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Human Rights Act leaves tribunal ‘powerless’

The Human Rights Commission has called on discrimination laws to be expanded after a case involving “inflammatory” comments online.

While the commission said it was disturbed by the comments made by Desai Jones against Mark Anderson, it was unable to deliver a “just verdict” because, although the law prohibits racially discriminatory writings, it does not prohibit written discrimination on other grounds.

A written judgment stated: “As human rights commissioners, it is our duty to propose and petition for amendments to the Bermuda Human Rights Act until the residents have a document which truly protects the rights of all people living and working in Bermuda.

“We therefore recommend that [the Act] be amended to encompass the written word such as articles and statements and that [the Act] be amended to offer protection for all prohibited grounds of discrimination.”

The tribunal had heard that on March 11 last year Mr Anderson — a bus operator and female impersonator — was driving a bus towards Somerset when he stopped near Manse Road and Mr Jones got on.

Mr Jones told Mr Anderson that he had only a $50 bill, but Mr Anderson allowed him to take a seat anyway. As Mr Anderson continued to drive, he realised that Mr Jones had said the same thing to him on two previous occasions and he had allowed him to ride both times.

When Mr Jones later went to exit the bus, Mr Anderson spoke to him, telling him he would not be allowed to ride the bus again without paying the correct fare. Several days later, Mr Anderson was told by a friend that Mr Jones had made several comments on Facebook about the incident containing derogatory comments about Mr Anderson and his sexual orientation.

In the comments, Mr Jones wrote that Mr Anderson was fortunate he did not “rip off his bra and panties” adding: “You know I hate your kind with a passion.”

Mr Anderson subsequently filed a human rights complaint against Mr Jones about the comments.

He later filed a second complaint complaining that Mr Jones was attempting to intimidate him into dropping his first complaint.

During a hearing in March, Mr Jones told the tribunal that when he wrote “I hate your kind”, it was an expression of his view on homosexuality and that it should not exist.

However, he said the comments were directed not to Mr Anderson but to Sybil Barrington — the stage name used by Mr Anderson as a female impersonator.

The tribunal, however, said the existing legislation disallows only discriminatory “notices, signs, symbols, emblems or other representations”, and that the courts had found that definition did not include the written word.

It also noted that while section 8(1)(a) of the Act prohibits publishing written words which are threatening, abusive or insulting on racial grounds, the section does not expand to other areas of discrimination.

As a result, the tribunal was required to dismiss the first claim.

Regarding the claim of intimidation, the court heard that Mr Jones posted a picture of documents linked to the human rights complaint on his Facebook page. Mr Anderson argued that this, combined with information given to him by other people about how Mr Jones treated people with Mr Anderson's sexual orientation, amounted to intimidation.

The tribunal was also shown online comments by Mr Jones stating: “Just don't try to stand toe to toe with me ... cause I'll go out of my way to hurt you real bad.”

Questioned about the comment, Mr Jones said he was speaking hypothetically using a boxing reference. The tribunal dismissed the second claim, finding that Mr Jones did not post the documents to intimidate Mr Anderson, noting that while he posted them publicly there was no way he could know Mr Anderson would see them.

It also found that subsequent online comments, while “distasteful, derogatory and vitriolic”, did not indicate a desire to intimidate the complainant.

The judgment stated: “The tribunal has heard the facts of this matter and were greatly disturbed by the inflammatory comments, language and opinions expressed on Facebook by [Mr Jones] in this case.

“[Mr Anderson] had twice before, in addition to this instance, acted as a Good Samaritan by allowing [Mr Jones] to ride the bus when he had no other means of transportation. Unfortunately, his good deed did not go unpunished.

“We regret that the law as it stands in relation to the first complaint renders this tribunal powerless to return a just verdict in this case since the Bermuda Human Rights Act has not been amended to include the written word.

“Similarly, we regret that the Human Rights Act has yet to be updated to encompass sexual orientation and all prohibited grounds under section 8(1)(a).”

Bus driver: Mark Anderson

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Published August 31, 2015 at 9:00 am (Updated August 31, 2015 at 9:00 am)

Human Rights Act leaves tribunal ‘powerless’

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