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 debate in Parliament on a set of recommendations that will, if approved, make it less risky for the media to carry out its function as a watchdog on government.

The recommendations are in the report of a Special Select Committee comprised of government and opposition members from the House and the Senate. It was submitted last December following detailed examination of reform proposals submitted by retired high court judge Hugh Small.

Most of the proposals submitted by Justice Small were accepted by the Special Committee and are now making their way through the legislative process after which they are expected to become the law of the land.

The drive for reform began in the late 1990s when Caribbean media heads began lobbying governments to change libel laws which they said were stifling investigative reporting and preventing the media from fully informing Caribbean people about what their governments were hiding or doing behind closed doors. The threat of potentially ruinous libel suits was said to have a chilling effect on the press.

It was a period in which media interests were hit with a succession of costly defamation awards, the most celebrated being more than $80 milion to former government minister Anthony Abrahams who had been defamed by The Gleaner. After several years and many appeals the award was reduced to about $35 million.

But the lobbying hit a snag. Media bosses wanted to bring Caribbean defamation laws in line with US law and practice where the press have tremendous latitude to criticise public officials — widely defined to include elected politicians as well as low-level administrative appointees. They could only prevail in a defamation case if they proved malice and, in any case, damages were usually token amounts.

Caricom leaders pushed back. Former prime minister PJ Patterson reflected the prevailing view among regional colleagues, asserting that he did not give up his right to privacy or his reputation merely by being an elected politician.

Then came Mr Golding. As part of a much touted new approach to governance he promised to “modernise the laws relating to libel and slander so that those engaged in corruption can be more easily exposed and brought to justice”. The libel and slander laws cannot be a wall of protection for wrongdoers.

So the prime minister asked Mr Small’s committee to review the law of defamation and make recommendations for “changes that will ensure transparency and accountability in the context of a new framework of good governance”.

Among other things, the revisions include abolition of the common-law offence of criminal libel (including blasphemous, obscene and seditious libel; reducing the time in which someone can bring a claim for action from six to two years; protection against defamation arising from ‘innocent’ publication of something over which the media did not have effective control, especially in today’s high technology age; and protection against reproducing a story from a reputable news organisation.

An important innovation is that the defence known as justification be replaced by the defence of truth in what was published.

Importantly, the defence of truth can be sustained even if the truth of every charge is not proved. What’s important is that the matter, taken as a whole, does not materially injure the claimant’s reputation.

One recommendation of particular importance to the media is that provisions be introduced that the role of the jury should be to determine whether the defamatory matter was published by the defendant and whether any defence has been proven, and the role of the judge should be to assess the amount of compensation that should be awarded. Media have long complained that juries tend to punish the media through large awards.

But one area in which the media will not get what they wanted was to place a cap on damages. The view is that this should be left up to judges who are reasonable people.

Another is that public officials should continue to be treated the same as for other citizens of Jamaica. The press wanted more latitude to criticise them in relation to statements regarding the conduct of public affairs.

The view of the special committee was that there should be no change to the law, as the defence of reasonable or responsible journalism was adequate.

The prevailing concept of responsible journalism confirmed by several judicial decisions, including Reynolds v Times of London 1999 and a Jamaican case Bonnick v Morris and Gleaner Company 2003, give the press a sort of qualified privilege to criticise public officials as long as they acted responsibly.

To plead responsible journalism the press must meet certain tests including demonstrating that the matters being investigated are in the public interest and the press have a ‘duty’ to publish.

Next steps for media and government

The measures now 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 the government, to achieve the transparency and accountability so essential to improving our governance structures and procedures.

As I have said before, the Media Association of Jamaica and the Press Association of Jamaica (PAJ) must stop shilly-shallying and implement the revised code of professional practice which the PAJ has accepted. Now, the media bosses must move to incorporating it into their operations.

More important, the proposed companion 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 redress for journalistic violations without having to go through expensive litigation.

Mr Golding said it well in the House Wednesday. “We are appealing to the press, let’s see a reciprocal position being taken to ensure that the highest possible standards are being maintained so that in our necessary zeal to protect the freedoms we have fought for so hard, we don’t create damage that in effect undermines the fabric of the very society that we are seeking to build”.

We have not had a Council since Jamaican media subscribed to a Caribbean Press Council headed by the late Justice Aubrey Fraser several decades ago.

Adoption of an industry-wide code of professional practice and complaints authority would help to convince the society that the media are serious about serving the public interest and not just engaging in settling personal or political scores or merely pursuing their own economic self-interest.

Meanwhile, the Golding administration must also press on with the whistle-blower legislation. They should also seriously consider repealing the Official Secrets Act which is the very opposite of the moves towards transparency.

And in the context of the current furore over energy policy and the controversial LNG project, the prime minister needs to remember that transparency also means being proactive with providing full, truthful information to the public on matters that affect them deeply.

Secrets are hard to keep these days, WikiLeaks or no. While minister James Robertson was asserting Thursday that the LNG report was confidential to insiders only, Cliff Hughes was doing a public service by posting the entire document on his station’s website,

www.nationwidenewsnetwork.com/pdf/FinalRport.pdf.

Have a read!

kcr@cwjamaica.com