A.J. Nicholson, Contributor

It has to be accepted that the right to freedom of expression should be closely guarded and that, in a democracy, persons should be able to mount criticism against elected officials and other public figures who have a significant impact on public life and public opinion or upon the ability of the ordinary citizen to survive within the society.

The social contract also requires an understanding of the inalienable right of every individual to the protection of his dignity and his good name and reputation.

A committee established to review the laws of slander, libel and defamation and to make recommendations for "changes that will ensure transparency and accountability in the context of a new framework of good governance" has presented its report to the prime minister. That report which was tabled in the Houses of Parliament is expected to be debated in due course.

Certain interests in Jamaica, including the media, have expressed the view that there is the need for reform of our libel laws, particularly in the awarding of high damages in defamation cases, "which has resulted in some journalists practising self-censorship".

At the heart of that observation is the suggestion that the press should have greater latitude to criticise public officials without the threat of the kinds of awards which could "ruin" their operations. It is also said that there should be a 'wire service' defence in instances where material is reproduced from a reputable news agency or wire service.

Meaningful inquiry needed

These are weighty matters in today's technological age and, coupled with other pressing issues which have been addressed within the Commonwealth, clearly call for meaningful inquiry as to our approaches here in Jamaica.

There is every good reason, therefore, that there should be full parliamentary discussion on the recommendations contained in the committee's report, including suggestions relating to offer of amends and apology to an aggrieved party. For, this latter may be the closest we may hope to reach in repairing the breach concerning a damaged reputation.

A consideration of several of these issues came before the Inter-American Commission on Human Rights not long ago and a contemplation of the substantial arguments that were presented could be of immense value as we come to discuss those recommendations.

In 2004, a former editor of The Gleaner, Dr Dudley Stokes, petitioned the Inter-American Commission on Human Rights, complaining that Jamaica's current libel law is incompatible with the American Convention on Human Rights. In essence, the Stokes petition was submitted on behalf of The Gleaner Company; it grew out of the matter of Anthony Abrahams v The Gleaner Company, a well-known libel case that had its origins in the decade of the 1980s.

Libellous story

In 1987, The Gleaner Company published, and republished with one omission, a story in The STAR about Mr Abrahams. After several years of litigation, the Jamaican high court found that the story had defamed Mr Abrahams, and a jury awarded him damages of J$80.7 million. The Court of Appeal accepted that The Gleaner Company was liable to Mr Abrahams, but reduced the award of damages to J$35 million.

The Gleaner Company appealed to the Privy Council, primarily on the question of damages, on the ground that the amount awarded was excessive. Their lordships did not pass judgment on the argument deferring instead to the local court's ruling.

This provided the background to the petition submitted by Dr Stokes to the Inter-American Commission, contending that the Jamaican Government was liable for a breach of the terms of Article 13 of the American Convention. In keeping with Jamaican law, Article 13 (1) of the Convention specifies that "everyone has the right to freedom of thought and expression".

If this were all, then any limitation on freedom of expression would be a breach of the Convention. But, Article 13 (2) contemplates restrictions on freedom of thought and expression. So, for example, it indicates that freedom of thought and expression "shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure ... respect for the rights or reputations of others." Thus, The Gleaner Company had to convince the commission that the award for Mr Abrahams was disproportionately large - that the damages awarded were more than the amount necessary to ensure respect for the rights and reputation of Mr Abrahams.

Wire service defence

In addition to arguing that the J$35 million award was disproportional, The Gleaner Company offered other contentions that touched and concerned libel law in general. Among Dr Stokes' arguments were:

That the Jamaican government wrongfully allowed The Gleaner Company to be punished for reproducing defamatory articles derived from a wire service report: this is based on the insistence that there should be a "wire service defence" when a local newspaper acts in good faith in reproducing a story from a reputable foreign news source.

Second, that the Government failed to implement an "actual malice" test in the law, and so allowed the country's laws to be inconsistent with the requirements of international law. The argument is that, with respect to public figures, the approach taken by the United States Supreme Court in New York Times v. Sullivan [italics ] should be regarded as binding law for all parties to the American Convention on Human Rights. The Sullivan approach is that, if a public figure is defamed, the person responsible for the defamation should not be liable unless it can be shown that he acted with actual malice in sanctioning the publication.

Third, that the Government failed to meet its obligations under Article 13 of the American Convention because the disproportionately high award undermines the right of the Jamaican people to be informed of actions of their public figures.

At the time when these contentions were presented to the Inter-American Commission, I served as attorney general, and so followed with studied interest the flow of these significant arguments both for and against The Gleaner's position. Initially, I thought it a little curious that the Government of Jamaica was being taken to the commission for a matter that arose exclusively between two private litigants. The real complaint, however, was that the State was responsible for allowing a legal situation to endure in which such an award was sustainable.

Freedom of expression

The Government's response to the petition was prepared by a team led by then Deputy Solicitor General Professor Stephen Vasciannie, under the supervision of former Solicitor General Michael Hylton, QC. The Government's team established, as a general proposition, that freedom of expression is fully recognised in law and practice in Jamaica, and presented responses to each of the specific contentions put forward in the Dudley Stokes petition.

The Government argued that a country did not necessarily have to implement the wire service defence or the actual malice test in order to meet the requirements of Article 13 of the American Convention.

Likewise, the Government maintained that Article 13 supported both freedom of expression and the need to protect the reputation of others. Consequently, newspapers and other media need to ensure that they promote responsible journalism. freedom of expression is both inherently and instrumentally valuable, but it does not provide unrestricted licence to defame public or private figures.

Proportionality

On the signal question of proportionality, the Government argued that the commission should be wary of mounting a retrial of the Abrahams case since, after all, two Jamaican courts and the Privy Council had already addressed the issues in express terms. The Government further indicated that:

"This is not an argument to the effect that the commission may not assess whether Jamaica's domestic law is incompatible with the American Convention. Rather, the point is that the question whether a particular libel award is too high to be compatible with freedom of expression is best assessed in the context of Jamaica's domestic legal system. And the best tribunals to make that assessment are tribunals within the domestic system that are regularly called upon to make judgments about libel awards."

I have taken the liberty of quoting this passage from the Government's submission at some length because, on my reading of the Commission's report, this was a key consideration for the Commission. Thus, the Commission found that Jamaica's domestic courts were in the best position to determine the amount payable to Mr Abrahams and assess the proportionality of the award with respect to the harm suffered by him. This, in my view, must be right: the commission could hardly claim that it had a better appreciation of the facts, the law and the ensuing effect of the libel against Mr Abrahams.

In the result, the Inter-American Commission accepted the local court's ruling, and this should remind us that all Jamaicans, including those who publish, must be sensitive to the reputations of others.

Surely, these are indispensable requirements of any "new framework of good governance".

A.J. Nicholson, an attorney-at-law, is the opposition spokesman on justice.