EDITORIAL - They would darken the press

Persons who ought to know better have been lending their imprimatur to a dangerous mixture of falsity, misrepresentation and misapprehension about the role and function of the press in societies like our own. Should these notions take hold, they could stall, reverse even, recent gains towards the openness and transparency that inform good government.

The trigger for the debate is the recent review of Jamaica's outdated defamation laws by a parliamentary committee whose members closed ranks in resisting proposals for change that would make it more difficult for the actions of public officials to be scrutinised.

Two things are notable about this matter:

First, the politicians and the residual leftist elite sought to cast the media's position as being in favour of reforms along the lines of the US Supreme Court ruling in New York Times vs Sullivan that has been projected as making it impossible for public officials to sue for libel. Jamaican lawmakers would have none of that.

Freedom of expression

The second strategy is the attempt to counterpoise the concept of freedom of the press against freedom of expression, rather than being shared limbs of the same species.

Or, as Dr Horace Chang, the Cabinet minister, argued the case against the press: "Freedom of expression is not synonymous with freedom of the press, as the press in the modern world is not free, but very much part of the business elite."

Our first point is about the misapprehension, misrepresentation and/or deliberate obfuscation of the Sullivan principle. As the Jamaican media outlined to the parliamentary committee, "public officials often misrepresent ... to mean that media and the public are free to defame public officials".

The truth is that in the US, damages cannot be awarded to a public official relating to his official conduct in the absence of proof of malice. The burden of that proof is on the public official.

The Americans, correctly, believe that debate of the behaviour of a public official in the conduct of this duty ought not be lightly shut down when such official has the ability and right to respond. In any event, the Jamaican media did not limit their definition of public officials to government officials, but includes persons of influence in the private sector.

Reynolds principle

When it was clear that our parliamentarians would not embrace Sullivan, the press adopted a suggestion of British lawyer Mark Stephens to keep the present defence of responsible journalism, known as the Reynolds principle, with a change requiring a claimant to prove the falsity of any allegation and that he or she had been substantially damaged by alleged defamation, rather than the defendant proving his innocence.

Politicians did not agree.

The greater misunderstanding, though, is of the unwritten pact between the press and community in which it operates. Both have a shared interest in freedom of expression.

It is upon this freedom, a critical foundation of democracy, that the press superimposes the technology of its business, including its capacity for noise and to reach large audiences.

The society affords the press some privileges. In exchange, it assumes that the press will play a role as watchdog of governance and democracy. When these freedoms are stressed, our society expects the press to use its investigative/reporting skills and reach to call attention to these dangers.

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