Dwight Lambert v Minister Responsible for Telecommunications
| Jurisdiction | Bermuda |
| Judgment Date | 24 November 2017 |
| Neutral Citation | [2017] SC Bda 100 Civ ,[2017] SC Bda 100 |
| Date | 24 November 2017 |
| Docket Number | CIVIL JURISDICTION 2016: No. 199 |
| Court | Supreme Court (Bermuda) |
[2017] SC (Bda) 100 Civ
In The Supreme Court of Bermuda
CIVIL JURISDICTION 2016: No. 199
In the Matter of the Bermuda Constitution
And in the Matter of the Obscene Publications Act 1973
The Plaintiff appeared in person
Mr Michael Taylor, Attorney General's Chambers, for the Defendant
Whether the offences involving obscene articles in sections 3 and 3A of the Obscene Publications Act 1973 are in breach of section 6 (right to a fair hearing; right not to be held guilty of an act which was not an offence when it was committed) or section 9 (right to freedom of expression) of the Constitution because the definition of obscenity in section 2(1) of the Act is too vague for it to be reasonably foreseeable that an article is obscene
(In Court)
The Plaintiff seeks a declaration that the Obscene Publications Act 1973 (“the 1973 Act”) is unconstitutional. He does not suggest that the prohibition of obscene material is in principle objectionable, but rather that the definition of obscenity contained in the Act is too vague for it to be reasonably foreseeable whether an article is obscene. He contends that the offences contained in the 1973 Act that involve obscene articles are therefore in breach of the rights to a fair trial and to freedom of expression contained in sections 6 and 9 respectively of the Constitution.
In 2007 the Plaintiff was acquitted in the Magistrates' Court of three counts of importing into Bermuda obscene articles, namely pornographic DVDs, contrary to section 3(1)(a) of the 1973 Act. The offence was triable either way. So far as the Plaintiff and the Defendant are aware, that is the only prosecution ever to have been brought under the 1973 Act.
Some years later, the Plaintiff brought an action in the Supreme Court alleging negligence and breach of statutory duty under the 1973 Act by: (i) the Defendant in the present action; (ii) the Broadcasting Commissioners (“the Commissioners”); and (iii) the Director of Public Prosecutions (“the DPP”). In an ex tempore judgment dated 11 th June 2014, which was reported at [2014] Bda LR 60, Kawaley CJ struck out the claims as being obviously unsustainable causes of action. But in his conclusion he expressed sympathy for the Plaintiff:
“ Having said that, I do have considerable sympathy for the Plaintiff's general position. It does appear to me to be the case that the way in which the obscene publications are currently dealt with under the law does leave room for prosecutions to be launched in circumstances of doubt, where clearer and more modern rules enacted through regulations might well reduce the room for such doubt. And the courts should not really be exercising the function of policy-maker. The courts should be deciding prosecutions under the Act where it is clear that prosecutions should be laid.
34. And it does appear to me, admittedly on the basis of very limited information and a very cursory analysis of the Act and the only regulations that appear to be passed under it, that the Plaintiff's central grievance that the law is not up to date does have some substance to it.
35. Unfortunately, the particular legal route that Plaintiff has sought to channel those grievances through has no merit. And it is for these reasons that the Plaintiff's claim is struck out.”
The Chief Justice had earlier suggested at para 17 of his judgment that the Plaintiff might have a remedy under the Constitution:
“ So the broad picture, and the question of the way in which the Act interferes with the freedom of expression, which is protected by section 9 of the Constitution, is something that might be explored in the concept of an application for relief under section 15 of the Bermuda Constitution.”
So it was that almost three years later, and ten years after his acquittal, the Plaintiff issued an originating summons in which he sought various heads of relief against all three defendants in the previous action, including a declaration as to whether the 1973 Act was “ void” as of 2007, the year of his being charged and placed on trial.
The defendants applied to strike out the Plaintiff's claims. By an order dated 1 st September 2016, I allowed the strike out application save insofar as it related to the Plaintiff's constitutional claim against the Defendant. I also directed that the word “ unconstitutional” should be substituted for the word “ void” as more accurately reflecting the primary question which the Court would have to consider on an application under section 15 of the Constitution.
This is the judgment on the Plaintiff's application.
Section 2 of the 1973 Act defines obscenity. As originally enacted, the definition was the same as that in section 1(1) of the Obscene Publications Act 1959 (“the 1959 Act EW”) in England and Wales. Namely that an article shall be deemed to be obscene if its effect is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all the circumstances, to read, see or hear the matter contained or embodied in it. Section 2 was repealed and replaced by a new section 2 under the Obscene Publications Amendment Act 1980 (“the 1980 Act”). This was in turn repealed and replaced by another new section 2 under the Obscene Publications Amendment Act 1995. The section was amended by the Criminal Code Amendment Act 2007.
Since its repeal and replacement by the 1980 Act, section 2 has adopted a community standards test. The section in its current form provides in material part:
“ (1) An article shall be deemed to be obscene for the purposes of this Act if its effect, taken as a whole, is to outrage contemporary standards of decency or humanity accepted by the public at large in Bermuda.
…..
(3) A thing shall be deemed to be obscene for the purposes of this Act if it is child abusive material or child pornography within the meaning of Part X of the Criminal Code.”
“ Article” is defined in section 1(1) of the 1973 Act:
“ ‘article’ means any description of article constituting, containing or embodying matter to be read or looked at or both, any sound record, and any film or other record of a picture or pictures;”.
Section 176A of the Criminal Code provides that, for the purposes of Part X of the Code, “ child” means a person under the age of sixteen.
Section 3 of the 1973 Act provides that any person who: (a) imports an obscene article; (b) publicly publishes an obscene article; (c) has an obscene article for publication for gain; or (d) publishes an obscene article to, or in the presence of, a person under the age of 16 years, commits an offence. Section 3A creates an offence of advertising an obscene article. The definition of obscenity in section 2 applies to all these offences: there is not one definition applicable to articles used privately or intended only for private use by the defendant and another for articles which the defendant makes or intends to make public.
Section 4 of the 1973 Act provides that the Commissioners shall keep under review the operation of the 1973 Act with a view to ascertaining whether in their opinion any amendment of the Act is necessary or desirable, having regard in particular to any changes which there may be in the attitudes of persons in Bermuda; report to the Minister any amendment of the Act which they recommend; and advise the Minister on any other matter concerning the operation of the Act which he may refer to them.
Section 7 of the 1973 Act provides a defence of public good. Namely, that a person shall not be convicted of an offence under section 3 if it is proved that the importation or publication of the article in question is justified as being for the public good on the ground that it is in the interest of science, literature, art or learning, or of general concern.
Whether through legislative oversight or otherwise, section 7 does not state that this defence is available to an offence charged under section 3A. However, a prosecution brought under section 3A for advertising an obscene article in relation to which, had a prosecution been brought under section 3, a defence of public good could plausibly have been raised, might well be challenged as infringing the right to freedom of expression guaranteed by section 9 of the Constitution.
Section 8 of the 1973 Act provides that no prosecution in respect of an offence under section 3 or 3A of the Act shall be instituted except by or with the consent of the DPP.
Section 10 of the 1973 Act provides that the Minister may make regulations for the purpose of controlling the publication of “ salacious material” in or through magazines. Their purpose is to regulate the sale of material which is identified as “ salacious”, not identify material the sale of which is prohibited because it is “ obscene”. For if material is prohibited then there is obviously no need to regulate its sale. To date, the only regulations made under this section are the Obscene Publications (Classification and Restrictions as to Sale) Regulations 1981 (“the Regulations”), which impose restrictions on the sale of a number of magazine titles listed in a Schedule to the Regulations. Given that a wide range of salacious material is readily available over the internet, section 10 would appear to have been somewhat overtaken by modern technology.
The Plaintiff brings this application under section 15 of the Constitution. This provides that the Court may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of the Constitution to the protection of which the person concerned is entitled. The Constitution was established by the Bermuda...
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