Burdens of free speech remain

Byron Buckley, Associate Editor - Special Projects

COLLEAGUE IAN Boyne took a swing at me ('Media biased on libel reform' in The Sunday Gleaner, January 23, 2011) over my article titled 'Libel committee sheds little light on accountability' that appeared in The Gleaner of Friday, January 14, 2011.

Specifically, Boyne accused me of promoting the "jaundiced view (that) most of the countries of the world ... are lacking in a truly free press" because they - like Jamaica - do not subscribe to the Sullivan principle. This principle promotes the view that a public official's only defence against libel should be proof that a defendant/media entity acted maliciously.

Ian, that's a big red herring.

My critique of the libel-reform proposals currently before Parliament is that they will keep intact the status quo as it relates to accountability on the part of public officials. This was paramount among the terms of reference that Prime Minister Bruce Golding gave the Justice Hugh Small-led committee in late 2007 to undertake a review of the country's libel and defamation laws: "To impose appropriate burdens of accountability on public officials holding positions of trust." Another term of reference was to "prevent the suppression of information to which the public is reasonably entitled".

Burdens of accountability

At the end of a 21-month review of the Small Committee report, a parliamentary committee proposed a set of reforms to the libel/ defamation laws that does not meet the prime minister's criterion of imposing "burdens of accoun-tability" on public officials. Nor do the proposed reforms meet the PM's expectation of preventing the "suppression of information" to which the public is reasonably entitled.

Indeed, Mr Golding has been on record, on several occasions, calling for changes that will not allow corrupt officials to find cover under the defamation laws. Hence, the proposed reforms are disap-pointing. No new burdens of accountability have been imposed on parliamentarians, whom the people have entrusted with absolute privilege in terms of free speech in Gordon House. Under the current proposals, public officials can continue to suppress information to which the citizenry is entitled on the grounds of libel.

We have not moved a year since 1962, the last time the 19th-century Defamation Act was amended.

The Small Committee recom-mended an alternative approach to the Sullivan principle that would achieve the objective of greater accountability and transparency, while protecting the reputations of public officials. (So, Ian Boyne need not worry that Sullivan is the only approach being put forward).

Prove falsity

"This can be achieved," the Small Committee recommended, "by legislation that will require a public person suing for defamation in respect of a publication relating to the conduct of public affairs to allege that in addition to the publication being defamatory of him or her, it was also false."

"Such an amendment," the Small Committee argued, "would not undermine the objective of defamation actions protecting reputations and would also support a greater level of transparency in public affairs."

The Small Committee pointed to the view of the Law Reform Commission of New South Wales in Australia: "... The commission believes that free speech is better served by requiring the plaintiff to prove falsity. This not only addresses the plaintiff's key complaint that the defendant has published a false and defamatory imputation, but also promotes free speech by eliminating liability entirely for statements which the plaintiff cannot prove to be false."

There you have it: there is no need for the Jamaican people to still carry the burden of a defama-tion suit as the price for free speech in relation to the performance of public officials.

This series of columns on libel reform and press freedom do not represent the views of The Gleaner Company, the Press Association of Jamaica or the Media Association Jamaica Limited. Send comments to byron.buckley@gleanerjm.com.