Gov’t protected in release of defamatory records

Government entities cannot be sued or prosecuted for releasing public records that could be considered defamatory, as long as they act in accordance with the belief that the Freedom of Information Law requires the release of the records.

Information Commissioner Jennifer Dilbert said Thursday that a judicial review this week has clarified the issue. The court case involved a gubernatorial challenge to her office’s order seeking the release of certain records related to the ill-fated Operation Tempura investigation.

“What it means is you can’t just find that something has defamatory material and then claim it’s automatically exempted [from release],” Mrs. Dilbert said. “That’s good for us to have this settled.

“Public authorities just can’t take something that they can consider to have defamatory material in and apply that as an exemption [under the FOI Law].”

Defamation is a criminal offense in the Cayman Islands. It includes the public release, whether through print, broadcast or the spoken word, of false information that could be considered damaging to a person’s personal or professional reputation.

For instance, alleging a particular individual was a rapist, without proof of such an accusation, would likely be considered defamation.

Section 54 of the Cayman Islands Freedom of Information Law states that nothing in the law is construed as authorizing the disclosure of any official record containing “defamatory matter.”

However, subsection 2 of the same law states that, where access is granted to such a record “in the bona fide belief that the grant of such access is required by [the FOI Law], no action for defamation….shall lie against the government, a public authority, minister or public officer involved in the grant of such access.”

Nor would the author of the record or the person who supplied the record to government be subject to legal action regarding the defamatory material.

However, there’s a further legal catch in the publication of defamatory material after the record has been released via the Freedom of Information Law.

According to FOI Law section 54 (3), the grant of access to defamatory material under the law does not give authorization for the publication of the record’s contents by the person to whom the record is given.

In other words, if someone takes defamatory material released by government and prints it in their newspaper or on their website, or broadcasts it on their TV or radio station, they are subject to either criminal prosecution or civil action, or both.

“At that point, my office doesn’t have anything further to do with it,” Mrs. Dilbert said. “Having said that, [the publisher of defamatory material] then gets into the defamation laws and what you’re allowed then is a defense.”

The ultimate defense of any defamation action in the Cayman Islands and elsewhere is if the material published is true and correct. There are other protections for the press under Cayman Islands law in relation to printing materials that are a fair and accurate representation of matters before the courts or the Legislative Assembly, as well as other, less comprehensive protections under the law.

Basically, Mrs. Dilbert said the person who further publishes the defamatory material released under the FOI Law may have to take their chances in court.

“[The FOI Law] doesn’t protect the person who then discloses [the defamatory material] further,” she said.