The Inter-American Commission on Human Rights (the commission) adopted a report in the case of Dudley Stokes v Jamaica on March 14, 2008. The petitioners had argued that the imposition of civil liability against Stokes and The Gleaner, arising out of their publication of a series of articles related to a former minister of tourism of Jamaica, was disproportionate and generated a chilling effect on freedom of expression and freedom of the press. They had also argued that the domestic court's standard for review in determining the responsibility for libel was not based on the real malice standard. The real malice standard implies that anyone alleging libel needs to prove a grave or intentional disregard for the truth.

In deciding the case, however, the commission failed to address these issues. It first decided not to address the standard of proof used to determine libel. The commission argued that the issue had not been raised domestically, and thus failed to analyse whether the failure by the local courts to adopt the real malice standard would have been legitimate under current international norms.

appropriateness

Second, the commission based its analysis of the appropriateness of the damages awarded exclusively on domestic law, paying particular attention to the internal process through which the sum was determined. The commission focused on the fact that the award in the case in question had gone through an internal process which saw it being reduced on appeal rather than on the appropriateness of the sum ultimately awarded.

The decision in this case raises serious issues. The Inter-American Commission is called to decide cases analysing the compatibility of domestic law with international standards, rather than pay deference to those domestic norms without analysing their legitimacy and conformity with the American Convention. In declining to review the proportionality of the award and, by extension, its impact on freedom of speech, the commission framed its analysis purely on formalities rather than the substantive issues underlying the case at hand. Finally, in not determining whether the award imposed was proportionate, the commission failed to analyse comparative decisions, not only at the international but also at the domestic level, thus, rendering the analysis incomplete under both.

This decision raises serious questions regarding the role of the commission in protecting and defining the right to freedom of expression. The Inter-American Commission, which up until now had been a powerful advocate for freedom of the press, will have to prove in the future that it is still committed to its traditional role.