Justice Klein recommends Parliament give serious consideration to criminal libel laws
NASSAU, BAHAMAS — A Supreme Court judge has dismissed a constitutional challenge to a criminal libel charge against Contractors Registrar Omar Archer.
However, Justice Loren Klein said the offense did not sit “happily with the edifice of a modern constitution” and called on Parliament to give serious consideration to its viability.
The ruling was handed down on Monday.
Archer is named as the plaintiff.
The commissioner of police and the attorney general are named as defendants.
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.
Notwithstanding his ruling refusing the declaration of a constitutional motion, Klein observed the offense of criminal libel did not sit “happily with the edifice of a modern constitution”.
He said there were serious deficiencies in the law which caused him “tremendous angst”, including the lack of procedural mechanisms or safeguards for deciding when a libel rises to the level of seriousness that warrant the weight of the criminal law.
In his ruling, Klein said: “Perhaps the time has also come for Parliament to give serious consideration as to whether such an offence remains viable or whether there should be a move to the more modern catalogue of alternatives to criminal libel… or other legislation specifically applicable to internet-based platforms such as communication.”
The exchange stemmed from Archer posting comments that were critical of alleged writings in a tabloid 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 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.
During his trial, then counsel for Archer, Fred Smith, QC, argued the charge was unconstitutional, which led the matter to be referred to the Supreme Court.
Archer’s counsel sought the matter be dismissed as void and illegal, and for the commissioner of police to pay damages for having unconstitutionally subjected him to criminal libel proceedings.
In his ruling, Klein said arising out of the commonplace episode of human conflict on social media is an important question of constitutional law, namely whether and in what circumstances can the state, consistent with the constitution, apply the offenses of criminal law to defamatory expression as opposed to leaving the parties to pursue civil recourse.
He said while criminal libel traces back to 1275, modern social media platforms such as Facebook arrived in 2004.
Section 316 of the Penal Code reads that a person is guilty of libel when by print, writing, painting, effigy or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, either negligently or with intent to defame the other person.
Archer argued the section of the Penal Code is unconstitutional as it infringes on the right to freedom of expression in the constitution, and was not justifiable as there are adequate civil remedies.
Archer also made the case that in a modern era, criminal libel should be reserved for the most serious cases, and said his comments, in the context made, was not in “reality likely to have caused significant of serious harm”.
He argued that the state’s charge was disproportionate.
Counsel for the defendants, however, argued the charge was a judicial and not an executive act, and was not exposed to the constitutional scrutiny attached to post-independence executive acts.
Klein agreed civil remedy ought to have been the first port of call to redress defamation, but said that does not necessarily mean the criminal law has no role to play.
“The case clearly shows that public figures such as politicians or persons operating in the public context, which includes journalist, are exposed to public scrutiny and must have a higher tolerance for critical comment,” Klein said.
The judge disagreed that Archer’s comment were not likely to cause harm.
Klein noted that while the insults laid by the virtual complainant were largely opinions, Archer’s responses imputed several serious crimes to the virtual complainant, including infanticide and breach of the Sexual Offences Act.
He ruled the challenge was not unconstitutional on the grounds of proportionality,
Klein rejected the submission that the magistrate lacked jurisdiction to hear the matter, noting that matters of impinging on rights can arise with the enforcement of very many criminal laws.
Archer also alleged the prosecution was politically motivated.
Additionally, he said the virtual complainant was “galvanized” into acting because of prodding for the police, though the complaint was reportedly made within days of the woman learning of the posts.
Klein, who said it was disturbing that such grave allegations were levied against the state’s use of its criminal powers in prosecutions, “which are extremely rate” went unanswered by the state.
He said his judgement was based on interpretive analysis of the constitution, binding authority of the Privy Council was and the savings law cause.
“It has not been an easy exercise to attempt to retro-fit an offence deeply mired in antiquity and social control into the dwelling of a modern constitution,” Klein wrote.
“But the walls were already framed.
“Counsel for the plaintiff tried valiantly, like the army amassed against the walls of Jericho to bring the walls down through ingenious attacks, but in this case the walls did not fall.”
He said after careful analysis, it was the decision of the court that thought the charge prima facia interfered with article 23(1) rights, it cannot be held as unconstitutional, and neither is the executive act of prosecuting the plaintiff unconstitutional.
He refused the declaration of the constitutional motion.
Klein also refused the request for the matter to be dismissed.
Since Archer was charged, prosecutorial power now rests with the constitutionally appointed independent director of public prosecution.
Klein said this has created some insulation against any allegation of possible politically motivated prosecutions.