KD Knight calls for return to libel talks
Published:Monday | April 11, 2011 | 12:00 AM
Edmond Campbell, Senior Staff Reporter
NEARLY TWO years after senior opposition lawmaker K.D. Knight rejected the Sullivan v New York Times principle as a suitable guide for Jamaica's libel laws, the Queen's Counsel is now carefully rethinking his position.
The landmark US Supreme Court case, New York Times Co v Sullivan, extended the First Amendment's guarantee of free speech to libel cases brought by public officials. The Supreme Court sought to encourage public debate by changing the rules involving libel that had previously been the province of state law and state courts.
The US Supreme Court held that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.On Friday, while debating a report of the joint select committee of Parliament established to examine the Hugh Small libel report, he said in recent times he has had second thoughts on Sullivan.
The Small Committee carried out an extensive review of Jamaica's defamation laws and submitted its report, Review of Jamaica's Defamation Laws, in 2009.
"I am looking again at the Sullivan and Reynolds test to see which one I would really like to settle on," Knight told his colleagues in the Senate on Friday.
At the same time, Knight's Senate colleague and attorney-at-law Arthur Williams had no misgivings about accepting the Reynolds principle as against Sullivan.
seeking dialogue
Knight said he would again seek dialogue with the Media Association Jamaica Ltd on the Sullivan principle.
"They had a strong position on it and whilst they came close to persuading me, they did not. I would like to speak with them again to see if they can be persuasive enough to show me as a legislator why it is that I should adopt the position that they hold, but as it is now, persuasion by them won't be particularly difficult," he added.
The veteran parliamentarian's fresh consideration on the issue has apparently been influenced by the recent deliberations at the Manatt-Dudus commission of enquiry.
The commission was established to investigate the Government's handling of the extradition request by the United States for Christopher 'Dudus' Coke and the subsequent hiring of US law firm Manatt, Phelps & Phillips to lobby US authorities concerning the request.
Knight argued that while there might be a "few malicious" persons within the media, he questioned whether it was more tolerable to have a journalist who broke the rules or to have a minister "who just lies or to have a minister who uses the authority vested in a corrupt way and then covers up".
Asked Knight: "Which is worse?"
The senior attorney also questioned why public officials who immersed themselves in "plots and conspiracies and then behave deceptively to the public" should be accorded the benefit of presumed good reputation.
Knight pledged to take a closer look at the Sullivan and Reynolds principles while inviting his opposition colleagues to join him in this analytical review.
He noted that the approval of the report of the joint select committee on Jamaica's defamation law represented an initial step in the journey to amend the current legislation on defamation.
The Reynolds defence is one in which a defence can be raised where it is clear that the journalist had made all possible checks and had a duty to publish an allegation even if it turned out to be wrong.
time to re-examine
According to Knight, there was enough time for members of the Opposition to re-examine the two positions before the legislation was drafted and debated in the bicameral legislature.
A member of the joint select committee which examined the Small Committee report, Knight had declared that he would not entertain the Sullivan principle, pointing out that this would amount to giving the media a free hand to defame public officials.
On the question of appropriate standards for public officials, the joint select committee had agreed to maintain the status quo in the current legislation.
The committee made this decision on the basis that the defence of reasonable journalism as established in the Reynolds case and clarified and applied in other cases is adequate.
Under Sullivan, the public official is required to prove actual malice in a defamation case before damages can be awarded to him.
However, Williams disagreed strongly with the Sullivan principle.
He argued that many other jurisdictions that embraced the Reynolds principle had no difficulty in unmasking those who misuse their office or abuse public trust.
Williams is of the view that substantial progress had been made in reforming what was previously described as the country's archaic defamation laws.
Opposition senator and former media practitioner Sandrea Falconer argued that the current defamation laws restricted how media houses operate.
"The public is often short-changed because the risks of libel suits are too great," she said.
While acknowledging that defamation laws were important to guard against character assassination, Falconer reasoned that only those with "deep pockets" could pursue defamation cases, which attract enormous legal costs.
"The result is that the defamation law is often used by the rich and powerful to deter criticism," she contended.