The Hon. Minister of Information and Broadcasting v Benjamin et Al

• Jurisdiction: Anguilla
• Court: Court of Appeal (Anguilla)
• Judge: Albert Redhead J.A.
• Judgment Date: 15 June 1998
• Neutral Citation: AI 1998 CA 3
• Docket Number: Civil Appeal No. 1 of 1998
• Date: 15 June 1998

Court of Appeal

Singh, J.A. Redhead, J.A. Matthew, J.A. (Actg.)

Civil Appeal No. 1 of 1998

The Hon. Minister of Information and Broadcasting

and

Benjamin et al

Appearances:

Mr. Rex McKay S.C. for the appellant

Mr. Roald Scipio, Attorney General, and Mr. Stanley Reid with him,

Miss Bernice V. Lake Q.C. for the first named respondent

Miss Joyce Kentish and Mr. Elson Gaskin with her

Mr. Hugh Rawlins for Nos. 2 and 3 respondent

Constitutional law - Fundamental rights and freedoms — Freedom of expression — Appeal against decision of Saunders, J. that Minister'saction in suspending radio broadcast was an interference with right of freedom of expression — Court held that the right to freedom of expression dies not place a positive obligation on the Government to provide a means for exercising that fundamental right — Appeal allowed.

Albert Redhead J.A.

1 The first named appellant is the political head of broadcasting in the Anguilla administration. Radio Anguilla is owned by the Government of Anguilla. There are no regulations or guidelines which govern its operation. There is no policy making board. It is administered on a day to day basis as any other government department with Mr. Nathaniel Hodge, at the material time, as Director of Information and Broadcasting as the administrative head.

2 Mr. John Benjamin, the first named respondent is a legal practitioner qualified to practice in 1981. He is also by his training a Community Worker having obtained a certificate in Youth and Community Work issued by Birmingham University in 1990.

3 The learned trial judge said of him that Mr. John Benjamin was very active in the Social, cultural and Sporting life of Anguilla Community. In 1988, he had produced a radio programme called “Legal Briefs” which was aired on Radio Anguilla for three and a half years.

4 Sometime in 1994 Mr. Hodge thought of the idea of establishing a radio “call-in” programme and he was of the view that Mr. John Benjamin would be a suitable host for such a programme. As a consequence, Mr. Hodge approached Mr. Benjamin who readily agreed to host the programme free of charge. Both men discussed the programme. They both agreed that it should be enlightening and educational. Mr. Hodge would take responsibility for the timing and duration of the programme. Mr. Benjamin would secure sponsorship and undertake the production of the programme. Mr. Benjamin would select the topics to be discussed and guests who would appear on the programme. In order to have explicit government endorsement for the programme he was about to launch, he arranged a meeting with the ministers of government. Mr. Benjamin discussed with the ministers his idea of the programme which was to be called “Talk Your Mind”. It would also fulfil an electoral promise of open government made by Anguilla Democratic Party (ADP) of which Mr. Benjamin was the election campaign manager and its chairman. This party the “ADM” together with the Anguilla United Party (AUP) forms the present administration.

5 The programme would provide an opportunity for people to raise topical issues and to express their views openly. It was intended to stimulate creative ideas.

6 The Minister of government had also told Mr. John Benjamin that at Executive Council they had collectively made a commitment to uphold the freedom of the press and of expression.

7 Mr. Benjamin secured sponsorship for the programme from a company owned by the leader of the opposition, the inaugural programme, “Talk Your Mind” was first aired on 19 ^th October, 1994.

8 The programme was aired on Wednesday evenings for one hour, between the hours of 9:00 p.m. and 10:00 p.m., with a discretion by the Director of Broadcasting to extend the duration of any programme depending on the interest shown in that programme.

9 Anyone could call into the programme and was not required to identify himself. Callers were able to express their views on the topic of day with openness and frankness. Slanderous remarks, personal abuses or personal attacks were not tolerated by the host.

10 The learned trial judge at page 4 of his judgment wrote:

“The value of this radio programme cannot be appreciated unless one understands the context in which it operated. One newspaper is published in Anguilla. It is called “The Light”. There are two privately owned radio stations on the island. One of them is a religious station. Radio Anguilla is the only publicly owned electronic medium. At the time that it commenced, “Talk Your Mind” was the only inter active radio programme in Anguilla”.

11 Sidney Gumbs, one of the respondents, stated on oath that “Talk Your Mind” enjoyed a wide listening audience in his community. On Wednesdays the villagers of his neighbourhood would remind each other of the forthcoming programme. They would often congregate to listen together and to discuss the programme as it unfolded. Mr. Gumbs called in regularly and was able to make his own contribution to the issues at hand.

12 For Mildred Vanterpool, the other respondent, “Talk Your Mind” became a necessary part of life in Anguilla. It knitted together the community. She too was a regular listener and caller. As she went about her daily chores she would note topics and issues raised by her neighbours and undertake personally to inform Mr. Benjamin of these subjects so that he could deal with them on air. As a result of calls made to the programme by her, corrective action was taken by the responsible authorities regarding such matters as garbage being deposited at the beaches; young men loitering at the comprehensive school; disaster preparedness; and the condition of some of the roads in the island.

13 It seems that as a result of continued criticism of the government by callers to the programme, in about July 1996, the Minister of Information suggested to Mr. Benjamin that the programme should be changed from a “call-in” programme to a panel discussion only. The Minister also expressed the view that since the radio station was government station the programme should be slanted to promote the government of the day. Mr. Benjamin disagreed with the views expressed by the Minister and pointed out to the Minister these views were not in keeping with good journalism and his pre administration expression of opinion that the radio station should “be freed” up for open access and discussion.

14 Shortly, thereafter the minister directed that “Talk Your Mind” be discontinued. This direction was complied with and another programmes, “On Line” ostensibly a substitute was put in its place.

15 There was widespread disapproval and condemnation by the discontinuance of the programme. Ms. Vanterpool, the second named respondent approached the first named appellant as well as the Minister of Finance. She explained to them the hardship which the community was experiencing. The first named appellant promised the second named appellant that he would have the programme resumed without further interference.

16 The Minister of Information also gave Mr. Benjamin a verbal assurance that he would not seek to interfere with the programme further and that it would be maintained in its original format.

17 The Minister also apologised in writing for remarks made by him about Mr. Benjamin in a radio interview on August 9 ^th, 1996. In the letter of apology the Chief Minister referred to Mr. Benjamin as “my government foremost legal adviser” and that they would continue to rely heavily on his legal expertise.

18 In October the programme was reinstated with the format remained unchanged. The first guest on the programme was the Chief Minister who is also Minister of Information. The Minister commented that “Talk Your Mind” should have been on the air a long time ago and that it was not supposed to be off the air for such a long time.

“Talk Your Mind” of 16 ^th July, 1997 centered on a lottery that had been recently introduced in Anguilla, the operation of which had become very controversial. The church and the community were opposed to the lottery. On the programme of 16 ^th July, 1997 the operation of the lottery was criticized by callers to the programme, “Talk Your Mind”. Mr. Benjamin made comments in response to a caller'squestion about whether the lottery was legal or illegal. Mr. Benjamin gave as his view that the lottery was illegal.

Immediately thereafter a person called into the programme identifying himself as Todd Washington, Vice President of the Anguilla Lottery and Gaming Company. He refuted the view that the lottery was being operated illegally. Lengthy discourse ensued between Mr. Washington and Mr. Benjamin who held his personal view that the lottery was being operated illegally.

The following day Mr. Washington telephoned Mr. Hodge and complained that he had not had equal time to respond to the allegations made on the radio.

Shortly thereafter an American law firm sent by telefax a “formal notice” of the intention of the Anguilla Lottery Gaming Company Limited to sue Radio Anguilla and Mr. Benjamin, for defamation, malicious intent to injure and destroy the economic interests of the company in Anguilla and for other serious tortious actions”.

19 This letter was brought to the attention of the Minister of Information. Mr. Hodge was then instructed that as a result of the threat to sue Radio Anguilla the Ministers of Government had collectively agreed that “Talk Your Mind” should be suspended until further notice.

20 On 21 ^st July, 1997 after the announcement was made of the decision to suspend “Talk your Mind” Mr. Washington telephoned Mr. Hodge informing him that in light of the decision taken by Government in suspending the programme he would no longer be instituting legal action against the radio station. This was confirmed by letter of even date.

21 Since the suspension of the programme, Mr. Benjamin spoke with Mr. Hodge on several occasions about...