THE Court of Appeal is expected to deliver a ruling in May or June that could set a precedent for newspapers publishing anonymous statements in paid advertisements.
Justices of Appeal Nolan Bereaux, Mark Mohammed, and James Aboud reserved their decision on the Trinidad Express’s appeal against a 2023 ruling in favour of prime minister-in-waiting Stuart Young, who was defamed in a 2017 paid advertisement.
In October 2023, Justice Betsy Ann Lambert-Peterson ruled that the Express defamed Young by publishing a two-page advertisement that grouped him with alleged scandals. The ad, paid for by an anonymous group identified as “Dissatisfied citizens of Trinidad and Tobago,” suggested Young had engaged in misconduct in public office.
The judge ordered the newspaper to pay $500,000 in damages, holding that it acted with malice because the newspaper knew the allegations were false since Young had previously denied the claims, and the Express had his response on record. She also held that the newspaper did not contact Young for comment before publishing the ad.
Justice Lambert-Peterson found that the words in the advertisement were defamatory and would lead an ordinary reader to believe Young had acted unlawfully.
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The Trinidad Express appealed, arguing that the judge misapplied the legal principles of defamation.
At the hearing of the appeal on March 14, Express’s attorney Faarees Hosein contended that the judge failed to determine the actual meaning of the words.
He said she focused only on the offending part of the advertisement instead of reading it in its entirety. He also said the ad was not an assertion of fact and the word “scandal” in a Trinidadian context does not necessarily imply misconduct.
“She was led astray by using the dictionary meaning.”
Hosein insisted it was an advertisement which, he said the judge also failed to take into account.
“She had to read the publication as a whole, not only the offending part of the advertisement.
“You cannot separate the offending parts because it would give a false result.
“She should have considered the entire advertisement.
“This court cannot be certain she applied the correct principle. We say she did not. She didn't appreciate the task required of her. When confronted with the advertisement, the judge did not.”
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While he agreed it was open to the publisher not to publish the ad, he said the two-page advertisement “was hardly an eye-catcher.”
“It was on page 36 and 37…” He also said there was a difference between an ad and a publication endorsed by a newspaper.
According to Hosein, TT does not have a public disclaimer requirement and, “The publisher can only do what it did by saying it was a paid advertisement.
“There is no attribution to the newspaper. A publisher does not assert the truth of such publications.”
In response to the appeal, Young’s attorney Colin Kangaloo, SC, insisted when Lambert-Peterson made the correct finding of defamation, she did take the legal principles into account and was aware she was not to take the most defamatory meaning.
“She considered the advertisement as a whole.”
He insisted Lambert-Peterson made no errors in law and the Appeal Court should not interfere with her findings.
“There was nothing to explain away the defamatory statement about Minister Young. There is nothing that takes away the defamatory sting.There was no disclaimer, nothing.
“The Express is making money from ads, using anonymous people to defame people and I must go and try and find out who these people are? Scandal could only mean one thing,”
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He said the newspaper had a duty to make a disclaimer and distance itself from the ad while protecting Young by referring to its previous article.
“Reportage is not a defence and the ad was not a fair representation because of what they knew.”
Kangaloo insisted the judgment should not be interfered with since Lambert-Peterson “understood the case, the evidence, the context.”
“Her judgment should remain untouched and the appellant’s appeal should be dismissed with costs.”
Also representing Young are Anthony Bullock and Clay Hackett.
