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By Claude Robinson |
August 2002: For more than five years now regional media bosses have been trying to convince Caricom governments to enact more liberal libel and defamation laws to entrench freedom of the press, protect the media from potentially ruinous libel awards and promote the public interest.
They argue that a fully informed citizenry is a foundation stone of a democratic society. Much of this information must come from the mass media. If the media is hobbled by burdensome legal restraints it cannot perform its public role properly. Hence, removal of restraint on press freedom not only benefits media owners but the citizen's ability to participate effectively in constructing and maintaining democracy.
Back in January 1997 leading publishers and broadcasters in the Caribbean met with Caricom ministers of legal affairs and attorneys general in Port of Spain, Trinidad, and presented their case for changes. Essentially, they wanted the specific inclusion of freedom of the press (written and electronic) in the constitutions, introduction of "wire service" defence, provide greater legal protection to criticise ministers and public bodies and reviewing the system of jury trials in defamation cases.
Most Caribbean constitutions enshrine "freedom of expression" for all citizens. But they do not give any special privilege to the press, unlike the US Constitution. (The First Amendment states that "Congress shall make no law ... abridging the freedom of the press and expression in whatever form.")
Some of the other proposals are already included in the 1996 Barbados Defamation Act and the media owners would, at a minimum, like to have this accepted as the model for libel laws in the English-speaking Caribbean. Among other things the Barbados law provides protection for "unintentional libel" where a person is defamed in circumstances that are not deliberate, that is, the libel was not intended and "absolute privilege for live broadcasts" of events outside the control of the broadcaster. The judge may direct the jury on the quantum of damages in personal injury cases.
"We are doing a pretty lousy job in trying to advance and protect our interest," lamented Oliver Clarke, chairman of the Gleaner Company, describing the failure, so far, to get the proposals accepted. "We need desperately to get the laws of libel revised."
Caricom ministers say they are still examining the proposals but at the recent meetings in Antigua of ministers responsible for information, communication and technology, (May 13-15) and the 5th Annual Caribbean Media Conference (May 16-18) the two sides remain far apart. Caricom says there is no money to pay the consultant to complete the study. The media owners say they will pay the consultant's fee, believed to be about US $10,000. So there is a real question as to whether it is about money or political will.
First, some background. The discussions on libel and defamation started against a background of two big libel awards against the Gleaner. In 1995 accountant Leaman Strahan won J$23 million, then US$750,000, and in 1996 Anthony Abrahams, broadcaster and former government minister, was awarded $80.7million, then US$2.3m. The feeling among publishers was that such awards could bankrupt most newspapers. (Both awards are still on appeal).
In Trinidad and Tobago, then Prime Minister Basdeo Panday angered the entire regional media fraternity. He demanded that Guardian editor, Jones P Madiera, be removed for alleged "bias". Barbadian journalist, Julian Rogers, was expelled. Charges of "racism" were made against Ken Gordon, chief owner of the media conglomerate, Caribbean Communications Network, CCN; and there were plans to introduce a controversial government-inspired code of conduct on the media.
In those circumstances, US law and practice seemed very attractive. Guyana's David deCaires, himself an attorney and publisher of Staebrok News has led regional advocacy on this point, the case most often cited being the well-known 1964 Sullivan v New York Times.
In that case, an Alabama city official, LB Sullivan, filed suit over an advertisement in the New York Times that included statements, some of which were false, about police actions against students engaged in civil rights demonstrations. Sullivan, whose job included supervision of the police department, said the advertisement sullied his reputation. In the southern United States of the 1960s, a local court agreed and awarded damages. But the US Supreme Court took a very different view in a ruling that established the principle in US jurisprudence that the press should have wide latitude in commenting on the actions of people in public life.
Writing the court's opinion, Justice William J Brennan said, "Debate on public issues should be uninhibited, robust and wide open and ... it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials."
Newspapers, faced with the possibility of huge libel damages, might well succumb to a "pall of fear and timidity" and tone down any criticism of public officials. The threat of massive costs "dampens the vigour and limits the variety of public debate," Justice Brennan wrote. For a public official to be awarded damages for a false statement about his conduct as part of his official duties he must "prove that the statement was made ... with actual malice, that is, with knowledge that it was false or with reckless disregard as to whether it was false or not". (See http://laws.findlaw.com/us/376/254.html )
And herein lies the rub. In a region where many political leaders and policy makers feel that the press is already too free, any movement soon towards the US position would only grant a new licence of irresponsibility to the media. Radio and TV talk show hosts, in particular, would seize it to declare open season on politicians and public policymakers.
It must be acknowledged that the English-speaking Caribbean enjoys more press freedom than most other places, but there have also been numerous instances of governments using the law to restrict the freedom of journalists and withhold broadcast licences. And regional courts have often supported this position.
Antiguan attorney, Bernice Lake, recently commented that the British Privy Council has been more liberal on press freedom and human rights than local and regional courts. Out of 18 appeals from judgements in the Eastern Caribbean Court of Appeal to the Privy Council in recent years, 14 were overturned and only four upheld.
Oliver Clarke and his colleague media owners must continue to press governments to change libel laws. That is in the public interest. But the media also need to address issues other than the actions of governments.
First, journalists must respect their own canon of "commitment to truth, to the pursuit of accuracy, fairness and objectivity and to the clear distinction between news and advertising".
Second, they need to be as scrupulous in scrutinising private corporations. Firms must not be allowed to pass on business costs to the environment or taxpayers because the media does not investigate their actions with the intensity reserved for politicians.
Third, journalists and media owners must contend with the potentially corrupting influence of large advertisers who demand favourable editorial coverage. The well-known practice of offering travel, hotel, cell phones, clothing and other gifts to media workers is potentially harmful to the public interest in that it could encourage journalists not to see or hear certain things.
In the final analysis, freedom of the press is not only about the right of media owners to broadcast or publish without governmental restraint. It is also about the right of the public to be fully and accurately informed on matters which allow them to act as responsible citizens.
Claude Robinson is senior fellow in the Research and Policy Group, Mona School of Business at UWI.