British lawyer supports defamation law reform
Philip Hamilton, Gleaner Writer
Proposed recommendations to Jamaica's outdated defamation laws, some of which date back to the early 17th century, have been receiving strong support of a prominent British attorney specialising in libel laws.
Mark Stephens was in Jamaica last week and he appeared before a joint parliamentary select committee reviewing a report which recommended reforms to Jamaica's libel and defamation laws
Stephens, who has been acquainted with Jamaica for the last 35 years, is married to a Jamaican, in addition to having represented former radio talk show host Anthony Abrahams in his libel suit against The Gleaner Company Ltd several years ago.
He said that the Hugh Small-chaired committee produced an excellent document. Stephens described many of the recommendations as being helpful in modernising Jamaica's defamation laws from a global perspective, particularly as it relates to the limitation period for filing defamation suits against the media.
"I took the view the international perspective of the limitation period would have expected a year whereas a number of countries have opted for two, but to me six years is an unconscionably long time," said Stephens in reference to existing Jamaican law.
The six-year limitation period referred to by Stephens regarding filing a defamation suit from the publication of the defamatory statement dates back to 1623. It was based on assumptions it would take up to that time for persons to discover they were libelled in pamphlets or books.
Stephens argued that in today's modern information age where individuals likely to appear in the newspapers have access to online resources such as Google alerts, as well as web logs and Twitter 'tweets'. Persons can immediately know, therefore, when comments are made about them. He pointed out that presently in the United Kingdom (UK), the majority of writs are typically filed between three and six months.
He also spoke on the likely impact which the United States' recently passed Speech Act would have on Jamaica's libel laws, noting that judgements handed down in libel cases in Commonwealth countries cannot be enforced in the United States.
"At the moment, a Jamaican could sue an American publisher or broadcaster in the courts in Kingston. They would get a judgement and spend costs in so doing but not be able to enforce that judgement," noted Stephens,
On the issue of criminal libel, Stephens observed there was an urgent rush globally for its abolishment, noting that several countries had revoked laws supporting an outdated, alien concept that persons should be locked up for what they said or wrote.
Regarding claims for damages by individuals on the grounds that they experienced pain and suffering from defamatory publications, Stephens said such persons should be required to provide evidence, as well as assess losses associated with this, as one could not presume that harm occurs in every case.
"We've had a number of cases in the UK where complete scoundrels have taken libel cases. Because they've won, they've got very large damage awards because it's presumed they have a pristine reputation when they don't, " he said.
He added that libel laws should not be a lottery for the rich and powerful to get large tax-free prizes, but genuine compensation for actual harm suffered.
Stephens is also on record in calling for the placement of limits on awards for damages handed down against media houses, and believes any reform to Jamaica's defamatory laws should take this into consideration.
He cited examples of cases in Jamaica where the appellate courts upheld awards that were significantly higher than those awarded for similar cases in London, despite being based on the same facts. Libel damages for pain and suffering in the UK are currently capped at £250,000, a figure which was almost achieved when two individuals were each awarded £230,000 after being accused of being paedophile murderers.
Stephens believes there is clearly a need for reform based on justice and fairness, proportionality between personal-injury damages and damages for someone's hurt reputation or feelings. "There's an ability to pay, inability of media houses to get insurance and just basic good sense that you have a much more transient harm when a newspaper or radio station writes something about you than if you are permanently disabled by the loss of a limb," said Stephens. "It seems to me unarguably there ought to be some kind of proportionality between the two."