Tuesday, 21 January 2014

The Defamation Anachronism

Defamation laws are designed to protect the reputations of people against different forms of injury. These may include a lowering of the esteem in which they are held within society, exposing them to public ridicule or hatred, or by causing them to be shunned or avoided.

The general principle, though, is that defamation laws are not justifiable when they are used to prevent legitimate criticism of officials or the exposure of official wrongdoing or corruption. Invoking such laws is also not justifiable to protect someone against harm to a reputation which they do not have or merit.

In many countries, defamation is defined both as a civil tort and as a criminal offence. Under civil law, someone can be sued for in order to pay compensation for the injury caused. Under criminal law, a person can be criminally prosecuted and made to spend time in jail or pay a fine.

In Trinidad and Tobago, and most of the Commonwealth Caribbean, we have these two platforms for the pursuit of defamation actions. What is taking place in parliament at this time is an attempt to partially remove the definition of defamation as a criminal offence. Recourse to civil law will remain. There is no opening of any sluice gate to public opinion or media malpractice, as is being claimed.

There is in fact a growing body of authoritative international opinion opposed to the existence of criminal defamation laws, such as currently obtains under our country’s Libel and Defamation Act.

I must however mention that in the case of George Worme of the Grenada Today newspaper, the Privy Council did find that the existence of criminal defamation on the statute books of that country had been a justifiable part of the law.

Ironically, though Grenada presented the most recent examples of the law being employed and the Privy Council had ruled as it did, it was the first of the Caricom nations to remove such a provision from its law books in July 2012. Why?

I believe that the governments of Grenada in 2012 and Jamaica in November 2013 had been swayed by an argument that has gained traction in countries around the world. I am just back from Antigua and Barbuda where both the government and official opposition have committed to removing criminal defamation from the books. The current ruling party in Barbados also included such a measure in its manifesto two elections ago and in my meeting with the prime minister last year, he committed to placing the matter before parliament.

Some of the leading international authorities on the subject, including the United Nations Special Rapporteur for Freedom of Expression, the Rapporteur for Freedom of Expression for the African Commission on Human and Peoples’ Rights), the Inter-American Court of Human Rights, the OAS Special Rapporteur and the Organisation for Security and Cooperation in Europe have declared in favour of removal of criminal defamation.

In one joint statement by the representatives of the OAS and Inter-American Commissions, they declared that: “In democratic societies, the activities of public officials must be open to public scrutiny. Criminal defamation laws intimidate individuals from exposing wrongdoing by public officials and such laws are therefore incompatible with freedom of expression.”

The common premise is that defamation should not be a criminal offence because jailing journalists has a chilling effect on free speech.

In another joint statement, the UN and European Special Rapporteurs were more direct - “Criminal defamation,” they said, “is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.”

The other issue that needs to be looked at is that defamation is not exclusive to mass media behaviour and the perpetrators of libel and slander are not always journalists. The focus on journalists has come about for two main reasons. One is that the process of mass dissemination of publication has been the traditional domain of the media – both print and electronic. The other is that there exists a naturally adversarial relationship between a prying media and closeted government.

In today’s world of social media, old notions of the role of the press have given way to a much broader and more diverse platform for free expression. The implications for all users of social media and others expressing themselves in public spaces are obvious.

It is now well established that defamation via all forms of content are fully actionable in any jurisdiction in which content is published online by anyone. This means that the threat of criminal defamation should not only be the concern of journalists, but of all citizens who have a point of view – whether they publish it on their Facebook page or Twitter or any other social media platform.

The current amendment before the House of Representatives represents a piece-meal approach to the question of removing criminal defamation from our books. Section nine is being removed, but section eight, under which a prison sentence of two years is possible, remains.

One would have thought that opposition to the proposed amendment would have focused on this omission. Instead, sadly, what is being proposed is a return to a status quo that does not pronounce well on our democratic aspirations.

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