Editorial | Damoclean Marlene

The positive twist is that Marlene Malahoo Forte is no longer a minister and, therefore, not a member of the Cabinet. So, she can’t, from the inside, as readily have a say in shaping government policy. That doesn’t mean that the member of parliament, former attorney general, and lately the minister for legal and constitutional affairs, is without influence within the governing Jamaica Labour Party (JLP) and Prime Minister Dr Andrew Holness’ administration.

That is why all stakeholders must remain vigilant, maintaining their defence against Ms Malahoo Forte’s suggestion that Jamaica consider reintroducing the offence of criminal libel, which was abolished a dozen years ago. For, despite the so far lukewarm official response to the former minister’s proposal, there is no certainty that she isn’t a stalking horse.

Were Ms Malahoo Forte’s idea to be embraced, it would be a retrograde step, restoring to government a Damoclean sword to be held over freedom of expression, the free press and, ultimately, democracy.

Put another way, it could have a chilling effect on what, and how, people and media speak and write about issues, and, thereby, the freedom and effectiveness with which they exchange information and ideas, which are the essential fuels of democracy.

Say or write something that officialdom doesn’t like and there is a chance that you might be prosecuted by the State, convicted, and thrown into jail.

PROXIMATE TRIGGER

This aspect of Jamaica’s old Libel and Slander Act was repealed in 2013 during the People’s National Party (PNP) administration of Portia Simpson Miller. However, despite decades of advocacy for their expungement, the real heavy lifting in reforming the island’s defamation law was during Bruce Golding’s premiership (2007-2011). Golding was Prime Minister Holness’ predecessor as leader of the JLP.

The repeal of criminal libel was in keeping with the growing trend in liberal democracies of removing the right of the State, except in the most extreme and egregious circumstances - such as the promotion of insurrection or undermining the peace – to criminally prosecute citizens for what they say. Instead, Jamaica introduced a single tort of defamation, with complaints to be dealt with as civil matters.

The proximate trigger of Malahoo Forte’s call for a reversal in the law was ostensibly her concern for reckless online/social media behaviour where people were subjected to “bullying, harassment, stalking and other forms of attacks, including defamatory attacks”.

In was in that context that she asked the gender affairs minister, Olivia Grange (who had made a statement in Parliament to mark the International Day for the Elimination of Violence Against Women), whether the Government would “consider reintroducing into Jamaica’s statute law, criminal libel in this age of unregulated social media, as one of the tools of protection”.

While The Gleaner shares some of Ms Malahoo Forte’s concern of online behaviour, we are wary, too, of the former minister’s seeming penchant for reaching for extreme blunt-instrument solutions to knotty problems.

For example, in 2016, as the Government grappled with a spiralling homicide rate, and considered a tougher bail regime, Ms Malahoo Forte warned that “fundamental rights and freedoms guaranteed to Jamaicans may have to be abrogated, abridged, or infringed” in dealing with the problem.

NEITHER APPROPRIATE NOR EFFICACIOUS FIX

Prime Minister Holness has frequently expressed his personal frustration over what he perceives as the spreading of misinformation on social media about himself and the Government. He has argued that there was the danger of further weakening public trust in institutions of the State and undermining the implementation of public policy, especially during this period of recovery from Hurricane Melissa. He has been militant about his willingness and capacity to fight back.

The minister with responsibility for information, Dr Dana Morris Dixon, has in the past proposed a broad national discussion on behaviour in social media, but has not yet formally pursued the idea.

What this newspaper is clear about, however, is that criminal libel is neither an appropriate nor efficacious fix for any malady that Ms Malahoo Forte, or the Government more broadly, wishes to cure. Moreover, there is already in place the Cybercrimes Act, which makes it a criminal offence, on pain of hefty fines or jail time, to use digital systems to threaten, menace or harass people.

The provisions of this law have been used in the past to convict offenders. If there are too few, or shortcomings in, prosecutions, it is not for want of a legal tool. Further, people who are defamed have a right of civil action via the courts.

Criminal libel would be to resurrect Damocles in the form of the Jamaican State, with the sword dangling menacingly over those who are perceived to be drifting from the approved path. Or so it would seem. Which would be just as bad for its chilling effect.