Dr. Philbert Aaron Claimant v Abel JNO. Baptiste A.K.A. "Checko" Defendant [ECSC]
| Jurisdiction | Dominica |
| Judge | Thomas, J. |
| Judgment Date | 28 March 2014 |
| Judgment citation (vLex) | [2014] ECSC J0328-1 |
| Court | High Court (Dominica) |
| Docket Number | SUIT NO. DOMHCV2013/0015 |
| Date | 28 March 2014 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE [CIVIL]
SUIT NO. DOMHCV2013/0015
Thomas, J.(Ag.): On 16th January 2013, Dr. Philbert Aaron filed a claim against Abel Jno. Bapitste, the defendant, alleging libel and slander with respect to a song which was written and sung by the defendant. The song was dubbed "Bug Her".
The claimant claimed: damages for libel and slander, aggravated damages, exemplary damages, an injunction restraining the defendant from further publishing the offending words or any other words defamatory of the claimant and costs.
The defendant filed an acknowledgment of service on 13th February 2013, but no defence was filed within the time prescribed for such filing. Thus, on 6th March 2013, the claimant requested an entry of judgment in default. This was obtained on 13th March 2013. And the order was in these terms: "Judgment is hereby entered for the Claimant for damages in an amount to be decided by the Court, prescribed costs on same and judgment interest." A subsequent application to set aside the judgment in default was denied.
The evidence on behalf of the claimant is given by him as well as Vincent Etienne, Nadia McDowell and Shermaine Bique.
All witnesses gave evidence about hearing a song on radio in February 2012 entitled "Bug Her" and because of the lyrics they understood it to reference to the claimant and his involvement in buggery. Apart from hearing the song on radio, three witnesses, namely, Vincent Etienne, Nadia McDowell and Shermaine Bique gave evidence of hearing the said song in the Calypso Tents. Vincent Etienne and Nadia McDowell also gave evidence that they heard Checko, the defendant, on the road on the carnival days.
In accordance with directions given by the court on 18th October 2013, submissions were filed by both sides.
On 6th November 2013, submissions were filed on behalf of the claimant. The following is a summary thereof : Awards of $85,000.00 for general damages, $30,000.00 for aggravated damages and $5000.00 for exemplary damages are fair and reasonable in all of the circumstances; there is no evidence that the Claimant did any negative act to deserve or call upon himself such an unnecessary and ugly attack on his reputation by the Defendant; the Claimant has given evidence that he felt hurt by the defamatory publications; the Claimant holds significant positions of public standing; the words complained of impute a criminal act and which is generally frowned upon by Dominican society; the synchronised video with the written words did amount to libel and the other publications over the internet are sufficiently permanent as to attract the same type of award as a traditional libel and even higher; the offending words were part of a calypso, which was aired on radio and played 'on the road' during carnival for all to hear; the refusal by the Defendant to apologise, change his lyrics or altogether cease the publication of his song, even up to this date, are matters that aggravate the injury to the claimant; and the defendant's continued performance and publication of the song, even after being asked not to by the claimant was clearly because the defendant sought to make financial gain.
The following is a summary of the submissions filed on behalf of the defendant: the Claimant and his solicitor were the only persons who published on radio and on the internet, the derogatory meaning which the Claimant applied to the words complained of; the Claimant has not shown that he suffered any distress or diminution of the public's estimation of him in social, professional or political affairs; theClaimant and his wife, published their denial that the Claimant possessed the sexual orientation which the Claimant published in the meaning he applied to the words; in respect of the extent of the publication the Claimant has not provided any verifiable evidence that the Defendant did post the song on the internet; the Defendant explained his reason why he did not offer an apology upon receipt of the Claimant's letter because he did not intend, nor did he believe that he defamed the Claimant; and the Defendant has shown that his performance of the song was not intended for profit and that he has not profited.
Before the court embarks on the journey to assess damage in light of the judgment in default, it is necessary to determine whether what the defendant admitted is in law libel or slander, or both.
InGatley on Libel and Slander the following learning appears1: "Any publication of a defamatory matter in permanent form is a libel at common law. Thus it is a libel to publish printed or written words, or a picture or effigy, or a combination of these, if they convey a defamatory sense." In close proximity is Clerk & Lindsell on Torts in which the following is to be found2: "Libel generally indicates something printed or written, but it includes also anything in a more or less permanent form…"
At issue is a song which the defendant admitted he wrote and sang, but for purposes of libel it must be in more or less permanent form.
At paragraph 17 of his statement of claim the following is pleaded:
"17. After publication of same, the Defendant caused and/or allowed a video to be published the "Youtube" website with the lyrics of the song written and displayed, and synchronised with an audio performance of it. To date, that video has received over 7,000 views. The Claimant states that the publication of such a video was in any event a natural and probable result of the original publication."
The claimant in his witness statement, filed pursuant to the order of the court for the assessment of damages, the evidence at paragraphs 14, 15 and 16 is as follows:
"14. He also published or caused the publication of the song on other websites on the internet, such as the Dominica Calypso Association website, and the website numusiczone.com. The Defendant admitted same in his draft defence filed with his application to set aside judgment.
15. He also caused his said song to be available for purchase and download in mp3 format, on the said website, numusiczone.com. It appears to me that the cost of downloading it works out to about US$0.40 (based on that site's membership plan.)
16. After publication of the song, the Defendant caused and/or allowed a video to be published on the "Youtube" website with the actual lyrics of the song written and displayed, and synchronised with an audio performance of it. To date, that video has received over 7,000 views."
In submissions on behalf of the claimant, learned counsel submits that:
"22. While it is arguable whether the defamation via radio and over the internet amount to a libel, it is our submission that (i) the synchronised video with the written words did amount to a libel and (ii) the other publications over the internet, that is, on Numuziczone.com and on the Dominica Calypso Association Website, are sufficiently permanent as to attract the same type of award as a traditional libel and even higher. The song is available for download on these websites even as we write, and can be distributed and/or made available far and wide to millions for so long as the internet exists. Based on the authorities cited above, the internet publication is one of the most hardening nails in the coffin of the Claimant's ruptured caused by this song.
23. Additionally, the evidence is that the offending words were part of a calypso, which was aired on more than one radio station, more than one time. The offending words were played 'on the road' during carnival for all to hear, and sung during the calypso finals to a huge crowd of patrons."
On the other hand, learned counsel for the defendant submits that3:
"In respect of the extent of publication the Claimant has not provided any verifiable evidence that the Defendant did post the song on the internet. Further, the Claimant has not produced any evidence, that in the absence of the derogatory meaning published in the media by the Claimant, the Claimant's reputation would have been injured by the song without that meaning being placed on the internet or in the media generally."
The permanent form emanating from the pleadings and the witness statement and cross-examination is the internet by way of the websites identified and related variations of access to the internet.
The case ofMarina Marshall v Lenisha Augustine and Cressida Raymond4 concerned an action for libel and malicious falsehood. At the centre of the case was a certain publication on the internet. The
evidence in the case included that of an "Internet Specialist" who, inter alia, gave evidence as to path of the email5.The trial judge was the Hon. Mr. E. Anthony Ross, Q.C. in this connection, after outlining the path of the email, continued at paragraphs 16 and 17 of his judgment as follows:
"16. This court accepts the evidence of the claimant and McCarthy Marie that the defendant, Lenisha Augustine, admitted to publishing and forwarding the email with the file attachment and that she had in fact used Domlec's computer, during working hours, to publish and forward the said email.
17. This court finds that the facts as set out above have been fully supported by the evidence and that the dissemination on the World Wide Web is sufficient publication to ground the claimant's action in defamation."
The difficulty the court faces is that evidence concerning the internet and the song comes entirely from the claimant; and even then it is not clear if he saw the publication, if any, or he was told. In other words, it has not been shown that the defendant published the song on the internet in the manner in...
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