No price too high for media freedom
The parent company of The Royal Gazette has spent close to $450,000 on a legal battle with a “self-described figurehead” of billionaire Robert Brockman’s alleged tax evasion scheme.
Jonathan Howes, chief executive of Bermuda Press (Holdings) Ltd, said the company would, if necessary, continue the fight for press freedom all the way to the Privy Council in the civil case initiated by Evatt Tamine.
“Independent journalism is a key component to our democratic process, and the public have a right to know,” said Mr Howes, who is also the publisher of The Royal Gazette.
“Individuals and organisations who wish to suppress the media need to know that The Royal Gazette will fight for the constitutional right of freedom of expression, which encompasses freedom of speech and press freedom.”
Mr Tamine, an Australian lawyer, worked in Bermuda for Texan software mogul Mr Brockman, who allegedly committed tax fraud on an “unprecedented scale”, according to the US Government.
A US judge’s opinion from September last year said Mr Tamine was Mr Brockman’s “nominee, a self-described ‘figurehead’ who served as the nominal trustee or director of Brockman’s offshore entities”.
After the Fairylands home he shared with his Bermudian wife and family was raided by Internal Revenue Service agents and the Bermuda Police Service in September 2018, Mr Tamine became a co-operating witness in the US Government’s investigation of his former boss.
The legal case involving The Royal Gazette hinges on an affidavit Mr Tamine swore in July 2020 in relation to civil proceedings in the Supreme Court of Bermuda about the A Eugene Brockman Charitable Trust, which is said to have assets of about $6 billion.
The court file concerning the trust proceedings was sealed by Puisne Judge Shade Subair Williams, but US prosecutors working on the criminal investigation of Mr Brockman obtained a copy of Mr Tamine’s affidavit and filed it with the United States District Court for the Southern District of Texas, making it publicly available.
Mr Tamine objected to The Royal Gazette including information from the affidavit in articles published on September 16, 2021 and he won a temporary injunction from Puisne Judge Larry Mussenden.
BPHL challenged the gag on the grounds that the affidavit was in the public domain, but Mr Justice Mussenden again ruled in favour of Mr Tamine in January last year.
A panel of judges at the Court of Appeal heard BPHL’s further challenge last month and their decision is pending.
Much of the detail contained in Mr Tamine’s July 2020 affidavit is contained in another affidavit he swore the following year, which is referenced extensively in a May 2022 Supreme Court ruling from the Chief Justice.
On that basis, the Gazette today republishes the articles it removed from its website in September 2021 to comply with the temporary injunction. The republished articles contain nothing from the July 2020 affidavit, which was not also in Mr Tamine’s unsealed 2021 affidavit.
Mr Howes explained why BPHL was still pursuing the legal case, even though the Gazette no longer relied on the July 2020 affidavit for its reporting.
He said: “It is the principle that’s at stake here. We believe it’s crucially important that on behalf of our readers — the public — we take a stand about the media’s right to publish information which is already in the public domain.
“We were ordered to take down material from our website which was available elsewhere on the internet to anyone interested enough to find it and we believe that letting such a precedent stand would have a chilling effect on press freedom and the public’s right to know in Bermuda.”
Mr Howes added: “There are financial implications that flow from our decision to contest the litigation and we take those very seriously on behalf of our shareholders, our staff and the wider community, whom we serve as the island’s only daily newspaper.
“However, we are deeply committed to seeing this through because we believe it is the right thing to do.
“We can’t pre-empt the Court of Appeal’s decision, but we are not averse to taking this case to Bermuda’s highest court of appeal in London.”
The CEO said he strongly disagreed with the assertion from Mr Tamine’s lawyers — which Mr Justice Mussenden accepted — that the website on which the affidavit was published was not a publicly accessible website.
“While I have tremendous respect for our legal system, the concept of restricting access to information in a democratic society is blurred in this age of global information access and sharing via the internet,” he added.
He said BPHL had continually fought for press freedom, including in 2015 when it won the right in a landmark ruling to publish affidavits sworn into evidence during a legal dispute between Michael MacLean and the Bermuda Government.
Adam Speker, KC, representing Mr Tamine, told the appeal judges that although the affidavit was published on a US court website, which required users to register to access records, it was not known how many people had downloaded it from there and it “wasn’t, in fact, of interest to anyone”.
