Prime Minister Bruce Golding has delivered on his campaign promise to review the country’s defamation laws.
We are told he has established a committee for that purpose and has written to a number of individuals and organisations, asking them to become involved in the exercise. This is a welcomed thing.
At the time he made the promise I was, confessedly, among those expressing some scepticism as to whether he would follow through if he got hold of state power.
The move by the new government is a good signal that it wants transparency and accountability in public life. We now have to wait and see what recommendations come out of the committee for improving the legislative framework to facilitate more open discussion of public affairs.
However, my feeling is that the committee should place its focus on making a sharp distinction between public officials and private citizens for the purposes of recovering damages for defamation.
There is no novelty in that idea. The United States Supreme Court went down that road more than four decades ago in the celebrated case of New York Times Co. versus Sullivan. The court held that a public official could not sue for defamatory falsehood relating to his official conduct “unless he proves ‘actual malice’ – that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false”.
As I have argued in this column before, American democracy has proceeded on this principle for nearly half-a-century and, if anything, it has only grown stronger by encouraging more robust public discussion and debate.
People who hold public power and have the ability to make far-reaching decisions about matters affecting the rest of us cannot be afforded the same protection from scrutiny accorded to ordinary citizens.
If public officials can shield themselves with outdated defamation laws, then we can’t hope to have a thriving culture of openness which forms the lifeblood of democratic community.
But even as the media push for a relaxation of the defamation laws they need to ensure they practise responsible journalism. That’s the obligation they carry in exchange for the access and influence they enjoy in pursuing their roles as watchdog and bloodhound in the public interest.
As part of this process of responsible behaviour, the media houses need to put far more resources into training and retraining of junior and senior staff to give them a clear understanding of the legal parameters within which they operate. On the occasions when the media defame people, it’s less the result of wickedness and more often caused by ignorance and carelessness.
The Caribbean Institute of Media and Communication, with which I am involved in some small way, has a programme to equip its graduates with some of these skills. However, the media houses have to play their own part through continuing education and training.
At the same time, the committee set up by the Prime Minister has to ensure that the defamation laws continue to protect people’s good reputation, if that good reputation is deserved. A relaxation of the laws cannot mean an invitation for all and sundry to say whatever they want about someone, whether that person is in public or private life.
It’s a difficult thing to keep that delicate balance between freedom of expression and the protection of reputation, but I’m sure the committee will find an acceptable formula that is in keeping with enlightened thinking.