REPORT OF THE JOINT SELECT COMMITTEE TO CONSIDER AND REPORT ON THE REPORT ON THE REVIEW OF JAMAICAS DEFAMATION LAW

Members of this Honourable House are reminded that on July 1, 2008, the Honourable House of Representatives passed the following resolution: BE IT RESOLVED that, notwithstanding tanding !rders "# $1 and 2%, this Honourable House of Representatives appoint a pe&ial ele&t 'ommittee &omprising the following Members: Hon( )r( Hora&e 'hang Hon( 'live Mullings Hon( *auren&e +roderi&, Mr( )esmond Mair Mrs( Ma-ine Henry./ilson Mr( Mi&hael 0eart Rev( Ronald 1hwaites to sit 2ointly with a similar 'ommittee to be appointed by the enate to &onsider and report on the Report on the Review of Jamai&a3s )efamation *aw( BE IT FURTHER RESOLVED that seven $"% Members shall be the 4uorum of the 'ommittee(
!n July 5, 2008, the enate, on a motion moved by the 6ttorney 7eneral, Minister of Justi&e and *eader of 7overnment +usiness, who had obtained suspension of the tanding !rders, passed the following resolution: BE IT RESOLVED that notwithstanding tanding !rders "8 $2%, this Honourable enate appoint a pe&ial ele&t 'ommittee &omprising of the following Members: enator the Hon( )orothy *ightbourne enator the Hon( 6rthur /illiams enator )esmond M&9en:ie enator 6rnold J( ;i&holson enator 9eith )( 9night to sit 2ointly with a similar &ommittee to be appointed by the House of Representatives to &onsider and report on the Report on the Review of Jamai&a3s )efamation *aw( BE IT FURTHER RESOLVED that seven $"% members shall be the 4uorum of the 'ommittee(

!n !&tober 28, 2008, the House moved a further resolution removing Mrs. Maxine Henry Wi s!n from the 'ommittee and substituting therefor Mr. P"i i# Pa$ %e . Members are further reminded that, by virtue of a resolution approved by the House of Representatives on Mar&h 81, 200< and the enate on 2" Mar&h 200<, the &omposition of the
th

'ommittee as set out above, was made to &ontinue in for&e for the 2010=2011 session of 0arliament and the 'ommittee empowered to pro&eed with matters that were before it from the stage rea&hed at prorogation(
>our &ommittee began its meetings on Mar&h 1<, 200< and at that meeting the 4uorum of the 'ommittee was set at four members( >our 'ommittee held seven meetings to deliberate the issue, the last of whi&h too, pla&e on )e&ember 1#, 2010( ?n deliberating the sub2e&t matter, your &ommittee de&ided on a &onsultative approa&h and therefore various groups with interest in &ommuni&ation were invited to ma,e presentations( 1he following groups appeared before your &ommittee and made presentations:

@ @

A )igi&el A Media 6sso&iation of Jamai&a B 0ress 6sso&iation of Jamai&a(

>our 'ommittee also reviewed the papers that were submitted and reviewed by the mall 'ommittee as it was felt that this would provide ba&,ground information to the re&ommendations made in the Report and prevent dupli&ation of efforts( >our 'ommittee also felt that it would be useful to hear from an e-pert in the field of defamation laws before ma,ing its &on&luding observations and re&ommendations to 0arliament, and therefore Mr( Mar, tephens, an attorney.at.law from law firm Ciners tephens ?nno&ent in *ondon was invited to analy:e the report of the mall 'ommittee and ma,e a presentation to the 'ommittee(

&. ' INTRODUCTION 1he 'ommittee &haired by Justi&e Hugh mall $retired% $hereinafter referred to as the mall 'ommittee% was established to review the law of defamation and ma,e re&ommendations for D&hanges that will ensure transparen&y and a&&ountability in the &onte-t of a new framewor, of good governan&eE( pe&ifi&ally, the terms of referen&e re4uired the review &ommittee to ma,e re&ommendations whi&h would support freedom of the 0ress, provide reasonable prote&tion for damaging publi&ations, prevent suppression of information to whi&h the publi& was reasonably entitled, impose appropriate burdens of a&&ountability on publi& offi&ers in publi& trust, set standards for mali&ious intent and responsibility for due &are prior to publi&ation and evaluate a&tual damage &aused by defamatory publi&ations and suggest appropriate remedies( 1he mall 'ommittee fo&used on various issues in its deliberations su&h as the interrelation between the 6&&ess to ?nformation 6&t and the )efamation *aw and transparen&y, a&&ountability

and good governan&e( Jamai&a3s &urrent )efamation law is &on&entrated on providing redress for persons who allege that their reputation has been damaged( Modern trends in the law of defamation are that the right to freedom of e-pression should be &onsidered and defamation laws should be liberali:ed in line with the new trend( 1he mall 'ommittee also e-amined the matter of &onstitutional rights in relation to freedom of e-pression( 1he report of the review &ommittee noted that freedom of the 0ress was not re&ogni:ed in the 'onstitution but it was a&&epted that the individual3s right to freedom of e-pression was the &onstitutional right from whi&h the freedom of the 0ress was derived, and that the 0ress had no greater right than the individual( ?ssues su&h as the defen&e of 4ualified=absolute privilege, the limitation period for defamation a&tions, whether &onsideration should be given to pla&ing a greater burden on publi& offi&ials as plaintiffs, self regulation of the media and &aps on damages to be awarded were also reviewed by the 'ommittee( 1he mall 'ommittee also &onsidered a reform of Jamai&a3s defamation law by legislation and loo,ed at the approa&h of other &ountries su&h as 6ustralia, +arbados and ?reland( 6&&ording to the mall 'ommittee there is general agreement that reforms should be made to the defamation laws to bring them in line with many of the improvements in other 'ommon *aw 2urisdi&tions( 1he report of the review &ommittee listed thirteen $18% areas in respe&t of whi&h agreement was rea&hed and two $2% areas of disagreement(

(.' FINDIN)S AND RECOMMENDATIONS >our 'ommittee de&ided that it would e-amine ea&h re&ommendation that was made by the review &ommittee and determine whether they should a&&ept them( >our 'ommittee also &onsidered the suggestions made and points raised by the media groups whi&h made presentations to it( 6fter e-tensively reviewing the re&ommendations presented in the Report of the Review of Jamai&a3s )efamation *aw, your 'ommittee is pleased to present its findings and re&ommendations(

(.& Fin*in+s an* Re,!--en*a.i!ns !n ."e Re,!--en*a.i!ns Ma*e /y ."e S-a C!--i..ee Re,!--en*a.i!n & FA/! i.i!n !0 ."e Dis.in,.i!n Be.%een S an*er an* Li/e 1he re&ommendation of the mall 'ommittee was that the distin&tion between slander and libel be abolished and that a single &ivil a&tion of defamatory publi&ation that re4uires no proof of spe&ial damages be established( 1his re&ommendation was supported by the Media 6sso&iation of Jamai&a( 1!$r C!--i..ee a,,e#.s ."is re,!--en*a.i!n. Re,!--en*a.i!n ( 2Li-i.a.i!n Peri!* 0!r A,.i!n 1he mall 'ommittee re&ommended that the limitation period for an a&tion of defamation be redu&ed to one year from the publi&ation of the defamatory statement but with provisions fi-ing an appropriate formula for the e-tension of that period by the 'ourt where the interests of 2usti&e so re4uire( 1he &urrent limitation period is si- years( Mr( tephens re&ommended a redu&tion of this period to one year from the date of publi&ation of the defamatory material( ?n his view that would allow suffi&ient time for the aggrieved party to be&ome aware of the defamation and ta,e a&tion( 1!$r C!--i..ee 0e . ."a. in !$r ,$ .$re a #eri!* !0 .%! years %!$ * /e -!re s$i.a/ e. 1!$r C!--i..ee ."ere0!re a+ree* .! re,!--en* a i-i.a.i!n #eri!* !0 .%! years 0r!- ."e *a.e ."a. ."e *e0a-a.!ry -a.eria %as #$/ is"e*3 %i." a #r!4is! ."a. any ex.ensi!n s"!$ * /e in ,ir,$-s.an,es ."a. ."e C!$r. 0e . ."e in.eres.s !0 5$s.i,e re6$ire*.

Re,!--en*a.i!n 7 Re# a,e-en. !0 ."e De0en,e !0 J$s.i0i,a.i!n 1he mall 'ommittee re&ommended that the defen&e ,nown as 2ustifi&ation be repla&ed by the defen&e of truth( /here an a&tion for defamation is brought in respe&t of the whole or any matter published, the defendant may allege and prove the truth of any of the &harges &ontained in that publi&ation, and the defen&e of truth will not fail by reason only that the truth of every &harge is

not proved, if the matter, ta,en as a whole or that the publi&ation does not materially in2ure the &laimant3s reputation having regard to any su&h &harges whi&h are proved to be true in whole or in part( 1he Media 6sso&iation agreed with this re&ommendation( Mr( tephens also indi&ated that the defen&e of truth was what was being adopted worldwide( 1!$r C!--i..ee a,,e#.s ."is re,!--en*a.i!n. Re,!--en*a.i!n 82 De0en,e !0 Tri4ia i.y 1he mall 'ommittee re&ommended that a defen&e of triviality, in &ir&umstan&es where the

publi&ation of the matter &omplained of was su&h that the person defamed is not li,ely to suffer harm to his reputation, be introdu&ed( 1!$r C!--i..ee *i* n!. a+ree %i." ."is re,!--en*a.i!n as i. %as 0e . ."a. .ri4ia i.y s"!$ * +! .! *a-a+es3 n!. .! %"e."er !r n!. ."e #ers!n "a* /een *e0a-e*.

Re,!--en*a.i!n 9 :De0en,e !0 an O00er !0 A-en*s 1he re&ommendation of the mall 'ommittee was that a defen&e of an offer of amends, similar to that in the +arbados )efamation 6&t, be introdu&ed( 1he mall 'ommittee3s report states that an offer of amends will allow a person who has published a statement that is alleged to be defamatory of another, and who &laims that he did not do so intentionally, to ma,e an offer of amends( 1he offer will be for the publi&ation of a suitable &orre&tion of the statement &omplained of and for a suffi&ient apology to the aggrieved person( 1here should also be provision that where &opies of the statement have been distributed by or with the ,nowledge of the person ma,ing the offer, that he ta,e su&h steps as are reasonably pra&ti&able to notify persons to whom &opies have been distributed( 1he offer will not be available to a person after a defen&e has been served( 6n offer of amends will be &apable of being withdrawn at anytime before it is a&&epted( 1!$r C!--i..ee a,,e#.s ."is re,!--en*a.i!n. C!-#ensa.i!n .! ."e a++rie4e* #ers!n s"!$ * a s! /e a # an; !0 ."e !00er !0 a-en*s.

Re,!--en*a.i!n < 2 P$/ i,a.i!n !0 an A#! !+y 1he mall 'ommittee re&ommended that publi&ation of an apology should not be &onstrued as an admission of liability and will not be relevant to the determination of fault( ?t would be relevant to the assessment of damages and may be relevant to the defen&e of an offer of amends( 1he Media 6sso&iation had raised the issue that if summary trials and summary 2udgments were allowed, there would be no need for offer of amends, de&laratory orders, &orre&tion orders or apologies( However your 'ommittee felt that there was no &ertainty as to how 4ui&,ly the summary trial might be possible( 1!$r C!--i..ee ."ere0!re a,,e#.s ."e re,!--en*a.i!n !0 ."e S-a C!--i..ee.

Re,!--en*a.i!n =2 De0en,e !0 Inn!,en. Disse-ina.i!n 1he re&ommendation of the mall 'ommittee was that a defen&e of inno&ent dissemination, similar to that &ontained in the harmoni:ed defamation statutes of 6ustralia, be established( Members of the 'ommittee felt that in light of modern &ommuni&ation te&hnology the mass media should be prote&ted in the &ase of reasonable inno&ent dissemination, but the law should provide that where had been brought to the attention of the publisher that the material was li,ely to be defamatory then any further publi&ation would not attra&t the defen&e of inno&ent dissemination( 1he matter of publi&ation on a website was also dis&ussed and it was felt that if it had been brought to the attention of the publisher that the information was defamatory, a statement to that effe&t should be published( 1hat would absolve the original publisher and warn other persons( Mr( tephens in his presentation to the 'ommittee had opined that ?nternet ervi&e 0roviders who host websites, and where there was no human intervention, should have a defen&e of being a mere &onduit( 1he 'ommittee also re&ogni:ed that some organi:ations had their own &ontent on the website and in that &ase they should be responsible for the libel( 1!$r C!--i..ee a,,e#.s ."e re,!--en*a.i!n !0 ."e S-a C!--i..ee. Re,!--en*a.i!n > 2 Re-e*y !0 De, ara.!ry Or*er

1he mall 'ommittee re&ommended that a new remedy of a de&laratory order be established, for whi&h a plaintiff may apply, instead of damages, as a means of redress, where the only issue is the wish of a plaintiff to have an a&,nowledgement that the matter in 4uestion was defamatory and false as it referred to him or her( 1!$r C!--i..ee a,,e#.s ."is re,!--en*a.i!n.

Re,!--en*a.i!n ? 2 Re-e*y !0 a C!rre,.i!n Or*er 1he mall 'ommittee re&ommended that, a &orre&tion order to enable a &ourt to order the

publi&ation of a &orre&tion as an additional remedy to de&laratory 2udgments and to allow the &ourts to dire&t the terms of any &orre&tion that may be made in favour of a &laimant, be established( 1!$r C!--i..ee a,,e#.s ."is re,!--en*a.i!n an* a s! re,!--en*s ."a. i. /e in;e* %i." ."e *e, ara.!ry !r*er. Re,!--en*a.i!n &' 2 R! e !0 J$*+e an* J$ry 1he mall 'ommittee re&ommended that provisions be introdu&ed that the role of the 2ury should be to determine whether the defamatory matter was published by the defendant and whether any defen&e has been proven, and the role of the Judge should be to assess the amount of &ompensation that should be awarded( 1!$r C!--i..ee a,,e#.s ."is re,!--en*a.i!n.

Re,!--en*a.i!n &&2 Assess-en. !0 )enera *a-a+es >our 'ommittee was of the view that the prin&iples re&ommended by the mall 'ommittee for the assessment of damages are already a part of the e-isting 2urispruden&e( 1herefore your 'ommittee re&ommends that there should be no &hange to the e-isting law( Curther your 'ommittee does not re&ommend &odifi&ation as it might restri&t the Judge from ta,ing into a&&ount other relevant &onsiderations( Re,!--en*a.i!n &(2Re,!+ni.i!n !0 Vari!$s Me*ia F!r-a.s

1he mall 'ommittee re&ommended that the various media formats by whi&h statements &ould be published, whi&h would in&lude wired and wireless means as well as new media e(g( streaming, web&asts and pod&asts be re&ogni:ed( >our 'ommittee noted that with the multipli&ity of media formats some of whi&h might be out of the &ontrol of the original publisher, a defen&e was needed( 1!$r C!--i..ee %as !0 ."e 4ie% ."a. ."e *e0en,e !0 inn!,en. *isse-ina.i!n as #r!#!se* a. re,!--en*a.i!n = s"!$ * /e s$00i,ien. .! a**ress ."is iss$e. 1!$r C!--i..ee re,!--en*s a,,!r*in+ y.

Re,!--en*a.i!n &72 C!--!n a% O00en,e !0 Cri-ina Li/e 1he mall 'ommittee re&ommended that the &ommon law offen&es of &riminal libel in&luding blasphemous, obs&ene and seditious libel be abolished( +oth the Media 6sso&iation of Jamai&a and Mr( tephens supported this re&ommendation( Mr( tephens stated that the international standard was that no one should be lo&,ed up for what they say( 1!$r C!--i..ee a,,e#.s ."e re,!--en*a.i!n.

Re,!--en*a.i!n &8 2 Wire Ser4i,e De0en,e 1he Media 6sso&iation of Jamai&a indi&ated that the media had to subs&ribe to wire servi&es and news agen&ies worldwide whi&h provided &ontent over whi&h they had little &ontrol( 1hey proposed that there should be a defen&e of inno&ent dissemination in su&h defamation &ases( 1!$r C!--i..ee a+rees %i." ."a. #r!#!sa an* re,!--en*s ."a. ."e *e0en,e !0 inn!,en. *isse-ina.i!n as #$. 0!r%ar* $n*er Re,!--en*a.i!n = s"!$ * a## y. Re,!--en*a.i!n &9 2 A##r!#ria.e S.an*ar* 0!r P$/ i, O00i,ia s 1he mall 'ommittee was divided on whether there should be a higher standard of proof in &ases where publi& offi&ials sued in relation to statements regarding the &ondu&t of publi& affairs( ?n

Jamai&a the standard for publi& offi&ials is the same as for other &iti:ens( 1he mall 'ommittee had put forward three options( 1he first was to adopt the ullivan prin&iple whi&h re4uires the publi& offi&ial to prove a&tual mali&e( 1he se&ond option was to re2e&t the ullivan prin&iple but &hange the burden of proof,. that is, the publi& offi&ial would be re4uired to prove that the publi&ation was not only defamatory but also false( 1he third option was to ma,e no &hange to the law, as the defen&e of reasonable 2ournalism established in the Reynolds &ase and &larified and applied in later &ases is ade4uate( 1!$r C!--i..ee 0a4!$re* ."e ."ir* !#.i!n.

Re,!--en*a.i!n &< 2 Ca# !n *a-a+es 1he mall 'ommittee &onsidered the issue of whether or not there should be a &ap on damages that may be awarded be&ause of the devastating effe&t that large awards &ould have on media houses( 1he Media 6sso&iation of Jamai&a supported the imposition of a &ap on damages and further pointed out that the &osts asso&iated with defamation a&tions &ould lead to ban,rupt&y of media houses( Mr( tephens had put forward the view that the &ap &ould be fi-ed based on the level of damages that would be awarded to a person if he be&ame a paraplegi& as a result of in2ury( >our 'ommittee too, the view that Judges were reasonable people and in any event their de&isions were sub2e&t to review by a higher 'ourt( ?n addition, other re&ommendations whi&h the 'ommittee has made, su&h as the institution of the de&laratory and &orre&tional orders and the offer of amends, would go towards mitigation of damages( 1!$r C!--i..ee ."ere0!re re,!--en*s ."a. n! ,a# /e # a,e* !n *a-a+es. (.( Fin*in+s an* Re,!--en*a.i!ns !n O."er Iss$es Raise* D$rin+ ."e De i/era.i!ns & M$ .i# i,a.i!n !0 P$/ i,a.i!ns 1he Media 6sso&iation had raised the issue that ea&h time the defamatory material was published it was a new &ause for a&tion( 1!$r C!--i..ee 0e . ."a. i0 ."e #$/ is"er %as -a*e a%are !0 ."e *e0a-a.i!n an* .!!; a##r!#ria.e a,.i!n "e %!$ * "a4e a *e0en,e. H!%e4er i0 "e

,!n.in$e* .! #$/ is" i. a0.er /ein+ -a*e a%are ."en "e s"!$ * n!. "a4e a *e0en,e.

( Li-i.a.i!n Peri!* 0!r In.erne. P$/ i,a.i!ns 1he Media 6sso&iation of Jamai&a had proposed that the limitation period for libel be e-tended to internet publi&ations( 1!$r C!--i..ee a+ree* ."a. ."e i-i.a.i!n #eri!* s"!$ * /e .%! years 0r!- ."e *a.e !0 0irs. #$/ i,a.i!n !n ."e #ar.i,$ ar %e/si.e an* re,!--en*s a,,!r*in+ y.

7. Re2#$/ i,a.i!n /y O."er We/si.es 6nother issue that was raised by the Media 6sso&iation of Jamai&a was that other websites &ould publish defamatory material whi&h had been removed from the original website and some prote&tion ought to be afforded to the original website publisher in su&h &ir&umstan&es 1!$r C!--i..ee 0e . ."a. ."e *e0en,e !0 inn!,en. *isse-ina.i!n s"!$ * /e a## ie* in s$," ,ir,$-s.an,es.

8. S#e,ia J$ry C!nsi*era.i!n %as +i4en .! ."e #r!4isi!ns in ."e J$ry A,. 0!r ."e se e,.i!n !0 S#e,ia J$ries in ,ri-ina an* ,i4i ,ases. 1!$r C!--i..ee 0e . ."a. s$," S#e,ia J$ries ,!$ * /e $se0$ in *e0a-a.i!n a,.i!ns %"ere s#e,ia ex#er.ise -i+". /e re6$ire*. 7.' THAN@S AND COMMENDATION >our 'ommittee wishes to than, the persons and organi:ations that parti&ipated in the dis&ussions( pe&ial than,s are e-tended to Mr( Mar, tephens who provided very valuable insights and to the te&hni&al team &omprising representatives of the *egal Reform )epartment, 6ttorney 7eneral3s 'hambers, !ffi&e of the 0arliamentary 'ounsel, and the Ministry of Justi&e( >our 'ommittee also e-presses sin&ere gratitude to the 'ler, to the Houses of 0arliament and staff for their invaluable assistan&e(

Houses of 0arliament )e&ember 2010(