EDITORIAL - Follow OAS standard on libel for public officials

PERHAPS COMING from Catalina Botero, the idea will be easier to apprehend by Jamaica legislators than if, and when, it is articulated by this newspaper and others.

If that is the case, and they embrace and act on the positions she has articulated, Ms Botero's visit would not only have been timely, but of immense value to Jamaica. For she would have contributed to enhancing the possibilities for good governance and, thereby, a widening of the democratic space.

Ms Botero, of course, is the special rapporteur for freedom of expression at the Inter-American Commission on Human Rights, which makes her current visit to Jamaica opportune, coming as it does in the midst of the discussion over how far Jamaica should go in reforming its archaic defamation law.

Not very far is the decided position of our legislators, judging by the uncritical embrace by the House of Representatives of the report by a special parliamentary group that reviewed the Small Committee's reform on libel reform.

Small concessions

The legislators agreed to small concessions, but rejected that more liberal proposals, in particular anything that would make it more difficult for public officials to bring actions for defamation against persons - which usually means the press - who shed the spotlight on their activities.

Our parliamentarians insist that they, and other public officials who control power, state resources and substantial influence over people's lives, should - even when scrutinised over the conduct of their public duties - enjoy the same level of privacy and protection from defamation as private individuals.

This is where Ms Botero's statements in Jamaica and the philosophy that underpins them are apt and commended to the Jamaica authorities as they prepare to send the defamation reform legislation for drafting.

"When you become a public official, you have to know that you will be under very hard scrutiny because you have important responsibilities," she told this newspaper. "You are not like everyone else ... . The increased scrutiny is good for democracy."

We agree. The issue, though, is how to move from principle to concrete action.

Defamation action

In this regard, our Government, we believe, would do well to follow the direction being taken by several countries in Latin America and the hemispheric standard being shaped towards the right of defamation action by public officials by the case law emerging from the Inter-American Court on Human Rights (ICHR), although Jamaica is not a party to that court.

Indeed, as a recent ICHR publication on the issue noted: "... State entities and officials, as well as those who aspire to hold government positions, must have a higher threshold of tolerance in the face of criticism because of the public nature of their duties. In a democratic society, given the importance of monitoring the conduct of public affairs through opinion, there is a narrower margin for any restriction of political debate or discourse on matters of public interest."

Giving practical expression to such an obviously rational position demands limiting the right of public officials succeeding in defamation claims, except in cases where there is expressed malice on the part of the accused. At the very least, the burden of proof of the falsity of an allegation, and resultant damage, should be shifted to to the claimant.

Our legislators, we propose, should listen to Ms Botero on the subject.

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