Bermuda is a self-governing overseas dependent territory of the United Kingdom. In Bermuda defamation is actionable both as a civil wrong and as a criminal offence.
Civil Law
The civil law of defamation in Bermuda is substantially the same as the English law of libel and slander prior to the enactment of the Defamation Act 1952. In their judgments, the courts cite Bermuda legislation, English and Bermuda case law and the leading English text, Gatley on Libel and Slander.
Defamation law protecting the reputations of persons is considered a reasonable restriction on the fundamental right of freedom of expression, except insofar as the provisions of that law are shown not to be reasonably justifiable in a democratic society (Bermuda Constitution Order 1968, s.9).
The limitation period for the tort of defamation is 6 years from the date the cause of action accrued (Limitation Act 1984, s.4).
The Magistrates' Court has no jurisdiction with respect to claims for libel or slander (Magistrates Act 1948, s.17). Original jurisdiction for such claims is conferred on the Supreme Court.
Bermuda statutes pertaining to the law of defamation are the Libel Act 1857 and the Rules of the Supreme Court 1985 ("RSC 1985").
The 1857 Act mirrors the provisions of the English Libel Acts of 1843 (Lord Campbell's Act) and the Libel Act of 1845. The Act relates to the giving of an early apology in mitigation of damage and to pleas that may be made in defence by a newspaper publisher when accompanied by a payment into court.
Defences
The same common law defences that are available under English common law pertain to Bermuda.
With respect to absolute privilege, in Ming v Horseman and others ([2008] Bda LR 17, SC), the plaintiff complained that the defendant attorneys had presented evidence to the Court in certain divorce proceedings that defamed him. On the basis of the "extremely clear" principle that absolute privilege attaches to any statements made in the course of judicial proceedings, the judge struck out the Writ on the ground that it disclosed no reasonable cause of action. The judge further found that absolute privilege attached to a letter written by the defendant attorneys to the plaintiff and copied to the Commissioner of Police under the Summary of Offences Act 1926, warning the plaintiff not to trespass on certain premises or else face arrest. This complaint was similarly struck out. Absolute privilege attached by reason of the principle that "no action will lie for defamatory statements contained in any document which is incidental to the proper initiation of judicial or quasi-judicial proceedings".
As for cases involving the defence of qualified privilege, in White and Royal Gazette Ltd. v Hall ([1993] Bda LR 13, CA), the issue was whether transcripts of taped conversations between an accused and his prison cellmate which contained material grossly defamatory of an attorney who was a Member of Parliament (Hall) were protected by qualified privilege. The daily newspaper published part of the transcript but was then met with a Supreme Court injunction prohibiting any further publication. Allowing the appeal, the Court of Appeal held that qualified privilege attaches to the publication of a true copy of any extract from a register which, by statute, is required to be kept and may be inspected by the public. The Court ruled that no distinction could be drawn between a register and records of the Supreme Court. The transcripts constituted records of the Supreme Court within the meaning of the Supreme Court (Records) Act, 1955 and the term "records" was defined in that Act to include a "register" maintained by the Court. Publication of accurate extracts was therefore held subject to qualified privilege and this was irrespective of whether or not the newspaper had a duty to publish or a common interest with the persons to whom publication was made. Further, although the tapes and transcripts were never admitted in evidence, they were deposited with the Registrar in connection with the exercise of the criminal jurisdiction of the Supreme Court. The injunction restraining further publication was therefore set aside. In reaching its decision, the Court accepted that the effect of the 1955 Act was to extend the range of documents to which the principles of qualified privilege apply. If this was not intended, then it was for the Legislature, not the Courts, to address that issue.
The court in that case cited the earlier Supreme Court decision in Hector v Royal Gazette Ltd. (1980 Sup. Ct. Civ. Jur. No. 56). In that case a letter containing material defamatory of the plaintiff Magistrate was included in the record of an appeal, although it need not have been. The Supreme Court held that the letter fell within the wide ambit of the Supreme Court (Records) Act 1955 and was therefore part of the record. Therefore publication of the letter was privileged and the application for an injunction to restrain the newspaper from publishing the allegations was refused. In reaching his decision, the Chief Justice noted that the application was to restrain publication of something which may or may not be libellous, depending on what view of the facts a jury might or might not take after publication. He was not convinced that exceptional circumstances existed whereby he should go against the constitutional provision of freedom of expression.
In Bermuda, a finding of express malice defeats the defence of fair comment and qualified privilege; the tests for malice are the same as under English law. In Bott v Corcoran (1984 Sup. Ct. Civ. Jur. No. 106), the defendant circulated a letter to business associates making defamatory allegations about the plaintiff, which the Court found were aimed at harming the plaintiff seriously in his professional reputation as an insurance executive. The Court had no hesitation in finding that there was express malice. Accordingly the Court said that it ought to take a generous view of the amount necessary to compensate the plaintiff for his anxiety, distress and loss of reputation. In addition to awarding special damages that had been suffered as a result of loss of anticipated business, the Court awarded $ 25,000 in general damages.
In Marcus v Marshall ([2003] Bda LR 14, SC), an owner of a hotel wrote a letter of complaint to the Commissioner of Police about the actions of a police officer during the course of an investigation into theft at the hotel. The police officer brought an action in libel, alleging that the letter was motivated by malice which defeated the admittedly available defence of qualified privilege. The judge noted that the determination of whether or not the defendant was actuated by malice was a matter for a jury but neither party had requested a jury. He held that the plaintiff had failed to carry her burden of proving that the dominant motive for the defamatory publication was the desire to injure and thus the defence of qualified privilege prevailed. However he went on to find that the hotel owner had defamed the police officer in a separate incident when she discussed the police officer's misconduct with a subordinate officer and produced her previous letter of complaint for the latter's comment. The judge found that the assertion of misconduct on that occasion was not privileged and was defamatory in that she was accusing the police officer of misconduct or incompetence in the course of the officer's duties. The judge ruled that given the limited publication to one person and the fact that no distress was suffered, the plaintiff should be entitled to damages in the sum of five dollars.
Procedure and evidence
The RSC 1985 govern procedure. The power of the Supreme Court to order that an action may be tried without pleadings is abrogated in the case of defamation claims (Rule 18/21). Summary judgment may not be ordered in defamation cases (Rule 14/1).
Particulars must be pleaded: of the defamatory publication (Rule 82/2); the facts and matters relied upon where it is alleged that the words were used in a defamatory sense other than their ordinary meaning (Rule 82/3); the facts and matters relied upon by a defendant to support an allegation that the words consisting of statements of fact were true in substance and fact (Rule 82/3) or that the words consisting of opinions expressed were fair comment on a matter of public interest (Rule 82/3).
Where the plaintiff, in order to defeat a defence of fair comment or privilege, alleges that the defendant was actuated by express malice, he must serve a Reply giving particulars of the facts and matters from which the malice is to be inferred (Rule 82/3). No interrogatories as to the defendant's sources of information or grounds of belief are allowed (Rule 82/6).
If on the application of any party made within a prescribed time the Court is satisfied that a claim in respect of libel or slander is in issue, then the matter shall be ordered to be tried with a jury, unless the Court considers that the trial requires a prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury (Rule 33/2).
Provisions are made allowing the plaintiff to make a statement in open Court in the event that he accepts a payment into court or settles the action before trial. Leave of the Court must be obtained.
Where the defendant is not asserting the truth of the statement as his defence, he is not entitled to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the words were published, or as to the character of the plaintiff, without the leave of the judge, unless at least 7 days before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence (Order 82, Rule 7).
In defamation actions in which the question whether a person did or did not commit a criminal offence is relevant, proof that the person was convicted of that offence is conclusive evidence that he committed that offence, and his conviction is admissible in evidence (Evidence Act 1905, s. 70C).
Internet publication
In respect of electronic records, section 28 of the Electronic Transactions Act 1999 provides that if an intermediary has actual knowledge that the information in an electronic record gives rise to civil or criminal liability, as soon as practicable the intermediary must remove the information from the system and cease to provide services in respect of that information, and also must notify the Minister or law enforcement agency of the relevant facts and of the identity of the person for whom the intermediary was supplying the service, if it is known.
Interim injunctions
In Brown v Bermuda Press (Holdings) Ltd. ([2007] Bda L.R. 69 SC), a libel case brought by the Premier of Bermuda against the daily newspaper, the Chief Justice noted that the decision in Hector had represented the Bermuda law position on prior restraint in defamation cases for over 27 years. In Brown, the Premier sought damages for libel and an injunction restraining the further publication of information contained in allegedly stolen police files as it related to him. Citing English case law and Gatley on the principles governing interim injunctions in defamation cases, the Court noted that "the jurisdiction to grant interlocutory injunctions to restrain publication of defamatory statements is 'of a delicate nature', which 'ought only to be exercised in the clearest cases.'" The judge noted that the Hector case had captured the essential elements of the English common law position which could re-formulated as follows:
"(a) it is for the jury at trial to determine whether or not the plaintiff has a valid claim for defamation or whether the defendant has a valid defence,
(b) because of the constitutional importance of freedom of expression, a defendant will only in exceptional cases be restrained from publishing an allegedly defamatory statement, and
(c) if the defendant elects to publish, he assumes the risk of being eventually held liable in damages if the plaintiff succeeds at trial. These damages will be the plaintiff's remedy for any injury to his legal rights."
Vicarious Liability
In Bermuda Restaurants Ltd. v Daspin and Convergex Global Markets Limited ([2009] Bda L.R. 7), the Supreme Court addressed the issue of an employer's vicarious liability for defamation. The case concerned a libellous email against a restaurant sent by the Managing Director of the defendant company from his office on a company computer. Bell J. cited from English authorities for the principle that if the act of the servant which gives rise to the servant's liability to the plaintiff amounts to a failure by the servant to perform the duty that he is employed to perform, then the act comes with 'the scope of his employment' and the employer is vicariously liable. On the facts, the Court held that plainly there was no connection between the Managing Director's actions in sending the email and his employment with the defendant, noting that defamation of a restaurant was not a risk that could fairly be regarded as reasonably incidental to the defendant's business. Rather the employee appeared to have been on a 'frolic of his own'. Further the Court found that the employer had not itself published the email since it had not participated in, secured or authorised the publication.
Criminal Law of Defamation
The criminal law as it relates to defamation is governed by Part XII of the Criminal Code Act 1907. Subsection 205 provides:
(2) "Any imputation concerning any person, or any member of his family, whether living or dead, by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession, occupation or trade, or by which other persons are likely to be induced to shun, or avoid, or ridicule, or despise him, is called defamatory, and the matter of the imputation is called defamatory matter.
(3) The imputation may be expressed either directly or by insinuation or irony.
(4) Any person who, by spoken words or audible sounds, or by words intended to be read either by sight or touch, or by signs, signals, gestures, or visible representations, publishes any defamatory imputation concerning any person is said to defame that person".
Publication is defined to include, inter alia, both written and spoken words. In cases other than those involving publication of words to be read, it is a defence to prove that the person defamed was not likely to be injured thereby.
The offence of publishing any defamatory matter is punishable by imprisonment for up to 12 months or for a term of up to 2 years if the offender knew the matter to be false (s. 214).
The publication of any defamatory matter is not unlawful if it is "protected, or justified or excused by law" (s. 207).
Absolute defences are afforded where the defamatory statement is made in the course of court proceedings or before an official inquiry (s. 208) or in an official report made in the course of an inquiry (s. 209).
Fair reports made in good faith and for the information of the public are protected, including reports of court proceedings, reports of official inquiry proceedings, notices or reports issued by government departments and reports of public meetings that relate to matters of public concern. Qualified protection also applies to government notices (s. 210).
Protection also exists through the defence of fair comment (s. 211) in respect of certain defined categories of matters including but not limited to the merits of any case which has been decided by a court, the public conduct and character of persons in public office, any communications made to the public on any subject, published books, works of art and other literary productions and public entertainment or sports.
Further it is lawful to publish defamatory matter if the matter is true and if it is for the public benefit that the publication complained of should be made (s. 212).
The various fact scenarios in which the defence of lawful excuse can be mounted in cases of publications made in good faith are particularised in s. 213. The burden of proof of the absence of good faith lies upon the party alleging such absence (s. 221).
The innocent sellers of periodicals, books or other writings containing defamatory material, and the innocent employers of sellers of such works, are not criminally responsible (s. 218). The burden of proof of the absence of knowledge lies upon the accused (s. 220).
Proprietors, publishers and editors of newspapers and other periodicals are not liable if the defamatory material was inserted in the newspaper or periodical without their knowledge and without negligence on their part (s. 217). Such persons cannot be prosecuted without the leave of a judge, after notice has been given to the accused and after the accused has been given the opportunity of being heard in opposition to the application (s. 222).
In the Bermuda case of The Royal Gazette Ltd v The Attorney General and others (1982 Sup. Ct. Civ. Jur. No. 177) the newspaper applied on constitutional grounds to set aside an order of the court granting leave to the Attorney General to commence criminal libel proceedings against the newspaper in respect of publication of an article about an attorney who had been disbarred. In agreeing that the order should be set aside, the Court held that the facts were not sufficient to say that it was necessary for the state to put a hindrance in the way of the publishers in the enjoyment of their freedom of expression. The Court noted that the aggrieved party was free to exercise his rights to bring a civil action in defamation.
The offence of false libel is provided for in s. 14 of the Parliament Act 1957. That section makes it an offence to publish any false libel on either House of the Legislature, on any legislative committee, on any member or past member of either House with respect to his functions as such a member, or on any officer or past officer of either House with respect to his functions as such an officer. The offence is punishable by imprisonment for up to 12 months or a maximum fine of $4,200 or both.
The Law of Privacy in Bermuda
There is no Bermuda equivalent of Article 8 of the European Convention on Human Rights which expressly provides for the right to respect for private and family life. However, the right to prevent the disclosure of information received in confidence is considered a reasonable restriction on the fundamental right of freedom of expression, except insofar as the provisions of that law are shown not to be reasonably justifiable in a democratic society (Bermuda Constitution Order 1968, s.9).
The common law on the tort of breach of confidence applies in Bermuda. The remedies include an award of damages to compensate for any harm suffered and, where publication has not yet occurred, an injunction to restrain it. Bermuda case law on this subject has developed only very recently.
An application for an injunction to restrain publication on the basis of an alleged breach of confidence was made in The Commissioner of Police and the Attorney General v. Bermuda Broadcasting Ltd. and others ([2007] Bda LR 40, SC). The allegation was that publication would destroy the confidentiality of a police investigation into "alleged fiscal improprieties by prominent public figures" since the information allegedly emanated from a stolen police file. The Chief Justice refused the plaintiffs' application for an interim injunction. He ruled that in the context of an attempt to restrain a breach of confidence by the press, the court (in deciding where the balance of convenience lay) had to perform a balancing exercise between two competing public interests:– on the one hand, the right to confidence and the need to protect the integrity and confidentiality of police investigations as well as the private rights of confidentiality of the officials concerned; on the other hand, the media's constitutional right to freedom of expression and freedom of the press coupled with the proper interest of the public in being fully informed about the dealings and character of those who submit themselves for election to high public office. The judge followed English case law which had always refused to uphold the right of confidence when to do so would be to cover up wrongdoing. Those cases cited the principle that "there could be no confidence in iniquity".
The decision was upheld on appeal (Commissioner of Police v Bermuda Broadcasting Co. Ltd. and others [2007] Bda LR 48, CA). Although the Court of Appeal could not condemn too strongly the unauthorized taking of the information (which was in no way blamed on the media involved), nevertheless the Court had to proceed to consider the balance of justice. In this case the public had a right to know the results of the police investigation. Accordingly, the Court was unable to say that the judge had wrongly exercised his discretion. An appeal against that decision was dismissed by the Privy Council [2008 UKPC 5].
Commenting on that case in a later decision, Brown v Bermuda Press Holdings ([2007] Bda LR 69, SC), the judge found it noteworthy that the authorities considered by the Chief Justice included cases where private confidentiality was being weighed against freedom of the press, and that the approach seemed to have been essentially the same as in cases where public confidentiality was being asserted as a ground for restraining publication. In the public confidentiality context, the judge agreed that consideration should also be given to the private interests of individuals, particularly where those persons had no opportunity to be heard. But the governing principle was held to be that the interests of confidentiality and privacy must be weighed against the interests of the public and the "right to know". The court refused the Premier's application for an injunction to restrain publication of confidential information from the allegedly stolen police file. It was clear that the public interest in learning more about the dossier in question outweighed the important public confidentiality rights of the Commissioner of Police.
In addition to the case law, there are several statutory provisions which touch on the issue of privacy.
Section 543 of the Criminal Code 1907 provides that if, in any proceedings in relation to an offence under Part XVIII (sexual offences) or under sections 340 to 351 (dishonesty offences), it appears to the court expedient in the interest of the protection of the private lives of persons concerned with the proceedings, the court may direct that certain persons (other than the press) be excluded from the court during the taking of the evidence.
Section 63 provides that before passing sentence, the court shall take into account any victim impact statement that describes the harm done to, or loss suffered by, the victim arising from the commission of the offence. Where the victim impact statement discloses confidential or sensitive information or material that may cause embarrassment or distress to the victim or his family, the court may direct that the statement be dealt with in camera.
Section 199 concerns the offence of intruding upon the privacy of a female. It provides that a person shall be deemed to intrude upon the privacy of a female if wilfully and without lawful excuse: (a) he accosts or follows her; or (b) he utters any word, makes any sound or gesture, or exhibits any object, or commits any indecent act, intending the word or sound to be heard by her or the gesture or object or the indecent act to be seen by her. The offence is made out if the effect of the intrusion is to alarm, insult or offend the female. It is punishable on conviction by a court of summary jurisdiction to imprisonment for 5 years and on conviction on indictment to imprisonment for a term not exceeding 10 years.
Section 329 deals with evidence of a complainant's previous sexual activity in sexual offence cases. The section provides that in deciding whether to grant leave to adduce such evidence, the judge shall take into account the potential prejudice to the complainant's personal dignity and right of privacy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
