We have seen in the recent past the actions and articulations of the Cayman Islands Government (and at times other legislators) in regards to freedom of expression, free speech and freedom of the press. For instance: the Cayman(ian) Compass ad-pull and public rebuke by legislators (on both sides); the speaker’s recent comments and warning/veiled threat towards the media; the arrest of an artist for “offensive or obscene publications” while lawbreaking vandals destroyed his property and roam free among us to this day; the premier’s recent statements about negative coverage (akin to Trump’s “Fake News”); the refusal by the CIG to allow critics of the government on with government members on radio shows to challenge them in any way, shape or form.
The CIG has gone as far as forming their own source of information in news in regards to the government that only includes positive stories done in a traditional news format and released like propaganda reels. These are all worrying signs for anyone familiar with history. All that being said my question is:
What is the current state of our free speech (if it exists at all) what kind of legal leeway does the government have in relation to free speech, expression and the press or media, and what can the people do to protect these rights?
If you think this is not a pressing issue then I would direct your attention to page 31 of the 2018 and 2019 Plan and Estimates document released by the “Unity government”, where the CIG clearly states their intention to introduce a “Defamation Bill” to “deal with the emerging issues involving the application of defamation law principles and the anonymous delivery of opinions which can cause reputational damage” — something that could easily and directly affect us all in this tiny jurisdiction. Am I going to need a lawyer with me when I decide to vent about government issues on FB?
Auntie’s answer: You have certainly touched on a lot of points in your question. I will do my best to address the main issues and try to keep things as uncomplicated as possible.
First of all, since you are concerned about freedoms of speech, expression and the press, let’s start with what is covered in the Penal Code concerning defamation. Under Part V (Offences Injurious to the Public in General), Section 171 refers to “A person who by print, writing, painting, effigy, tape, film, disc or other recording or by any means other than by gestures or spoken words or other sounds unlawfully publishes or facilitates the publication of any defamatory matter concerning another person with intent to defame that other person commits libel.”
However, Section 174 (Definition of unlawful publication) importantly says in part, “Any publication of defamatory matter concerning a person is unlawful within the meaning of section 171 unless – (a) the matter is true and it was for the benefit of the public that it should be published.”
The remaining sections in this part (up through S.179) cover all related definitions and ramifications, which I will leave you to read through.
Next we have the Cayman Islands Constitution, which an official with the Commissions Secretariat took me through, while stressing they could not address your query about the “legal leeway” that the government has concerning the freedoms you mentioned because the Human Rights Commission cannot give legal advice.
The official then explained that the Constitution does not specifically contain freedom of speech, “but those rights referenced by your reader would be guaranteed” under Section 11 on Freedom of Expression. This freedom is a “qualified right”, meaning it can only be lawfully restricted or taken away by the government in certain broadly defined circumstances.
It was also pointed out that a qualified right is usually followed by a list of criteria which explain the general circumstances when it will be lawful for the state to interfere with or restrict the right, balanced against the rights and interests of others.
Additionally, the official said, “it is important to remember that those matters such as allegations of defamation of character/reputation, which are ongoing between two individuals are civil matters. The Bill of Rights has a vertical application and thus breaches can only be alleged by an individual against a public official.
“The government does have an obligation to protect the rights of individuals and thus when passing local laws, the rights engrained in the Constitution will be taken into account. This introduces an ‘indirect’ horizontal application of human rights.”
You also mention a defamation bill. There has been talk of revising the Defamation Law (1995 Revision) and this was also looked at the by Law Reform Commission in their 2015 annual report, but so far nothing has come of it, so we have to stick with what is on the books.
I will say, though, that I share your concerns. I fear that we are heading down a dangerously slippery slope when those in government appear to take on the media because they may not like what is printed or broadcast. And let me repeat here that Section 174 of the Penal Code sets out truth and public benefit as a protection against an offence of defamation.
Lastly, I am compelled to note that the Standards in Public Life Law, ethics legislation aimed at keeping politicians and civil servants honest, was passed in 2016 but has yet to be implemented.
It seems to me that the government should ensure its own house is legally required to be in order before taking aim at the press for slights, whether justified or not. If that happens, there just might be fewer government issues that the public or the media will be able to find to complain about.
The laws mentioned in this column can be found on the CNS Library