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President of the Press Association of Jamaica (PAJ), Desmond Richards has passionately welcomed the Government’s decision to review the country’s libel laws, to give the Press more power to uncover public abuse and the mishandling of power.
“This is long overdue. The reform of the libel laws will allow the press to do its job more effectively and will empower journalists to protect the public interest,” the PAJ President says in an interview with JIS News.
He says the present libel laws have a chilling effect on freedom of expression and serve as a disincentive to investigative journalism.
“A news organization in this country could be brought down by one libel suit,” he observes. “How many news organizations could pay out a $30 million award and open the next day? In any true democracy, the oxygen is freedom of expression. Our libel laws are part of our colonial legacy,” he adds.
That’s not just rhetoric. The facts speak for themselves: The Libel and Slander Act became law in 1851. That law was amended and supplemented by the Defamation Act of 1961, with both of these laws being amended in 1963 and 1969. Our defamation law developed from the thinking of the English Middle Ages, when defamation was a criminal offence. The defamation laws were largely developed to protect the English nobility from criticism.
In the 1930s two well-known anti-colonial champions were charged with criminal libel: Marcus Garvey in 1930 and Leonard Howell in 1933.In the election campaign, the Jamaica Labour Party, which now forms the Government, pledged in its manifesto that if elected it would “modernise the laws relating to libel and slander, so that those engaged in corruption can be easily exposed and brought to justice.”
In his inauguration speech in September 2007, Prime Minister, the Hon Bruce Golding, reiterated that commitment by pledging to, within 100 days, start the process to “review the libel and slander law to ensure that it cannot be used as a firewall to protect wrongdoers.” In December, he established a broad-based, 12-member committee, chaired by Justice Hugh Small, to carry out the review.
The committee’s task is to recommend changes necessary to strengthen good governance and promote greater transparency and accountability in Government. The recommendations are intended to:. Support the principle of freedom of the Press.. Prevent the use of laws relating to libel, slander and defamation being used to suppress information to which the public is reasonably entitled.. Impose appropriate burden of accountability on public officials holding public trust and,. Provide reasonable protection against false and damaging publication.
The committee is comprised of representatives from the Jamaica Bar Association, the Media Association of Jamaica, the Press Association of Jamaica, Jamaicans for Justice and the Opposition People’s National Party.
Addressing the issue of the importance of the libel review being carried out, Justice Small says “the Constitution protects freedom of expression as one of the fundamental human rights. Freedom of expression plays a vital role in the democratic process. Without the free flow of information and ideas, the public cannot formulate opinions about its Government, elected officials and other matters of public interest.”
Agreeing with the President of the Press Association Jamaica on “the chilling effect” of the libel law on freedom of expression, Justice Small says the term is actually an expression in law, which describes a situation where speech or conduct is suppressed or limited by fear of penalty at the hands of an individual or a group.
For example, he says the threat of a libel suit might encourage self-censorship and hence “have a chilling effect on free speech.” Justice Small notes that “one of the tools that aggrieved persons use is the filing of defamation actions to stifle discussion of public issues where there are allegations of corruption. But I don’t believe that civil actions should be used as a manoeuvre for retaliation against members of the public or the Press for performing their constitutional and democratic responsibilities.”Mr. Small says as the law now stands, the burden of proof is on the press to demonstrate the truth of statements made with respect to allegations of corruption. “Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt as to whether it can be proved in court, or fear of the expense of having to do so.”
Justice Small is quick to add, however, that the committee is not unconcerned about the issue of protecting people’s reputations. He believes there should be a balance. “Defamation laws should provide a balance between the fundamental right to freedom of expression and the protection of reputations against untrue statements, which injure a person’s reputation,” he says.
Mr. Small is careful to emphasise that the committee’s work is not to “encourage recklessness and journalistic irresponsibility or malice,” but to ensure that “no obstacles are placed in the way of the press carrying out its primary responsibility of serving the public interest.” He says the committee’s work is to give greater strength to the fight against corruption and the campaign for greater integrity and probity in public life.
“We want to ensure greater flows of information, freer access to information and more freedom for citizens to express themselves through letters to the editor, through the call-in programmes and other media fora, where they can freely express themselves without fear of being muzzled by unnecessarily restrictive libel laws. We want to widen and deepen public discourse in Jamaica,” the distinguished jurist and former Government Minister says.Mr. Richards also emphasizes that the press is not seeking a blank cheque to spend its credibility with the public. “The press is not seeking any special privilege or any special protection,” he stresses. “We simply want to assist the process of giving expression to the people’s views and in pursuing their interests. We want to clear the roadblocks to enhance freedom of expression,” he adds.
He says that the Association is working toward a Code of Conduct for the Jamaican media, and the PAJ is in favour of an independent Press Council, which would monitor standards and conduct in the media.
“We believe in having a press council, as exists in other countries where complaints against the media can be addressed and properly dealt with. We believe in journalistic responsibility and standards. We are not seeking any licence to damage people’s reputation,” he assures.
The recently published book, ‘The Problem of the Media’ says, “democratic theory posits that society needs journalism to perform three main tasks: To act as a rigorous watchdog of the powerful and those who wish to be powerful; to ferret out truth from lies; and to present a wide range of informed positions on key issues.”
The work of the Libel and Slander Review Committee is to ensure that the Jamaican press is strengthened in that core mission.