Small (left) and Richards.

Ian Boyne, JIS Writer

President of the Press Association of Jamaica (PAJ) Desmond Richards, is passionate in his welcome of the Government's decision to review the country's libel laws, to give the press more power to uncover public abuse and the mishandling of power.

"This is long overdue. The reform of the libel laws will allow the press to do its job more effectively and will empower journalists to protect the public interest," the PAJ president says in an interview with JIS News.

He says the present libel laws have a chilling effect on freedom of expression and serve as a disincentive to investigative journalism.

"A news organisation in this country could be brought down by one libel suit," he observes. "How many news organisations could pay out a $30-million award and open the next day? In any true democracy, the oxygen is freedom of expression. Our libel laws are part of our colonial legacy," he adds.

Government promise

In the election campaign, the Jamaica Labour Party, which now forms the Government, pledged in its manifesto that, if elected, it would "modernise the laws relating to libel and slander, so that those engaged in corruption can be easily exposed and brought to justice."

In his inauguration speech in September 2007, Prime Minister the Hon Bruce Golding reiterated that commitment by pledging to, within 100 days, start the process to "review the libel and slander law to ensure that it cannot be used as a firewall to protect wrongdoers." In December, he established a broad-based, 12-member committee, chaired by Justice Hugh Small, to carry out the review.

The committee's task is to recommend changes necessary to strengthen good governance and promote greater transparency and accountability in government.

The committee comprises representatives from the Jamaica Bar Association, the Media Association of Jamaica, the Press Association of Jamaica, Jamaicans for Justice and the Opposition People's National Party.

Addressing the issue of the importance of the libel review being carried out, Justice Small says: "The Constitution protects freedom of expression as one of the fundamental human rights. Freedom of expression plays a vital role in the democratic process. Without the free flow of information and ideas, the public cannot formulate opinions about its government, elected officials and other matters of public interest."

Agreeing with the president of the Press Association Jamaica on "the chilling effect" of the libel law on freedom of expression, Justice Small says the term is actually an expression in law, which describes a situation where speech or conduct is suppressed or limited by fear of penalty at the hands of an individual or a group.

For example, he says the threat of a libel suit might encourage self-censorship and hence "have a chilling effect on free speech." Justice Small notes that "one of the tools that aggrieved persons use is the filing of defamation actions to stifle discussion of public issues where there are allegations of corruption. But I don't believe that civil actions should be used as a manoeuvre for retaliation against members of the public or the press for performing their constitutional and democratic responsibilities."

Burden of proof

Justice Small says, as the law now stands, the burden of proof is on the press to demonstrate the truth of statements made with respect to allegations of corruption. "Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt as to whether it can be proved in court, or fear of the expense of having to do so."

Justice Small is quick to add, however, that the committee is not unconcerned about the issue of protecting people's reputations. He believes there should be a balance. "Defamation laws should provide a balance between the fundamental right to freedom of expression and the protection of reputations against untrue statements, which injure a person's reputation," he says.

Justice Small is careful to emphasise that the committee's work is not to "encourage recklessness and journalistic irresponsibility or malice," but to ensure that "no obstacles are placed in the way of the press carrying out its primary responsibility of serving the public interest." He says the committee's work is to give greater strength to the fight against corruption and the campaign for greater integrity and probity in public life.