Marshall v Nation Publishing Company Ltd
| Jurisdiction | Barbados |
| Judge | Worrell, J. |
| Judgment Date | 24 May 2013 |
| Neutral Citation | BB 2013 HC 20 |
| Docket Number | 780 of 2010 |
| Court | High Court (Barbados) |
| Date | 24 May 2013 |
High Court
Worrell, J.
780 of 2010
Mr. David Comissiong for the claimant
Mr. Brian Barrow for the defendant
Defamation - Newspaper article — Whether words were defamatory — Defence of triviality — Damages — Quantum.
By claim filed on 23 rd June 2010 the claimant, Mr. Nyika Marshall, claimed damages in defamation against the defendant, The Nation Publishing Co. Limited, for an article written by an agent of the defendant, Ms. Heather-Lyn Evanson and published by the defendant.
On the 5 th April 2008, the Saturday Sun, published by the defendant, published an article with the headline ‘10 charged in robbery spree’. The article read as follows:
“Eight of ten Christ Church youngsters charged with a series of robberies in the south of the island were remanded when they appeared in the Oistins Magistrates' Court yesterday. Two were granted bail $5,000 bail each with sureties and all are slated to return to Oistins court on Wednesday. The ten are: Ramon Alphonso Cox, 19, of Kendall Hill; Jamar Leon Ashby, 19, of Montrose; Jason Omar Mason, 17 of Brownes Gap, Sargeants Village; Marvin Martin Victor, 21, of Maxwell Hill; Nyika McCartni Kamar Marshall, 19, of Kingsland Terrace; Jamal St. Clair Ramsay, 19, of Brownes Gap, Sargeants Village; Damien Omar Jones, 19, of Silver Hill, Jemel Martin Polin, 18, of Bartletts Tenantry, Sargeants Village; and Christopher Renaldo Bentham, 19 of Lower Gall Hill.
The accused have a total of 24 charges among them in the Worthing, District “B”, District “A” and Oistins jurisdictions.
They include burglary, robbing people of cell phones and personal effects; criminal damage to a laptop; theft of personal effects; inflicting serious bodily harm; assault and assault occasioning actual bodily harm. The offences allegedly occurred between January 4 and March 24, this year. […]”
The article was accompanied by the photos of each of the ten men, captioned with their names. The entire article (including the pictures) measured 8.5 inches by 12 inches. The claimant had in fact been in court that day, charged with criminal damage to a laptop.
It was the claimant's contention that the ordinary and natural meaning of the words of the article were understood to mean that the claimant had been charged with the criminal offence of robbery and that he had been a part of a gang of 10 young men who were implicated in a series of robberies in Barbados or in a robbery spree.
Whilst the defendant admitted that the article was published, it denied that the words used in the article were capable of having a meaning defamatory to the claimant. However, if the words were found to be defamatory, the defendant relied on the defence of triviality contained in section 6 of the Defamation Act, Chapter 199 of the Laws of Barbados.
The following issues must be determined:
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(1) Whether the words in the article were defamatory of the claimant;
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(2) If the words were in fact defamatory, whether the defendant can rely on the defence of triviality;
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(3) If the defence fails, what damages should be awarded
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(4) Whether aggravated damages should be awarded
In order to successfully establish a case of defamation, the claimant must prove the following:–
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(1) That the words complained referred to him;
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(2) That the words were defamatory of him; and
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(3) That the words were published by the defendant to a third party.
The defendant did not deny that the ‘Nyika McCartni Kamar Marshall, 19, of Kingsland Terrace’ referred to in the article referred to the claimant. The defendant also admitted that the article, as contended by the claimant, was published. This leaves only the second issue of whether the words used were capable of being construed in a manner that is defamatory of the claimant.
In order to decide whether the words bore a meaning or meanings defamatory of the claimant, I must first determine the meaning of the words used.
Mr. Comissiong, Attorney-at-Law for the claimant, contended that given their ordinary meaning the article was understood to mean that the claimant was charged with the criminal offence of robbery and that he had been a part of a gang of 10 young men who were implicated in a series of robberies in Barbados or in a “robbery spree”.
Mr. Barrow for the defendant contended, on the other hand, that although the article was entitled ‘10 charged in robbery spree’, it went on to explain that 8 of the 10 persons were charged with robbery and that all 10 persons had cumulative charges that included robbery as well as assault and criminal damage of a laptop. He further contended that there was nothing in the article which stated that any particular person was charged with any particular offence. Mr. Barrow in his arguments states, in my opinion rightly so, that the article must be read as a whole in order to determine its meaning.
‘Natural and ordinary meaning’ is what the ordinary man would infer without special knowledge. When examined as a whole and looking at the natural and ordinary meanings of the words used, the article had the meanings which the claimant attributed to it. I am inclined to agree with him that the article is understood to mean that:
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a. The claimant had been charged with robbery;
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b. The claimant was one of 10 young men who were all together charged with robbery;
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c. The ten young men, the claimant included, were implicated in several robberies or a series of robberies
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d. The 10 men were some sort of “gang” or worked together in these robberies.
In my opinion the ‘reasonable man’ would not attribute to the article the meaning which the defendant contended. The meaning attributed to the article by the defendant was false and strained. The words used in the article and its meanings were clear. It meant that whilst there were other charges among the men, there was a common charge of robbery among them all and that eight of the ten had been remanded to prison while the other two had been granted bail (“Eight of ten Christ Church youngsters charged with a series of robberies in the south of the island were remanded when they appeared in the Oistins Magistrates’ Court yesterday”). In fact, this is the meaning that the journalist who wrote the article also attributed to it under cross examination by Mr. Comissiong.
Further, the fact that all the accused persons listed in the article resided in the parish of Christ Church, and the fact that the article stated that the young men were charged with “a series of robberies in the south of the island” seemed to suggest some common enterprise among the men or that they were all a part of some gang that took part in robberies.
Words are defamatory if they would tend to lower the claimant in the estimation of right thinking members of society generally, would tend to cause others to shun or avoid the claimant or would tend to expose the claimant to hatred, contempt or ridicule.
Mr. Barrow contended that it was not defamatory to state that a person had been charged with an offence and that, contrary to the view of Bridges, J. in the case of LeBlanc v. L'Imprimerie Acadienne Ltee [1955] 5 DLR 91, it “would be erroneous to say that in 2011 to say that someone has been ‘charged’ with an offence would lower that person in the estimation of right thinking people”. Mr. Barrow stated that “to be charged with an offence simply means that the person charged has been the subject of an investigation” and that “the right thinking persons in society will not say that a person who has been charged with an offence has been injured in relation to his reputation by virtue of simply being charged with an offence”.
In the case of LeBlanc the defendant published an article erroneously identifying the plaintiff as being charged with an offence. This was found to be libellous on the grounds that it would lower the plaintiff in the estimation of right thinking members if society. In the case of Lewis v Daily Telegraph Ltd (1964) A.C. 234, the defendant printed an article stating that the plaintiff was the subject of a fraud investigation. This article was found, and indeed admitted by the defendant, to be defamatory. Lord Devlin in his decision stated, “I dare say that it [the plaintiff's reputation] would not be injured if everybody bore in mind, as they ought to, that no man is guilty until he is proved so, but unfortunately they do not […] Just a bare statement of suspicion may convey the impression that there are grounds for belief in guilt […]”.
Although decided in 1955 and 1964 respectively, I am of the opinion that the reasoning behind these cases is still very much relevant today. Such a statement would not be defamatory if persons bore in mind the ‘golden rule’ of law, that a person is innocent until proven guilty. However, the reality, as pointed out in these two cases, is that among right thinking persons of society such a statement will probably and, I accept, did in fact, lower the claimant in their estimation. Further, I am also of the view that the article would also have caused others to shun and avoid the claimant.
I also agree with the position of Lord Devlin that “a statement of suspicion may convey the impression that there are grounds for belief in guilt”. Mr. Barrow himself stated, “to be charged with an offence simply means that the individual charged was the subject of an investigation”. Right thinking members of society know this and will, as Lord Devlin stated, believe that since there was such an investigation and a person was ultimately charged that there are grounds to believe that he must be guilty. Lord Devlin reminds us that “logic is not the test”. The test is whether the statement would lower the claimant in the...
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