The recent judgment in the Inshan Ishmael v Winston “Cro Cro” Rawlins (CV 2023-00753) case has sparked debate and discussion about the balance between poetic license and defamation in the context of calypso and artistic expression.
The Right to Freedom of Speech
Our Constitution guarantees the fundamental right to freedom of speech. This means the right to express our opinions and beliefs without fear of censorship or government reprisal. However, this right is not absolute. It comes with responsibilities and limitations, particularly when the words might infringe on the rights of others.
Creative Expression
Writers and artists often use creative liberties, taking inspiration from real people or events to fuel their work. This “poetic license” allows for artistic expression and commentary. But this artistic freedom does not guarantee creators absolute immunity from legal consequences. Artists must exercise caution to avoid crossing into the realm of disseminating false information that could harm an individual’s reputation.
The Tort of Defamation
Defamation occurs when someone communicates or publishes a false statement about another person, which harms their reputation or standing or exposes them to hatred or ridicule. This can be done through spoken words, written publications, or even social media. In Trinidad and Tobago, defamation is a civil tort, and any aggrieved person can sue the potential defamer for compensation. In determining whether a statement is defamatory, courts consider not only the natural and ordinary meaning of the words in question, but also any implication or inference that the average person would draw from such words. While artistic license allows for some level of fictionalization, it is important to remember that characters and situations can still be defamatory if they are clearly identifiable as real people or events and cause harm to their reputation.
Defences to Defamation
Even though a statement may be harmful, the person making it may rely on the defences of truth, fair comment or privilege to avoid or minimize liability. Here are some key points to consider:
- Truth is a defense: If the statement being made is demonstrably true, it is generally not considered defamatory, even if it is damaging to someone’s reputation.
- Public Interest: If the statement is made in the public interest, such as exposing wrongdoing or corruption, it may be protected by the defences of qualified privilege or fair comment, even if it is harmful to a person’s reputation.
- Malice: The intent behind the statement is crucial. If the statement is made with malice, meaning with the intention to harm the person’s reputation, it is more likely to be considered defamatory.
- Context matters: The context in which the statement is made or communicated is also important. For example, a statement made in a private conversation will have different implications than one published in a newspaper, public performance or online.
The Balance between Freedom and Responsibility
Navigating the intersection of freedom of speech, artistic expression, and defamation requires a nuanced approach. We must value the right to express ourselves freely while recognizing the potential harm that defamatory speech can cause. By understanding the relevant laws, exercising responsible expression, and respecting the rights of others, we can strike a balance that fosters creative expression without infringing upon individual reputations.
