September 11, 2012
Expert – DeFreitas misunderstood Privy Council ruling

The charge brought in 1985 by the government of Antigua against the late newspaper editor Tim Hector is very different to the defamation charge brought by Prime Minister Dr Ralph Gonsalves in 2002, against Elwardo Lynch and BDS Ltd.{{more}}

A legal expert, in an interview with SEARCHLIGHT on Sunday, explained that while Hector was charged under Antigua’s Public Order Act, and based his defence claiming that the section of the law under which he was charged was unconstitutional, Lynch and BDS Ltd were charged with defamation.

Douglas DeFreitas, the chief executive officer of BDS Ltd, has frequently cited the Antiguan case when defending his radio station in the light of defamation suits brought against it. Most recently, in an interview with Tony Regisford on the “Unrendered” television programme on September 2, DeFreitas said the Privy Council ruling gives media professionals the right to tell half-truths or even lie, when commenting about public officials.

“… There is a Privy Council ruling in Antigua that the precedence, the ruling was set already that those who fortiori or foretell, whether it be electronic media or print media, not having information, can speak half-truths, even lies…” De Freitas said in that interview, adding that this applied to matters that are in “the interest of the public,” and not for private matters.

DeFreitas said, in his view, the judicial system is flawed, as the judges of the OECS court do not want to accept the Privy Council ruling as his defence.

“A complete misunderstanding of the Privy Council ruling and to what it applies!” the legal expert told SEARCHLIGHT.

In 1985, Hector published an article in his newspaper “The Outlet” which offended the government of the day.

He was charged under Section 33B of the Public Order Act, which said any person who … “prints or distributes any false statement which is likely to cause fear or alarm in or to the public, or to disturb the public peace, or to undermine public confidence in the conduct of public affairs,” will be liable to a fine not exceeding $500 or to a term of imprisonment not exceeding six months.

The actual charge brought against Hector alleged that the article complained of was a “false statement, which was likely to undermine public confidence in the conduct of public affairs”.

In his defence, Hector successfully challenged the prosecution on the ground that the charge violated the Constitution of Antigua and Barbuda to the extent that it contained the words “or to undermine public confidence in the conduct of public affairs”.

The trial judge agreed with Hector and ordered that the criminal proceedings be quashed.

The judge’s order was reversed on appeal by the Court of Appeal of the Eastern Caribbean Supreme Court. Hector then appealed to the Privy Council.

The Privy Council, in their ruling, said that the relevant provisions of the Constitution are those which pertain to freedom of conscience and expression, including freedom of the press, and the limitations to these freedoms to ensure that they do not prejudice the rights and freedoms of others or the public interest.

The Law Lords commented, “In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind. At the same time, it is no less obvious that the very purpose of criticism levelled at those who have the conduct of public affairs by their political opponents is to undermine public confidence in their stewardship and to persuade the electorate that the opponents would make a better job of it than those presently holding office. In the light of these considerations their Lordships cannot help viewing a statutory provision which criminalises statements likely to undermine public confidence in the conduct of public affairs with the utmost suspicion.

“… It would be a grave impediment to the freedom of the press, if those who print, or fortiori those who distribute, matter reflecting critically on the conduct of public authorities could only do so with impunity if they could first verify the accuracy of all statements of fact on which the criticism was based,” their Lordships said.

The Privy Council therefore held that if a false statement, “although likely to undermine public confidence in the conduct of public affairs is not likely to disturb public order, a law which makes it a criminal offence cannot be reasonably required in the interests of public order, by reference to the remote and improbable consequence that it may possibly do so.

“Their Lordships are driven inexorably to the conclusion that the words in Section 33B ‘or to undermine public confidence in the conduct of public affairs’ offend against the Constitution and cannot therefore have any effect’.”

Lynch and BDS Ltd. were found guilty of falsely and maliciously accusing the Prime Minister Gonsalves of corruptly using state funds to pay for airline tickets from St Vincent to Rome and accommodation costs for his daughter and mother.

The Appeals Court in 2006, upheld the lower court’s order for Lynch and BDS to pay Gonsalves EC$250,000. The money has not yet been paid, but Gonsalves’ lawyer has recently applied to the High Court for a receiver to be appointed. This matter is expected to be heard in court later this month.