EDITORIAL - Lack of courage by defamation committee

THERE IS nothing particularly brave or far-reaching about the recommendations of the parliamentary committee that has just completed, after nearly two years, its review of the Small committee's report on the reform of Jamaica's libel laws.

Crouched behind arguments of constitutional standards, they unsurprisingly continued the protection of their own species - the public official - while ensuring that an encumbered press has to scale high hurdles in unmaking those who misuse their office, or abuse public trust. For it is primarily the public media that are the subject of defamatory action, despite the broad remit of the law.

That, of course, is not how they would frame the argument, notwithstanding the oiled and seemingly measured claim of Ronald Thwaites. The real test, though, is outcome and effect.

At the establishment of the Small committee, confirmed by subsequent statements, a critical aim of Prime Minister Bruce Golding was to ensure that those who hold public office could not hide behind Jamaica's archaic libel laws to frustrate serious public scrutiny of the conduct of their public duties.

No one quite expected that the committee would have accepted and recommended the American standard where public officials or public persons have to prove not only the falsity of a defamatory statement, but that it was accompanied by malice. However, it would reasonably have been expected that on matters of public interest that the burden of proof that a statement was defamatory and damaging should be on the plaintiff.

Our parliamentary committee does not think so. It preferred to rely on the incremental gains in the freedom of expression and the right of the press in reporting the news, as developed in case law, rather than advancing clear and fundamental principles by way of statute.

The upshot

This position has to be read in the context of, and as one with their position against placing a cap on court awards for defamation and for the empanelling of special duties for defamation cases. So, too, must be their dismissal of the proposal that the triviality of a matter should be a defence, in circumstances where a defamatory remark is unlikely to harm a person's reputation. Their argument should go towards the assessment of damages, rather than the fundamental issue of whether a person has been defamed. The upshot: the courts will continue to be flooded with trivial defamation cases that are costly for the press to defend, even if rulings are ultimately in their favour.

Admittedly, there are some, mostly small gains for the press in the committee's recommendations, such as the acceptance of the Small committee's proposal that judges, rather than juries, should assess damages and for the time for bringing a defamation action being two years, rather than the current six. Small, though, had recommended one year. We would prefer six months, given the speed of access to information in today's world.

This committee missed an opportunity to strike a blow in favour of openness and transparency, which we hope the full legislature finds the courage to correct. In any event, they should ensure that any bill that is passed should be up for review in two years.

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