Libel Law Reform – Proposals from Jamaica

Hugh Small

In a Law and Media Round Up a couple of weeks ago we mentioned libel law reform proposals being considered in Jamaica.  The common law of libel in Jamaica is the same as that in England and Wales and it is of considerable interest to see how they have approached these issues.  The Media Association of Jamaica has kindly provided us with copies of the Review of Jamaica’s Defamation Laws by a Committee Chaired by Justice Hugh Small and of the the Submission to Joint Select Committee by the Media Association and the Press Association.

In November 2007, the prime minister of Jamaica appointed a committee of persons to review the defamation laws of Jamaica.  The Committee included lawyers, representatives of the press, the opposition and the NGOs.   The terms of reference of the committee was to review the libel laws of Jamaica and to recommend such changes as may be necessary to ensure transparency and accountability and in particular to:

• Support the principle of freedom of the press;
• Provide reasonable protection against false and damaging publication
• Prevent the use of defamation laws to suppress information to which the public is reasonably entitled;
• Impose appropriate burden of accountability on public officials holding positions of trust; and
• Evaluate the actual damages caused by slanderous or libellous publications and determine appropriate remedies.

The Committee reported with admirable promptness, 3 months after its appointment.  It made thirteen recommendations as follows:

Recommendation 1: Abolition of the distinction between libel and slander; – with their replacement with a single cause of action that requires no proof of special damage.

Recommendation 2: Limitation Period: The recommendation was to reduce the limitation period from 6 years to 1 year.  This is, of course, the current position in England.

Recommendation 3: The Defence of Justification to be renamed “Truth”. This requires no further comment.

Recommendation 4:  A defence of “triviality”: This defence would apply only where the defendant is able to satisfy a court of law that the circumstances of publication were such that the defendant was unlikely to suffer harm to his reputation.

Recommendation 5: Offer of Amends:  This would be similar to the current English position.

Recommendation 6: Apology: In order to facilitate early apologies, the Committee recommended following the Australian provision that where a publisher makes an apology, it is not deemed as an admission of liability or fault (see also s. 24(3) of the Defamation Act  2009 in Ireland).

Recommendations 7: Innocent Dissemination/ Responsibility for Publication.   It was recommended that a person ought not to be liable for defamation if he is merely a subordinate distributor of the material and is not the author of it or has no input or control of the content of that which he distributes, in line with the Australian position.

Recommendation 8: Declaratory Order. This remedy would apply to a situation where the plaintiff feels that their primary issue is a restoration of their reputation by the said apology.   Under section 28 of the Irish Defamation Act 2009, provision is made for an aggrieved party to apply to Court for a Declaratory Order that a statement was defamatory. This is a “speedy remedy” procedure and allows for a defamation case to be heard by a judge sitting alone who will make the Declaration if s/he sees fit. No damages can be awarded.

Recommendation  9: Correction Order A correction order would operate as an additional remedy to declaratory judgements. It would allow the courts to direct the terms of any correction that may be made in favour of a plaintiff.   Under s. 30 of the Irish Defamation Act 2009 a Correction Order may be applied for by the plaintiff in the course of the trial of a defamation action. The plaintiff must notify the defendant at least seven days before start of the trial that s/he intends doing this. The judge would then be entitled to make an order directing the publisher, who is found to have no defence to a defamation action, to publish a correction in a manner and on a date to be specified in the order.

Recommendation 10: Role of the Jury. It was recommended that the jury should cease to assess damages in defamation cases.  The members of the Small Committee were agreed that the role of the jury in the assessment of damages should be abolished.  It is interesting that since judge made reform of the law in England in the 1990s, this is no longer seen as a problem.

Recommendation 11: Guidelines for Assessment of Damages. The suggestion under this recommendation is that guidelines be included in the libel laws for the benefit of the judge (and in the case of a jury, the judge would have to direct the jury) on the criteria to be considered in assessing damages.

Recommendation 12- Publication by various means.  The was simply to broaden the scope by which publication can take place in including in the revised legislation, a few identified media.

Recommendation 13 – Criminal Libel.  It was recommended that these offences be abolished.  This has already taken place in England.

A Joint Select Committee was set up to consider this report and has not yet reached any conclusion.  The Media Association of Jamaica and the Press Association of Jamaica made joint submissions to this Committee which, in general, supported the recommendations but raised additional points on the capping of damages and a “wire services” defence.

The Small Report is interesting as it shows how another jurisdiction – with similar libel laws to those in England and Wales – has grappled with the problems of reform.   It is particularly noteworthy that in Recommendations 8 and 9 it has directly confronted issues of “remedial reform” which are ignored by the Libel Reform Campaign and by Lord Lester’s Defamation Bill.