A Basis To Move Forward In Our Democracy

 The New Defamation Bill which was recently passed in the Senate did not
go as far as the Jamaican media wanted, but we believe it is a good
start

It is important not only for media persons, but for the country as a
whole to be aware of at least the important changes embodied in the new
Bill as it will affect all of us in one way or another. Here are some of
the key changes:

* The distinction between libel and slander is abolished and replaced by
the single cause of action of defamation. Previously, slander required
proof of special damage. Defamation is actionable without such proof. Of
course, libel was always actionable without proof of damage.

* Criminal libel has now been abolished and even though we in Jamaica
had not utilized the provision in the old law, it is good not to have it
hanging over our heads like the Sword of Damocles.

* An apology no longer constitutes an express or implied admission of fault or liability.

* In a jury trial, the jury’s role is to determine whether the defendant
has published defamatory matter and, if so, whether any defence raised
by the defendant has been established. The judge and not the jury is to
determine the amount of damages. Hopefully this will mean less
outrageous awards of damages as we have seen in several other cases,
including one for $80 million. Huge awards could sink a media house and
thus weaken freedom of expression.

* Guidelines have been introduced in terms of how a judge is to exercise
his mind in the award of damages. For example, the court shall ensure
that there is an appropriate and rational relationship between the harm
sustained by the claimant and the amount of damages awarded.

* The “defence of justification” has now been replaced by defence of truth which, thankfully, is easier to prove.

* The defence of innocent dissemination has now been introduced. This
affords a defence in situations where the defendant published merely in
the capacity of a distributor who is subordinate to the publisher. For
example, in the cases where stories are published from international
wire services and the defendant neither knew nor would reasonably have
known that the matter was defamatory. Before this, media houses would
have been automatically liable for wire service stories. None of us
would have the resources to verify all stories originating overseas and
in the time needed to meet daily deadlines.

* The limitation period has been reduced from six years to two years,
also a very positive change as it was a burden on a defendant to have to
defend a matter six years later, after staff members may have resigned
and evidence lost. There is provision, however, for the period to be
extended, but only in certain limited circumstances.

The media would have loved to have a few other understandable
provisions, most important of which was the introduction of a different
standard for public officials similar to the approach established by the
United States Supreme Court in New York Times v Sullivan, which
resulted in a shift of the burden of proof from the defendant to the
plaintiff.

We thank those who worked to get the legislation to this landmark. It is
not perfect, but we have a basis on which to move forward in protecting
our democracy through freedom of expression.

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