A five-page long list of books, magazines, trade publications and periodicals – some of which are no longer even in print – remain against the law to import into the Cayman Islands. To do so is a crime under the Penal Code, Prohibited Publications Order [1998 Revision].
Banned publications is one of several areas involving speech, expression and religion that new Human Rights Commission Chairman James Austin-Smith believes the newly formed commission will review in the coming year.
“You do have to be careful not to expand [human rights] into everything, but one of the things that I think Cayman needs to look at … is prohibited publications,” Mr. Austin- Smith said. “It’s censorship.”
Banned books in the Cayman Islands include many texts on the various magical arts, often called “Obeah” in the Caribbean.
Some of the prohibited publications listed are: “The Book of Magical Art,” “Hindoo Magic and Indian Occultism,” the “Sixth and Seventh Books of Moses,” and the “Great Book of Magical Art.”
Others involve pro-communist publications such as the World Marxist Review, Chinese Literature Monthly and the Russia Today periodical.
“It’s a Cold War hangover, together with all this stuff about magic and witchcraft,” Mr. Austin-Smith said.
Also on the banned publications list involve pornographic magazines, including Hustler, many of which are available online today.
Mr. Austin-Smith said, with the current Bill of Rights in effect as part of the Cayman Islands Constitution Order , particularly section 10, which deals with freedom of conscience and religion and section 11, freedom of expression, the Cayman Islands has to be careful that some of these laws and regulations do not fall afoul of the modern legal context.
“There’s a tension between an individual’s right to do something on their own in the privacy of their own home and other things that are deemed detrimental to the community at large,” Mr. Austin-Smith said. “I’d be inclined to say that if someone wants the freedom to practice religion in their own home and it doesn’t harm anyone else, so be it.”
Long-standing laws in the Cayman Islands that allow for criminal prosecution and jail terms for those who publish, broadcast or publicly state untrue and damaging claims about another person should also be taken off the books, the Human Rights Commission chairman added.
Mr. Austin-Smith, who took over the commission in January, recently had his own brush with a local news publication that made what were accepted to be “untrue and defamatory” accusations concerning his representation of a criminal defendant – former University College of the Cayman Islands President Hassan Syed.
Mr. Austin-Smith sued the Cayman Reporter newspaper, eventually winning back his attorneys fees and a separate payment – made at his request – to the Cayman Islands Crisis Centre.
However, the human rights advocate said he did not, and would not, use the existing defamation statutes in the Cayman Islands Penal Code given that other remedies exist in these situations.
“My personal view is that criminalizing statements is a sledgehammer to crack a nut,“ he said. “If you’ve got the protection of the civil law, criminal libel is perhaps something that we need to move on from and probably don’t need anymore.”
Mr. Austin-Smith said it was not an issue the Human Rights Commission had considered, but that it could be addressed later in the context of protections of freedom of expression under the Cayman Islands Constitution Order.
“There are subsets of freedom of expression,” he said. “The question becomes … where do you draw the line?
“It doesn’t include the right to [falsely] shout ‘Fire’ in a crowded theater or to libel someone, for example.”
Cayman has other Penal Code statutes, including charges for “insulting the modesty of a woman” and various offenses that involve verbally “assaulting police” that could also be considered in a human rights/freedom of expression context, Mr. Austin-Smith said.
In late 2013, the Jamaican Parliament approved a bill to decriminalize defamation.
In addition to the repeal of criminal libel, the reforms approved there include the elimination of the distinction between slander [spoken] and libel [publication], introducing truth of the statement as a defense in court proceedings and that monetary damages in civil defamation cases would be made by judges rather than juries.
“There was a clear consensus in Jamaica among government, media, and civil society that criminal defamation laws are an archaic holdover from colonial times and threaten the press’s ability to report freely and in the interest of the people,” said International Press Institution Executive Director Alison Bethel McKenzie at the time Jamaica repealed the criminal libel law. “We urge regional countries to follow Jamaica’s courageous example.”
According to a 2012 review by the press institution, more than a dozen countries and territories in the Caribbean still maintain some form of criminal punishment for defamatory statements. Those include: the Bahamas, Barbados, Guyana and Trinidad and Tobago.
Actual use of those statutes is relatively rare. The press institute found only four countries in the Caribbean region where criminal libel cases had been brought within the past decade, including actions initiated in Cuba and Haiti.