Wednesday, January 17, 2018

Defamation and the amendment bill

Dana Seetahal logo41

Mark Fraser

 The debate on the Libel and Defamation (Amendment) Bill in the Parliament this week seems to be a case of much ado about little. It is little because the amendment act comprised merely a one-page law repealing Section 9 of the existing Libel and Defamation Act.

The Media Association (MATT) is reported as saying that the non-repeal of Section 8 of the parent act has the potential of limiting press freedom since there is still a criminal offence on the statute books. If one takes that argument to its natural conclusion it would follow that press freedom has been seriously limited in T&T with the existence of both Sections 8 and 9 for several decades.

The parent act deals with both civil and criminal defamation. It provides at Sections 8 to 11 for criminal defamation which carries a maximum penalty of two years imprisonment. While there has been no (criminal) prosecution in recent memory for defamation, as compared to civil suits (which do not attract criminal penalties but allows for damages), it is useful to consider the provisions which have been the subject of contention by the media, the Government and Opposition.

Section 9 (which will be repealed once the President signs off on the amendment bill) provides: “If any person maliciously publishes any defamatory libel, upon conviction thereof he is liable to pay a fine and to imprisonment for one year.” This means that a person could have been prosecuted if he took the risk that something he published might be untrue, even if he did not know it was false. 

Left in the act is Section 8 which provides: “If any person maliciously publishes any defamatory libel, knowing the same to be false, he is liable on conviction to imprisonment for two years and to pay such fine as the Court directs”. In this case the person would have to be shown to know that the statement he published was false.

The real issue is whether it should remain an offence that any member of the media (or indeed any other person) should be liable to face a criminal charge if he publishes something he knew was false. Or should this be left to the civil courts, as in practice is done now? Is retention of Section 8, criminalising this kind of conduct, a breach of press freedom?

MATT thinks that the criminalisation of defamation by the media is such a breach. Others may assert that no freedom is absolute and the press should not be free to publish matters that they know are false, especially with regard to persons who may not be able to afford to access the civil courts, where they must personally pay a lawyer. 

This is the heart of the matter. It is however almost made moot by the fact that the criminal law of libel has fallen into abeyance in this country and it is unlikely that it will be resuscitated in the near future. 

In any event the question must be asked, do we in T&T have media personnel who publish matters knowing them to be false? I do not believe that we do. Instead they might be careless with the truth, ignorant of what might seem to be the obvious and have insufficient regard for correcting errors. 

A recent example of this was a letter to the editor in one daily. The writer called for the “proclamation” of the 2000 DNA Act and rued the fact that we had no DNA laws. Any thinking editor or journalist who has basic knowledge of current events ought to know that the 2000 Act was repealed and a DNA Act was passed by the PNM administration and became law in 2007. Further, in 2012, a more modern legislation was passed which repealed the 2007 Act. 

Returning to the issue of press freedom however it might to useful to consider our world rank in this regard. One organisation which reports on this is Reporters Without Borders (RWB) which compiles and publishes an annual ranking of countries based upon the organisation’s assessment of their press freedom records. Small countries are excluded from this report. The report is based on a questionnaire sent to partner organisations and its 130 correspondents around the world, as well as to journalists, researchers, jurists and human rights activists. 

The survey asks questions about direct attacks on journalists and the media as well as other indirect sources of pressure against the free press. The index only deals with press freedom, and does not measure the quality of journalism. The methodology is largely based on individual perceptions so that there are often wide contrasts in a country’s ranking from year to year. For example T&T’s ranking in 2010 was 30th whereas in 2012 it was 50th and in 2013, 44th. This is on a list of some 179 countries that were ranked.

In this regard it is of interest to note that Barbados, which was ranked 23rd in 2013 by another organisation, has had its own issues. For instance in 2007 the governing Barbados Labour Party (BLP) published an article deeming it a “dastardly act” where a radio journalist asked the Minister of Tourism how it is that he managed to become a millionaire while in government. The BLP blog warned the Barbados media that they had better “project the positive aspects of Barbados society at all times”. So much for a high ranking.

In T&T we have probably the greatest number of media per capita in the Caribbean: three dailies, several television stations and innumerable radio stations. The competition to be number one is fierce but towards achieving this end journalists and other media personnel should not sacrifice accuracy and professionalism. Still less should they allow political and personal biases to colour the practice of their profession — as has been happening on all fronts in the last few years. Which journalist wants a reputation as a party hack?

• Dana S Seetahal is a former 

independent senator