THE new Defamation Bill which was recently passed in the Senate did not go as far as the Jamaican media wanted, but we believe it is a good start.
It is important not only for media persons, but for the country as a whole to be aware of at least the important changes embodied in the new Bill as it will affect all of us in one way or another. Here are some of the key changes:
* The distinction between libel and slander is abolished and replaced by the single cause of action of defamation. Previously, slander required proof of special damage. Defamation is actionable without such proof. Of course, libel was always actionable without proof of damage.
* Criminal libel has now been abolished and even though we in Jamaica had not utilised the provision in the old law, it is good not to have it hanging over our heads like the Sword of Damocles.
* An apology no longer constitutes an express or implied admission of fault or liability.
* In a jury trial, the jury's role is to determine whether the defendant has published defamatory matter and, if so, whether any defence raised by the defendant has been established. The judge and not the jury is to determine the amount of damages. Hopefully this will mean less outrageous awards of damages as we have seen in several other cases, including one for $80 million. Huge awards could sink a media house and thus weaken freedom of expression.
* Guidelines have been introduced in terms of how a judge is to exercise his mind in the award of damages. For example, the court shall ensure that there is an appropriate and rational relationship between the harm sustained by the claimant and the amount of damages awarded.
* The "defence of justification" has now been replaced by defence of truth which, thankfully, is easier to prove.
* The defence of innocent dissemination has now been introduced. This affords a defence in situations where the defendant published merely in the capacity of a distributor who is subordinate to the publisher. For example, in the cases where stories are published from international wire services and the defendant neither knew nor would reasonably have known that the matter was defamatory. Before this, media houses would have been automatically liable for wire service stories. None of us would have the resources to verify all stories originating overseas and in the time needed to meet daily deadlines.
* The limitation period has been reduced from six years to two years, also a very positive change as it was a burden on a defendant to have to defend a matter six years later, after staff members may have resigned and evidence lost. There is provision, however, for the period to be extended, but only in certain limited circumstances.
The media would have loved to have a few other understandable provisions, most important of which was the introduction of a different standard for public officials similar to the approach established by the United States Supreme Court in New York Times v Sullivan, which resulted in a shift of the burden of proof from the defendant to the plaintiff.
We thank those who worked to get the legislation to this landmark. It is not perfect, but we have a basis on which to move forward in protecting our democracy through freedom of expression.