A case testing the limits of freedom of expression and social media publications in the Cayman Islands appeared in civil court Wednesday.
Cayman Marl Road’s Sandra Hill, providing her own defence, has described the case as a “David and Goliath” scenario, pitting a community news blog against a “millionaire Cayman resident”.
Blake Ducharme and Black Gold Investments filed suit last month against Hill and her website, calling for a permanent injunction against publication of an allegedly libellous article regarding firearms and customs duty offences, published 13 July.
Hill has been ordered by the court to remove the article, pending legal proceedings. She has not complied, however, and republished the original article on her redesigned website and has subsequently published further articles and podcasts on the topic.
Justice Ian Kawaley recognised that media workers have a right to feel suspicious about attempts to limit free expression, but he pointed out legal problems with how the story about Ducharme has been told.
“The legal problem is there is one version of a story being told by Ms. Hill …. But there is another version that appears to be substantially credible and Ms. Hill is only publishing one side,” Justice Kawaley said.
“It’s one thing for a journalist to only have one side. It’s another thing for a journalist, given another side, to maintain a one-sided view.”
Hill argued that she did reach out for comment from Ducharme.
“He thought it was a hoax and he wasn’t willing to say anything until we got documentation,” Hill said, adding that she published content including a response from him on Tuesday.
The plaintiff, represented by Ogier* partner Marc Kish, argued that subsequent publications have “tried to justify the initial article rather than setting the record straight. … The message that comes across loud and clear from the broadcast yesterday [13 Aug.] is that Mr. Ducharme is using his means to instruct attorneys to … pressure CMR and Ms. Hill personally to bring her into court”.
Kish said his client went through the initial article carefully to find ways to redact it but, “arrived at the conclusion that the way the article was written makes it impossible to do that”.
Justice Kawaley said the case touches on the conflict between social media and laws regulating traditional media such as newspapers.
“The law has not yet fully caught up with the popular social media culture, and it seems to me that there is an assumption that is quite widely held that you can say almost anything online and the normal rules that might apply to an old-fashioned newspaper don’t apply in the digital world,” Kawaley said.
“Unfortunately, it seems to me there is a tension between the popular conception of freedom of expression and the legal conception of freedom of expression.”
Justice Kawaley and the plaintiff grappled with an appropriate response to Hill’s defiance of a court order to remove the publication in question.
“I know Ms. Hill has said she is prepared to go to prison,” Kish said. “That would be disproportionate to us.”
He mused over the difficulty in imposing a fine, given that the breach of the court order is ongoing.
“What seems to be the case is that she is fixed in her mind that she is addressing a wrong, and that she is justified on that basis,” Kish said.
“In fact, it has crossed the line and in that respect, it needs to be dialled back.”
Justice Kawaley questioned if a sequestration order – taking custody of the defendant’s assets – would be more appropriate.
Hill said such an order would be a waste of the court’s time because, “there is nothing there. … I do accept that committal is the more logical thing here because there are no assets for them to have”.
She added that she would be happy to go to trial.
Kawaley pointed out that the court can refuse to hear her case, given her ongoing contempt. He said that while he can understand her defence of freedom of expression, he did not understand her unwillingness to comply with an interim order.
“If you want to be in the business of journalism, no matter what form it is, whether it is internet or newspaper, the only way you can function … is really by functioning within the law, unless you want to become a revolutionary,” Kawaley said.
“What journalists normally do … is pick their battles and to not run afoul of the law in an unnecessary way.”
Hill took issue with the injunction, arguing, “Any and everyone you write about will jump up and say it is defamatory and get an injunction …. It doesn’t appear to require much more than hiring a lawyer.”
She said an ongoing question remains: “Why does it appear there are different means of justice for different people?”
Hill has argued that wealth and power appear to play a role in how justice is administered in the Cayman Islands and that other cases regarding firearms have been handled differently than in Ducharme’s case.
To compromise on the issue, Kish suggested the story in question be taken down and that a statement be drafted explaining why the story has been removed and that the court has not come to a final decision on the matter.
Hill contended that this scenario would have the same result as the original court order to remove the publication.
“Lawyers always seem to have [the] upper hand on how people will view a situation,” she said.
“A statement [drafted by the plaintiff] would go above my readers’ heads and they probably wouldn’t understand what was being said.”
The justice added that while Hill has the right to persuade the court that an interim order should not have been made, she does not have the right to defy a court order.
“You do have to think beyond this case and find a way to educate yourself about what the law permits and what it doesn’t,” he said.
The matter was adjourned until 4pm on Wednesday, after the Cayman Compass print deadline, to determine if the opposing sides could come to an agreement.
*Editor’s note: The Cayman Compass is owned by Ogier partner James Bergstrom.