NASSAU, BAHAMAS — The Court of Appeal has upheld the intentional libel conviction of outspoken political activist and social media commentator Omar Archer Sr.
The Court also replaced his original three-month custodial sentence with a 14-day imprisonment term and a $5,000 fine and awarded compensatory damages to the complainant in the sum of $5,000. Archer was found guilty in November 2022 of intentional libel for alleging on Facebook that a well-known local journalist had HIV/AIDS and was spreading it. His trial commenced in November 2016.
After the prosecution’s case concluded, Archer raised a constitutional issue before the Supreme Court, which was dismissed. He subsequently appealed that ruling to the Court of Appeal, which also rejected his appeal.
Following this, Archer sought permission to appeal directly to the Privy Council. On July 19, 2022, the Privy Council denied permission. The case returned to the Magistrate’s Court. Archer did not testify or call witnesses. The Magistrate convicted him and initially sentenced him to three months’ imprisonment. Archer then filed a Notice of Appeal on November 8, 2022, citing various grounds, including the unreasonableness of the conviction, consideration of extraneous matters by the magistrate, and disproportionate interference with his freedom of expression. He argued, among other points, that there was no actionable libel as the complainant knowingly engaged in heated discourse. He also contested the magistrate’s non-compliance with sentencing guidelines issued by the Chief Justice.
The Court of Appeal affirmed the conviction but modified the sentence. The custodial sentence of three months’ imprisonment was quashed, and in its place, a sentence of 14 days’ imprisonment (time served on remand) was imposed. Additionally, a fine of $5,000 must be paid by Friday, May 17, 2024, or else three months’ imprisonment will be enforced. Compensatory damages of $5,000 to the complainant must be paid by Monday, July 22, 2024, or else one month of imprisonment will be imposed. If both sums remain unpaid by the due date, the respective terms of imprisonment of three months and one month will run concurrently.
The appellate court noted: “The appellant’s argument that there was no evidence presented to the magistrate proving the publication of a defamatory post about the complainant having AIDS is without merit.”
The court emphasized the complainant’s testimony, along with that of her two witnesses and documentary evidence, supporting the magistrate’s finding. The Court further stated: “A reasonable reader would interpret the false statement about the complainant having AIDS and spreading it as inherently defamatory, regardless of any preceding private exchange between the parties.” However, they criticized the magistrate’s sentencing ruling for lacking a comprehensive explanation and failing to consider relevant sentencing factors and comparators. Consequently, the decision to impose a three-month custodial sentence was deemed unreasonable and overturned.
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