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Government and defamation

The February 1 edition of the Bermuda Sun quotes the Deputy Premier (Derrick Burgess) as making the following statement respecting the defamation action he and the former Premier brought in Canada:

“When the documents went to Canada, it was in the name of the Government. In Canada you can't sue for defamation in the name of a Government, so it was in my and Dr (Ewart) Brown's names.”

The Deputy Premier appears to be saying that the defamation action was not being brought by him and the former Premier personally but rather it was the Bermuda Government's defamation action, and he and the former Premier were only bringing the action under their names because of some legal technicality.

In other words, he and the former Premier were simply doing the Government a favour. Legally speaking, that explanation makes no sense. Here's why. In law, when we say someone cannot sue in their own name, we are talking about Legal Capacity, which means the ability to sue or be sued. For instance, a minor cannot sue in his own name because a person under 18 years of age does not have the Legal Capacity to sue or be sued. So if John Smith's son, Billy, is hit by a car, the lawsuit will be brought in the name of John Smith “as next friend of Billy Smith”.

A second example is an unincorporated association such as a local football club. It is not a recognised legal entity and therefore lacks the capacity to sue or be sued. So if someone steals money from the Barbarian Football Club, the lawsuit will be brought in the name of Joe Blow “on behalf of himself and the other members of the Barbarian Football Club”.

In each case the lawsuit has legal merit and is being brought in the name of someone else because of a legal technicality.

So when the Deputy Premier says that, “In Canada you can't sue for defamation in the name of a Government …”, it sounds like the Bermuda Government's defamation action has legal merit but was being brought in the name of the Deputy Premier and the former Premier merely because of a legal technicality. But that's nonsense.

First of all, the Bermuda Government, as a recognised legal entity under both Bermuda law and Canadian law, has the Legal Capacity to sue and be sued in Canada and in Bermuda. In other words, there is no legal technicality to overcome and therefore there is no legal justification for the Government's lawsuit being brought in the name of the Deputy Premier and the former Premier.

Further, any suggestion that the Government's lawsuit had legal merit is incorrect. A government bringing an action for defamation makes about as much sense as a government bringing an action for someone running over its foot.

Defamation is a personal action for harm to one's personal reputation. A Government, as a non-human, has no personal reputation.

Finally, even if a government had a personal reputation, the court would dismiss its defamation lawsuit as being a contrary to the Constitutional right to freedom of expression, as protected under Section 9 of the Bermuda Constitution and section 2(b) of the Canadian Charter of Rights.

Remember, a central tenet of a functioning democracy is to allow criticism of government without fear of retribution, whether legal or otherwise. So what does all this mean?

It means that right from the beginning there was no legal basis for a defamation action by the Bermuda Government. Further, it is very unlikely that the Attorney General's Chambers, which is filled with lawyers, would not have advised the Deputy Premier and the former Premier of that fact right from the beginning, and even if they hadn't, surely the Canadian lawyer would have.

Clearly someone owes someone an apology, and the people of Bermuda are owed an explanation. Either the Attorney General's Chambers and the Canadian lawyer gave the Deputy Premier and the former Premier bad advice, or the Deputy Premier who has made some unkind remarks about the Auditor General over the last few days has a lot of explaining to do, both to the Auditor General and to the people of Bermuda.

All of this can be cleared up as soon as Premier Cox complies with the Auditor General's demand for disclosure of documents pursuant to the Audit Act. As I explained in my January 31

Royal Gazette article, “What Legal Privilege Means” (found on

The Royal Gazette website), the Premier's refusal to comply with such demand is a continuing violation of the Audit Act, the most fundamental legislation Bermuda has to ensure good governance, transparency and protection of the public purse.

Kevin Comeau, a Canadian lawyer, has resided in Bermuda since 1989. For the last seven years Mr. Comeau has spent much of his effort toward the development of social policy proposals with special emphasis on decreasing the gap between the haves and have-nots in Bermuda. Mr. Comeau recently established the Good Governance Institute of Bermuda, which sets out a number of these social policy proposals. (For more information see

Kevin Comeau

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Published February 07, 2012 at 1:00 am (Updated February 07, 2012 at 8:22 am)

Government and defamation

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