Vernon Daley

On the weekend I heard a news report that president of the Press Association of Jamaica, Desmond Richards has renewed the call for a relaxation of the country's stringent defamation laws.

This appeal is made year after year. I'm not sure there is any reason for thinking the attitude of the political establishment to this issue is likely to change anytime soon. Only last week Prime Minister Portia Simpson Miller was reported as warning civil servants about their obligations under our secrecy law. It doesn't seem she's in a mood for more openness.

The fact is that calls for the relaxation of defamation laws tend to frighten political leaders. They hate the thought of giving up the protection which the laws offer, reckoning it would leave them to the mercy of a ravenous pack of wolves in the press. This is perfect myopia.

Less restrictive laws are not only beneficial to those who operate in the media. Politicians themselves stand to profit. In competitive democratic systems, where political parties vie for state power, it's part of the duty of leaders to expose the failings of their political opponents. This duty, especially in the case of opposition parties, also extends to exposing other public officials who misuse their power.

However, in that cut and thrust, a political leader could easily find himself paying out huge sums in a defamation suit even if the information he has revealed to the public could be regarded as being in its interest.

Some politicians, including former Opposition Leader, Edward Seaga, have tasted of this bitter fruit.

Vulnerability

Inside parliament where there is absolute privilege, the politician is safe from harm. Outside, he's as vulnerable as any reporter on the beat under our current legal framework. His vulnerability is usually exposed at around election time, when the political competition becomes fierce and even wise men become less measured in their remarks.

We don't need to look any further than the so-called Trafigura scandal to recognise this. Commerce, Science and Technology Minister Phillip Paulwell has sued Opposition Leader Bruce Golding for suggesting he was involved in engineering the Dutch company's $31 million 'political donation' to the governing People's National Party.

Mr. Golding will say he was merely providing the public with information it ought to have, but the minister claims this has injured his reputation. It's for the courts to pronounce guilt or innocence in that matter.

But we are still left with the unpleasant reality of public officials, including political leaders, using defamation laws to shield themselves from scrutiny. Those who pierce that veil, whether journalist or political opponent, could face dire financial consequences.

This is not a hard problem to fix. The Supreme Court of the United States did it as far back as 1964. In the famous case of New York Times Co. v Sullivan the court held that a public official could not sue for defamatory falsehood relating to his official conduct "unless he proves 'actual malice' - that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false."

American democracy has proceeded on this principle for more than four decades, and it's none the worse for it. Public officials, who are there to carry on the people's business, cannot enjoy the same protection under defamation laws as ordinary citizens. This is part of the sacrifice they make when they take public power. If only they could see their own interest in changing the law.

Vernon Daley is a journalist. Send comments to: vernon.daley@gmail.com