Myth #26: All speech is protected by a person’s right to freedom of speech.

We all say things that we regret. Usually, this results in an apology, which is hopefully accepted, and then we move on with our lives. However, there are times when things are said in public and those things can seriously harm an individual or even the public good. That is where the law of defamation will apply.

On the individual level, it is a long established principle of English common law that every person is entitled to his or her good name and to the esteem in which he or she is held by others — in other words, their reputation. Accordingly, every person has a right to sue any person who disparages or defames them by making statements without lawful justification or excuse.

A defamatory statement is defined in law as a statement which tends to lower a person in the estimation of right thinking members of society generally or to cause him or her to be shunned or avoided or to expose him or her to hatred, contempt or ridicule, or to disparage him or her in his office, profession, calling, trade or business.

More recently, that definition has been expanded by incorporating a requirement of seriousness — in other words, someone cannot be sued for minor insults which do not seriously affect the person as defined above. What is serious or minor? Well, that is up to the Court to decide, but let’s just say that you can’t be sued for calling your brother an idiot for crashing his bike into a bush.

However, a defence to any claim of defamation is truth — that is to say, if what was said was or is true, it can’t be defamation. The other common defence to claims of defamation is that the statement is privileged. In certain circumstances, defamatory statements, no matter how malicious, are absolutely protected. Examples include statements made by a judge in his or her judicial capacity or statements made by a Member of Parliament during the course of proceedings in Parliament. In the end, the common law civil tort of defamation is one that is not easily defined or prosecuted and it leaves a lot of discretion to the judge in determining whether a statement was defamatory or not.

However, there is also a criminal charge of defamation in Bermuda. While many countries like the US and the UK have repealed criminal laws in relation to defamation, Bermuda still has a criminal offence of defamation in the Criminal Code Act 1907. Under that part, making a defamatory statement, (as defined by the Act) is an offence punishable by fine or imprisonment for up to two years.

Any thriving democracy requires its citizens to have the freedom of speech. In Bermuda this is enshrined in section 9 of the Bermuda Constitution which states that such right shall only be infringed when reasonably required to protect public safety, order, morality, health or “for the purpose of protecting the rights, reputations and freedom of other persons…” (section 9(2)(ii)).

The criminal law of defamation applies when said freedom of speech affects other rights of individuals — such as the right to a good reputation. When prosecuting these cases, the Crown must show that the defamation was so grievous as to justify a restriction on the right to freedom of expression.

The right to a good reputation may seem somewhat trivial compared to the right to freedom of expression, but the protection of individuals’ reputations is in the public interest. In determining these cases, the Court must balance these competing interests and in past cases, have confirmed that any criminal charge of defamation must involve a serious breach.

For those that wish to read further about this topic, I would highly recommend the judgment of the Chief Justice in the case of In the Matter of Section 15(3) of the Bermuda Constitution Order 1968 [2011] Bda LR 52 which contains a thorough review and analysis of the law in this area and the balance to be struck between the freedom of expression and the public interest.

We have all heard the phrase, “your reputation precedes you”. This phrase demonstrates that a person’s reputation is highly prized and cherished in society, especially a small one such as ours. It is also true that a good reputation takes years to build but can take only minutes to destroy, which can lead to financial or even more serious consequences for the offender. It is therefore prudent for the average citizen to be aware of what they say in public and the potential consequences.

John Hindess is an Associate in the Litigation and Advice Team at Marshall Diel & Myers Ltd. A copy of this article can be found at the firm’s website at www.law.bm. This column is for general guidance only and does not constitute legal advice.