FEB 07

The Privy Council last Thursday refashioned our Grenadian laws creating the offence of criminal intentional defamatory libel; in WORME v. COMMISSIONER OF POLICE.

There, "Grenada Today " Editor George Worme questioned whether those laws contravene the freedom of expression guaranteed by section 10 of the Constitution, on being prosecuted under those laws for a letter Grenada Today published about Dr. Keith Mitchell in Sep. 1999.

BROAD LIBEL LAWS
By those laws, one who is convicted of intentional libel is liable to two years imprisonment, section 252 (2), Criminal Code; negligent libel attracting six months, section 252(1).
Such laws have traditionally been seen as having a rather broad reach. As section 253, making one guilty of intentional libel on unlawfully publishing in print "any defamatory matter" concerning another person with intent to defame him.

And section 254 defines defamatory matter as matter imputing to a person any crime (indictable), or misconduct in public office, or which is likely to injure him in his occupation or expose him to general hatred contempt or ridicule.

The defamatory meaning need merely likely to become known, and only to the person defamed. Those laws do provide defences. But these defences are rather constraining.

Also, they have been seen as placing the onus or burden of proof on the defendant to prove their requirements. Especially section 257 (1) (h) protecting publication of defamatory matter if the matter is true and the jury finds that the publication was for the public benefit.

THREE QUESTIONS
So Worme's Counsel asked Chief Magistrate Patricia Mark at the preliminary inquiry to state a case to the High Court with three questions, which the Chief Magistrate did.
Question1 asked whether section 10 of the Constitution
guaranteeing freedom of expression protects publishing material discussing political matters and public figures suitability for Parliament.

Question 2 was whether that guarantee is violated by these criminal libel laws. Question 3 questioned the bringing of the prosecutions by the State to punish defaming Keith Mitchell without concerning any public interest .

STATE SAID FRIVOLOUS
At the Magistrate's Court and the High Court, the State insisted that "the referral request was merely frivolous and vexatious....the court should not make the referral" .
This did not impress any of the nine judges, including five Law Lords, who heard the case.

All nine judges answered Question 1 affirmatively, section 10 of the Constitution protects political discussions, subject to the constitutionally permitted exceptions. On Question 3, the Privy Council left open the issue whether the public interest is served by the publication or the prosecution, in contrast to the Court of Appeal unqualifiedly answering that question negatively against Worme.

FREE EXPRESSION AND CRIMINAL LIBEL
On Question 2, the Privy Council, like the Court of Appeal, concluded that the guaranteed freedom of expression in section 10 of the Constitution is not contravened unconstitutionally by the libel laws.

But, unlike the Court of Appeal, the Privy Council reached that conclusion only after subjecting those laws to a process of interpretation featuring such substantial modification that the Privy Council called it "mutation".

Thus, the question on whom lies the onus or burden of proof on a defence that the defamatory matter is true and its publication for the public benefit, not previously authoritatively decided, got plenty attention from the Privy Council.

Their Lordships put the onus or burden on the prosecution
to prove both that the published material was untrue or false and its publication not for the public benefit.

This putting of that onus or burden on the prosecution was largely the basis on which the Privy Council answered Question 2 as upholding the libel laws as fitting within the exception in section 10 of the Constitution permitting laws protecting reputation.

Their Lordships upheld the libel laws as so interpreted by them. And this interpretation, their Lordships explain, "narrows the scope of the offence", so that "the appellants gain potential advantages"

Another weighty issue not previously addressed was this. Is there applicable to criminal libel the special defence of qualified privilege which obtains where one has a duty to communicate information and another has an interest to receive it, outlined for civil libel in REYNOLDS by the House of Lords.

The Privy Council in WORME ruled that the REYNOLDS defence applies to criminal libel. Further, considering certain other problematic provisions of the libel laws, whose constitutionality their Lordships did not determine, the Privy Council said that if in due course in the prosecution against Worme the defence raises other constitutional issues, the courts will deal with them.

In other words , one may say, further constitutional challenges may well be appropriate. Also, the Privy Council seemed to confine the libel laws to protecting one's reputation from accusation of crime or misconduct in public office where publication is not for the public benefit.

LEGAL LANDMARK
So the Privy Council has substantially modified criminal defamatory libel laws, and left unanswered further issues about them.

This is a legal landmark, a path-breaking development in constitutional jurisprudence, created by Grenada. Not a bad 30th anniversary of our Grenadian national independence. Enjoy it.

(Dr. Francis Alexis was the lead Attorney from Grenada that travelled to London to take part in the Criminal Libel Case against the local newspaper editor)