Defamation – Slander – Qualified privilege – Malice – Constitutional guarantee of freedom of expression – Level of damages
P, when he was Prime Minister of Trindad and Tobago, had called G, a prominent businessman and media tycoon, a racist at a public meeting. At trial the Judge found against P, holding that the slander had been concerned with G’s conduct of his media business and that republication had been intended and authorised. The award of damages included damages for republication in print and on television. A ‘reply to attack’ qualified privilege defence was defeated by a finding of express malice. The Court of Appeal of Trinidad and Tobago upheld the Judge’s finding (with the Chief Justice dissenting), but reduced the award of damages. A defence based on the constitutional right to express political views was raised in the appeal and rejected. P appealed to the Privy Council.
Whether (1) the right to express political views as protected by s. 4(e) of the Trinidad and Tobago Constitution was an absolute bar to an action in defamation; (2) the words spoken were defamatory; (3) the words were spoken of G in relation to his business or profession.
Dismissing the appeal,
(1) Whether the words bore a defamatory meaning was a question of fact that had been determined by the Judge and a majority of the Court of Appeal in favour of G. This was a matter that local courts are better able to determine and the Board saw no reason to depart from that ruling.
(2) The allegation of using racism to lever a competetive business advantage was unmistakable.
(3) The right guaranteed by s. 4(e) of the Constitution was not absolute. The rights set out in that section co-exist and comply with the common law. An absolute immunity would preclude the development of limitations on political expression based on requirements of reasonable or responsible journalism within Trindad and Tobago. The section did not pre-empt the decisions of the courts.
The Privy Council emphasised that certain aspects of the law of defamation are preeminently local matters – the scale of damages/rulings on whether words defamatory – and it would be reluctant to disturb the findings of local judges and national appeal courts.