Letter to the Editor: Freedom of Speech v. Defamation – A Nasty...

 Letter to the Editor: Freedom of Speech v. Defamation – A Nasty Matter 

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Dear Editor:

This week we learned of the admonition meted out by the Prime Minister to Calypsonian Lena “Queen Ivena” Phillip for the lyrics contained in her recently released song, “Nastiness.” Prime Minister Browne placed Ms. Phillip on notice of his intention to sue her for defamation.

While the song, like most social-commentary calypso is replete with irony, wit and satire, it appears that the Prime Minister took issue with a particular line within the song. The admonition was extended to the media houses, against playing the tune, or they would suffer the same legal consequences. In keeping with the Prime Minister’s request, the media houses relented, and have refrained from playing the popular song until the requested change is made.

The controversy has become quite the hot issue at home and throughout the diaspora. As students of the Constitution, we at ABCRE see this as a learning opportunity to better understand our Constitution, and the equities that society must balance to protect rights and reputations of its citizens. After a brief history of calypso and an outline of the legal statutes that pertain to this case, we will review the three issues which the facts presented in the public square raise:

  1. whether Queen Ivena’s fundamental right to free speech was infringed;
  2. whether the Prime Minister has a private right to bring a defamation action, and
  3. whether the Prime Minister in his public persona is creating a chilling effect on free speech.

Calypso in Antigua & Barbuda and the wider West Indies as a musical art form came of age in the 1940s amidst a time of historic political and economic change in the region, including labor resistance and rising trade unionism, two World Wars, and the arrival of American bases in the twilight of both the sugar industry and British colonialism. Yet it represents an amalgamation of many verbal and musical forms of cultural expression that date back much further into the 19th century, some stretching back to slavery, including steel drum and iron band music, storytelling and griot culture, and “benna” music, the direct musical precursor to calypso in our nation.

Calypso as an art form has always offered biting social commentary for mass popular consumption, and through the use of puns, double entendres and direct as well as veiled references to current events, has often stirred political controversy at various moments in our nation’s history. For instance, the 1940s benna music pioneer John “Quarkoo” Thomas was jailed when he referenced in song the rumored rape of a local woman by the standing governor. Legendary performers from the 1950s through the 1980s such as Latumba, Short Shirt, Obstinate, and Swallow and the inspired songwriters behind their lyrics, including Marcus Christopher, Shelly Tobitt, Stanley Humphreys and Dorbrene O’Marde among others, have created many memorable tunes that, while catchy to our ears also have caught negative attention from political elites. Calypso continues to invite scrutiny by the government in our post-independence moment, because it continues to be not only a source of news but a conscience of the people.

With regard to the controversy over Queen Ivena’s tune, the two controlling statues that the public should consider are: (1) fundamental rights as set out in our Constitution, and (2) the laws related to the tort of defamation.

Chapter II of our constitution defines the fundamental rights of the Antiguan & Barbudan citizen. It states in pertinent parts

“…[w]hereas every person in Antigua and Barbuda is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, regardless of race, place of origin, political opinions or affiliations, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely-…(b) freedom of conscience, of expression (including freedom of the press) and of peaceful assembly and association. [emphasis added].

Defamation is enumerated in The Defamation Act of 2015. A “defamatory matter” means

“… any matter published by a person that is injurious to another person’s reputation in the eyes of reasonable members of society.”

The defenses to a claim of defamation are the truth; fair comment; truth of assertions; publication on a matter of public interest; innocent dissemination; absolute privilege; and qualified privilege.

Were Queen Ivena’s free speech rights violated? To the best of our knowledge, the government did not issue a ban or formal censorship. Prime Minister Gaston Browne made it clear that he intends to bring a defamation action in his personal persona, for which he has every right to do. As such, the artist’s free speech rights are not being abridged by the government.

On the other hand, another argument can be made that threats by the Prime Minister in his public persona creates a chilling effect on free speech. Such threats of legal actions are usually made to discourage the legitimate exercise of natural and legal rights. Aggrieved parties also have the freedom to preemptively bring a claim against the government for violation of his/her fundamental rights. While the Prime Minister could be named in such a suit, most attorneys would advise their clients to go after the deeper pocket, thereby exposing the government to paying damages. It is therefore prudent that the public continue to familiarize themselves with our nation’s Constitution and laws, so that we can be as informed as possible regarding this or any other issue of relevance to the contours of our citizenship.

However, as in all democratic societies, it is the Court that gets the final word on the constitutionality of this “nasty affair.”

Submitted by:

Antiguans and Barbudans for Constitutional Reform and Education

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