Today, I am very pleased not only as Minister with Responsibility for Information, but also as a former practising journalist to be able to participate in a debate on a piece of legislation which has been significant to members of my profession.
For a number of years, members of the media fraternity have lobbed and fought for changes to our defamation and libel laws in order to more effectively carry out their duties as democratic watchdogs.
Let us have no equivocation about the importance of the media in a liberal democracy such as ours. This role is absolutely crucial and anything which strengthens this role, as this Bill seeks to do, represents progress and should be hailed.
As the esteemed Lord Bingham said, “The proper functioning of a modern participatory democracy requires that the media be free, active, professional and inquiring. For this reason the courts here (in Britain)and elsewhere have recognized the cardinal importance of press freedom and the need for any restriction on that freedom to be proportionate and no more than necessary to promote the legitimate object of the restriction”.
And the European Court of Human Rights has stated that “the pre-eminent role of the Press, in a state governed by the rule of law, must not be forgotten. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders… it thus enables everyone to participate in the free political debate which is at the very core of a democratic society”.
And in that landmark Reynolds vs. Times Newspapers Ltd (2001) case in Britain, Lord Nicholls of Birkenhead said: “At a pragmatic level, freedom to disseminate and receive information on political matters is essential to the system of parliamentary democracy cherished in this country…Without freedom of expression by the media; freedom of expression would be a hollow concept.”
That is a position with which this side agrees, Mr. President. Recognising that freedom of expression is expressly protected in our constitution, we assert that freedom of the press is integral to this constitutional right. And so this Defamation Act, 2013 represents an important step in our democratic journey. Let us note at this point, Mr. President that Jamaica already has an enviable record of press freedom, one that has been hailed internationally.
Just last year the highly regarded Paris-based Reporters Without Borders reported that Jamaica had overtaken Canada as the country which boasts the highest level of press freedom in the entire Western Hemisphere. In the 179-country ranking, Jamaica was ahead of the United States (32), Britain (29) Canada (20), Germany 17 and Switzerland (14). This is not what we are saying about ourselves. This is what the people who are recognized authorities on these matters are saying about us.
If you look at the highly authoritative Freedom of the Press report put out by Freedom House, you will also see that Jamaica ranks very high in terms of press freedom. I think both sides of this House can together celebrate the fact that whatever our differences and disagreements—and, in fact, our robust disagreements attest to our press freedom; but despite our sometimes raucous disagreements among ourselves, we are unified on the pivotal role a free press plays in a democratic society. So I know today we will send a united message to the nation as we debate this long-awaited Bill.
This Bill does a number of important things. First, it abolishes criminal libel. This is very important and sends an important signal of our high regard for freedom of speech. This abolition puts Jamaica in line with modern jurisdictions which have long abolished criminal libel. English defamation laws were originally designed to protect the nobility from criticism and to deliberately censor political debate. I am glad to see the back of this antiquated law.
And I am proud that it is under this political administration that it is finally being brought to fruition, though much work had been done from the previous administration. Indeed, I must pay tribute to the former administration of Mr. Bruce Golding who had established the Small Committee to reform our defamation laws, headed by Justice Hugh Small. But it still gives me particular delight that it is under this regime that it will be passed, and I am sure my colleagues on that side would not take that special joy away from me, while both sides share some of it.
But this Bill does away with criminal libel and, importantly also, it abolishes the distinction between libel and slander and establishes the single cause of action known as defamation. A very significant provision of this Bill is the change in the assessment of damages from the jury to the sole discretion of a judge. Awards by juries have been a sore and vexing point among media owners and media practitioners, especially in light of some very hefty awards which have been made locally. It has often been noted that some of the awards made by our courts have had a chilling effect on freedom of expression and press freedom, for those huge awards which could wipe out a number of media houses. They could also serve to intimidate pursuers of truth in the media.
Media owners and journalists have generally expressed a preference for having a judge assess damages, in all the circumstances. They have felt they would be more reasonable than juries. So this change in the law is something which has been strongly supported by the Media Association of Jamaica.
There is a disagreement, however, on the matter of whether there should be a cap on damages. It is one of the few areas where there is a disagreement with the Media Association of Jamaica and the Press Association of Jamaica, but our thinking, which is in line with that of the Joint Select Committee of Parliament is that we believe that the same confidence which is reposed in our judges to have them make awards for damages rather than juries is the same reasonableness we should accord them to make the actual assessment of the awards without setting a cap. We have confidence in the fairness of our judges and believe that they are people who are acutely aware of the importance of a free press in a democratic society and that they have the training, skills and orientation to make reasonable awards without the State imposing a cap on damages.
We simply say to our friends in the Media Association of Jamaica and the Press Association of Jamaica, let’s not go half-way with our judges: If we trust them to have sole responsibility for awards, let us not betray that confidence by hobbling them with caps. It’s an argument of consistency, we believe. But I say to let us focus on the big things that we agree on and the major advance which this Bill achieves.
Let’s talk, for example, of the introduction of the principle of innocent dissemination. This is especially important in light of the rapid transformation of media as a result of new technologies and new business models, as part of the information and communications revolution. And, in fact, one of our biggest libel awards locally had to do precisely with this—an innocent dissemination of a news report originating overseas through a wire service to which a local media house subscribed. We have learnt from that and heeded the media’s lobby. Of course, and reasonably so, if it is brought to the attention of the publisher that a particular piece of information on a website or an Internet source is defamatory and the publisher goes ahead and publishes it, he could not claim innocent dissemination.
Significant also is the introduction of new remedies, such as a declaratory order and a correction order. So that instead of seeking damages, an aggrieved person may simply want a declaration made by the media house that he was defamed or libeled or that what was carried about him was false. The Bill opens up this avenue of redress to the plaintiff rather than imposing costs on the media house. The correction order gives the courts the power to direct the terms of any correction made in favour of the claimant. This provision allows for more speedy resolution of issues, reduces the backlog in our over-stressed court system and, importantly, reduces the risks of penalties on media houses which make non-malicious errors of fact.
The time within which a defamation action can be brought has been slashed from six years to two years. This is another significant advance in this Bill over what currently exists. This will reduce a lot of anxiety in media houses and should better aid in the recovery and determination of truth, circumstances and context. The longer the time span, the more blurred the memories and recall. And members of that side should know how difficult it is to recall!
All in all, Mr. President, we have a Bill of which we all can be proud and one which advances our democratic rights and privileges. I close by addressing two important matters: The acceptance of the notion of “qualified privileged” in this Bill, rather than what has been called the Sullivan Principle, coined from that landmark US Supreme Court New York Times vs. Sullivan case of 1964.
The first point to make is that there are other robust democracies which have rejected the Sullivan Principle, including other Commonwealth countries such Britain, Canada, New Zealand, Australia and South Africa. It is certainly not the only model of press freedom, nor do we believe it is the one which best balances the interests of the press as well as citizens’ right to their own reputations. I fully concur with the view of Justice Cory of the Canadian Supreme Court who upheld the right of the individual, and I quote, “whether he is in public life or not, to his unsullied reputation, if he deserves it”.
People have a right to their reputation and, importantly, too, under our Constitution, everyone is equal under the law. Section 22 of our Constitution, which enshrines freedom of expression, says explicitly that that freedom is subject to laws which protect, “the reputations, rights and freedoms of other persons”. No institution or set of persons, whether they own a media house or not, should be free to sully or destroy the reputation of anyone— whether politician or peasant, business executive or bureaucrat. Every Jamaican must have a right to his good reputation, if in fact he possesses it.
As the Small Committee says, “Any legislation therefore that seeks to subject a class of persons—such as public officials—whose reputations are not subject to the same assumption as in the case of other members of society would deprive them of equal treatment section 13 of the Constitution guarantees.”
We have adopted in this Bill the principle of qualified privileged which gives the media special rights of investigation of public officials, while maintaining the balance of giving due regard for protecting reputation if it is deserved. It is this balance, which we think is properly preserved in this qualified privilege, which is enshrined in what has been termed the Reynolds Principle. But my final issue has to do with what the media themselves need to do.
It is matter of deep concern to me, Mr. President, both as Minister with Responsibility for Information and as a former practising journalist that after nearly 50 years since journalists developed a code of ethics in 1965, there is still to this day, July 5 ,2013, no Media or Press Complaints Council. No self-regulating body in the media where members of the public can go to seek redress for harms to their reputations, without seeking recourse through the courts. There are many persons who can’t afford to go to court to seek damages. There are people who have suffered gross misrepresentation; who have been damagingly misquoted and whose statements have been slanted to give a wrong impression. Many persons, Mr. President, have legitimate complaints about an imperfect press but have no means to seek redress because of economic or other limitations. Some people just don’t like going to the court house.
The press should have a self-regulated Media Complaints Council to which they could go to have their grievances addressed. That is not asking too much of a media which must be accountable to the people. People who want a voice or need to rectify a matter should not have to depend on a letter to the editor, which the editor now has no obligation to publish. It is good enough if we as politicians are passing this Bill and giving more power to the media. The media, in good faith, must reciprocate by setting up mechanisms to empower the people. I don’t believe in any state regulation or censorship. I am against that. This Government is opposed to that and we will never go that route. The media must self-regulate. I call upon the Media Association of Jamaica and the Press Association of Jamaica to get together and finally, finally establish this Media Complaints Council or whatever you want to call it.
The distinguished veteran journalist Claude Robinson, who himself did sterling work in creating a code of conduct for the PAJ years ago, expressed his own frustration with this failure to establish a Media Complaints Council in a column in the Jamaica Observer on January 16, 2011. He hailed the provisions of this Bill as “a step in the right direction on the road of greater transparency and better governance”. But he continued: “The Media Association of Jamaica and the Press Association of Jamaica must stop shilly-shallying and implement the revised code of professional practice which the PAJ has accepted. Now the media bosses must move to incorporating it into their operations.”
That was January, 2011. In February, 2008, the Small committee in its report urged the adoption of this code “as a matter of urgency”. That was five years ago. The ball is now in the media’s court. Let us all work together, public officials media owners and practitioners and civil society to strengthen our democratic institutions, processes and governance. This Bill is a significant plank in our democratic edifice. Mr. President, I support it wholeheartedly.