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.
