Omar Archer appeal of libel case dismissed
Barnett: The age of social media permits harmful allegations to be shared widely in seconds
NASSAU, BAHAMAS — The country’s criminal law should provide a sanction for the distribution and publication of false, scandalous and defamatory allegations, Court of Appeal President Sir Michael Barnett has opined.
In a postscript to the appellate court’s judgement over an appeal by social media commentator Omar Archer, Barnett noted: “I wish to record that I do not share the view of Klein, J, when he said that ‘I cannot leave this matter without observing that the offence of criminal libel does not sit happily in the edifice of a modern constitution’.
“We live in an era when social media permits the most false, scandalous and defamatory of allegations to be made and then distributed and published widely in a matter of minutes or indeed seconds.
“Where these allegations are calculated and intended to destroy the reputations of persons, the criminal law must be able to provide a sanction rather than leave a victim to a civil claim for damages, which may be worthless.”
Archer had appealed the decision of Justice Loren Klein, who last year dismissed Archer’s constitutional challenge to a criminal libel charge. However, Klein said the offence did not sit “happily with the edifice of a modern Constitution” and called on Parliament to give serious consideration to its viability.
The Court of Appeal noted that Archer was arrested on September 18, 2015, and charged with intentional libel, contrary to section 316 of the Penal Code, Chapter 84.
According to court documents, Archer, over the course of several days in April 2015, became embroiled in an “acrimonious exchange” on Facebook with a woman referred to as the virtual complainant. The exchange stemmed from Archer posting comments that were critical of alleged writings in a tabloid, which he attributed to the virtual complainant as a ghost writer.
In response, in a private message, the woman, a print journalist, called Archer a “pathetic turd”; charged that a “cockroach could beat you in an election”; and asserted his mother sought to induce an abortion, which made him “retarded instead”.
Archer, however, shot back with a series of offensive allegations publicly on his Facebook page, including that the woman had a “baby in a bucket in a Rasta camp and left it to die” and that she had HIV/AIDs and was spreading the virus.
The woman complained to the police and Archer was subsequently arrested in September 2015 and charged with intentional libel.
The Court of Appeal dismissed Archer’s appeal with costs to be awarded to the respondents, the commissioner of police and the attorney general.
The court noted that it had to decide is whether the offence of intentional libel could withstand a constitutional challenge, having regard to the right to freedom of expression guaranteed by Article 23 of the Constitution.
The appellate court pointed out that this issue was decided by the Judicial Committee of the Privy Council in a case arising from Grenada, whose relevant constitutional and statutory provisions are identical to those in The Bahamas.
The Privy Council accepted that the offence of intentional libel is a restriction on the right to freedom of expression but found that the objective of the offence was “sufficiently important to justify limiting the right to freedom of expression”.
“This court is bound by that decision. Therefore, the court does not find that section 315(2) of the Penal Code is unconstitutional or a breach of a person’s rights to freedom of expression,” the Court of Appeal judgement noted.
Loading ...
