Last Tuesday, High Court Judge Frank Seepersad delivered a landmark ruling on the ability to sue over defamatory content posted and shared in private group chats on instant messaging platforms such as WhatsApp.
In his oral judgement, which was subsequently put into writing based on the legal precedent set, Justice Seepersad sought to identify potential conduct on social media, including sharing and reposting defamatory content, which may lead to lawsuits in the future.
The following is the full judgement, that may assist social media users, including our readers, in avoiding the potential consequences of similar litigation.
REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE
Claim No.: CV2020-00493
BETWEEN MS Claimant AND CH Defendant
Before the Honourable Mr. Justice Frank Seepersad
Date of Delivery: 16 August, 2022.
Appearances:
1. Mr. K. Chesney, Ms. C. Stewart and Ms. K. Samdeo, Attorneys-at-law for the Claimant.
2. Mr. T. Singh, Attorney-at-law for the Defendant.
ORAL DECISION REDUCED INTO WRITING
1. Before the Court for its determination is the Claimant’s Claim Form and Statement of Case filed on 5 February 2020 wherein the Claimant sought the following reliefs:
a. Damages for libel inclusive of aggravated and exemplary damages;
b. Interest thereon as the Court may deem fit;
c. Cost;
d. Such further and/other relief as this Honourable Court may deem fit.
2. The Defendant also filed a counterclaim in the Defence filed on 7 March 2020 seeking the following reliefs:
a. Damages for libel inclusive of aggravated and exemplary damages for defamation;
b. Interest thereon as the Court may deem fit;
c. Costs;
d. Such further/and other relief as this Honourable Court may deem fit.
The Claimant’s Facts:
3. The Claimant was at all material times a serving member of the Trinidad and Tobago Police Service (TTPS). The Defendant was at all material times a member of the TTPS and a participant in the WhatsApp group chat titled “Central Watch”.
4. The Defendant’s mobile telephone number was known to the Claimant and she saved same on her phone.
5. The WhatsApp group had more than 211 participants many of whom were members of the TTPS.
6. On 31 January 2020 while using the group chat the Claimant commented on a message sent by another member which referenced an officer who had been arrested. None of the comments referred to the Defendant in any way.
7. The Defendant responded to the Claimant’s message in the following manner:
“I does beg to work section I does get stink transfer and take it just like many others in this division. And fly by night detective you cant talk about me you aint ready you fuck to work in the task force I does work I could solve crime homer looking. You getting personal. Study because ah two police in longendville you get away from case with your big bandit man”. (Emphasis added)
8. The Claimant contends that the natural and ordinary meanings and/or implications conveyed that she:
a. Rendered sexual favours to obtain her position in the Task Force of the TTPS
b. Was a criminal and narrowly avoiding prosecution
c. Was involved in criminal activity with her significant other
9. The Claimant contends that the Defendant’s words disparaged her professionally and as a woman . Her reputation, she says, was seriously damaged and she suffered considerable distress and embarrassment. She claims that she was shunned by fellow law enforcement officers and became a victim of hatred and ridicule.
The Defendant’s facts:
10. The Defendant pleaded that on another group chat he was well known as “Homer Simpson” because of his body structure and a meme which was shared since in or around 2016 . The Claimant had knowledge and sight of same as it was shared in that group chat at that time.
11. On 31 January 2020 at 2:21 pm the Claimant posted on the WhatsApp chat the following words “this homer Simpson humpty dumpty fly by night detective does quick to jump 2 d defence of his friend and cant do a proper investigation. Talking abt exemplary when yuh name always calling in shit… when u learn to stop touch ppl thing and beg to work in section and stop perjure in court them open yr mouth damn idiot”.
12. The Defendant contends that by the natural and ordinary meaning of the words used the Claimant implied that he was incompetent and/or unprofessional and not fit to hold the post as an investigator within the Criminal Investigations Department. In addition, the words were understood to mean that he was involved in unlawful and/or unethical and/or improper and/or immoral acts, was a thief and/or interferes unlawfully with the property of others and he lied in court under oath.
13. The Claimant at 2:39 pm on the same day posted the following words, “Besides where did I call yr name but typical smart u jump out yourself. U will learn today trust me. Make some new suits and ready yourself”. The Defendant pleaded that by virtue of these statements the Claimant accepted that her comments made were maliciously.
The Messages:
14. This Court labelled and referencec the relevant messages as follows:
a. Message A posted by Sergeant B at 2:19 pm, “Policeman in court on four charges A policeman based in Central Division appeared in court on Wednesday charged with four offences. The officer, who gained some notoriety as a singer, was charged with two counts of making use of an unregistered license plate. The charges were laid via summons and will be recalled on August 5.”
b. Message B was posted by the Claimant at 2:24 pm: “Is best to shut your mouth on this chat before u get case cuz this homer Simpson humpty dumpty fly by night detective does quick to jump 2 d defence of his friend and cant do a proper investigation. Talking abt exemplary when yuh name always calling in shit. Look eh give me a break eh. When u learn to stop touch ppl thing and beg to work in section and stop perjure in court them open yr mouth damn idiot.”
c. Message C posted by the Defendant at 2:38 pm: “I does beg to work section I does get stink transfer and take it just like many others in this division. and fly by night detective you cant talk about me you aint ready you fuck to work in the task force i does work i could solve crime homer looking. You getting personal. Study because ah two police in longdenville you get away from case with yuh big bandit man.”
15. Each party invited the Court to hold that the WhatsApp messages they respectively complained about were defamatory as outlined above.
The Evidence:
16. The Court heard evidence from the Claimant, the Defendant, WPC A J, Sergeant L B and PC D J. The material evidence for the determination of the issues in this matter however came from the Claimant and the Defendant.
17. The Claimant testified that she was a member of the chat group. She worked with the Defendant, WPC A J, Sgt. L B and PC DJ and that she knew the Defendant since 2015. This witness stated that Message B, which she posted on the chat at 2:24 pm, was in response to Message A which was posted by Sgt. LB .The Claimant testified that when she posted, “is best you shut your mouth” this was in response to LB’s message and she was speaking in general terms. The use of the term “homer Simpson” was general terms and not directed at the Defendant.
18. With respect to the WhatsApp messages which were posted to the group in January 2019 between Sgt LB and CH, the witness stated that she was aware of that chat but maintained that she was not referring to the Defendant when she authored and posted Message A. The witness also denied knowing the Defendant as Homer Simpson and she accepted that her partner was arrested but not convicted for money laundering in 2017.
19. WPC A J testified that she knew the Claimant for approximately 9 years and worked with her for approximately 1 year. She said that she was friends of both the Claimant and Defendant and she did not know the Defendant as Homer Simpson.
20. The Defendant accepted in cross-examination that he sent the Message C on the WhatsApp group and admitted that the message was directed to the Claimant. He denied that his intention was to embarrass the Claimant but he stated that at the time he authored and posted the message he was speaking out of anger. When the Court asked the Defendant if he was suggesting that the Claimant slept with persons to be transferred to the task force, he responded that, at the time, he believed so and also felt that she was not competent to work in the task force. The Defendant also testified that he did not apologise to the Claimant. He maintained that he was widely known as Homer Simpson and when asked by the Court, he accepted that Message B did not reference him by name.
21. Sgt. LB testified that he was familiar with both the Claimant and the Defendant. He agreed that he sent the messages in January 2019 directed to the Defendant for lying to the Couva magistrate. He agreed that the Defendant misrepresented to the court with respect to the January 2019 messages and he testified that the Defendant is known as Homer Simpson.
The Issues:
22. Before the Court for its determination are the following issues:
a. Whether messages on private chats can be used to establish liability in libel.
b. Whether Message B was defamatory of the Defendant;
c. Whether Message C was defamatory of the Claimant.
Resolution of the Issues:
23. It is not lost upon the Court that during the course of the proceedings 5 police officers testified. This is against a backdrop where the country faces a crime crisis. Instead of these officers discharging their obligations pursuant to their respective oaths, they have had to put aside their work obligations to testify about messages posted on a work chat group. This underlies the importance of the issues at hand and the need to review and regulate the the use of social media as an abuse can impact not only people’s personal lives but national life as well.
24. There seems to be in this Republic a lack of appreciation as to how social media ought to be used. It is difficult to comprehend the inability or unwillingness to understand the unassailable fact that what is placed on chat forums is not private. After the send button has been pressed and the message read the author loses all control over the post.
25. There is no dispute as to the existence of the Central Watch chat group. Both the Claimant and Defendant were members of same and there was an exchange of messages. The evidence also clearly establishes that Message B was authored and posted by the Claimant and she candidly accepted same. The Defendant also readily accepted that he authored Message C and posted same.
26. The evidence also establishes that the Claimant’s message was a reply to a message generated by Sgt. LB at 2:19 pm on the day in question. Her response was at 2:24 pm and she did so by hitting the reply button. That message was screenshot.
27. On the counterclaim the Defendant complains about Message B and he has invited the Court to hold that the reference Homer Simpson referred to him and that the statement “cant do a proper investigation” resulted in an implication that he was incompetent, unprofessional or not fit to hold the post as an investigator. He also states that the statement, “Talking abt exemplary when yuh name always calling in shit” suggests that he was involved in unlawful or unethical or improper acts. Finally, he complains that the final aspect of the statement, “When u learn to stop touch ppl thing and beg to work in section and stop perjure in court them open yr mouth damn idiot” suggests that he was a thief, interferes unlawfully with the property of others and that a reasonable man would have concluded that he got his job as an investigator by begging those in authority and that he was a liar. As a result, his reputation, he says, was negatively impacted.
28. In response to the Claimant’s message, the Defendant then posted a message which was tendered into evidence and marked as Message C. The Claimant suggests that the ordinary and natural meaning of the words used in message C conveyed that she rendered sexual favours to obtain her position in the task force, that she was a criminal or associated with a criminal partner and that they narrowly avoided criminal prosecution. The Claimant suggests that the post attacked her as a woman and seriously damaged her reputation by the effect of suggesting that she used sex to get her positions within the TTPS. This undermined her integrity, character and professionalism and she asserts that she was brought into ridicule.
29. Essentially therefore the Court has to determine on the evidence whether the words complained of by the respective parties were capable of the meaning as outlined by the parties.
30. Before the Court makes such an assessment, the Court must determine whether the forum which was used to publish these words is in fact a forum or platform upon which action in libel can properly premised.
31. This Court in the case CV2016-02974 DRA and SA and another v Jenelle Burke addressed libel as it relates to different forms of social media though that matter particularly dealt with a Facebook post. At paragraph 31 this Court stated as follows:
“31. In light of the advances of technology, libel and slander can no longer be viewed as strictly the spoken word versus the written word. This Court, in the injunctive proceedings in this matter, stated at paragraph 7 of its judgment:
“The format into which statements can be reduced so as to be considered as being in a permanent form has evolved and extended way beyond the sphere of written or typed text. Audio, visual and electronic forms inter alia are capable of having a degree of permanency and transcends geographical boarders. In this context, the law in relation to libel and slander can no longer be viewed through the myopic lens of written word versus spoken word as technological advances have created circumstances by virtue of which the spoken word can be easily encrypted into a permanent irreversible format which can be accessed from a global platform.””
32. At paragraphs 20 the Court then referenced the Canadian case of Grant and Another v Torstar Corp and Others 2009 SCC 61 Mc Lachlin CJ where at paragraph 28 succinctly outlined what needs to be proven in order to sustain a defamation claim. He stated:
“[28] A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person, (2) that the words in fact referred to the plaintiff and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism: see, eg, R A Smolla 'Balancing Freedom of Expression and Protection of Reputation Under Canada's Charter of Rights and Freedoms' in D Schneiderman (ed) Freedom of Expression and the Charter (1991) pp 272, 282. (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se: R E Brown The Law of Defamation in Canada (2nd edn (looseleaf)), vol 3, pp 25–2 to 25–3.) The plaintiff is not required to show that the defendant intended to do harm or even that the defendant was careless. The tort is thus one of strict liability.””
33. At paragraph 21 this Court then referenced Crookes v Newton 2012 1 LRC 237 which set out the test for publication as follows :
“[55] Proof of publication is necessary in order to establish liability for defamation. ‘Publication’ has an established meaning in the law of defamation. It refers to the communication of defamatory information in such a way that it is 'made known to a third party': Gaskin v Retail Credit Co [1965] SCR 297 at 299. Brown explains that 'it is a bilateral act by which the publisher makes available to a reader, listener or observer in a comprehensible form the defamatory information' (RE Brown The Law of Defamation in Canada (Vol 2, 2nd edn, 1994) para 7.2). Thus, publication has two components: (1) an act that makes the defamatory information available to a third party in a comprehensible form and (2) the receipt of the information by a third party in such a way that it is understood.”
34. Ultimately, in the DRA decision, having reviewed the traditional rule as it relates to the publication rule, this Court was inclined to follow the decision of Deschamps J in Crookes where at paragraph 59 the Court stated:
“59. A more nuanced approach to revising the publication rule, and one that can be applied effectively to new media, would be for the court to hold that in Canadian law, a reference to defamatory content can satisfy the requirements of the first component of publication if it makes the defamatory information readily available to a third party in a comprehensible form. In addition, the court should make it clear that not every act, but only deliberate acts, can lead to liability for defamation”.
35. At paragraph 28 of the DRA judgment this Court went on to say:
“28. Without reservation this Court concludes that postings and information placed on social media sites such as Facebook, Twitter, Viber and Whatsapp has to be viewed as publications and the common law test in relation to libel will apply to same. Such posts are in a comprehensible form and they can be accessed and read by a potential worldwide audience” .
36. In Al Sadik (also known as Al Sadek and Sadik) v Sadik [2019] EWHC 2717 the Queen’s Bench had before it an application by the Defendant to strike out the Claimant’s claim. This libel claim arose out of three WhatsApp messages sent by the Defendant to a group of 34 people in September 2017. All of the group members were part of the Claimant's wider family. The Messages were sent following bitterly contested family property litigation between parties including the Claimant on the one part, and the Defendant and her husband and son on the other (the property litigation). In dismissing the application the Court made reference to Nicklin J in Wright v Ver [2019] EWHC 2094 (QB) and at paragraph 91 (e) the Court stated:
He said at [16]:
“Suppose that the words amount to a grave allegation against the claimant, but they are published to a small number of people, or to people none of whom believe it, or possibly to people among whom the claimant had no reputation to be harmed. The law's traditional answer is that these matters may mitigate damages but do not affect the defamatory character of the words. Yet it is plain that section 1 was intended to make them part of the test of the defamatory character of the statement.”
37. Further at paragraph 95, the Court stated:
95. As to the scale of publication, the messages were published directly to 34 individuals. That is a comparatively small number, but it is not trivial. And, as Nicklin J said in his judgment at [18], determining seriousness is:
“ … not a numbers game, as frequently has been said in the authorities. An allegation that is published strategically or targeted to a group of people who are important to an individual claimant may cause more damage to a claimant's reputation than indiscriminate publication to many more people.”
38. There is significant use of WhatsApp in this Republic as a medium to transfer information and to discuss a myriad of issues or events ranging from the ridiculous to the sublime. Persons may feel that there is a measure of security using such a forum as it is marketed as a private forum. There are even options for messages to disappear after they have been read. That sense of privacy is misguided as even a disappearing message can be screenshot.
39. Messages sent via WhatsApp are easier than Facebook posts to track as account are tied to a mobile numbers which are usually visible and the holders of the accounts can be determined especially where the number is registered locally.
40. This Court therefore holds the view that the WhatsApp platform can be used for the transmission of defamatory content in a comprehensive form.
41. When it can be established that an individual wrote a statement and posted same and the said statement contains impugned words which clearly relate to an identifiable subject and they are defamatory in so far as they are capable of lowering the subject’s reputation in the eyes of a reasonable person, then such an individual may be held liable in libel.
42. When an individual elects to author a message about another and forward same on WhatsApp or on any like messaging forum, caution and restraint must be exercised and such an author must be prepared to defend the veracity of his or her publication.
43. The right to freedom of expression must be subject to reasonable restraint. The right to express one’s views cannot be exercised in a manner which negatively impacts upon the reputation of others without justification. Users of messaging platforms should therefore only post about others that which you know to be true.
44. As it relates to forwarding of messages on these forums, where an individual receives a WhatsApp message which is defamatory of another and elects to forward same that individual adopts the harmful untruths which may be contained therein and in forwarding same publishes the impugned words. Consequently, such an individual may also be liable in libel.
45. Care and responsibility must be exercised when messages are forwarded. Users of WhatsApp and other messaging sites may be well advised to press delete as opposed to forward when in receipt of a message which contains information about another individual which is possibly untrue and which if passed on can lower the reputation of that person in the eyes of another. The simple guide must be that you don’t forward a message about another person unless you are prepared to defend the content of that message.
46. The Court also feels it necessary to address the law as it relates to memes.
47. In the case of Mosslmani by his tutor Karout v DailyMail.com Australia Pty Ltd [2016] NSWDC 357 the Claimant sued various publications, targeting social media pages in respect to the publication and alleged mocking of a photograph of Mosslmani sporting a mullet haircut. Mosslmani contended the image, which went viral and became the basis for countless memes, exposed him to ‘ridicule’, and indicated he was a ‘ridiculous person’, a ‘joke’ and ‘hideously ugly’.
48. Although the District Court struck out several aspects of the Claimant’s claim, the Court at paragraphs 13, 14, 15, 16 and 17 stated:
“13… While the matter complained of publishes memes which portray the plaintiff in a humorous light, any defamatory meaning drawn from the publication as a whole would be so slight as to be de minimis.”
“14. A similar example of such a publication may be found in Ecclestone v Telegraph Media Pty Ltd [2009] EWHC 2779, where the plaintiff commenced proceedings for defamation for a statement attributed to her that “I am not a veggie and I don’t have much time for people like the McCartneys and Annie Lennox [who are]”.
“15. Sharp J, in the course of a summary application as to absence of defamatory meaning (or alternatively a meaning falling below the proportionality threshold) stated that the court should exercise great caution before concluding that words were incapable of a defamatory meaning, citing Berkoff v Burchill at 143). However, her Honour considered that it was hard to distil any meaning defamatory of the plaintiff from a reference to her allegedly saying she was not a vegetarian, or that she did not have much time for public figures who were. Even if a public statement about such style icons as the McCartneys which was “not sycophantic” might be “regarded as a ‘faux pas’”, her Honour observed, that did not make what was said capable of giving rise to an imputation defamatory of the plaintiff (at [13]).”
“16. Sharp J concluded:
“Applying the high threshold to the instant case, the words complained of were not capable of bearing any meaning defamatory of the claimant. The ordinary reasonable reader would see the sentence complained of in the context in which it was used, as nothing more than the expression of a permissible view about an issue and matters on which some people hold strong opinions. All that was being said was the claimant was not a vegetarian, and did not have much time for people who were; the ordinary reasonable reader would (or could for that purpose) think that anything other than unremarkable, let alone think the less of the claimant as a result.”
17. Expression of views concerning hairstyle, or trends such as vegetarianism, or of dislike for a celebrity are insufficient, without more, of imputing actionable meanings unless there is some defamatory act or condition capable of being conveyed, in circumstances where the absence of darker meanings is “palpable”: Monte v Mirror Newspapers Pty Ltd (Supreme Court of New South Wales, Hunt J, 2 November 1979, unreported), citing Somers v Fairfax & Anor (1879) 2 SCR (NS) 140 at 144).”
49. In our Republic, memes involving prominent individuals or public officials are posted with remarkable frequency. It is possible for some of these memes and cartoons to viewed as being defamatory. There is an old adage which says that a picture can convey a thousand words. Where a published meme is devoid of a justification and it impugns, inter alia, a person’s integrity, honesty, morality or the professional competence of the subject with a resultant lowering of subject’s reputation in the eyes of a reasonable person, a claim in libel is possible. One cannot control the content which is sent to one's account but a mature and responsible approach must be taken, caution has to be exercised and the delete option activated.
50. The Court must also address online comments and blogs. Over the last few years the number of online commentators and bloggers have increased and they seem to operate with no boundaries. A myriad of issues including every aspect of the lives of public officials are often discussed. In flagrant disregard of the doctrine of separation of powers even decisions of court have been politicized and judicial officers have been verbally attacked by persons who appear to be blinded by partisan concerns and/or loyalties.
51. Many of the blogs, conversations and posted comments usually do not fall within the category of fair comment nor are they within the acceptable limits which must be applied to the right of freedom of expression. These practices should be curtailed as no one has the right to defame another citizen. It must be understood that these forums too are not insulated against libel suits. If you control a blog or article and you post defamatory statements or defamatory comments have been posted in response , the person who controls the blog as well as the offending commentator may be liable . Bloggers need to be circumspect and theu should edit their posts and delete offending comments .
52. Social media and all messaging services are here to stay. They form an integral part of our daily lives but all these forums must be managed in a measured manner and restraint has to be exercised because anything posted on these various platforms can land you before a court .
53. Having determined and outlined the law and having determined that messages posted via WhatsApp can be subject to a claim in libel, the Court must now determine whether messages B and C are defamatory.
54. During the course of the evidence the Defendant accepted that message C was made by him was based on his belief that the Claimant had slept around to be on the task force . There is no evidence before this Court to suggest that the said assertion was justified.
55. The statement made by the Defendant was offensive and showed a general disregard for women who are often shamed as their sexuality is used to belittle them. However aggrieved the Defendant may have been based on the Claimant’s post and his belief that it referred to him, there was no justification to attack her based on her sexuality. In doing so he not only challenged her integrity and morality but also her professional competence as he suggested that she was at the task force only because she slept around. Such statements were unnecessary and unacceptable. It is unfathomable that the Defendant would consider making such a post on a chat forum with other police officers numbering 211. These are the people with whom the Claimant interacted in a professional capacity. There is a tendency to view women as soft targets and to ‘slut shame’ them, this has to stop. Our nation’s women deserve respect and no one is entitled to impugn someone’s morality by saying that they use their sexuality to gain positions when there is no justification for such an assertion.
56. In relation to the latter part of the statement which stated , “because ah two police in longdenville you get away from case with yuh big bandit man”, the Court notes that the adduced newspaper articles cannot be used to establish the truth of statements contained therein but the Claimant accepted that her partner did have criminal charges before the court. Consequently, the Court adopts the view that this aspect of the statement, having regard to the fact that the Claimant’s partner was charged and the fact that the cases did not proceed, was not defamatory. The charges were a matter of public record and the statement amounted to fair comment.
57. The Court does however find that the earlier part of the statement and the words, “you cant talk about me you aint ready you fuck to work in the task force…” are/were defamatory.
58. Based on the Defendant’s counterclaim the Court has to determine whether the post and the words exhibited before the Court as Message B are defamatory of the Defendant. In relation to the Defendant’s Message C the screenshot clearly showed that he responded directly to the Claimant’s comments and that his post was directed at the Claimant. He accepted this to be so during his evidence under cross-examination. Message B was not a response to anything which the Defendant said but came after the conversation posted by Sgt. LB and WPC AJ’s reply. Notably, nowhere in the body of the said post was there a reference to the Defendant by his name.
59. The Court addressed its mind to its own decision in CV2016-04456 Junior Sammy et al v More FM Ltd et al and re-adopted the view that a post does not have to specifically address someone by his/her name to be defamatory however the context of the words used must be considered and the Court must ascertain whether the words used are of a nature which causes them to readily identify the person in question. The operative test is whether a reasonable person would think that the reference sufficiently identified the individual who complains about the impugned words.
60. Some of the witnesses testified that they knew and referred to him as Homer Simpson. This reference came about by virtue of a Cunupia police chat. The Claimant however said that she did not know the Defendant by the name of Homer Simpson.
61. The administrator of the Central Watch chat, WPC AJ, also said that she did not know the Defendant by the name of Homer Simpson.
62. Homer Simpson is a cartoon character and on a balance of probabilities the Court adopts the view that it was not possible to conclude that because the name Homer Simpson was previously used to refer to the Defendant, that the Claimant knew him by the name ‘ Homer Simpson’. No evidence was adduced that a reasonable man would have known that the Defendant was called Homer Simpson and there is no basis for the Court to conclude that Message B referred to the Defendant.
63. Interestingly, Homer Simpson was not the only phrase used. The message also referenced “humpty dumpty”. There is no evidence which established that the Defendant was ever referred to as Humpty Dumpty on the Crime Watch chat. It is therefore not possible, in the Court’s view, for a reasonable person to have concluded that Message B referenced the Defendant.
64. Even if the Court is wrong with respect to this conclusion, when one looks at the words actually complained of, the Court finds that it is not possible to conclude that the said words have the defamatory meaning as suggested by the Defendant.
65. In reference to the words, “fly by night detective does quick to jump 2 d defence of his friend and cant do a proper investigation” the phrase ‘ jumping to the defence of your friend’ is not one which can be viewed as bearing defamatory meaning . Similarly an expression of an opinion that an officer can’t do a proper investigation in the context of the message being on a police chat, cannot without more give rise to a claim in defamation. A view was expressed as a matter of perception but the words used did not bear the meanings as outlined by the Defendant.
66. In reference to the words, “Talking abt exemplary when yuh name always calling in shit”, the Court notes the generalised nature of the comment and does not hold the view that the said words are defamatory.
67. The message went on as follows , “When u learn to stop touch ppl thing,” the Court is also unable to conclude the said words imputed that the Defendant was a thief. There was also no statement that the ‘touching’ was accompanied by a ‘taking’ with the intention to permanently deprive the owner of his property.
68. In reference to the words, “and beg to work in section,” people are free to ask for a transfer. One can plead with one's superiors for a transfer and there is nothing wrong with doing that. There is nothing wrong with stating your case.
69. In reference to the words, “and stop perjure in court”, the Court is appalled that Sgt. LB with 25 years service authored the post about the Defendant ‘s misstep in court in such a casual and caviller and nothing on the face of the 2019 statement suggests that it was a joke. The evidence established that there was a specific incident in the Couva court where the Defendant may have spoken an untruth and it was reckless of a senior officer to reference that circumstance ,given the possibility of potential charges, on a chat.
70. For the reasons outlined the counterclaim is hereby dismissed and the Court declares that in publishing message C, the Defendant defamed the Claimant and she is entitled to damages in libel.
71. In addressing damages for libel the Court notes that the measure of damages recoverable in defamation should be compensatory in nature and not punitive. The purpose of such an award of damages is threefold :
a. to compensate the claimant for the distress and hurt feelings;
b. to compensate the claimant for any actual injury to her reputation, which must be proved or might reasonably be inferred; and
c. to serve as an outward and visible sign of vindication.
72. In CV2017-00371 Prophetic Missions International v Sapphire Carter the Court at paragraph 11 considered the factors that must be considered in an assessment of a defamation claim:
“11. There are several factors that must be considered in an assessment of a defamation claim. These include: the extent of the publication; the gravity of the allegation; the impact on the claimant’s feelings, reputation or career and matters of aggravation or mitigation (such as apologies)…”
73. In CV2013-04366 Seebalack Singh v The Trinidad Express Newspapers Ltd and Others this Court at paragraph 142 stated:
“142. The significance of an award of damages is much greater in a case where the Defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the Defendant acknowledges the falsity of what was published and publicly expresses regret that the libelous material was published.”
74. The evidence establishes that this was not a libel which was published on a national level. The message was disseminated on the Central Watch group which had approximately 211 members. Notwithstanding the extent of publication, the libel was significant and grave. Far too often women are ridiculed, objectified or attacked about their appearance or sexuality.
75. Message C was authored and published by a police officer who is entrusted to uphold the law. The Defendant acted poorly and his actions demonstrate how far we have to go and how much work has to be done. Men must see women as equals and must understand that a woman’s sex life has no impact or plays no role in the way in which they perform their professional functions.
76. The Claimant outlined how upset she was and how she felt as a result of the statements which were made by the Defendant as was stated at paragraph 11 of her witness statement. She went on to state at paragraph 12 that she received several calls and was shunned by fellow law enforcement officers subsequent to the said post. The Claimant was not challenged with respect to these aspects of her witness statement during her cross-examination. Any woman who is accused of using her body to advance her prospects at her job would suffer an acute sense of embarrassment and distress by those statements as it significantly undermines her professional competence.
77. While that aspect of the emotive hurt and distress cannot be downplayed there is actually no evidence before the Court to suggest that, because of the statements, the Claimant has actually suffered by being promoted or that she was subjected to unfair treatment in the workplace . There is no evidence before the Court that could lead it to conclude that there has been detrimental and/or significant negative impact upon her career path as a result of the statement.
78. The Claimant is entitled to damages which is sufficient to vindicate her reputation and there is in this case a definitive presumption of damage. The Court takes into account the impact of Message C on the Claimant’s integrity, her professional reputation, her honour and her sense of womanhood and the holds the view that an appropriate quantum of damages in the sum of $75,000.00 inclusive of aggravated damages. The Defendant will also pay the Defendant costs on the claim calculated on a prescribed costs basis on the value of the award granted of $75,000.00. The counterclaim will be deemed to be valued at $50,000.00 and the Defendant will pay to the Claimant costs in the sum of $14,000.00 on the counterclaim. Interest will accrue on the sums awarded at the statutory rate of interest from the date of this judgment until payment . On the injunctive proceedings costs are assessed at $17,000.00 and the Defendant must also pay this sum to the Claimant. A stay of execution of 28 days is hereby granted.
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FRANK SEEPERSAD
JUDGE
