In an interesting article in yesterday’s DAILY NATION Dr Tennyson Joseph wrote: “The censored calypso is an oxymoron. The calypso is either the unmuzzled voice of the normally voiceless, or it is nothing.”
In the same article Dr Joseph criticized the National Cultural Foundation (NCF) for vetting the lyrics of calypsonians performing at NCF-managed events. He concluded his article with the following paragragh:
“Ironically, the institution set up to promote Barbadian culture now seeks to limit it. No subject should be off limits to the calypsonian. What is off limits is how he expresses it. The governors must learn to trust the intelligence of ordinary folk.”
In his article Dr Joseph, among other things, attempted to make a case for a special regime for calypsos.
Incidentally, the NCF has been vetting calypsos for several years and calypsonians have been forced in the past to change their lyrics.
The reality is that the NCF, over time, has been sued for defamation and from time to time has incurred significant costs either defending or settling legal proceedings.
The basis of the tort of defamation is the publication of matter (usually words) containing a defamatory imputation. Words carry a defamatory imputation where they tend to lower a person in the estimation of right-thinking members of society.
Some examples of words that have been held by the courts to be defamatory are a statement that a person is “a rogue”, “a thief”, “a crook”, “a blackguard” or “a liar”.
The view is sometimes expressed that calypsonians have some special privilege in the law of defamation, which permits them greater freedom of expression than others.
There is little doubt that each year defamatory statements are made in calypsos or by comedians in the tents. But the reason for the apparent acceptance of this has nothing to do with any special protection under the law.
This point was emphasised in the case of Mirchandani et al v Barbados Rediffusion Service Ltd where a former Chief Justice Sir Denys Williams said:
“In my view no privilege attaches to the publication of the calypsos and the defence of qualified privilege must fail and is struck out.
“If any special protection is to be given in respect of the publication of calypsos, it should be done by statute as part of a comprehensive review of the law, and after due and appropriate consultation and balancing of the different interests.”
In Mirchandani v Barbados Rediffusion Ltd the Chief Justice was considering the defence of qualified privilege relating to defamatory words contained in three songs – The Chicken Song, Pluck It and Tit For Tat – which were popular in the 1989 calypso season.
The legal principle which underpins the defence of qualified privilege as argued in the Mirchandani case was described in an old English case called Toogood v Spyring (1834) as follows:
”In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another, and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.
“In such cases the occasion prevents the inference of malice which the law draws from unauthorised communications, and affords a qualified defence depending on the absence of actual malice.
“If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society and the law has not restricted the right to make them within any narrow limits.”
In the Mirchandani case the defendant was claiming qualified privilege because as the disseminator of news, information, and entertainment to the public pursuant to its licence, it was, in the absence of malice, free to publish over its radio station, the words of three calypsos, relating as they did, to a topic of widespread interest to the community.
It was held that the defendant had no legal, moral, or social duty to communicate the defamatory words to the public. The calypsos, therefore, were not privileged. The NCF is in a similar position to the radio station in the above case. Since it has no special protection, it has to act consistently with its legal advice with respect to the lyrics of calypsos.
Cecil McCarthy is a Queen’s Counsel.
