“[Gordon Pierre’s] defamation was done maliciously and with the conscious intent to injure and destroy [Lasana Liburd] in his workplace and personal life,” stated Master of the Supreme Court Martha Alexander, in her 17-page judgment on 7 May 2019. “This court viewed the defendant’s defamatory action as actuated by malice, and calculated to increase his own mileage in the sport journalism industry at the claimant’s expense, with reckless disregard for the injuries caused.
“He used his voice as a bully pulpit, to react and incite outrage against the claimant for daring to criticise the sport of football and its officials in this country or to expose their action.
“Online postings of the defamatory labels of the claimant were not enough to calm or assuage the defendant’s sporting rage, so he saw it fit to utilise the tagging tool to gain increased attention and visibility for his defamation. In all the circumstances, the defamation was reckless and there was no evidence to the defendant’s belief in the truth of it.
“The abuse of Facebook must be stopped. Indeed, persons who use online platforms for virtual mischief must be faced with the consequences of such ill-advised public airing of their malicious attacks.”
The following are excerpts from the ruling of Master of the Supreme Court of Trinidad and Tobago, Martha Alexander, in the case of Wired868 managing director and journalist Lasana Liburd (claimant) versus then Trinidad and Tobago Football Association (TTFA) press officer Gordon Pierre (defendant).
Attorney Gabrielle Gellineau represented Liburd while Pierre did not appear and was unrepresented. Alexander gave Pierre 48 days to pay: TT$450,000 with interest at the rate of 2.5% per annum from 25 May 2018 to 7 May 2019; exemplary damages of TT$100,000; legal costs in the sum of TT$45,631.28:
The parties in the matter were journalists, with both being involved in sports journalism. They were also relatively well-known and respected public figures in that sphere.
The dispute that led to them being before this court was defamation, with [Liburd] alleging injury to his reputation, character and business at the hands of [Pierre]. The civil wrong committed against [Liburd] played out in full public view, including on Facebook and other social media platforms.
… Both parties have recognisable journalistic footprints and presence locally, regionally and with international bodies. [Liburd] brought this defamation action, setting out several occasions on which libellous attacks occurred. The libellous words unfairly criticised [Liburd] professionally but also personally and were done in a public online forum, without regard for injury caused. It led [Liburd] to seek judicial intervention, which brought him to this court to determine his compensation.
The defamation claim was filed on 24 May 2018 and he sought injunctive relief, aggravated and exemplary damages. [Pierre] initially entered an appearance to the claim but failed to defend the matter or to participate any further in the proceedings, so judgment was entered against him on 29 June 2018.
When the matter was sent to this assessing court, [Pierre] refused service so the assessment of damages proceeded undefended. This meant that the claimant’s evidence went in uncontested.
(Evidence)[Liburd] gave evidence that as part of his job, he would write or be asked to comment on football, including the local administration and facilitation of it by TTFA. His job detailed also the exposure of misbehaviour and possible illegal or criminal conduct in the sporting world, which had to be done in a credible and fair manner.
Over the years, he had built up a reputation of integrity, good character and high journalistic standards. These qualities and characteristics were integral for securing employment with international media houses, obtaining interviews and for his professional survival, as a public commentator on sporting issues.[…] The defamation that was the subject of this action went, therefore, to the core of everything that he stood for or had laboured to represent in his professional and personal life.
The present matter was not about a case of a single defamatory comment or even one where an apology followed. The defamatory comments were also not voluminous, but were vicious, repeated, targeted and in full online public glare, utilising the popular platform of Facebook for maximum effect.
The genesis of the defamation followed an article published by the claimant on Wired868 webpage on 16 March 2017 titled ‘Why the TTFA’s self-serving, classless behaviour remains the Warriors’ biggest hurdle’.
This article was posted also on Wired868’s Facebook page and discussed the recent spate of activities carried out by officials of the TTFA. The discussion mentioned the defendant’s attendance and conduct, when he showed up ‘female friend in tow’ at the National Soccer Team Pre-Tournament Camp in Tobago. It was stated also that [Pierre] could not travel with the squad to the Concacaf Games in Bahamas, as he did not have a valid passport.[Liburd] then posted the link to this article on the Wired868 Facebook Group, which [Pierre] used to respond to its contents. It was this response, by the defendant, that was the first of many to contain defamatory statements about the claimant. […] Apart from posting these defamatory statements on his Facebook page, the defendant took the additional step of tagging the Facebook accounts of the claimant and prominent football stakeholders. By this action, the defendant sought to attract the attention of these important football backers, while giving windows to their Facebook followers to view the defamation. […] After the issuance of the claim for defamation, the defendant continued a sustained campaign of posting disparaging words about the claimant, attacking his professional competence on the Wired868 official Facebook page. Indeed, the defamation called into question the ‘journalism’ being practiced by the claimant, calling it something that ‘passes for journalism’. It was the uncontested evidence of the claimant that often, the defamation was accompanied with threats.
The civil tort of defamation would exist once there was an attack on the good reputation of a person without any lawful justification or excuse. So it would crystalize where words or materials published to a third party tended to lower a man in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession or to injure his financial credit.[…] Damages in a defamation action would be compensatory and vindicatory in nature. Thus the award would aim to compensate the claimant for distress and hurt feelings; to compensate him for any actual injury to his reputation (proved or which might reasonably be inferred); and to serve as an outward and visible sign of vindication.
In its bid to satisfy this threefold purpose, an assessing court would consider the specific factors of gravity, scale, believability by readers, impact on the claimant’s feelings, reputation or career and any aggravating or mitigating factors.
(Impact on the claimant’s feelings, reputation and career)[…] The oral evidence of Ms [Lou-Ann] Sankar was particularly poignant and credible as she described how the allegations wounded and deflated her [as Liburd’s common-law wife]… She described the pain she underwent both when she learnt of the defamation and threats to his safety.
As a witness, she was truthful and it was easy to accept her description of the fear and worry, which entrapped her, at the thought of the danger to which the claimant was exposed. She decried the defamatory words as being antithesis to the man she knew the claimant to be, so they caused her untold, emotional pain.
Then his mother [Yolanda Morean’s] evidence spoke to the emotionally cutting impact of the allegations on their family.[… ] The court also […] considered the evidence led by [Liburd] as to the importance of his career and the injuries effects of the defamation on his reputation. […] Considered in particular was the act of [Pierre] in tagging persons within the sporting fraternity to ensure reputational injury and so maximise the damage to the claimant’s business and career. The tagging was systematic, widespread and targeted online friends and associates of the claimant so was particularly damning, as the claimant depended on the sporting fraternity of leads, information and referrals to keep his family run business buoyant.
This was viewed as a calculated and major blow to the reputation of [Liburd] and his business. In this regard, it was considered that [Pierre] held a position of respect in the sports world, with a voice that was recognised and listened to by others, so that the allegations would have had some prominence and credibility in the sporting fraternity specifically, as well as in the journalistic circle.[…] [Liburd] was a recognisable public figure in sports journalism, so the hurt, humiliation and distress he felt were important to factor into the award. [Liburd] was neither a politician nor performer but in small societies as ours, sports personalities are revered and their views respected, so the defamation would undoubtedly have caused a particular furore in the local world of sports and journalism.
The thought of his reputation percolating into the negative consciousness of the sports world would have caused its own peculiar brand of pain to this claimant. When combined with the impact of the allegations on his family, this would have been a source of untold distress for the claimant.
The fact that [Liburd] valued his professional reputation was undoubted; that his business played a critical role in sports commentary was unquestioned; and that the allegations seriously wounded him in both respects were accepted.
It was concluded that for the damage to his reputation, the award must seek to fairly and reasonably compensate the claimant.
In so doing all the circumstances would need to be factored in, including the personal sensitivity to the value of his reputation as well as the social impact of the defamation in small societies, where local personalities hold a particular position of respect in the minds of the people.
Defamation causing reputational injury would often be replayed, salivated over and cemented into society’s consciousness; lingering on long after the subject might have changed. A damaged reputation is often irreversible. In the regard, this court noted the call of Kokaram J that this exercise might require ‘a special assessment of and sensitivity to the value of reputations and a good name in small societies such as ours.’
(The extent of the publication)[…] The damage caused by the publication via the internet would neither have ended when the defendant made his last defamatory post nor could it be wiped off from the virtual online memory base.
The damage, even where the posts have been removed physically from the web, would be a permanent fixture in the infinite memory of online engines. Such was the damage done to the reputation of the claimant, at the hands of the defendant, who in tagging numerous persons ensured that they and their followers were privy to the posts but also that the multiplication of his defamation was infinite.
As regards online defamation, particularly on Facebook, the extent of the publication could never be pinned down or known; neither could it be pulled back nor its spread stemmed.
A defendant who would venture onto these online platforms and social media sites to defame another must be taken as having done so with the full understanding that his defamation was unstoppable, incurable and permanently capable of destroying a person’s reputation.[…] This court also acknowledged that while Facebook has a widespread reach, the tagging function would have its own peculiar carriage of the defamation, Where this tagging effect was done deliberately, targeting specific sports personalities and high rollers in the industry, this court must weigh this into its assessment.
The tagging effect tooled and retooled Facebook users with the power to spread and so extend the publication of the defamation. That the defamation currently engaging this court has gone worldwide was accepted.
(Matters of aggravation or mitigation)
This court inferred that [Pierre] knew or reasonably ought to have known, and so intended, for the defamatory words to attract maximum attention and do major damage. He was a journalist, a well-known sports enthusiast, a blogger and social media commentator so was no stranger to the reach of online posts. This was his world and he understood the impact of his actions.
He deliberately tagged persons invested in sports locally and internationally. He deliberately set out to destroy the home, relationships, business, integrity and reputation of the claimant.
It was presumed that he understood that with the position and power of influence he occupied in the sporting industry that credence and weight would be attached to his comments.
He deliberately held himself out as also having the evidence (police station diaries and photographs no less) to support his remarks. He then deliberately, by employing the tagging tool, weaponised his defamation. His defamation was done maliciously and with the conscious intent to injure and destroy the claimant in his workplace and personal life.
This court viewed the defendant’s defamatory action as actuated by malice, and calculated to increase his own mileage in the sport journalism industry at the claimant’s expense, with reckless disregard for the injuries caused.[…] Further the defendant never apologised but continued unhindered in his own career, while the claimant was left to deal with the professional and personal carnage caused by the defamation. The lack of an apology served only to fortify this court in its position that an award for aggravation as warranted. [Liburd] averred that several requests were made for an apology but none was ever forthcoming. Instead, [Pierre] acted deliberately and in a sustained manner to ridicule and jeer at the claimant. He used his voice as a bully pulpit, to react and incite outrage against the claimant for daring to criticise the sport of football and its officials in this country or to expose their action.
Online postings of the defamatory labels of the claimant were not enough to calm or assuage the defendant’s sporting rage, so he saw it fit to utilise the tagging tool to gain increased attention and visibility for his defamation. In all the circumstances, the defamation was reckless and there was no evidence to the defendant’s belief in the truth of it.
The abuse of Facebook must be stopped. Indeed, persons who use online platforms for virtual mischief must be faced with the consequences of such ill-advised public airing of their malicious attacks.
An award of exemplary damages appropriate in the context of this case would be granted against the defendant, as deterrence and punishment.
In arriving at the quantum, this court aimed for fair compensation that would do justice by the claimant for the wrong visited upon him. In the context of this case—where the defamation was mounted in the sports industry, via Facebook, and the defendant saw it fit to tag the sports’ elites and enthusiasts to destroy the reputation of the claimant—an award of $450,000 for damages inclusive of aggravated was felt appropriate. To this would be added an award of exemplary damages of $100,000, which should operate to punish and deter the defendant from his egregious abuse of online platforms.
It is ordered that: (a) the defendant do pay to the claimant damages for defamation in the sum of $450,000 with interest at the rate of 2.5% per annum from 25 May 2018 to 7 May 2019 and exemplary damages of $100,000; (b) costs of the assessment be paid in the sum of $45,631.28; and (c) a stay of execution of 48 days is placed on this order.
Cases considered in judgment: Ricardo Welch ($700,000) Geeta Ragoonath ($360,000 from Ancel Roget), Prophetic Missions International ($250,000 from Sapphire Carter), Faaiq Mohammed ($220,000)