Privy Council: Hector v. Attorney-General of Antigua and Barbuda

(1990) 2 AC 312 (Judicial Committee of the Privy Council)

The applicant was charged with publishing ‘false news’ contrary to public order legislation.

Theme:	Other content restrictions
Sub-Issues:	False news
Test:	Necessity
Penalty:	Criminal conviction
Decision:	Violation of the right to freedom of expression (Section 33B of the Public Order Act 1972 held to be contrary to Sections 3 and 12 of the Constitution of Antigua and Barbuda); unanimous
Jurisdiction:	Antigua and Barbuda (Privy Council)

Facts:

The applicant, editor of a newspaper, was charged with publishing 'a false statement' which was likely to 'undermine public confidence in the conduct of public affairs' contrary to public order legislation. If found guilty, he would be liable, upon summary conviction, to be fined up to $500, or imprisoned for up to six months.

Held:

The offence created by public order legislation constituted an interference with the right to freedom of expression, which was prescribed by law and pursued the legitimate aim of maintaining public order. The question at issue was whether the provision was 'necessary in a democratic society.'

Importance of Freedom of Expression

The Court emphasised the importance of freedom of expression in a democratic system:

In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to censorship of the most insidious and objectionable kind.

Necessity

The 'false news' offence under consideration criminalised the making of any statement "likely to cause fear or alarm in or to the public, or to disturb the public peace, or to undermine public confidence in the conduct of public affairs." The Court emphasised that such a provision would have the tendency to inhibit criticism of the government, which by its very nature tends to undermine public confidence in the conduct of public affairs. Such provisions are to be viewed with 'the utmost suspicion'. The Court stated that the offence with which the applicant was charged was an interference with his right to freedom of expression which could not be justified on grounds of public order; the phrase 'disturb the public peace' adequately provided for any threat to public order that the publication of such statements might cause, and the additional provision of 'undermining public confidence in the conduct of public affairs' was thus not necessary:

If... a particular false statement although likely to undermine public confidence in the conduct of public affairs is not likely to disturb public order, a law which makes it a criminal offence cannot be reasonably required in the interests of public order by reference to the remote and improbable consequences that it might possibly do so.

For these reasons, the Court found that the false news provision violated the right to freedom of expression and was unconstitutional.

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