Media biased on libel reform?

Ian Boyne, Gleaner Writer

If you want to tempt the Jamaican media with irrationality and unreason, mention the issue of libel reform. They have absolutely no resistance in that regard. The Media Association Jamaica (MAJ) Ltd and the Press Association of Jamaica (PAJ) are unabashed and unrestrained in the defence of their special interests.

Two Fridays ago, The Gleaner again proved my thesis with an editorial titled 'No time for excuses on libel reform', and an op-ed piece by immediate past president of the Press Association of Jamaica, Byron Buckley, titled 'Libel committee sheds little light on accountability'. They were excellent examples of the visceral and polemical approach to dialogue.

The editorial cleverly begins by adding some more lashes to a favourite whipping horse, the politician - in this case, a well-ridden one, the prime minister.

The editorial takes issue with the prime minister's legitimate lamentation that decades after it was first proposed, there is no press council in Jamaica where ordinary, cash-strapped citizens aggrieved and wronged by the media can seek redress and vindication, short of going to the courts and waiting years. The prime minister's call was an eminently reasonable one.

You judge. "There has been talk among media practitioners for a long time about a code of professional conduct. It doesn't exist and, therefore, I am challenging the media to explain why it is so difficult for a profession that is concerned and, rightly so, passionate about standards and ethics; why is it that the press has had such a difficulty in establishing among themselves a code of professional ethics?"

Complete distortion

Instead of answering that reasonable question, The Gleaner takes the prime minister's remarks, as well as supporting comments of Opposition Member of Parliament Ronnie Thwaites, as setting forth a quid pro quo. That was a complete distortion of what the two gentlemen - whom I heard - said.

Says The Gleaner editorial: "We hope that the remarks in Parliament on Wednesday do not represent the unfolding of a tactic of using the supposed failings of others to back away from a solemn undertaking to do what is right." Now how did they get to that? The joint select committee has accepted a number of significant recommendations of reform to the libel laws proposed by the Small Committee.

Indeed, that highly respected and balanced elder statesman of the journalistic profession, Claude Robinson, said in his Sunday Observer column last week, "There was a positive development in the long and tortuous process to liberalise Jamaica's defamation laws last week as Prime Minister Bruce Golding opened the debate in Parliament on a set of recommendations that, if approved, make it less risky for the media to carry out its function as a watchdog of Government."

Robinson acknowledged that most of the far-reaching recommendations made by the Small Committee had been accepted by the joint select committee. Neither the prime minister nor Ronnie Thwaites was seeking to make these necessary reforms dependent on the establishment of a press council. They were simply saying, we have done much of what you have asked us to do, now you do what you yourselves have committed to do decades ago and still, for some strange reason, can't get around to doing! What's unreasonable about that?

But the media resent being questioned by anyone - worst of all, politicians. What gives them the moral authority to question the people's guardians?

So let's ignore the politicians, but we can't ignore one of the most credible voices in media today, Claude Robinson.

Stop shilly-shallying

Mr Robinson, who himself has given the PAJ much help in developing a code of ethics and setting the foundation for a press council, mourns in his column last weekend: "The measures being debated are a step in the right direction on the road to greater transparency and better governance. But they will need to be supported by other actions, both by the media and by the Government ... ." He goes on: "As I have said before, the Media Association Jamaica and the Press Association of Jamaica must stop shilly-shallying and implement the revised code of professional practice which the PAJ has accepted ... . The proposed media complaints commission or council must be implemented without further delay. This is what will give teeth to the code by providing the public with a body to which aggrieved persons can seek recess for journalistic violations ... ."

Alarmingly, the president of the PAJ, Jenni Campbell, was quoted in The Gleaner of Thursday, January 13, as saying the PAJ still "needed the buy-in of members of the media at all levels". She said this was "being negotiated". Negotiated? What is there to negotiate at this stage?

The media bosses and the media elite want every other institution to be accountable and under the microscope now, but they are still negotiating theirs!

The Gleaner editorial refers to the press' "deep ethical values as codes for its conduct". Like the ethical values which have been demonstrated in how the Observer has been covering the contractor general's questioning of its owner's interests in the Sandals Whitehouse case?

The whole thrust of The Gleaner editorial is that despite the significant reforms accepted by the bipartisan committee in Parliament, consisting of people like K.D. Knight, A.J. Nicholson, Clive Mullings, Ronnie Thwaites, Arthur Williams and Chairperson Dorothy Lightbourne, it amounts to nothing once the American Sullivan model is not accepted. This is the kind of fundamentalism that the media subscribe to.

Mr Buckley, in his piece, grudgingly acknowledges that parliamentarians should be commended for proposed reforms but "pooh-poohed for attempting to leave intact the status quo of anti-transparency and lack of accountability". Now, let's reason this one out.

Model of press freedom

Buckley and the editorial writer's assumption is that that famous and landmark 1964 New York Times Co vs Sullivan case represents the one and only model of press freedom which protects transparency and accountability. So by that jaundiced view, most of the countries of the world which don't have that model are lacking in a truly free press. Most journalists in America don't even argue that. But this is the implication of a theological position being adopted by the MAJ and PAJ.

The joint select committee has rejected the view that public officials should be judged differently from ordinary citizens in libel cases. They should not be treated equal under the law, in the view of Mr Buckley and the PAJ, because of the power they hold. Not an absurd point, but open to serious question.

The Small Committee Report has a plausible response to that view, which neither Buckley nor the Gleaner editorial writer has sought to interact with. The Sullivan principle puts the burden of proof on the plaintiff to show actual malice in the publication of the libel. A media house under the Sullivan principle does not have to prove its innocence.

Says the eminent Small Committee: "It is contrary to the basic principle of the common law that an accused person is not required to prove his innocence of the charge. It is the accuser, in the final analysis, to prove culpability either beyond a reasonable doubt or on a balance of probabilities. This is not just a technical rule to be applied in courts. It embodies a basic cultural norm of a democratic society.

"Commonwealth countries whose courts have considered this (Sullivan) rule, the United Kingdom, Canada, Australia and New Zealand, have rejected its application in their jurisdictions and only India appears so far prepared to accept it within its legal system."

But note this other significant point: The Sullivan principle is "contrary to the express provisions of our Constitution. Section 22, which enshrines freedom of expression, expressly makes that freedom subject to laws for the protection of 'the reputations ... of all persons' ... . Any legislation, therefore, that seeks to identify 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 that Section 13 of the Constitution guarantees."

Providing balance

The Reynolds principle (from another landmark case), which the parliamentarians endorse, provides a sufficient balance between the demand for probity in public life and protection from reputational damage - a non-negotiable human right.

It could reasonably be argued that any provision in law to exempt public officials from the rights of other citizens to their good name could serve to deter good people from public service, thus diminishing, not enriching, our democracy. The MAJ and PAJ must substitute reason and rational argumentation for demagoguery and platitudes.

Article 19 of the Universal Declaration of Human Rights says: "No one shall be subject to ... attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference and attacks." Why should this be removed just because one is a public official? That is what the MAJ and PAJ are insisting on.

Well-known Harvard Law School professor and Pulitzer prize-winning New York Times writer, Anthony Lewis, in his book Freedom for the Thoughts We Hate: A Biography of the First Amendment, says Justice Brennan, in that famous Sullivan case, "didn't say that the First Amendment required absolute privilege for criticism of officials".

The three dissenting judges in that Sullivan case said they would have gone even further by disallowing all libel actions against officials.

Justice Brennan, no doubt against the background of the abuses against officials under the anti-Communist Joseph McCarthy, said significantly and tellingly: "At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skilled enough to use the deliberate and reckless falsehoods as an effective political tool ... . That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution, for the use of the known lie as a tool is at once at odds with the premises of democratic government."

The media should have no special right to lie.

It would do well for our vaunted guardians of democracy, the media, to bear in mind those words of that learned justice, if they will not hear our own native Justice Small.

Email feedback to columns@gleanerjm.com and ianboyne1@yahoo.com.