Vernon Daley

Politicians across the region, ever fearful of the scrutiny of the press, have stubbornly disregarded calls from media practitioners to relax stringent defamation laws which often prohibit the unearthing of information vital to public discourse.

Some of these leaders must be having nightmares following last week's ruling by the British House of Lords in an important defamation case that could have some bearing on the region.

The law lords opened up the door for greater press freedom in the U.K. through a liberal interpretation of their previous ruling in the 1999 case of Reynolds vs Times Newspaper which created some added protection for journalists once they were responsible in their reporting.

In last week's case brought by a Saudi billionaire against the European edition of the Wall Street Journal, the House of Lords held that where an issue of journalistic investigation was of public importance, relevant allegations that could not subsequently be proved should not attract libel damages if they had been published responsibly.

While not binding on us here in the English-speaking Caribbean, the ruling is highly persuasive and sooner or later is likely to find its way into the judicial thinking of the Privy Council which still functions as the highest court of appeal for most countries in the region.

Adopting liberal approach

The Privy Council has, in fact, already shown its tendency to adopt a liberal approach to such matters having applied the Reynolds ruling in the 2001 Jamaican case of Bonnick vs Morris, holding that the Sunday Gleaner had behaved responsibly regarding a story it published about a manager of a state company even though the article offered itself to two interpretations, one of which could be considered defamatory.

Therefore, for all intents and purposes, the Reynolds privilege is already the law in Jamaica and other territories which continue appeals to the Privy Council and all the latest House of Lords ruling does is point to the kind of liberal approach which should be employed in applying the test of what constitutes responsible journalism.

Using the guidelines in Reynolds, a determination of responsible journalism will be based on factors such as the credibility of the source from which information is derived; the nature of that information; the steps taken to verify it; the seriousness of the allegations it contains; whether the reporter sought the comments of the aggrieved party and the urgency of publishing the story.

In busy newsrooms, where reporters and editors have to be dealing with large volumes of incomplete information at very high speed, it is not always easy to ensure the accuracy of every last detail.

Lord Bingham of Cornhill, one of the five law lords involved in last week's ruling, accepted that even though it is the courts which will eventually determine responsible journalism, it does not mean that "editorial decisions and judgements made at the time, without the knowledge of falsity which is a benefit of hindsight, are irrelevant."

Chilling effect

The threat of big defamation awards, such as those granted by courts in Jamaica in recent years has operated to produce what has been referred to as the chilling effect on the watchdog and bloodhound roles of journalists.

But the tide seems to be turning, and the region will have to go along with it, despite the best efforts of political leaders and other public officials to use outdated notions of privacy to shield themselves from scrutiny.

Persons in the public sphere cannot enjoy the same measure of privacy accorded private citizens and the press must have the freedom to pursue important matters of public interest without the fear of being bankrupted by defamation suits.

Vernon Daley is Jamaica editor of the Caribbean Media Corporation and part-time lecturer in media law at the University of the West Indies.