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.

………………………….

FRANK SEEP­ER­SAD

JUDGE