In August 2005 Earl Huntley sued the STAR for defamation, citing a pseudonymous posting on the paper’s discussion board. According to Huntley, the words complained of were understood to mean he was corrupt and was a thief who had taken a bribe. Moreover, that he had been dishonest in the discharge of his duties as Saint Lucia’s U.N. ambassador and had committed criminal offences punishable by imprisonment.
The actual posting: “I am so happy for the STAR discussion board. It can make a moo-moo talk. The people here are very intelligent and they have X-Ray vision and see through all the bullshit the voters and the bobolists try to block their eyes with. (I eh calling anybody name!) When we catch them in their bobol, even when they do it in New York, they want to pretend to be indignant and threaten to sue people. Let them interfere with Rick Wayne, he will be their undoing. Take care he is not the one they will have to beg to intercede with the St Lucian people on their behalf when they finally get what’s coming to them.
“But how can the ambassador screw up such a simple matter? Who gave the permission to make a secret agreement with anybody? When was this agreement made? I hope they had the sense to date it prior to the first board posting on this topic. All how you cut it, this stinks and what Huntley gave as his explanation does not absolve him of wrongdoing as far as I am concerned. If he is not experienced enough to know that this matter should not have been dealt with as a private affair between himself and one other party who more likely than not is a friend of his then he should not be ambassador anywhere.
“Furthermore, as of tonight I have fired him as my ambassador. He can be his friend’s ambassador but for me he has the legitimacy of a pee-pee in my poo-poo speaker of the House. Hopefully, he’ll do likewise and fade away quietly. But I would never ever call him a BOBOLIST. I would never never ever ever call him a dirty rotten VOLEUR. I would never never ever ever SAY HE GOT A KICKBACK FROM BARTLETT TO BUY A JAGUAR MOTORCAR AND FIX ALL THEM ROTTEN TEETH HE HAD IN HIS MOUTH. You think I would ever say something like that. Boy, I would never ever say things like that.”
The defense denied they had published or caused to be published or participated in the publication of the words complained of. If there was a publication, they suggested, then they were not responsible. If the words were found to have been published they did so innocently, not knowing or having grounds to suspect that the posting was defamatory. And even if the words were defamatory then they were protected as being fair comment.
The issue before the court, then, centered on whether the defendants were liable for the posting by Boss Hoss. Citing Gatley, Justice Wilkinson said: “In determining whether words are defamatory there are two stages: to decide on what they mean and then to decide on whether that meaning is defamatory. From a technical point of view, imputation is to be preferred to meaning since extrinsic facts, whether or not they are generally known, may give rise to implications which go beyond the meaning of words in their ordinary sense . . . Words are not defamatory merely because their publication has a damaging effect on the claimant’s reputation; there has to be a statement of fact or expression of opinion or imputation conveyed by them which will have this effect.”
More pointedly: “Defamation via the Internet is a growing area. One of the earliest cases, Godfrey v Demon Internet Ltd, dealt with the issue of service providers. The allegation in this case is of libel via a discussion board on the Internet and this is distinguishable from the role of an Internet service provider.” The judge referred to three recent cases in England that she said were particularly instructive as they address the issue of alleged libelous postings on a discussion board.
Said Justice Wilkinson: “The court could do no better in the description of what a discussion board is than adopting the description of Mr. Justice Eady in Nigel Smith v ADVFN Pic and others.”
Justice Eady had on the occasion referred to the nature of bulletin board communications, “which are a relatively recent development.” He said: “Particular characteristics which I should have in mind are that they are read by relatively few people, most of whom will share an interest in the subject matter. They are rather the contributors to a casual conversation—the analogy sometimes being drawn with people chatting in a bar—which people simply note before moving on. They are often unbridled, casual and ill thought out. Those who participate know this and expect a certain amount of repartee or give and take.
“When considered in the context of defamation law, therefore, communications of this kind are much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual more permanent kind of communications found in libel actions. People do not often take a ‘thread’ and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it.”
Added Justice Wilkinson: “The significance of saying that the posting on a discussion board was in general akin to slander is that slander is only actionable if a claimant can prove special damage arising as the direct, natural and reasonable result of the publications of the words.”
As for the defense of fair comment Justice Wilkinson said it was “a defense only available in relation to matters of public interest. Further, what constitutes a matter of public interest rests entirely with the court and so too whether a reasonable person might consider the comment to be fair comment. Matters which generally fall into the category of public interest are the government, conduct and speeches of persons in public offices and affairs, trade unions, the police, works of art, books, plays, television and other broadcast.”
To underscore her point the judge turned to Gatley: “To succeed the defendant must show that the words are comment and not a statement of fact. Finally, he must show that the comment is on a matter of public interest, one which has been expressly or implicitly put before the public for judgment or is otherwise a matter with which the public has a legitimate concern. If the claimant can show the comment was actuated by malice, he will defeat the plea. It is not enough, however, to show that the comment was prejudiced or exaggerated or unfair in the ordinary sense of the word.
“What is necessary is that language must be used which conveys to the reader who has not read the article which is the subject of criticism, that the defendant is commenting on what the writer of the article has said, rather than recounting what he said . . .”
As the court understands defamation, said the judge, one of the considerations to be regarded is the context in which the words were posted. She said: “It is the evidence of the claimant that his own actions, unwittingly or not, triggered what the court believes could be described as a storm which appeared to occupy the media, the [House] opposition, saw the prime minister making a statement in parliament about his actions, saw the Cabinet calling a press conference to deliver a statement on the issue, saw the setting up of an independent inquiry under Justice Albert Matthew and ended with no less than the government of Saint Lucia having to file suit against Mr. Bartlett to recover the Helenites Building.
“To the court, the context of the words would be all that occurred concerning the Helenites Building, from approximately when the claimant and Mr. Bartlett entered the transaction at or about April 2003, which saw the title of the Helenites Building being transferred to Mr. Bartlett, until the claimant’s press conference on August 3, 2004, and wherein he sought to explain his actions concerning the Helenites Building. The posting on the discussion board occurred the same day, August 3, 2004—a few hours after the claimant’s statement. Further, that the context is to be narrowed to this period can be seen from the posting itself when Boss Hoss says: ‘All how I cut it, this stinks and what Huntley gave as his explanation does not absolve him as far as I am concerned.’ It is the court’s view that matters occurring after that date, including the findings of Justice Matthew, have no bearing on the context in which the court must examine the worlds.”
Moreover: “Where the claim is for publication on the Internet there is a burden on the claimant to prove publication. The court was only shown one posting after the posting by Boss Hoss and it makes no reference to Boss Hoss’ posting. And so it appears, like Justice Eady said, ‘chatting in a bar.’ The claimant did not address the issue of the number of publications but rather asked the court to adopt his position of an unquantifiable number. This is not what the authorities tell us is the law.
“Being guided by Justice Eady, the court adopts the highest classification offered for a posting on a discussion board and declares Boss Hoss’ posting to be at best a slander. Having determined that the highest that the court is prepared to classify Boss Hoss’ posting is that of slander, the court looks for special damage and there was no evidence of any. It is the court’s view that the claimant’s claim must fail.
“Should the court be wrong in following Justice Eady, then the court believes that the defendants should succeed on the plea of fair comment. Once again keeping to the context at the time of the posting, the court does not believe that it is called upon to do any more than to find that the matter of the Helenites Building was of public interest and the court so finds . . . It is the court’s view that the claimant has not shown that the posting on the bulletin board was in the context motivated by spite. For the reasons cited the claimant’s claim must fail.”
The judge ordered that Huntley’s claim be struck off and awarded costs to the defendants.
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