Cock mout kill cock!

Donia Fuller, Guest Columnist

The Law of defamation seeks to balance the right of an individual to his or her reputation with the right to freedom of expression. It ought to be no surprise that in many instances, the courts have been asked to perform a precarious balancing exercise, particularly when vociferous opinions are expressed in relation to our politicians and their actions and, for some, inaction. However, for many of us as Jamaicans, the words that spew from our mouths, which are, in fact, defamatory, may never reach the level of national news, but rather come in the form of vulgar words exchanged between neighbours or commuters on a bus - in other words, everyday situations. Moreover, in this age of social media, it would be remiss of me not to mention Facebook and Twitter.

Arguably, for persons in the Caribbean context, it was a saving grace that there was a distinction between libel and slander - slander referring to defamatory words that are, for the most part, spoken; and as for libel, defamatory material in printed form. The crux of this distinction was that whereas a complainant did not need to prove special damages for libellous matter, such special damage had to be proven for slander, except where the slanderous words imputed that one is guilty of a crime, that one had a particularly repulsive disease, an imputation that affected one's professional reputation, or where impropriety was imputed in relation to a woman. Therefore, in some instances, persons could licentiously throw around defamatory allegations about individuals, who would be left with the burden of proving special damage was suffered, which at times proved to be an insurmountable challenge.

However, in Jamaica, we have a saying, 'cock mout kill cock!' and it would seem that the law on defamation has caught on, as not only has the act abolished the distinction between libel and slander, it has also stated that, "the tort of defamation is actionable without proof of special damage".

Thus, for those of us who like to throw words around wantonly, "yuh goose cook!" For persons who are vigilant about the protection of the right of freedom of speech generally, and proponents of the view that the media acts as the watchdog of government official's conduct in the protection of democracy, this may be a cause for concern.

SAFEGUARDS MAINTAINED

While this concern is understood, one would humbly submit that the act contains inherent safeguards that function similar to an acrobat that must walk a precarious tightrope in balancing both the right to freedom of expression and by extension opinion. Opinion is mentioned as when sections 13 (3)(c) and (d) of the Charter of Rights of Jamaica are coupled, they speak to a right of freedom of expression and what is arguably a broader right "to seek, receive, distribute or disseminate information, opinions and ideas through any media".

There are three primary safeguards contained in the act. In the first instance, the act abolishes criminal defamation. In so far as this enables Jamaica to comply with Jamaica's international obligations under the International Covenant on Civil and Political Rights in relation to freedom of expression, it has long been recognised that criminal defamation can have a chilling effect on freedom of expression.

Additionally, the act provides that irrespective of the number of defamatory allegations published in defamatory matter, only one suit can be brought.

Finally, the act has effectively provided for the non-applicability of intermediary liability. An intermediary can be considered as a platform that facilitates expressions of individuals. For instance, where a telecommunications service provider allowed users to join chatrooms prima facie, that service provider acted as an intermediary. In this regard, the act provides protection where that entity did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.

Acts of Parliament are rarely perfect, and failings are often recognised only when litigants seek to utilise their provisions. Inexorably, the fate of this act remains to be seen. Nonetheless, one would be bold to say hats off to our legislators and draftsmen, as this seems to be a good piece of work, and for those of us who have the power to spit lava, cock mout kill cock - so watch your mouth!

Donia Fuller is a second-year student at Norman Manley Law School. Send feedback to donia.fuller@gmail.com or columns@gleanerjm.com.