EDITORIAL - No time for excuses on libel reform

We hope that remarks in Parliament on Wednesday do not represent the unfolding of a tactic of using the supposed failings of others to back away from a solemn undertaking to do what is right.

For overhauling Jamaica's archaic defamation laws, as Prime Minister Bruce Golding knows, is, of itself, right and sensible. It ought not require the quid pro quo of a press council.

Indeed, it may be that a press council, as a self-regulatory body, would be of value, helping in the arbitration and settlement of disputes between the media and persons who believe they have been unfairly dealt with before these matters escalate and/or reach the courts. But the absence of one - notwithstanding how long either the prime minister or Mr Ronald Thwaites has waited in vain - does not constrain the right, or the ability, of persons who believe they have been libelled to seek redress in the courts.

Rather, as Mr Golding recognised while in Opposition and started to act on when he came to office, the chilling effect of the current circumstance is on the press which, for the most part, has deep ethical values as codes for its conduct. This newspaper regularly publishes its own.

But Jamaica's overly restrictive defamation laws, buttressed by unrestrained financial awards for defamation, the impecuniosity of media organisations and the high cost of legal representation, embolden public officials to misbehave in office without the sharpest of scrutiny.

The consequence is a limit, diminution even, on transparency in governance and on the ability of citizens, usually via the press as proxy, to hold their leaders to full account. The ultimate victim, in the circumstances, is democracy, or the quality thereof.

That is what Mr Golding, during the fresh days of his administration, wished to prevent when he appointed the committee chaired by Justice Hugh Small to review the libel laws.

Unfortunately, the parliamentary committee that reviewed the Small Report, and recently forwarded its recommendations to the full legislature, misapprehended the breadth and validity of the idea espoused by Mr Golding. They ended up treading a narrow path.

Most fundamental issue

For instance, regarding the most fundamental issue of the reform discussion - the scope of public officials to claim defamation - the committee's proposal, essentially, is to maintain the status quo. So, the burden of proof that a statement is defamatory and damaging rests not with the plaintiff, but with the defendant.

Public officials, with their control of vast resources, including the State and its power over people's lives, enjoy the same protection of privacy as the ordinary citizen.

Nor did that committee agree with placing caps on defamation awards, empanelling special juries in defamation cases, or making triviality a defence in a situation where the libel is unlikely to hurt a person's reputation.

We do not believe that three years in office and the scrutiny of the press would have eroded Mr Golding's previously declared and, he suggested, deeply held conviction about the importance of a free, robust press in a liberal democracy and the legal environment in which it should operate. So, we expect that the PM will soon resume his articulation, without quid pro quo, of these ideas and for greater space within which the press can operate.

The opinions on this page, except for the above, do not necessarily reflect the views of The Gleaner. To respond to a Gleaner editorial, email us: editor@gleanerjm.com or fax: 922-6223. Responses should be no longer than 400 words. Not all responses will be published.