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Freeing up of the defamation laws



For decades editors across the Caribbean have lobbied for true freedom of speech and a freeing up of the defamation laws similar to those in the United States.

At the moment the onus is on the media house to prove or disprove the defamation.{{more}}

A defamatory statement has been variously defined in various cases and include a statement to man’s (or woman’s) discredit, or which tends to lower him in the estimation of others, or which tends to expose him to hatred, contempt or ridicule, or which tends to injure his reputation in his office, trade or profession, or which tends to injure his financial credit, or which causes others to shun or avoid him.

Especially in matters of public interest editors have been restrained from publication of the statement for fear of being sued. The defences available to a media house are: (1) Justification (the media house must prove the truth of the statement); (2) Absolute privilege (something said in a Law Court or Parliament provided it is reported expeditiously); (3) Qualified privilege where the person making the statement made it in good faith and without malice on matters of public convenience and welfare; (4) Fair comment (on matters on which the public has legitimate interest and on which they should be able to comment freely as long as it is without malice and without imputing improper motive); (5) Unintentional defamation (innocent publication but this is available only in Jamaica, Grenada, Guyana, and the Cayman Islands); (6) Apology and payment into Court (before the case starts the newspaper can apologise and propose a settlement); (7) Consent (where the person consents to the publication about himself).

Last week the House of Lords made a significant judgment, a concise explanation of which is also published on this page by attorney Andrew Cummings, which allows the publication of the defamatory statement without the media being held to prove the accuracy of the statement but under two conditions: (1) it is a matter of public interest and (2) it is a product of “responsible journalism”.

“Responsible journalism” is defined by 10-points in another case in 2001, Reynolds vs Times Newspaper, though the House of Lords did say that the defamatory statement must not be taken out of context and the 10-points rigidly applied one by one. Rather the points must be applied to the defamatory statement within context of the entire article.

In essence, as long as the media house has done all it can do to verify the facts of the situation and was unsuccessful (as opposed to discovering that it was false) and as long as the matter is in the public’s interest, the media house can still publish the statement.

Cummings in his article sounds some cautions about its immediate application.

Nevertheless, in principle, this is a ruling that we all in the journalism fraternity have longed for, for years and we hope that the Caribbean law lords do not rush to pass new legislation to overturn this but give it a chance within the context of media as the Fourth Estate.

Baroness Hale of Richmond in her judgment could not have said it better and we endorse it a thousand percent: “We need more such serious journalism in this country and our defamation law should encourage it rather than discourage it”.