The Jeff Cumberbatch Column – Enhancing the Freedom of Democratic Expression II
Last week we concluded with the argument that one of the principal reasons that some may think Barbados’ defamation law to be “archaic “ is that we have here no equivalent to the “public figure defence”, as it is known in some US states, that would preclude a public official figure such as a politician, a union leader or an aspiring politician from suing for an imputation alleged to be defamatory of him or her unless he or she proves that the statement was made with ‘actual malice’, that is with knowledge that it was false or with reckless disregard as to whether it was false or not.
While it may be true that the public figure defence does not exist, at least eo nomine (by that name) in local law, the common law creation of the responsible journalism defence in Reynolds v The Times Newspaper Ltd., premised on the identical principle that debate on public issues should be “uninhibited robust and wide open”, subject only to the appropriate responsibility being exercised by the publisher of the defamatory imputation, is very much a part of our law. And even though to my best knowledge, no defendant in a local case has sought to avail himself or herself of it, this phenomenon might rather speak volumes as to the deference and self-censorship paid by media houses and others to those who might be considered public figures than to its inapplicability.
Indeed, a variant of the defence has now assumed a statutory guise in Antigua & Barbuda, the regional jurisdiction that has most recently amended its Defamation Act. Section 22 of the Antigua & Barbuda Defamation Act 2015 provides as follows:
(1) It is a defence to an action for defamation for the defendant to show that—
- The statement complained of was, or formed part of, a statement on a matter of public interest; and
- The defendant reasonably believed that publishing the statement complained of was in the public interest.
(2) Subject to subsection (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.
(3) If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest, disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed on it.
(4) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgment as it considers appropriate.
(d) may be accepted in writing by or on behalf of the aggrieved person. (7) The voluntary declaration referred to in subsection (6)(c) shall be made-
(5) For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion.
While the defence is in statutory mode in that jurisdiction, it would have to be judicially countenanced in Barbados after the appropriate pleading by the defendant to a libel action. In the absence of such an event, it would seem a tad unfair to suggest that the local law is simply archaic because it does not permit the responsible discussion of matters of public interest. It should, and does.
Not that the situation could not be improved. In Jamaica, whether wittingly or unwittingly, the extent of free expression without liability for defamation has been arguably widened by the provision in section 13(2) of its Charter of Fundamental Rights and Freedoms 2011 to the effect that “Subject to sections 18 and 49, and to subsections (9) and (12) of this section, and save only as may be demonstrably justified in a free and democratic society
(a) this Chapter guarantees the rights and freedoms set out in subsections (3) and (6) of this section and in sections 14, 15, 16 and 17; and
Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes those rights.
Included among the rights referred to is “(c) the right to freedom of expression…”
The argument is here advanced that since neither section 18, that deals with the status of marriage nor section 49, that treats the procedure for amendment of the Constitution impinges on the right to free expression; and since subsections (9) and (12) of section 13 are also irrelevant in this context, the sole restrictions on freedom of expression in Jamaica are such as may demonstrably be justified in a free and democratic society. The questions next beg asking, “Does political expression in a free and democratic society require that public officials and figures be treated as are private citizens for the purposes of defamation? Or would requiring those individuals to prove a malicious or at least reckless disregard for the truth on the part of the publisher be more consonant with such a society? Can this apparent discrimination be justified?
While the argument made here applies exclusively to Jamaica, it may prove instructive for the rest of those regional jurisdictions that are solicitous of enhancing the freedom of democratic expression. Alas, however, this does not appear to have been the case, and a perusal of a catalogue of the titles of regional defamation cases will reveal the names of many of the political leaders as claimants to actions against political adversaries or the press in their respective jurisdictions.
We may legitimately conclude therefore that an increased freedom of expression in this context is unlikely to come from a purposive act of a legislature comprising those who profit most from the current limits of freedom of expression. It must come from judicial activism.
Nonetheless, Barbados has indeed attempted some reforms that would serve further to belie the notion of an archaic defamation law. It is no longer automatically an unfair comment as elsewhere to have attributed dishonourable or corrupt motives to a claimant; there is also available the novel defence of triviality- that the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm to his reputation
It is noteworthy that Jamaica in its 2013 reform of its Defamation statute expressly rejects this as a possible defence to defamation in section 19(2).
In the next segment I propose to deal with the concept of freedom of information, the other inextricable aspect to freedom of democratic expression.