The process of libel reform in Jamaica is moving slowly forward. In August 2010 we posted about the report of the Committee chaired by Mr Justice Small which had been published in 2008 and was then before a Joint Select Committee. This considered the Small Report for over two years and received evidence and submissions, including a visit from our own Mark Stephens (reported here).
The Joint Select Committee Reported in December 2010. The Committee disagreed with the recommended one year limitation period (preferring two years) and the proposed defence of triviality. It accepted most of the other recommendations. In relation to the appropriate approach to claims brought by public officials the Committee said:
The Small Committee had put forward three options. The first was to adopt the Sullivan principle which requires the public official to prove actual malice. The second option was to reject the Sullivan principle but change the burden of proof,- that is, the public official would be required to prove that the publication was not only defamatory but also false. The third option was to make no change to the law, as the defence of reasonable journalism established in the Reynolds case and clarified and applied in later cases is adequate”.
A number of relevant documents including minutes and submissions to the committee can be found on the “Free Speech Jamaica” website. There is an interesting discussion of the issues raised by the Committee’s report by Claude Robinson in the “Jamaica Observer”.
The Report was debated by the House of Representatives in its first sitting in January 2011. The debate was piloted by Prime Minister Bruce Golding. He said that libel and slander laws were inhibiting freedom of expression:
“The media is a critical pillar of a free and democratic society, and much as I get annoyed as indeed I am sure many others in this House sometimes, at the sometimes reckless way in which liberty is taken, I can’t think of any alternative with which I would feel comfortable, or under which I would want to live. And therefore we thought it was important to ensure that the laws relating to defamation are aligned with that thinking and are aligned with our hopes and aspirations as a democratic country, particularly at a time when we are on the verge of enshrining in our constitution a new charter of fundamental rights,”
However, in the course of the debate, he also complained that he had been waiting for nearly four decades for the fulfilment of a promise by the local media to set up the press council, which would hear complaints from members of the public whose reputations have been smeared by unjustifiable reports published in the press.
The House of Representatives approved the report of the joint select committee on 25 January 2011. The contents of the report will now go to the Chief Parliamentary Counsel for the bill to be prepared which will then be signed off on by Cabinet before it comes before the House of Representatives.
There has been a lively debate abut these issues in the pages of the “Gleaner”. It published a piece by the immediate past president of the Press Association of Jamaica, Byron Buckley, entitled ‘Libel committee sheds little light on accountability’ arguing that, in the interest of promoting accountability and trans-parency, public officials’ only defence against libel should be to prove that the media entity acted maliciously – the Sullivan principle. This produced an interesting response entitled “Media biased on libel reform?” which concludes with the observation “The media should have no special right to lie”. Mr Buckley then responded with a piece headed “The Burdens of free speech remain”.