Libel reform a mixed blessing for claimants

A NUMBER of the proposals by parliamentarians to reform the libel and defamation laws will result in an expansion of a person's right to protection against damage to his/her reputation, while other recommendations will leave claimants at a disadvantage.

On the positive side, the rules governing the assessment of damages are to remain. The parliamentary committee rejected the recommendation to introduce caps on the size of damages as well as to codify the assessment of damages, which they believe could restrict the judge.

Another positive aspect of the proposed reforms for individuals is that the parliamentary committee rejected a recommendation to allow a media entity to present a defence of triviality - that although a person is defamed, he/she is not likely to suffer harm to his/her reputation. The committee, in its December 2010 report, "did not agree with this recommendation as it was felt that triviality should go to damages, not to whether or not the person had been defamed".

Claimants will also welcome the proposal that a publisher cannot defend his action if he publishes defamatory material after being made aware of it.

Smaller awards for damages

On the negative side, the suggested removal of the assessment of compensation from a jury to a judge will be disadvantageous to the claimant based on the track record of damages assessed by jurors. It is believed that a judge is likely to assess compensation in a less emotional and more rational manner than the average juror, thus resulting in comparatively smaller awards for damages to claimants.

In addition, the recommendation to reduce the limitation period to commence court action from six to two years after the date of first publication leaves the claimant with significantly less time to find the financial resources to mount a successful legal case. This is notwithstanding that the court can extend the time in the interest of justice. In other jurisdictions, the limitation period is one year.

Additional changes are needed in the administration of the defamation laws to make them more accessible to the average person. For example, the reforms should make it a simple requirement - like filling out a claim form - to file a libel case with the courts. The necessity for legal representation should be after the judge determines if there is a case to be defended. Legislators should also consider putting a limitation period on the completion of defamation cases and settlement.

Byron Buckley is associate editor - special projects. This column does not represent the views of The Gleaner Company, the Press Association of Jamaica or the Media Association Jamaica. Send comments to columns@gleanerjm.com and byron.buckley@gleanerjm.com.

20 recommendations of Libel Committee

✓ Abolition of the distinction between slander and libel.

✓ Limitation period for action reduced from six to two years.

✓ Replacement of the defence of justification by the defence of truth.

✓ Defence of triviality - should not be introduced.

✓ Defence of an offer of amends.

✓ Publication of an apology.

✓ Defence of innocent dissemination.

✓ Remedy of declaratory order.

✓ Remedy of a correction order.

✓ Role of jury to determine guilt/innocence, judge to assess compensation.

✓ Assessment of general damages - no change to current law.

✓ Recognition of various media formats.

✓ Abolition of common-law offence of criminal libel.

✓ Wire-service defence of innocent dissemination.

✓ The standard of proof for public officials should remain as is for other citizens.

✓ No cap should be placed on damages.

✓ No defence if publisher publishes defamatory material after being made aware of it.

✓ Two-year limitation period from date of first publication on website.

✓ Defence of innocent dissemination for subsequent publication of defamatory matter by other websites.

✓ Special juries for defamation cases.