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What is the value of one's reputation?
Sunday, July 05, 2009
The following is a paper presented by former Director of Public Prosecutions Kent S Pantry at a forum titled 'Tort Advances in Law' to launch the law firm Page & Haisley on June 22, 2009 at the Jamaica Pegasus Hotel.
In Jamaica, in recent times, the law of defamation has gained a level of importance. It is more so because of the proliferation of talk shows and the competition of the media to provide information.
A committee was commissioned by the Honourable Bruce Golding, prime minister, and chaired by Justice Hugh Small to review the law of defamation and to make recommendation for "changes that will ensure transparency and accountability in the context of a new framework of good governance".
The committee was mandated to consider recommendations that:
a) Support the principle of freedom of the press;
b) Provide reasonable protection against false and damaging publication;
c) Prevent the suppression of information to which the public is reasonably entitled;
d) Impose appropriate burdens of accountability on public officials holding positions of trust;
e) Set standards for establishing malicious intent and responsibility for due care prior to publication; and
f) Evaluate the actual damage caused by defamatory publications and suggest appropriate remedies.
It appears that to find support for freedom of the press would be importing a new Constitutional notion.
Section 13 (b) of the Jamaica Constitution makes provisions for freedom of expression while Section 13 (c) acknowledges the fundamental right to respect one's private and family life.
It should be noted that the 'freedoms' so expressed are subject to such limitations of that protection of those rights as contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.
In determining the freedom of the press one should consider whether such a freedom would infringe on the spirit of section 13 of the Constitution.
Section 22 (1) provides:
"Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this section the said freedom includes the freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence and other means of communication."
The freedom of expression in Section 22 (1) of the Constitution has limitations however.
Section 22 (2) recognises that any law which makes provisions which is reasonably required, in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the reputations, rights and freedoms of other persons, or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, shall not be inconsistent with the provisions of Section 22 (1).
The media, it appears, would have a vested interest in freedom of the press to be able to publish matters which may affect the reputation of citizens.
It may be that there has to be a proper balance between the need of the public to have information and the protection of the reputation of the citizens.
The report from the Small Committee is now before a Joint Select Committee of Parliament, so I will await those important deliberations.
Qualified Privilege
The balance may be achieved by responsible journalism, which foreshadows the degree of qualified privilege.
In Reynolds v Times Newspapers Ltd and Others [1999] 4 ALLER 609, the Court of Appeal laid down three tests:
1) newspapers must have a legal, moral and social duty to the general public to publish the material;
2) the general public must have a corresponding interest in receiving the information; and
3) he nature, status and source of the information and the circumstances of its publication must have been such as to justify the protection of such privilege in the absence of malice.
Test No 3 was rejected by the House of Lords on appeal to them.
It was argued that with the exception of malicious publications, political information should be privileged regardless of its source or status and the circumstances of publication.
The House of Lords rejected that contention on the ground that it would place the judge in the position of an editor of a newspaper and render the outcome of cases unpredictable and making the court a censoring body.
Lord Nichols for the majority laid down ten criteria for consideration of qualified privileges:
1) the seriousness of the allegation;
2) the nature of the information;
3) the source of the information;
4) the steps taken to verify the information;
5) the status of the information;
6) the urgency of the matter;
7) whether the claimant was invited to comment;
8) whether the article contained the gist of the claimant's story;
9) the tone of the article; and
10) the circumstances, including the timing of the publication.
In Jameel v Wall Street Journal Europe (No 2) 2005 EWCA Cw 74, the Court of Appeal said that the qualified privilege identified in the Reynolds case required the defendants to demonstrate responsible journalism.
The Reynolds Privilege was considered in the Jamaican case of Hugh Bonnick v Margaret Morris, the Gleaner Company Ltd and Ken Allen PC Appeal 30 of 2001 delivered on 17th June 2002.
The Lordships observed:
"Stated shortly, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege. If they are to have the benefit of the privilege journalists must exercise due professional skill and care." (Para 23)
Their Lordships continued:
"To be meaningful this standard of conduct must be applied in a practical and flexible manner. The court must have regard to practical realities. Their Lordships consider it would be to introduce unnecessary and undesirable legalism and rigidity if this objective standard of responsible journalism had to be applied in all cases exclusively by reference to the 'single meaning' of the words. Rather, a journalist should not be penalised for making a wrong decision on a question of meaning on which different people might reasonably take different views." (Para 24)
Their Lordship said there should not be a screen behind which journalists are "willing to wound, and yet afraid to strike".
The Privy Council in the Bonnick case was of the view that taking all the matters into account, the article was near the borderline but overall a piece of responsible journalism.
Dr David McBean, chairman of the Media Association of Jamaica, in September 2006 (Gleaner, Thursday, September 28, 2006) was mindful of extending and reforming press freedom when he said:
"of interest also is the introduction and use of the wire service defence and other mechanisms that would allow the press greater flexibility in reporting on matters of public import. Any review should also seek to recognise the changing profile of the technologies available for the dissemination of information."
It appears that in Jamaica, the chilling effect of damages affect the privilege.
In the Gleaner Company Limited and Dudley Stokes v Erick Anthony Abrahams PC Appeal No 86 of 2001, delivered 14th July 2003, those principles were considered.
Paragraph 1 is captioned:
"Libel damages: how much is too much?"
Justification and qualified privilege were pleaded. J$80.7 million, which in 1996 was equivalent of £1.2 million, was awarded. The Court of Appeal substituted $35 million (£533,000). The Appeal to the Privy Council was in relation to excessive damages.
Their Lordships recognised that compensatory damages may also have a punitive, deterrent or exemplary function. (Para 41)
They quoted Lord Devlin in Rookes v Barnard (1964) AC 1129 at 1228 where Lord Devlin said:
"In a case in which exemplary damages are appropriate, a jury should be directed that if, but only if, the sum which they have in mind to award as compensation (which may, of course, be a sum aggravated by the way in which the defendant has behaved to the plaintiff) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it, then it can award some larger sum."
Their Lordships did not find that Section 22 of the Constitution was restricting the freedom of the press to publish. (Para 72) They were of the view that "if the award had a chilling effect upon this kind of conduct, that would be no bad thing."
Their Lordships said they did not see any reason to think that the award of so large an amount in the special circumstances of this case will inhibit responsible journalism.
In Edward Seaga v Leslie Harper PC Appeal No 90 of 2006 delivered 30/1/2008 the comments of the appellant were widely reported by representatives of the media who were present.
The defence of qualified privilege was pleaded. Brooks J's award of $3.5 million was reduced by the Court of Appeal to $1.5 million.
Lord Hoffman in Jameel (Para 46) and Lord Phillips of Worth Malravers MR in Loutchansky v Times Newspapers Ltd. (Nos 2 - 5) [2001] EWCA Civ 1805, (Para 33) adopted the view that the privilege in Reynolds type cases attaches to the publication itself rather than as in the traditional cases, to the occasion on which it is published.
Others take the view that it is based on the duty - interest privilege, an opinion adopted by Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Scott of Foscote in Jameel.
Their Lordships in Seaga v Harper said that the Reynolds decision was based on a "liberalising intention".
Their Lordship said:
"It was intended to give, and in their Lordships' view has given, a wider ambit of qualified privilege to certain types of communication to the public in general than would have been afforded by the traditional rules of law."
At paragraph 11, their Lordships said that to Reynolds defence was not limited to the press and broadcasting media. It had a wider ambit.
A paragraph 14, their Lordships approved the approach of Brooks J in his consideration of the ten heads and his concluding that in the circumstances Mr Seaga's publication of the words was not protected by qualified privilege. He was of the opinion as follows:
a) the information brought to him did not rise above mere rumour;
b) as he was unaware of the sources of the information the court was prevented by the lack of knowledge from determining whether or not they were reliable sources;
c) merely to rely on the conclusions of the thought processes of other people without demonstrating the validity of those conclusions was "inadequate at best";
d) the matter was not so urgent that it would not await a sitting of the House of Representatives since Mr Seaga was unhappy with the other official channels.
It is my opinion that the Reynolds principles the decision in Jameel and the views of their Lordships in Seaga v Harper have created the balance necessary for responsible journalism and qualified privilege, so there is no need to interfere with that aspect of the law of defamation.
In the recent case of Major Herman Douglas v Jamaica Observer Limited and Denzil Kerr, Claim No 2004 HCV 2353, delivered 18th June 2009, Brooks J examined the defence of qualified privilege.
He referred to the Reynolds principles and the 'liberalising intention' of the case as approved in Seaga v Harper.
Brooks J said (at p23):
"I find that the Jamaica Observer has succeeded in its defence of qualified privilege. Its article was a responsible, balanced bit of journalism on a matter which the public had an interest in and duty to receive and which, as a media house, it had a corresponding duty to publicly expose."
It is interesting to observe that although Brooks J found that the defendants did not show that both the basic facts and the inferences contained in the article were true, they succeeded in demonstrating that the status of the equipment used for firefighting was a matter of public interest and that the public had a duty to hear views on the issues involved. (page 32)
Conclusion
The cases demonstrate that there are necessary mechanisms to ensure the balance between the need to know and the protection of one's reputation.
It is grounded in professional journalism and I am not convinced that interfering with the present defamation laws would increase transparency and the right to obtain information.
The Jamaican saying that one should not fix what is not broken may be very appropriate for consideration by policy-makers.
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