1
THE EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
COMMONWEALTH OF DOMINICA
DOMHCVAP2011/0017
BETWEEN:
[1] LENNOX LINTON
[2] ISLAND COMMUNICATIONS CORPORATION LTD.
[3] RAGLAN RIVIERE
Appellants
and
KIERON PINARD-BYRNE
Respondent
Before:
The Hon. Mde. Janice M. Pereira Justice of Appeal
The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal
The Hon. Mr. Mario Michel Justice of Appeal [Ag.]
Appearances:
Mr. Stephen Fraser and Mr. Duncan Stowe for the First and Second Appellants
Dr. William Riviere for the Third Appellant
Mr. Anthony A. W. Astaphan, SC and Ms. Hazel Johnson for the Respondent

2012: May 2;
2013: March 25.

Civil appeal – Defamation – Libel – Slander – Distinction between – Words complained of
contained in internet article and radio broadcast – Justification – Fair comment – Qualified
privilege – Whether or not there was publication of material posted on website
The respondent, a chartered accountant by profession, commenced legal proceedings in
the court below against the appellants, alleging defamation of character. The first
appellant had called in to a live radio programme and made certain statements about the
respondent in relation to a matter which, at the time, was the subject of much discussion in
the Commonwealth of Dominica. The radio station which aired the programme was owned
and operated by the second appellant. The first appellant had also authored an internet
article on the very same topic of discussion, which mentioned the respondent. The third
appellant operated the website on which the article was posted. The statements made
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over the airwaves as well as the contents of the internet article together comprised the
words complained of by the respondent.
The first appellant’s statements suggested that the respondent lacked integrity, had acted
dishonestly and deceived the Dominican public by using the offices that he held and the
functions that he performed in relation to a company set up to undertake the construction
of a hotel in Dominica, to enrich himself.
The learned trial judge found that the words complained of ascribed to the respondent
criminal and professionally discreditable conduct, had the effect of lowering him in the eyes
of the public, and were defamatory of him. He found that the words complained of were
not justified, were not fair comment on a matter of public interest, and did not attract
qualified privilege. Judgment was accordingly entered for the respondent and the learned
judge awarded damages and costs to the respondent, to be paid by each of the appellants.
The appellants appealed to this Court on several grounds, from which the following main
issues for consideration were distilled: whether or not the words complained of were
defamatory; whether, judging from the evidence in the court below, the appellants should
have been able to rely on any of the defences of justification, fair comment or qualified
privilege; whether the words complained of constituted libel or slander; and whether there
had in fact been publication of the words complained of in the internet article.
Held: allowing the appeal, dismissing the respondent’s counter appeal, and awarding the
appellants prescribed costs here and in the court below in accordance with rules 65.5 and
65.13 of the Civil Procedure Rules 2000, that:
1. The words complained of were defamatory of the respondent.
2. The appellants were not justified, based on the evidence adduced in the court
below, in speaking, writing, broadcasting or publishing the words complained of.
3. Although the words complained of did relate to a matter of public interest, they
were imputations of fact and not comment and no attempt was made by the
appellants to establish their truth. The learned judge therefore rightly held that the
words complained of did not constitute fair comment on a matter of public interest.
Tse Wai Chun Paul v Albert Cheng [2001] EMLR 31 applied.
4. The first appellant did in fact undertake an extensive investigation of the issues
which he spoke about during the radio broadcast and in the internet article. It was
therefore not open to the learned judge to make the finding that the first appellant
did not make any enquiries and that this factor weighed heavily against him being
able to rely on the defence of qualified privilege. The words complained of were
not actuated by malice towards the respondent, but only by strong sentiments held
by the first appellant on the respondent’s involvement in the Layou river hotel
project. On the evidence, it does appear that the first appellant honestly believed
in the truth of the conclusions that he reached and in the words that he spoke and
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wrote about the respondent. Accordingly, the speaking, writing and publishing of
the words complained of were done in circumstances which attracted qualified
privilege.
Reynolds v Times Newspapers Ltd and Others [2001] 2 AC 127 applied.
5. The writing and publishing of defamatory words on an internet website constitute
libel, while the speaking of defamatory words on a live radio broadcast constitutes
libel when the broadcast is recorded for rebroadcast and, even if it constitutes
slander and not libel, is equated with libel when it is slander actionable per se
because the words impute the commission of a crime by the respondent or
disparages him in his office, profession, calling, trade or business.
6. The words complained of in the radio broadcast were published by the first and
second appellants in Dominica, while the words complained of in the internet
article were published in Dominica by the first and third appellants.
JUDGMENT
[1] MICHEL JA: The term economic citizenship was introduced into the Dominican
vocabulary in 1991 when the Government of the Commonwealth of Dominica
entered into an agreement with a Taiwanese national, Ms. Grace Tung, to develop
and build a hotel on the bank of the Layou River in Dominica. A company called
Oriental Hotel (Dominica) Limited (hereafter “OHDL”) was incorporated in
Dominica to undertake the hotel project. The shareholders in the company were
investors from Pacific Rim countries who were expected to be made citizens of the
Commonwealth of Dominica and given Dominican passports as part of the return
on their investment. Although several investors did buy shares in the company
and construction of the hotel commenced in 1995, construction was discontinued
the following year, after several millions of dollars were expended, and the project
was eventually given up as a failure, with several shareholders losing their
investment.
[2] The economic citizenship programme and the project through which it was to be
introduced into Dominica were mired in controversy from the very beginning. The
government of the day was much criticised over the project and Grace Tung, with
whom the government had contracted, also became the subject of much criticism.
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[3] Enter Kieron Pinard-Byrne.
[4] The respondent in this appeal, Kieron Pinard-Byrne, is a chartered accountant
who emerged as a central figure in the controversy. He was the resident partner
in Dominica of the firm of Coopers & Lybrand, who were the auditors of OHDL
from 1991 to 1997; he is the managing partner of KPB Chartered Accountants,
who took over from Coopers & Lybrand as the auditors of OHDL; he was also the
company secretary of OHDL and the owners’ representative of the shareholders of
OHDL. The respondent had also been (about the same time) the liquidator of Fort
Young Hotel Limited, whose operating assets were sold to Grace Tung.
[5] Public discourse on the controversial economic citizenship programme and the
Layou hotel project continued through the 1990s and did not abate at the dawn of
the new century, despite two changes in government brought about by general
elections in 1995 and in 2000.
[6] On 26th February 2002, the first appellant (Lennox Linton) called in to a live radio
programme on a local radio station owned and operated by the second appellant
(Island Communications Corporation Ltd.) and said of and concerning the
respondent:
“So no one will challenge him face to face even as he plays the race card
to perfection he talks in a phobia to perfection, he mercilessly insults the
intelligence of Dominicans from whose passports he has become a major
beneficiary. Tonight he is doing it again…
“When you go back to that record of deception in the 1999 Report and
Accounts where they tell you all sorts of stories about the reengineered
citizenship Programme of the Government that caused problems for
Dominicans in Canada and so on, all these statements are not borne out
by the facts.
“What Mr. Byrne and Company must do is present to the people of
Dominica incontrovertible evidence of a revenue stream and you asked
the question to IDM that is independent of economic citizenship
investment. That is important because I will put it to the promoters that
the company IDM was set up specifically to find some clever way of
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purchasing the Layou River Hotel property in the name of a company
owned and operated by grace Tung. That is what I am putting to them.
“In other words they got a cheque and it was time to distribute the money
to the shareholders who had invested in that company. But interestingly,
when the statement of account was presented by Coopers and Lybrand it
did not carry 1st of February as the Chairman of Fort Young claimed as
the date of the sale. It carried the 4th of February. Again the significance
of the 4th of February date is that, that is the date on which International
Development and Management was incorporated in Dominica. Therefore
the 1st of February did not exist and they could not have bought anything
on the 1st of February.”
[7] The first appellant also wrote the following words of and concerning the
respondent in an article entitled “Professional Conduct Procedure – The KPB
Version”, which article was posted in May 2002 on a website operated by the third
appellant (Raglan Riviere) and which remained on the website from May 2002 until
about September 2003 when the respondent instituted proceedings against the
appellants in the High Court:
“Self styled Owners Representative Keiron [sic] Pinard-Byrne must know
that the record of squander mania and crass deception presented in the
Layou 5 Star Hotel accounts speaks for itself. It was audited by KPB
Chartered Accountants of which Mr. Keiron [sic] Pinard-Byrne is Chairman
and CEO. It formed part of the Directors Report to the shareholders which
Mr. Pinard-Byrne signed as Secretary to the Board…
“As Owners Representative Mr. Byrne confirms in the audited statements
that he received over 300 thousand dollars for his services to the
shareholders of Oriental Hotel (Dominica) Ltd. His actual share of the
audit payment and “administrative expenses” of Oriental Hotel have not
been disclosed. The hundreds of thousands of dollars he must have
cashed in from Dominican passport money siphoned through International
Development & Management (IDM) have not been disclosed either.
“This paragon of great Irish virtue has said publicly that he became
involved with the Layou River Economic Citizenship Programme as
Owner’s Representative of the shareholders of Oriental Hotel in 1995. At
that time he claims, he was merely acting on behalf of Coopers &
Lybrand. He also disclosed that the last shareholders meeting of Oriental
Hotel was held in 1994. How then was Mr. Byrne appointed owner’s
representative? And who made the appointment? Keep in mind that
shareholders of Oriental Hotel resident in Dominica have publicly
expressed their dissatisfaction with the conduct of this gentleman and
have rejected suggestions that he represents them.
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“Notwithstanding Mr. Byrne’s assurances that he only became involved in
1995, Government records indicate that as far back as 1993 he was
having audiences with shareholders in his Roseau office and traveling to
Hong Kong to clarify issues of concern.
“What he would love to hide from the public is the fact that he was up to
his ears in service to the Grace Tung group of companies at the very
same time that he was liquidator of the Fort Young Hotel whose operating
assets were sold to the Chinese immigrant in a web of intrigue.”
[8] In 2003, the respondent instituted proceedings against the appellants for
defamation of character, alleging several counts of defamation. The case came
before Lewis S. Hunte J [Ag.] on 13th February 2006 for a determination of the
preliminary issue as to whether the words complained of were capable of bearing
the defamatory meanings ascribed to them in the statement of claim. In a ruling
delivered on 10th April 2006, Hunte J [Ag.] determined that the words contained in
paragraphs 6 and 7 above were capable of bearing the defamatory meanings
ascribed to them.
[9] For ease of reference, the quoted words from the radio broadcast and the internet
article shall be referred to as “the words complained of” (whether with reference to
one or both sets of words).
[10] Pursuant to an order of Justice Anthony Ross, QC dated 17th October 2007, the
respondent filed an amended statement of claim in which he pleaded as being
defamatory of him only the words complained of (allegedly published by the first
appellant and the second or third appellant).
[11] The first and third appellants filed amended defences on 13th December 2007
denying that the words complained of bore the defamatory meanings ascribed to
them in the amended statement of claim and also pleaded justification, fair
comment and qualified privilege. The first appellant also contended that the words
complained of were not actionable without proof of special damage, in other
words, that the words (if defamatory) were slanderous and not libellous, while the
third appellant referred to a disclaimer on his website as being exculpatory of him,
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though he never pursued this issue at the trial of the matter or the hearing of the
appeal.
[12] The second appellant did not file a defence, as did the first and third appellants,
but counsel for the first appellant has represented the second appellant in all
respects (both here and in the court below) as if the amended defence filed on
behalf of the first appellant was also filed on behalf of the second appellant. The
case has proceeded throughout on this basis, with no objection taken by any of
the parties to the case or by any of the judges who dealt with the case and I will
adopt the same posture in this judgment.
[13] The case was tried by Justice Brian Cottle, who delivered judgment on 22nd March
2011. The learned trial judge found that the words complained of ascribed to the
respondent criminal and professionally discreditable conduct, that they had the
effect of lowering the respondent in the esteem of the public, and that they were
defamatory of him. The learned trial judge also found that the words complained
of were not justified, they were not fair comment on a matter of public interest, and
they did not attract qualified privilege. He accordingly gave judgment for the
respondent against all three appellants and awarded damages and costs to the
respondent to be paid by each of the appellants.
[14] The appellants appealed against the judgment of the trial judge and listed 40
grounds of appeal. The respondent in turn filed notice of counter appeal,
appealing against the order and award of damages. The respondent had 4
grounds of appeal, 3 alleging error and misdirection by the learned trial judge in
failing to consider a number of factors in determining the award of damages and 1
ground simply alleging that the award is wholly inadequate.
[15] In preparing for the hearing of the appeal, the parties generated an impressive
quantity of documents, including detailed skeleton arguments and numerous
judicial and some statutory authorities.
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[16] The appeal was heard on 2nd May 2012, with oral submissions made by counsel
on behalf of the parties to augment the skeleton arguments filed by them.
[17] Upon examination of the appellants’ 40 grounds of appeal, the skeleton arguments
filed and the oral submissions made on their behalf, and the respondent’s
responses to these grounds of appeal, skeleton arguments and oral submissions,
the task of the Court of Appeal really comes down to determining six issues: firstly,
whether the words complained of were defamatory of the respondent; secondly,
whether there was justification for the appellants to have spoken, written,
broadcasted or published the words of or concerning the respondent; thirdly,
whether the words complained of constituted fair comment on a matter of public
interest; fourthly, whether the speaking, writing, broadcasting or publishing of the
words were done in circumstances which attracted qualified privilege; fifthly,
whether the speaking, writing, broadcasting or publishing of the words constituted
libel or slander; and sixthly, whether the words complained of were in fact
published by the appellants in the Commonwealth of Dominica.
[18] In his oral and written submissions on the first issue, learned counsel for the first
and second appellants attempted to make heavy weather of some slips made by
the learned trial judge in his written judgment, for instance, referring to the title of
the internet article as indicating that it (meaning the title) was aimed at disparaging
the respondent by way of his profession, when in fact he was dealing not with the
internet article but with the radio broadcast; and, yes, there were some other
factual inexactitudes contained in the judgment. The fact is though that Hunte J
[Ag.] – in ruling on the preliminary issue – determined that the words complained
of were capable of bearing a defamatory meaning (which ruling was not appealed)
and the learned trial judge made a finding of fact that the words were defamatory
of the respondent. There was ample evidence on the basis of which the trial judge
could have made and did make this finding of fact and the Court will not disturb his
finding.
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[19] In terms of the defence of justification, the appellants allege (in essence) that the
alleged defamatory imputations in respect of which they were sued were
substantially true, but – save for stating some general facts which do not prove the
truth of the strong and serious allegations made against the respondent – the
appellants never led any evidence which even came close to proving the
allegations made against the respondent in the words complained of. It has of
course been judicially established1 that the burden of proving that defamatory
imputations are substantially true rests on the party asserting their truth, so it
would, in the present case, have been for the appellants to establish the truth of
the imputations made against the respondent. There is not, therefore, any basis
upon which this Court can overturn the finding of the learned trial judge that there
was no justification for speaking, writing, broadcasting or publishing of or
concerning the appellant the words complained of.
[20] In terms of the defence of fair comment, the law is that it is a defence to an action
for defamation that the words complained of are fair comment on a matter of public
interest. To succeed in the defence, a defendant must show that the words are
comment and not statements of fact. However, an inference of fact from other
facts referred to may amount to a comment. The defendant must also show that
there is a basis for the comment contained or referred to in the published words
and that the comment is on a matter of public interest, meaning that the matter has
been expressly or implicitly put before the public for judgment or is otherwise a
matter with which the public has a legitimate concern. The defence is defeated
though if it is established that the comment was actuated by malice.
[21] The learned trial judge, in addressing the defence of fair comment, referred2 to the
case of Tse Wai Chun Paul v Albert Cheng3 in which Lord Nicholls of
Birkenhead N.P.J. listed the ingredients of the defence of fair comment as follows
– (1) the comment must be on a matter of public interest; (2) the comment must be
recognisable as comment, as distinct from an imputation of fact; (3) the comment
1 McDonald’s Corpn v Steel,(31st March1999, unreported), CA.
2 At para. 24 of his judgment.
3 [2001] EMLR 31.
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must be based on facts which are true or protected by privilege; (4) the comment
must indicate, at least in general terms, what are the facts on which the comment
is being made; and (5) the comment must be one that could have been made by
an honest person and be germane to the subject matter criticised. The learned
trial judge went on to state4 that “[t]he absence of any of these ingredients means
that the defence of fair comment is not made out.”
[22] The learned trial judge appeared to have hurried somewhat to reach his
conclusion that none of the five ingredients were present on the facts of this case,
because he got there quite quickly and without detailed analysis. I propose to take
a less hurried approach in examining his conclusion on the absence of any of the
five ingredients.
[23] As to the first of the five ingredients, the learned trial judge did find “that the issue
of the economic citizenship program and the [i]ssue of the Layou River hotel
project were matters of public importance.”5 He held though that this would not
avail the appellants because the claim against them was that they made and
published statements of fact which were defamatory of the respondent by way of
his profession and by way of accusing him of criminal conduct. Although this
conclusion does rule out the presence of the second ingredient of the defence of
fair comment, it does not however rule out the first ingredient, that the statement
alleged to be comment was indeed on a matter of public interest, which ingredient
appears to be indisputably present on the facts of this case.
[24] As to the second ingredient, the learned trial judge rightly found (on the evidence
before him) that the words complained of were statements of fact made by the first
appellant and published by the second or third appellant. Indeed, the first
appellant (under cross-examination by counsel for the respondent) testified that he
came to certain conclusions on the basis of his investigations on the issues
concerning the economic citizenship programme and the Layou hotel project,
4 In para. 25 of his judgment.
5 See para. 32 of the learned judge’s judgment.
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which conclusions he regarded as findings of fact, and that the statements he
made which are the subject of this case were made as a result of the conclusions
he arrived at from his investigations. It is clear, therefore, that – even from his own
admissions – the statements made by the first appellant and published by the
second or third appellant were imputations of fact. It is also clear that no attempt
was made by the appellants to establish the truth of the statements. The second
ingredient of the defence of fair comment was not therefore present on the facts of
the case.
[25] The three other ingredients of the defence of fair comment are all based on the
words complained of being comment and not fact. Having agreed with the finding
of the learned trial judge that the words complained of were imputations of fact and
not comment, it would serve no useful purpose to dwell on the presence or
absence of these other ingredients, including the question of malice in the context
of fair comment.
[26] The conclusion reached by the learned trial judge – hurried though he might have
been in reaching there – was correct, except for the fact that the subject matter of
the words complained of was a matter of public interest, as indeed he found in
addressing the defence of qualified privilege at paragraph 32 of his judgment.
[27] In terms of the defence of qualified privilege, the authors of Gatley on Libel and
Slander6 state that:
“There are circumstances in which, on grounds of public policy and
convenience, less compelling than those which give rise to absolute
privilege, a person may yet, without incurring liability for defamation, make
statements about another which are defamatory and in fact untrue. In
such cases a person is protected if the statement was ‘fairly warranted by
the occasion’ (that is to say, fell within the scope of the purpose for which
the law grants the privilege) and so long as it is not shown that the
statement was made with malice, i.e. with some indirect or improper
motive or knowing it to be untrue, or with reckless indifference as to its
truth.”7
6 (10th edn., Sweet & Maxwell 2004).
7 para. 14.1.
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[28] There are different classes and different sources of qualified privilege, but the
class and source of qualified privilege which this case concerns is qualified
privilege accorded at common law to statements made to the public at large
through the media.
[29] The statement of the defence of qualified privilege (quoted from Gatley on Libel
and Slander) gives rise to the question as to what is the purpose for which the law
grants the privilege?
[30] A reading of the cases from the UK and other Commonwealth countries would
indicate that the purpose for which the law grants the privilege, certainly in the
case of the media and its coverage of or reporting on matters of public importance,
is to permit the media to carry out its primary function of disseminating information
to the public on matters of public interest without running the risk that – because of
innocent factual misstatements – the owners, operators, employees and/or
contributors to the media would become liable in damages and otherwise to any
person who felt aggrieved by the information disseminated. At the same time, the
common law continued to seek to protect the reputation of persons (including
public figures) from unwarranted attack. The balance to be struck between these
two competing objectives of the common law is to be found in the concept of
responsible journalism, so that the defence of qualified privilege is available to the
media if the author and/or publisher of the information in the media conformed to
the standard of responsible journalism.
[31] Following the judgment of the House of Lords in the case of Reynolds v Times
Newspapers Ltd and Others,8 it is now established that the protection accorded
by the defence of qualified privilege to statements made to the public at large
through the media, does not just depend on whether the maker (or other publisher)
of the statement acted without malice, but it depends too on the extent to which
the maker (or other publisher) of the statement has made proper investigations
prior to making and/or publishing the statement.
8 [2001] 2 AC 127.
13
[32] The House of Lords held in the Reynolds case that the defence of qualified
privilege is available where (a) the publisher was under a duty (legal, moral or
social) to those to whom the material was published (which could be the general
public) to publish the material in question and (b) those to whom the material was
published had an interest to receive that material – “the duty-interest test”. The
House also held that “the duty-interest test” was to be applied having regard to all
of the relevant circumstances, including those enumerated by Lord Nicholls of
Birkenhead9 as follows:
(1) the seriousness of the allegation;
(2) the nature of the information and the extent to which the subject
matter was a matter of public concern;
(3) the source of the information;
(4) the steps taken to verify the information;
(5) the status of the information;
(6) the urgency of the matter;
(7) whether comment was sought from the claimant;
(8) whether the article contained the gist of the claimant’s side of the
story;
(9) the tone of the article;
(10) the circumstances of the publication, including the timing.
Lord Nicholls also said that:
“This list is not exhaustive. The weight to be given to these and any other
relevant factors will vary from case to case.”10
[33] This appeal – like the appeal in the Reynolds case – “concerns the interaction
between two fundamental rights: freedom of expression and protection of
reputation.”11 The determination of which of these two fundamental rights will
9 At p. 205A-C of the judgment.
10 At p. 205C.
11 per Lord Nicholls of Birkenhead at p. 190H.
14
prevail over the other in any given case is a very critical one and merited full and
proper consideration by the trial judge, including a thorough analysis of the
evidence in the case. This clearly was not done by the learned trial judge. The
learned trial judge paid short shrift to it in his judgment and made what may be
described as a summary determination (without giving reasons for so doing) that:
“I have no difficulty in coming to the conclusion that the failure by the first
defendant to make any enquiries of the claimant and the third defendant’s
failure to make any enquiries at all are factors which weigh heavily against
them being able to rely on privilege in the sense of the Reynolds case.”12
[34] The uncontroverted evidence of the first appellant13 was that:
(1) “Between 1995 and 2002, I conducted thorough investigation on the
Layou River Economic Citizenship Programme.”
(2) “In making my comments both on radio and on the mentioned internet
article … I relied primarily upon official documents evidencing the
transactions referred to in the words complained of and at all times spoke
in direct response to what I considered to be incomplete and/or misleading
information about the programme coupled with distasteful and highly
disrespectful utterances against the native population placed on the public
record by the Claimant” and “I exercised due care in obtaining and
verifying the factual information contained in the words complained of and
relied on the entirety of the documentation researched prior to speaking
the words complained of”.14
[35] Under cross-examination by counsel for the respondent15 the first appellant
testified that in the course of his investigations he did interview the respondent at
least once. He testified as well that in the course of his investigations he looked at
a host of documents that he “read through time and time again and tried to make
sense of as [he] sought to be responsible in helping the public better understand
12 At para. 30 of the learned judge’s judgment.
13 The first defendant in the court below.
14 See paras. 3 and 19 of the first appellant’s witness statement.
15 The claimant in the court below.
15
what happened at Layou.”16 He listed several of the documents that he looked at
and read through. He also testified that he read the explanations contained in
articles published by the respondent in the Chronicle newspaper.
[36] Under further questioning by Counsel for the respondent, the first appellant
testified that he came to certain conclusions on the basis of the investigations that
he had carried out, which conclusions he regarded as findings of fact, and that the
statements he made which give rise to this case were as a result of the
conclusions he arrived at from his investigations.
[37] It was the uncontroverted evidence of the first appellant, both in his witness
statement and under cross examination, that his statements of and concerning the
respondent were responses by him to statements made by the respondent on
radio, on television or in newspaper articles either written by the respondent or
written by others quoting or reporting statements by the respondent. It was also
his evidence that the words complained of which were broadcast on the second
appellant’s radio station were spoken by him (the first appellant) on a call-in radio
programme on which the respondent was the in-studio guest and on which he (the
respondent) had made statements which he (the first appellant) was responding to
and which, of course, the respondent – as the in-studio guest – would be able to
respond to contemporaneously or immediately after the words were spoken.
[38] It is clearly apparent from a review of the evidence of the first appellant, that he did
in fact undertake an extensive investigation of the issues concerning the economic
citizenship programme and the Layou hotel project which was to be established by
means of the economic citizenship programme. It is also apparent from the
evidence of the first appellant that the respondent had not been specially selected
by him for criticism in relation to the programme and the project. Under crossexamination,
he testified that when the respondent took issue with the statements
made by him of and concerning the respondent and threatened to sue him, he (the
first appellant) responded by saying that he was not afraid of a defamation suit
16 See p. 217 of the Transcript of Trial Proceedings for Monday, 27th September 2010.
16
because he had ‘consistently spoken truth to power with respect to the Layou
Economic Citizenship and matters connected therewith’ and he is ‘not concerned
with Mr. Pinard-Byrne personally but rather with the non-performance of the
citizenship programme and that [he] would be happy to represent [his] position in
the Court.’17
[39] It also emerged from the cross-examination of the first appellant that he had
publicly and strongly criticised other leading personalities in relation to the
economic citizenship programme and the Layou hotel project, including Ms. Grace
Tung and officials of the Government of the Commonwealth of Dominica, and that
he felt very strongly about the handling of the programme and project by those
concerned with it. It also emerged that it was the respondent who ‘thrust himself
into the vortex of political controversy’ in relation to the economic citizenship
programme and the Layou hotel project by becoming the spokesman for and
defender of those involved in the handling and implementation of the programme
and project, in which capacity he made several public statements and wrote or
contributed to several newspaper articles, including statements critical of the first
appellant, the Prime Minister and members of the Government of Dominica
between 1995 and 2000, and other Dominicans who were critical of the
programme and project.
[40] In the circumstances, that the issues addressed by the first appellant in the
statements made and written by him – from which statements the words
complained of were extracted – concerned matters of public interest to the people
of Dominica is beyond doubt. That the first appellant undertook extensive
investigations into the economic citizenship programme and the Layou hotel
project and publicly and passionately wrote and spoke about his investigations and
the conclusions he drew from them are equally beyond doubt. That the
respondent became a central figure and lead spokesman on the project and the
programme, including explaining and defending his own involvement in them, does
not permit of any doubt. That the first appellant was publicly and strongly critical of
17 See p. 241 of the Transcript of Trial Proceedings for Monday, 27th September 2010.
17
the respondent and other central figures involved in the programme and the
project does not leave any room for doubt. That the making by the first appellant
of the statements which contained the words complained of were as a result of
conclusions reached by him, based on his investigations, were put beyond doubt
by the testimony of the first appellant under cross-examination.
[41] On this evidence, it was not open to the learned trial judge to make the finding that
he did18 about the failure of the first appellant to make any enquiries of the
respondent and the consequential finding that this factor weighed heavily against
him being able to rely on privilege in the sense of the Reynolds case. In any
event, this finding by the learned trial judge is against the weight of the evidence in
the case. It was also not open to the trial judge to treat the fact that the issues of
the economic citizenship programme and the Layou hotel project were matters of
public importance and ‘indeed they were the subject of hot political controversy’ as
being of no consequence because ‘that is not what the present case concerns.’ In
fact, the pleadings and the evidence reveal that this is exactly what the present
case concerns, because it forms the background against which and the context
within which the words complained of were spoken and written by the first
appellant.
[42] It is also apparent that the approach taken by the learned trial judge in paragraphs
33 to 35 of his judgment was likely to lead him into error. The trial judge accepted
that the subject matter on which the first appellant spoke and wrote the words
complained of was in fact a matter of public importance, but then proceeded to
focus on the absence of complaint by the first appellant to ‘the authorities’ and on
the first appellant not referring the conduct of the respondent to ‘any body with
responsibility for oversight of the conduct of chartered accountants in their
profession’, and on the fact too that some of the criticisms of the respondent by the
first appellant contained in the words complained of might amount to accusations
of criminal conduct, as being determinative of the duty-interest test propounded by
Lord Nicholls of Birkenhead in the Reynolds case.
18 At para. 30 of his judgment.
18
[43] The conclusion arrived at by the learned trial judge that the words spoken and
written by the first appellant and published by the second and third appellants
(from which were extracted the words complained of) were not subject to qualified
privilege is not therefore a finding justified by the evidence given in this case and
the law applicable to this case and cannot therefore be supported and sustained.
[44] I find that the words complained of – although strong in their criticism of the
respondent and not proven by the appellants to be true – were spoken and/or
written by the first appellant and published by the second and/or the third appellant
following extensive investigations by the first appellant and were not proven to
have been actuated by malice towards the respondent, but only by strong
sentiments held by the appellants, in particular, the first appellant, on the handling
by and involvement of the respondent and others in the economic citizenship
programme and the Layou hotel project. It appears from the evidence that the first
appellant did honestly believe in the truth of the conclusions that he reached and
the words that he spoke and wrote concerning the whole affair, including the
words spoken and written by him about the respondent.
[45] The next issue to be addressed is the question of whether the alleged publication
by the appellants of the words complained of (by means of a radio broadcast
and/or a web posting) constituted libel or slander. The relevance of the question is
as a result of the pleading by the first appellant19 that the words complained of
were not actionable without proof of special damage because their publication
constituted slander and not libel.
[46] There is a lurking doubt in the literature on defamation as to:
(1) Whether there is a tort of defamation which manifests either in the
spoken word or other transient form, when it is classified as slander,
or in the written word or other permanent form, when it is classified as
libel?
19 In the amended defence of 13th December 2007.
19
(2) Whether there are two torts – libel and slander – which come under a
branch of the law of tort referred to as defamation, but with
defamation not itself being a tort?20
(3) Whether there is the tort of defamation, which itself comprises two
other torts of slander and libel?
[47] The law as I understand it is that defamation is a tort, as is slander or libel, and a
person can institute civil proceedings against another person for defamation,
which is provable by evidence of either slander or libel; or for slander, requiring
proof of defamation by the spoken word or other transient form of communication;
or for libel, requiring proof of defamation by the written word or other permanent
form of communication.
[48] Over time, the classification of defamatory words into the categories of libel and
slander was adjusted, from the starting point of slander referring to defamation by
the spoken word and libel referring to defamation by the written word, with the
category of libel expanding at the expense of its more ephemeral sibling. So that
the spoken word captured in some permanent form, like a recording of a speech or
song for instance, came to be classified as libel and not slander. In due course,
the classification of words into the categories of libel and slander increasingly
came to be determined not by the mode of their communication (referring to the
spoken or written word) but by their probable life span in the medium through
which they were communicated. So that the more enduring are the words in the
medium through which they were communicated, the more likely it is that they
would be classified as libel, even if they were communicated in the mode of
speech rather than text.
20 The best analogy I can find is with the concept of homicide in the criminal law. Homicide is not a crime,
but there are crimes like murder and manslaughter which come under a branch of the criminal law referred
to as homicide.
20
[49] In the age of electronic communication (in which communication by email and via
the internet generally has virtually supplanted the handwritten or typewritten letter
transmitted to the addressee by hand or via the post office) there has been further
adjustment in the categorization of defamatory words or other material as libel and
not slander, with communication via the internet – even in the transient form of
downloaded and deleted email – being regarded as libel and not slander.
Although I have not been able to locate any judicial authority which definitively
pronounces that the publication of defamatory words via the internet constitutes
libel and not slander,21 this does appear to be the direction in which the law is
going and, in fact, all counsel in the present case evidently accepted that the
internet article – if proven to have been defamatory and published – would
constitute libel and not slander.
[50] There is a further adjustment made in the categorisation of defamatory words
published of another as being libel or slander, and that is in the case of words
published in the course of a radio broadcast. Significantly though, this adjustment
was made in the United Kingdom and other Commonwealth countries not by case
law but by statute. In the UK, the adjustment was commenced by the Defamation
Act 1952 and completed by the Broadcasting Act 1990, by virtue of which
defamatory words published on all radio broadcasts in the UK would (it seems) be
treated as libel and not slander. The fact that legislation was required to make this
adjustment is a clear indication – as is the absence of any authoritative judicial
pronouncement on the issue – that it was necessary to pass legislation to effect
this adjustment, and so the adjustment does not exist outside of a legislative
provision. In Dominica, therefore, where there is no similar legislation, the law
remains that publication of defamatory words via a radio broadcast (without more)
would constitute slander and not libel.
[51] The appellants argue that if this is the case (which they submitted that it is) then
the appeal against the judgment, with respect to the alleged defamation contained
21 The case of Godfrey v Demon Internet Ltd [2001] QB 201 comes closest.
21
in the radio broadcast, should be allowed because the case which was brought
against the appellants was a case of libel and not slander.
[52] The Court cannot, however, go along with the appellants on this submission, for
the following reasons:
Firstly, the respondent instituted and pursued proceedings against the appellants
for the tort of defamation, and not for libel or slander, and if it is determined that
the respondent was defamed by the appellants via a radio broadcast, then the
cause of action in defamation would have been made out by the respondent (as
the claimant in the court below).
Secondly, although libel is actionable per se and slander is actionable only upon
proof of special damage, this is of no consequence where the words complained
of impute a crime for which the claimant can be made to suffer physically by way
of punishment or where the words are calculated to disparage the claimant in any
office, profession, calling, trade or business held or carried on by him at the time of
publication. The learned trial judge found that the words complained of not only
imputed the commission by the respondent of a serious crime, but they also
disparaged him in his profession as an accountant. I can find no fault with the trial
judge’s findings on these issues, particularly with respect to the disparaging of the
respondent in his profession. It is also worthy of note that dicta from Bowen, LJ in
the English case of Ratcliffe v Evans22 (going as far back as 1892) equated
actions for slander actionable per se with actions for libel.
Thirdly, there is judicial authority for the proposition that if the radio broadcast in
which the words complained of were published was recorded, then this will result
in a degree of permanence of the publication so as to constitute it as libel and not
slander.23 There is a dearth of English judicial authority on this issue, because the
issue has been dealt with by statute in England since 1952, but the proposition
has been treated – certainly in the texts on libel and slander – as being settled. In
22 [1892] 2 QB 524.
23 Olowo v Att-Gen [1972] E.A. 311.
22
the present case, there was uncontroverted evidence that the radio broadcast in
issue was recorded, and indeed repeated, so that it can, on account of this, be
regarded as libel and not slander.
For any or all of these three reasons, the submission(s) of the appellants for the
appeal against the judgment to be allowed on the basis that defamatory words
published on the radio constitute slander and not libel are without merit.
[53] The final issue to be addressed (arising from the appellants’ 40 grounds of appeal)
is the question of whether there was publication of the words complained of in the
radio broadcast on the second appellant’s radio station and in the article posted on
the third appellant’s website.
[54] Publication would normally be considered to have taken place when the
defamatory words were communicated to a third person, meaning a person other
than the claimant or defendant in the defamation action, while communication
would normally be considered to have taken place when the words were heard or
read by the third person.
[55] The present case concerns words spoken in the course of a radio broadcast and
words written in an article posted on a website. In the case of a radio broadcast, it
has long been established that publication takes place once the broadcast is
heard by any third person, whilst in the case of an internet article, it has only
recently been established in the case of Godfrey v Demon Internet Ltd24 that
publication takes place when a third person accesses the site where the material
is posted and he (the third person) reads the material.
[56] Of course, equally relevant in a defamation action as the issue of the mode of
publication of the defamatory material is the issue of the place of publication,
because proceedings for defamation can only be pursued in the jurisdiction in
which the defamatory material is published.
24 [2001] QB 201.
23
[57] The case of Bata v Bata25 is generally cited as the authority for the proposition
that the tort of defamation is committed in the place where the publication of the
defamatory material was received by the hearer, reader or viewer. For radio
broadcasts, publication would be considered to have taken place in the
jurisdiction(s) where the broadcast was heard. In terms of the internet, the issue
was addressed by the Australian High Court in the case of Dow Jones & Co Inc v
Gutnick26 where the court examined extensively several of the issues involved in
the internet publication of defamatory material and concluded that publication of
internet content (whether words and/or images) takes place in the jurisdiction(s)
where the content is downloaded from the website where it is posted. Both the
reasoning and the conclusion in Dow Jones are likely to be applied by the courts
in the Commonwealth and it can be considered as having settled (for the time
being at least) the issue of the place of publication of internet content.
[58] Although the appellants appeared to have put in issue in this appeal the question
of whether there was publication in Dominica of the words admittedly spoken by
the first appellant on a live radio broadcast on the second appellant’s radio station,
this seemed to have been abandoned in the oral submissions made on behalf of
the appellants at the hearing of the appeal. In any event, if the question had been
pursued it could only have yielded one response, and that is that the words
spoken by the first appellant on a live radio broadcast on the second appellant’s
radio station were indeed published in Dominica at the time that the words were
spoken. And this not only on the basis of the pleadings and the evidence that the
radio station on which the words were spoken was a popular radio station in
Dominica which had a large listenership, but even too from the fact that the words
were spoken by the first appellant as a caller to a live radio programme on which
there was not only an in-studio guest who was the claimant in the court below, but
there was also the host of the programme, who would himself have been a third
person to whom the words were published.
25 [1948] WN 366.
26 [2002] HCA 56..
24
[59] The first and third appellants have submitted and maintained that there is no
evidence that the words complained of in the internet article were published in
Dominica. Publication of the words in the jurisdiction (Dominica in this case)
would of course have to be proved by the claimant in a defamation action in order
to succeed against a defendant who posts material or submits material for posting
on a website.
[60] On the facts of the present case, there was in my view a live issue as to whether
or not it was proved at the trial that any person downloaded the internet article in
Dominica. The respondent’s witness, Parry R. Bellot, in a witness statement
loaded with hearsay and opinion evidence, seemed to have said everything other
than that he downloaded the first appellant’s article in Dominica from the third
appellant’s website. He also said quite a lot under cross-examination, sometimes
unrelated to the questions asked of him, but did not say that he downloaded the
internet article in Dominica.
[61] It was a critical element of the respondent’s case in the court below that he
established that the internet article was published in Dominica to a person other
than himself or the appellants, which would be established by proving that a third
person had downloaded the article in Dominica from the third appellant’s website.
The respondent did not expressly do so. Instead, the court was invited to infer that
the article was downloaded in Dominica because the website on which the article
was posted is on the World Wide Web and the World Wide Web has millions of
users who have free and open access to the content of the website, and because
Mr. Bellot gave evidence (via his witness statement) that he resided in Dominica
and that he read the article written by the first appellant and published on the third
appellant’s website.
[62] The learned trial judge appeared to have accepted the respondent’s invitation to
infer that Mr. Bellot had in fact downloaded and read the internet article in
Dominica and so he found that there was publication of the article in Dominica.
25
[63] I differ with the learned trial judge on this finding. I also place no significance on
the fact that Mr. Bellot was never questioned at the trial by counsel for the
defendants in the court below as to whether he had downloaded and read the
article whilst he was in Dominica, or that it was never put to him at the trial that he
was not in Dominica when he read the article. The submission on this by counsel
for the respondent appeared to be an attempt to invert the burden of proof and to
put the onus on the defendant in a defamation action to prove that the publication
of the defamatory statement did not take place within the jurisdiction. It was for
the respondent (as the claimant in the court below) to prove publication in
Dominica and not for the appellants (as the defendants in the court below) to
disprove it. I would therefore have reached a different conclusion to the trial judge
on this issue, having regard to the onus and burden of proof on the claimant to
have established one of the critical elements in a defamation action (that is, that
there was publication of the defamatory material in the jurisdiction in which the
defamation action is instituted) but I cannot say that it was not open to the trial
judge on the evidence before him to have made the inference that he did and to
have arrived at the conclusion that he did. I cannot therefore disturb the trial
judge’s finding on this issue, although I would not myself have made this finding.
[64] Having thus exhausted my consideration of the six issues I set out for
determination in paragraph 17 above, my answers to the six questions posed are
as follows –
(1) The words complained of were defamatory of the respondent;
(2) There was no justification on the evidence adduced in the court below
for the appellants to have spoken, written, broadcasted or published
the words complained of;
(3) The words complained of did not constitute fair comment on a matter
of public interest;
26
(4) The speaking, writing and publishing of the words complained of were
done in circumstances which attracted qualified privilege;
(5) The writing and publishing of defamatory words on an internet website
constitute libel, while the speaking of defamatory words on a live radio
broadcast constitutes libel when the broadcast is recorded for
rebroadcast and, even if it constitutes slander and not libel, is equated
with libel when it is slander actionable per se because the words
impute the commission of a crime by the respondent or disparages
him in his office, profession, calling, trade or business.
(6) The words complained of in the radio broadcast were published by the
first and second appellants in Dominica, while the words complained
of in the internet article were published in Dominica by the first and
third appellants.
[65] The responses to these six questions mean that – despite the several findings in
the course of this judgment adverse to the appellants’ appeal – the grounds of
appeal which challenge the judge’s conclusions on the defence of qualified
privilege (in particular, grounds 20, 26 and 28) are upheld, with the result that the
judge’s order giving judgment in favour of the respondent is overruled and the
orders for the payment of damages and costs by the appellants to the respondent
are quashed.
[66] Of course, the respondent’s counter appeal challenging the sufficiency of the
award of damages is rendered nugatory by the quashing of the award of damages
to the respondent.
[67] The appeal is accordingly allowed and the counter appeal is accordingly
dismissed.
[68] The appellants having succeeded on their appeal and the respondent not having
succeeded on his counter appeal, the appellants are entitled to their costs, here
27
and in the court below, which costs shall be prescribed costs in accordance with
rules 65.5 and 65.13 of the Eastern Caribbean Supreme Court Civil Procedure
Rules 2000.
Mario Michel
Justice of Appeal
I concur.
Janice M. Pereira
Chief Justice
I concur.
Davidson Kelvin Baptiste
Justice of Appeal