The Tribune

By AVA TURNQUEST

Tribune Chief Reporter

aturnquest@tribunemedia.net

OUTSPOKEN social media commentator Omar Archer Sr's constitutional challenge against the Bahamas' criminal libel laws continued last week with legal arguments centering on whether the state's charge of criminal libel was a necessary and proportionate response to his conduct.

His motion, filed in April last year, seeks a declaration from the court that the charge, prosecution, trial, liability to conviction and sentence to a fine and or imprisonment of up to two years for the offence of intentional libel, are "void, illegal and of no effect" as they breach his constitutional right to freedom of expression guaranteed by Article 23(1) of the Constitution, the country's supreme law.

The complaint against Archer alleges he published defamatory material on his Facebook page about a local reporter.

Offence

Corporal Moses Curry, the attorney general's court liaison, acknowledged the right to freedom of expression is interfered with by the offence of intentional libel; however, it is proportionate.

Mr Curry maintained the offence of intentional libel is necessary and constitutionally valid in a responding affidavit filed on March 14.

In his response affidavit, Mr Curry said: "A person's reputation is valuable to that individual's dignity, to the public and the law attaches a high value to it.

"For much of the same reasons as the Supreme Court, their lordships reject this particular argument for saying that crime of intentional libel is not reasonable (sic) required.

"Looking at the position overall, they are satisfied that it is indeed reasonably required to protest the people's reputations and does not go further than is necessary to accomplish that objective.

"Once besmirched by an unfounded allegation, a reputation can be damaged forever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser."

Mr Curry said it should not be assumed the protection of reputation was only important to an affected individual or his family, but such protection was conductive to public good.

"Consistently," Mr Curry continued, "with these considerations, human rights conventions recognise that freedom of expression is not (an) absolute right.

"Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of reputations of others."

In his reply submissions, Archer's legal counsel Fred Smith posits the parties appear to agree on the issue of interference with freedom of expression, making the key question one of proportionality.

Mr Smith stated: "A person considering themselves to be defamed has significant and powerful civil law rights to claim damages and secure injunctions and so on. In many cases, these are the only rights available to people.

"The state might alternatively be required not to prosecute the plaintiff for intentional libel, on the basis that, to do so on these particular facts, would constitute an unnecessary and disproportionate response. The plaintiff avers that we are in this territory."

Mr Smith added: "It was plainly open to the state to protect the reputation of the alleged defamed person, by lesser means, and in particular, in this case, by the enforcement of his civil rights as opposed to using the criminal law.

Serious

"The plaintiff submits that, in the modern era, the criminal law should only be used, consistent with the fundamental constitutional right to freedom of expression, for the most serious or egregious cases, or where there is real harm suffered by the allegedly defamed person.

"This is not such a case."

Archer Sr's challenge last year followed a similar motion by Maria Daxon, a former police constable and vocal defender for the rights of police officers.

She was charged with intentional libel concerning alleged statements written about then Commissioner of Police Ellison Greenslade and Assistant Commissioner of Police Leon Bethell.

Those criminal libel proceedings were discontinued via a nolle prosequi.