- ContributedWilson: "Government along with members of legal and media fraternities must now set in train the process that will lead to changes in our laws..."
Gladstone Wilson, Contributor
WHILE addressing the 40th anniversary awards luncheon of the Ad-vertising Agencies Association of Jam-aica (AAAJ) on June 25, the Chairman and Managing Director of the Gleaner Company Limited, Oliver Clarke, called for changes to the region's defamation laws as well as for freedom of the press to be enshrined in the Jamaican Constitution.
Mr. Clarke was also critical of some awards given for libel cases, which he considers excessive to the point of being outrageous.
Essentially, the Gleaner Company boss feels that media in Jamaica, as the second carrier of news or programme content, cannot perform their functions properly unless they are given the proper protection.
This protection is necessary, in circumstances where the countries of origin operate with less punitive sanctions than Jamaica for statements made about public organisations and officials.
For years, media managers have had to face the prospect of litigation from persons who feel their reputations are damaged by the exposure of information.
In most instances, potential litigants are public officials who find probing media enquiries about things said or done, uncomfortable and downright damaging to their personal or professional reputations.
Under Jamaican law, a media institution or person who reproduce, distribute or rebroadcast a libellous statement is equally culpable as the original source of that statement.
In such circumstances, there is a duty to prove that the statement is true or there was justification for its publication. As such, there is no absolute defence to libel, as what is truthful is not necessarily proved by evidence adduced.
Mr. Clarke, in his latest proposal, is speaking from actual experience.
Recall that the libel case with Anthony Abrahams is based on a story taken from a wire service and republished by The Gleaner.
The Jamaican courts have held that The Gleaner in its publication, lowered the character and integrity of the plaintiff in the estimation of right-thinking members of society.
However, an award of J$82 million to Abrahams for malicious libel, which was later reduced, is on appeal to the UK Privy Council.
UK, US experiences
Any contemplated changes to Jamaica's libel laws can be assisted by experiences in the United States or Britain.
In the United States, freedom of the press and that of individual expression is guaranteed under the constitution, as the framers of that constitution thought it undesirable to fetter political and other discussion, which would deprive electors of the possibility of making fully-informed choices about those who offer themselves for public office.
In the celebrated case of Sullivan v The New York Times, Justice Brennan invoked first amendment rights to impose strict constraints on an elected politician's capacity to win a case of defamation, unless those who made the statement knew it to be false or was reckless to its falsity.
This approach is consistent with Mr. Clarke's call for an "absolute privilege in relation to statements made about government or quasi-government bodies and their members".
In 1996, Britain introduced substantial changes to its Defamation Act, which could be of assistance in reforming Jamaica's libel laws.
The wire service defence to which Mr. Clarke referred in his address on June 25, is included in the first provision of the British 1996 Defamation Act.
Section 1 (i) states "In defamation proceedings a person has a defence if he shows that (a) he was not the author, editor or publisher of the statement complained of, (b) he took reasonable care in relation to its publication, and (c) he did not know and had no reasons to believe, that what he did caused or contributed to the publication of a defamatory statement."
So a person can prove, under Britain's new act, that he is not the author, editor or publisher of the statement if he merely reproduces that statement by selling or distributing in its printed form or duplicates the content of any material via electronic media.
Similarly, too, if the broadcaster, during a live transmission inadvertently carries a defamatory statement in circumstances in which there is no effective control over the maker of the statement, the court will look to the circumstances of the transmission as well as the character and previous conduct of the carrier.
Print media or distribution outlets relaying libellous statements from other sources would not today in Britain be automatically liable. Nor would radio and television stations remain defenceless as a result of utterances form guests and moderators.
Size of claim
The size of successful libel claims is another matter.
We have seen in Jamaica where the compensation for injury or death is of less monetary value than the award given for damage to someone's reputation.
However, the courts in Britain are less convinced about an unlimited cap for compensatory and exemplary damages in restoring someone's reputation that might have been offended by defamatory statements.
For example, there was the case involving pop singer Elton John, in which the court lowered the amount granted, stating that it was rightly offensive to public opinion that a plaintiff should recover damages for injury to his reputation which were greater, perhaps by a significant factor, than the sum he might have been awarded for personal injuries, rendering him helplessly crippled or an insensate cripple.
British judges are now more inclined to the view that an award "should never exceed the minimum sum necessary to meet its underlying purpose, namely that the defendant should be punished, (but) the jury should be told before awarding such damages that they had to be satisfied that the publisher had no genuine belief in the truth of the material published."
However, any changes to Jamaica's libel laws should not be taken as licence by media to pursue public officials either for political or personal reasons based on rumours, improvable truth or less than reliable information.
Before the passage of the Britain's 1996 Act, defamatory statements, not provable true, would not attract liable consequences on the ground of public interest, while fair comment was confined to cases where the defendant can show the factual basis of the comment.
With respect to public bodies, the case of Derbyshire County Council v Times Newspaper Ltd. changed all that, in circumstances where critics of public authorities need not show justification.
But what about the reputation of the private persona if so damaged in a public capacity?
It should be carefully noted that the Derbyshire case created an absolute immunity to criticise the corporate reputation of Government bodies, but the judgment was careful not to afford the same immunity with respect to individuals.
The judge opined that politicians (add public officials) were for libel law purposes, more akin to private citizens than they were to Government bodies.
In not fully embracing the American model, the Derbyshire case was well aware of the need to protect the reputation of individuals who occupy public positions in a modern, democratic society.
In the Caribbean, two cases in Trinidad and the Eastern Caribbean Court of Appeal were careful not to accord a wide interpretation and found the decision in Derbyshire County Council inapplicable. The courts concluded that published matter couldn't be allowed without safeguards or regard for the privacy, office or status of the individual.
So Jamaica's libel laws could well do with some review for which Britain's 1996 Defamation Act would be a useful guide.
The "second carrier" defence to stories or material originating from overseas wire services, broadcast stations, cable systems or the Internet should be considered. But such a defence has to be considered in context.
Changing the process
The burden of reasonableness could not in such circumstances be expunged from the principles of fair reporting and replaced with an absolute defence.
In Australia, the High Court stated that as a general rule, publication will not be reasonable unless:
The defendant had reasonable grounds to believe, and did believe that the imputation was true
That he had taken such proper steps opened to him to verify the accuracy of the material; and
That he had sought and published a response from the person defamed, unless either of these steps was not practicable or was unnecessary in order to give the plaintiff an opportunity to respond.
Government along with members of legal and media fraternities must now set in train the process that will lead to changes in our laws and facilitate reasonable public probity of those in public and private sectors who act improperly, illegally or are in breach of their fiduciary duties.
Given the nature of the Jamaican society with an insatiable penchant for 'suss' and innuendo, care must follow prudence.
Gladstone Wilson, LLB, is a former General Manager of the Jamaica Broadcasting Corporation (JBC).
