"Jamaica's Libel Laws: A Chilling Effect on Crime and Corruption Reporting..."

Reference ID: 10KINGSTON196
Created: 2010-02-08 15:59
Released: 2011-08-30 01:44
Origin: Embassy Kingston



DE RUEHKG #0196/01 0391600
R 081559Z FEB 10



E.O. 12958: N/A

SUBJECT: Jamaica's Libel Laws: A Chilling Effect on Crime and Corruption Reporting

REF: 09 KINGSTON 121; 08 KINGSTON 648; 08 KINGSTON 328

Jamaica's Libel Laws: A Chilling Effect on Crime and Corruption Reporting

Summary and Analysis

¶1. (U) Jamaica's libel laws have a chilling effect on
investigative reporting by the press and hinder the media's ability
to bring corruption and criminal activity to light. A duty to
inform subjects of media reporting prior to publishing puts the
subject of a story on notice and provides them with an opportunity
to seek an injunction to stymie publication. The risk of costly
court-awarded damages also discourages media owners from
aggressively pursuing the types of stories that would bring
information about corruption and criminal activity to light.
Libel laws that favor perpetrators may be one of the contributing
factors to the country's seemingly unfixable corruption and crime
problems. In his inaugural speech in September 2007, Prime
Minister (PM) Bruce Golding promised legislative reform for libel
laws; however, to date the process has been slow moving. End
Summary and Analysis.

Libel Laws Protect Criminals, Silence Media

¶2. (SBU) Jamaica's libel laws are used by public figures as a sword
to quiet the voices of dissent and opposition, and by criminals as
a tool to silence investigative reporting of possible criminal
activity. Emboffs spoke with Cliff Hughes, owner of the Nationwide
News Network who said, "As a journalist, if you haven't been sued
for libel, then you're not doing your job." The potentially high
damages for defamation suits have a chilling effect on freedom of
expression and the press. In the landmark case of Anthony Abrahams
v. The Gleaner Company, a jury ordered owners of Jamaica's oldest
newspaper to pay former Minister of Tourism, Eric Anthony Abrahams,
J$80.7 million (then-US $2.5 million) in damages for a defamatory
statement published in the Jamaica Gleaner newspaper. Although the
award was later reduced to J$35 million (then-US $1.1 million), the
award of significant damages encouraged self-censorship among
journalists and media personnel. "A news organization in this
country could be brought down by one libel suit," said Desmond
Richards, President of the Press Association of Jamaica (PAJ). "How
many news organizations could pay out a US$ 1 million award and
still open the next day?

Example: Libel Laws Effect on Ponzi Schemes
--------------------------------------------- -

¶3. (SBU) Members of the financial community have said that fears of
libel action influenced the lack of media investigation into the
ponzi scheme operations of the Olint and Cash Plus that rose to
prominence for a few years before crashing in 2008 (Reftel A, B,
C). Even the Financial Services Commission (FSC), whose duty is to
supervise and regulate the securities industry, did not report
these clubs to be Ponzi schemes. Hughes told Emboff, "If the FSC,
who is in a position to request documents and gather evidence to
determine if these clubs were legitimate, did not report them as
Ponzi schemes, then media organizations were certainly not going to
take that risk upon themselves."

Putting The Subject of Investigation On Notice

¶4. (SBU) Public officials and wrongdoers have since been able to
use threats of libel suits to prohibit media disclosure of
information in the public interest and hinder press investigations
into possible criminal activity. In addition, the court-created
"responsible journalism" defense to libel has opened the flood
gates for numerous pre-emptive lawsuits. To meet the standard for
this defense, journalists may be required to contact and seek
comment from the subject of a defamatory statement, prior to
publication. Thus, putting the subject of the investigation on
notice of the press interest in their activities and therefore
affording the subject an opportunity to seek an injunction against

Burden of Proof

¶5. (SBU) Under the current Libel and Slander Act, a defendant may
still be criminally tried and imprisoned for publishing a
defamatory statement, even if that statement ultimately is proved
to be true. Jamaica's criminal libel laws were established to
protect English nobility from criticism. This offence was used to
restrict the same freedom of expression now guaranteed by the
Jamaican Constitution. In Justice Hugh Small's report to PM
Golding about changes to Jamaica's libel laws, he notes: "It is
remarkable that under section 7 of the Libel and Slander Act 1851,
the truth of the matters published shall not amount to a defense
unless it was for the public benefit that the matters should be
published." This paragraph also makes reference to how Marcus
Garvey and Leonard Howell were imprisoned for criminal libel. In
addition, Jamaican libel actions only require that claimants show
the comments made about them were defamatory in order to bring a
libel claim. The libel action begins with the assumption that all
defamatory statements are false, placing the burden of proof on the
defendant to show that such defamatory statements are true or
substantially true. Therefore, journalists are forced to
pre-eminently present documented evidence necessary to establish a
libel-proof defense prior to publishing stories of public interest.

Modernizing Jamaica's Libel Laws

¶6. (SBU) Media professionals have petitioned Parliament to
modernize libel laws in order to bring them in line with the
legislative revisions found in other common law jurisdictions.
Because of the two countries' historical relationship, Jamaica's
libel laws mirrors the laws of the United Kingdom. This approach
to libel values a claimant's reputation over the defendant's right
to freedom of speech. In order to modernize Jamaica's libel laws,
journalists advocate: (1) the elimination of criminal libel as an
offense; and (2) changing the burden of proof from defendant to
plaintiff in a libel action.

Finding a Legislative Solution...

¶7. (SBU) Parliament is currently debating proposed amendments to
the libel laws. These amendments were proposed by a 12-person
committee, commissioned by PM Bruce Golding, to review the laws and
make recommendations that would facilitate greater transparency in
government and promote freedom of the expression. In his
inauguration speech in September 2007, PM Golding said he was
committed to ensuring that these laws cannot be used as a firewall
to protect wrongdoers. PM Golding has personally endorsed the
proposed amendments, saying publically: "I believe that those of us
who offer ourselves for public office, particularly elected office,
where we ask the people to trust us and entrust in our hands,
power, must be prepared to expose and subject ourselves to a higher
standard of transparency than the ordinary citizen, who is just
going about his business."

... Is Slow Moving

¶8. (SBU) The committee completed and submitted its report to the PM
and Parliament on February 29, 2008. The report recommended
specific legislative changes necessary to meet the Government of
Jamaica's objective of modernizing Jamaica's libel laws "so that
those engaged in corruption can be easily exposed and brought to
justice." According to PM Golding, "the committee did their work,
they submitted their report, we took it to Parliament and it has
spent a long time before a Parliamentary Committee."

Australia As A Model

¶9. (SBU) Although the committee refrained from recommending a
standard to be used by courts to award damages in libel cases,
committee members did recommend that the country adopt legislation
that would allow a judge instead of a jury to determine the
appropriate amount of damages to be awarded to plaintiffs. The
committee highlighted the Australian Defamation Act as a model for
Jamaica. In Australia, the role of the jury is to find whether the
defamatory matter had been published by the defendant, but the
judge assesses the amount of compensation to be awarded. The judge
ensures that there is an "appropriate and rational relationship"
between the amount of compensation awarded and the harm sustained
by the plaintiff. The Australian system also institutes a maximum
amount of damages for non-economic loss and abolishes awards of
punitive damages in defamation cases.

¶10. (SBU) While the committee recommended that criminal libel be
abolished and called for self-regulation of the media, committee
members disagreed on the appropriate standards for determining
libel when public officials sue in relation to statements
concerning public affairs. The committee came up with three
approaches: (1) adopt the American standard to allow citizens, not
acting in actual malice, to freely criticize public officials
regarding matters of public interest; (2) reject the "actual
malice" standard but require that a plaintiff prove the falsity of
a defamatory statement when bringing a libel claim; or (3) leave
the libel laws as is to encourage qualified people to pursue public


¶11. (SBU) Jamaica faces significant crime and corruption
challenges that hinder economic growth and foreign investment; one
of the tools to root out these problems is an active free press.
Current libel laws restrain investigative journalism and tip the
scales in favor of perpetrators. Like the multiple anti-crime
legislative packages that are currently bogged down in Parliament,
new libel provisions, if adopted, would be important tool to help
the government better combat crime and corruption. Unfortunately,
the political will to ensure legislative reform is passed in a
timely manner is lacking.



A Note From The Gull

What is the situation like in Trinidad and Tobago? Fortunately for us in the more salubrious southerly climes, the voice of the people IS the voice of God.

And when this voice of God asks hard questions, the response from those being questioned is guided always by a deep humility and the desire for the whole truth to be revealed.

We have risen above the legal claptrap and we have accepted that in public life, the burden of proof should belong to the one being questioned/accused by the voice of God.

Absolutely NO ONE would ever dream of issuing pre-action protocol letters prior to instituting libel actions against God. Eh heh?? Nothing ent strange...

"Patria est communis omnium parens" - Our native land is the common parent of us all. Keep it beautiful, make it even more so.

Blessed is all of creation
Blessed be my beautiful people
Blessed be the day of our awakening
Blessed is my country
Blessed are her patient hills.

Mweh ka allay!