derived.

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Facts

The Applicant who is a member of the Bar in Bermuda and also an African-Bermuda citizen was charged under section 214 (1) of the Criminal Code upon an Information which alleged as follows:

“1. On the 11th day of May 2010, in the Islands of Bermuda, did unlawfully publish defamatory matter concerning Police Inspector [C], to wit: ‘This Detective Inspector really has it in for me! Why on earth [C] has taken an unhealthy interest in me is astonishing…I really hope it ain’t because I’m good at what I do and I’m black…that would make him vindictive and racist…could it be?”

He  had earlier been conditionally discharged for possession of a small quantity of cannabis found in his residence following the execution of the Respondent’s search warrant on August 11, 2009. He was initially charged in the magistrates’ court on March 31, 2010, and discharged on the same date. On May 11, 2010, he appeared in court to seek a modification of the terms of his conditional discharge. The police inspector who led the search of his residence attended court on both occasions. On the date of the second court appearance, the Applicant posted the offending remarks about the police inspector on his Facebook page. The posting drew a number of responses.

On January 7, 2011, the Applicant was charged in magistrates’ court on an Information laid by the Respondent with the summary offence of unlawfully publishing defamatory matter concerning Police Inspector C. The matter was adjourned to January 14, 2011 when the Applicant’s counsel requested the Senior Magistrate refer the question of whether Part XII of the Criminal Code and the Applicant’s prosecution contravened his rights under section 9(1) of the Constitution. The Senior Magistrate referred the matter to the Supreme Court.

At the directions hearing before the Supreme Court, the following two issues were identified as requiring determination:

“(a) whether section 214(1) of the Criminal Code Act 1907 (‘the Code’) taken in its statutory context on its face contravenes section 9 of the Constitution; and

 (b) whether the application of section 214(1) of the Code taken in its statutory context to the Applicant on the facts of the present case contravene his rights under section 9 of the Constitution.”

The parties agreed that an oral hearing would not be required and the decision should be based on written submissions.

 

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Decision Overview

Judge Kawaley delivered the judgment of the Supreme Court of Bermuda. He started off by comparing section 9 of the Constitution with Article 10 of the European Convention of Human Rights and Article 19 of the International Covenant on Civil and Political Rights (ICCPR). In each case freedom of expression is characterized as fundamental but the right can be restricted if it is reasonably required to do so for the protection of others or in the national interest and as long as the restriction is necessary in a democratic society. The onus was on the Respondent (the Crown or police sergeant in the present case] to prove the interference was “reasonably required”  and if such requirement was made out the onus switched to the Applicant to show that the interference was not reasonably justified in a democratic society.

The Judge then turned to the evidence to establish whether there was any reasonable requirement for interference with the Applicant’s section 9(1) rights. The Respondent had filed two witness statements – one exhibited the Facebook extracts containing the offending remarks and comments while the other was the police inspector’s account of how the original statement and the related comments distressed him. Some even caused him to fear for his safety, for example, ‘“He is racist. Met up with him a few years ago…Needs to get his a** outta Bermuda…b*st*rd”. ‘ The Respondent said that his employers had even carried out a security assessment on his behalf. The Judge found that these steps were  prompted by one of the responses to the Applicant’s remarks, not his remarks themselves, and the responses to the Applicant’s posting couldn’t justify charging the Applicant in respect of his own remarks.

Moreover, the Judge said that nothing in the Applicant’s rant came close to denying him his right to freedom of expression and supporting a finding that laying an information for criminal defamation was “reasonably required” in any of the interests listed in section 9(2)(a)(i) of the Bermuda Constitution: “in the interests of defence, public safety, public order, public morality or public health”. The Judge moved on to section 9(2)(a)(ii) which allows for laws to make reasonable requirements interfering with section 9(1) rights “for the purpose of protecting the rights, reputations and freedom of other persons”.  He said that the civil law of defamation was the only potentially reasonable legal requirement that the Respondent could rely on for prosecuting the Applicant.

The Respondent advanced arguments in support of the constitutional validity of a criminal sanction for defamation such as section 214 of the Criminal Code but conceded that the criminal law of defamation could only be used sparingly and in “extraordinarily bad” cases. The Judge found that the Applicant’s case did not fall into this category and referred by way of analogy to “The Royal Gazette et al-v- Attorney General and The Commissioner of Police, Supreme Court, Civil Jurisdiction 1982″  where an allegation of intentional defamation contrary to section 214(2) of the Criminal Code was held not to be reasonably required so as to justify the Court granting leave to prosecute the local daily newspaper. In the present case the Judge found that the Applicant was simply writing to his Facebook friends with a personal gripe. He was hurt and upset at having to appear in the magistrates court and just gave vent to his sense of victimization in the hope that his Facebook friends would give him support. The Judge said that in most cases where serious injury is caused to reputation civil remedies alone will be a proportionate response.

The Judge then referred to the amicus brief submitted by Ms. Heather Rogers Q.C. on behalf of Media Law Defence Initiative (MLDI), specifically, that the ECtHR doesn’t prohibit criminal defamation offences altogether but restricts the discretion to prosecute to exceptional circumstances. For example in Raichinov v Bulgaria (2008) 46 EHHR 28, the applicant was responsible for allocating the judicial budget. At a meeting of the Supreme Judicial Council, the applicant said: “You have decided to have financial matters dealt with by Mr S. For me he is not a clean person…’” He then added: “I can prove this’”. The applicant was charged with degrading Mr. S’s dignity, convicted and fined. The criminal court found that the offence was intentional, heard by Mr. S himself and around 25 people, but took into account the fact the applicant had apologised during the meeting and that the remarks had not been published to the public at large. The ECtHR found that no sufficient reasons had been shown to exist for the interference. It said that the restriction on the applicant’s right to freedom of expression therefore failed to answer any pressing need and could not be considered necessary in a democratic society. The court concluded that there had been a violation of Article 10 of the ECHR. The Judge in the present case considered this decision persuasive firstly because section 9 of the Bermuda Constitution is derived from Article 10 of the ECHR and, secondly, the factual context is instructive in that (a) in both Raichinov and the present case, the publication was made to a select group of persons rather than the public at large, (b) in both cases the defamation criticised a public officer’s professional conduct and implied unfitness for office, however (c) in Raichinov, by way of contrast to the present case, the defamatory allegation was said by the prosecution to be intentional and was asserted by way of fact; in the present case no intention to defame was alleged and all that was asserted was an opinion.

Judge Kawaley turned to the relevant Criminal Code provisions in particular whether negligent defamation can validly be the subject of criminal sanctions without falling foul of the protections in section 9 of the Constitution. The Applicant’s counsel referred to the Privy Council case of Worme v Commissioner of Police for Grenada [2004] 2 A.C. 430 and The Royal Gazette et al v Attorney General and The Commissioner of Police, Supreme Court, Civil Jurisdiction 1982. In the former, the Privy Council established that criminal intentional defamation provisions were not unconstitutional but counsel pointed out that in the U.K. when libel was a crime it was subject to the overriding requirement that the libel had to be sufficiently serious to justify the invocation of the criminal law and the state’s resources. In the latter case it was submitted that the “crime of negligent libel has no place in a modern democracy…”  

Judge Kawaley stated that no attempt had been made to justify the decision to prosecute the Applicant for the offence of non-intentional criminal defamation, with reference to the provisions of section 9(2). He said that the Respondent’s decision to concede this part of the Applicant’s constitutional complaint was “entirely understandable and legally justifiable”. And he found that the application of the criminal law of defamation to the Applicant infringed his freedom of expression rights under section 9(1) of the Constitution.

The Judge then went on to consider whether section 214(1) of the Criminal Code in its statutory context on its face contravened section 9 of the Constitution. Counsel for the Applicant drew the Court’s attention to a report by the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression which called on all States to decriminalize defamation. [para. 49] MLDI’s Counsel referred to a general trend toward decriminalization and the fact that the ECtHR had not yet ruled that criminal defamation is a violation of Article 10 but had stated that it can only be used in exceptional circumstances.  Respondent’s Counsel opposed the grant of a declaration that section 214(1) is unconstitutional on its face but cited no authority in support while the Attorney-General relied on Worme and the Canadian case of  Lucas v R [1998] 3 LRC 236  in support of his contention that all charges under section 214(1) required proof of an intention to defame.

In summary, the Supreme Court found that, section 214(1) was inconsistent with section 9(2) of the Constitution and unreasonably interfered with the freedom of expression rights protected by section 9(1) in the following three key respects. Firstly, it permitted prosecutions for defamation sufficiently trivial to warrant categorization as a summary offence. Secondly, it permitted prosecutions for non-intentional defamation. Thirdly, there was no adequate mechanism to ensure that private prosecutions are only commenced in circumstances which appear to the public prosecuting authorities to be reasonably required within section 9(2).

In these circumstances, Judge Kawaley said that the criminal prohibition of non-intentional defamation contained in section 214(1) of the Criminal Code was an impermissible infringement of the guarantees for freedom of expression contained in section 9 of the Bermuda Constitution. However, he went on that the subsection allowed the laying of a summary information in cases where an intention to defame must be proved .  He said that this potentially would be constitutionally permissible and less intrusive of free speech rights than requiring any intentional defamation charge to be proceeded with on indictment, depending on the facts of each case. As such, the Judge said he would modify section 214(1) to read:

214 Any person who unlawfully publishes any defamatory matter concerning another person knowing the defamatory matter to be false is guilty of an offence, and is liable to imprisonment for twelve months upon summary conviction and on conviction on indictment to imprisonment for two years. Provided that no charge shall be laid under this section without the consent expressed in writing of the Director of Public Prosecutions.” 

The Court ordered that the Applicant was entitled to a declaration that his prosecution contravened his freedom of expression rights in contravention of section 9 of the Constitution. It further directed that the Applicant was entitled to a declaration that section 214 on its face was invalid for contravening section 9 of the Constitution.

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