Remarks by Marc Bean suggesting involvement in criminal activity on the part of Michael Dunkley cannot be taken as fair comment, the Court of Appeal has ruled.

The defamation case between Mr Bean and Mr Dunkley began after comments by the Leader of the Opposition on a popular Facebook forum, Bermuda Election 2012.

Mr Bean posted to the site on September 20, 2013, when Mr Dunkley was the Deputy Premier and Minister of National Security.

It came after a motion brought to Parliament by Mr Dunkley for the random drug testing of sitting MPs.

The Facebook post by Mr Bean called the motion “solely the doings of Minister Dunkley (the irony)”, and added that there had been little support from the One Bermuda Alliance.

“Dunkley has motivations that only he can explain,” Mr Bean’s post continued.

“If the motion is about standards, then it should be based on being honourable (being honest).”

Later in the post, Mr Bean wrote: “When I look across the isle [sic], all I can do is shake my head, especially when we all know what the former head of narcotics had to say about Minister Dunkley, and we all know two men have served time in prison for it.

“Imagine a PLP MP, as a leading importer of goods, also being the head of National Security and border control? Irony and hypocrisy at its finest, delivered by a man whose sole purpose is power and control.”

His reference was to a video posted on YouTube by Larry Smith, the former head of narcotics, in which Mr Smith alleged that in 2003 there had been an importation of drugs at Dunkley’s Dairy with an estimated street value of millions.

The video, which has been widely viewed in Bermuda, claims that Mr Dunkley should have been arrested on suspicion of conspiracy.

The footage was dismissed as a smear campaign, with Mr Dunkley pointing out that he had assisted the police with their investigation.

On the Facebook thread, Mr Smith’s video was posted by another user of the Bermuda Election 2012 site. Mr Dunkley subsequently brought a defamation lawsuit against Mr Bean.

The claim for damages argues that Mr Bean’s postings on the site had implied that he was “a dishonest hypocrite” for bringing a motion to Parliament for the random drug testing of MPs; that he had been involved with the importation of narcotics, and that he had abused his public office to further his involvement in illegal drugs.

Mr Bean, represented by lawyer Eugene Johnston, subsequently argued that Mr Dunkley’s position with a business that had once been involved in a drug importation investigation should raise concerns with the Bermudian electorate.

The defence also contended that Mr Dunkley’s “fascination” with bringing in drug testing had been hypocritical.

The defence added that Mr Bean’s practice of Rastafarian beliefs, which had at one time included the “liberal use of cannabis” for spiritual and medicinal purposes, had led to a widespread belief that he still made continual use of cannabis.

The defence further argued that Mr Dunkley had sought to score points with the electorate and damage the defendant’s political reputation.

Chief Justice Ian Kawaley struck down the argument of honest comment on a matter of public interest, since such arguments can only be advanced on the basis of established facts.

Mr Johnston appealed against that decision, saying the matter should have been left to a jury, but the Court of Appeal, in a judgment handed down yesterday, upheld the Chief Justice’s ruling.

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