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Proposed defamation legislation a blessing and a challenge

Clare Forrester

Wednesday, March 27, 2013    

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AS reported in the media last week, both the Press Association of Jamaica (PAJ) and the Media Association of Jamaica (MAJ) presented a strong case before a joint select Parliamentary com-mittee which is reviewing the cybercrime legislation.

The presentations were for the specific purpose of countering another submission previously made by the Jamaica Constabulary Force and the Office of the Director of Public Prosecutions that cyber-defamation should be criminalised in the proposed new statute. The latter two entities offered the rationale that the magnitude of the damage to the victim's reputation is more pronounced, given the vast reach of the Internet, and so warrants redress in a criminal as distinct from a civil court.

It was not difficult to speculate that such a recommendation would not find favour with any set of Jamaican Parliamentarians given the country's history of championing press freedom and the overwhelmingly supportive position globally against criminalising defamation, even when done by way of the Internet. Given available information and the experiences of other countries, I was slightly surprised that the DPP's office lent its name to the opposing submission. Maybe the DPP herself will eventually articulate her thinking in this regard. That she maintains an adverse position perhaps stems from a growing apprehension globally about the changing media boundaries in which everyone with a computer, android cell, tablet, and access to the internet could be considered a journalist, although not attached to traditional media. The implications for this are far-reaching. While I do feel that in the long run professional journalism will triumph, maybe it is time to begin to address some of the implications of everyone claiming journalistic privilege without any training in and or commitment to abiding by media ethics.

Two days after the media presented their position, in terms of the proposed cybercrime legislation, we were reassured by the tabling of the Bill to repeal the Libel and Slander Act by Justice Minister Mark Golding, which, according to minister with responsibilities for infor-mation, Sandrea Falconer, reflects the Cabinet's view that "journalists should never have to face the threat of prosecution when carrying out their duties".

Some in the media fraternity argue that making a distinction between who is and is not a journalist would perhaps help to provide clearer directions when addressing alleged infringements committed by posting damaging information on the Internet. However, from my perspective, that may lead to the creation of what could become a de-facto state licensing system and/or a cadre of 'aristocratic journalists' that is perhaps best avoided. In any case, the technology is likely to render such an approach invalid in the medium to long term.

Those members of the joint select House committee who expressed a view that there is need to strike a balance between freedom of speech and injury to reputation were voicing concerns that are currently the subject of an ongoing global debate. These concerns exploded in a widely publicised case in the US against a self-styled "investigative blogger" named Crystal Cox. This defendant functions as a type of 'whistle-blower' using a preponderance of blogs where she frequently writes about allegations of wrongdoing, usually by those in the finance sector. She was sued by one of the targets of her posts, an investment firm called Obsidian Finance Group and its founder Kevin Padrick who alleged she defamed them. In resisting a court demand to disclose the source of her information, she argued that she and the source(s) should be covered by laws designed to protect journalists. The judge ruled otherwise, on the grounds that she was not affiliated with a traditional media entity and so not entitled to such protection. She was then slapped with a US$2.5-million judgment, the amount which the plaintiff argued that he lost in earnings as a result of the damage caused to his reputation.

The intensity of the criticisms against the judge's 'bloggers versus journalists' comments led him to release a follow-up opinion explaining that his statement should not be interpreted to mean that all bloggers do not qualify to be called journalists, but that Cox certainly could not be so regarded. Moreover, blogging and bloggers were not, up to that point in time, covered under the journalism shield legislation in that state.

The judgment against Crystal Cox may or may not have served to curtail the reckless way in which she handles information injurious to people's reputation. She has claimed in interviews that she performs a service. "I have a gift for getting on top of search engines, and I want to give voice to victims of the corrupt judicial system. "The system wants to shut me up and they have been trying to for years." She claimed not to have had money to hire an attorney and represented herself in the defamation case, which she swore that she would appeal. She lost the appeal. Legal opinion is that, even if the courts had considered her a journalist, the shield law would not have protected her from this civil action for defamation.

While the plaintiffs in this case seemed more than able to seek redress in a civil court against bogus allegations, those without the means are at a serious disadvantage and so defenceless against attacks on their reputations. I am aware that, in Jamaica, some provisions are made in the Resident Magistrate Courts to facilitate those without the means, but that is small comfort to those familiar with the limitations in the system such as heavy backlog of cases. I can think of at least one case of a blogger perpetually defaming other members of a (non-journalism) association to which he belongs. It appears that no counter-action has been taken so far, because it would seem that such a course would not be worth the effort and, in any event, the hope is that most of those who access his posts already consider him to be a 'disturbed' individual. However, the more disturbed the abuser, the more likely he is to utilise the opportunity to gain such negative publicity against those defamed. In her interview, Cox said she welcomed the attention that the case brought to her work as a whistle-blower.

One suggestion, so far, is that a programme of public education should support the proposed legislation. Con-sideration should also be given to exploring the possibility of imposing a type of restrictive order on access to Internet search engines and for media sites such as YouTube by offending parties. The way forward requires that the media fraternity revisits the issue of what is journalism and who then is a journalist if the fraternity expects to provide some leadership in addressing some of the prevailing local concerns.

Correction

On the issue of posting incorrect information I see where one Errol Townshend whose address is given as Scarborough Ontario, Canada, in a letter to the editor, incorrectly attributes to me a quotation by former Prime Minister PJ Patterson about PNP co-founder OT Fairclough. While I have no problem with the specific information, I am, not sure how or why Errol ownshend names me as its source.

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