Developer wins defamatory lawsuit against activist

(CMR) The Grand Court has ruled that Facebook posts made by environmental activist Linda Clark about the developer of Barkers Beach Resort last year were defamatory as Morne Botes was identifiable in the thread of comments that followed the posts.

While Clark did not name Motes in her posts, Justice Allistair Walters said he was identified in the Facebook thread and that Clark did not seek to deny it was him when his name was posted in a screenshot in one of the comments.

“The fact that the Defendant left the screen shot identifying the Plaintiff in the thread without qualification or without removing it and then went on to post the Second Post would, in my view, leave the hypothetical reasonable reader in no doubt that it was the Plaintiff to whom the Defendant was referring. In my view, the action or inaction of the Defendant in effect endorsed that position.”

Justice Walters

Morne Botes had filed claims for damages for libel against Clark in June 2021 in connection with two posts made and published on Facebook on 8 May 2021 in the group created by the defendant called “Cayman Development Watch.”

According to court documents, the defendant created the Facebook group  “to facilitate the expression of views about development in the Cayman Islands amongst a limited number of like-minded individuals and concerned citizens of the Cayman Islands.”

One of Clark's posts accused a developer of having projects popping up all over the island without planning permission, adding that this was a practice for money laundering:

The defendant initially argued that the post did not name Botes and so could not be defamatory. The preliminary case heard by Justice Walters was to determine if Motes was identified in the posts and eventually if libel was committed.

Justice Walters said that the plaintiff was not named in the First Post, but it seems clear that either the Plaintiff himself saw the First Post or someone who read the First Post knew or assumed that it was referring to him and sent him a link to it.

“If the latter, it is not clear whether that was because the person in question knew that the Plaintiff was involved with the development but, as I have already noted, this is a small community, and I think that it is likely that this would have been the reason for the link being sent. So at that very preliminary level, in my view, the Plaintiff was identified to the hypothetical reasonable reader,” he said.

A comment made under the first post by a member of the group identified as AM  stated that Botes messaged this person regarding the initial Facebook post. The person, who identified Botes as the subject of the initial post, posted a screenshot of the message from Botes with his name visible.

The judge stated that while the plaintiff sent messages to AM, he did not post those as comments in the Facebook thread.

Since Clark did not name Botes, the judge stated that “after AM posted her comment with the messages from the Plaintiff, it was, in my view, clearly open to the Defendant to clarify the First Post or otherwise make it clear if she was or was not referring to the Plaintiff.”

Justice Walters said as the administrator of the Facebook group, Clark encouraged the publication of the material.

“In my view, the assertions by the Defendant about the Plaintiff are blunt, not disguised, and stand out starkly from the First and Second Posts. As such, I think that they would have been quite clear to the hypothetical reasonable reader even when accepting that they would have approached the thread in an impressionistic and casual way,” Justice Walters stated.

Justice Walters pointed out that the words used in the posts questioned the legitimacy of the developer and suggested that the developer is someone who would take advantage of the corrupt behavior of others. He ruled that the words used by the plaintiff were defamatory.

Each party has been instructed to address the judge on the question of costs.

The defendant was represented by Mr. Rupert Wheeler of KSG, while Mr. Colm Flanagan of Nelsons represented the plaintiff.