Libel law reform - a delicate balance

Bert Samuels, Guest Columnist

Journalists, media houses and all those concerned with the dissemination of information, opinions and ideas have been champing at the bit to see the reforms anticipated from the Hugh Small-led report to Parliament on libel law reform in Jamaica. Consider the anxiety the travelling public would suffer following the completion of Highway 2000 without it being opened, with no good excuse being offered. You may, therefore, appreciate the state of mind of our journalists regarding the long-awaited promise of reforms.

The Libel and Slander Act is 161 years old, having been promulgated in the Jamaican House of Assembly, after being imported and arriving here from England in 1851 some 27 years after the abolition of slavery. It is, therefore, of some antiquity. That law, until recently, could turn publishers into criminals, as proof of a malicious slander could result in imprisonment for a period not limited to a prescribed number of years in the act.

The Libel Act was passed into law in Jamaica at a time when the entire population was illiterate, save for a few exceptions. There was no radio, no democratically elected government - there being no right to vote. It was to serve a people who entertained little or no interest in government, who were battling with a lack of formal education and rife unemployment. The idea of citizenship was an alien concept. Public servants were to enjoy a field day. The governor, some 14 years later (1865), could free-handedly watch over the harsh conditions which led to the Morant Bay massacre, without being punished.

We have come a far way since the passage of this old law. The world has moved from paper to radio, and now we are the beneficiaries of the all-powerful Internet, making news in one country the business of all others, with the World Wide Web forming one all-inclusive, comprehensive cover over a single global village.

The call for reform of our libel laws is not only based on the antiquity and irrelevance of the law, but how it has operated to hinder the progress of our 50-year-old democracy. This situation is best described by the political philosopher, Karl Marx, himself when he wrote: "The moment the Code (law) failed to reflect social relations faithfully, it would be no more than a scrap of paper. You cannot make the old laws the basis of the new society any more than the old laws made the old society."

The defamation laws, as they currently stand on our books, have been treated by local journalists as a shackle in the exercise of their constitutional right to freedom of expression. The Press Association, stifled by the inherent risks involved in its members practising their craft here, has adopted as its motto, the expression 'A Free Press, Oxygen of Democracy'.

The Charter of Rights - passed into law April 2011 - has added to the pre-existing right of 'freedom of expression' that the Constitution guaranteed from its enshrinement 50 years ago, a new right. Section 13, Subsection 3(d) enshrines "the right to seek, receive, distribute or disseminate information, opinion and ideas through any media". Journalists complain that those constitutional provisions do not apply in reality, and have become, in the words of Marx, a mere "scrap of paper" in desperate need of having the libel laws brought into line with our modern Charter of Rights.

Public officials and the duty of the press

One school of thought regarding Parliament's slow pace at implementing reforms is that, as currently framed, the laws do not expose its members to be subjected to increased scrutiny without journalists facing the risk of successful multimillion-dollar libel claims being brought against them.

Interestingly, the courts have taken the lead to fill the void that the old laws have left open, to reflect the change in social relations that our democracy has brought about vis-à-vis the officials and those who have elected them.

The march started with the landmark decision in the case of Reynolds v Times Newspapers Ltd in 2001. That case allowed the press to raise a valid defence even where the publication turned out to be defamatory. The decision made the point that "it is in the public interest that such statements should be made, notwithstanding the risk that they may be defamatory of the subject of the statement".

Some six years later, another decision of the High Court in England in the case of Jameel v Wall Street Journal Europe - applying the Reynolds decision and making the concept even more clear - referred to three factors influencing the court's entertainment of the defence of qualified privilege given to the press. The judge listed them as:

The essential factors of the freedom of expression;

The importance of the role of the media in the expression and communication of information and comment on political matters;

The reputation of the individual as an integral and important part of their dignity.

The common-law development in this area has exposed the urgent need for the legislature to revisit the outdated libel laws. In assessing the delay in implementing the necessary reforms, one cannot help but expose the fact that that organ, the State, has enjoyed parliamentary privilege which protects in an absolute way a member who 'slanders' one of its own members, or for that matter, any citizen of Jamaica while speaking on the floor of the House.

The right of the public to know

The courts have - in a creative way - adopted the 'duty-interest' principle-based defence of qualified privilege in recent times. One classic example of the unnecessary risk that is taken by a person who speaks out against a wrong concerning public interest, occurring in Jamaica in November last year.

The head of the Pharmaceutical Society of Jamaica, while being interviewed on a local television programme, reiterated the association's cry for the Government to desist from the use of pharmacy technicians to dispense drugs at public health facilities.

She, immediately thereafter, became the subject of a state-led muzzling because she spoke out for the public good and was punished by way of interdiction. It is noteworthy that the usefulness of the contractor general's office, in investigating public officials, has, by way of special statutory provisions, made him immune from the defamation laws, by virtue of Section 23.3 of the Contractor General Act, which reads as follows "for the purposes of the defamation act, any report made by the contractor general under this act and any fair and accurate comment thereon shall be deemed to be privileged".

The Access to Information Act represents a breath of fresh air in the public's right to information on matters of the State. Section 2 of the act reads as follows:

"The objects of this act are to reinforce and give further effect to certain fundamental principles underlying the system of constitutional democracy, namely:

(a) Governmental accountability;

(b) Transparency; and

(c) Public participation in national decision making by granting to the public a general right of access to official documents held by public authorities, subject to exemptions which balance that right against the public interest in exempting from disclosure governmental, commercial or personal information of a sensitive nature."

Those in charge of overseeing the changes required in the libel laws should take a cue from the objectives of this statute.

The Delicate Balance

Lord Carswell, in the 2006 case of Seaga v Harper, was of the view that this qualified privilege was founded upon "the need to permit the making of statements where there is a duty - legal, social or moral - or sufficient interest on the part of the maker to communicate them to recipients who have a corresponding interest or duty to receive them, even though they may be defamatory, as long as they are made without malice, that is to say, honestly and without any indirect or improper motive."

There is this perennial delicate balance between the protection of the reputation of individuals - what Lord Burkhead described as "an important part of their dignity" - and the right of the citizen to be kept informed on the business of government and governance. Lord Nichols added his voice when he expressed the view that "the necessary balance between these factors could be achieved, while liberating the law to some extent from the traditional 'duty-interest' concept of qualified privilege".

I close with the words of Corazon Aquino, president of the Philippines 1986-1992: "Freedom of expression - in particular freedom of the press - guarantees popular participation in the decisions and actions of government and popular participation in the essence of our democracy."

Bert S. Samuels is an attorney-at-law. Email feedback to columns@gleanerjm.com and bert.samuels@gmail.com.