Public Person Libel Standards in the British Commonwealth Caribbean Versus the United States

PUBLIC PERSON LIBEL STANDARDS IN THE BRITISH COMMONWEALTH CARIBBEAN VERSUS THE UNITED STATES

ROXANNE SABRINA WATSON

A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY

UNIVERSITY OF FLORIDA

2006

Roxanne Sabrina Watson

To my parents, Sybil and Earle Watson, with gratitude for your love and support

ACKNOWLEDGMENTS

I would like to thank my supervisory committee chair, Dr. Bill Chamberlin, for his support and guidance over the past four years and also for his patience in working with me in what has turned out to be a very large and involved dissertation. I also want to thank my other supervisory committee members—professors Laurence Alexander, Lisa

Duke, David Geggus, and John Wright. I know that without the efforts of each in his or her specific area of expertise, this dissertation would not be possible.

I want to thank my parents, Sybil and Earle Watson, for emotional and spiritual

encouragement throughout the dissertation process, and for listening to my desperate

outbursts and frustrations on a daily basis and keeping me focused on God. Thanks also go to my sister, Kerry Hendricks, for her spiritual encouragement and for her presence when I most needed someone to drive four hours with me to Georgia and back. Thanks also go to my brother, Huntley Watson, for moral support and encouragement. I would also like to acknowledge Eyun-Jung Ki, my dissertation friend with whom I shared many frustrations and triumphs as we waded through the process together.

I want also to thank Winston Spaulding Q.C., the legal counsel for Anthony

Abrahams, who directed me to several sources and gave me access to material that has

been critical to my dissertation. I want to acknowledge the assistance of my cousin, Pearl

Morgan, who directed me to and helped me access important historical materials. I also

thank Debbie Muga of the College of Journalism and Communications for her assistance

in first edits of the paper. I acknowledge the assistance of the Jamaican legal firm Watson

iv and Watson in recovering several cases, statutes and texts that have been important for

my research. Thanks also go to Daphne Adams for her assistance in interpreting the

Spanish case and to the Language Training Centre in Jamaica for assisting in the translation of a Costa Rican Code.

TABLE OF CONTENTS

page

ACKNOWLEDGMENTS ...... iv

LIST OF TABLES...... xi

LIST OF FIGURES ...... xii

ABSTRACT...... xiii

CHAPTER

1 PURPOSE, METHODOLOGY, LITERATURE REVIEW AND DEFINITIONS...... 1

1.1 Introduction...... 1 1.2 Research Questions...... 11 1.3 Definition of Libel and the Defenses in Jurisdictions...... 18 1.4 Basis and Provision for Freedom of Speech in the Jurisdictions...... 26 1.5 Significance of Membership in an International Human Rights Organization...... 33 1.6 Methodology...... 36 1.7 Structure of Judicial Systems in Caribbean and United States...... 49 1.8 Key Legal Terms...... 51 1.9 Literature Review...... 56 1.10 Outline for Dissertation...... 78

2 THE BRITISH CASES...... 82

2.1 Introduction...... 82 2.2 Political History of England...... 83 2.3 Court System in England and Wales ...... 91 2.4 Provisions for Freedom of Speech in the United Kingdom...... 95 2.5 Theories of Freedom of Speech in Britain...... 99 2.6 English Press...... 106 2.7 Early Cases: Nineteenth Century to 1919...... 113 2.8 The 1920s to the 1960s ...... 126 2.9 Cassell v. Broome and its Progeny: 1970s to 1990s ...... 141 2.10 Conclusion ...... 192

vi 3 THE HOUSE OF LORDS’ DECISION IN REYNOLDS ...... 198

3.1 Introduction...... 198 3.2 Facts in the Reynold’s Case ...... 200 3.3 Arguments and Defenses ...... 206 3.4 Lord Nicholls of Birkenhead’s Majority Opinion ...... 207 Privilege ...... 209 Issue of a New “Generic” Privilege...... 214 Circumstantial Test ...... 220 Lord Nicholls’ Decision...... 222 3.5 Concurrences...... 224 Lord Cooke of Thorndon’s Concurrence...... 224 Lord Hobhouse of Woodborough’s Concurrence...... 236 3.6 Dissenting Opinions...... 240 Lord Steyn’s Dissent...... 240 Lord Hope of Craighead’s Dissent ...... 253 3.7 Conclusion ...... 266

4 NEW YORK TIMES V. SULLIVAN AND ITS PROGENY ...... 269

4.1 Introduction...... 269 4.2 Political History and Political Culture in the United States...... 272 4.3 Federal Court System in the United States ...... 277 4.4 Provisions for Freedom of Speech in the United States ...... 279 4.5 Freedom of Speech Theory in the United States ...... 282 Thomas Emerson and His Four Defenses for Freedom of Speech ...... 283 Meiklejohn and Self Government...... 291 Vincent Blasi and the Emergence of the Fourth Estate in the 1960s and 1970s...... 296 Rodney Smolla’s Rationale for Freedom of Speech...... 304 4.6 United States Press...... 312 4.7 Facts in New York Times v. Sullivan...... 315 Events in Montgomery, Alabama in 1960 ...... 316 New York Times...... 319 Advertisement...... 319 Lower Court’s Decision...... 323 Alabama Supreme Court’s Decision...... 327 4.8 United States Supreme Court’s Decision in New York Times v. Sullivan332 4.9 New York Times’ Progeny...... 344 Curtis Publishing Co. v. Butts and Associated Press v. Walker ...... 344 Gertz v. Robert Welch, Inc...... 355 Hutchinson v. Proxmire ...... 370 4.10 Damages in Libel Actions...... 378 4.11 Conclusion ...... 398

vii 5 A HISTORICAL AND CULTURAL LOOK AT THE BRITISH CARIBBEAN ...... 401

5.1 Introduction...... 401 5.2 Similarities Between the British Caribbean Nations ...... 402 5.3 Short History of Jamaica and the British Caribbean...... 411 5.4 Theory on Constitution-Building and the Jamaican Constitution...... 423 5.5 System of Government in the Caribbean...... 430 5.6 Political Culture in the British Caribbean...... 435 5.7 Media Culture and Freedom of Press in the British Caribbean ...... 450 5.8 Simeon McIntosh and Freedom of Speech ...... 470 5.9 Conclusion ...... 475

6 THE CARIBBEAN CASES ...... 478

6.1 Introduction...... 478 6.2 Court System in the Caribbean ...... 480 6.3 Provisions in Libel Acts in the British Caribbean ...... 485 6.4 The 1950s to 1970s ...... 490 6.5 Later Cases: 1980 to 1998...... 517 6.6 Two Post-Reynolds Privy Council Decisions ...... 538 6.7 Conclusion ...... 553

7 ABRAHAMS V. THE GLEANER CO...... 557

7.1 Introduction...... 557 7.2 The Background to the Abrahams Case...... 558 Plaintiff ...... 558 Defendant...... 559 Facts of the Abrahams Case...... 560 Background to the News Story ...... 562 Default Hearing...... 568 Leave to File Defense Granted ...... 570 7.3 Procedural Decisions in the Court of Appeal and Supreme Court ...... 573 7.4 Court of Appeal’s Decision to Reduce the Damages...... 583 General Damages...... 583 Injury to Health...... 585 Aggravated Damages...... 589 Constitutional Challenge...... 591 Exemplary Damages ...... 597 Concurrences...... 597 7.5 Privy Council’s Decision ...... 600 Whether the Lower Court’s Award was Excessive ...... 607 Award 608 7.6 Appeal to the Inter-American Convention on Human Rights ...... 610 Stokes’ Case...... 612 Jamaica’s Case...... 615

viii Commission’s Decision ...... 618 Admissibility...... 618 Exhaustion of Domestic Remedies ...... 619 Whether the Jamaican Court’s Decision Violated Stokes’ Rights...... 620 The Dissent ...... 622 7.7 Conclusion ...... 625

8 CRIMINAL LIBEL IN THE CARIBBEAN: THE GEORGE WORME CASE.627

8.1 Introduction...... 627 8.2 Seditious Libel and Other Criminal Laws in the United States...... 628 8.3 Tradition of Prosecution for Seditious Libel in the Caribbean...... 638 8.4 Grenada’s Recent Political History...... 646 8.5 Facts of the Case ...... 649 Issues in Worme ...... 654 Arguments before the Privy Council ...... 656 Limits of the Freedom of Speech Guarantee ...... 658 8.6 Whether Criminal Prosecution Infringes Freedom of Speech in Grenada659 Burden of Proof in Criminal Cases...... 660 Parameters of the Defense of Truth Under Section 257(1)(h)...... 665 Defense of Privilege...... 667 Arguments on Unconstitutionality...... 669 Constitutionality of the Crime of Intentional Libel ...... 672 8.7 Aftermath of the Worme Decision ...... 677 8.8 Conclusion ...... 680

9 THE INTER-AMERICAN SYSTEM OF HUMAN RIGHTS AND THE LA NACIÓN CASE...... 684

9.1 Introduction...... 684 9.2 Inter-American Human Rights System...... 685 9.3 Status of the British Caribbean Countries that are Signatories...... 688 9.4 Costa Rican Legal System ...... 691 9.5 Facts of the Herrera Ulloa Case...... 694 9.6 Written Evidence and Arguments in the Court...... 703 Laura Mariela Gonzalez Picado’s Evidence...... 704 Testimony Before the Court...... 705 Mauricio Ulloa Herrera’s Testimony...... 706 Fernán Vargas Rohrmoser’s Testimony ...... 709 Legal Expert Testimony for Herrera and the Newspaper ...... 710 Evidence of Legal Experts on Behalf of Costa Rica...... 716 9.7 Substantive Issue of the Right to Liberty of Thought and Expression ....718 Arguments in Favor of Herrera and the Right to Freedom of Expression719 Commission’s Arguments...... 724 Herrera’s Lawyer’s Arguments...... 726 Costa Rica’s Arguments ...... 727

ix 9.8 Court’s Decision: Freedom of Speech in a Democratic Society...... 732 Issues to be Examined...... 732 Content of the Right to Freedom of Thought and Expression...... 733 Liberty of Thought and Expression in a Democratic Society...... 734 Role of Mass Media in Liberty of Thought and Expression...... 735 Restrictions to Freedom of Speech in a Democratic Society...... 735 Post-Publication Restrictions vs. Free Speech...... 736 9.9 Inter-American Court’s Award...... 739 Provisions in the Inter-American Convention ...... 739 Commission’s Arguments...... 740 Costa Rican State’s Arguments ...... 743 Court’s Decision on the Question of Damages...... 745 9.10 Conclusion ...... 747

10 CONCLUSION...... 750

10.1 Introduction...... 750 10.2 Standard of Fault Used in Public Figure Libel Cases in the Jurisdictions751 10.3 Public Person Libel Laws in the Jurisdictions ...... 757 10.4 Implication of Membership in the Organization of American States...... 760 10.5 Siebert and Levy Principles on Freedom of Speech ...... 764 10.6 Freedom of Speech Theories ...... 769 10.7 Criminal Libel Laws ...... 777 10.8 Abrahams Case ...... 780 10.9 Role of Freedom of Speech in Newly Independent Nations...... 786 10.10 Differences Between the Standards ...... 791 10.11 Conclusion ...... 796

APPENDIX

A CASES IN THE DISSERTATION ...... 810

B STATUTES AND CONSTITUTIONS IN THIS DISSERTATION ...... 820

LIST OF REFERENCES...... 822

BIOGRAPHICAL SKETCH ...... 840

LIST OF TABLES

Table page

3-1 Votes in the House of Lords in Reynolds...... 207

4-1 Categorization of Standard of Proof in Libel actions in the United States ...... 311

4-2 Votes in the Supreme Court decision in Curtis v. Butts/Walker v. A.P...... 353

4-3 Votes in the Supreme Court decision in Gertz v. Robert Welch ...... 367

4-4 Votes in the Supreme Court decision in Dun & Bradstreet v. Greenmoss ...... 386

5-1 Area size and population of British Caribbean states...... 402

5-2 Members of the West Indies Federation and Caricom/CARIFTA...... 406

5-3 Status of the Caribbean Countries...... 408

5-4 Settled vs. Conquered or Ceded Territories in the British Caribbean...... 410

5-5 Freedom House ranking of levels of Freedom of Speech ...... 462

LIST OF FIGURES

Figure page

1-1 Map of the Caribbean borrowed from Google Images...... 6

1-2 The Caribbean Court System ...... 50

1-3 The United States Court System ...... 50

2-1 The System of Appeals in the English Jurisdiction (Libel cases) ...... 94

9-1 The Legal System in Costa Rica ...... 692

xii

Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy

PUBLIC PERSON LIBEL STANDARDS IN THE BRITISH COMMONWEALTH CARIBBEAN VERSUS THE UNITED STATES

Roxanne S. Watson

December 2006

Chair: Bill Chamberlin Major Department: Mass Communication

My study compared the principles used in determining libel actions involving public persons in the United States and the British Caribbean. It traces the development of public person libel law in the United Kingdom with the view to isolating the libel law concepts that are applicable in the Caribbean today.

My study traced the development of libel law in the United States since the groundbreaking U.S. Supreme Court decision of 1964, New York Times v. Sullivan. Since the

Sullivan decision and its progeny, public officials and public persons are required to prove actual malice, constituting knowledge of falsity or reckless disregard for whether the statement was true, before recovering damages in a libel action.

The British Caribbean has adhered to the British law, which does not provide heightened protection for speech about public officials. Under British Caribbean law, the defense of privilege is available for the publication of public documents; and publications made in the public interest, which arises where the publisher has a duty to publish and the

xiii receiver an interest in receiving the information. This privilege, unlike the New York

Times privilege, attaches to the category of the publication instead of the status of the person. However, as in the case of the United States, the qualified privilege in the

Caribbean can be defeated where it is shown that the defendant acted with “express malice” shown by the lack of an honest belief in the truth of the statement—knowledge of falsity or recklessness as to whether the statement was true—or where the defendant published with ill will or for a motive other than that for which the privilege applied.

My study also raised the possible implication of membership of some Caribbean countries in the Inter-American System of Human Rights. The Inter-American Court for

Human Rights, which monitors the compliance of state members with the American

Convention, has indicated that it favors the adoption of the U.S. actual malice standard in the case of public persons. This could force the four British Caribbean nations that are signatories to the Convention to adopt the American standard.

xiv

CHAPTER 1 PURPOSE, METHODOLOGY, LITERATURE REVIEW AND DEFINITIONS

1.1 Introduction

The English law of libel developed in a tradition of the government controlling

speech that was critical of public officials. Scholar Fredrick Siebert identified two

successive press theories in England that subjugated press freedom to the need to protect

the sovereign power.1

The first theory was dubbed the Stuart-Tudor theory because it was popular during

the reign of the Tudor and Stuart houses on the English throne (between the fifteenth and

early eighteenth centuries).2 Under this theory, control of the press was justified on the

principle that the crown’s stability was directly related to the stability, safety, and welfare

of the state. Accordingly, the press could be regulated and prevented from criticizing the

crown to ensure the success of royal policies.3 The second theory (accepted by Sir

William Blackstone4 and Chief Justice William Mansfield)5 had its birth after 1689,

1 FREDRICK SEATON SIEBERT, FREEDOM OF THE PRESS IN ENGLAND 1476–1776: THE RISE AND DECLINE OF GOVERNMENT CONTROL 5 (University of Illinois Press, Urbana, 1965).

2 Id. The first Tudor monarch Henry VII was monarch between 1485–1509 and the last, Elizabeth I between 1558–1603. THE TUDOR MONARCHS, http://tudorhistory.org/monarchs/ (last visited May 19, 2006). The Stuarts, the first kings and queens of the United Kingdom reigned between 1603 and 1714. http://www.royal.gov.uk/output/page74.asp (last visited May 19, 2006).

3 Id.

4 th Sir William Blackstone, THE COLUMBIA ENCYCLOPEDIA, (6 ed., 2001–2005), http://www.bartleby.com/65/bl/BlackstoW.html (last visited May 26, 2006). Sir William Blackstone who lived between 1723 and80 was an English jurist involved in scholarship and teaching. Blackstone published his lectures as Commentaries on the Laws of England (4 vol., 1765–69).

5 st William Murray, 1 Earl of Mansfield, WIKIPEDIA, http://en.wikipedia.org/wiki/William_Murray,_1st_Earl_of_Mansfield (last visited May 26, 2006). A

1 2

when the English Bill of Rights was passed and Parliament became supreme.6 Advocates

of the Blackstone-Mansfield theory suggested that freedom of the press co-existed with

the notion of sovereignty with the lopsided balance of power heavily weighted in favor of

sovereignty.7 Thus, freedom of speech and of the press was limited by the sovereign

power, Parliament.8 Although the press was free from prior restraints such as licensing, it

could be punished for abusing its freedom.9

Between the fifteenth and seventeenth centuries the European nations battled for

supremacy in the New World that would come to be known as the Americas. The New

World was divided up among different European nations. The territory captured by

Britain, loosely referred to as the British colonies, ranged in size from the several

territories on the mainland of North America to British Honduras in Central America, and

British Guiana on the South American mainland; to several islands in what is referred to

as an archipelago that loosely connected British Guiana to the mainland North America at

its southernmost tip.10 Each of these colonies were subjected to the sovereign power and

operated under the British law of libel.11

one-time Solicitor General, Attorney General and Leader in the House of Commons, William Murray, the First Earl of Mansfield (1705–1793) is best known for his judicial career. He presided over highly controversial trials including at least a few famous libel trials.

6 SIEBERT, supra at 6.

7 Id. at 6–7.

8 Id. at 7.

9 Id.

10 RICHARD HART, FROM OCCUPATION TO INDEPENDENCE: A SHORT HISTORY OF THE PEOPLES OF THE ENGLISH-SPEAKING CARIBBEAN REGION 6 (1998). The colonies were settled by the British between 1627 and the eighteenth Century.

11 JOHN LENT, THIRD WORLD MASS MEDIA AND THEIR SEARCH FOR MODERNITY: THE CASE OF COMMONWEALTH CARIBBEAN 1717–1976 30 (Lewisburg Bucknell University Press, London: Associated

During the latter part of the eighteenth century, a new approach to press treatment

(called the Erskine-Camden theory) grew up alongside the sovereignty theory.12 Thomas

Erskine13 and Chancellor Campden,14 were two eighteenth century barristers whose courtroom arguments played an important role in advancing civil rights in England.

Under this theory, the sovereignty of both the King and Parliament was limited by natural

law and the Rights of Man derived from God’s law which could not be infringed by

man-made law. Thus, the “government could not restrict the right to speak and to print

even to save itself from destruction.”15

University Presses). Editors in the early nineteenth century were tried under libel laws. Thus, Editor Charles Wells in St. Lucia was tried without a jury and found guilty by the judge he allegedly libeled. Similarly, Editor Samuel Keimer in Barbados was “bound to keep the peace” for six months although the attorney general found nothing libelous in his statement.

12 SIEBERT, supra at 6.

13 st Id. at 7. See also Thomas Erskine, 1 Baron Erskine, WIKIPEDIA, http://en.wikipedia.org/wiki/Thomas_Erskine,_1st_Baron_Erskine (last visited May 26, 2006). Thomas Erskine (1750–1823) was an English Barrister. His first case was as defense attorney for Dr W.D. Shipley, Dean of St Asaph, who was tried in 1784 at Shrewsbury for seditious libel. The trial led to the passage of the Libel Act 1792, which laid down the principle that the question of whether a publication was a libel was for the jury and not the judge.

14 st Id. See Charles Pratt, 1 Earl Camden, WIKIPEDIA, http://en.wikipedia.org/wiki/Charles_Pratt,_1st_Earl_Camden (last visited May 26, 2006). The first case which brought English Barrister Charles Pratt (1714–1794) to notice was his 1752 defense of bookseller William Owen in an action for seditious libel against the House of Commons. Later, as Chief Justice of the Court of Common Pleas, he presided over two cases of significance to the English constitutional law. In 1762, officers of the Crown raided John Entick’s home in search of evidence of sedition. Pratt held in Entick v. Carrington, that there was no statutory or common law authority for the raids and they were unlawful. In the 1769 John Wilkes case, Pratt held that general warrants were illegal. See also Charles Pratt, st th 1 Earl Camden, THE COLUMBIA ENCYCLOPEDIA, (6 ed., 2001–2005), http://www.bartleby.com/65/pr/Pratt-Ch.html (last visited June 2, 2006) where Camden is credited with causing the passage of the 1792 Fox’s Libel Act.

15 SIEBERT, supra at 7. Siebert attributes the increased protection for freedom of speech to an increasing demand among commoners in the last half of the eighteenth century for political news. Id. at 8. Because the media wanted to tap into the potential for profit, it allied with other trades people and the minority Whig party for greater freedoms. It is important also to note the effect of philosophic writings on freedom of press which had begun to be distributed as early as 1644 by John Milton, and were reiterated in the nineteenth century by John Stuart Mill.

When the United States became independent in 1776, it adopted an even more

enlightened position on freedom of speech. The First Amendment to the United States

Constitution (passed in 1791) prohibited the federal government from “abridging” the

right of Americans to freedom of speech. Despite the absolute language, the right to

freedom of speech has been limited by judicial interpretations and statutes that have been

upheld by the courts and has evolved today in a complex body of law.16 Even so, the U.S.

courts have given the media and the public substantial protection for the robust

discussion of public issues, public officials, and persons who have participated actively in

the public arena. Public officials and anyone fitting the court-defined term of “public figure” have a greater burden of proof to win a libel suit than similar persons in the

British Caribbean.17 American theory of the press has emerged from more than two centuries of legal discussion and Supreme Court decisions in the United States.

Almost 200 years after the United States won its independence, the British

Caribbean colonies gained independence from Britain in the two-decade period beginning

in the 1960s. For purposes of this dissertation the British Caribbean consists of about 17

countries. These include the four independent countries in the Leeward Islands:18

• Montserrat, • Antigua and Barbuda (one country), • St. Kitts and Nevis (one country),

16 See WILLIAM VAN ALSTYNE, INTERPRETATIONS OF THE FIRST AMENDMENT 21 (Duke Press Policy Studies, 1984).

17 Infra note 32.

18 See CARIBBEAN ISLANDS—THE LEEWARD ISLANDS, http://countrystudies.us/caribbean-islands/57.htm (last visited Apr. 20, 2006). See also Leeward Islands, WIKIPEDIA, http://en.wikipedia.org/wiki/Leeward_Islands (last visited June 1, 2006). These islands are “called "leeward" because the prevailing winds in the area blow from south to north. Thus, the Leeward Islands are downwind, on the backside, or leeward from the Windward Islands, the group of islands that first meet the Trade Winds coming from the south.”

• Dominica.

The Caribbean also includes four countries in the Windward Islands:19

• Dominica, • St. Lucia, • St. Vincent and the Grenadines (one country), and • Grenada.

The British Caribbean also includes the islands of:

• Barbados,20 • Jamaica, • Trinidad & Tobago (one country), and • Bahamas.

The British Caribbean also includes four dependent British colonies:

• Anguilla, • the British Virgin Islands; • Cayman Islands, and • the Turks & Caicos.21

The term British Caribbean also includes Belize and Guyana on the Central and

South American mainlands respectively (figure 1-1). All the Caribbean countries are

treated as one jurisdiction because of similarities in their political, economic, cultural and

legal histories and the laws that govern these countries have led to the development of

similar jurisprudence.22

19 See CARIBBEAN ISLANDS—THE WINDWARD ISLANDS AND BARBADOS, http://countrystudies.us/caribbean-islands/56.htm (last visited April 20, 2006). See also Windward Islands, WIKIPEDIA, http://en.wikipedia.org/wiki/Windward_Islands (last visited June 1, 2006). The Windward Islands are called “Windward” because “they were more windward to sailing ships arriving in the New World than the Leeward Islands, given that the prevailing winds in the whole West Indies blow north. The trans-Atlantic currents and winds that provided the fastest route across the ocean brought these ships to the rough dividing line between the Windward and Leeward islands.”

20 Id.

21 See TRINIDAD AND TOBAGO—THE NORTHERN ISLANDS, http://countrystudies.us/caribbean- islands/58.htm (last visited April 20, 2006).

22 See Chapter 5, 1.1 for a discussion of these factors.

Figure 1-1. Map of the Caribbean borrowed from Google Images, Google images, http://images.google.com/imgres?imgurl=http://www.lib.utexas.edu/maps/am ericas/camericacaribbean.jpg&imgrefurl=http://www.lib.utexas.edu/maps/ame ricas/&h=1473&w=1797&sz=153&tbnid=p8fcpxOFcdEJ:&tbnh=122&tbnw= 150&prev=/images%3Fq%3Dcaribbean%2Bmaps%26hl%3Den%26lr%3D&s tart=1&sa=X&oi=images&ct=image&cd=1 (last visited May 24, 2006).

The early press in the British Commonwealth Caribbean grew up under the British

tradition of seditious and criminal libel laws and prosecutions.23 However, as these

23 As late as the latter part of the nineteenth century a controversial leader of an arm of the Native Baptist Church in Jamaica, Alexander Bedward was prosecuted for seditious libel (J.E.R. STEPHENS, SUPREME COURT DECISIONS OF JAMAICA AND PRIVY COUNCIL DECISIONS FROM 1774–1923, VOL. II 1748 (London: Crown Agents for the Colonies, 1924). See also A.A. BROOKS, HISTORY OF BEDWARDISM OR THE JAMAICA NATIVE BAPTIST FREE CHURCH, UNION CAMP, AUGUSTOWN, ST. ANDREW, JAMAICA, B.W.I. 11 (Jamaica: The Gleaner Co, Ltd., Printers, Kingston, 1917), www.kobek.com/bedwardism.pdf (last visited Nov. 4, 2005)). Similarly, in 1930, Jamaican-born controversial civil rights leader Marcus Garvey was also prosecuted. (see Garvey Sentenced For Six Months, Aikman Three Months, THE DAILY GLEANER, Feb. 22,

British West Indian countries became independent between the 1960s and 1980s, they began the process of developing local principles on libel. The Caribbean states have been in the process of determining the libel laws that uniquely suit a historical independence process that began more than 150 years after the United States fought for and won its independence. Because of this the British Caribbean’s jurisprudence on libel law has developed along a different path from that of the United States. Today, the legal principles that form the basis of the Caribbean law of libel are very similar to those in the

British system, while the U.S. has developed in a different direction, particularly as it relates to the position of libels against public persons.

Therefore, while in the United States criminal libel laws were outlawed in 1966,24

they are still constitutional in the Caribbean. In 2004 the Privy Council, the highest court

of appeal in the Caribbean, held that criminal libel laws were constitutional and

consistent with a democratic society.25 While civil libel laws lead to civil actions and damages the penalties imposed for criminal libel laws are imprisonment and fines. The fundamental difference between a civil trial and a criminal trial is that while the first is a private action for damage caused to a private person, a criminal prosecution is actually brought by the state for a crime that is seen to be against the state. Journalism professor

Jane Kirtley has suggested that, while civil libel laws are justified since media organizations have no right to “knowingly publish false and damaging statements about

1930, p. 1. See also, R. v. Garvey, in ADRIAN JOHN CLARK, LL.B. OF THE INNER TEMPLE, SUPREME COURT OF JUDICATURE OF JAMAICA JUDGMENTS 1917–1932, p. 327, (Government Printing Office, Kingston Jamaica, 1937).

24 Ashton v. Kentucky, 384 U.S. 195 (1966).

25 George Worme & Grenada Today Ltd. v. Commissioner of Police of Grenada, Judicial Committee of the Privy Council [2004] UKPC 8 in (2003) 63 W.I.R. 78.

another individual without consequence,” criminal libel prosecutions are inappropriate

and incompatible with a democratic society.26 She writes that “criminal libel is an

unfortunate and outdated legacy of autocratic, totalitarian or colonial states.” Her concern is that criminal libel laws prevent “dissent and debate, punishing legitimate criticism of

government officials and institutions” and, through intimidation tactics, discouraged

journalists, scholars and politicians and others from criticizing the government because of

fear that the criticism might be deemed “offensive, insulting or defamatory.”27 However,

in a 2004 Caribbean decision the highest British Caribbean court held that criminal libel

laws are constitutional and justified in a democratic society.28

Most recently, in 2003 the highest court of appeal in the Caribbean also awarded

J$35-million (approximately US$500,000) to a one-time government official for an

allegedly libelous statement published by a newspaper about him. The decision in

Gleaner v. Abrahams29 to award roughly the equivalent of US$500,000 to ex-minister of

tourism Anthony Abrahams is significant because it is the largest award in any libel case

in the English-speaking Caribbean and was criticized by the Inter-American Press

26 JANE KIRTLEY, CRIMINAL DEFAMATION: AN “INSTRUMENT OF DESTRUCTION” 1 (Nov. 18, 2003), http://www.silha.umn.edu/oscepapercriminaldefamation.pdf. (last visited Dec. 6, 2005). Jane Kirtley is Silha Professor of Media Ethics and Law and Director of the Silha Center for the Study of Media Ethics and Law at the School of Journalism and Mass Communication, University of Minnesota. The paper was distributed at a conference, "Libel and Insult Laws: What More Can be Done to Decriminalize Libel and Repeal Insult Laws," convened by the Organization for Security and Cooperation in Europe (OSCE) and Reporters Without Borders (RSF) on Nov. 24–25, 2003 in Paris, France. Prof. Kirtley prepared the paper at the request of Alex Ivanko, senior adviser to the OSCE Representative on Freedom of the Media.

27 Id.

28 George Worme & Grenada Today Ltd. v. Commissioner of Police of Grenada, [2004] UKPC 8 in (2003) 63 W.I.R. 78.

29 (2003) 63 W.I.R. 197 (Privy Council).

Association (I.A.P.A.).30 The size of the award demonstrates the strong emphasis of the

Jamaican courts and the Privy Council, the Caribbean’s final court of appeal, on

protecting the reputations of persons libeled. The I.A.P.A. has indicated concern that in

Jamaica “outdated libel laws . . . allow large awards against the media.”31

The principles used in Caribbean courts to determine liability for libel and the

amount of damages to be awarded are important because Abrahams’ award is

substantially larger than any other award given in Caribbean libel cases. As attorney

Sheryl Thompson notes, the juries in Caribbean libel actions invariably have very little

guidance in making awards.32 It will, thus, be instructive to look for principles used by

judges in the libel cases leading up to the award in the Abrahams case. The case law will

also be instrumental in identifying where the burden of proof rests in establishing a libel

case and defenses available to newspapers in libel actions in the Caribbean.

In the United States public persons and public figures33 bringing a libel action can

only be successful where they prove the publisher acted with actual malice constituting

either knowledge of falsity or reckless disregard for whether or not a statement was

true.34 The damage award made in the Abrahams case has been taken before the

Inter-American Court of Human Rights for review. In light of the fact that a 2004

30 Midyear Meeting SIP/IAPA, Panama City, Panama, March 11–14, 2005, Country by Country Reports, INTER AMERICAN PRESS ASSOCIATION, http://www.sipiapa.org/pulications/report_caribe2005.cfm (last visited Aug. 22, 2005).

31 Id.

32 SHERYL THOMPSON, THE PROTECTION OF PRIVACY II 37 (available at the University of the West Indies Faculty of Law Library, Cave Hill, Barbados).

33 Infra note 41.

34 New York Times Co. v. Sullivan, 376 U.S. 264 (1964).

10 decision the Inter-American Court expressed support for applying the United States standard of proof to be applied in libel actions involving public figures it is possible that this court may seek to impose the U.S. standard in Jamaica.35

The aim of this dissertation is to identify the different paths taken by Caribbean and

United States media in the process of defining the freedom of the press, but most particularly the protection given to public figures in libel actions. I have chosen the

English-speaking Caribbean and the United States as the focus of my dissertation because they both once formed part of the British Empire.

The dissertation focuses on Caribbean and United States law as it relates to libel actions brought by public persons. Because both of these jurisdictions were once British colonies and the laws have been influenced by their British origins, it will be necessary to lay the groundwork for the dissertation with some discussion on the English law of libel and its development. Thus, in addition to the discussion on the Caribbean and U.S. law, the dissertation will also provide background to the development of English libel law principles. Nonetheless, the central aim of the dissertation is to compare the status of public person libel actions in the United States and the Caribbean.

In the next few sections I explain the significance of each of the major issues that my dissertation will address. The chapter will be divided into nine sections. In 1.2 my research questions, the significance of the research along with definitions of legal and other terms used in this dissertation are discussed. Section 1.3 defines the term “libel” and provides a general overview of the distinction between the elements of libel and the defenses available for public person libels in the two jurisdictions. Section 1.4 focuses on

35 Herrera Ulloa v. Costa Rica, 2004, Inter-Am. Ct. H.R. (ser. C) No. 107 (July 2, 2004).

the constitutional protection given to freedom of speech in the different jurisdictions.

Section 1.5 focuses on the significance for sovereignty of membership of some Caribbean

states in the American System of Human Rights. Section 1.6 consists of a discussion on

the methodology I will use in this paper. Section 1.7 provides a brief introduction to the

structure of the court systems in the United States and the Caribbean which will be more

specifically addressed in chapters 4 and 6 respectively. Section 1.8 provides definitions to some legal terms that I will use in this dissertation. Section 1.9 reviews the previously-written literature on this topic. Section 1.10 provides an outline of the chapters in this dissertation.

1.2 Research Questions

My research questions will be:

1. What is the libel law in the Caribbean and the United States that controls suits brought by public figures and public persons?

2. How did the libel law with respect to public figures develop in the two jurisdictions? What were the most significant issues in the development of the law as documented in court opinions and supplemented by appropriate secondary sources?

3. How can the precedent of the Herrera-Ulloa v. Costa Rica36 decision in the Inter-American Court of Human Rights help us to understand the potential impact of membership in the American System of Human Rights on British Caribbean case law?

In looking at the factors determining the latitude allowed for defamatory speech,

there will be some discussion on the factors within the two jurisdictions that limit or

enhance libel suits brought by public people.

The paths taken by the United States and the Caribbean in determining actions for

libel against public persons is expected to reflect the historical, cultural, and political

36 2004, Inter-Am. Ct. H.R. (ser. C) No. 107 (July 2, 2004).

12 differences between them. The United States, having fought for and gained independence in 1776, is expected to have a different relationship with the British legal system than the

Caribbean islands that were given independence almost two centuries later. The United

States began to develop its legal and constitutional jurisprudence in the latter part of the eighteenth century, while the Caribbean’s own independent constitutional and legal framework is less than 50 years old.

The second “larger” question that may play a part in future research seeks to determine the effect that the stages of development of a nation will have on its libel laws.

Very little research has been done on this broader, but important question. Research focused on individual countries and groups of countries is needed before the question can be fully addressed. This is the type of research that this dissertation tries to do.

In answering the research questions the key concepts that I will be looking at are:

• The principles and theories underlying freedom of speech and of the press in the United Kingdom, the United States, the Caribbean and under the Inter-American System of Human Rights. • The political history within which press law and libel law have evolved and the manner in which the system of government functions in the countries under study. • The constitutional and legal structures that evolved from the separate legal histories of the countries under study and in the Inter-American Court of Human Rights. • The public role and authority of “public persons” in each of the countries as discussed in the case law. • The role of the media as an institution as identified in the Caribbean in the ordinary law of the land including statutory and common law.

For purposes of this study the term “public person” includes government officials, politicians, and at least some entertainment celebrities—and media personalities—people in the public eye.

In U.S. jurisprudence any public official—whether in the federal, state,37 or local

government38—is subject to proof of actual malice as defined in New York Times v.

Sullivan. The term “officials” also refers to persons involved in administrative tasks

within the government system. The term “public officials” includes not only elected

public persons, but also non-elected persons who have a substantial role to play in

making decisions that will affect the public.39 In addition, the U.S. Supreme Court has

said that “public figures” including political candidates,40 and ex-officials,41 must meet

the same burden of proof, showing the defamatory material has been printed or broadcast

with knowledge of falsity or reckless disregard for the truth.

Public figures include persons who have the ability to influence public affairs by

virtue of their position in society or have the ability themselves to effectively respond to

defamatory allegations by their own use of the media. The U.S. Supreme Court has said

that “public figures” includes people who are all-purpose public figures including

celebrities and limited-vortex public figures, so called because their burden of proof in libel cases relates to only a specific cause in which they have thrust themselves deliberately to influence the outcome of the cause.42

In the Caribbean and the United Kingdom, there has not been such an emphasis on establishing a definition of public person since there is no special defense for a public

37 Rosenblatt v. Baer, supra, New York Times v. Sullivan, supra.

38 Henry v. Collins, 380 U.S. 356; Time Inc. v. Pape, 401 U.S. 279.

39 Rosenbloom v. Metromedia Inc., 403 U.S. 29, 1 Media L. Rep. 1597 (1971).

40 Barr v. Matteo, 360 U.S. 564 (1959).

41 Rosenblatt v. Baer, 383 U.S. 75 (1960).

42 Gertz v. Welch, Inc., 418 U.S. 323, 325 (1974).

person. Instead, the closest comparison in legal discussion has involved a possible

privilege for “any discussion of governmental or political matters affecting the people of

the United Kingdom,” which was specifically rejected by the House of Lords in 1998.43

Nonetheless, because of the public interest in receiving political information, the courts have often recognized such communication to be privileged.44 While the definition of the

public official for purposes of this paper is drawn from the United States law which

specifically addresses this issue, there is a recognizable body of cases in the Caribbean

and in the United Kingdom where the public status of the libeled person is addressed and

treated.45 This provides a basis for comparison.

The term “constitutional and legal structure” for purposes of this paper refers to the

totality of constitutions, statutes and court precedents in any country. These are intended

to govern the behavior and decisions of citizens in the country as well as the prevailing

system that governs them. The manner in which the political systems work is more

evident in the constitutions of the United States and the Caribbean which specifically delineate the political system, than it is in Britain.

Another key term in this dissertation is “political culture.” Holger Henke defines

“political culture” as the “relationship between values, political attitudes and behavior

(culture)” and “institutions and processes.”46 The political culture of a country determines

the extent to which the media is given freedom to report news stories.

43 Times Newspapers v. Reynolds, [1999] 4 All ER 609 at 649.

44 See Chapters 2 and 6.

45 See Chapters 2, 3, 6 and 7.

46 Holger Henke and Fred Reno, Introduction: Politics and Culture in the Caribbean, in MODERN POLITICAL CULTURE IN THE CARIBBEAN, xii (eds. Holger Henke and Fred Reno, University of the West Indies Press, Kingston, Jamaica, 2003).

“The role of the media” refers to the belief systems and values that the media abides by in the two regions and the part played in the society by the media. The role the media plays in the society will determine the relationship it has with the government and the level of freedom that it enjoys.

This dissertation is important as it is among the first to begin to explore the development of libel law involving criticism of public figures in developing countries.

Scholars such as Alexander Meiklejohn and Vincent Blasi argue that a press free to discuss public issues is vital to open government. The same argument was made by

Justice William Brennan in the landmark U.S. case New York Times v. Sullivan, to be discussed extensively in this dissertation. The United States, within its first 10 years, imprisoned and fined newspapers for criticizing government officials. The laws that permitted that punishment expired more than 200 years ago, and since that time criminal prosecution for criticizing government leaders in the United States has been rare.

For the last 40 years the United States has permitted through its libel laws its public officials to be falsely defamed in order to promote a wide open and robust discussion of political issues.

While this dissertation compares the libel laws vis-à-vis discussion and criticism of public officials in only the Caribbean nations and the United States, the broader question is whether a country with a shorter history of democracy can realistically adopt as stringent a burden of proof on public officials suing for defamation. While many western democracies, primarily in North America and Europe, have relatively stable democratic systems, many nations around the world are relatively new to democratic government.

An important issue to explore is the kind of protection for criticism of public officials that

16 can sustain that democracy. Can a democracy thrive in a country that criminalizes the criticism of public officials or provides protection for reporting or opinion only when the information for a story comes directly from an official document or the opinion is based on a provable fact? That discussion has barely begun. There is virtually no research on the topic from a perspective of legal research, quantitative research, or qualitative research.

This dissertation is a beginning. It is a comparative examination of the libel laws of a country with more than 200 years of democratic history and relatively rigorous discussion of public leaders and one still struggling to determine the amount of criticism public officials should be exposed to given its unique political, social and development context. More legal studies need to be done in other countries. For example, not all long term democracies allow the criticism of public officials allowed in the United States. But also important in the future will be studies to determine what kind of libel laws best foster self-rule in developing countries.

Principles that frame this study come from two of the most important scholars studying freedom of expression in the twentieth century. The first, Frederick Seaton

Siebert, was introduced at the beginning of this chapter. After examining Britain’s movement from an autocratic system of government to embrace freedom of speech between the fifteenth and nineteenth centuries, Siebert identified two general propositions about government control over freedom of the press.47 First, Siebert said that as democratic forms of government replaced monarchical government systems, the press

47 FREDRICK SEATON SIEBERT, FREEDOM OF THE PRESS IN ENGLAND 1476–1776: THE RISE AND DECLINE OF GOVERNMENT CONTROL 10 (1965).

took on an extra function, as watchdog of public affairs.48 Thus, Siebert wrote, “the

extent of government control of the press depends on the nature of the relationship of the

government to those who are governed.”49

The second proposition made by Siebert was “the area of freedom contracts and the

enforcement of restraints increases as the stresses on the stability of the government and of the structure of society increase.”50 In other words, the more secure a government is,

the more willing it is to relinquish control of speech and the press.51

The second significant scholar, Leonard Levy, suggested three prerequisites to the

recognition of freedom of speech as a protected civil liberty.52 These are the recognition

by people that their opinions are relative rather than absolute, the recognition by

governments that they are strong enough to stand up to criticism, and the embracing of a

system that regards citizens as sovereign and the master of the government, rather than as

servants of the state.53

The theories by Seibert and Levy will provide a context for this study and will be

examined again in the conclusion.

48 Id.

49 Id.

50 Id.

51 Id.

52 LEONARD W. LEVY, EMERGENCE OF A FREE PRESS, 5 (Oxford University Press, N.Y., New York, 1987).

53 Id.

1.3 Definition of Libel and the Defenses in Jurisdictions

A defamation is the publication to a third person of “words or matter containing an untrue imputation against the reputation” of another person.54 When the publication is

“made in a permanent form or is broadcast or is part of a theatrical performance, it is libel.”55 If spoken or in a “transient form, it is slander.”56 This dissertation focuses on libel.

In order to win a libel suit in the Caribbean a person must prove that the statement that forms the basis of the action is defamatory, the words referred to him and that they were published to at least one other person.57

The first requirement is that the statement must be defamatory. A defamatory statement one that lowers a person in the estimation of “right-thinking” members of society;58 exposes him to hatred, contempt or ridicule;59 causes others to shun or avoid him;60 discredits him in his trade, profession, or calling;61 or damages his financial

54 th GATLEY ON LIBEL AND SLANDER, para. 1.3 (Patrick Milmo and W.V.H. Rogers (eds.) 9 ed., Sweet & Maxwell, 1998).

55 Id.

56 Id.

57 Lamont v. Emmanuel, (1966) Court of Appeal, Trinidad and Tobago, No. 1 of 1965 (unreported).

58 Sim v. Stretch, [1936] 2 All E.R. 1237, 1240.

59 See St. Vincent case, Rogers v. News Company Ltd. (1995) High Court, St. Vincent, No. 221 of 1993 (unreported), (holding that a newspaper reference to the Superintendent of Police as “Bat” Rogers was defamatory since in St. Vincent the word “bat” imputed “ignorance, stupidity and eccentricity.”).

60 See Forde v. Shah, (1990) High Court, Trinidad and Tobago, No. 4709 of 1988 (unreported) (holding that a newspaper report stating that Charmaine Forde, a Trinidadian singer, had a relationship with someone infected with the A.I.D.S. virus and implying that she might have contracted the disease was defamatory and likely to cause persons to shun or avoid her).

61 Jamaica Defamation Act § 4 (1963). See also Emanuel v. Lawrence, (1999) High Court, Dominica, No. 448 of 1995 (unreported) (holding that a statement that a lawyer was incompetent and dishonest was defamatory).

19 credit.62 In the Caribbean statements that have been held to be defamatory include those that a business man was involved in the cocaine trade, 63 that someone had stolen money,64 that a married woman was a “prostitute,”65 and that a university lecturer plagiarized66 or had been dismissed for failure to publish.67

The second requirement for winning a libel suit in the Caribbean is that the person bringing the action be referred to in the alleged defamation. For purposes of a libel action, in addition to a reference by name, other references that would be understood to mean the plaintiff could meet the requirement. This could include initials, cartoons, photographs or a verbal description.68

The third requirement of a successful libel action that the words should be published is met where the words are communicated to at least one person other than the plaintiff. Communication to at least one “third person” is necessary since the defamation

62 GATLEY ON LIBEL AND SLANDER, Chapter 2 generally (Patrick Milmo and W.V.H. Rogers (eds.) Sweet & Maxwell, 9th ed., 1998). See British Guiana Rice Marketing Board v. Peter Taylor and Co. Ltd., (1967) 11 W.I.R. 208 where a statement that a corporation’s check had bounced was held to be defamatory.

63 Spice Island Printers Ltd. v. Bierzynski, (1994) Court of Appeal, Eastern Caribbean States, Civ. App. No. 5 of 1992 (unreported).

64 Briggs v. Mapp (1967) Court of Appeal, West Indies Associated States, Civ. App. No. 2 of 1964 (unreported).

65 Ramkhelawan v. Motilal (1967) 19 Trin. L.R. (Pt. II) 117.

66 Gafar v. Francis (1980) Supreme Court, Jamaica, No. G028 of 1979 (unreported); on appeal (1986) Court of Appeal, Jamaica, Civ. App. No. 45 of 1980 (unreported).

67 Sham v. the Jamaica Observer Ltd. (1999) Supreme Court, Jamaica, No. S 292 of 1995 (unreported).

68 Id. at 311. See Attorney General v. Milne, (1973) 2 O.E.C.S.L.R. 115, Court of Appeal, Eastern Caribbean States, where it was held that a reference such as “one irresponsible businessman . . . who pledges half a million dollars on placards, posters and other subversive material” would be understood to refer to a plaintiff. See also Gairy v. Bullen (No. 1), (1972) 2 O.E.C.S.L.R. 93, High Court of Grenada, where it was held that a substantial number of persons would believe a newspaper article alleging sexual impropriety with young girls who sought employment referred to Eric Gairy, the prime minister of Grenada.

tort is intended to protect reputation and not to protect against injury to personal

feelings.69

In the Caribbean, successful libel actions do not require the person suing to prove

that a statement was false70 or caused injury.71 In the Caribbean libel actions are actionable per se which means that there is a presumption that a defamatory statement is false and that it caused damage. Thus, there is no requirement for the person bringing the action to prove that the statement was false.72 Similarly, in the Caribbean, once a person

bringing a libel action has shown that the statement is defamatory, concerned him and

was published, he will be awarded compensatory damages without providing any proof of injury.73

For the most part in the Caribbean there is no greater burden of proof in libel

actions for public officials than that placed on ordinary citizens. Once any plaintiff has

met their burden of proof, a member of that media that has been sued must provide a

defense if the defendant is not going to lose a libel defense.

In the Caribbean truth, or what is referred to as “justification,” is a full defense in

libel actions.74 In libel law the defense of truth, or justification, is established where the

69 Id. at 318, quoting GATLEY, supra at § 1.4.

70 Id. at 292.

71 Id. at 280.

72 Id. at 292.

73 Id. at 280. See also British Guiana Rice Marketing Board v. Peter Taylor and Co. Ltd. (1967) 11 W.I.R. 208, 219. However, where he proves that he suffered actual loss he can be awarded special damages (The Gleaner Co. & Dudley Stokes v. Abrahams (unreported) C.A. decided July 31, 2000 at 13).

74 See Libel and Slander acts of Grenada § 12 (1956) at Cap 171; Jamaica § 7 (1851 revised 1961, 1969) at Cap 219; St. Vincent & the Grenadines § 3 at Cap. 89; Dominica § 7 (1876 revised 1979) Chap. 7:04; St.

defendant, or the person being sued, establishes that the statement for which he is being

sued is substantially true.75 Other defenses available to media in libel actions in the

Caribbean are fair comment76 and privilege.77

Under the fair comment defense, the public is allowed to “comment freely, and

even harshly” on information in which the “public has a legitimate interest or with which

it is legitimately concerned.”78 To succeed using the defense of fair comment on a matter

of public interest, a newspaper must show the words were a comment rather than a

statement of fact which would reflect the view of an “honest or fair-minded person” and it relates to a matter of public interest.79

The defense of privilege applies in situations where, in the public benefit, the

protection normally given to reputation by the law of defamation is overridden.80 The

Christopher & Nevis § 7 (1876) at Cap. 44; Virgin Islands § 7 (1876 revised 1957) Cap. 42; Anguilla § 5 (2000) R.S.A. c. L50. See acts of Barbados (§ 7(1)); Defamation acts of the following countries: Guyana § 7 (1959) Cap. 6:03; Barbados § 7 (1997) Cap. 199. See also Trinidad’s Libel and Defamation Act § 10 (1846 revised 1950) Chap. 11:16; Bahamas Libel Act § 7 (1843) Chapter 72; Turks and Caicos § 7 (1843) 10 Victoria, Chapter 8.

75 th See GATLEY ON LIBEL AND SLANDER, § 11.1 (9 ed., eds., Patrick Milmo, Q.C. W.V.H. Rogers, 1998)(1924). The defense is called a “plea of justification. Id.

76 Grenada Libel and Slander Act § 13; Guyana Defamation Act § 8; Barbados Defamation Act § 8 and Jamaica Defamation Act § 8 .

77 Barbados Defamation Act § 9, Grenada Libel and Slander Act § 16, Guyana Defamation Act § 13, Jamaica Libel and Slander Act § 15 and Jamaica Defamation Act § 9, Trinidad & Tobago Libel and Defamation Act § 13.

78 GATLEY, supra at § 12.1

79 Id. § 12.2.

80 Id. at § 13.1.

defense can be qualified or absolute. Absolute privilege is not a general defense but is

limited to proceedings in parliament, in court81 or other tribunals.82 It occurs when:

“public policy or convenience require that a person should be wholly free from even the risk of responsibility for the publication of defamatory words… no action will … lie even though the defendant published the word with full knowledge of their falsity and with the express intention of injuring the plaintiff.”83

Unlike absolute privilege which applies only in a few situations, qualified privilege

applies more generally.84 Statements that enjoy a qualified privilege in the Caribbean

include:

• statements made in discharge of a legal, moral or social duty,85 • statements made where the speaker has a legitimate interest,86 • statements made in the case of complaints about persons with public authority, • reports of parliamentary proceedings, • copies or extracts from public registers or reports of judicial proceedings,87 and • statements made where there is a statutory privilege.

Additionally, reporters, to be protected by privilege, must be careful, balanced and

responsible.88 Perhaps the most significant difference between a qualified and absolute

81 Bodden v. Brandon, [1965] Gleaner L.R. 199, 207, holding that where a defense lawyer in a murder trial accused a potential juror, a married woman, of having a relationship with the victim, it was privileged. The Court held it was not necessary for the words to be addressed to the court, so long as they were made in reference to the case.

82 O’Connor v. Waldron, [1935] A.C. 76, 81.

83 Id. at 13.1.

84 nd GILBERT KODILYNE, COMMONWEALTH CARIBBEAN TORT LAW 349 (2 ed., Cavendish Publishing Ltd., 2000)(1995).

85 Hoyte v. Liberator Press Ltd., (1973) High Court Guyana, No 269 of 1972 (unreported), holding that words published by a newspaper intimating that the Minister of Finance of Guyana had been dishonest and should disclose his income tax returns were not privileged. The Court held although there might be a duty to communicate the information to the Inland Tax Revenue Commissioner, there was no duty to communicate this to the general public.

86 This includes statements made in self defense see Osborn v. Boulter, [1930] 2 K.B. 226.

87 GILBERT KODILYNE, COMMONWEALTH CARIBBEAN TORT LAW, supra at 349.

78. Reynolds v. Times Newspapers [1998] 3 All E.R. 961.

23 privilege is that a qualified privilege, like a fair comment, can be overridden if a statement is made with express malice.89 Courts will find a statement was made with express malice when they find that an author or publisher does not have an honest belief that the statement triggering the defamation claim was true, did not care whether or not the statement was true90 or acted for an “improper motive” outside of the reason for which he claimed privilege.91

In the case of both absolute and qualified privilege, the privilege will be revoked where the publisher exceeded the privilege by publishing more widely than required by the circumstances in which the privileged occasion arose.92

In the United States, as in the Caribbean, to make a case for libel a person suing a news medium must also prove that the statement was defamatory,93 referred to the person bringing the action94 and was published.95 However, in the United States since 1964 persons suing for libel must also prove that the statement was false, that the defendant

89 Id. at 349.

90 GATLEY, supra at § 16.3.

91 Id. at 16.4. See for e.g. Jamaica Defamation Act § 9(1).

92 Briggs v. Mapp, (1967) Court of Appeal, West Indies Associated States, Civ App. No. 2 of 1964 (unreported) (holding that while a report of an alleged theft to the police was privileged, there was no privilege to tell third parties who had no legitimate interest in hearing it).

93 A statement that a person pleaded guilty to a charge of murder (Donaldson v. Washington Post co., 3 Media L. Rep. 1436 (D.C. Super. Ct. 1977)); or was an “eel” in a context where the word was used elsewhere to refer to persons who had violated the Endangered Species Act (Snider v. National Audubon Soc’y Inc. 20 Media L. Rep. 1058 1218 (E.D. Cal. 1992)) have been held to be defamatory.

94 It is sufficient for at least one reader to be able to recognize the article as referring to the person bringing the action (Little Rock Newspaper Inc. v. Fitzhugh, 954 S.W. 2d. 914 (Ark. 1997) cert. denied, 118 S.Ct. 1563 (1998)).

95 Publication requires that the libel be communicated to at least one other person than the plaintiff. See Davis v. Schuchat, 510 F.2d 731 (D.C. Cir. 1975), holding that a free lance writer was liable for falsely stating in an interview that an insurance executive, Leonard Davis was a convicted felon.

24 acted with fault and that the publication caused injury to them. 96 Thus, unlike the

Caribbean situation where falsity is assumed and must be rebutted by the person defending against the action, in the United States, before a case for libel can be established the burden of proof is on the person suing to show that the statement at issue was false.

Another element to be proved in the United States is that the news medium erred or acted with “fault.” In the case of a private person in almost all states the standard of fault is negligence or recklessness. Some courts have held that the standard to be applied in determining whether or not the newspaper was negligent was that of “the conduct of the reasonably careful publisher or broadcaster in the community or in similar communities under the existing circumstances.”97 In the case of public persons the standard of fault to be proved in libel cases is “actual malice,” meaning a knowledge of the falsity of defamatory language before it was printed or broadcast or reckless disregard for whether or not a statement was true.98

The final element to be proven in a libel action in the United States is that the person bringing the action was actually injured by the libelous statement. As noted earlier, in the Caribbean—because libel is actionable per se—there is no need to prove this element. Injury is assumed.99

96 New York Times v. Sullivan, 376 U.S. at 279 (1964).

97 Gobin v. Globe Pub. Co., 216 Kan. 223, 531 P. 2d 76 (1975).

98 New York Times v. Sullivan, 376 U.S. 254 (1964).

99 See supra note 48.

As in the Caribbean, the media in the United States can rely on the defenses of

truth; a qualified privilege for official statements and proceedings; and protection for comment.

In the United States and the Caribbean reporters have a right to report on

parliamentary discussions. In fact, journalists in these jurisdictions enjoy at least a qualified privilege to report on public matters in the case of a libel suit.

Thus, the United States imposes a higher standard for determining liability for libel against a public person than that used in the case of a private person since the 1964 New

York Times v. Sullivan100 decision. The Caribbean, on the other hand, uses the same

standard for public officials as it applies in cases of private citizens, the situation that

exists in the British system. The result is that the media in the United States have

substantially more protection for writing stories and discussing the activities of and

writing comments about public officials in law suits.

This dissertation will trace the legal histories of public person libel law decisions in

the United States and the Caribbean to determine precisely the differences in the

development of libel law in order to better understand why the law of the two jurisdictions is different and perhaps how the law in each jurisdiction can inform the legislators and judges of the other.

The economic, social, and political cultures in which these jurisdictions have developed go a long way in accounting for this divergence in libel standards. In this

100 376 U.S. 254 (1964).

context, the large size of the United States population,101 its long history of autonomy and

independence, its rise to become an economic and political world power since

independence are all factors that contrast with the underdevelopment in the Caribbean

nations.

1.4 Basis and Provision for Freedom of Speech in the Jurisdictions

Because both jurisdictions were formerly British colonies, any understanding of the

differences in the libel laws in the two jurisdictions must begin with an examination of

the provisions made for the protection of freedom of speech in Britain. Thus, in this

section I will examine the constitutional and legal basis of freedom of expression in

Britain, the United States, and the Caribbean.

The English law of libel that was passed down to the United States (and the

Commonwealth Caribbean) used seditious libel prosecutions as an instrument to control

the press.102 Nonetheless, both the United States and the Caribbean press have embraced

freedom of speech free from government control as a constitutionally protected concept.

The press in these two regions has developed in such a manner that they are

internationally regarded as having amongst the highest levels of freedom of expression in the world. In this regard in a 2005 Freedom House survey, all the British Caribbean territories and the United States were identified as having a free press except the one nation of Antigua and Barbuda which had a status described as “partly free”103 Although

seditious and criminal libel statutes still exist in the British Caribbean, as in Britain, these

101 In July 2004 the U.S. population was estimated at 293,655,404. (available online at http://geography.about.com/gi/dynamic/offsite.htm?site=http%3A%2F%2Ffactfinder.census.gov%2Fservle t%2FBasicFactsServlet (last visited on May 20, 2005).

102 LEVY, supra. at 9–10.

103 See chapter 5, 5.5 for discussion.

laws are rarely invoked.104 The concept of libel in all these territories has evolved as less

of a tool to protect the government through the use of seditious and criminal libel laws

and increasingly as a tool intended to protect the reputations of individual citizens

through civil court suits.

Although journalists in the United States and the British Caribbean have a privilege

to report on parliament, it is only in the United States that the court has gone so far as to

recognize a further special privilege for reports on public persons in libel cases in the

form of the New York Times actual malice rule or constitutional privilege, a privilege derived from the concept of freedom of speech and of the press in the U.S. Constitution.

In the British system there is no single written constitution.105 The British

Constitution emanates from a variety of sources. These include legislation;106 case law or

law deduced from judicial decisions;107 customs of parliament108 and conventions.109

Under the English legal system no distinction is made between statutory law and the system of legal principles that constitute the British constitutional law.110 Both the

104 Supra note 71.

105 A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 99 (1960)(1885).

106 W. IVOR JENNINGS, THE LAW AND THE CONSTITUTION 65 (University of London Press Ltd., London, 1948)(1933). Examples would be the 1215 Magna Carta and the Act of Settlement of 1701 which established Parliament as sovereign in England.

107 Id. British Constitutional law scholar W. Ivor Jennings notes that the legislation and case law do not differ in form from other statutes and case law precedent in England. Thus, it is said, that these constitutional provisions form “an ordinary part of the law.” Id.

108 Id. The procedures and customs inside Parliament are determined, respectively, by the House of Lords and the House of Commons themselves. Similarly, the qualifications for membership in the House of Commons are determined by the House itself. Id. at 66.

109 Id. Constitutional conventions are procedures “established by practice” that grow into “obligatory rules.” Id. at 71.

110 DICEY, supra at 89.

ordinary law of the land and the constitutional law, constitutional scholar Albert Venn

Dicey wrote, are equally subject to change at Parliament’s will and in the same manner.111 This is consistent with the position in the English system of government that

Parliament is sovereign so no Parliament has the power to bind its successors.112

Because the Constitution is not binding, there has been no push to reduce it into a single written document.113 It follows that a statute passed by Parliament cannot be void simply

because it is inconsistent with the Constitution.114

Writing in his study on British constitutional law last updated in 1908, Dicey said

that the terms “freedom of the discussion” or “liberty of the press” were rare in both

statutory and common law in England.115 Thus, he notes, a treatise on English law of

libel states:

Our present law permits any one to say, write, and publish what he pleases; but if he make a bad use of this liberty he may be punished. If he unjustly attack an individual, the person defamed may sue for damages; if, on the other hand, the words be written or printed, or if treason or immorality be thereby inculcated, the offender can be tried for the misdemeanour either by information or indictment.116

Thus, Dicey commented, that “freedom of discussion is … in England little else than the right to write or say anything which a jury, consisting of twelve shopkeepers, think it expedient should be said or written.”117 Ultimately, freedom of speech and the

111 Id. at 88.

112 Id. at 90.

113 Id.

114 Id. at 91.

115 Id. at 239.

116 rd Id. at 240, quoting ODGERS, LIBEL AND SLANDER, INTRODUCTION (3 ed., 1896).

117 Id. at 246.

“latitude conceded to the expression of opinion,” Dicey wrote, had in British history been

subject to change “according to the condition of popular sentiment.”118 In their 2001

book on Human Rights, media law scholars Andrew Nicol, Gavin Millar and Andrew

Sharland suggest that, because there was no constitutional or statutory protection for

freedom of speech in Britain, the right “has largely been residual.”119

Unlike Britain, both the United States and the English-speaking Caribbean have

written constitutions that specifically protect freedom of speech. Thus, in 1791, the First

Amendment to the United States Constitution was ratified providing for freedom of

speech. The First Amendment provided:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”120

Just as the First Amendment to the United States Constitution was written in absolute terms, so was the constitutional protection for speech in the Caribbean. Freedom

of speech is specifically protected under Jamaica’s Constitution in the following

words:121

“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 information without interference.”122

118 Id.

119 ANDREW NICOL, Q.C., GAVIN MILLAR Q.C. AND ANDREW SHARLAND, MEDIA LAW AND HUMAN RIGHTS 6 (2001).

120 U.S. CONST. AMEND. 1.

121 JAM. CONST. § 22 (1962).

122 Id. s. 22.

The constitutions of most of the other English-speaking Caribbean countries also

have similarly worded provisions.123 Although few Caribbean constitutions provide explicitly for freedom of the press,124 the courts have interpreted this right as being

included in the constitutional right to freedom of speech.125

The right to freedom of speech is limited in Jamaica by subsection (2)(a)ii of the

Constitution which provides:

Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision … which is reasonably required … for the purpose of protecting the reputations, rights and freedoms of other persons, … 126

123 Id. See for e.g. BARB. CONST. § 11(d) which provides

every person in Barbados is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, color, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, . . . freedom of conscience, of expression and of assembly and association . . . Id.

124 See for e.g. TRIN. & TOBAGO CONST. § 4(j) (amend. 2000) which provides

It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist without discrimination by reason of race, origin, color, religion or sex, . . . freedom of the press. Id.

See also ANT. & BARB. CONST. § 12(2) (amend. 1981) which provides that freedom of expression includes

the freedom to hold opinions without interference, . . . to receive information and ideas without interference, . . . disseminate information and ideas without interference (whether the dissemination be to the public generally or to any person or class of persons) and . . . from interference with . . . correspondence or other means of communication.” Id. § 12(3) includes in its definition of communication “oral or written or by codes, signals, signs or symbols and includes recordings, broadcasts (whether on radio or television), printed publications, photographs (whether still or moving), drawings, carvings and sculptures or any other means of artistic expression. Id.

125See Attorney General of Antigua v. Antigua Times [1976] A.C. 16, where the Privy Council, while determining that an Antiguan statute requiring newspaper publishers to acquire a license at the cost of $600 per annum was unconstitutional, nonetheless allowed the license fee since it fell within another section of the Constitution which allowed taxes to raise money in the interest of “defence, [sic] public safety, public order, public morality or public health and the tax was reasonably required to protect the reputations, rights and freedoms of other persons” under s. 10(2)(a)(ii) of the Antiguan Constitution. See also Re Clarke, 17 W.I.R. 49 and Francis v. Chief of Police, [1973] A.C. 761.

126 JAM. CONST. § 22. See also the Barbados Constitution which provides at part III “Whereas every person in Barbados is entitled to the fundamental rights and freedoms of the individual, that is to say, the right,

Thus, in the Caribbean, the constitutional right to freedom of speech is bounded by

a constitutional interest in protecting reputations.127 In this manner, the constitutional

provision of freedom of speech in the Caribbean differs from that in the federal United

States Constitution, which does not specifically protect against injury to reputation.128

In the case of the United States, there is less of an inclination to protect reputation.

In the United States the law of libel was constitutionalized in 1964 when the United

States Supreme Court held in New York Times v. Sullivan that libel could claim “no talismanic immunity from constitutional limitations” but fell within the First

Amendment.129

The constitutional protection outlined by Justice William J. Brennan in New York

Times v. Sullivan was also significant because of its recognition of a new national

standard for what public officials had to prove in order to recover damages in libel cases.

Now, a public official must demonstrate that the libelous statement was made with actual

malice requiring a finding that the newspaper knew the statement was false or showed

reckless disregard for the truth.130 The standard was imposed in an effort to avoid

dampening the vigor and variety of public debate.131

whatever his race, place of origin, political opinions, color, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest,

127 JAM. CONST. § 22(2)(a)ii. Jamaican constitutional scholar Lloyd Barnett notes that the exception to freedom of speech protection in the case of defamation is an important principle in Jamaican law (See LLOYD G. BARNETT, THE CONSTITUTIONAL LAW OF JAMAICA 408 (1977)).

128 The U.S. CONST. Amend. 1 provides

Congress shall make no law … abridging the freedom of speech, or of the press… Id.

129 New York Times v. Sullivan, 376 U.S. 254, 269 (1964).

130 Id. at 279–280.

131 Id. at 279.

In the case of Great Britain, the House of Lords (the highest Court for England

and Wales) specifically rejected the American position. In the 1999 case Reynolds v.

Times Newspapers Ltd.,132 the House of Lords unanimously rejected the newspaper’s

argument for a broad privilege protecting “information, opinion and arguments concerning government and political matters that affect the people of the United

Kingdom.”133

In 2003, as discussed earlier, the Privy Council (the highest court of appeal for

Jamaican cases) upheld a J $35 million judgment in favor of Anthony Abrahams (a

former government minister) against the Gleaner Co., Jamaica’s oldest newspaper. The

Gleaner was unable to rely on the defense of qualified privilege for a report that stated

that a former minister of government was being investigated for kickbacks in the U.S.A.

because the Privy Council held there was no privilege for reports on ongoing investigations. In this case the Privy Council did not look at whether the American standard applied.134 The Jamaican courts’ judgments in the Abrahams case, while noting

the guarantee for freedom of speech in the Jamaican Constitution, said that the court was

specifically bound by the constitutional requirement to protect reputation. Since the 2003

decision, Dudley Stokes, a one-time Gleaner editor named in the suit, has asked the

132 [1999] 3 WLR 1010 (HL). The case, involved a report made by an English paper about the former Irish Prime Minister Albert Reynolds. The report indicated that he deliberately and dishonestly misled the Dáil and his coalition cabinet colleagues by suppressing vital information. Id. The House of Lords rejected the newspaper’s argued defense of a “generic” privilege protecting speech related to political matters.

133 Id.

134 The Gleaner Co. & Dudley Stokes v. Eric Anthony Abrahams, Privy Council Appeal No. 6 of 2001. The recent libel decision in Jamaica has led to much controversy as Gleaner boss Oliver Clarke is strongly in favor of changing the Caribbean law of libel to embrace actual malice in the case of the public official. See Reform media laws, THE DAILY GLEANER, Wednesday, June 26, 2002.

International Court of Human Rights to review the Privy Council’s damage award and

the court should do that within a few years.

1.5 Significance of Membership in an International Human Rights Organization

Barbados, Dominica, Grenada, Jamaica, and Trinidad and Tobago (the latter two are one state) are all signatories of the American Convention of Human Rights. The

American Convention is a treaty adopted in 1969 by delegates of the Organization of

American States (O.A.S.).135 The American Convention protects 25 human rights for member-states. Amongst these, the right to freedom of expression and thought is protected at article 13 in the following words:

1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers either orally, in writing in print in the form of art or through any other medium of one’s choice.

2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:

(a) Respect for the rights or reputations of others; or

(b) The protection of national security, public order, or public health or morals;

3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.136

135 INTER-AMERICAN COURT OF HUMAN RIGHTS, http://www.corteidh.or.cr/general_ing/history.html (last visited June 22, 2005). To date, 25 countries have either ratified or adopted the Convention. These are Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, the Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Trinidad & Tobago, Uruguay and Venezuela. (American Convention on Human Rights ‘Pact of San Jose, Costa Rica,” “Signatures and Current Status of Ratifications,” http://www.cidh.org/Basicos/basic4.htm (last visited Apr. 17, 2006)).

136 AMERICAN CONVENTION ON HUMAN RIGHTS, http://www.itcilo.it/english/actrav/telearn/global/ilo/law/oashr.htm (last visited Oct. 29, 2002).

Two bodies were created to promote the observance and protection of human rights. The first was the Inter-American Commission on Human Rights (I-ACHR)137

which promotes human rights by investigating petitions alleging human rights

violations.138 The I-ACHR submits cases to the second body, the Inter-American Court of

Human Rights, and, sometimes, appears as a party in litigation.139

Since the Abrahams decision, Dudley Stokes, a one-time editor-in-chief at the

Gleaner Co. who was a party to the suit, applied in January 2004 for the case to be

reviewed by the Inter-American System of Human Rights.140 Stokes’ attorneys in their

application, in addition to arguing that the US$500,000 award was excessive, also argued

that the Jamaican courts and the Privy Council should have applied the actual malice

standard in deciding the Abrahams case.141 The Inter-American Court of Human Rights has agreed to review the decision.142

This is particularly important in light of a 2004 Costa Rican decision of the

Inter-American Court where the court indicated its support for the application of United

States’ actual malice standard in public person libel actions in overturning a criminal

137 INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, http://www.cidh.oas.org/what.htm. (last visited Aug. 22, 2005). The Inter-American Commission was created in 1959 and held its first session in 1960. Between 1960 and 1997, the Commission has held 97 sessions.

138 Id.

139 Id.

140 Claude Robinson, The McLibel Two and the Abrahams case, THE JAMAICA OBSERVER, Feb. 20, 2005 at p. 25.

141 Report No. 65/04 Petition 28/04 Admissibility Dudley Stokes, Jamaica, October 14, 2004 (Inter-American Commission on Human Rights), http://cidh.oas.org/annualrep/2004eng/Jamaica.28.04eng.htm (last visited Nov. 3, 2005).

142 Id.

conviction by the Costa Rican courts for libel against a diplomat.143 The Inter-American

Court’s decision points to a more news-friendly approach to libel actions involving public persons than that applied in British Caribbean court decisions. Thus, on reviewing the

Abrahams decision the Inter-American Court could significantly reduce the award made to Abrahams. Although to date the Inter-American Court has not heard the Dudley Stokes appeal, this paper will trace that court’s 2004 Herrera and La Nación v. Costa Rica

decision as a means of demonstrating the court’s stance on how libels against public

persons should be treated.

The decision of the Inter-American Court to hear the matter could also have

significant constitutional implications involving the separation of government powers for

Jamaica and other Caribbean signatories to the Inter-American Convention on Human

Rights. The doctrine of separation of powers protects the independence of each arm of

government—the executive, the legislature, and the judiciary—from the interference of

the others so that the three can co-exist in a system providing checks and balances against

excesses by any of the other arms. Under the Jamaican Constitution the Privy Council is

the final court of appeal for the country and the decisions of the Privy Council are

binding in the island and constitute the law of the land. By signing the Inter-American

Convention of Human Rights, the executive branch of the Jamaican government has

made the country a member nation of the Inter-American System and subject to the

Inter-American Court of Human Rights’ interpretation of the rights protected under the

treaty. Thus, the executive has provided the Inter-American Court the authority to act as a

143 Herrera-Ulloa v. Costa Rica, 2004, Inter-Am. Ct. H.R. (ser. C) No. 107 (July 2, 2004). The European Court of Human Rights also found a $1.5 million award against Count Nikolai Tolstoy for libel against Lord Aldington, a historian, to be a violation of freedom of expression and reduced the award.

tribunal that can review decisions of the Privy Council. In this manner, the executive has

effectively undermined the constitutional position of the judiciary and in the process has

challenged the fundamental concept of the separation of powers.

The decision of the Inter-American Court could also have implications for the

standard of fault used in libel cases in the Caribbean. If the United States’ New York

Times actual malice standard is imposed in Jamaica, it could also be imposed on the other

British Caribbean nation states that are members of the Inter-American organization.

1.6 Methodology

I used legal research predominantly as well as secondary historical scholarship and

primary historical resources such as newspaper clippings in doing my research. I found

statutes and U.S. case law predominantly through LexisNexis. For my search strings I

used “New York Times v. Sullivan” and the names of other important public figure case

names to find the cases that followed the New York Times decision. I used the search

string “public figures” and “libel,” “public person” and “libel,” “public officials” and

“libel.” I then went through the results in each case and eliminated the duplication.

Although some English and Caribbean cases are available on LexisNexis, these do

not include page numbers and so do not correspond with the official case reports. Thus, I

relied on LexisNexis for these cases only where I could not find the actual case reports.

In researching Caribbean cases, literature and statutes on defamation, I spent seven

working days in Barbados at the University of the West Indies’ Faculty of Law’s Library

in Cave Hill, Barbados. The Faculty of Law’s library in Cave Hill is the most extensive

Caribbean legal reference.144 In relation to the Jamaican law and other material, the

144 See UNIVERSITY OF THE WEST INDIES, http://www.uwi.edu/about.html (last visited August 16, 2005). The U.W.I., which is funded by 15 member countries in the English-speaking Caribbean, consists of three

Jamaican law firm Watson & Watson has assisted me from time to time in accessing the material through the Library of the Supreme Court of Judicature of Jamaica or, where necessary, the Norman Manley Law School’s Library in Kingston, Jamaica.

In researching Caribbean cases, I first looked in the consolidated index of the West

Indian Reports for volumes 1 to 60. There was no consolidated index for volumes 61 to

64 so I looked in the index of each of these case books. The West Indian Reports (W.I.R.) contains several written reports of cases in the British Caribbean between the 1950s and

2004. I looked specifically under the search terms “freedom of expression,” “libel,” and

“slander” in the Consolidated Index covering the reports 1–30. Other search terms such as “defamation” and “sedition,” which I attempted to search for, referred me to back to the search terms “freedom of expression,” “libel,” and “slander.” In the case of reports

31–64, the relevant heading was “freedom of expression,” found under the broader headings of “constitutional law” and “defamation.”

Because the West Indian Reports are not exhaustive of all Caribbean cases in that time period, I also looked at the law reports of individual states where they were available. In the case of the individual country law reports, there were no consolidated indices in the library. I looked at the individual case indices for each volume in the

Barbados Law Reports (B.L.R.), the British Guiana Law Reports (B.G.L.R.), the Guyana

Law Reports (G.L.R.), the Jamaica Law Reports (J.L.R.), and the Trinidad and Tobago

Law Reports (T&T.L.R.). In addition to searching under the above-mentioned heads, I found a number of relevant cases under the head “Damages.”

campuses – the Mona Campus in Jamaica, the St. Augustine Campus in Trinidad and the Cave Hill Campus in Barbados. To maximize the use of funds, the contributing territories have pooled their resources to concentrate specific areas of study in certain territories. The Cave Hill Campus hosts the Faculty of Law where the member territories have invested in building the collection to be the most extensive in the region.

In the case of all the reports, the indices contained a short description of the cases.

In each situation I was looking for the words “public person,” “public official,” “police

officer,” “premier,” “prime minister,” “minister,” “qualified privilege,” “fair comment,”

or “justification” to determine whether the case was relevant to the study. In some cases it

was evident that the case would be relevant because one or two of the parties were

well-known Caribbean politicians such as Eric Gairy of Grenada; Errol Barrow and Tom

Adams of Barbados; Desmond Hoyte and Forbes Burnham of Guyana; Trevor Munroe,

Hugh Small, Edward Seaga and Anthony Abrahams of Jamaica. This is because these are all public officials and references to actions brought by them, particularly where the

action is against a medium, would invariably be references to a libel case involving a

public person.

After exhausting this technique, I checked the consolidated index in the Cave Hill

Law Library’s catalogue for the unreported145 Caribbean cases and came up with several

other cases. These cases were all found under the heading “Libel and Slander” under the

heading “Damages” under the general head “Torts.” To verify whether the cases were

applicable to the study I had to check each case individually. In the situations where I found both the unreported and the official version of the case, I opted to use the reported version. By this method, some 67 cases were found.

145 An unreported case is one which has not been reduced to an official report and published. In the Caribbean usually unpublished reports are only accessible from the libraries or resource bases of the courts in which the decisions are made. However, unreported cases are still binding on the jurisdictions in which they occur.

The most recent Privy Council (final court of appeal)146 decisions for Caribbean

cases also are available on the Privy Council’s Web site and I have used this resource

whenever I cannot find the official report.147

In identifying appropriate cases to use in the case of the Caribbean I also relied on

the textbook by Gilbert Kodilinye, a tort professor at the Faculty of Law at the University

of the West Indies, titled Commonwealth Caribbean Tort Law.148 Kodilinye’s book is a

very comprehensive book on Caribbean tort law and includes a chapter on the law of defamation. I also looked at the undated manuscript written by University of the West

Indies Faculty of Law tort professor Norma Forde titled The Law of Defamation.149 I also

looked at the 1997 thesis of Sheryl Thompson, prepared in furtherance of her bachelor

degree in law, titled The Protection of Privacy II.150 Though the title of the thesis

indicates that its subject is privacy, most of it is focused on libel law and it even discusses

the Court of Appeal decision in the Abrahams case. The case had not been before the

Privy Council at the time of writing so there is no discussion of the Privy Council decision.

I have found English cases in case books available from either the aforementioned

Supreme Court of Jamaica or the Norman Manley Law School, both in Kingston,

Jamaica when they are not available at the University of Florida’s Law School. The

146 See chapter 6, 6.2 for a detailed discussion on the structure of the court system in the British Caribbean.

147 The Privy Council Web site includes judgments between 1999–2006.

148 GILBERT KODILINYE, COMMONWEALTH CARIBBEAN TORT LAW, (Cavendish Publishing Ltd., 2000).

149 NORMA FORDE, THE LAW OF DEFAMATION, (Cave Hill, Barbados: University of the West Indies Faculty of Law, undated. Available at the University of the West Indies Faculty of Law Library, Cave Hill, Barbados. Call No. KN38.2.F67).

150 SHERYL THOMPSON, THE PROTECTION OF PRIVACY II.

English court decisions, as well as some of the Privy Council decisions, can also be found

in All England Reports (All E.R.), Appeal Cases (A.C.), Queen’s and King’s Bench

Division (Q.B.D. or K.B.D.), Weekly Law Reports (W.L.R.), Times Law Reports

(T.L.R.), and several other case books.

In identifying the cases to be used, in relation to the United States, I included the major U.S. Supreme Court cases that address the public person standard in libel actions.

In the case of the Caribbean, I included in my discussion all the cases that deal specifically with public person actions for libel and address the defenses of privilege and fair comment in the Privy Council (the highest court of appeal). However, since all the

Privy Council Caribbean decisions on civil libel actions take place in the twenty-first

century, I also included the Court of Appeal decisions. The Court of Appeal in each

country is the second highest court in the Caribbean legal system. Since there is no Privy

Council discussion on the state of libel law in the era before 2000, the substantive law

before that was that determined by the Court of Appeal. The four civil libel law cases in

the Privy Council between 2002 and 2005, however, are not inconsistent with the

development of the law traced between the late 1950s and the 1990s in the Caribbean.

In the case of the United Kingdom, which has become a part of this study because

of the common link of that country with the Caribbean and the United States, I have, for

the most part used the 1999 House of Lords decision Reynolds v. Times Newspapers,151 along with the 2003 Privy Council decision of Abrahams v. Gleaner,152 both of which

provide comprehensive discussions on the development of English law, to determine the

151 [1999] 4 All E.R. 609.

152 (2003) 63 W.I.R. 197.

major cases. Additionally, I have referred to the English treatise on libel law, Gatley’s on

Libel and Slander to find cases that had a major influence in libel law in the United

Kingdom.

In relation to criminal libel cases, as identified by Caribbean legal scholar Simeon

McIntosh153 and found in my own research at Cave Hill, the two salient ones are a Privy

Council decision in 1990154 and in 2004.155 Both of these cases have been included in my

dissertation. I have also included the U.S. Supreme Court case that declared the criminal

prosecution of libel actions to be unconstitutional.156

In finding libel decisions of the Inter-American Court, I went online and, using

Google, I used the search strings “Inter-American Court of Human Rights,” “&” and

“libel” to find the Herrera-Ulloa (La Nación) case where the Inter-American Court held that a $200,000-libel award granted to a Costa Rican diplomat was excessive and inconsistent with the American Convention. I also visited the Inter-American Court Web site where the recent decisions of the court are posted. One challenge is that the 108-page

Costa Rican libel decision in the Inter-American Court is available only in Spanish. To ensure that the translation is accurate, however, I arranged for a professional translator to translate the case for me.

In categorizing the cases, I have devoted two chapters to the U.K. cases. The next chapter, chapter 2, deals specifically with the salient cases defining the laws of privilege

153 MCINTOSH, SIMEON C.R., FUNDAMENTAL RIGHTS AND DEMOCRATIC GOVERNANCE (2005).

154 Hector v. Attorney General of Antigua and Barbuda and others (1990) 37 W.I.R. 216.

155 George Worme & Grenada Today Ltd. v. Commissioner of Police of Grenada, Judicial Committee of the Privy Council [2004] U.K.P.C. 8 in (2003) 63 W.I.R. 78.

156 Ashton v. Kentucky, 384 U.S. 195 (1966).

and fair comment leading up to the 1999 decision in Reynolds. The two major

components addressed in that chapter are a discussion of the defenses open to public

persons and how damages are assessed. Most of the early United Kingdom cases do not

address the issue of assessing damage awards since initially the award was held to be the

purview of the jury and an area in which the Court of Appeal should interfere only in

situations where the award was greater than a reasonable jury would have made in the

circumstances. During the 1970s the English courts began to pay greater attention to

principles of law being discussed in the European Court of Human Rights, where the

court advocated fewer awards for damages in striking the balance between the right to

freedom of speech and the right to reputation. The process intensified in the wake of the

passage of the1990 the Courts Legal Services Act, which gave the Court of Appeal the

jurisdiction to substitute for damage awards that it found too excessive.157 Thus, the categorization of the cases in the U.K. fell, correctly, into a system of historical organization – the first section deals with the circumstances in which a defendant can rely on the defense of qualified privilege and, the second, with the principles identified by the

Court of Appeal to be used in assessing damage awards in a libel action.

The second chapter that addresses United Kingdom case law on libel is devoted to the 1999 decision in the highest U.K. court, Reynolds v. Times Newspapers.158 The

Reynolds opinion analyzes decisions in both the Court of Appeal and House of Lords and gives a modern legal definition on both the manner in which damages are assessed in libel actions and the role of the public person.

157 Courts and Legal Services Act § 8 [1990 c. 41], http://www.opsi.gov.uk/ACTS/acts1990/Ukpga_19900041_en_1.htm (last visited June 1, 2006).

158 [1999] 4 All E.R. 609.

The second chapter that addresses United Kingdom case law on libel is devoted to the 1999 decision in the highest U.K. Court, Reynolds. The Reynolds case analyzes decisions in both the Court of Appeal and House of Lords and gives a definitional modern legal position on both the assessment of damages and the role of the public person.

In the case of the Caribbean, I have also devoted two chapters to cases on

Caribbean civil law. It was impossible to separate cases that dealt with the assessment of damages from those that explained with the circumstances in which a statement would be held to be libelous. The definition of the defenses and the manner in which damages are computed was a recurring issue in several of the cases. Thus, as in the case of Britain, the first chapter that discusses the Caribbean, chapter 6, is chronological.

As in the case of Britain, the 2003 decision, Abrahams v. Gleaner which brings together the issues of the public person standard and assessment of damages is left for the second chapter on Caribbean libel law, chapter 7. In the process, the chronology is broken in the discussion of the Caribbean cases by the use of a 2005 Privy Council decision in chapter 6.

In the case of the United States, I devoted one chapter, chapter 4, to the discussion of civil libel laws. I decided that it was most effective to break the cases into two sections. The first section deals with cases related to the public figure and official standard. The second section deals with cases related to the assessment of damages. In this regard I found the 1985 Supreme Court decision Dun & Bradstreet v. Greenmoss

Builders159 from a reference in a book on communication law in the United States160 and

159 472 U.S. 749 (1985).

shepardized the case to find the relevant Supreme Court decisions on assessing damages

in libel cases in the United States.

Finally, I devoted one chapter to discussing the state of criminal and seditious libel

in the Caribbean and included the discussion of criminal and seditious libel law in the

United States in that section. The main focus of chapter 8 is the discussion of a 2004

decision where the Privy Council found that criminal libel laws were constitutional and

not inconsistent with the needs of a democratic society.161

The method I have used to analyze these cases is legal. This requires a reading of

each judgment in each case and selecting the essential issues that relate to libel law and

the public person and the manner in which damages are assessed.

My dissertation also includes historical research on the British Caribbean. I accessed historical information through history books and old newspaper stories in the

Gleaner, Gall’s Newspaper, The Blackman in the case of Jamaica. I have also relied on articles and books by Caribbean historians including Clinton V. Black,162 Sidney

Mintz,163 Gad Heuman,164 Richard Hart165 and O. Nigel Bolland.166

160 KENT R. MIDDLETON, WILLIAM E. LEE & BILL F. CHAMBERLIN, THE LAW OF PUBLIC COMMUNICATION (6th ed., 2005).

161 George Worme & Grenada Today Ltd. v. Commissioner of Police of Grenada, [2004] UKPC 8 in (2003) 63 WIR 78.

162 CLINTON V. BLACK, THE STORY OF JAMAICA FROM PREHISTORY TO THE PRESENT (Collins Clear-Type Press, 1965) (1958).

163 Sidney W. Mintz, “From Plantations to Peasantries in the Caribbean,” in CARIBBEAN CONTOURS 127 (S. Mintz & S. Price, eds., 1985).

164 GAD HEUMAN, THE KILLING TIME, THE MORANT BAY REBELLION IN JAMAICA, (1994).

165 RICHARD HART, FROM OCCUPATION TO INDEPENDENCE: A SHORT HISTORY OF THE PEOPLES OF THE ENGLISH-SPEAKING CARIBBEAN REGION, (1998).

In looking at theories on freedom of speech in England, I focused on A.V. Dicey’s theory of the English law,167 Frederick Siebert’s discussion on freedom of the press in

England,168 and Leonard Levy’s discussion on freedom of the press theories in

England.169

In the case of the United States, I looked at several legal scholars who have

identified free speech theories. I examined Leonard Levy’s discussion on the

development of the understanding of freedom of speech and libel.170 I also explored

Thomas Emerson’s view of the press as a safety valve to prevent anti-social activity171 and his view of speech as a catharsis for feelings to protect society against long-term aggression by persons not allowed to speak. I also looked at the philosophy of Alexander

Meiklejohn, who posited that freedom of speech is necessary to allow citizens to make

166 O. NIGEL BOLLAND, ON THE MARCH: LABOR REBELLIONS IN THE BRITISH CARIBBEAN, 1934–39, (1995). See also O. NIGEL BOLLAND, THE POLITICS OF LABOR IN THE BRITISH CARIBBEAN: THE SOCIAL ORIGINS OF AUTHORITARIANISM AND DEMOCRACY IN THE LABOR MOVEMENT 449 (2001).

167 See A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION, http://www.constitution.org/cmt/avd/law_con.htm (last visited Jul. 7, 2004).

168 FREDRICK SEATON SIEBERT, FREEDOM OF THE PRESS IN ENGLAND 1476–1776: THE RISE AND DECLINE OF GOVERNMENT CONTROL, (University of Illinois Press, Urbana, 1965). Siebert, who was a journalism professor at the University of Illinois at Urbana-Champagne and a J.D., has written extensively on the freedom of speech in England during colonial times.

169 LEONARD W. LEVY, EMERGENCE OF A FREE PRESS, (Oxford University Press, 1985). Levy was a professor of American constitutional history at Brandeis University, and has written several books on the subject of the making of the constitution.

170 Id.

171 See EMERSON, THOMAS I., THE SYSTEM OF FREEDOM OF EXPRESSION (1970). Emerson was a Constitutional Scholar and Professor at Yale Law School. He was also a Co-Founder of the Emergency Civil Liberties Committee (E.C.L.C. founded in 1951) and a member of the A.C.L.U. Emerson defended the rights of Communists and those on the Attorney Generals list of subversive organizations.

informed decisions in the process of governance.172 I will look at Vince Blasi’s

philosophy of the role of the media as the Fourth Estate and a watchdog.173

In the case of the Caribbean I looked at Simeon McIntosh’s concept of free speech

as a basic requirement of democracy or governance of a common will.174 McIntosh,

however suggests that free speech should be limited by the need to protect reputations in the context of a community where individuals gain their sense of self from the opinions of others in the society.175 McIntosh is a jurisprudence professor and the past dean of the

Faculty of Law of the University of the West Indies. His book titled Fundamental Rights

and Democratic Governance, includes a chapter on Freedom of speech, 34 pages of

which focuses on libel law and freedom of speech.176

Also, in defining the distinction between the legal development in the Caribbean

and the U.S., I referred to K.C. Wheare’s discussion on the context in which constitutions

were formed in the newly-independent British Commonwealth nations.177 I also looked at

Lloyd Barnett’s discussion on the making of the Jamaican constitution, which applies some of Wheare’s discussion to the Jamaican process of formulating an independent

172 See ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF GOVERNMENT,(Kennikat Press, Port Washington, N.Y./London, 1948). Meiklejohn, now deceased, was a professor of philosophy and dean of Brown University.

173 See Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AMERICAN BAR FOUNDATION RESEARCH JOURNAL, 521. Blasi, the James Madison Distinguished Professor of Law Roy L. and Rosamond Woodruff Morgan Research Professor at the University of Virginia Law School and the Corliss Lamont Professor of Civil Liberties at Columbia Law School, has written extensively on legal theory.

174 SIMEON C.R. MCINTOSH, FUNDAMENTAL RIGHTS AND DEMOCRATIC GOVERNANCE 93 (2005).

175 Id. 105–106.

176 Id.

177 See K.C. WHEARE, THE CONSTITUTIONAL STRUCTURE OF THE COMMONWEALTH, (Oxford University Press, 1960) at 21. K C Wheare was a Fellow of All Souls College and Gladstone Professor of Government and Public Administration at the University of Oxford.

47 constitution.178 Finally, I looked at Raphael Codlin’s book on the foundations of

Jamaican law, which traces the root of Jamaican legal decisions back to their English heritage.179 This helped identify the effects of British legal history on the legal culture in the Caribbean. I also used Simeon McIntosh’s180 and Margaret DeMerieux’s181 discussions on fundamental rights enshrined in the Caribbean constitutions, focusing specifically on freedom of speech.

In defining the Caribbean political culture I will examine the research of the late

Carl Stone, a political analyst.182 Over the years Stone conducted many polls and surveys and headed a taskforce to examine accountability among elected Jamaican parliamentarians in 1991183 and has also written several books and articles on political power in Jamaica.184 I also looked at books written by Trevor Munroe, who is a lecturer

178 See LLOYD G. BARNETT, THE CONSTITUTIONAL LAW OF JAMAICA, (Oxford University Press for The London School of Economics and Political Science, 1977). Dr. Lloyd G. Barnett Q.C. is one of the foremost constitutional lawyers in Jamaica.

179 RAPHAEL CODLIN, HISTORICAL FOUNDATIONS OF JAMAICAN LAW (2003). Raphael Codlin, Q.C. is a Jamaican attorney-at-law. Between 1986 and 2004, Codlin has appeared several times in the United Kingdom Privy Council. See RAPHAEL CODLIN & COMPANY, http://www.raphaelcodlin.com/raphaelprofile.html (last visited May 25, 2005).

180 See SIMEON C.R. MCINTOSH, FUNDAMENTAL RIGHTS AND DEMOCRATIC GOVERNANCE (2005). See also SIMEON C.R. MCINTOSH, CARIBBEAN CONSTITUTIONAL REFORM, (2002). McIntosh is a professor at the Faculty of Law of the University of the West Indies at Cave Hill, Barbados specializing in jurisprudence.

181 See MARGARET DEMERIEUX, FUNDAMENTAL RIGHTS IN COMMONWEALTH CARIBBEAN CONSTITUTIONS, (1992). Margeret DeMerieux is a professor at the Faculty of Law of the University of the West Indies at Cave Hill, Barbados specializing in constitutional law.

182 See CARL STONE, THE STONE COLUMNS, (1994).

183 See REPORT OF THE STONE COMMITTEE APPOINTED TO ADVISE THE JAMAICAN GOVERNMENT ON PERFORMANCE, ACCOUNTABILITY AND RESPONSIBILITIES OF ELECTED PARLIAMENTARIANS (Bustamante Institute of Public and International Affairs, 1991).

184 See CARL STONE, CLASS STATE AND DEMOCRACY IN JAMAICA (1986), See also CARL STONE, POLITICS VERSUS ECONOMICS IN THE 1989 ELECTION IN JAMAICA (1989).

48 in political science at the University of the West Indies185 and has done a very effective job of tracing Jamaica’s political history in a number of books he has written.186

Additionally I refer to essays written by Fred Constant,187 Anton L. Allahar,188 and Jacky

Dahomay189 on general Caribbean political culture. I will also look on essays by Holger

Henke,190 Douglas Midgett,191 David Hinds,192 and Percy C. Hintzen193 who address

185 TREVOR MUNROE, AN INTRODUCTION TO POLITICS (Canoe Press, 2002).

186 See TREVOR MUNROE, THE POLITICS OF CONSTITUTIONAL DECOLONISATION: JAMAICA, 1944–62. (1972).

187 Fred Constant is rector at the International University Leopold Sedar Senghor in Alexandria, Egypt, and a former professor of political science at the Universite des Antilles et de la Guyane, Martinique. See Fred Constant, Is there a new Political Culture in the Caribbean? in MODERN POLITICAL CULTURE IN THE CARIBBEAN 3 (Holger Henke and Fred Reno, eds., 2003).

188 Anton L. Allahar is an economic and political sociologist and professor at the University of Western Ontario, Canada. Anton L. Allahar, Racing’ Caribbean Political Culture: Afrocentrism, Black Nationalism and Fanonism, in MODERN POLITICAL CULTURE IN THE CARIBBEAN 21 (Holger Henke and Fred Reno, eds., 2003).

189 Jacky Dahomay teaches philosophy at Lycee de Pointe-a-Pitre, Guadeloupe. Jacky Dahomay, Cultural Identity versus political identity in the French Caribbean, in MODERN POLITICAL CULTURE IN THE CARIBBEAN 90 (Holger Henke and Fred Reno, eds., 2003).

190 Holger Henke is a Rockefeller fellow at the Institute of Research on the African Diaspora in the Americas and the Caribbean (IRADAC) at City College of New York (CUNY), and a senior fellow for the Caribbean Research Center at Medgar Evers College, CUNY. His research centers on aspects of the Caribbean studies, foreign relations, international political economy, migration, race relations and political culture. Holger Henke, Freedom Ossified: Political Culture and the Public Use of History in Jamaica, in MODERN POLITICAL CULTURE IN THE CARIBBEAN 111 (Holger Henke and Fred Reno, eds., 2003).

191 Douglas Midgett is an associate professor of anthropology at the University of Iowa, and has been involved in research on the Eastern Caribbean for more than 30 years. Douglas Midgett, Icon and Myth in a Caribbean Polity: V.C. Bird and Antiguan Political Culture, in MODERN POLITICAL CULTURE IN THE CARIBBEAN 181 (Holger Henke and Fred Reno, eds., 2003).

192 David Hinds, a visiting assistant professor of political science at Claremont Graduate University in California, researches race and ethnicity, governance, party politics, political thought and pan-Africanism. David Hinds, Guyana’s Dominant Political Culture: An Overview, in MODERN POLITICAL CULTURE IN THE CARIBBEAN 351 (Holger Henke and Fred Reno, eds., 2003).

193 Percy C. Hintzen, professor and chairperson of the Department of African American Studies at the University of California at Berkeley, has written on identity of blacks and West Indians. Percy C. Hintzen, Rethinking Democracy in the Post-Nationalist State: The Case of Trinidad and Tobago, in MODERN POLITICAL CULTURE IN THE CARIBBEAN 395 (Holger Henke and Fred Reno, eds., 2003)

specifically the political cultures in Jamaica, Antigua, Guyana, and Trinidad and Tobago

(one country) respectively. I also refer to the Caribbean profile written by Carl Stone.194

Another good index of political culture will be available on Web sites of

organizations interested in promoting political freedoms. These include Web sites on

transparency and political freedom such as Freedom House.

For background on the role of the media in the United States I will look at the

various surveys conducted on the way in which the American public views the First

Amendment.195 In the case of the Caribbean media, I will look at John Lent’s book on mass communications in the Caribbean which includes a historical look at the development of the mass media in the Caribbean and freedom of expression in the British

Caribbean in the late 1980s.196 However, largely the discussion on the media will be

gleaned from court decisions.

1.7 Structure of Judicial Systems in Caribbean and United States

An understanding of the difference between the Caribbean and United States court systems of appeal will facilitate an understanding of the cases in both jurisdictions which will be discussed in chapters 4 and 6.

In the Caribbean the final court of appeal is the Privy Council (see figure 1-2

below) which has equivalent authority in the Caribbean to the federal Supreme Court in

194 Carl Stone, A Political Profile of the Caribbean, in CARIBBEAN CONTOURS 13 (Sidney W. Mintz and Sally Price, eds., John Hopkins University Press, Baltimore, 1985).

195 See for example the annual survey of Freedom Forum. See State of the First Amendment, Freedom Forum Web site available at www.freedomforum.org/publications (last visited Feb. 16, 2005).

196 JOHN A. LENT, MASS COMMUNICATIONS IN THE CARIBBEAN, (Iowa State University Press, Ames, 1990). See also JOHN LENT, THIRD WORLD MASS MEDIA AND THEIR SEARCH FOR MODERNITY: THE CASE OF COMMONWEALTH CARIBBEAN 1717–1976, (Lewisburg Bucknell University Press, London: Associated University Presses).

50 the United States (see figure 1-3 below). Both systems have courts of appeal at intermediary levels of appeal. The court of origination in most Caribbean countries is the

Supreme Court or High Court and this court has equivalent jurisdiction to the trial courts in the United States.

Privy Council

Court of Appeal

Supreme Court

Figure 1-2. The Caribbean Court System

Suprem e Court

Court of Appeal

Trial C ou rts

Figure 1-3. The United States Court System

In chapters 4 and 6 respectively the author will provide a more in-depth discussion of the court system in the United States and the Caribbean.

1.8 Key Legal Terms

Certain terms that will be used frequently in this paper will be defined under:

A plaintiff is the person or company that takes a case before the court in a civil action. In the case of libel actions, the plaintiff is the person about whom the libel was written.

The defendant is the person or company that has to defend the case brought by plaintiff in the court.

“Pleadings” are written statements filed into court and served between the parties in the action before the case is brought before a judge.197 “Pleadings are formal documents which constitute court records and which define the facts and issues of a case. Their purpose includes (1) informing an opponent of the nature of the case, (2) providing the court with particulars of the relief or remedy sought, and (3) limiting the scope of discovery.”198

A “Statement of Claim” is a written document filed in court during pleadings by the Plaintiff indicating the circumstances of the case and the relief that he is seeking.199

This document is important in bringing an action.

An “Appearance” is a written document filed by the defendant if he intends to respond to the action. Under Jamaican law an appearance must be filed within 14 days of

197 GILBERT KODILYNE, & VANESSA KODILYNE, COMMONWEALTH CARIBBEAN CIVIL PROCEDURE 61 (1999).

198 Id.

199 Id. at 65.

52 receiving the Statement of Claim.200 The Appearance effectively gives notice of the defendant’s intention to contest some or all of the allegations made in the Statement of

Claim.201

A “Defense” is a written document that should be filed by the Defendant responding to the allegations in the Statement of Claim. The Defense should at least refute some of the facts laid out in the Statement of Claim. Under Jamaican law the defense should be filed within 14 days after filing the “Appearance,” if the defendant intends to defend the case.202

A “Judgment in Default of Appearance” or a “Judgment in Default of Defense” can be applied for by the Plaintiff if the defendant fails to file either an Appearance203 or a

Defense204 respectively within the time period required by law.205 Judgment in Default of

Defense or Appearance means that, because the defendant did not file a defense or appearance respectively, the action is undefended and the plaintiff is granted judgment in his favor and in the terms in which he pleaded.206

In a “Statement of Claim,” “Defense” or other pleadings there are specific particulars of evidence that the filing party intends to rely on. This is referred to as

“particulars” or “particulars of claim.”

200 Id. at 28. Jamaican Civil Procedure Code, Ord. 19.

201 KODILYNE, CIVIL PROCEDURE, supra at 28.

202 Id. at 70.

203 Id. at 123.

204 Id. at 128.

205 Id.

206 Id.

Damages are monetary awards made to a successful plaintiff in a civil action. In the main there are three types of damages. Actual (general) damages; special damages and punitive (exemplary or aggravated) damages.207

Special damages are money damages awarded “on proof of out of pocket loss” that compensate the plaintiff “for the loss of reputation.”208 In the case of the Caribbean, as in the case of the United States, plaintiffs must demonstrate that they “incurred … pecuniary loss” before they can recover special damages.209

Actual damages are money awards made after a plaintiff provides evidence of harm to his reputation including “evidence of emotional distress and monetary loss.”210 In the case of the Caribbean because libel is actionable per se it is presumed that the plaintiff has suffered some damages and the court will award “general damages.”211

In the Caribbean aggravated damages can be awarded where the court finds that the defendant acted in malice demonstrated by “persistence in an ill founded plea of justification, failure to make an apology, insolent or arrogant demeanor, or other unacceptable conduct.”212

Punitive damages are “damages awarded to punish the defendant rather than to compensate the plaintiff for loss of money or reputation.”213 In the Caribbean exemplary

207 KENT R. MIDDLETON, WILLIAM E. LEE AND BILL F. CHAMBERLIN, THE LAW OF PUBLIC th COMMUNICATION 587 (6 ed., 2005). See GILBERT KODILYNE, TORTS, supra.

208 Id. At 591.

209 KODILYNE, TORTS, supra at 375.

210 MIDDLETON, supra at 585.

211 KODILYNE, TORTS, supra at 375.

212 Id.

213 MIDDLETON, supra at 590.

54 or punitive damages can be ordered where the defendant “contemplated the profit he would make by the publication would exceed the damages he might have to pay.” 214

A tort occurs when someone breaches a legal duty that he owes to all other persons.

A civil action can be brought by the person to whom the duty is owed. The aim of a tort action is to compensate the person harmed and compensation is usually in the form of monetary damages.215 Defamation is considered a tort.

“Precedent” is established rules of law determined by previous court decisions. “ A precedent for an individual case is the authority relied on for the disposition of the case.

The precedent usually comes from a case involving similar facts and raising similar issues as the case at hand.”216

The doctrine of stare decisis is the foundation of English common law. Under the doctrine “judges should rely on precedent when deciding cases with similar factual situations.”217

The “probative value” of evidence provided in a case refers to the question of whether the evidence is “sufficiently useful to prove something important in a trial.”218

The probative value of evidence should be “weighed by the trial judge against

214 KODILYNE, TORTS, supra at 376. Rookes v. Barnard [1964] A.C. 1129, 1226.

215 Id. at 1.

216 MIDDLETON, supra at 589.

217 Id. at 591.

218 LAW.COM DICTIONARY, http://dictionary.law.com/default2.Asp?selected=1623&bold=%7C%7C%7C%7C (last visited June 20, 2006).

55 prejudicing the minds of the jurors toward the opposing party” before the jury is allowed to take it into account.219

“An affidavit is a sworn (written or printed) statement” by a person giving evidence in a trial. An affidavit is admissible as evidence in court, unlike pleadings.220

“Discovery is the procedure whereby one party to an action must disclose to the other party the existence of all documents which are or have been in his possession and which are material to the issues of the action.” 221 Discovery is aimed at saving costs by identifying and eliminating issues that are not in dispute or can be resolved before the action gets to court and allowing for the fair disposal of the action.

“Interrogatories are questions addressed to the opposing party in the action aimed at discovery of facts.”222

At several points in this dissertation there will be references to lawyers who are

Queen’s Counsel (Q.C.). In the legal system in the Caribbean and the United Kingdom there is a hierarchical system determined by the year, date and time when one is called to the bar. The most senior lawyers are Queen’s Counsel, specially so designated for years of distinction at the bar. Queen’s Counsel are generally appointed after being selected by a committee of their colleagues. After Queen’s Counsel, the legal profession is designated on the basis of the amount of years an attorney has practiced at the bar. There is also an understanding within the Caribbean legal system that junior counsel should pay

219 Id.

220 KODILYNE, CIVIL PROCEDURE, supra at.85.

221 Id. at 197.

222 Id. at 215.

56 deference to senior counsel when dealing with matters before any court and mention their matters only after all the lawyers that are senior to them have been heard.

1.9 Literature Review

Several comparative books have been written relying on United States and/or

British libel law cases as the base. However, none have compared the United States with the Caribbean or the Inter-American Court of Human Rights.

A 2006 book edited by Charles J. Glasser, International Libel and Privacy

Handbook, explores libel in several continents and parts of the world including the

Americas, Asia and Europe.223 The book explores libel laws in the U.S., England and

Wales in addition to several other countries. The chapter on the U.S. identifies the actual malice fault standard in libel cases over a two-page discussion.224 The chapter that addresses libel in England and Wales also recognizes that these countries do not have the

U.S. constitutional privilege for public person libels.225 However, the chapter notes that the countries have the defense of qualified privilege and lists the “nonexhaustive” criteria set out in the 1999 decision Reynolds v. Times Newspapers Ltd. for providing evidence that the occasion is covered by qualified privilege. These criteria range from the seriousness of the allegation, to the nature of the source and informants, and steps taken

223 INTERNATIONAL LIBEL & PRIVACY HANDBOOK: A GLOBAL REFERENCE FOR JOURNALISTS, PUBLISHERS, WEBMASTERS, AND LAWYERS (Charles J. Glasser Jr., ed., 2006).

224 Thomas H. Golden and Stephen B. Vogel, United States, INTERNATIONAL LIBEL & PRIVACY HANDBOOK: A GLOBAL REFERENCE FOR JOURNALISTS, PUBLISHERS, WEBMASTERS, AND LAWYERS 48, 51– 52 (Charles J. Glasser Jr., ed., 2006).

225 Mark Stephens, England and Wales, in INTERNATIONAL LIBEL & PRIVACY HANDBOOK: A GLOBAL REFERENCE FOR JOURNALISTS, PUBLISHERS, WEBMASTERS, AND LAWYERS 206, 209 (Charles J. Glasser Jr., ed., Bloomberg Press, New York, 2006).

57 to verify the information.226 While this book provides an overview of libel laws in both the U.S. and England, both of which form part of my study, the discussion on the standard of fault in the case of public figures is limited and the book does not at all discuss the law of libel in the British Caribbean, the central focus of my dissertation.

Peter N. Amponsah’s 2004 book provides a comparative look at how defamation of public figures is handled in the United States, the United Kingdom, the European Court of Human Rights, and Australia.227 The book traces the development of the protection for political speech in the four jurisdictions. It looks at how the four jurisdictions balance freedom of speech and protection for the reputations of public officials and figures.228

The U.K. was chosen as “progenitor of the common law of libel.”229 The U.S. was chosen as a former British colony that has moved away from the English common law to embrace constitutional protection for free speech.230 Australia, formerly a British colony, was chosen because it does not incorporate free speech into its constitution, but the principle has evolved at common law.231 The E.C.H.R. was chosen as a transnational law jurisdiction that impacts on the law in Western Europe.232

226 Id.

227 PETER N. AMPONSAH, LIBEL LAW, POLITICAL CRITICISM, AND DEFAMATION OF PUBLIC FIGURES: THE UNITED STATES, EUROPE AND AUSTRALIA, (2004).

228 Id. at 2.

229 Id. at 4.

230 Id.

231 Id.

232 Id.

Amponsah uses mainly case law in his 85-page discussion.233 The author notes that the United States’ actual malice standard was rejected in Australia234 but the Court recognized an implied freedom to publish matters related to government and political issues.235 The European Court leaned closer to the actual malice standard and Amponsah discusses two cases that demonstrated the Court’s commitment to political speech.236 In the U.K., the courts have traditionally leaned closer to protecting individual reputation rather than political speech than U.S. and E.C.H.R.237 Thus, in two cases, Amponsah notes, the House of Lords refused to recognize a generic privilege for political information.238

Amponsah also analyzed the individual cases in the countries to determine trends.

He concluded that the U.S. Court’s main justification in its decisions rested on self- expression and self-government and the protection of the marketplace of ideas and thus, was more in favor of protecting speech than reputation.239 The E.C.H.R. also emphasized political speech rather than reputation because of its commitment to a democratic system.

Both the U.S. and E.C.H.R. took a heightened scrutiny approach while England, with a

233 Id. at 81. In the case of the U.S. he identifies New York Times v. Sullivan, 376 U.S. 254 (1964) where the Supreme Court held the actual malice standard of fault should apply in the case of public officials. He also identifies Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) where the application of the actual malice standard was extended to include public persons. He also refers to the genesis of the decision in Coleman v. MacLennan, 78 Kan. 711, 98 p. 281 (1908) where the Kansas court held that a newspaper was not liable for a libelous statement it published about a political candidate because political discussion was fundamental to democracy and had to protected.

234 AMPONSAH, supra at 3.

235 Id. at 114. Theophanous v. Herald and Weekly Times

236 AMPONSAH, supra at 81. Lingens v. Austria, supra and Castells v. Spain, supra.

237 AMPONSAH, supra at 127.

238 Id. at 98 and 104. Reynolds v. Times Newspapers, supra.

239 AMPONSAH, supra at 115.

59 stronger interest in reputation, embraced an ad hoc balancing approach weighing political speech against reputation.240 Australia was in-between the two positions making no distinction between public and private figures but extending qualified privilege under an implied freedom of communication beyond the U.K. definition to embrace political speech.241

Amponsah’s discussion covers libel standards in the international human rights bodies as well as standards in the United States, England and other countries and provides an excellent backdrop for my discussion on the effect of membership in international human rights organizations for Caribbean states. Amponsah also provides some good insight for my discussion on the free speech theory in the different jurisdictions. Because this book was published in 2004, it is a helpful resource in identifying principles that need to be addressed in a comparative discussion of libel law among jurisdictions.

Amponsah does a good detailed job of identifying the fundamental different ways in which the public libel plaintiffs are treated in each jurisdiction and he dedicates a chapter to the history of defamation of political speech, examining seditious libel acts in each of the countries he studies.

Amponsah uses various sources including case law and texts. However, he concentrates his discussion on the legal history of defamation cases and is not as effective in delineating the historical context in which the cases evolve. Also, Amponsah’s two-to- three-page discussion on each of the cases is more limited than the coverage that my

240 Id. at 115–116.

241 Id. at 116.

60 dissertation will provide on cases in the relevant jurisdictions. Finally, Amponsah’s book does not at all address the status of libel law in the Caribbean or the position of the OAS regulating bodies.

Andres Davila’s 1971 research, done in conjunction with International Press

Institute and International Commission of Jurists, is a more general comparison of the law of libel in Argentina, Denmark, England, France, Germany, Japan, the Philippines and the U.S.A.242 Though only discussing the issue of public person standards in libel suits in a general manner, Davila notes that, apart from the U.S., the actual malice standard is used in the case of public officials in Denmark243 and Germany.244 Davila notes that in jurisdictions that do not require actual malice to be proved in order for public persons to recover damages in libel actions, the fact that a publisher published with knowledge of falsity or was reckless as to whether the statement was true can aggravate damages.245

Davila dedicates a seven-page chapter of his book to a comparison of the status of what he refers to as “public interest” and libelous statements. It is in this context that he discusses the New York Times actual malice rule, noting that it places the burden of proof on public officials in libel cases brought by them.246 Davila concludes that the U.S. stands in contrast to several countries where “attacks on public figures, and especially on

242 ANDRES DAVILA, LIBEL LAW AND THE PRESS, (International Press Institute, Zurich, 1971).

243 Id. at 76. The Danish Criminal Code art. 268 provides for liability where allegations are “maliciously made or disseminated.”

244 DAVILA, supra at 76. The German Criminal Code, art. 187 provides that a statement is defamatory where the person making the defamatory statement is aware of falsity of the statement.

245 DAVILA, supra at 76.

246 Id. at 102.

61 public officials, are treated more severely than attacks on the reputations of private individuals.”247 In France, for example, where libel is treated as a criminal offense,

Davila notes, that the public interest defense rests on good faith which rebuts the presumption of criminal intentions.248 French journalists, however, do not enjoy privilege outside of the defense of objective reporting and restraint in covering events that the public has a right to see.249

Davila studied the treatises on libel law from the various countries.250 Although he refers to some cases, there is no in-depth discussion of any case in the countries.

Additionally, Davila’s discussion on the law of the libel against public persons in each country is limited. Ultimately, the book provides only a very general overview of the topic.

Although both Amponsah and Davila offer a comparative analysis of libel laws in different countries, neither have looked at the Caribbean. Because of the unique position of the Caribbean, a discussion of the Caribbean libel law would differ from these discussions. Ultimately, the Caribbean differs from each of these countries under study because of their size, the fact of their recent independent status and other unique aspects of their history.

In their text titled Media Law and Human Rights, British authors Andrew Nicol,

Gavin Millar and Andrew Sharland include a chapter on defamation in Britain and its

247 Id. at 103.

248 Id.

249 Id.

250 This includes ARTHUR B. HANSON, LIBEL & RELATED TORTS (U.S.); J.C.C. GATLEY, LIBEL & SLANDER (ENGLAND) AND HENRI BLIN, ALBERT CHAVANNE, ROLAND DRAGO, TRAITE DE LA COUR DE CASSA

former colonies.251 They note that the Canadian Supreme Court has specifically rejected

the New York Times’ standard for the public person.252 However, Australia253 and New

Zealand254 and India255 have all recognized an extended qualified privilege in the case of

public persons.256 In the case of Great Britain, however, the authors note that in the 1999

case Reynolds v. Times Newspapers Ltd.257 the House of Lords rejected the strict

American burden of proof on public officials and public figures and re-asserted the

British position that protection from successful libel suits because of a “qualified

privilege” only applied in cases where the matter was of “serious public concern” and the reporting was “careful, balanced and responsible.”258 This position is the current position

251 ANDREW NICOL Q.C., GAVIN MILLAR Q.C. & ANDREW SHARLAND, MEDIA LAW & HUMAN RIGHTS (2001).

252 Hill v. Church of Scientology of Toronto, (1995) 126 D.L.R. (4th) 129.

253 Lange v. Australian Broadcasting Corporation, (1997) 189 C.L.R. 520. Lange arose out of a defamation action brought by David Lange, a former Prime Minister of New Zealand, against the Australian Broadcasting Corporation. Lange claimed that the ABC accused him of trading political patronage for campaign contributions. In Lange, the High Court refused to strike out the broadcasting company’s plea of privilege, holding unanimously held in order for the representative and responsible government provided for in the Constitution to function effectively, Australians had a constitutional right to communicate freely about government and political affairs. Thus, there was an implied right to political communication. The Court held that common law should recognize a new type of qualified privilege that protected communications published “reasonably.” The High Court established a two-limbed test to decide whether a law breaches the implied freedom of political communication: 1. Does the law burden political communication? 2. Is the law appropriate and adapted to an end that is consistent with the system of representative and responsible government established by the Constitution?

254 Lange v. Atkinson, [2000] 3 NZLR 385. In the New Zealand case Lange was again unsuccessful in having a defense of privilege struck out against a newspaper that critically reviewed his career and, he said, portrayed him as being “dishonest, lazy and insincere.” The Court of Appeal in New Zealand held also that privilege should apply to political statements about the past, present or aspiring Members of Parliament. However, the Court rejected the need for the statements to be made “reasonably.”

255 Raja Gopal v. State of Tamil Nadu A.I.R. 1995 S.C. 264.

256 NICOL, supra at 77.

257 [1999] 3 W.L.R. 1010 (HL), supra at note 103.

258 NICOL, supra. at 78. One issue that weighed on the Court’s mind was the failure of the newspaper reporter to include Reynold’s explanation. Id. at 79.

63 of the English law. Although the multi-authored Nicol book provides a good discussion on the current position of libel in Britain and in some former British colonies, the authors do not refer to the position in the Caribbean and only refer to the American actual malice standard in passing.

In another British media law textbook, Geoffrey Robertson and Andrew G.L. Nicol devote a chapter to defamation.259 They note the limitations of the defense of qualified privilege, which protects statements made from a moral or social duty, in the case of the public official, and that “the courts have been reluctant to hold that the press has a moral duty to inform an interested public.”260 Thus, privilege that protects the press from defamation liability in order to inform the public of political misconduct may only apply to newspapers in the constituency where the candidate being defamed is running for office.261 Robertson’s book includes a comprehensive discussion of qualified privilege, the major defense that newspapers in Britain and the Caribbean can claim in the case of libel against a public official. However, the Robertson book is specifically geared to

British law and does not discuss any Caribbean cases and, thus, differs from my research.

Gilbert Kodilinye, in his text on Commonwealth Caribbean Tort Law, dedicates a chapter to defamation law in the Caribbean.262 He notes the principle that the press has the right to comment on political affairs of the day and the defense of “fair comment” can

259 GEOFFREY ROBERTSON & ANDREW G.L. NICOL, MEDIA LAW: THE RIGHTS OF JOURNALISTS, BROADCASTERS & PUBLISHERS (1985).

260 Id. at 53.

261 Id.

262 GILBERT KODILINYE, COMMONWEALTH CARIBBEAN TORT LAW, (2000).

64 help protect a newspaper in a libel case brought by politicians.263 The defense fair comment is available to persons who express their fact-based opinions on a matter which is of “legitimate concern to the public.”264 However, Kodilyne says that free speech

“does not confer a license to make unfounded attacks upon the integrity and moral character of individuals, whether political personalities or not.”265

Although Kodilyne’s book may contain the best discussion on Caribbean law of libel it was published in 2000, before the Abrahams decision and makes no mention of the decisions in the lower courts in the Abrahams case. The book provides no historical background to the major Caribbean libel cases. Finally, being a book on tort law,266

Kodilinye’s book does not discuss the constitutional premises of these libel actions.

Thus, Kodilinye’s research differs from this research.

Norma Forde’s undated manuscript on defamation, The Law of Defamation,267 is a general discussion on the law of libel in the Caribbean distinguishing libel from slander, identifying the elements of—and defenses to—a libel action. Interestingly, she begins her discourse on the law of libel in the Caribbean territories by indicating that, generally

263 Id. at 329.

264 Id. at 322.

265 Id. at 330. See Craig v. Miller, (1987) High Court, Barbados, No. 317 of 1986 (unreported).

266 KODILYNE, TORTS, supra at 1.

267 NORMA FORDE, THE LAW OF DEFAMATION (Cave Hill, Barbados: University of the West Indies Faculty of Law, unreported. Available at the University of the West Indies Faculty of Law Library, Cave Hill, Barbados. Call No. KN38.2.F67). The manuscript, which is available in the Faculty of Law’s Library at Cave Hill, is unpublished and there is no indication of the date when it was written anywhere on the book. However, I believe that it must have been written in the late 1980s because it does not make reference to cases beyond that decade and it also refers to the old Libel Statute of Barbados, which was replaced in the early 1990s with some of the recommendations made by Forde herself.

65 speaking, both the common law268 and legislation in the Caribbean was “received” from

Britain.269 The term “received,” first used in connection with the British Caribbean by

Caribbean legal scholar K.W. Patchett who published his thesis “Reception of Law in the

West Indies” in 1973, is usually used in the Caribbean to refer to the inheritance of laws from other regions. 270

Forde starts by tracing the case law defining the principles of libel, including both

English and Caribbean cases. She indicates that one role of legislation is to make

“technical adjustments to the existing common law.”271 In the 1980s only the Jamaican and Guyanese defamation acts provided specifically that defamatory words that were broadcast were libelous, and allowed the defense of unintentional defamation for innocent defamers.272 Similarly, the Jamaican and Guyanese statutes provide that it is not necessary for persons defamed to show special damages, or damages that can be specifically quantified in monetary terms, when bringing an action where the slanderous words were spoken to disparage a person in their profession, business or trade.273 The two statutes also provide, however, that the defense of justification or truth will not fail simply because “the truth of every charge is not proved so long as the material words are

268 “Common law” refers to the body of court decisions that have evolved over time and combine to form various legal principles that are binding.

269 FORDE, supra at 1. Forde notes the exception of St. Lucia where “no single wide legislative provision imported all of the English law.” Id.

270 K.W. Patchett, Reception of Law in the West Indies, (1973) 17 JAM. L.J. 58. Patchett’s thesis provides an exhaustive discussion on the difference between the legal systems in colonies acquired through settlement and those that were acquired through conquest or were ceded to England. See Chapter 5, part I for further discussion.

271 FORDE, supra. at 12.

272 Id.

273 Id.

66 justified.” The Jamaican and Guyanese acts also provide that the defense of fair comment will hold if the basic facts relied on are true.274 The old Barbadian act did not provide for this.275

These provisions in the Jamaican and Guyanese libel acts provide the basis for

Forde’s recommendations for the reform of the Barbadian Defamation Act. She proposes some reforms that could limit a plaintiff’s case276 or enlarge a defendant’s defenses.277

However, Forde focuses on the need to introduce new and comprehensive legislation detailing the law of libel.278 She recommends a re-examination of the privilege attached to disciplinary proceedings to allow governmental bodies authorized to hold these proceedings to revise regulations.279 She also recommends allowing close relatives of a dead person to seek a court order to restrain the publication of both defamatory statements against him or her.280 Finally, Forde suggested that the Barbados legislation be discussed by “media personnel, entertainers, journalists, writers, attorneys, human rights groups and other interested persons” and that there should be an attempt to harmonize the law in the Commonwealth Caribbean.281

274 Id. at 13.

275 Id.

276 Id. at 14. She notes the unintentional defamation defense. But notes that there is not much support for limiting the plaintiff’s case because of an interest in protecting persons against loss of reputation caused by false statements.

277 Id. This approach she sees as more readily accepted in the form of enlarging defenses such as truth, fair comment, and the definition of what falls within the realm of privilege. Id. at 15.

278 Id. at15–16.

279 Id. at 16.

280 Id.

281 Id.

Forde’s paper is now at least two decades old and, today, the new Barbados

Constitution reflects several of her suggested reforms. However, Forde never addresses the issue of whether the legal standard of proof for a public person should be changed.

Sheryl Thompson’s thesis, The Protection of Privacy II,282 which dedicates two chapters to Defamation law, like Forde’s manuscript, starts out with a general discussion on libel law, its elements and defenses, using case law as a means to trace the development of the Caribbean law. She notes the difficulty in determining damages in libel cases in the Caribbean.283 She also includes a three-page discussion of the New York

Times v. Sullivan case.

Thompson dedicates a chapter in her book to the Abrahams case. She compares the award made to Abrahams of J$35 million to the award made to Hugh Small, a government minister of the opposing side of J$5,000 in a 1976 case, suggesting an increasing trend toward making larger awards in libel cases in the Caribbean.284 While there is a large disparity in the two awards, three decades separated the two cases, a time when the Jamaican dollar has devalued significantly.285

Several books and papers have also been written on public officials and libel law in the United States. However, in addition to lacking a comparative focus, these books are mainly outdated.

282 SHERYL THOMPSON, THE PROTECTION OF PRIVACY II (unpublished, available at the University of the West Indies Faculty of Law Library, Cave Hill, Barbados).

283 Id.

284 Small v. The Gleaner Co. (unreported) Supreme Court of Judicature, Suit No. C.L.S. -188 of 1976.

285 In 1976 the Jamaican dollar was on par with, or worth more than the U.S. dollar, but by 2003 approximately $60 of Jamaican money equaled one United States dollar.

In his 1992 book on libel law, Power Publicity and the Abuse of Libel Law, Donald

M. Gillmor wrote that “libel laws in the hands of politicians, public employees and the

‘stars’ remain weapons that have the same deadly effects on editorial courage, content diversity and political participation as the seemingly inevitable economic processes of a post industrial capitalist system.”286 Gillmor was particularly concerned about the effects in small and family-owned newspapers. However, Gillmor argued that the press should allow persons criticized the right to reply. In his book he wrote that often public persons bring libel suits with no expectation of winning, but newspapers are affected by the threat of a libel suit.287 Additionally plaintiffs benefit from the vindication of their names,

Gillmor wrote.288 Nonetheless, he concludes that few public person plaintiffs win libel suits that such libel actions were a waste of public resources and led to a “depressed environment for free speech and press.”289

Gillmor advocates a system in which public persons would be denied a remedy in libel law, thereby promoting freedom of speech. He suggests that editors, publishers and news directors, in promoting this non-litigious climate, should devote some time and space in their media to the persons they attack to allow them to rebut allegations.290 Thus, he advocates journalists self-regulation in balancing freedom of speech and

286 DONALD M. GILLMOR, POWER PUBLICITY AND THE ABUSE OF LIBEL LAW 9 (1992).

287 Id. at 11.

288 Id.

289 Id. at 172.

290 Id. at 173.

69 responsibility, thereby addressing such charges that are leveled against them such as

“inaccuracy, arrogance, unfairness, insensitivity to race.”291

Bruce W. Sanford, in his 1999 book on freedom of speech, Don’t Shoot the

Messenger, identified a growing distrust between the public and media in the U.S.292 He wrote that in court cases293 following the New York Times v. Sullivan decision the media had been given “breathing space” to make mistakes so Americans could benefit from

“robust” and “uninhibited” debate on public affairs.294 Thus, he wrote, U.S. libel law protects writers who honestly believe in the truth of their accusations. Sanford discussed a 1984 case that held that journalists who believed their statements to be true had no obligation to treat persons fairly or even handedly.295

Sanford noted that even though after New York Times v. Sullivan the climate for libel actions involving public persons changed in favor of the media, the cost of litigating such actions for the media was high. Sanford wrote that apart from the initial litigation costs, there was the discovery in hindsight that often in defending libel actions under the actual malice doctrine, public support was lost because the public resented that the media

291 Id.

292 BRUCE W. SANFORD, DON’T SHOOT THE MESSENGER: HOW OUR GROWING HATRED OF THE MEDIA THREATENS FREE SPEECH FOR ALL OF US 11 (1999).

293 Id. at 12–13. See for e.g. Westmoreland v. CBS, Inc., 601 F. Supp. 66, 68 (S.D.N.Y., 1984).

294 SANFORD, supra at 13. See also Sharon v. Time, Inc., 599 F.Supp. 538 (S.D.N.Y. 1984).

295 Id. In Westmoreland v. CBS, Inc., 601 F. Supp. 66, 68 (S.D.N.Y., 1984) Judge Pierre Leval said,

A publisher who honestly believes in the truth of his accusations (and can point to a non-reckless basis for his beliefs) is under no obligation under the libel law to treat the subject of his accusations fairly or even-handedly. Id.

70 could not be held responsible in damages for “unfairly” injuring reputation.296 This led to negative feelings about the press. Sanford wrote that the media had also suffered a loss of credibility because of its cynicism and relentless aggressiveness.297 He noted that the abuses evident in the American media in the twenty-first century were not new and that even at the time the First Amendment was passed the founding fathers recognized the press abused its role.298 For Sanford, the origin of press freedom conferred in the

Amendment was not based on the press’ public service role.299 Freedom of speech,

Sanford wrote, was aimed at providing a fourth institution outside government to act as a check on the three government branches.300 Thus, for Sanford, the First Amendment protection of freedom of the press did not depend on the public’s approval of journalists’ work but on a “recognition that as awful as they sometimes behave at times [the public was] better off relying on [the press] than on government for our liberties.”301

Both Sanford302 and Smolla,303 as well as Robert Sack,304 provide well researched and written treatises on libel law in general in the United States, and therefore discuss the public persons and libel in their narratives. They do not look at all of the issues examined

296 Id. at 14.

297 Id. at 22.

298 Id. at 193.

299 Id.

300 Id. at 194.

301 Id.

302 nd BRUCE SANFORD, LIBEL AND PRIVACY (2 ed., Prentice-Hall Law and Business, 1994).

303 nd RODNEY SMOLLA, LAW OF DEFAMATION (2 ed., Clark Boardman Callaghan, 1986).

304 ROBERT DAVID SACK & ROBERT D. SACK, SACK ON DEFAMATION: LIBEL, SLANDER AND RELATED rd PROBLEMS (3 ed., Practising Law Institute, 1999).

71 in this dissertation relative to U.S. libel law and theory, and certainly do not contain anything on the law of the British Caribbean.

Wat Hopkins’ 1989 book Actual Malice: Twenty-Five Years after Times v.

Sullivan305 traces the decision of the Supreme Court in New York Times v. Sullivan and the development of the law of libel in the United States in the aftermath of the decision.

Hopkins’ book, based on his dissertation, however, looks at the case from a largely legal viewpoint, not examining in any depth its civil rights origins which this dissertation will.

He notes that the case “grew out of an advertisement placed by a civil rights group criticizing the conduct of government officials in several southern cities.”306

A large part of the book is dedicated to a discussion of the Sullivan case and its progeny. Hopkins’ book is an excellent resource on the development of the actual malice rule. He also dedicates a chapter to a discussion of the common law actual malice pre-New York Times v. Sullivan. Hopkins notes that, contrary to popular belief, most states had adopted the so-called “minority” rule that was intended to protect privileged communications and cases where false statements are made in good faith.307 Thus, he chronicles, at least 21 states and the District of Columbia protected false statements of facts made in good faith in cases where the communication was “about government, politics, public officials or candidates for public office.”308 Three states protected false statements made in the case of privileged communications between past and present

305 WAT HOPKINS, ACTUAL MALICE: TWENTY-FIVE YEARS AFTER TIMES V. SULLIVAN (1989).

306 Id. p. 2.

307 Id. p. 76.

308 Id. at 76. The states were Arizona, California, Colorado, Connecticut, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Nebraska, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, South Dakota, Utah, Virginia, and West Virginia.

72 employees and employer, credit agencies and other businesses and their clients.309 Only

15 states employed the strict liability standard, that imposed liability for libelous statements made without negligence, of the “majority.”310 The 11 remaining states were undecided.311

Hopkins also does a good job in discussing the progeny of the New York Times decision, dedicating one chapter to the Supreme Court’s application of New York Times actual malice in later cases. He discusses each case in an in-depth manner. Hopkins’ research mostly takes the form of case analysis.

However, Hopkins’ book was published more than 15 years ago and so there are a number of cases in the arena of libel of a public official that would not have been discussed by Hopkins. My dissertation will benefit greatly from Hopkins’ research, but I will be able to add the most recent cases to the mix. Also, Hopkins’ work is focused on the United States and, thus, lacks the international comparative approach that I intend to use in my dissertation.

Clifton Lawhorne’s book, based on his 1969 dissertation at Southern Illinois

University, begins with the tradition of libel law inherited from England, ending with the public person standard established in U.S.312 He discusses the individual standards used by all the states in libel matters and stresses the importance of the New York Times v.

309 Id. These states were Illinois, Missouri, and Rhode Island.

310 Id. These states were Alabama, Arkansas, Delaware, Georgia, Idaho, Maine, Massachusetts, Mississippi, North Dakota, Ohio, Oklahoma, Oregon, Texas, Vermont and Wyoming.

311 Id. at 197. These states are Alaska, Florida, Hawaii, Indiana, Montana, Nevada, New Mexico, South Carolina, Tennessee, Washington, Wisconsin.

312 CLIFTON LAWHORNE, DEFAMATION AND PUBLIC OFFICIALS: THE EVOLVING LAW OF LIBEL (1971). See also CLIFTON LAWHORNE, NEWSPAPERMEN V. PUBLIC OFFICIALS: THE EVOLVING LAW OF LIBEL (1969).

Sullivan case in establishing a nationwide standard for libel law. Lawhorne offers a good resource on the development of libel law and, specifically the law as it relates to public persons in the United States and its nexus with English law. His book also relies on case analysis.

However, Lawhorne’s book was written in 1969, when the New York Times actual malice doctrine had not fully developed and cases such as Gertz v. Welch, Proxmire and

Firestone, all of which contributed to the definition of a public person, had not been decided. Thus, Lawhorne’s book does not have the full story of the actual malice rule and how it is applied in the modern court. Also, Lawhorne’s book differs from my dissertation because my dissertation has a comparative focus, comparing libel law in the

United States with the libel law in the Caribbean.

In their 1978 book on libel, Robert Phelps and E. Douglas Hamilton include in their discussion a chapter on the New York Times case, its origins and impact.313 They write that the New York Times decision extended protection against claims brought by public persons to the press in the United States that had only existed in 16 states prior to the decision.314 They note that the Supreme Court’s decision extended to both elected and non-elected officials.315 They go on to list and cite cases identifying several categories of persons protected under the New York Times rule. They also note the decision in Gertz that states can determine the standard to be used in the case of a private person, so long as the state does not impose strict liability.316 The book provides a quick discussion on the

313 ROBERT H. PHELPS & E. DOUGLAS HAMILTON, LIBEL: RIGHTS, RISKS, RESPONSIBILITIES, (1978).

314 Id. at 173 cf. Hopkins’ discussion.

315 Id. at 176.

316 Id. at 191.

74 development of the law and refers to several state cases, including the 1908 Kansas state case,317 that have contributed to and developed the doctrine that would emerge in 1964.

Again, however, the book is different from this research because, written in 1978, it does not include some of the more recent developments in libel law in the United States.

Also the book does not provide a comparative perspective.

Although the purpose of former New York Times Reporter Anthony Lewis’ 1991 book, Make no Law: The Sullivan Case and the First Amendment, is to explore the

Sullivan case in its entirety, he gives an in depth discussion of the issues prior to the case being brought.318 Thus, he begins his discussion on March 13, 1960 when John Murray placed the advertisement in the New York Times. Oddly enough, although he mentions the sit-ins in Greensboro, North Carolina, a few years earlier, Lewis never discusses the sit-ins in Alabama. His account of the Alabama case and the subsequent appeal to the

Supreme Court is the most thorough. The book also is good in that it contains a discussion of the reaction in the Montgomery newspapers to the advertisement. Unlike other books that concentrate on the New York Times decision and its progeny, this book dedicates a chapter to discussing the segregationist stance of the South and the separate but equal doctrine.

Lewis relies on case law ranging from Dred Scott v. Sanford319 to Coleman v.

McLennan, writings and speeches of civil rights leaders and other primary documents along with transcripts of Sullivan’s trial. He examines the trials and the sedition acts of

317 Coleman v. McLennan, 78 Kan. 711 (1908).

318 ANTHONY LEWIS, MAKE NO LAW: THE SULLIVAN CASE AND THE FIRST AMENDMENT (1991).

319 60 U.S. 393 (1857).

1798 that allowed the criminal prosecution of persons for libelous criticisms of the government and ends his discussion with a series of decisions in the Supreme Court following New York Times. The major type of research that Lewis uses is a dissection of the cases through legal research.

Nonetheless, the book lacks the comparative perspective of this research focusing, as it does on the United States. Also, because it was written about 15 years ago, the book lacks discussion on the most recent cases in libel law.

In his 1991 book Feeding Frenzy, Larry J. Sabato examines the history of

American journalism and its relationship with politics.320 He notes the role of journalists between the 1940s and 1966 when they played a role that served and reinforced the political establishment, and accepted whatever politicians told them as truthful and revealed little about the private lives of public persons.321 The period between 1966 and

1974, was, however, marked by “watchdog” journalism, which Sabato describes as a period of harsh, aggressive and intrusive reporting into the lives of public officials.322 He writes that while, in the past, reporters were less likely to publish a story critical of a politician’s character, since the New York Times v. Sullivan decision changed the standard of proof for a public official to actual malice in 1964, newspapers are less worried about libel suits.323 In the 1980s when the book was published, only approximately one-tenth of

320 LARRY J. SABATO, FEEDING FRENZY: HOW ATTACK JOURNALISM HAS TRANSFORMED AMERICAN POLITICS, (The Free Press, New York, 1991).

321 Id. at 25.

322 Id. at 26.

323 Id. at 69–70.

76 politicians who brought libel cases were successful.324 Nonetheless, Sabato contends that newspapers in 1991 were still subject to the “chilling effect” of a possible libel suit.

Newspapers feared libel actions because they were costly to defend and many small newspapers could not absorb the costs which had increased because of a growing cultural sensitivity in the U.S. at the time to the harmfulness of words.325 This book focuses on the financial effect of the New York Times case on the profession of journalism and the role that journalists played. Coming from a journalist’s perspective, it also raises the issue of the short-comings of the decision in stemming the “chilling effects” of high-cost libel suits.

However, the book does not provide a comparative perspective from other countries. Also the book does not discuss the New York Times decision and its progeny in any depth.

In a book chapter Mark S. Nadel argues that the New York Times decision has served to increase rather than reduce libel costs by “indulging the instinct of the press to engage in behavior which antagonizes potential plaintiffs,” causing them to sue and increase costs of resolving libel complaints.326 Nadel advocates that the doctrine be refined to require the press to concede “uncertainty” or “error” when it intends to rely on

New York Times’ standard and to allow the press to recover “reasonable attorney’s fees” where the public official cannot prove a statement was false.327 He notes that concessions

324 Id. at 70.

325 Id.

326 Mark S. Nadel, Refining the Doctrine of New York Times v. Sullivan, in THE COST OF LIBEL: ECONOMIC AND POLICY IMPLICATIONS 157 (Everette E. Dennis & Eli M. Noam, eds., 1989).

327 Id. at 158.

77 of error would serve to improve credibility with readers, and placate persons libeled.328

Nadel, unlike Sabato, focuses on means of reconciling the two sides in libel cases.

However, he does not explore the New York Times decision in an in-depth manner and does not provide a comparative perspective.

In J. Mills Thornton’s 2002 book, Dividing Lines: Municipal Politics and the

Struggle for Civil Rights in Montgomery, Birmingham, and Selma, there is a short discussion of the events between February 25, and March 10, 1960 and how they led to the New York Times v. Sullivan case.329 Although the discussion is fit inside the larger context of the civil rights movement in Montgomery, it provides a relatively good description of the movement.330 However, while it mentions the decision in New York

Times v. Sullivan, setting the events in their context, the focus is mainly a historical account of the events in Montgomery. Thus, there is no discussion of the legal case in this book, which my paper is aimed at providing.

Burke Marshall, who was U.S. Attorney General in the 1960s during the civil rights struggle, wrote a book in 1964, that provides a retrospective look at the movement at the time and the role of the, then, recently deceased president, John F. Kennedy, in encouraging legislative change in the status of Negroes.331 He notes the limitations on the federal government in eliminating racial discrimination, and asserts that the only means of securing these rights is through litigation on a case-by-case basis in the federal courts.

328 Id. at 162.

329 J. MILLS THORNTON, DIVIDING LINES: MUNICIPAL POLITICS AND THE STRUGGLE FOR CIVIL RIGHTS IN MONTGOMERY, BIRMINGHAM, AND SELMA (2002).

330 Id. at 113–116.

331 BURKE MARSHALL, FEDERALISM AND CIVIL RIGHTS. (1964).

This, he explains, is necessary because the system perpetuated itself through the non-recognition of federal rights, in state legislation and enforcement. Thus, some state governments used state law enforcement machinery to retaliate against blacks who sought to gain equal rights. Marshall’s paper is most effective at providing a historical context for the New York Times decision, but it has no bearing on the issue of libel law.

None of the literature currently available provides a comprehensive comparative discussion of the distinction between public libel law standards in the Caribbean and the

United States. Neither do they include an exhaustive up-to-date discussion on libel law in the Caribbean. This dissertation will provide a comprehensive discussion on libel law in the Caribbean up to 2006. Additionally, this dissertation includes a discussion on the most recent libel decision by the Inter-American Court of Human Rights. Thus, this dissertation differs from the discussion in the existing material available on public person libel.

1.10 Outline for Dissertation

My dissertation will be divided into ten chapters.

This introductory chapter, chapter 1, provides the research questions to be answered, definitions of issues raised by the research questions, the methodology by which the questions will be answered, and the literature review.

Chapter 2 will explore the libel cases determining the principles used in determining fault for defamatory actions brought by public figures, public officials or public persons in the United Kingdom. The chapter will focus on the three major defenses in the jurisdiction—justification, privilege and fair comment. It will focus on major libel cases between the latter part of the nineteenth century until the1998 House of

Lords decision in Reynolds. The chapter sets the backdrop to the Reynolds case and identifies the principles used in assessing damages up to that date.

Chapter 3 will explore the 1998 British decision Reynolds where the House of

Lords, the highest court of appeal in the United Kingdom, expressly rejected the United

States actual malice standard for public official libel actions.

Chapter 4 will trace the status of public persons in the United States in libel actions prior to 1964. Chapter 4 will also look at the origins of the New York Times v. Sullivan case and the decision of the Alabama court to award Sullivan $500,000 in damages. It will also examine the U.S. Supreme Court’s 1964 decision in New York Times v. Sullivan that imposed the higher standard of proof (actual malice) in public official libel actions, and the cases following Sullivan that extended the reach and effect of the decision to anyone defined as a public figure by the U.S. Supreme Court.

Chapter 5 will be a theoretical discussion of concepts of political culture, constitution and freedom of speech in the Caribbean. It will include a discussion of the history and political culture of the Caribbean. It will also provide a discussion on the structure of the Caribbean political system and how it developed as well as a discussion on statutory protection for libel laws in the Caribbean.

Chapter 6 will trace the Caribbean jurisprudence on libel law between the 1950s and the 1990s in the period prior to the 1999 House of Lords decision in Reynolds. It will identify the principles used in determining damage awards by the Caribbean Court of

Appeal. It will focus on the local cases decided in the Caribbean courts and the Privy

Council and damages awarded in these cases. The chapter will focus on the principles governing the award of damages in these cases.

Chapter 7 will trace the facts leading to the development of the Abrahams case in

Jamaica, its beginnings and the decisions in the lower courts and the final decision of the

Privy Council. The chapter will be concluded with a discussion of the action in the

Abrahams case currently before the Inter-American court.

Chapter 8 will explore the tradition of seditious libel in the Caribbean in the post-slavery years. The chapter will explore how sedition laws were used to stamp out popular black power movements in the period covering the aftermath of the 1865 Morant

Bay Rebellion in Jamaica, which represented the most widely-known effort by ex-slaves at forcing reform of the economic, social and political system in the Caribbean and saw the introduction of a new, unrepresentative system of government in the British West

Indies to the movement between the late 1930s and early 1960s in the Caribbean for political independence. The chapter will also look at the continuing existence and use of the criminal law of libel in the Caribbean in a 2004 Grenadian case, Worme v.

Commissioner of Police.

In Chapter 9 the author will explain the legal position of the Inter-American Court, the potential impact of its decisions on local laws and the composition of the Court. It will also look at the Inter-American Court’s decision in the Costa Rican libel case

Herrera. The chapter will discuss the social, political and legal implication of these developments for member countries such as Jamaica.

In Chapter 10 the paper will conclude with a discussion of the comparison of the positions in the United States and Caribbean jurisprudence on libel laws, the impact of this distinction on the damages awarded in Caribbean cases. In the conclusion I will also look at the implications for the Caribbean court of membership in the Organization of

American States and the direction in which this body may force the region to move its jurisprudence on libel laws. The chapter will also explore the challenges of third-world countries in trying to determine appropriate levels of freedom of speech for themselves and the appropriateness of the freedom of speech models suggested by Siebert and Levy in explaining the libel standards for public persons in the British Caribbean.

CHAPTER 2 THE BRITISH CASES

2.1 Introduction

Over the years the English courts have refined the position of the public person in libel cases and the cases in which privilege may be pleaded. Prior to the 1960s, the cases mostly focused on the elements to be proved in establishing defenses of qualified privilege and fair comment in libel cases. The judges were reluctant to give the jury instructions on assessing damages in libel cases. The effect was that very large awards were often made in United Kingdom libel cases. After the 1960s, influenced by provisions in the European Convention on Human Rights as interpreted by the European

Court of Human Rights, the court became more willing to issue instructions to the jury for the assessment of damages. The appeal courts became actively involved in formulating principles to be used in guiding the jury. Subsequently in 1990 the Court and

Legal Services Act was passed allowing the Court of Appeal to substitute jury awards that were too excessive. The court became more involved in creating a body of libel cases to provide guidance to juries.

This chapter will provide a look at the political history in Britain, the media culture and how the media relates to the government. The chapter will also provide a discussion on the constitutional and legislative safeguards for freedom of speech and some freedom of speech theories that form the base of freedom of speech as it exists in the United

Kingdom today. Finally the chapter will identify the relevant cases on libel law, isolating the principles relevant to libel concerning a public person and for assessing damages.

82 83

Section 2.2 of this chapter discusses the political history of the United Kingdom. In section 2.3 the structure of the civil courts in England and Wales which share a jurisdiction is discussed to ensure that readers can understand the appeals process.

Section 2.4 consists of a discussion of the legal and constitutional protections for freedom of speech in the United Kingdom. In section 2.5 the theories underlying freedom of expression in England will be discussed. Section 2.6 will focus on the media’s role in

England and its relationship with the government and the development of freedom of speech in Britain. Section 2.7 will focus on the earlier cases between the late nineteenth century and first two decades of the twentieth century. Section 2.8 will focus on the cases between the 1920s and 1960s. Section 2.9 will focus on the cases starting at the beginning of the 1970s through the 1990s. Section 2.10 will be the conclusion.

2.2 Political History of England

English constitutional scholar, W. Ivor Jennings in his book, The Law and the

Constitution, wrote that the early English politics at the time of the 1066 Norman

Conquest was based on the feudal system.1 It was assumed that all land was held in a manor either by the king or “by a mesne lord who held the land as a vassal directly or indirectly from the king.”2 During the reigns of Henry I3 and Henry II4 between 1100 and

1 W. IVOR JENNINGS, THE LAW AND THE CONSTITUTION 9 (University of London Press Ltd., London, 1948)(1933). In the 1066 Battle of Hastings William the Conqueror (Duke of Normandy) conquered England and brought it under Norman control. William I over a period of time established control over the administration of justice in England, reducing the power of the sheriff and introduced a writ system of th petitioning the crown for redress of grievances. See , R.J. WALKER, THE ENGLISH LEGAL SYSTEM 3–4 (4 ed., 1976).

2 Id.

3 th R.J. WALKER, THE ENGLISH LEGAL SYSTEM 4 (4 ed., 1976). See also

Henry I of England, WIKIPEDIA, http://en.wikipedia.org/wiki/Henry_I_of_England (last visited May 25, 2006). Henry I, the fourth son of William the Conqueror was King of England between 1100 and 1135, succeed. Nicknamed "Lion of Justice," he increased the activities of centralized government and issued the

1189, several reforms led to the end of the feudal system of government in England in

favor of centralized government.5 Henry II had direct control over the entire country and

his court included professional administrators, king’s justices and barons of the

Exchequer who became professional lawyers and developed a general or “common” law

that was binding on the country as opposed to the local laws that had existed in feudal times.6 However, the justices and barons were inferior administrators who dealt only with matters covered by rules of practice or precedent or law.7 The king in his court had ultimate authority over all matters of political importance.8 The courts of Common

Pleas,9 Exchequer,10 Kings Bench,11 and Chancery12 over time were separated from the

King’s court to form specialized courts of law and equity.13

Charter of Liberties which “bound the king to certain laws regarding the treatment of church officials and nobles. It is considered a landmark document in English history and a forerunner of Magna Carta.” See, MEDIEVAL SOURCEBOOK: CHARTER OF LIBERTIES OF HENRY I, 1100, http://www.fordham.edu/halsall/source/hcoronation.html (last visited June 5, 2006).

4 th R.J. WALKER, THE ENGLISH LEGAL SYSTEM 5 (4 ed., 1976). Henry II centralized the ownership of land in the King. Thus, land was all held in a freehold. Any dispute over the land should be brought before the king by writ. He also replaced the local courts with what would come to be known as “common law” courts. Id.

5 JENNINGS, supra at 10.

6 Id. at 10–11.

7 Id. at 11.

8 Id.

9 R.J. WALKER, THE ENGLISH LEGAL SYSTEM, supra at 7. Because of the inconvenience to litigants in following the King’s court “The Curia Regis” which traveled all over the country, the Court of Common Pleas was instituted to hear certain civil disputes. The judges were full-time lawyers. The court’s jurisdiction was limited to disputes in which the King’s interest was not involved. Id. The court was abolished in 1875 and its jurisdiction transferred to the Queen’s Bench Division in 1880. Id.

10 Id. at 6. The Exchequer was a separate department of the King’s Council that “dealt with the collection and distribution of royal revenue” during Henry I’s reign. By the reign of Henry II, it had become a court concerned with revenue disputes and presided over by the Exchequer Barons. After the Fourteenth Century, the Chief Baron was required to be a lawyer. Id.

In 1215, the Magna Carta was signed. The Magna Carta played a significant role in

the development of the constitutional law in England today.14 The Magna Carta, originally created because of disagreements between the Pope, King John and his English barons about the rights of the king, “required the king to renounce certain rights, respect certain legal procedures and accept that the will of the king could be bound by law.”15

Before and after 1215 in making his decisions, the king depended on a council.16 A council consisting only of royal officers was an ordinary council or Privy Council. A council that included archbishops, bishops, abbots, earls and barons or “lords spiritual and temporal” along with the royal officers was dubbed a Great Council.17 When the

11 Id. at 7–8. The Court of the King's Bench grew directly from King's Court or council (curia regis). It was separate from the curia regis (the court over which the King presided). However, because of its close association with the king it had authority to issue prerogative writ of mandamus, prohibition and certiorari (all of which restrained the excesses of the other lower courts and public officials. It was presided over by the Chief Justice of England. Its original jurisdiction, however, was civil. Id.

12 A.H. MARSH, HISTORY OF THE COURT OF CHANCERY AND OF THE RISE AND DEVELOPMENT OF THE DOCTRINES OF EQUITY 22, 29–30 (1985). The Court of Chancery was a court of equity in England and Wales that developed from the Lord Chancellor's jurisdiction. Unlike the common law courts, which were rigidly based on precedent, the Lord Chancellor had jurisdiction to determine cases, on behalf of the King, according to equity or fairness rather than according to the strict letter of the law.

13 JENNINGS, supra at 11. Equity is a system of justice that grew up alongside the common law that was intended to ensure justice was done. The rationale was that while the common law was premised on hard and fast rules, courts of equity (the chancery courts) allowed decisions that were based on justice rather nd than law. See G.R.Y. RADCLIFFE & GEOFFREY CROSS, THE ENGLISH LEGAL SYSTEM 116 (2 ed., Butterworth & Co., London, 1946).

14 RADCLIFFE, supra at 47–50. See also WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW VOL. II 207– 208 (Methuen & Co. Ltd, Sweet and Maxwell, London, 1982)(1903). The Magna Carta means “The Great Charter,” or “Great Paper.” The Magna Carta was passed because of the growing unpopularity of the King,. Richard had imposed heavy taxes, and used the Crown to oppress all persons, including his close circle. Those barons were being taxed and had to spend more time in service, thereby curtailing their ability to earn money. Smaller land tenants were being harassed by the sheriffs. Richard was openly at war with the Church and “made heavy pecuniary demands on the merchants.” Id. at 208.

15 Id. For the text of the Magna Carta, see http://www.bl.uk/treasures/magnacarta/translation.html (last visited June 5, 2006).

16 JENNINGS, supra at 12.

17 Id.

King summoned representatives of common people in addition to the other members of the Great Council the gathering was called a Council in Parliament.18 Because, in practice, the lords and commons deliberated separately, Parliament came to consist of two houses – the House of Lords and the House of Commons.19 During the reigns of

Henry II and Edward I,20 which ended in 1307, most important statutes were passed by the king in council with Parliament.21 Thereafter, however, the procedure for enacting legislation changed to one where the House of Commons sent a petition or “bill” to the king, requesting a change in the law, the judges drafted it and it was approved by the king in council.22 During the reign of the Lancastrian kings, cousins of the Plantagenet family who deposed Richard II the rightful King, between 1399 and 1471, the commons began to demand the privilege of debating issues and to be consulted on all matters relating to taxation and sent their “bills” in the forms in which they wanted them enacted.23

18 Id.

19 Id.

20 Edward I of England, WIKIPEDIA, http://en.wikipedia.org/wiki/Edward_I_of_England (last visited May 25, 2006). Edward I ruled England between 1272 and 1307 and was famous for conquering Wales and keeping Scotland under English domination during his lifetime. As King he implemented several reforms to safeguard his royal rights and improve the administration of the law. He solidified central authority over the country.

21 JENNINGS supra at 12.

22 Id.

23 Id. THE WAR OF THE ROSES, http://www.medievalstudies.org/WarsoftheRoses.html (last visited May 25, 2006). In 1399 Richard II was deposed from the throne by his cousin Henry of Bolingbroke, Duke of Lancaster. The kings that followed were known as the Lancastrian Kings. The Plantagenet, Lancastrian Kings of England, http://www.british-towns.net/english/kings/lancastrian.htm (last visited May 25, 2006). The Lancastrian Kings were King Henry IV of Bolingbroke (1399–1413), Henry V (1413–1422), Henry VI (1422–1461, 1470–1471).

Between 1455 and 1487, two families fought a series of civil wars to determine

which family would ascend to the throne.24 By the time the civil wars, dubbed the War of

the Roses, had concluded, and the Tudor king, Henry VII, was established on the throne

of England, the supremacy of the king and his Privy Council had ended.25 Thus, under

Henry VII and the Tudor dynasty between 1485 and 1603, the council’s legal functions became technical and were exercised by a sub-committee in the Star Chamber.26 The

“Star Chamber” is the name of the room in the King’s palace at Westminster where the

king’s council transacted its judicial business and the body that came to be named after it

was set up to try criminal offenses.27 Under the reign of the Stuart House, Charles I used

the Star Chamber as an “instrument of tyranny” during the 11-year period between 1629

and 1640.28 At the start of the seventeenth century the Star Chamber was the judicial

body that had jurisdiction over seditious libel cases.29 Charles I used the Star Chamber to

24 Id. at 13. See WARS OF THE ROSES.COM, http://www.warsoftheroses.com/ (last visited May 25, 2006). The rivalry for the crown was between the House of Lancaster and the House of York. The name Wars of the Roses is based on the badges used by the two sides, the red rose for the Lancastrians and the white rose for the Yorkists. Both families were direct descendents of King Edward III, the rightful king and claimed they were entitled to the throne. Id.

25 Id.

26 Id. at 14. THE TUDOR MONARCHS, http://tudorhistory.org/monarchs/ (last visited May 25, 2006). The Tudor monarchs were: Henry VII (1485–1509), Henry VIII (1509–1547), Edward VI (1547–1553), Jane Grey (July 1553), Mary I (1553–1558) and Elizabeth I (1558–1603).

27 RADCLIFFE AND CROSS, supra at 97–98. Created under the Star Chamber Act of 1487 during the reign of Henry VII, the actual jurisdiction of the court was never fully established, Radcliffe and Cross said. In fact Henry VII was more interested in expanding its jurisdiction than in restricting it.

28 Id. JAMES I, CHARLES I AND THE DESCENT INTO CIVIL WAR, THE KING EXECUTED, CROMWELL RULES, http://www.great-britain.co.uk/history/cromwell.htm (last visited May 25, 2006). James Stuart, the first Stuart king who ascended the throne in 1603 at the death of Elizabeth 1, was a Scottish Catholic who believed in the King’s "Divine Right" to rule as he wished. A failed Catholic Gunpowder Plot to blow up Parliament in 1605 led to anti-catholic riots. Neither James nor his son Charles I understood the English tradition of parliamentary liberty. Id.

29 FREDRICK SEATON SIEBERT, FREEDOM OF THE PRESS IN ENGLAND 1476–1776 121 (1952). The Star Chamber also had jurisdiction in cases involving breaches of the peace, breaches of proclamations and regulation of trade. Id.

88 punish political opponents for writings that were critical of him.30 Historian Fredrick

Siebert has blamed this abuse of power as part of the reason for the abolition of the chamber in 1641 and Charles I’s ultimate downfall.31

King Charles I came into conflict with Parliament when he tried to rule without summoning it for 11 years.32 When he ran out of money Charles I summoned parliament in 1640.33 The angry parliament refused him money,34 and dissolved the Court of the Star

Chamber in 1641.35 Additionally, it was declared in 1641 that the Privy Council had no authority to determine disputes over the property of English subjects and this was the purview of the ordinary courts of justice.36 Ultimately the country split between supporters of the king and supporters of Parliament and, in 1645, Oliver Cromwell won the decisive Battle of Naseby and, along with the army, emerged as the protectorate of

England.37 Shortly after Cromwell’s death in 1658, Charles II, the son of Charles I, was restored to the throne.38

30 Id. at 122–123.

31 Id. at 125.

32 Id. at 14. See also JAMES I, CHARLES I AND THE DESCENT INTO CIVIL WAR, THE KING EXECUTED, CROMWELL RULES, http://www.great-britain.co.uk/history/cromwell.htm (last visited May 25, 2006).

33 JAMES I, CHARLES I AND THE DESCENT INTO CIVIL WAR, THE KING EXECUTED, CROMWELL RULES, http://www.great-britain.co.uk/history/cromwell.htm (last visited May 25, 2006).

34 Id.

35 JENNINGS, supra at 14. See also RADCLIFFE AND CROSS, supra at 107.

36 RADCLIFFE AND CROSS, supra at 108.

37 JAMES I, CHARLES I AND THE DESCENT INTO CIVIL WAR, THE KING EXECUTED, CROMWELL RULES, http://www.great-britain.co.uk/history/cromwell.htm, supra. Cromwell dissolved parliament with the words "Depart I say, and let us have done with you. In the name of God, go!" It was the start of England's only period of dictatorship. Cromwell was unable to find anything to replace the monarchy.

38 Id. When Cromwell died in 1658 his son Richard succeeded him, but "Tumbledown Dick" was not a man to rule Britain, and in 1660 Charles II, the son of Charles I, was restored to the throne.

In 1688, James II, the second son of Charles I, was deposed in a conspiracy between parliamentarians and Dutch stadtholder William III of Orange-Nassau (William of Orange).39 In 1689, James II fled and Parliament, declaring his flight to be an abdication of the throne, offered William and Mary the throne as joint rulers.40 On

February 13, 1689, Mary II and William III jointly acceded to the throne of England.41

Although Parliament had given them the throne, the monarchs continued to control the administration of the country.42 Nonetheless, the 1689 Bill of Rights asserted the supremacy of Parliament.43

The result of the destruction of the Star Chamber and of the council was that superior courts, such as the King’s Bench, were no longer formally controlled except through Parliament.44 Still royal servants and members of council, the judges continued to be summoned to meetings of the House of Lords. The role of the judiciary has become less important and, today, they only appear when asked to give a legal opinion, according to British constitutional scholar W. Ivor Jennings.45 Previously, as servants of the king, judges could be dismissed at his pleasure.46 This meant the king could dismiss judges

39 Glorious Revolution, WIKIPEDIA, http://en.wikipedia.org/wiki/Glorious_Revolution (last visited May 25, 2006).

40 Id.

41 Id.

42 JENNINGS, supra at 16.

43 Id.

44 Id. at 14.

45 Id. at 15.

46 Id.

90 whose decisions he disagreed with.47 The 1701 Settlement Act allowed judges to hold their commissions “during good behavior” but indicated that they could be dismissed on the agreement of both houses of Parliament.48 The statute was supposed to ensure the independence of the judiciary from parliamentary or executive control.49

The British system of government today is premised on the doctrine of the separation of powers which is based on the existence of three powers as discussed by the

French philosopher Baron de Montesquieu.50 These are the legislative power, to make laws; the executive power, for administration and external relations; and the judicial power, to settle disputes.51 The monarchy is the titular head of state in the United

Kingdom and, theoretically, Queen Elizabeth II is the source of executive, judicial and legislative power.52 However, since the 1689 Bill of Rights was passed establishing the sovereignty of Parliament in England, sovereignty in the United Kingdom no longer rests with the monarch. The monarch appoints a prime minister who is the member of the

House of Commons with the largest support of the House or who has the largest vote in

47 Id. James I dismissed Sir Edward Coke, chief justice of the King’s Bench.

48 Id. at 15. The lower courts soon also benefited from this law that ensured the independence of the judiciary.

49 Id.

50 nd Id. at 21, quoting from MONTESQUIEU, L’ESPRIT DES LOIS, BOOK XI, CH. VI 219 (2 ed, 1749, Vol. I). Baron de Montesquieu, Charles-Louise de Secondat, STANFORD ENCYCLOPEDIA OF PHILOSOPHY, http://plato.stanford.edu/entries/montesquieu/ (last visited May 26, 2006). Montesquieu (1689–1755), a great political philosopher during the Enlightenment designed “a naturalistic account of the various forms of government” and their good and bad points. He argued that the best way to prevent despotism was through a system in which different bodies exercised legislative, executive, and judicial power, and in which all those bodies were bound by the rule of law, according to the Encyclopedia.

51 Id.

52 Politics in the United Kingdom, WIKIPEDIA, http://en.wikipedia.org/wiki/British_Government#Monarchy (last visited May 25, 2006).

91 the Election.53 The prime minister then selects the other ministers that make up the executive arm of the government.54 Parliament, the legislative body in England, consists of the House of Lords and House of Commons.55 The House of Commons, which consists of popularly elected members, can propose legislation. The House of Lords, which consists of appointed members, only has the power to debate the legislation and delay its passage for up to one year.56

The third arm of the United Kingdom government is the judiciary which will be discussed in part II of this chapter.

2.3 Court System in England and Wales

Before proceeding with this chapter it is important to outline the court system in

England and Wales to allow an understanding of how the appeal system functions in

England.57 Three major courts exist in England for civil matters: The House of Lords, the

Court of Appeal and the High Court of Justice (see figure 2-1 below).

The Supreme Court of Judicature of England and Wales, consisting of the Court of

Appeal, the High Court of Justice and Crown Court, is the most important superior court in England and Wales.58

53 Id.

54 Id.

55 Id.

56 Id.

57 The United Kingdom does not have a single court system but England and Wales share the same court system and Scotland and Northern Ireland have separate court systems.

58 R.J. WALKER, supra at 160–161. The Supreme Court of Judicature was created during a complete reorganization of the English court system effected by the Supreme Court of Judicature Acts 1873–1875. Id.

The Crown Court has original and appellate jurisdiction over all criminal matters in

England and Wales.59 The High Court of Justice has original and appellate jurisdiction

over all civil matters.60 The High Court of Justice consists of the Queen’s Bench

Division,61 the Chancery Division62 and the Family Division.63 The Queen’s Bench

Division has original jurisdiction over actions in contract and tort and is the relevant court

for libel actions (see figure 2-1 below).64 Until 2005 the head of the Queen’s Bench

Division was the Lord Chief Justice.65 Decisions in the Queen’s Bench Division can be appealed to the Court of Appeal (see figure 2-1 below).66

The Court of Appeal is divided into civil and criminal jurisdictions.67 The Master

of the Rolls (M.R.) presides over the civil jurisdiction while the Lord Chief Justice

(L.C.J.) presides over the criminal jurisdiction.68 The other justices are known as Lord

Justices of Appeal (L.J.). It is important to note that in England, though the Judicial

59 R.J. WALKER, supra at 173. The Crown Court was created by the Courts Act, 1971. Id. at 168. The United Kingdom does not have a single court system but England and Wales share the same court system and Scotland and Northern Ireland have separate court systems.

60 Id. at 163. The High Court of Justice was created under the Judicature Acts.

61 Id. at 166. Known as the King’s Bench Division when the Monarch of England is a male.

62 Id. at 165.

63 Id. at 168.

64 Id. at 166. The Chancery Division has original jurisdiction in administration of estates, the execution of trusts, redemption of foreclosures on mortgages. Id. at 165. The Family Division has jurisdiction in all defended matrimonial cases, proceedings for dissolution of marriage and presumption of death and over wardship, adoption, custody of children. Id. at 168.

65 Id. at 167. The 2005 Constitutional Reform Act created the post of President of the Queen’s Bench Division to leave the Lord Chief Justice free to head the Supreme Court.

66 Id. at 352. This right is derived from the Judicature Acts, but does not exist at common law. See Darlow v. Shuttleworth, [1902] 1 K.B. 721.

67 WALKER, supra at 161.

68 Id.

Committee of the House of Lords is the final court of appeal, the Court of Appeal is often considered the most influential court because of the volume of cases that these judges deal with. Decisions of the Court of Appeal may be appealed to the House of Lords.

In the English system, the judicial arm of the House of Lords has traditionally been the highest court of appeal.69 The judges in the House of Lords are either Lords of

Appeal or Lords of Appeal in the Ordinary.70 By convention appeals are heard by Lords of Appeal in the Ordinary, known as “The Law Lords.”71 Lords of Appeal are members who hold the position in the House under other statutes.72 Lords of Appeal in Ordinary hold the rank of Baron and have seats in the House for life and are required to be chosen from among the senior members of the judiciary.73 The senior judge in the Judicial

Committee is the Lord Chancellor (L.C.), who is also the speaker in the legislative arm of the House of Lords.74

69 See Appellate Jurisdiction Act 1876. Under this act, the House of Lords hears appeals from England and Wales as well as Scotland and Northern Ireland.

70 WALKER, supra at 158.

71 This is by convention. Id.

72 WALKER, supra at 158. See e.g. The Life Peerage Act, 1958 or the House of Lords Act, 1999.

73 WALKER, supra at 158. Under the Judicial Pension and Retirement Act, 1993, they retire from the House of Lords at the age of 70.

74 WALKER, supra at 158. See also The Constitutional Reform Act 2005, http://www.opsi.gov/uk/acts2005/50004--g.htm (last visited May 10, 2005), which provides for a Supreme Court of the United Kingdom to replace the functions of the judicial arm of the House of Lords, thereby removing the judicial function from the legislative function (see Constitutional Reform Act, Ch. 3 §23). However, none to the cases that will be discussed took place during the existence of this court.

House of Lords

Court of Appeal

High Court of Justice

Figure 2-1. The System of Appeals in the English Jurisdiction (Libel cases)

The number of law lords in the House of Lords is statutorily required to be not less than seven and not more than 11.75 An uneven number of lords generally sit in each case.76 After hearing submissions, each law lord delivers an opinion rationalizing their vote on the case. The position that gets the most votes wins. It is important to note that the House of Lords has no authority to pass judgments, but remits a case to a trial judge with recommendations, which the trial judge translates into a judgment.77 In practice, from the writer’s observation, usually five judges sit at a time.

It is important to note that the law lords that sit in the House of Lords also, for the most part, sit on the Judicial Committee of the Privy Council, the final court of appeal in

75 R.J. WALKER, supra at 159. See Appellate Jurisdiction Act 1947; Administration of Justice Act 1968, § 1(1)(a). The number may be increased by Order in Council. Id. at § 1(2).

76 R.J. WALKER, supra at 159.

77 Id.

95 the British Caribbean.78 This fact, along with the similarity between the common and statutory law in the two jurisdictions, means that decisions in the House of Lords are highly persuasive in the British Caribbean. It also means that decisions in the Privy

Council are highly persuasive in the United Kingdom.79 Where a decision from one legal jurisdiction has binding authority in another jurisdiction, it means the adjudicating court in the second jurisdiction is required to adopt the decision of the other court in a similar case. However, when the decision has only persuasive authority, the adjudicating court has the authority to reject the decision, but only after examining the decision to find out the extent to which the law correlates with the law of the land.

2.4 Provisions for Freedom of Speech in the United Kingdom

As mentioned in Chapter 1, a libel occurs where a defamatory untrue statement is published to a third person. Today in English law truth or justification,80 fair comment81 and privilege82 are all legal defenses in a libel action.83

In 1908 British constitutional law scholar Albert V. Dicey summed up the state of the law of libel in England in the words:

Our present law permits any one to say, write, and publish what he pleases; but if he make a bad use of this liberty he must be punished. If he unjustly attack an individual, the person defamed may sue for damages; if, on the other hand, the

78 See Chapter 5, 5.2.

79 R.J. WALKER, supra at 182.

80 Defamation Act 1952, § 5 [15 & 16 Geo. 6 & 1 Eliz. 2, c. 66].

81 Id. at § 6.

82 Id. at §§ 14–15.

83 See Chapter 1, 1.2 for definitions of truth, fair comment and privilege defenses.

words be written or printed, or if treason or immorality be thereby inculcated, the offender can be tried for the misdemeanor either by information or indictment.84

Under English law, Dicey wrote, a libel suit could be brought by anybody who published a defamatory statement.85 Honest belief in the truth of the libelous statement and the good intentions of the defendant would not be legal defenses for publishing a libelous statement.86 In Britain, libel laws have traditionally been punished as a crime.

Dicey noted that laws preventing libels against the government continued to exist in England in 1908.87 Thus, English law prohibited the publication of documents with “a seditious intent,” or with “the intention to bring into hatred or contempt, or to excite disaffection against the King or the government and constitution of the United Kingdom” or to “excite British subjects to attempt otherwise than by lawful means the alteration of any matter in Church or State … or promote feelings of ill will and hostility between different classes.”88 Dicey wrote that seditious libel laws protected the publication of bona fide criticisms aimed at reforming existing institutions by legal means.89

Nonetheless he was concerned that the definition could be used to prevent criticism that should be protected.90

84 ALBERT. V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 240 (MacMillan rd and Company, Ltd., London, 1960)(1885), quoting ODGERS, LIBEL AND SLANDER, INTRODUCTION 12 (3 ed., 1896)

85 DICEY, supra at 240. The writer, publisher, statement-maker an all persons involved in the libelous publication are all guilty under English law. Id.

86 Id. at 173.

87 Id. at 243.

88 Id. at 243–244.

89 Id. at 244.

90 Id.

In the twenty-first century English libel laws still allow the criminal prosecution of persons who publish libelous statements although these laws are infrequently used.91

Libel acts in Britain have evolved to reflect the case law.92

Over the years several libel statutes have been passed in the United Kingdom. The

1792 Libel Act93 provided for criminal prosecution based on an indictment in libel actions.94 The statute also provided that in libel actions it was up to the jury to determine whether or not a statement was libelous.95 The 1843 Libel Act (Lord Campbell’s Act)96 also provided for criminal libel trials and two-year imprisonment for persons found guilty of printing a libelous statement knowing it to be false.97 The statute allowed the fact that the defendant had apologized for the libelous statement to be pleaded in mitigation of damages.98 Under the law of tort, the defendant in an action may plead that he has taken certain steps to reduce or mitigate the injury caused to the plaintiff and, on the basis of this the judge may reduce the damages awarded.99 Perhaps, however, the most significant contribution to the law of libel made by Lord Campbell’s Act was that it introduced the

91 GEOFFREY ROBERTSON AND ANDREW NICOL, MEDIA LAW: THE RIGHTS OF JOURNALISTS, BROADCASTERS AND PUBLISHERS 57 (1985)(1984).

92 See e.g. the Libel Act 1792 [32 Geo. 3, c. 60] which, following the decision in the Dean of St. Asaph’s case, changed British libel statute law to provide that in libel actions the issue of whether a statement was libelous should be for the jury.

93 Libel Act 1792 [32 Geo. 3, c. 60].

94 Id.

95 Id. at § 1.

96 Libel Act 1843 [6 & 7 Vict., c. 96].

97 Id. at § 4. Under the act the term of imprisonment would be one year if the statement was printed without knowledge of falsity. Id. at § 5.

98 Id. at § 1.

99 The ‘Lectric Law Library’s Lexicon, http://www.lectlaw.com/def2/m035.htm (last visited June 1, 2006).

98 defense of truth into English libel law.100 The Law of Libel Amendment Act 1888101 provided a defense in the case of “a fair and accurate report” in a newspaper of

“proceedings, publicly heard before any court exercising judicial authority” where the statement was published contemporaneously with the hearing.102

The 1952 Defamation Act103 provided that, in the case of an unintentional libel, “an offer of amends” could be made.104 An offer of amends consists of an offer to publish or join in publishing a “suitable correction” and a “sufficient apology”105 and taking steps to notify persons to whom the publication was distributed that the story was defamatory.106

An offer of amends, if accepted, stops the libel action.107 Where the offer is not accepted, the fact of the offer can be used by the defense as evidence that the libel was published

“innocently.”108 The 1952 act also expressly removes the defense of qualified privilege where newspaper’s statement is made with malice,109 or the newspaper refused to publish a “reasonable letter or statement by way of explanation or contradiction.”110 The statute

100 Id. at § 6. See LEONARD LEVY, EMERGENCE OF A FREE PRESS 112 (1985).

101 Law of Libel Amendment Act 1888 [51 & 52 Vict. c. 64].

102 Id. at § 3.

103 Defamation Act 1952 [15 & 16 Geo. 6 & 1 Eliz. 2, c. 66].

104 Id. at § 4(3)(a).

105 Id. at § 4(3)(a). See GATLEY, ¶ 18.1.

106 Defamation Act 1952 supra at § 4(3)(b).

107 Id. at § 4(1)(a).

108 Id. at § 4(1)(a) and (b). See also GATLEY, ¶ 18.1.

109 Defamation Act 1952, supra at § 7.

110 Id. at § 7(2).

also extended the libel defenses to the broadcast media.111 The 1996 Defamation Act112 provides an exhaustive list of documents protected by qualified privilege.113

2.5 Theories of Freedom of Speech in Britain

English scholars have proposed several theories of freedom of speech.

First Amendment scholar Leonard Levy wrote that freedom of speech theories in

England emerged as early as at least the late seventeenth century. In 1670 Baruch

Spinoza,114 one philosopher, advocated the greatest freedom for people to speak their minds.115 Spinoza’s position emanated from the belief that man had a natural right to be

“master of his own thoughts.”116 He believed men had the right to speak against the state as long as the speech was not based on “fraud, anger or hatred.”117 Although conceding the sovereign power had the “right” to punish all opinions that did “not entirely coincide with its own,” for Spinoza, the proper course of action for the state was to punish only

111 Id. at § 9(3).

112 Defamation Act 1996 [1996, c. 31].

113 Id. Schedule I provides a qualified privilege for fair and accurate reports of proceedings of public legislatures, courts, public inquiries, international organizations or conferences anywhere in the world. It also provides privilege in the case of a fair and accurate copy or extract of a register left open under the law, advertisements published by courts, or under authority of a government or legislature, or for an international organization or conference anywhere in the world.

114 Baruch Spinoza (1632–1677), PHILOSOPHY PAGES, http://www.philosophypages.com/ph/spin.htm (last visited May 26, 2006). Spinoza was the son of Portuguese Jews living in exile in Holland. He was expelled from the synagogue at Amsterdam for defending heretical opinions in 1656. The Tractatus Theologico-Politicus (A Theologico-Political Treatise) (1670) “proposed modern historical-critical methods for biblical interpretation, and defended political toleration of alternative religious practices. Christians and Jews, he argued, could live peaceably together provided that they rose above the petty theological and cultural controversies that divided them.”

115 LEVY, supra at 89.

116 Id. at 90.

117 Id.

100 speech that was “politically injurious” and tantamount to sedition.118 Thus, he advocated that speech that stirred up people against their rulers, counseled civil disobedience, or taught that contracts need not be honored or that persons could believe whatever they wished were all punishable.119

In 1659 John Milton120 advocated free debate for all protestants, specifically barring Catholics and papists from participation in this freedom of debate.121 In 1673 he wrote that he believed the Catholic religion to be “idolatrous.”122 He was intolerant of any speech that was “not grounded in the Scripture.”123 Leonard Levy suggested, therefore, that contrary to popular modern-day belief, Milton’s view of freedom of speech was narrow.124 This was underlined for Levy by the fact that Milton endorsed unlicensed printing by registered printers, but reserved the law of subsequent punishment for “abuse or licentiousness of the press.”125

John Locke’s126 perspective on the need for freedom of speech was also limited. It was premised on the perception that the human mind was so frail, and limited in

118 Id. at 90–91.

119 Id. at 91.

120 John Milton, WIKIPEDIA, http://en.wikipedia.org/wiki/John_Milton (last visited May 26, 2006). The poet John Milton is best known for his epic poem “Paradise Lost.” Milton's Areopagitica and republican writings were consulted during the drafting of the Constitution of the United States of America.

121 LEVY, supra at 95.

122 Id.

123 Id. at 96.

124 Id.

125 Id. at 97.

126 John Locke, STANFORD ENCYCLOPEDIA OF PHILOSOPHY, http://plato.stanford.edu/entries/locke/ (last visited May 26, 2006). John Locke (1632–1704) was a “British philosopher, Oxford academic and medical researcher,” whose theories were popular during the Glorious Revolution in England of 1688.

101 understanding, that it was incapable of attaining truth.127 Thus, for him, all persons should be skeptical of their own opinions because they could not know whether the opinion was true. It, thus, suited mankind to be open to the opinion of other persons in order to “maintain peace and the common offices of humanity and friendship in the diversity of opinions.”128 Locke had a greater tolerance for religious thought than Milton.

While writing that the opinions of Catholics and Jews were “false and absurd,” he believed they were entitled to freedom of opinion.129 However, he believed courts should not tolerate “opinions contrary to human society or to those moral rules which are necessary to the preservation of civil society.”130 Thus, like Spinoza, Locke drew the line at seditious writings.131 While advocating freedom of religious speech, Locke made it clear that where persons used the pretext of delivering religious speech to preach sedition, they should be punished.132

Levy wrote that, despite their limited concept of freedom of speech, by modern-day standards, Locke and Milton were both “eminent defenders of civil liberties” in the context of the periods in which they wrote.133

127 LEVY, supra at 97.

128 Id.

129 Id. at 98.

130 Id.

131 Id. at 99.

132 Id.

133 Id. at 100.

102

At the turn of the eighteenth century philosopher Matthew Tindal134 advocated an unlicensed press.135 A Deist,136 he wanted freedom to express his religious ideas.

However, he also suggested that everyone had “a natural right in all matters of learning

and knowledge” to learn all sides of every subject including civil and government

matters. Thus, Levy suggests that Tindal was the first philosopher to advocate speech as a

“natural right.”137 This formed the basis for an understanding of freedom of speech as a personal right for all citizens rather than a privilege enjoyed by Parliament.138 Tindal

advocated that citizens should have the same right to freedom of speech that legislators in

the House of Commons enjoyed.139 He wrote, “[i]f the Honorable House of Commons have upon a solemn Debate thought fit to publish their proceedings to prevent being misrepresented, why should they deny those they Represent the same Liberty?”140

Nonetheless, Tindal did not declare that seditious libel laws were wrong.141

134 MATTHEW TINDAL, CHRISTIAN DEIST, http://www.onr.com/user/bejo/tindal.htm (last visited May 26, 2006). Matthew Tindal (1650?–1733) earned three degrees including a law degree from Exeter College, Oxford University. He taught at All Soul's College, Oxford, between 1678 and his death in 1733. He was also an advisor to the English government on international law.

135 LEVY, supra at 102. .

136 MATTHEW TINDAL, supra. "Deism" is a religious perspective that proposes that “all human beings at all times have known that a Creator, called ‘God,’ exists and that all human beings have known how God intends for people to live. This knowledge comes from "nature" and human "reason." "Nature" includes both human nature and the natural world around us. Human "reason" refers to our individual ability to observe and think logically about ourselves and our relationships with each other and our Creator. Deists believe that when a person lives in harmony with the design of human nature, the individual is living in obedience to the will of God which is the basis for all happiness in this life and beyond.”

137 LEVY, supra at 102.

138 Id. at 103.

139 Id.

140 Id., citing Matthew Tindal, Reasons for Restraining the Press 10 (London, 1704).

141 LEVY, supra at 103..

103

Deist leader Anthony Collins142 argued two propositions in the early eighteenth century. First, press restrictions led to cultural stagnation and, second, all men had the right to express themselves freely to discover the “meaning and validity of any proposition in history, science, philosophy, religion or other realm of knowledge.”143

Collins even defended “ridicule, jest and raillery” as speech worthy of protection.144

Nonetheless, like Milton, Collins’ concept of freedom of speech was elitist. He believed the right to freedom of speech should be solely enjoyed by scholars.145 Additionally, he believed that the expression of ideas that tended to disturb society should be punishable.146

The first British philosophers to criticize seditious libel and criminal libel laws were political journalists John Trenchard and Thomas Gordon who wrote together under the pseudonym “Cato.”147 Their writings, labeled “Cato’s Letters,” consist of 138 essays published in London newspapers between 1720 and 1723. In their essay “Of Freedom of

Speech: That the same is inseparable from Publick Liberty,” they advocated that freedom

142 Anthony Collins, STANFORD ENCYCLOPEDIA OF PHILOSOPHY, http://plato.stanford.edu/entries/collins/ (last visited May 26, 2006). Anthony Collins (1676–1729) was a wealthy English free-thinker and deist interested in the autonomy of reason in religion. His aversion to religious persecution motivated him and he wrote about religious freedom.

143 LEVY, supra at 108, citing Anthony Collins, A Discourse of Free Thinking 178 (London, 1713).

144 Id., citing Anthony Collins, A Discourse Concerning Ridicule and Irony in Writing 5, 24, 75–76 (London, 1729).

145 LEVY, supra at 103.

146 Id.

147 Id. at 109.

104 of thought was essential to wisdom and freedom of speech should be allowed to all men liberally, the right being limited only in the case of speech that caused harm to others.148

Trencham and Gordon said they believed free speech, like protection of property was an essential element in free government.149 For them, the first step in overthrowing a nation’s liberty was to subdue the rights of its citizens to free speech. Cato wrote that citizens should “speak well” of their governors generally, but where the government was involved in “publick mischief,” free speech was important to inform the people of the government’s tyranny.150 Since, for Cato, the government was the people’s trustee and bound to act in their best interest, honest administrators should recognize the importance of having their actions “openly examined and publickly scanned: Only the wicked

Governors of men dread what is said of them.”151 Thus, for Cato, when the actions of the government were good, the public should be told so they could be commended. However, when the government’s actions were “knavish and pernicious” they also had to be known publicly to facilitate their censure.152

“Freedom of speech is the great Bulwark of Liberty; they prosper and die together:

And it is the Terror of Traytors and Oppressors, and a Barrier against them,” Cato wrote.

Thus, Cato opposed licensing for the press and other laws that punished journalists.153

148 Id. at 110, quoting Of Freedom of Speech: That the same is inseparable from Publick Liberty, No. 15, th Feb. 4, 1720, in CATO’S LETTERS 1:96–103 (6 ed., 1755).

149 LEVY, supra at 110.

150 Id.

151 Id.

152 Id.

153 Id. at 111.

105

Cato also ridiculed government officials who considered all opposition and attempts “to preserve the People’s Rights” as sedition and faction.154 If men were prevented from speaking freely on all subjects he believed, it would lead to “Injustice, Tyranny and the most stupid Ignorance” as the nature of government would be no more than “a Servile

Submission to power.”155

Cato disapproved of criminal libel laws and saw them as dangerous for public liberty and good government.156 Nonetheless, Cato recognized that untrue libels against the government should be punished as an abuse of the liberty as long as the government executed English laws honestly.157 Thus, he advocated truth as a defense in libel prosecutions.158 However, Cato limited the defense of truth to libel prosecutions. He distinguished criminal libel actions from private civil actions for defamation of character on the grounds that it was a duty owed by all men to expose the wickedness of government to the public.159 Thus, he did not advocate the defense of truth in the case of private libel actions. Cato viewed libelous statements as an evil that arose out of good.

For him it was better to have “many libels escape than that the Liberty of the Press should be infringed.”160

154 th Id., citing Discourse upon Libels, No. 100, Oct. 27, 1722, in CATO’S LETTERS 3:293 (6 ed., 1755).

155 LEVY, supra at 111.

156 Id. at 112.

157 Id..

158 Id.

159 Id. at 113.

160 Id.

106

Thus, between Spinoza writing in the latter part of the seventeenth century, and

Cato during the early eighteenth century, theories were emerging that were increasingly protective of the press in England. There was also in this time period the growing sense that freedom of press and speech was not elitist but should be more widely enjoyed. By the time Cato was writing, his theory advocated greater protection for speech that was critical of the government.

2.6 English Press

The most powerful tool for suppressing speech in eighteenth century England was

prosecutions for seditious libel, according to Fredrick Siebert.161 At the end of the seventeenth century, freedom of speech was not recognized as a fundamental right. In

seditious libel cases, the jury only had control over the issues of whether the words

conveyed the meaning the prosecution gave them and whether the person prosecuted was

the publisher.162 The judge had authority to determine whether there was criminal intent and whether the language was defamatory.163 In 1792, Fox’s Libel Act was passed which provided that the jury’s role would no longer be limited to determining publication and

161 SIEBERT, supra. at 380. Three major forms of punishment for the press existed in eighteenth century England. The first was prosecutions for treason. Id. at 365. These types of prosecutions were rare. Only two printers were executed for treason in the seventeenth century and one in the eighteenth century. Id. The second was prosecutions in Parliament. The two houses of Parliament could prosecute persons for discussions of public issues that were seen as critical of members of Parliament. Id. at 368. Although the legal question of whether a certain discussion was in breach of privilege was correctly to be determined by the court, Parliament sometimes acted as judge and jury in its own cause. Id. at 369. These prosecutions were done swiftly and with little publicity. Id. A third means of punishing writers was a trial for seditious libel. Such a trial was begun by a general warrant issued, at common law, by the secretary of state. This warrant ordered the arrest of authors, printers and publishers of certain newspapers, along with the search and seizure of the papers. Id. at 375. To avoid such arrest, publishers hid through the use of anonymous pamphlets and newsletters. Id. After the start of the eighteenth century, the power of arrest in ordinary cases of felony only existed where the persons to be arrested were specifically named. Id. However, this law did not apply in the case of libel. In the 1865 case Entick v. Carrington, the Court finally held that the secretary of state had no authority to issue these general warrants in absence of a statutory power.

162 SIEBERT, supra. at 381.

163 Id. at 382.

107 innuendoes, but it would give a “general verdict” about whether or not the defendant was guilty in seditious libel matters.164 Also, the judge retained the right to give the jury directions about the law of libel as in other cases.165 Thus, the jury became the final arbiter of both law and fact.166

In 1783 the Dean of St. Asaph was charged with sedition for publishing a

“Dialogue” urging Parliamentary reform which was said to be likely to incite rebellion.167

In the case Chief Justice Lord Mansfield said, “to be free is to live under a government by law. The liberty of the press consists in printing without any previous license, subject to the consequences of the law.”168

The more enlightened view that would come to be the legal position was that of

Thomas Paine’s counsel, Lord John Erskine, who acted for him in the 1780s in a case of seditious libel for his book, The Rights of Man. Erskine said:

The Proposition which I mean to maintain as the basis of the liberty of the press, and without which it is an empty sound, is this: that every man, not intending to mislead, but seeking to enlighten others with what his own reason and conscience, however erroneously, have dictated to him as truth, may address himself to the universal reason of a whole nation, either upon the subjects of government in general, or upon that of our own particular country.169

164 See Fox’s Libel Act 1792 § 1 [32 Geo. 3, c. 60].

165 Id. at § 2.

166 SIEBERT, supra at 391.

167 Id. at 390.

168 Id. at 392.

169 Id.

108

These principles, along with freedom of speech, have been passed down in British freedom of speech law and, today, the media in the United Kingdom enjoys much wider freedom of speech.

Today, in Britain, there are approximately 130 daily and Sunday newspapers, more than 2,000 weekly newspapers and about 7,000 periodicals.170 These newspapers are free from state control or censorship. Although newspapers have no direct financial relationship with political parties, their political affiliations are easily discerned, according to Panorama, Britannia.com.171 The press industry regulates itself through the

1991 Press Complaints Commission which handles public complaints.172

In the United Kingdom, the press includes a large national newspaper sector with

14 national dailies and 15 Sunday titles.173 In the United Kingdom it is estimated that approximately 60 percent of the population read a national daily newspaper and about 70 percent read a national Sunday newspaper.174

170 The British Government: The British Media, BRITANNIA PANORAMA, http://www.britannia.com/gov/gov5/html (last visited May 27, 2006).

171 Id.

172 Id. The Commission was established on the recommendation of a government-appointed committee aimed at promoting more effective press self-regulation and to prevent intrusion into privacy.

173 The British media landscape, EUROPEAN MEDIA LANDSCAPE, http://www.ejc.nl/jr/emland/uk.html (last visited May 27, 2006). The European Media Landscape is maintained by The European Journalism Centre (EJC), which describes itself as “an independent, international, non-profit institute dedicated to the highest standards in journalism, primarily through the further training of journalists and media professionals.” EJC’s aims include the promotion of promote professional journalism in Europe and monitoring and researching challenges facing European media. Id.

174 Id. However, according to the British media landscape, the 14 million circulation of dailies and 15 million circulation of Sunday papers falls “well below” the circulation peak in the late 1950s.

109

Seven companies control the entire national press.175 The largest four enjoy 90 percent of sales, according to the British media landscape Web site.176 There are approximately 90 regional morning and evening newspapers and six regional Sunday papers and 1,300 local newspapers.177 As in the case of the national papers, ownership of regional and local newspapers is concentrated in the hands of a few corporations.178

British broadcasting has traditionally been seen as a public service accountable to the people through Parliament.179 The B.B.C. is the largest broadcaster in the United

Kingdom with two national television channels and 5 national radio stations.180 The

B.B.C. is a public service broadcaster, but unlike public broadcasters in the United States that simply broadcast programs that commercial broadcasters will not broadcast, the

B.B.C. produces and airs several commercial programs.181 The B.B.C. is funded by a system of universal licensing, which is required to operate a broadcast television receiver

175 Id.

176 Id. The largest four are News International, Trinity Mirror, Northern and Shell and Daily Mail and General Trust.

177 Id. Additionally, the five largest newspapers command between 2–4 million in circulations, while the lower selling titles sell between 44,500 and 88,000, indicating huge differentials in the national market.

178 Id.

179 The British Government: The British Media, BRITANNIA PANORAMA, http://www.britannia.com/gov/gov5/html , supra.

180 The British media landscape, EUROPEAN MEDIA LANDSCAPE, http://www.ejc.nl/jr/emland/uk.html, supra.

181 B.B.C., WIKIPEDIA, http://en.wikipedia.org/wiki/BBC (last visited May 27, 2006). Many of its programs are sold to foreign television markets.

110 in the United Kingdom.182 However, since the B.B.C. is not state run and is neither influenced by politics nor commerce it is believed to be impartial.183

B.B.C. controlled almost 40 percent of the television audience in the United

Kingdom in the year between 2000 and 2001.184 The major competitors of the B.B.C. are

Independent Television (I.T.V.) and Channel 4. I.T.V. consists of “15 regionally based franchises that provide local and national (network) services.”185 Twelve of I.T.V.’s franchises are owned by two companies, Carlton and Granada.186 I.T.V. controlled a little less than 29 percent of the television audience between 2000 and 2001. Channel 4 captured more than 10 percent of the audience in the year 2000 to 2001.

Since the passage of the 1990 Broadcasting Act the industry has embraced greater competition.187 Today there are three public bodies responsible for television and radio throughout Britain. The first, the British Broadcasting Corporation (B.B.C.), broadcasts television and radio; the second, the Independent Television Commission (I.T.C.)

182 Id. The license fee is set by the Secretary of State for Culture, Media and Sport and is currently £11 per month. Although the license fee is criminally enforced, the BBC receives the revenue collected from the license fee privately.

183 Id. The BBC has often been accused of bias by both major political parties. During the Gulf War the United Kingdom government accused the BBC of being “overly sympathetic to the view of the enemy.” Thus, the BBC earned the nickname “Baghdad Broadcasting Corporation.” The BBC has also been criticized by persons who oppose the war of not publishing their side.

184 The British media landscape, EUROPEAN MEDIA LANDSCAPE, http://www.ejc.nl/jr/emland/uk.html, supra.Id. Between 2000–2001 B.B.C. had 26.8 percent and B.B.C. 2 had 11 percent. B.B.C. claims to reach 94 percent of the United Kingdom population.

185 Id.

186 Id.

187 Id.

111 licenses and regulates non-B.B.C. television including cable and satellites; the Radio

Authority licenses and regulates all non-B.B.C. radio.188

The government has no control over the day-to-day content or the conduct of the broadcasting sector and broadcasters can air anything that doesn’t “offend good taste.”189

Approximately 1/5 of the most popular television programs are made by independent producers. Channel 4, which does not produce programs, carries programs from about

1,500 independent producers. Since the 1990s B.B.C. and I.T.V. have been required to buy 25 percent of their programming from independent producers.190

The government encourages large media conglomerates.191 Thus, there has been an increasing tendency to “privatize” national media events such as sporting events, which, instead of being broadcast free by B.B.C. or I.T.V., are now sold to satellite, cable and digital services.192

In a 2005 survey conducted by Freedom House, the United Kingdom was rated as having free media.193 The survey rated the countries on three criteria: legal environment, political influences and economic pressures, with the maximum attainable points being respectively 30, 40 and 30.194 The larger the total rating, the less free the country is and,

188 Id.

189 Id.

190 Id.

191 Id. The Labor Party which has constituted government since 1997 has continued to pursue similar media policies to that pursued by the Conservative government in the 18 years prior to its ascendancy. Id.

192 Id.

193 See Table of Global Press Freedom Rankings 2005, FREEDOM HOUSE, http://www.freedomhouse.org/template.cfm?page=204&year=2005 (last visited April 7, 2005).

194 See Methodology, FREEDOM HOUSE, http://www.freedomhouse.org/template.cfm?page=56&year=2003 (last visited April 7, 2005).

112 under Freedom House’s rankings, a country with a rating of between 1–30 in all categories combined is considered to have a free media; a rating of 31–60 is a partly free media; and 61 and more would be media that are not free, according to the study.195 The

United Kingdom received a total score of 18.

The United Kingdom was given a rating of five points for its legal protection of freedom of speech.196 According to the Freedom House report for the United Kingdom, there is a legal provision for freedom of the press which the government generally respects. However, the report criticizes legislation passed in the 1980s that forces journalists to give evidence in cases where the police prove that the journalist’s evidence is central to their case.197 Freedom House gives the United Kingdom seven points for political influences, noting the independence of the media from government interference and the position of the BBC as one of the world’s leading public broadcasters.198 There was concern, however, that reforms in the BBC could compromise the current legal position in England which allows source confidentiality.199 In terms of economic pressures on the press, according to the report, the ranking of six is based on the fact that regional and local newspaper sectors in the United Kingdom are very concentrated, cable

195 Id.

196 See Freedom of the Press—United Kingdom (2005), FREEDOM HOUSE, http://www.freedomhouse.org/inc/content/pubs/pfs/inc_country_detail.cfm?country=6857 (last visited May 25, 2006).

197 Id. This allowed the government to “arrest, briefly detain and search the offices” of a journalist and his wife, for a transcript of taped discussions between the prime minister’s chief of staff and senior officials from Northern Ireland.

198 Id. However, the B.B.C. came under government attack in 2004 when the airing of a controversial report led to the suicide of a civil servant named in the report. The death was followed by a public inquiry and the resignation of the director general of the B.B.C. and the chairman of its board of governors. Id.

199 Id.

113 was dominated by two companies and the 2003 Communications Act had removed restrictions on media ownership.200

2.7 Early Cases: Nineteenth Century to 1919

A discussion of the United Kingdom cases on libel between the early nineteenth century and present will provide a context for the development of the law of libel in the

United Kingdom and set the groundwork to understand its later application in the

Caribbean. This section discusses the libel law cases between the early nineteenth century and the 1920s. It is important to bear in mind the fact that the defenses of privilege and fair comment, which are the major defenses available to defendants in libel actions in the

United Kingdom, are not limited to cases involving public persons. Thus, some of the cases discussed in the last sections of this chapter may not involve public persons specifically but are included in order to allow an understanding of the basis of the defense of privilege and, at times, fair comment in British law.

At the start of the nineteenth century truth was a common law defense in the

English courts to libel actions. By 1843 the fact that a statement was made without

“actual malice” or “gross negligence” and that an apology was published at the earliest opportunity thereafter would be taken into account in mitigating the damages awarded to the plaintiff.201 By 1888 the defense of providing a fair account of public proceedings was available to newspaper defendants in libel actions so long as the account was not libelous.202 The 1888 statute retained the possibility of criminal prosecutions only in

200 Id.

201 Libel Act 1843 [6 & 7 Vict. C. 96].

202 Law of Libel Amendment Act 1888 § 3 [51 & 52 Vict., c. 64].

114 cases where it was sanctioned by a judge in chambers.203 Additionally, under the English common law of libel, a statement made by a person with a duty to make the statement to another person with an interest in receiving the statement was privileged in a libel action.

In 1834 the Court of Exchequer, an appeal court, held that a statement made in good faith in a situation where the communicator had an interest in communicating and the receiver had an interest in receiving the information was privileged. This was so notwithstanding the fact that another disinterested person also was present and heard the statement. In the 1834 decision, Toogood v. Spyring,204 Spyring205 was a tenant in a farmhouse that required repairs.206 The landlord’s agent, James Brinsdon, engaged

Toogood, a carpenter, to make the repairs.207 Thereafter, Spyring, in the presence of one

Richard Taylor, accused Toogood of breaking open his cellar, getting drunk and spoiling the job he was doing.208 On another occasion, outside of Toogood’s presence, Spyring again repeated the allegation to Taylor.209 Later that day, Spyring, in Toogood’s presence, made the same complaint to Brinsdon, the landlord’s agent.210

203 Id.

204 (1834) 149 Eng. Rep. 1044.

205 It was not possible within the resources available to me to find the all of the first names of justices and litigants in the English cases. The first names were frequently not reported in the opinions themselves.

206 Toogood v. Spyring, supra at 1044..

207 Id. at 1045.

208 Id.

209 Id. at 1046.

210 Id.

115

As a result of these communications, Brinsdon refused to employ Toogood until his character was cleared.211 In an action for libel, the trial court held that all three statements made by Spyring were libelous because they were said in the presence of Taylor who had no interest in hearing the words. On appeal, the Court of Exchequer held that the communications to Brinsdon and Taylor in Toogood’s presence were both privileged.

However, the communication made outside of Toogood’s presence, was not privileged.212 Sir James Parke, baron of the Exchequer, speaking on behalf of the court provided a classic description of the circumstances in which privilege would attach to a statement. He said:

In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defense depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.213

Thus, where there is a public or private duty to make a communication or the communicator has an interest in receiving this communication, the communication will be protected by privilege. The privilege would be defeated, however, on a finding that the communicator was actuated by malice.

211 Id.

212 Id. at 1049.

213 Id. at 1049–50.

116

The judge noted that the privilege generally would be applied to situations where there was a master-servant relationship notwithstanding the fact that, in some situations, it might be made in the presence of a disinterested person. He said:

[B]ut one of the most ordinary and common instances in which the principle has been applied in practice is that of a former master giving the character of a discharged servant; and I am not aware that it was ever deemed essential to the protection of such a communication that it should be made to some person interested in the inquiry, alone, and not in the presence of a third person. If made with honesty of purpose to a party who has any interest in the inquiry . . . the simple fact that there has been some casual bystander cannot alter the nature of the transaction.214

Similarly, in the 1855 decision, Harrison v. Bush,215 the Court of Exchequer held that privilege extended to cases where citizens reported the wrong doings of public officials to the authority or person in authority who could redress the bad conduct of the citizen. Dr. Thomas Sunderland Harrison was a justice of the peace for the county of

Somerset who presided in petty sessions court216 in the borough of Frome. An election was held for a member to represent Frome in Parliament.217 The election was characterized by mob activity and rioting, according to the court opinion. Edwin Bush, an elector and resident of the borough, prepared and sent a letter to the secretary of state’s office alleging that Harrison had incited the riot, sent a bludgeon-armed man into the

214 Id. at 1050

215 (1855) 119 E.R. 509.

216 ENGLISH HERITAGE ONLINE THESAURUS, http://thesaurus.english- heritage.org.uk/thesaurus_term.asp?thes_no=1&term_no=135318 (last visited June 6, 2006). A petty session court is a court of summary jurisdiction. It is presided over by Justices of the peace rather than judges with legal training. It was renamed Magistrates Court in 1949. Id. See ONLINE ENCYCLOPEDIA, http://encyclopedia.jrank.org/STE_SUS/SUMMARY_JURISDICTION.html (last visited June 6, 2006). Summary jurisdiction is a court where judges sits without a jury. Id.

217 Harrison, supra. at 511.

117 streets to strike indiscriminately, and had also struck and kicked several people.218 The letter ended with a plea for the incident to be investigated and, if found to be true, that

Harrison’s removal from office be recommended.219

Harrison brought an action for libel. The jury in the trial court, finding the statement was untrue, nonetheless held that Bush’s statement was protected by privilege.220 On appeal before the Court of Exchequer, the court reviewed the principles that would determine whether the statement was protected by privilege. Lord Chief

Justice John Campbell adopted the legal principle proposed by Harrison’s counsel that “a communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty.”221 This privilege protected the communicator, Campbell said, even in cases where the communication included incriminating or accusatory information that would normally be slanderous and actionable.222

Campbell held that Bush had an interest and duty to communicate the information, since if Harrison, in his public role, had been guilty of fomenting instead of repelling the riots, witnesses had a duty to ensure that his behavior was punished.223 Campbell noted

218 Id.

219 Id.

220 Id.

221 Id. at 512.

222 Id. at 512.

223 Id. at 512.

118 that witnesses could have sought criminal prosecution against him, or, as Bush had done, used lawful means to have him removed from office. He said:

“In this land of law and liberty, all who are aggrieved may seek redress; and the alleged misconduct of any who are clothed with public authority may be brought to the notice of those who have the power and duty to inquire into it, and to take steps which may prevent the repetition of it.”224

Campbell said that the fact that the complaint had mistakenly been sent to the secretary of state, rather than the Lord Chancellor who had the authority to request the magistrates’ removal, did not negate the privilege that attached to the statement.225

However, approximately 20 years later, the Court of Appeal held in 1877 in Purcell v. Sowler226 that privilege would not apply to communications relating to an ongoing investigation. In Purcell, at proceedings before a meeting of a board of guardians for the

Altrincham poor-law union,227 Purcell, the medical officer at the union workhouse at

Knutsford, was charged with neglecting his pauper patients.228 A Manchester newspaper published the report of the meeting, and once the charges against him were shown to be false, Purcell brought a libel action against Sowler and other newspaper proprietors.229

224 Id.

225 Id.

226 (1877) 2 C.P.D. 215.

227 Poor Law, WIKIPEDIA, http://en.wikipedia.org/wiki/Workhouse (last visited June 1, 2006). The poor law was a system used to provide social security for poor people in the United Kingdom between the sixteenth century and the establishment of the Welfare state in the twentieth century when it was abolished. The Poor law consisted of many acts and amendments of Parliament. In 1832 a law was passed establishing a National Poor Law Board to oversee the operation. At the same time small parishes were united to form Poor Law Unions, which were jointly responsible for the administration and funding of the Poor Law in their area. The unions were run by Boards of Guardians, comprised partly of elected ratepayers, and partly of magistrates. Charles Dickens documents the shortcomings of the system and the abuses by its administrators in Oliver Twist.

228 Id.

229 Id.

119

The Court of Appeal affirmed the lower court’s judgment in favor of Purcell.230

Chief Justice Sir Alexander Cockburn wrote for the court that, although the administration of poor law was a matter of public interest,231 a preliminary inquiry that should be carried out behind closed doors was not the proper subject of a report.232 The court said that there was no authority for the position that because the board of guardians had not exercised its right to close what should have been a private inquiry to the public, that whatever happened in the inquiry was “open to publication.”233 Thus, where a reporter was admitted into a private inquiry, the editor or publisher had a duty to exercise his discretion and not publish libelous information. The judge said that during the proceedings for the poor-law union the maker of the libelous statement was protected by privilege but the publisher would not be protected by privilege.234

In a 1917 decision, Adam v. Ward,235 the House of Lords held that the publication of charges in the press would be privileged where they were made in self defense. In

Adam, Major Adam had been an officer in the 5th Lancers at Aldershot under the command of Colonel Graham in 1906. Graham wrote a negative report about Adam and submitted it to Major General Scobell, who added his own remarks and sent it to General

Sir John French, the general commanding-in-chief officer at Aldershot.236 As a result of

230 Id. at 217.

231 Id. at 218.

232 Id. at 220.

233 Id.

234 Id. .

235 [1917] A.C. 309.

236 Id. at 310.

120 these communications, in December 1906 Adam was found to be unsuitable as a cavalry leader in the field and asked to resign.237

When he was asked to leave in 1906, Adam asked for a period of grace before submitting his papers so he could find alternate employment. Scobell used his influence to get him a post in the office of the Chief of the General Staff where he remained until

1910.238 In October 1907, Adam and other persons in his position were placed on half-pay.239 Two years later Adam asked that the circumstances under which he was placed on half-pay be reconsidered. The Army Council replied by letter that after careful consideration the council “saw no reason to reopen the question.”240

In January 1910, Adam was elected to the House of Commons.241 In a speech to the

House, he referred to the case of Captain Bryce-Wilson, who, like himself, had been placed on half-pay. In an address to the House, Adam accused Major General Scobell, who had helped him get his post at the office of the Chief of General Staff, of passing on a negative and erroneous confidential report about Wilson to superior authorities without revealing its contents to Wilson and, thereby, causing Wilson’s dismissal.242

237 Id. at 310–11.

238 Id. at 311.

239 Id. They all received a communiqué to the effect that the action was not to be seen as detrimental and, though unsuitable for service in the 5th Lancers, their services were being utilized in other appointments.

240 Id.

241 Id. He represented Woolwich.

242 Id. Adam charged that Scobell had given a confidential report about an officer or officers under his command, which included “willful [sic] and deliberate misstatements of fact,” and caused the superior officers to fire persons in the regiment. His charge continued with the hope that Major-General Scobell would

appreciate the meaning of the words ‘wilful [sic] and deliberate misstatements of facts.’ I have tried to make it clear, and I hope he will turn up that paragraph in the King’s Regulations which compels an

121

Subsequently an inquiry was made into the matter by Sir E. Ward, secretary to the

Army Council and he issued a letter to Scobell which, on the orders of the Army Council, was made available to the media. In the letter, Ward wrote that after a thorough investigation of Scobell’s report at the time when some officers were removed from the

5th Lancers he found that Scobell had not acted in a biased manner.243

Ward noted in his letter that Adam was one of the people removed from the 5th

Lancers. Ward wrote that the Army Council was,

satisfied that not only did [Scobell’s] reports contain the unbiased and conscientious opinion [Scobell] had formed on the officers in question, but that the conclusions at which [he] arrived were correct, as they were afterwards borne out not only by the opinion of [Scobell’s] successor in command at the 1st Cavalry Brigade, but also by a special report on the 5th Lancers made by H.R.H. the then Inspector General of the Forces, and confirmed by the General Officer then Commanding-in-Chief the Aldershot Command.244

The letter continued,

Further, as showing the absence of hostile bias, the Army Council note that in the case of Major Adam, who in 1906 was called upon to retire from the service in consequence of adverse reports, which were duly communicated to him, [Scobell] intervened on his behalf and urged the Council to give him another chance in an extra regimental appointment. I am to add that the Council are of the opinion that the charge brought against you by Major Adam is without foundation.245

An action brought by Adam against Ward, the secretary of the army council who had written the letter and distributed it to the media, led to a jury award of £2,000 for

Adam. The jury found that, though Ward was required to make the statement in his

army officer in a case like this to refer the matter to his superior authority, the superior authority in this case being the Army Council. I hope sincerely that the Army Council will see that justice is done to Captain Wilson and that penalties are meted out to those officers who deserve it. Id. at 311–312.

243 Id. at 312.

244 Id. at 312.

245 Id. at 312–313.

122 capacity as secretary, the subject matter did not require the publication of the facts to the general public.246 The Court of Appeal, however, reversed the lower court’s decision, holding that the occasion was privileged and there was no evidence of malice.247

In separate concurrences all five of the lords in the House unanimously upheld the

Court of Appeal’s decision. After reviewing the authorities, Lord John Atkinson expressed the position of the court:

[A] person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.248

Noting that Ward was a “mere agent of the Army Council, bound to obey their orders or resign his post—the mere instrument through whose hands the libel passed to publication,” Atkinson found that he had not acted in malice.249 As an agent, he could not be held responsible for the libel.250

In relation to the charges made by Adam in the House, he noted that the public should have been informed of the full circumstances and the fact that Adam was not a disinterested champion for Wilson, but was “grinding his own axe.”251 Thus, Atkinson

246 Id. at 313–314.

247 Id.

248 Id.. at 339. See Henwood v. Harrison, (1872) L.R. 7 CP 606, 628; Wright v. Woodgate, (1835) 2 C.M. & R 573, 577; Jenoure v. Delmege, [1891] A.C. 73, 79; Clark v. Molyneaux, [1877] 3 Q.B.D. 237, 249; Stuart v. Bell, [1891] 2 Q.B. 341, 349; Spill v. Maule, (1869) L.R. 4 Ex. 232, 236.

249 Adam, supra at 340.

250 Id. at 341.

251 Id. at 342.

123 noted, this was the reason why the letter had stated that Adam, himself, had been discharged from office. All of this information included in the published letter was

“pertinent and relevant to the central facts” that when Adam had been asked to substantiate the charges he had made against Scobell, he had failed to do this. On the other hand in its investigation, the Army Council had found the charges were untrue.

“Nothing could tend more to show the public that the charges were untrue and that the exculpation of General Scobell was right,” Atkinson said.252

Finally, Lord Atkinson dismissed the argument that the publication of the libel was not privileged because it was disseminated to a larger audience than had a corresponding duty or interest in receiving the information.253 He noted that because of the important role of the army, the communication was of interest to all British subjects.254 In light of the weighty charge against Scobell published in the Parliament’s Hansard, the Justice said the Army Council would have failed in its duty to him if they had not published his vindication as widely as possible.255 Hansard is the official full transcript of proceedings

252 Id.

253 Id. at 343.

254 Id. Lord Atkinson said:

every subject of the Crown, whatever portion of our far flung Empire he may inhabit, has, and must have, an interest in the British Army, its courage, the confidence of its men in their officers, its discipline and efficiency, for this amongst other reasons, that he never can be sure whether the day may not come when the lives of himself and his family, the safety of his property or his liberty may not depend on its success in the field against the Empire’s enemies, or the efficiency of its aid of the civil power in suppressing tumult and crime in the locality where he lives. The efficiency and discipline of troops must depend on the character, training, and acquirements of the officers who lead them. It would be a disgrace and injury to the Service if a man, publicly accused of the shameful breach of duty of which General Scobell was accused was allowed to continue in command of a brigade in the Army unless and until he had been cleared of he accusation made against him. Every subject, therefore, who had an interest in the Army had an interest in being by a public communication informed of General Scobell’s acquittal. Id.

255 Id.

124 in both houses of Parliament reported verbatim with the exception of obvious mistakes and, thus, all statements made by members of either house are automatically published in

Hansard.256

Atkinson said,

where a man, through the medium of Hansard’s reports of the proceedings of Parliament, publishes to the world vile slanders of a civil, naval or military servant of the Crown in relation to the discharge by that servant of the duties of his office he selects the world as his audience, and that it is the duty of the heads of the service to which the servant belongs, if on investigation they find the imputation against him groundless, to publish his vindication to the same audience to which his traducer has addressed himself.257

The House of Lords upheld the Court of Appeal’s decision that the occasion was privileged and there was no malice on Ward’s part.258

Lord Andrew Graham Murray, Viscount of Dunedin, in his concurrence, outlined the circumstances in which privilege would be defeated. He distinguished between the presumption of malice in libel actions and express malice which could defeat privilege. In the English law of libel a false defamatory statement is presumed to have been made with malice and there is no need to prove that the statement was made with malice. However, where the statement was protected by the defense of privilege, the malice would be destroyed, Dunedin said. 259 However, where the plaintiff in an action proved that the defamatory statement was “unconnected with and irrelevant to the main statement” that

256 Hansard, THE UNITED KINGDOM PARLIAMENT, http://www.parliament.uk/hansard/hansard.cfm (last visited June 6, 2006).

257 Adam v. Ward, supra at 343.

258 Id. at 344.

259 Id. at 326.

125 was protected by the privilege, Dunedin said, the court would find that the statement was made with express malice which would defeat the privilege.260

However, where the whole statement related “to the privileged occasion,” the statement would be privileged and the judge would then look at whether the defamatory words were capable of providing evidence of express malice based on their own nature,

Dunedin said.261 The question of whether the words were capable of providing evidence of malice was for the judge, and if he determined they were not, the jury would not be involved. However, if the judge believed the words were capable of providing evidence of malice, the jury had the duty to determine whether the words were, in fact, evidence of express malice.262

Thus, the English Court cases covered between the late nineteenth Century and early twentieth Century established that a privileged statement which was a defense in a libel suit was one made where the maker had a duty to relate the message and the receiver had an interest in receiving the message.263 However, the court held that this privilege meant that persons aggrieved were entitled to go to the body or person that could address their grievance without being liable in a libel action, if in the process, they publish a defamatory remark about someone else.264 Where a publisher published libelous

260 Id. at 327. In the event that express malice was found, the correct formulation, Dunedin said, was that “privilege (did) not extend” to the statement rather than to say, “that the defamatory statement is evidence of malice.” Id.

261 Id. at 329.

262 Id.

263 Toogood v. Spyring, supra and Harrison v. Bush, supra.

264 Harrison v. Bush, supra.

126 information from a private inquiry it was not protected by privilege.265 Finally, the courts have held that a libelous statement is presumed to be made with malice, but this presumption of malice would be rebutted on an occasion where a statement was privileged.266 However, privilege would be defeated where the plaintiff in a libel action proves that the defamatory statement was incidental and not an important part of the statement protected by the privilege.267 The court also held that the question of whether a statement was covered by privilege was for the jury to determine.

2.8 The 1920s to the 1960s

The 1952 Defamation Act provided for a settlement in a libel action where the defamatory statement was made unintentionally or innocently, and the defendant to the action made an offer of amends.268 The statute also included the common law defenses of justification or truth,269 fair comment,270 and qualified privilege.271 It extended the defenses for publication of “contemporary reports of proceedings before courts”272 and for printing abstracts of parliamentary papers273 to the broadcast media.

265 Sowler v. Purcell, supra.

266 Adam v. Ward, supra.

267 Id.

268 Defamation Act 1952 § 4 [15 & 16 & 1 Eliz. 2, c. 66]

269 Id. at § 5. See Chapter 1, 1.2 for a discussion of the defense of justification (truth).

270 Defamation Act 1952, supra at § 6. See Chapter 1, 1.2 for a discussion of the defense of fair comment.

271 Defamation Act 1952, supra at § 7. See Chapter 1, 1.2 for a discussion of the defense of qualified privilege.

272 Defamation Act 1952, supra at § 8.

273 Id. at § 9.

127

In 1930, the Court of Appeal held that, although privilege would often be a defense in libel actions where the communicator had a duty to communicate and the recipient an interest in receiving information, the fact that a person to whom information is communicated had an interest in the communication would not, of itself, make the communication privileged. In Watt v. Longsdon,274 Watt was the managing director of a branch of the Scottish Petroleum Co. in Casa Blanca, Morocco.275 The company had several branches around the world. Longsdon, a director of the company in England, was a friend of Watt and his wife.276 When the company went into liquidation in 1927,

Longsdon was appointed as liquidator.277

On April 30 1928, while Watt was in Morocco and his wife was in England, E.A.

Browne, the manager of the company in Morocco wrote to Longsdon that Watt had left

Casa Blanca for Lisbon, still owing money to merchants and he doubted “very much if these people will ever get paid.”278 He also wrote several words impugning Watt’s fidelity to his own wife, accusing him of sleeping with the housemaid. This information was based on what the housemaid and the cook had told Browne and his wife and evidence provided by them.279 Browne also wrote that the servants had accused Watt of

274 [1930] K.B. 130.

275 Id. at 131.

276 Id.

277 Id.

278 Id.

279 Id. at 131–132. He wrote,

[E]ver since Mr. Watt’s liquidation was going on, we had noticed that the housemaid’s attitude had completely changed and she was being very familiar with him. I put this down to cheek on the part of a person of that class. . . . Judge of our surprise when she replied that she had been Mr. Watt’s mistress for over two months and after all his promises to her she thought herself quite justified in

128 entertaining “dancing girls”280 and having designs on Browne’s wife.281 Expressing concern for Mrs. Watt,282 Browne suggested in a footnote that it would be best for

Longsdon not to tell her but to advise W.M.G. Singer, the chairman of the board of directors of the company they all worked at.283

On May 5 Longsdon sent the letter to Singer. Longsdon, in a letter to Browne,

communicated his concern for Mrs. Watt and his desire to let her know the truth as his

friend and asked him to provide a sworn statement from his informants.284

demanding sufficient money to keep her until she could find another job. Of course I asked her for details as it seemed too amazing to be true, especially as she is an old woman, stone deaf, almost blind, with dyed hair!!! She was however able to give me a mass of details which left not the slightest doubt and the cook was also able to corroborate the fact that the servant was in the habit of spending part of the night with Mr. Watt. The servant was also able to repeat things about the business and intimate things regarding poor Mrs. Watt which she could not have known had the situation been otherwise than that stated. . . . Id.

280 Id. He wrote,

at present I have both the cook’s and the housemaid’s words that he did receive dancing girls, etc., in his flat, and in fact the proprietor of the building has complained of the noise made by these visitors. I am therefore quite certain that orgies of this sort did take place without any doubt whatsoever, which shows Mr. Watt to be a perfect beast and a perjurer, as my statement to you was based on statements which he had made to me. . . . Id.

281 Id. at 131–132. Browne wrote,

However, the servant states definitely that he spent hours discussing with her the way of compromising my wife and practically asked her to assist him to do so. . . . From the servant’s statement he is vicious and gets into uncontrollable passions brought on by drink and his own inherent vices. . . . My wife [Mrs. Browne] is, of course, very much upset. . . . Id.

282 Id. Browne also wrote,

All our sympathy goes out to Mrs. Watt who can never hope to be happy again unless she separates herself from a man who has shown himself to be a blackguard, a thief, a liar and to whom friendship was a totally unknown thing, and who lived and lives exclusively to satisfy his own passions and lust. Id.

283 Id. at 132.

284 Id. at 134. Longsdon noted that he would only interfere between husband and wife if he had a sworn statement. Longsdon wrote that,

I just ask you to be good enough to help me in order that I may stand by an old friend who I feel has been treated worse than fit for the vilest harlot on earth. To me it is incredible that any man with a

129

Notwithstanding this, on May 14, before getting the sworn statement or corroboration of

Browne’s accusations, Longsdon showed the letter to Mrs. Watt. This led the couple to separate and Mrs. Watt applied for divorce.285

Watt brought an action for libel against Longsdon for communicating the information in Browne’s letter to Singer and Mrs. Watt and for the letter Longsdon had published to Browne. Longsdon claimed privilege for all communications.286 Despite

Watt’s lawyers’ arguments that Longsdon took no steps to corroborate the information in the letter before publication, the lower court held that the three publications were privileged and there was no evidence of malice.287

The Court of Appeal rejected the lower court’s contention that privilege applied wherever “there is an obvious interest in the person to whom the communication is made which causes him to be a proper recipient of a statement,” even in cases where the party making the communication had no moral or social duty to make the communication to the recipient.288

Lord Justice Thomas Edward Scrutton held that privilege as a defense in libel law would apply where there was a “public or private duty to communicate, whether legal or moral,” the communication was “fairly warranted by any reasonable occasion or

grain of decency could do such a thing. If his mistress had pretences to being decent individual it might partially be understood but to cohabitate with such a creature is well beyond words of expression. Id.

285 Id.

286 Id.

287 Id. at 134–135.

288 Id. at 142.

130 exigency,” or a statement concerned the communicator’s own affairs in which his interests were affected.289

Thus, Scrutton held that there was a moral and material duty for Longsdon to communicate the information to Singer since he was the chairman of the company and

Longsdon had indicated that he believed that the information sent to him by Browne was true.290 As chairman of the company, Singer would be asked in the future for testimonials for prospective employers.291 Scrutton also held that, on receiving the letter from

Browne, Longsdon was entitled to request further information and discuss the matter further with him because of the common interest they shared in the company.292 Thus, the two occasions were privileged and, since there was no evidence of malice, the judge upheld the lower court’s decision in relation to the two men.293

However, Lord Justice Scrutton found there was no privilege in relation to the communication Longsdon made to Mrs. Watt. Scrutton noted that whether a social or moral duty existed for a stranger or friend to inform a husband or wife of their respective partner’s fidelity would depend on the circumstances of the case, the nature of the information, and relationship between the speaker and recipient.294 However, he said, it

289 Toogood v. Spyring, (1834) 149 Eng. Rep. at 1093.

290 Watt, supra. at 149.

291 Id.

292 Id.

293 Id. But see Lord Justice Greer who, in his concurrence, said that Longsdon’s conduct in “disseminating the gross charges that he did to the plaintiff’s wife, and to Mr. Singer, and repeating and to some extent adding to them in his letter to Mr. Browne and his offer to provide funds for procuring the evidence of the two women in Casa Blanca, affords some evidence of malice which ought to have been left to the jury.” He believed the appeal should be allowed and a new trial ordered. Id. at 155.

294 Id. at 149–150.

131 was not the “duty even of a friend to communicate all the gossip the friend hears at men’s clubs or women’s bridge parties to one of the groups affected.”295 He held that no privilege attached to the statement made to Mrs. Watt.296

In 1888 the common law principle that “fair and accurate” contemporaneous reports by newspapers of public proceedings before a court or judicial authority were protected by privilege was enacted.297 The 1952 Defamation Act extended this privilege in the case of broadcast media, but also reduced the ambit of the defense to “courts exercising judicial authority within the United Kingdom.”298 Eight years later the Court of Appeal held that, although English statutes did not protect accurate reports of proceedings in foreign jurisdictions as privileged, where a report about proceedings in foreign courts was related to the administration of justice in England, such reports were privileged.299

The case, Webb v. Times Publishing Co. Ltd,300 is important since the privilege defense for accurate local reports of proceedings in court would later be adopted in the

British Caribbean law. Further, in a 2003 Jamaican libel case, Abrahams v. The

Gleaner,301 a newspaper unsuccessfully tried to rely on the exceptional case discussed in

295 Id. at 150.

296 Id. But see Lord Justice Russell who said in his concurrence that express malice could be found based on Longsdon’s hasty communication of the information to Mrs. Watt, though he conceded, Longsdon’s testimony that he believed the statement might negate the finding of express malice. However, he believed the issue should have been left to the jury. Id. at 158.

297 Law of Libel Amendment Act 1888 § 3 [51 & 52 Vict., c. 64]

298 Defamation Act 1952 § 8 [15 & 16 Geo. 6 & 1 Eliz., c. 66].

299 Webb v. Times, [1960] 2 Q.B. 535.

300 [1960] 2 Q.B. 535.

301 (2003) 63 WIR 197.

132

Webb where proceedings in foreign jurisdictions would be privileged. The Abrahams case is central to this dissertation.302

In the 1960 case Webb,303 Cynthia Mary Webb, a widow, brought an action against the Times Publishing Co. for an alleged libel printed on September 25, 1959.304 The facts of the case originated between the years 1948 and1950 when Webb had been married to

Brian Donald Hume. Hume was tried for the murder of Stanley Setty, a car dealer, who was found dead and dismembered in October 1949.305 It was alleged that Setty and Mrs.

Hume (now Mrs. Webb) had an affair which drove Hume to murder Setty. In his January

1950 trial, the jury failed to reach a verdict and Hume plead guilty to being an accessory after the fact and was sentenced to 12 years imprisonment.306 During the trial Webb gave evidence for Hume stating that she had never met Setty before in her life.307

Hume was allowed remission of one-third of his sentence and was released in 1958.

Thereafter he allegedly robbed a bank at gun point and attempted to murder someone in

England.308 He was, thus, wanted by English authorities to face a criminal trial. Having, apparently, moved to Switzerland, in September 1959 Hume was before the Switzerland court in Winterthur, Zurich on a charge of murdering a Swiss taxi driver.309 According to

302 Infra at chapter 7.

303 Webb v. Times, supra at 535.

304 Id. at 537.

305 Id. at 538.

306 Id.

307 Id. at 537. Id.

308 Id. at 552.

309 Id. at 538.

133 a news report published in the Times of Hume’s testimony at the Zurich trial, Hume admitted in his testimony to robbing a Midland Bank in Brentford, London and shooting a clerk. The story continued:

“He also admitted to killing Stanley Setty, a car dealer, out of jealousy, sawing off his limbs and making them into parcels to be dropped from an aircraft. . . . Asked if he was married and had a child Hume replied “Yes, but [the child was] not mine. The father was Stanley Setty.”310

Webb, after reading the 1959 report, brought a libel action against the Times. In her pleadings311 Webb said the words would be understood to mean that she had committed adultery with Setty and perjured herself at Hume’s trial.312 The newspaper’s defense was that the words it published from Hume’s evidence in his trial in Zurich did not refer to

Webb. The newspaper also argued that the statement should be privileged because Hume, who had been acquitted by the English courts of the murder of Setty, had written an article in 1958 after his release from prison admitting guilt for the murder of Setty.313 He was also wanted by the English police for attempted murder and bank robbery. The article published in the newspaper dealt specifically with statements made by him in court about these charges. Since the words complained of were part of an accurate account of the judicial proceedings in Switzerland, and published contemporaneously with the proceedings, they were privileged.314

310 Id.

311 See Chapter 1, 1.8, supra for the definition of pleadings.

312 Webb, supra at 538.

313 Id. The story of Hume’s confession was published in The Sunday Pictorial in 1958. In the confession Hume said that Setty had been meeting Webb and himself socially and he had heard stories of private meetings between Setty and Webb. Webb brought an action against Sunday Pictorial Newspapers (1920) Ltd. In a settlement the Sunday Pictorial agreed not to reprint the story and paid damages to Webb. Id.

314 Id. at 539.

134

The Times’ lawyers also noted that the article published on September 25, 1959 immediately followed the words “the father was Stanley Setty” with Webb’s denial. The newspaper had printed the following words under a sub-title in large print “Former

Wife’s Denial”:

Mr. David Jacobs, of M.A. Jacobs & Sons, Solicitors of Pall Mall, London, last night issued the following statement: “I have been asked by Mrs. Cynthia Webb, formerly the wife of Mr. Brian Donald Hume, who is at present on trial in Switzerland for murder, to say that the statement alleged to have been made by Hume during the course of his trial to the effect that Setty is the father of his child is completely untrue and Mrs. Hume, as she then was, gave evidence at the Central Criminal Court, when in 1950 Hume was on trial for the murder of Stanley Setty, that she has never met Setty in her life. In 1951 Mrs. Webb’s marriage with Hume was dissolved on the ground of her husband’s cruelty and he is the father of her child.315

Justice Pearson on the Queen’s Bench, the trial court, had to determine the preliminary legal question of whether privilege could be extended to newspaper reports of foreign court proceedings. He held that although there was no privilege for reports on court proceedings in foreign jurisdictions, because the published material extracted from the Switzerland court proceedings in Webb concerned the administration of justice in

Britain, it was protected by privilege.

Pearson said that in determining whether a report of judicial proceedings was entitled to privilege, it was important to balance the “advantages to the public of reporting on judicial proceedings against the detriment to individuals of being incidentally defamed.316 Thus in Lewis v. Levy,317 Lord Chief Justice John Campbell in the Court of Exchequer, a court of appeal, had said:

315 Id. at 539.

316 Id. at 561.

317 (1858) E.B. & E. 537, 561–562. In Lewis v. Levy, the defendant published a report of proceedings for perjury against the plaintiff. Although the occasion was privileged, because the defendant’s report left out

135

[T]hough the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconvenience to the private persons whose conduct may be the subject of such proceedings. 318

Pearson said that one rationale for making comments in judicial proceedings

privileged was because the administration of justice concerned all British people,319 which was not transferable to courts in foreign jurisdictions.320 Pearson noted that the

conduct of judges and juries in Switzerland could not be “brought before the bar of public sections of the cross examination of crown witnesses that were favorable to the plaintiff, the privilege was lost.

318 Id., quoting Lawrence J. in Rex v. Wright, (1799) 8 T.R. 293, 298.

319 Webb, supra at 560. See Woodgate v. Ridout, (1865) 4 F & F 202, 217, where Chief Justice Alexander Cockburn said in the Court of Appeal:

The reason why comments upon the proceedings of courts of justice are privileged is that the administration of justice concerns us all, and that it is well that the conduct of the judge or jury should, if necessary, be brought to the bar of public opinion, like all other matters of public concern. Id.

320 Id. Justice Pearson also said that reports of judicial proceedings were privileged because courts of justice were open to the public Id. at 557. (See Wason v. Walter, (1868) L.R. 4 Q.B. 73, where the Court of Queen’s Bench, a trial court, held that a fair report of a debate in any House of Parliament was privileged on the same principle as proceedings in a court of justice was privileged, because the advantage of publicity to the community at large outweighed the private injury caused to individuals by publication. See also a Scottish case, Richardson v. Wilson, (1879) 7 R. 237, 241, when the Court of Session, a court of both the first instance and appellate jurisdiction in Scotland, said, “… The principle on which this rule is founded seems to be that, as courts of justice are open to the public, anything that takes place before a judge or judges is thereby necessarily and legitimately made public, and being once legitimately public property, may be republished without interfering with responsibility. . . .”). Pearson said in Webb that even if an English man, a tourist in Switzerland, were given access to the Swiss courts, he probably would understand little of what went on. Id. at 600. See also Salmon v. Isaac, (1869) 20 L.T. 885, 886, where Justice Hannen said:

It is for the public interest that facilities should be afforded to the public for acquainting itself with the details of the administration of the law. Accordingly, anyone is at liberty to publish a fair report of proceedings in a court of justice, although such report may contain matter damaging the character of individuals. A newspaper has no greater privilege in such a matter than any ordinary person—any person is privileged in publishing such a report if he does so merely to inform the public. Id.

Hannen also said, access to judicial proceedings had also been held to be important as a means of educating members of the public about the system for administering justice in the system under which they lived, and in the courts where they might appear from time to time. Since a British citizen was unlikely to be subject to the Swiss law or appear in the Swiss court, the principle had no force in relationship to Swiss courts.

136 opinion in England and the British public has no concern with it, or responsibility for it, or power to take action with regard to it.”321

Thus, Justice Pearson said proceedings before British tribunals and foreign tribunals differed because, while all persons in England had an interest in knowing the proceedings in the British tribunals, “it would be extravagant to say that citizens of

England (had) a real interest in and are concerned with the adjudication of some trivial and purely personal dispute in some minor court on the other side of the world.”322 Thus, he said, in the balancing process, although the risk of defamation could be taken in the public interest in the case of British proceedings, the situation was different when the defamation occurred because of a publication based on foreign proceedings.323

Thus, Pearson held there was no qualified privilege for reports on foreign judicial proceedings.324 However, Pearson noted that, in Webb, the Times’ report on proceedings in the Switzerland court was privileged because it was centered on the administration of justice in England, a matter of public interest.325 Beyond the fact that a British subject was being prosecuted, during the trial “he confessed to a murder of which he had been

321 Webb, supra at 561.

322 Id. at 562.

323 Id.

324 Id.

325 Id. at 568. Cox v. Feeney, (1863) 4 F. & F. 13, holding that a libel consisting of a publication of the report of an inspector of charities under the Charitable Trusts Act was of public interest and privileged. This was so although the publication included a letter written years before reflecting on the Plaintiff’s management of a college. See also Allbutt v. General Council of Medical Education and Registration, (1889) 23 Q.B.D. 400 and Perera v. Peiris, [1949] A.C. 1, where the Privy Council held that publication of information extracted from the Official Report of the Bribery Commission in Ceylon was privileged.

137 found not guilty in previous English proceedings, and also to serious recent offenses in

England for which he was wanted by the English police.”326

Justice Pearson said that Webb had complained about the statement that suggested that she had an extra-marital affair with Setty. However, this information was germane to the issue of the administration of justice in England which was of public interest since the allegation made by Hume that Setty had a relationship with Webb when she was still married to Hume, explained Hume’s jealousy.327 Thus, the statement was also covered by privilege, which was a defense at law, the judge held.328

Webb was decided in 1960. Eight years later the Court of Appeal held that in determining whether words were libelous, the words should be interpreted according to their natural meaning.329 The 1968 case, Slim v. Daily Telegraph Ltd., involved Horace

Cornelius Slim, a solicitor and one-time town clerk of Hammersmith.330 Upper Mall was a narrow path way in Hammersmith close to the River Thames. The public had foot access along Upper Mall but, a few years before the action was brought, a sign prohibiting vehicles from the path was erected. Slim had signed the notice while he was town clerk.331

326 Webb, supra at 568.

327 Id.

328 Id.

329 Slim v. Daily Telegraph Ltd., [1968] 1 All E.R. 497.

330 Hammersmith, WIKIPEDIA, http://en.wikipedia.org/wiki/Hammersmith,_London (last visited June 1, 2006). “Hammersmith is a town in the London Borough of Hammersmith and Fulham in west London. It is situated to the south of Shepherd's Bush, on the north side of the River Thames.” Id.

331 Id.

138

In 1959 Slim became legal adviser to Vitamins Ltd., a company with a factory in

Hammersmith. H.C. Graves was the chairman of the company.332 Vitamins Ltd., asserting that it had always driven its vehicle along the pathway in Hammersmith, argued through its lawyer, Slim, that it had a legal right of way. Local residents denied that they had the right.333 John Herbert, a neighbor, wrote a letter to the Daily Telegraph, which was published. The letter included the assertion:

Double Think

Upstream at Hammersmith the peace of Upper Mall is threatened by a claim of Vitamins, Ltd., a factory nearby, to the vehicular right of way. If this is approved, this narrow stretch of the riverside with its period houses may become a thoroughfare for heavy lorries and a dangerous place for a walk.

This is not a parochial matter, for the charm of Upper Mall is enjoyed by people from all over London. Its special character is already recognized. Section 30 of the London County Council (General Powers) Act 1953 prohibits the driving and parking of cars on Upper Mall, but this it seems is not sufficient protection.

The local council is still pondering on the firm’s claim, but what gives cause for concern is that already at the western end of the Upper Mall a council notice forbidding cycling has been removed. If this has made local residents a little cynical, they must be forgiven.

For many years this notice was signed by one Horace Slim, the reigning town clerk. It is now the same Mr. Slim, as legal adviser to Vitamins Ltd., who claims the right to drive lorries along this very path…334

When Slim responded by a letter disclaiming any intention of using lorries on the path,335 Herbert responded in part:336

332 Slim, supra at 499.

333 Id.

334 Id. at 499–500.

335 Id. The letter did not mention whether the company would use other commercial vehicles.

336 Id. at 500.

139

. . . . His protestations of injured innocence would be more convincing . . . if his company was really acting in the spirit of his letter.

Cars belonging to his employees are already being driven along the western end of Upper Mall, . . . Residents . . . who have protested have been told by the drivers that the land belongs to Vitamins Ltd., and that they must move their cars from in front of their houses if those belonging to the company’s employees cannot get past.

It is not surprising . . . that no one has asked what the intentions of the company were because they were obvious: to establish the vehicular right of way in front of the London Corinthian Sailing Club willy-nilly, without even waiting for a decision from Hammersmith Borough Council.

It need hardly be said that the use of cars on this narrow pathway is just as much to be deplored as that of lorries. How can Mr. Graves pretend to associate himself with the sentiments of those who wish to preserve the character of Upper Mall, let alone keep it safe as a riverside walk, when he countenances such action? . . . All he has to do to put everyone’s mind at rest is to tell his employees to desist from using Upper Mall as a thoroughfare.

Slim, Vitamins, Ltd. and Graves brought an action against the Daily Telegraph and

Herbert for libel. The complaints brought by the company focused on the comments,

“Double think,” “cynical,” “protestations of injured innocence,” and “how can Mr.

Graves pretend to associate himself.”337

The Court of Appeal upheld an appeal of an award of damages made in the lower court.338 Lord Alfred Denning, Master of the Rolls, chief judge in the Court of Appeal, said that Herbert’s words were defamatory on their face since they implied that Slim had acted from dishonest motives and had acted with bad faith toward his former employers.339

337 Id. at 503.

338 Id. at 501. The lower court had awarded Slim £3,500, Graves £1,500 and the company £500 in damages.

339 Id. at 502.

140

Denning noted that the trial judge’s reasoning in deciding that the words were libelous was faulty since, in determining the meaning of the words he was duty-bound to look at the injury the words would do to Slim in the minds of the “ordinary reader.”340

Thus, he had to look at the words in their “natural and ordinary meaning.” Neither Slim nor the Daily Telegraph was entitled to select the imputations that they believed applied, but had to rely on the imputations that the jury believed the words conveyed.341

Denning said that the real issue for the court was whether the words were protected as a fair comment on matter of public interest.342 The defense of fair comment arises in libel law in the case of issues in which the public has a legitimate interest. In such situations harsh critical commentary is protected once the statement is based on fact.

Denning said that it was a matter of public interest that Vitamins Ltd. had said it had a right of way for vehicles along Upper Mall. Similarly, the conduct of the company’s employees regarding the use of the pathway was of interest. The letters included several undisputed facts.343 Denning noted the comments, using words such as

“cynical” and “protestations of injured innocence,” were capable of several meanings but in considering a defense of fair comment, this was not material. The issue was whether the writer was motivated by malice.344 As long as Herbert was expressing his honest

340 Id. Thus, Denning said, he could not accept some of the imputations and reject others.

341 Id. at 502. In this context, Denning said the trial judge had placed too much weight on his questions to the newspaper’s attorneys. The response given by counsel that his clients had not intended to “suggest that the plaintiffs were dishonest, insincere or hypocritical,” were only to shed light on the intention of his client, but did not destroy the defense of fair comment. “Even if the words did convey the imputation, by way of comment, that the plaintiff’s conduct was dishonest, insincere or hypocritical, the defense of fair comment was still available,” Denning said. Id.

342 Id.

343 Id.

344 Id.

141 opinion he would be protected notwithstanding the fact that the statement was derogatory, the judge said.345 Denning noted:

the right of fair comment is one of the essential elements which go to make up our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements. When a citizen is troubled by things going wrong, he should be free to “write to the newspaper”: and the newspaper should be free to publish his letter. It is often the only way to put things right. The matter must, of course, be one of public interest. The writer must get his facts right: and he must honestly state his real opinion. But that being done, both he and the newspaper should be clear of any liability. They should not be deterred by fear of libel actions.346

Denning noted that the correspondence between the parties consisted of

“hard-hitting arguments by both protoganists, of which neither can complain in a court of law.” Thus, he held, the words published in the newspaper were fair comment on a matter of public interest and allowed the appeal.347

2.9 Cassell v. Broome and its Progeny: 1970s to 1990s

The cases before the 1970s defined largely the parameters of the defenses open to public persons in libel actions. The cases in the 1970s and afterwards focused on how damages were to be assessed in libel actions.

In the 1972 decision in Cassell & Co. Ltd. v. Broome348 a much divided House of

Lords held that, in assessing damages in libel cases, the jury should only award exemplary damages349 where it decided that the award of compensatory damages was

345 Id. See Turner (otherwise Robertson) v. Metro-Goldwyn Mayer Pictures Ltd., [1950] 1 All E.R. 449, 460–461 opinion of Lord Porter, and Silkin v. Beaverbrook Newspapers Ltd.,[1958] 2 All E.R. 516 opinion of Lord Diplock.

346 Slim, supra at 502.

347 Id. Application by Slim for leave to appeal to the House of Lords was refused. Id. at 514.

348 [1972] A.C. 1027.

349 See Chapter 1, 1.8, supra for a definition of exemplary damages. Exemplary or punitive damages are awarded to punish the defendant rather than compensate the plaintiff.

142 insufficient to punish the defendant for his outrageous behavior. Thus, the House of

Lords upheld a £40,000-libel award that included £25,000 in exemplary damages. In

Cassell, the House of Lords also outlined the principles to be used in assessing and awarding exemplary damages in English libel cases.

In Cassell, John Egerton Broome was a retired captain in the Royal Navy with a good reputation even though he had been Commander of Convoy PQ17 which had been destroyed in World War II.350 In the Convoy PQ17, a significant war-time disaster, all but 11 of more than 35 merchant vessels were sunk en route to the Soviet Union, killing

153 merchant seamen and losing a lot of war material. Nonetheless, so unblemished had

Broome’s career been that he had been made captain in command of the battleship

Ramillies after his retirement, a post he still held in the 1960s. At the time of the PQ17 disaster Broome had placed the ship and himself under the control of an Admiral

Hamilton who had direct orders from the admiralty, and the popular belief among persons having knowledge of the disaster was that the destruction of the PQ17 had not been caused by negligence.351 Nevertheless, they believed, if someone were to be blamed, it was Admiral Hamilton.352 Novelist David Irving wrote a book chronicling the destruction of the Convoy PQ17 blaming Broome entirely for the disaster, and including, in the process, some defamatory statements about Broome.353 The book, entitled The

350 Cassell, supra at 1051.

351 Id.

352 Id.

353 Id. at 1056. Lord Hailsham did not include the defamatory statements in his judgment because, he said, it was not necessary to set out the defamatory statements at length. Id.

143

Destruction of Convoy PQ17, was published by Cassell & Company in 1968.354 Broome brought an action against Irving, the author of the book, and Cassell & Co. for the prior distribution of proof copies and ultimate publication of the book.

The trial court found the publisher and Irving were liable, ordered them to pay the sum of £1,000 for publishing the proof copies, which the court also found was libelous, compensatory damages of £14,000 for the paper-back edition of the book and £25,000 in exemplary damages for the hard-back edition.355

The parties appealed the award of exemplary damages on the ground that the evidence provided in court did not support the finding of malice. The publishers also noted that in the tort case, Rookes v. Barnard,356 the House of Lords had held unanimously that in cases where there was more than one defendant, the jury should split the exemplary award of damages to reflect the relevant guilt of each party.357 The Court of Appeal held that the House of Lords’ decision in Rookes was wrong and not binding on it because it had been arrived at per incuriam358 and ignored two previous decisions of

354 Id.

355 Id.

356 [1964] A.C. 1129, 1226. In Rookes the House of Lords held that “oppressive, arbitrary or unconstitutional action by a servant of the government” could attract an award of exemplary damages. These damages were intended “to punish the defendant and to deter him from similar behavior in the future.” Id.

357 Broome, supra. at 1028.

358 Per In curiam is “literally translated as "through want of care." It refers to a judgment of a court which has been decided without reference to a statutory provision or earlier judgment which would have been relevant. The significance of a judgment having been decided per incuriam is that it does not then have to followed as a precedent. Ordinarily, the rationale of a judgment must be followed thereafter by lower courts when hearing similar cases. A lower court is free, however, to depart from an earlier judgment of a superior court where that earlier judgment was decided per incuriam.” See ANSWERS.COM, http://www.answers.com/topic/per-incuriam (last visited June 7, 2006).

144 the House.359 The Court of Appeal upheld the lower court’s decision.360 Cassell & Co. appealed the Court of Appeal decision to the House of Lords on grounds that there should not have been an award for exemplary damages.361

Lord Hailsham of St. Marylebone, speaking for the majority in the House of Lords, dismissed the appeal. The court noted that the trial judge had correctly directed the jury to the Rookes decision362 since Rookes had been expressly applied to defamation cases in a number of subsequent Court of Appeal decisions.363 The House of Lords dismissed the appeal on grounds that the criticism of the trial judge’s direction failed and the size of the award of damages was not one which could be attacked by the accepted principles.364

The House of Lords agreed with this position.

The House of Lords also held that the Court of Appeal had no authority to reject

Rookes’ precedent. In the House of Lords, Hailsham said that in the hierarchical court

system the lower-tiered courts, including the Court of Appeal, were required to adopt the

359 Id. See Ley v. Hamilton, (1935) 153 L.T. 384 and E. Hulton & Co. v. Jones, [1910] A.C. 20, where the House had approved awards for punitive or exemplary damages on lines inconsistent with Devlin’s opinion in Rookes. Thus, the Australian Supreme Court had rejected this position in Uren v. John Fairfax & Sons Pty. Ltd., (1966) 117 C.L.R. 118 aff’d. by Privy Council in Australian Consolidated Press Ltd. v. Uren[1969] 1 A.C. 590. Hailsham noted that neither Lord Denning, M.R. nor Salmon L.J. in the Court of Appeal decision in Broome were inhibited by the fact that they had contributed to the Rookes decision in the Court of Appeal. Id. at 1053.

360 Cassell, supra at 1052.

361 Id.

362 Id. at 1051.

363 Id. Hailsham noted that the trial judge’s direction to the jury was largely “unexceptionable as an exposition of the law” determined by the Rookes v. Barnard decision and applied in several Court of Appeal cases. Id. at 1052. See the Court of Appeal decisions of lord justices Pearson, Wilmer & Diplock in McCarey v. Associated Newspapers Ltd. (No. 2), [1965] 2 QB 86; and by lord justices Sellers, Davies and Russell in Broadway Approvals Ltd. v. Odhams Press Ltd., (No. 2) [1965] 1 WLR 805; and by Lord Alfred Denning, MR, and lord justices Harman and Salmon in Mafo v. Adams, [1970] 1 Q.B. 548.

364 Cassell, supra at 1052.

145 decisions of the higher court, and had no authority to question decisions in the House of

Lords.365 The House, itself, was also bound by precedent.366 He did not disagree with the

Court of Appeal judges’ views that Rookes might be reconsidered367 but said that, before

Rookes, the law as to exemplary damages368 had not been settled. He added there was a

need to give juries clear guidance for the awarding of damages, which Lord Patrick

Devlin’s construction in Rookes was intended to do.369

The concept of putting things back the way they were before harm was done to an injured party was a “clear principle” in contract law, where damages were awarded to compensate the plaintiff for material loss, Hailsham said.370 In tort law the calculation of damages was more difficult, Hailsham said, because the evaluation involved more than pecuniary loss.371 Thus, in a personal injuries case, one had to compensate for pain and

365 Id. at 1054. Hailsham chided Lords Denning and Salmon for imposing the issue of the correctness of the decision in Rookes on the litigants in Cassells, burdening them with further costs in appeal. Id.

366 Id. at 1055. . See declaration of Lord Gardiner L.C., (1966) 1 W.L.R. 1234 where Lord Gardiner underlined the importance of the House following precedent. See also Reg. v. National Insurance Commissioner, Ex parte Hudson, [1972] A.C. 944.

367 Cassell, supra at 1067.

368 Id. at 1068. “Punitive,” “vindictive” and “exemplary” damages were often used as synonyms and largely not differentiated from “aggravated” and, sometimes, “compensatory” damages. Id. at 1069.

369 Id. at 1070.

370 Id. Hailsham used the words restitutio in integrum. Restitiutio in integrum is latin for restitution to the original position. In contract law, upon breach of contract, the injured party may ask the court to reverse the contract and revert the parties to their respective positions before the contract was accepted. But if the court finds that restitutio in integrum is not possible because of actions or events occurring since the date of acceptance, then the court may order that damages be paid instead.” See DUHAIME ONLINE LEGAL DICTIONARY, http://www.duhaime.org/dictionary/dict-qr.aspx (last visited June 7, 2006). See also HARPER COLLINS LATIN CONCISE DICTIONARY (Harper Collins Publishers, 2004).restitutio in Latin means “restoration” or “reinstating.” The word “integrum” is translated to mean “new.” In the law of contract the term restitutio in integrum in the law is loosely translated as “to put the individual back in the position he would have been in if the contract had not been broken.” Id.

371 Cassell, supra at 1070.

146 suffering and the loss of amenities.372 Thus, there was no “purely rational test” for calculating damages.373

In determining damages for loss of reputation the subjective factor was heightened,

Hailsham said. Often the plaintiff recovered damages larger than the actual loss, but enough to compensate him in the event that the damage to reputation re-emerged after being buried for a time.374 The award also included, Hailsham said,

injury to the feelings, the anxiety of uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matter, where he has provoked the libel, or where perhaps he has libeled the defendant in reply.375

Hailsham said that there was always a danger of double-counting compensatory and exemplary damages in such situations where they were “at large” and “a matter of impression and not addition.”376

Hailsham noted that in the Rookes case, Lord Devlin had said that, “where damages for loss of reputation” were concerned, additional aggravated damages should normally suffice to repair the damages. Devlin had also said, Hailsham noted, that the jury should not be “encouraged or allowed” to look beyond the award of aggravated damages to award exemplary damages, otherwise it would introduce a double penalty.377

372 Id.

373 Id. at 1071.

374 Id.

375 Id.

376 Id. at 1072.

377 Id. at 1076.

147

Devlin identified two situations where exemplary damages could be awarded.378

The first was where servants of the government exercised “improperly rights of search or arrest without warrant” or abused their power.379 The second category identified by

Devlin was the profit-making motive. Devlin said “one man should not be allowed to sell another man’s reputation for profit.” Thus,

Where a defendant with a cynical disregard for a plaintiff’s rights has calculated that the money to be made out of his wrongdoing will probably exceed the damages at risk, it is necessary for the law to show that it cannot be broken with impunity. This category is not confined to moneymaking in the strict sense. It extends to cases in which the defendant is seeking to gain at the expense of the plaintiff some object—perhaps some property which he covets—which either he could not obtain at all or not obtain except at a price greater than he wants to put down. Exemplary damages can properly be awarded whenever it is necessary to teach a wrongdoer that tort does not pay.380

However, Hailsham in Cassell noted that the mere fact that a libel was committed in the course of making profit in a business would not, alone, justify an award of exemplary damages.381 It was also necessary for the publisher to have knowledge that the publication was against the law or a reckless disregard for whether it was legal or not, and to decide to continue to publish because “the prospects of material advantage outweigh(ed) the prospects of material loss.”382

378 Id. The judge had said that he preferred the word “exemplary” to “punitive” damages because the aim was to teach the libeler that “libel does not pay.” Id. at 1073.

379 Id. at 1078.

380 Id. (quoting from Devlin in Rookes, [1964] A.C. at 1227). (Emphasis Lord Hailsham’s).

381 Id. at 1079. See Widgery J. in Manson v. Associated Newspapers Ltd., [1965] 1 W.L.R. 1038, 1045.

382 Id.

148

Hailsham noted that a trial judge was required to determine whether evidence existed that could entitle a jury to award exemplary damages.383 If no such evidence existed, the question of exemplary damages should be withdrawn from the jury. If evidence existed, the judge was required to remind the jury that the burden of proof rested on the plaintiff to establish the facts necessary to award exemplary damages.384

The jury could not award exemplary damages unless satisfied that the exemplary element was not met by the compensatory and aggravated awards granted.385

In the facts in the Cassell case, Hailsham said, Broome had said that the statements about him in the book claimed that he had “wrongly withdrawn his destroyer force from the convoy and/or taken it closer to the German airfields than he had been ordered to and had, thereby, been largely responsible for or contributed extensively to the loss of the aforesaid ships and the effective destruction of more than two-thirds of the Convoy

PQ17.” He said the book was, therefore, defamatory and painted him as “disobedient, careless, incompetent, indifferent to the fate of the merchant ship.”386 He had also been painted as a coward who without a “second bidding,” deserted the convoy. Though the author and publisher disputed the meaning that Broome ascribed to the article, the jury, by virtue of their award, evidently rejected the publisher’s position, Hailsham said.387

383 Id. at 1081.

384 Id.

385 Id. at 1082. Also, in assessing the total sum to be paid, the sum should be a round figure satisfying the jury’s idea of what should be paid. Id.

386 Id. at 1056.

387 Id.

149

Hailsham rejected the publisher’s contention that it did not understand the words to have the defamatory meaning that Broome claimed. Hailsham said he believed the words were written plainly enough “for an experienced publisher to know perfectly well what their meaning was… [and] with deliberate intent to convey the meanings without incurring damages.”388 Hailsham said the publisher also had been warned of the potential for libel by another publisher who had refused to publish the work on the grounds that it was libelous of Broome.389 Hailsham said the book’s publishers, Cassell & Co., had dismissed the alert flippantly or cynically. In the absence of an explanation for this,

Hailsham said, the jury was entitled to find that the publisher “had calmly calculated that the risks did not outweigh the chances of profit.”390

Hailsham noted that, based on the decision in Rookes, the trial judge had to warn the jury of three issues to bear in mind in awarding exemplary damages:

• they did not have to award anything and should not unless satisfied that “a purely compensatory award was inadequate;” • the sum awarded should take into account compensatory damages already awarded including aggravated damages caused by the defendant’s bad conduct; and • the sum should not exceed the amount by which the required penalty exceeded the compensation. 391

In his summing up in the Cassells case, Hailsham found that the trial judge had

“adequately” warned the jury about these matters.392

388 Id. at 1057–1058.

389 Id. at 1058. He noted that another publisher, William Kimber, Ltd., had refused to publish the book because it was “a continuous witch hunt of Captain Broome.”

390 Id.

391 Id. at 1059. See Lord Devlin’s opinion in Rookes, supra. at 1228 where he held that exemplary damages were to be awarded at the discretion of the jury, only where they believed that the sum they intended to award for compensatory damages was insufficient to punish the defendant for his “outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it.”

150

In respect to the judge’s direction about the principles on which a joint award of exemplary damages was to be made, Hailsham noted that an award of damages against more than one party should reflect the lowest sum for which each party could be held liable.393 He noted that the principle was not limited to exemplary damages, but included

all damages.394

Hailsham refused to disturb the jury’s award for two reasons.395 First, he noted that the jury was the “only legal and constitutional tribunal for deciding libel cases” and the judiciary should only substitute a jury award where the award was “manifestly too large”396 or “manifestly too small”397 so that “no sensible jury properly directed could have reached the conclusion.”398 Although juries might be more liberal in awarding

392 Cassell, supra at 1060. Hailsham said that although the trial judge had not expressly cautioned the jury to take inot acount the punitive effect of any compensatory damages already awarded, the judge’s use of the word “additional” in his summing up. Also the judge noted that, instead of instructing them that they had to find exemplary damages, he asked them, in his direction, what exemplary damages they would award the jury, adding the words “if any.” This indicated that they were at liberty not to award exemplary damages. Hailsham believed the judge’s direction to the jury was sufficient, though barely sufficient. Id. at 1062.

393 Cassell, supra at 1063. See Heydon’s Case, (1612) 11 Co.Rep. 5a; Clark v. Newsam, (1847) Exh. 131; Hill v. Goodchild, (1771) 5 Burr. 2790; Dawson v. McClelland, [1899] 2 Ir.R. 486; Greenlands Ltd. v. Wilmshurst and London Association for Protection of Trade, [1913] 3 K.B. 507 at 521.

394 Cassell, supra at 1063. In the circumstances, where plaintiffs wanted to distinguish between defendants, they could bring separate actions against each and consolidate the actions. He also noted that, having agreed to the questions left to the jury, the publishers could not, now, contend on appeal that the awards should be split. Id. at 1064.

395 Cassell, supra. at 1065.

396 Id. Hailsham noted that this was the case in Lewis v. Daily Telegraph Ltd., [1963] 1 Q.B. 340.

397 Cassell, supra at 1065. Hailsham noted that this was the case in English and Scottish Co-operative Properties Mortgage and Investment Society Ltd. v. Odhams Press Ltd., [1940] 1 K.B. 440.

398 Id. See opinion of Lord Esher in Praed v. Graham, (1890) 24 QBD 53, 55, holding “that twelve sensible men could not reasonably have” come to the decision. See also Palles C.B. in M’Grath v. Bourne, (1876) Ir. R. 10 CL. 160, 164, cited in Mechanical and General Inventors Co. Ltd. and Lehwess v. Austin and Austin Motor Co. Ltd., [1935] A.C. 346, 378: “no reasonable proportion existed between it and the circumstances of the case.” Hailsham noted that Defamation had been deliberately excepted from the changes made by Parliament in the Administration of Justice (Miscellaneous Provisions) Act of 1933 by

151 damages than judges, Hailsham saw no reason for the judiciary to assume that the judiciary’s “own sense of propriety” was more valid than that of the 12-man jury.399

Second, Hailsham was unwilling to interfere with the award because of the serious nature of the facts in the case.400 Although he would have made a lower award of damages, Hailsham noted that, after hearing the facts of the case, he was unable to find that “no twelve reasonable jurors could have come to a different conclusion” than his own perspective.401 Thus, the judge dismissed the appeal.402

The decision in Cassell’s case is important because it provided the principles to be used in determining whether exemplary damages should be awarded in a libel case.

In Horrocks v. Lowe,403 a unanimous House of Lords held that where a defendant made a speech on an occasion protected by privilege and believed the truth of his statement, he could succeed in the defense of privilege. In Horrocks, Lowe was an alderman of the Bolton town council and a member of several committees. He was a member of the Labor Party, which was a minority on the council. Horrocks was also a member of the Bolton town council, a member of the Management and Finance

Committee and a member of the Conservative Party which had a majority on the

section 6 which gave the judiciary greater authority in certain types of trials. Thus, it was Parliament’s intention that the jury rather than the judiciary should be the tribunal in defamation cases.

399 Cassell, supra. at 1066.

400 Id.

401 Id. at 1067.

402 Id. Lords Reid, Morris of Borth-y-Gest, Kenneth Diplock and Kilbrandon wrote concurrences. Viscount Reginald Dilhorne and Lord Wilberforce dissented.

403 [1974] 1 All E.R. 662.

152 council.404 He was also chairman and majority shareholder of Land Development Ltd., whose subsidiary companies engaged in the sale, purchase and development of land.405

Land Development Ltd. sold land to the Bolton Council. However, the land that

Land Development Ltd. sold the council was subject to a restrictive covenant406 that prevented the council from building on the land. A company in which Horrocks had shares built buildings on the land adjoining that bought by the council. These buildings were subsequently rented to other persons on the understanding that the adjoining lands owned by the corporation would not be built up to restrict the view on the newly built property. However, when the Bolton Council rented the land it had bought to another party, the council tried to lift the restrictive covenant so the tenants could build a club on the property. The council had problems getting the restrictive covenant lifted partly because of the assurances given to the lessees in the adjoining property. The council’s

Management and Finance Committee, of which Horrocks was a member, were forced to compensate their club-owner tenants substantially for the building that they had already begun to build and to seek alternative accommodation for them.407

Horrocks did not attend a special meeting of the Management and Finance

Committee to discuss the restrictive covenant on the Council’s property because of his conflict of interest. At the meeting, Lowe suggested that Horrocks not continue as a

404 Id. at 663.

405 Id.

406 Restrictive Covenant, WIKIPEDIA, http://en.wikipedia.org/wiki/Restrictive_covenant (last visited June 1, 2006). “A restrictive covenant is a legal obligation imposed in a deed by the seller upon the buyer of real estate to do or not to do something. Such restrictions frequently ‘run with the land’ and are enforceable on subsequent buyers of the property.” Id.

407 Horrocks. supra at 664.

153 member of the committee since his personal interests were likely to conflict with his committee membership and Lowe said he would raise the issue at a council meeting.

Before the council on November 5, 1969, Lowe recounted the facts leading to his request and added about Horrocks,

[F]or two months he has been like Achilles sulking in his tent while we waited for news. . . . I don’t know how to describe his attitude whether it was brinkmanship, megalomania or childish petulance. . . . I suggest that he has misled the town, the Leader of his party and his political and club colleagues, some of whom are his business associates.408

The trial court found that Horrocks had not acted dishonorably and Lowe’s words about him were defamatory. Although the speech was made on an occasion of qualified privilege since it involved information that was of interest to the public,409 the court held that Lowe was so anxious to have Horrocks removed from the Management and Finance

Committee that he had not considered whether the speech was justified by the evidence he had nor had he been objective in making his speech. Thus, although holding that Lowe believed what he said, the judge held that Lowe had acted with malice and awarded

Horrocks damages.410 The Court of Appeal allowed the appeal.

Lord Kenneth Diplock, speaking on behalf of the House of Lords in its 1974 decision, dismissed Horrocks’ appeal against the Court of Appeal decision. Diplock said that English law effected the ninth Commandment

[T]hat a man shall not speak evil falsely of his neighbor. It [the English law] supplies a temporal sanction: if he cannot prove that the defamatory matter which he published was true, he is liable in damages to whomsoever he has defamed,

408 Id.

409 Id.

410 Id. at 665.

154

except where the publication is oral only, causes no damage and falls outside the categories of slander actionable per se.411

However, Diplock noted the need to balance the necessity for defamed persons to have an avenue to defend their reputation with the competing public interest in allowing frank communication about matters in which individuals had an interest.412 Once such publications were made in good faith they were privileged even if they were defamatory and untrue, he said.413 The privilege, he noted, would be lost if the occasion was abused by being used for some reason other than that for what the privilege was intended to be used for.414 Thus, the motive for which the statement was made was important—if made in furtherance of a public or private duty or in the personal interest of the speaker, the statement was protected, unless some other dominant or improper motive was proved.415

If an improper motive was shown the speaker would have spoken with “express malice” and the privilege would be lost.416 If it was shown that the speaker did not believe the statement to be true this would be evidence of express malice since,

[N]o sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.417

411 Id. at 668.

412 Id. at 668–669.

413 Id. at 669.

414 Id.

415 Id.

416 Id.

417 Id.

155

A speaker or writer who published an untrue defamatory statement recklessly without regard to whether or not it was true would, similarly, be liable. However, Diplock distinguished between recklessness and carelessness, impulsiveness or irrationality in believing a statement to be true.

The freedom of speech protected by the law of qualified privilege may be availed by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare . . . for people to form their beliefs by a process of logical deduction from facts ascertained by rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognize the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be ‘honest,’ i.e. a positive belief that the conclusions they have reached are true. The law demands no more.418

Thus, a speaker or writer with a positive belief in the truth of his statement, Diplock said, would be protected by privilege.419 He cautioned judges and juries to be slow to

“draw the inference” that the statement-maker was motivated by an improper purpose.420

He said:

Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person’s conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays

418 Id. at 669. LAW.COM DICTIONARY, http://dictionary.law.com/default2.asp?typed=probative+value&type=1&submit1.x=65&submit1.y=9 (last visited June 7, 2006). Evidence that has probative value refers to “evidence which is sufficiently useful to prove something important in a trial. However, probative value of proposed evidence must be weighed by the trial judge against prejudicing the minds of jurors toward the opposing party or criminal defendant.”

419 Id.

420 Id. at 670.

156

no significant part in his motives for publishing what he believes to be true that ‘express malice’ can properly be found.

Diplock said conduct extraneous to the occasion in which privilege applied could be used to substantiate express malice where it was shown that the speaker or writer had acted with spite. However, where the only evidence of improper motives was the content of the defamatory statement or the failure to make inquiries into its truth, express malice could not be found without showing the speaker did not believe the statement to be true or was indifferent to whether it was true or not.421

Privilege could also be defeated, Diplock said, where the defamatory statement was irrelevant to the occasion giving rise to the privilege.422 He noted that the test was not whether the statement was logically irrelevant, but whether the maker did not believe it to be true or

though believing it to be true, realized that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spirit, or for some other improper motive.423

Diplock also said,

Express malice . . . means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy this privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have this effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests. The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person

421 Id.

422 Id. See Adam v. Ward, [1917] AC 309, 326–327.

423 Horrocks v. Lowe, supra at 670–671.

157

may be under a duty to pass on, without endorsing, defamatory reports made by some other person.424

Diplock noted that statements made by members of the local council at meetings were privileged since they represented the local government electorate and were free to speak on matters affecting its constituents.425 Since Lowe’s speech involved matters of local concern, it was privileged. Further, the failure to apologize to Horrocks was at best

“tenuous evidence of malice,” being consistent with continued belief in the truth of what was said, the House of Lords found.426 Thus, regardless of how “prejudiced,” or

“irrational in leaping to conclusions unfavorable to Mr. Horrocks,” the trial judge thought

Lowe was, Lowe was entitled to succeed because the occasion was privileged and he believed that what he said was the truth. The appeal was dismissed.427

Trial courts in libel actions in the period before the 1990s gave the jury minimal directions on the issues to be taken into account in making damage awards.428 This procedure had been established by practice rather than by actual law and was predicated on the constitutional role of juries in trials. 429 The effect was that, often a jury made large

424 Id. at 669.

425 Id. at 671.

426 Id. See Clark v. Molyneaux,, (1877) 3 Q.B.D. 237, decision of Lord Justice Brett (later Lord Esher). See also Royal Aquarium & Summer & Winter Garden Society v. Parkinson, (1892) 1 Q.B. at 444. But see Greer L.J.’s decision in Watt v. Longsdon, [1930] 1 K.B. at 154 had been incorrect if “reckless” meant jumping to conclusions or irrationality.

427 Horrocks, supra at 672.

428 Rantzen v. Mirror Groups [1994] Q.B. 670, 694.

429 th John v. MGN, [1996] 2 All E.R. 35, 48. See also R.J. WALKER, THE ENGLISH LEGAL SYSTEM 206 (4 ed., London, Butterworths, 1976). Walker writes, “before the present century the jury system was widely pronounced to be one of the chief safeguards of the individual against the abuse of prerogative and judicial power. The vast majority of cases, both civil and criminal, were tried by a jury and this right was thought to be essential and inviolable.” Id.

158 awards based on its personal outrage.430 Additionally, notwithstanding the fact that the jury decisions were made with very little guidance, judges had traditionally been unwilling to interfere with the jury’s awards. In 1990 the Courts Legal Services Act was passed giving the Court of Appeal the jurisdiction to substitute for damage awards that it found too excessive.431 Thus, in the period following 1990, there was a greater tendency for the Court of Appeal to substitute for excessive awards made by the lower courts rather than send cases back to the lower courts for review.

Additionally, the United Kingdom had been a signatory of the European

Convention on Human Rights since its inception in 1951. The Convention provides at

Article 10:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The European Court of Human Rights is the body responsible for ensuring that member governments do not infringe on their citizens’ rights as prescribed by the convention.432 In its decisions, the European Court of Human Rights recognized that

430 John, supra. at 48–49.

431 Courts and Legal Services Act § 8 [1990 c. 41], http://www.opsi.gov.uk/ACTS/acts1990/Ukpga_19900041_en_1.htm (last visited June 1, 2006).

432 Rantzen v. Mirror Group Newspapers, [1994] Q.B. 670, 689, quoting The Sunday Times v. United Kingdom (No. 2) (1991) 14 E.H.R.R. 229, 241–242, para. 50. In its supervisory role the European Court

159 there were circumstances in which the right to freedom of speech could be infringed.

However, the European Court held that these infringements should be both “prescribed by law” and “necessary in a democratic society.”433

Although up to 1993 the United Kingdom had not passed a statute in Parliament integrating the Convention principles into U.K. law, the Court of Appeal recognized in

1993 that the United Kingdom was bound by its treaty obligations to observe the right to freedom of expression under the Convention. Based on these obligations, in a 1993 decision, the Court of Appeal reduced damages awarded to a talk show host for a libelous statement printed against her in a newspaper from £250,000 to £110,000.

The 1993 Court of Appeal decision Rantzen v. Mirror Group Newspapers (1986)

Ltd.434 involved a successful television reporter, Esther Louise Rantzen, who presented the British Broadcasting Corporation (BBC) television program, “That’s Life.”435

Rantzen brought an action against the Mirror Group Newspapers and a journalist employed by the company, for a libel published in The People newspaper on February 3,

1991.436

did not take the place of the competent national courts, but could review its decisions under article 10. The determination was not limited to the issue of “whether the respondent state exercised its jurisdiction reasonably, carefully and in good faith;” the court also had to look at the complaint in the context of the whole case to determine whether it was “‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it were ‘relevant and sufficient.’”

433 Lingens v. Austria, 9815/82 para. 36 [1986] E.C.H.R. 7 (8 July 1986).

434 [1994] Q.B. 670.

435 Id. at 678.

436 Id. at 672.

160

Rantzen had established in 1986 a ChildLine for abused children that had counseled approximately 190,000 children over a five-year period.437 In 1989, after a former student of Crookham Court School, a private school in Berkshire, wrote to her about being abused while at the school, she began investigating Crookham Court

School.438 In making inquiries, Rantzen met Alex Standish, a teacher at the school, in

April 1989. Standish confided he found the school unsatisfactory and that it had the

“feeling of a culture of abuse.”439

Based on all the information garnered, Rantzen and her producer Richard Woolf began to compile a news story for broadcast in 1990 on abuse at the school.440 In May

1989, Woolf, a producer of Rantzen’s program, met a teacher at the school who gave him copies of pornographic documents found in Standish’s possession. Rantzen arranged interviews with Standish’s three young wards who made no complaints about Standish.

Rantzen also showed copies to ChildLine’s director of counseling and the police in

Newbury.441 Rantzen’s exposure of the Crookham school on her television program caused it to be closed down. During this time period Standish was under investigation by the police.442

In January 1990 Standish was given a teaching position in another school. In July

1990, Woolf, Rantzen’s producer, heard of this while Rantzen was overseas in Australia.

437 Id. at 678.

438 Id.

439 Id. at 679.

440 Id.

441 Id.

442 Id.

161

Woolf informed Scotland Yard, which continued to investigate the accusations against

Standish. When Woolf told Rantzen about the pictures of Standish, Rantzen met the

Minister of Government responsible for Education to inform him about Standish.443 In

July 1990, when Woolf had questioned him, the student in the pornographic photos had denied the abuse. Finally, on December 30, 1990, the student wrote a letter indicating that he had been abused by Standish.444

Several articles appearing in prominent positions in The People newspaper on

Sunday, February 3 alleged that a teacher who had helped Rantzen expose child abuse at a boys’ school in her program was a “pervert” himself. The articles also alleged that

Rantzen, although knowing the truth, did not reveal the information to either the school or the parents of the children who Alex Standish taught.445

A libel action brought by Rantzen alleged that the article implied that she had known of Standish’s secret and kept silent because he had helped her set up a program on sex abuse and, thus, she had abandoned her moral standards, particularly in relation to the children who she had openly expressed concern for.446 Rantzen’s libel complaint said the articles painted her as being insincere and hypocritical. She also said the newspaper falsely accused her of knowingly warning the newspaper off publishing a story about

443 Id.

444 Id. at 680.

445 Id. at 675–676. Journalist Brian Radford wrote a front page story in The People titled, “Esther and the pervert teacher” and “A People Investigation.” He also wrote another article on pages 4 and 5 under the headline, “Esther and the pervert she didn’t expose.” Additionally, another journalist had published an article on page 5 in the same newspaper titled, “Her Hot Line to save kids from sex abuse.” Finally, there was another leading article in The People titled “Voice of the People” and “The wrong line, Esther.” Id.

446 Id. at 677.

162

Standish, claiming it would interfere with police investigations, even though she knew the police would have welcomed such a story.447

The newspaper and other defendants pleaded justification, truth, and fair comment.

They also denied that the statements published were intended to indicate that Rantzen had kept Standish’s secret as a reward for his assistance in launching her helpline.448

The trial court, finding for Rantzen, awarded her damages of £250,000. On appeal, the Court of Appeal found the damages excessive and reduced them to £110,000.

Lord Justice Neill found, on behalf of the Court of Appeal, that the judge’s direction to the jury had been adequate. He had directed jury members that neither himself nor the attorneys could tell them what damages should be awarded, but that compensatory damages were intended to repair actual injury caused and had warned them that the damages should be “reasonable”—not be so small as to allow suspicion to linger, nor “wildly excessive.”449 He also told them to take into account the value of money and what it could purchase.450 He told them to arrive at a figure based on the factors that they believed would aggravate or mitigate the level of damages awarded.451

The Court of Appeal held that the judge had given sufficient direction on the issue of partial justification. He had told the jury that, although partial justification would not be a defense in a libel case, it could impact the damages awarded.452 The Court of Appeal

447 Id.

448 Id.

449 Id. at 681.

450 Id.

451 Id. at 681–682.

452 Id. at 682. See Pamplin v. Express Newspapers Ltd., [1988] 1 W.L.R. 116.

163 noted that the jury, by its verdict, had rejected the suggestion that the articles merely implied Rantzen had been guilty of misjudgment,453 but had decided that Rantzen had been “victimized.”454 The court rejected the argument that the trial judge misdirected the members of the jury by “inviting them to take into account” the fact that the newspaper had failed to apologize in assessing damages.455 He noted that, while the absence of an apology might not be proof of malice “it could increase the injury to the plaintiff’s feelings.”456 Thus, the Court held that the judge had not misdirected the jury in telling them they were entitled to take into account the absence of an apology.457

Lord Justice Neill also rejected the newspaper’s lawyer’s argument that the judge had misdirected the jury by telling it that it could take into account the fact that the newspaper had persisted in a plea of justification in assessing damages. While agreeing with the oft-cited position that persistence in a plea of justification was not evidence of malice unless the plea was made male fide or with bad faith, Neil said that such

453 Rantzen, supra at 682.

454 Id.

455 Id. at 683. Neill distinguished Morgan v. Odhams Press Ltd., [1971] 1 W.L.R. 1239, where the court held that failure to apologize would only aggravate damages where there was not an honest plea. He noted the defense in Morgan was that the words did not refer to the plaintiff and would not be understood to refer to him. Thus, the question of an apology did not arise. Id.

456 Rantzen, supra at 683. See Broome v. Cassell, [1972] A.C. 1027, 1071, where Lord Hailsham of St. Marylebone said,

Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. Id.

See also Sutcliffe v. Pressdam Ltd., [1991] 1 Q.B. 153, 184 where Nourse L.J. said,

The conduct of a defendant which may often be regarded as aggravating the injury of the plaintiff’s feelings, so as to support a claim for ‘aggravated’ damages, includes a failure to make any or any sufficient apology or withdrawal. . . . Id.

457 Rantzen, supra at 683.

164 persistence would inevitably aggravate the injury to the plaintiff’s feelings and the anxiety the plaintiff would feel until the case was determined.458 The Court of Appeal judge also rejected the lawyers’ arguments that the judge had not given sufficient prominence to factors that would mitigate damages.459

However, Neill agreed with the newspaper’s lawyer’s contention that the

£250,000-award was excessive. Neill said the newspaper had argued that the 1990 Courts and Legal Services Act460 allowed the Court of Appeal to intervene more readily in cases where lower court awards were too “excessive.”461 Rantzen’s lawyers argued that the law did not lower the barrier to appellate court interference with damage awards but gave the appellate court authority to substitute for the award once it was determined that the power to order a new trial could be exercised.462

Lord Justice Neill agreed with the newspaper’s attorneys. He noted that, in the past, courts had been reluctant to interfere with jury damage awards only doing so when the damages were so excessive that no 12 people could reasonably have awarded them.463

However, Neill noted that the 1990 Courts and Legal Services Act, which allowed the

458 Id. at 683–684. See Broome v. Cassell & Co. Ltd., [1972] A.C. 1027, 1125, Lord Diplock’s dicta, supra.

459 Rantzen, supra at 684.

460 [1990 c. 41]

461 Rantzen, supra at 686.

462 Id. In introducing the 1990 Act in the House of Lords, Lord Chancellor MacKay of Clashfern had said that the section had been recommended by both the 1948 Porter Committee and the 1975 Faulks Committee on Defamation. Both committees, however, suggested a wider formulation than the rule in the 1990 act. However, MacKay said, “it may be wise to allow the juries to fix damages in the first place. The difficulty of the previous formulations was to see on what grounds it would be right to allow the Court of Appeal to interfere in a jury’s verdict. That is not being touched by the amendment. It deals only with the consequences of the Court of Appeal coming to that conclusion. I believe that it is a useful although not a major change in the law.” Id. at 687. See Hansard (H.L. Debates) 20 February, 1990 at cols 170–171.

463 Rantzen, supra at 686. See Sutcliffe v. Pressdam Ltd., [1991] 1 QB 153; Gorman v. Mudd, (unreported) 15 October 1992 Court of Appeal (Civil Division) Transcript No. 1076 of 1992.

165

Court of Appeal to order a new trial when damages were “excessive or inadequate,”464 also allowed the Court to reduce the damages awarded in such circumstances.465

Lord Justice Neill also noted that the European Convention to which England was a signatory protected freedom of speech at article 10:

This right was expressly protected by remedies before national authorities under the

Convention.466

Neill noted that the newspaper’s attorneys said they recognized that the European

Convention on Human Rights had not been adopted by Parliament and the right to freedom of speech contained in the Convention could not be directly applied in the

464 Rantzen, supra at 685. See The Courts and Legal Services Act, Ord. 59, r. 11(1): “In this section ‘case’ means any case where the Court of Appeal has power to order a new trial on the ground that damages awarded by a jury are excessive or inadequate. (2) Rules of court may provide for the Court of Appeal, in such classes of case as may be specified in the rules, to have power, in place of ordering a new trial, to substitute for the sum awarded by the jury such sum as appears to the court to be proper.”

465 Rantzen, supra at 685. The Courts and Legal Services Act, Ord. 59, r. 11(4): “In any case where the Court of Appeal has power to order a new trial on the ground that damages awarded by a jury are excessive or inadequate, the court may, instead of ordering a new trial, substitute for the sum awarded by the jury such sum as appears to the court to be proper.”

466 Rantzen, supra at 686. See European Convention art. 13,

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. Id.

166

United Kingdom and should be construed subject to the provisions in English law.467

However, they argued, the application of the section had to take into account the decisions of the European Court of Human Rights.468 This meant that conditions and

restrictions on freedom of speech had to be “prescribed by law.”469 Since there was no statutory provision for the practice of allowing juries “free reign” to “award a sum of damages without any clear instruction by the court as to the principles to be applied or the precedents to be followed,” the Court of Appeal was not mandated to follow this practice, the lawyers argued.470

The newspaper also argued that the £250,000 award was also inconsistent with the

European Convention because it was not “necessary in a democratic society” to protect

Rantzen’s reputation or rights. She had suffered neither financial nor social loss from the

publication, and continued to be successful as a talk show host.471 The lawyers submitted

467 Id.

468 Id.

469 Id.

470 Id. at 687–688. See The Sunday Times v. United Kingdom, [1979] 2 E.H.R.R. 245, 271 ¶ 49, where the European Court said,

the following are two of the requirements that flow from the expression ‘prescribed by law.’ First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able—if need be with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice. Id.

471 Rantzen, supra. at 688. See Sunday Times v. United Kingdom, (No. 2), [1991] 14 E.H.R.R. 229, 241– 242, para. 50, when the European Court of Human Rights, in interpreting the word “necessary” in the statute said that because of the supreme role of freedom of speech in imparting information to the public and the public’s right to receive the information,

167 that, in reviewing such a case, the European Court of Human Rights would take into

account the fact that the jury’s deliberations had been “unguided” by the judge or legal

principles.472 The European Court would also take into account the fact that the resulting

£250,000 award was inconsistent with the “margin of appreciation” awarded by other

national courts and also with a 1986 libel decision of the European Court of Human

Rights.473

The Court of Appeal in Rantzen agreed with Rantzen’s attorneys’ argument that the

European Convention was not part of English law, but noted that the court was required to take into account the Convention to ensure the rights of the citizens under the convention.474 In the event of “an ambiguity in English primary or subordinate

legislation” courts would “presume that Parliament intended to legislate in conformity

The adjective ‘necessary,’ within the meaning of article 10(2), implies the existence of a ‘pressing social need.’ The contracting states have a certain margin of appreciation in assessing whether a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts. The court is therefore empowered to give the final ruling on whether a restriction is reconcilable with freedom of expression as protected by article 10. Id.

472 Rantzen, supra at 689.

473 Id. See Lingens v. Austria, [1986] E.H.R.R. 407, 418, where the publisher of a Vienna magazine was convicted of criminal defamation against the Austrian Chancellor, the Court noted the need to determine whether the action of the national court was “proportionate to the legitimate aim pursued.”

474 Rantzen, supra at 689. See Regina v. Secretary of State for the Home Department, Ex parte Brind, [1991] 1 A.C. 696, where the court determined the circumstances in which the court could regard the Convention. Lord Bridge explained at 747 that the court was obliged

to secure to everyone within its jurisdiction the rights which the Convention defines including both the right to freedom of expression under article 10 and the right under article 13 to ‘an effective remedy before a national authority’ for any violation of the other rights secured by the Convention. Id.

168 with the Convention and not in conflict with it.”475 In determining how its discretion

should be exercised, the court could refer to article 10 of the Convention.476

Lord Justice Neill also noted that in the 1990 decision Attorney General v.

Guardian Newspapers,477 Lord Goff of Chieveley had found that article 10 of the

European Convention on Human Rights could be regarded as an articulation of existing

English common law.478

Lord Justice Neill also noted that the newspaper’s lawyers had argued that in

awarding damages the court should take into account the United States’ Supreme Court

decisions in New York Times v. Sullivan,479 Curtis Publishing Co. v. Butts,480 Gertz v.

475 Rantzen, supra at 689. See Ex parte Brind, supra at 760, (Lord Ackner judgment), 747, (Lord Bridge judgment).

476 Rantzen, supra at 689. See Attorney General v. Guardian Newspapers, [1987] 1 WLR 1248, 1296 where Lord Templeman referred to article 10 to determine whether the grant of an interlocutory injunction would be a “necessary” interference with freedom of expression required in “a democratic society,” under article 10 ¶ 2.

477 [1987] 1 W.L.R.

478 Id. at 283. Lord Goff had said,

I can see no inconsistency between English law on this subject and article 10 of the European Convention of Human Rights. This is scarcely surprising, since we may pride ourselves on the fact that freedom of speech has existed in this country perhaps as long as, if not longer than, it has existed in any other country in the world. The only difference is that, whereas article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it. In any event I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under this treaty. The exercise of the right to freedom of expression under article 10 may be subject to restrictions (as are prescribed by law and are necessary in a democratic society) in relation to certain prescribed matters, . . . It is established in the jurisprudence of the European Court of Human Rights that the word ‘necessary’ in this context implies the existence of a pressing social need, and that interference with freedom of expression should be no more than is proportionate to the legitimate aim pursued. I have no reason to believe that English law, as applied in the courts leads to any different conclusion. Id.

See also Derbyshire County Council, supra. at 551, dicta of Lord Keith of Kinkel affirming Lord Goff’s position on behalf of the House of Lords.

479 376 U.S. 254 (1964), discussed in chapter 4.

169

Robert Welch Inc.481 and Philadelphia Newspapers Inc. v. Hepps,482 where the Court in the United States had held that, where a newspaper article was of public concern, the plaintiff in a libel suit was required to prove fault before recovering damages.483 The lawyers noted that in the 1993 United Kingdom case, Derbyshire County Council v.

Times Newspapers Ltd.,484 Lord Keith of Kinkel held it was inconsistent with public interest for local and central government institutions to maintain damage actions for defamation.485 In Derbyshire, Lord Keith had noted specifically the decisions of the

Supreme Court of Illinois in City of Chicago v. Tribune Co.486 and the federal Supreme

Court in New York Times v. Sullivan,487 where the American courts had recognized the need to protect journalists from libel suits brought by public officials. In Derbyshire Lord

Keith said of the United States cases:

While these decisions were related most directly to the provisions of the American Constitution concerned with securing freedom of speech, the public interest considerations which underlied them are no less valid in this country. What has been described as ‘the chilling effect’ induced by the threat of civil actions for libel is very important.488

480 388 U.S. 130 (1967), discussed in chapter 4.

481 418 U.S. 323 (1974), discussed in chapter 4.

482 475 U.S. 767 (1986), discussed in chapter 4.

483 Rantzen, [1994] Q.B.D. 670, 689.

484 [1993] A.C. 534.

485 Rantzen, [1994] Q.B.D. 670, 690.

486 139 N.E. 86 (1923). In City of Chicago v Tribune Co., the Supreme Court of Illinois held that it was more important that even irresponsible newspapers go unpunished than for citizens to be “in jeopardy of imprisonment or economic subjection” for criticizing an “inefficient or corrupt government.”

487 376 U.S. 254 (1964). In New York Times v. Sullivan, the United States Supreme Court had held that in the case of public person libels, in establishing liability the plaintiff had to prove actual malice which constituted knowledge of falsity and reckless disregard for whether or not a statement was true.

488 Derbyshire County Council v. Times Newspapers Ltd., [1993] A.C. 534, 548.

170

The newspaper’s attorneys in Rantzen submitted that, because of the public interest in freedom of expression, the level of damages awarded by juries in defamation cases needed to be re-examined, along with rules of practice prohibiting judges from providing assistance to juries on what damages could be awarded.489 The newspaper’s attorneys

also argued that the practice of allowing juries to award damages in “vindication of the

plaintiff” or aggravated damages was inconsistent with the principle of compensation

because it facilitated awards to be made based on the jury’s indignation even where

exemplary damages could not be awarded.490

Neill was concerned about the lack of guidance given to juries in libel cases.491

Since the procedure in libel trials where the jury was given no guidance was procedural

rather than a matter of law, the court was not bound by it, Neill said, though the court

could only depart from established practice with good reason.492 In his decision in

Rantzen, Lord Justice Neill of the Court of Appeal said it was impossible to calculate

489 Rantzen, supra. at 690.

490 Id.

491 Id. at 693. Neill noted that at the conclusion of one trial Savalas v. Associated Newspapers Ltd., (unreported), 15 June 1976, the foreman of the jury had admitted in a letter to The Times published on 22 June 1976:

It is no betrayal of the secrets of the jury room to confess that, with the other jurors, I entered the Royal Courts of Justice on 14 of June with not the remotest idea what compensation is paid for anything except, perhaps, a dented boot and wing; haloes are outside our normal terms of reference. Apparently that is why we were asked. If that is so, the court had the outcome it deserved from the appointed procedure. Id.

492 Rantzen, supra at 692 Neill noted that before the 1950s decision Bird v. Cocking & Sons Ltd., (1951) 2 T.L.R. 1260 and Rushton v. National Coal Board, (1953) 1 Q.B. 495, judges did not allow awards in previous cases to be cited to them in determining damages. But, in relation to guidance in damages for jury cases, the courts had declined to allow the jury to be guided by awards in previous cases (See Ward v. James, (1966) 1 Q.B. 273 where Lord Denning rejected the submission that juries should be apprised of damages awarded in earlier personal injury cases). As late as 1991, in Sutcliffe v. Pressdam Ltd., [1991] 1 Q.B. 153, the House of Lords approved the decision in Ward, noting it applied with greater force in libel cases.

171 damages in advance accurately, but, as the law stood, no one could foresee the consequences of the exercise of the right to freedom of speech once the statement was adjudged libelous since it differed from jury to jury.493 Neill, in Rantzen, held that the

“grant of an almost limitless discretion to a jury” was not a good measure of what was

“necessary in a democratic society” or “justified by a pressing social need.”494 Thus, he said, the common law required the court to “subject large awards of damages to a more searching scrutiny” than in the past.495 Neill then turned to the question of whether a

“reasonable jury” could have believed the award was necessary to compensate Rantzen and re-establish her reputation.496 The European Court of Human Rights had held that a norm was not a law unless “‘formulated with sufficient precision to enable the citizen to regulate his conduct’ and foresee, if need be with appropriate advice, the consequences which a given action may entail.”497 Thus, Neill said in Rantzen, there were three possible approaches that could be used in guiding juries on the assessment of damages.498

• references to other jury awards; • references to awards by the Court of Appeal in defamation cases;499

493 Rantzen, supra at 688.

494 Rantzen, supra. at 692. In interpreting the word “excessive,” took into account the position determined in Goff’s decision.

495 Id.

496 Id.

497 Id. See Sunday Times v. The United Kingdom, [1977] 2 E.H.R.R. 245, 271.

498 Rantzen, supra at 692.

499 Id. Courts and Legal Service Act § 8(2) [1990 c. 41] provides that in

any case where the Court of Appeal has power to order a new trial on the ground that damages awarded by a jury are excessive or inadequate” the “[r]ules of court may provide for the Court of Appeal, in such classes of case as may be specified in the rules, to have power, in place of ordering a new trial, to substitute for the sum awarded by the jury such sum as appears to the court to be proper. Id.

172

• references to conventional awards in personal injury actions.500

In relation to the first reference used in guiding juries in making libel awards, the judge dismissed references to previous jury awards as an option since jury awards in the past had been made without guidance and so could not constitute a norm.501 The second method of guiding juries suggested by Lord Neill was references to Court of Appeal awards in other defamation cases. Lord Neill said he regarded the awards made by the

Court of Appeal as reliable in establishing a norm. He noted that, in passing the 1990

Courts and Legal Services Act, Parliament must have intended that the Court of Appeal would develop a body of guiding principles over time.502 Preventing reference to such awards, he said, would be inconsistent with the principle that “restrictions on freedom of expression should be prescribed by law.”503

The judge rejected the third means identified for guiding juries on damage awards, the use of awards given in personal injury cases. Lord Neill said that in the 1965 case,

McCarey v. Associated Newspapers Ltd. (No. 2),504 Lord Diplock in the House of Lords decision had said:

I am convinced that it is not just . . . that in equating incommensurables when a man’s reputation has been injured the scale of values to be applied when equating those other incommensurables, money and physical injuries. I do not believe that the law today is more jealous of a man’s reputation than of his life or limb. That is the scale of values of the duel. Of course, the injuries in the two kinds of case are very different, but each has as its main consequences pain or grief, annoyance or unhappiness, to the plaintiff . . . I do not accept that that higher scale of values in

500 Rantzen, supra at 694.

501 Id.

502 Id.

503 Id.

504 (1965) 2 Q.B. 86.

173

defamation cases is sanctioned by the law. It is, I think, legitimate as an aid to considering whether the award of damages by a jury is so large that no reasonable jury could have arrived at that figure if they had applied proper principles to bear in mind the kind of figures which are proper, and have been held to be proper, in cases of disabling physical injury.505

However, in Rantzen, Lord Neill noted that, in Broome v. Cassell & Co.,506 the

House of Lords had rejected the idea of a “satisfactory” relationship between damages in defamation and personal injury cases.507 Neill said that, under the existing procedure, where juries made awards with little direction, a plaintiff in a libel action could recover larger damages for transient damage to his reputation than the victim in a personal injury action where the effect on his mobility might be more lasting. Nonetheless, Lord Neill asserted that there was “no satisfactory way in which the conventional awards in actions for damages for personal injuries” could be applied in libel actions.508 He reaffirmed that damages in libel actions were partly aimed at the vindication of the plaintiff’s reputation.509 Thus, the Court of Appeal rejected the proposal that awards in injury actions should be used to guide the jury in assessing damages in libel actions.510

505 Id. at 109–110. See also Australian case Coyne v. Citizen Finance Ltd., (1991) 172 C.L.R. 211, holding “it would be quite wrong for an appellate court, entrusted with hearing appeals in both defamation and personal injury cases to be indifferent to the need to ensure that there was a rational relationship between the scale of values applied to the two classes of cases.” Id.

506 [1972] A.C. 1027.

507 Rantzen, supra 694. See Cassell, supra at 1071, holding of Lord Hailsham of St. Marylebone distinguishing damages in libel cases from damages in personal injury cases because in libel cases, in addition to recovering for the “estimated sum of his past and future losses” but damages to ensure him if the damage to his reputation arose again. Thus, the judge said, libel awards should include “factors for injury to feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant.” Id.

508 Rantzen, supra. at 695.

509 Id. See Uren v. John Fairfax & Sons Pty. Ltd., [1966] 117 C.L.R. 118, 150, dicta of Justice Windeyer. See also Broome v. Cassell, [1972] A.C. 1027, 1071, opinion of Lord Hailsham.

510 Rantzen, supra at 695.

174

In addition to being guided by principles determined in the Court of Appeal, as the

Court of Appeal started to develop a body of case law, Neill said juries should be instructed to consider the purchasing power of the award they were making and to ensure the award was proportionate to the injury suffered by the plaintiff.511

In the Rantzen case, Neill noted, the jury could conclude that the publication and its aftermath were “a terrible ordeal” for Rantzen, but her career had not been affected by the article and her work in combating child abuse continued to be respected and applauded.

Thus, he held, the Court of Appeal had power to—and should—substitute for the jury award which was excessive by “any objective standards of reasonable compensation or necessity or proportionality.”512 The Court of Appeal exercised its power under the 1990

Courts and Legal Services Act to substitute the £110,000 for the jury award of

£250,000.513

Based on the principles determined in Rantzen, in the 1996 case, John v. MGN

Ltd,514 the Court of Appeal reduced a £350,000-damage award to £125,000. The Court of

Appeal in John also established firm guidelines for making awards of compensatory and exemplary damages. In John, a December 1992 edition of an English national newspaper,

MGN Ltd., included an article alleging that superstar Elton John was addicted to a

“bizarre new diet” which he titled “Don’t swallow and get thin diet.” John sued the newspaper for libel.515 The article, titled “Elton’s Diet of Death,” and “Secret of slim

511 Id. at 696.

512 Id.

513 Id. Courts and Legal Service Act § 8(2) [1990 c. 41], supra at note 429.

514 [1996] 2 All ER 35.

515 Id. at 39.

175

Elton’s spitting image,” was accompanied by two photographs of John, one in which he was chubby and one in which he was thin. The sources for the story were Lisa Stanley and Darla Campbell, both of whom were uninvited guests at a Christmas party given by

John’s manager, John Reid, in Los Angeles and claimed to have conversed with the superstar.516

Before publishing the article, the Sunday Mirror had contacted John’s attorney, telling him that they were about to publish the story. John’s attorney, Frank Presland said he warned the newspaper’s editor that it was unlikely that the story was true and that he should be careful in printing it. The editor replied to this warning that the story was based on information from “usual reliable sources.” Presland warned him that he often successfully sued newspapers that had told him that.517

The article was published on December 27, 1992.518 John’s attorneys wrote the newspaper claiming that the article was completely based on invention and plainly libelous and asked for a full and unqualified apology.519 The editor replied that the newspaper was investigating the matter, but the sources insisted that John had attended the party and made the comments. The editor asked where John was at the relevant time.520

The attorney filed the libel suit on January 6, 1993 and, approximately two months later, on March 11, the newspaper wrote John’s attorney a full apology indicating that

516 Id. at 40.

517 Id. at 40–41.

518 Id. at 41.

519 Id.

520 Id.

176 they would take John’s word, but believed their sources honestly believed the story to be true. They attached a draft of the apology they would publish in the newspaper for comments, and indicated they would also make the agreed statement in open court.521

The letter continued:

Notwithstanding the observation in your letter of 29 December, we feel sure that Mr. John will share our view that this is not, in fact, a case where ‘very substantial damages’ would be appropriate. . . . Nonetheless, as a mark of our sincerity and that of our proposed apology and in order that Mr. John should be spared the considerable inconvenience of attending Court to secure a sum of damages to vindicate his reputation, we propose that, in return for your client discontinuing his action: 1. We pay the sum of (figure omitted) to any cause or charity which Mr. John may care to nominate, . . . 2. We publish an apology in an agreed form. 3. We join in, if your client wishes, a Statement in Open Court. 4. We meet your client’s reasonable indemnity costs.522 We trust our offer will be accepted in the conciliatory spirit in which it is made, and we look forward to hearing from you at your earliest convenience.

The apology proposed read:

Elton John—Apology On 27 December 1992 the Sunday Mirror published an article headlined “Elton’s ‘diet of death.’” This was based on a freelance report of his purported attendance at a party given by his manager John Reid in Hollywood. Although it was published in good faith we are informed by Mr. John, and we fully accept, that he did not attend the party and accordingly our comments about his dietary habits were without foundation. We apologize unreservedly to Mr. John for the distress caused by the article and we propose to make an appropriate donation to a charity of his choice.

John’s solicitors rejected the apology, objecting to the newspaper’s claim that the situation was one where Elton John’s identity had been mistaken. The lawyers sought a fuller explanation of the background to the publication.523 In its defense in the action for

521 Id.

522 Costs awarded to indemnify a person against current and future injury to them. In the case of libel cases this relates to their reputation.

523 John, supra at 42.

177 libel, the newspaper had denied that the words were defamatory.524 Presland, John’s attorney, wrote the newspaper’s solicitor on August 12 indicating that if the editor would admit “the article was a wholly invented piece of fiction which was irresponsibly published, then we may be able to make some progress.”525 The newspaper refused to do this indicating that the

[H]eadline, in itself would be accurate if it referred to [John’s] self-confessed 17 years of drug and dietary abuse which, if it had gone unchecked, [would] have brought his life to a premature close. Your client freely admits to the possession and use of illegal drugs and must be extremely fortunate not ever to have been prosecuted for such use.526

Despite continued communication throughout the summer and the start of autumn, the impasse between John and the Mirror could not be broken.527 John’s action was amended to include a claim for exemplary damages, particularizing the fact that John had not attended the party, and would be distinctly identifiable by people at any Los Angeles party.528 The claim also noted that it would have been prudent for the newspaper to ascertain the accuracy of the account of John’s presence at the party by asking either John or his manager, the host of the party.529 Since the newspaper had not contacted either

John or his manager, the action claimed, it had acted with reckless disregard of whether the statement was true or not. Further, John complained in his action, the paper had

524 Id.

525 Id.

526 Id.

527 Id.

528 Id. at 43.

529 Id.

178 sensationalized the words in such a way as to entice customers to purchase the Sunday edition of the paper, in a manner calculated to make financial gain for itself.530

In the transcripts of interviews with Darla Campbell and Lisa Stanley, it appeared that they had stumbled into a party uninvited but been welcomed by Reid.531 They had seen a man who looked like Elton John and the people in the kitchen were calling him

“Elton.”532 They had never seen John in person before, but Lisa Stanley said,

Come on, I was born and raised in this town, [sic] in my life I have seen him in concert about a dozen times. I am not from the Boondocks. I mean he did look thinner than the normal Elton John, and he does have those hair things [sic].533

Campbell, giving a similar description, had no doubt that the man she saw was

Elton John.534 John’s attorneys indicated in open court that when the matter started in

November 1993, they would plead that, on the basis of the evidence, parts of the story were pure invention.535

At the November 1 trial, John provided evidence along with his attorneys and several other of his clients and representatives to whom the newspaper had indicated it had spoken. After all the evidence had been heard, in summing up for the jury, the judge told the jury to bear in mind John’s evidence that he had addiction problems with drugs, alcohol and eating in the past and had worked hard on giving them up. He had taken a year and cured himself at a hospital in Chicago, attended meetings of Alcoholics

530 Id.

531 Id. at 45.

532 Id.

533 Id.

534 Id.

535 Id. at 46.

179

Anonymous, Narcotics Anonymous and Overeaters and Bulimia Anonymous. After curing himself, he had appeared on the David Frost show and publicized that he was cured. Thus, John said in evidence, the publication of the article was particularly distressing for him. Elton John was at his home in Atlanta, Georgia, when his mother, who got the English newspaper, telephoned him and read the article to him, John said. He was angry since the “most satisfactory thing” he had done in his life was to admit and conquer his drug problem and the article alleged that he had not conquered the problem,

John said.536 The judge urged the jury to take these factors into consideration.

John Reid, John’s manager, at whose house the party had been held, testified that the two girls had been asked to leave the party because they were drunk. Other representatives of John, whom the newspaper editors alleged it had attempted to speak to before publication, also testified about their availability during normal office hours on the dates in question and said there was no record of a call from the newspaper.537

The newspaper’s attorneys had submitted that exemplary damages should not be left to the jury since the newspaper could not be liable for any reckless behavior on the part of the reporter, if that was indeed established.538 The judge rejected the argument, noting that there was evidence for the jury to determine whether the reporter was reckless, for which the newspaper would be vicariously liable.539 The judge also said that, in addition to determining whether the words were defamatory, the jury had to determine what, if any, compensatory and/or exemplary damages could be awarded to John.

536 Id. at 46.

537 Id.

538 Id.

539 Id.

180

Once the jury received the case, it took it four hours to determine by an 8–2 vote that the article defamed John.540 After two more hours, the jury made an award of

£75,000 compensatory damages and £275,000 in exemplary damages by the same majority.541

The newspaper appealed on the basis that the question of exemplary damages should have been withdrawn from the jury. The newspaper’s attorneys also alleged that the jury had been misdirected on the situations in which exemplary damages could be awarded and that the sum awarded for exemplary damages was excessive. The attorneys also alleged that the judge had misdirected the jury on compensatory damages and the sum awarded was inconsistent with earlier awards made in the Court of Appeal in

Rantzen. Finally, the newspaper’s lawyers argued the awards of compensatory and exemplary damages restricted the newspaper’s right to freedom of speech under the

European Convention.542

Sir Thomas Bingham, Master of the Rolls in the Court of Appeal, in delivering the opinion of the Court of Appeal, noted that a successful plaintiff in a libel action was entitled to damages to compensate “for the damage to their reputation, vindicate his good name and take account of the distress, hurt and humiliation” caused by the defamatory publication.543 Thus, the most important factor in assessing compensatory damages was the “gravity of the libel,” and the more “closely it touche[d] the plaintiff’s personal

540 Id.

541 Id. at 47.

542 Id. at 47.

543 Id.

181 integrity, professional reputation, honor, courage, loyalty and the core attributes of his personality, the more serious it [was] likely to be.”544

Secondly, he said, the extent of the publication was relevant since “a libel published to millions has a greater potential to cause damage than a libel published to a handful of people.”545

Thirdly, while damages should always vindicate the plaintiff’s reputation, “the significance of this is . . . greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libelous publication took place,” Bingham said.546 “It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct in the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologize, or cross-examines the plaintiff in a wounding or insulting way.”547

Bingham noted that the survival of jury trials in libel cases had prevented the development of a “precise, arithmetical formula to govern the assessment of general damages in defamation”548 since respect for the constitutional role of the jury had

544 Id. at 48.

545 Id.

546 Id.

547 Id.

548 Id.

182 traditionally prevented judges presiding at such trials from moving outside a statement of general principles, to give guidance to the jury.549

Bingham noted that the practical disadvantages of the approach where the jury was given only minimal directions on making damage awards were now manifested in several jury awards that were disproportionate to the injury suffered, since juries had no

“instinctive sense of where to pitch their awards.”550 He noted that following the passage of the 1990 Courts and Legal Services Act and RSC Ord. 59, r 11(4), the Court of Appeal was empowered to substitute for sums wrongly awarded by juries.551

The newspaper’s lawyer argued that in assessing damages in libel cases the jury should be allowed to refer to awards made in personal injury cases. The lawyer did not believe that awards made by the jury or the Court of Appeal in libel cases were effective in guiding the jury in making libel awards. The lawyers noted that the Court of Appeal in

Rantzen had envisaged the development of a body of Court of Appeal decisions highlighting principles on which damages could be assessed. However, the body of cases on computing damage awards in the Court of Appeal that Lord Neill had anticipated would build up had not yet materialized to provide guidance for the jury. He also argued

549 Id.

550 Id. at 48–49.

551 Id. See Gorman v. Mudd, [1992] CA Transcript 1076, where an award of £150,000 to a member of Parliament against her constituent for a libel in a mock press release was reduced to £50,000 by the Court of Appeal. Although the defenses of qualified privilege and justification were rejected by the jury who believed the statement was actuated by spite, the Court of Appeal found the award was grossly and seriously excessive and substituted the award. See also Rantzen, [1994] Q.B.D. at 694. See also Houston v. Smith, [1993] CA Transcript 1544, where damages of £150,000 awarded to a general medical practitioner against his former partner who libelously alleged he had sexually harassed her were found excessive by the Court of Appeal and reduced to £50,000. On June 8, 2006 the exchange rate between the U.S. dollar and the British Pound Sterling was approximately 1/1.87 respectively. See Forex Capital Markets Currency Converter, http://www.fxcmtr.com/education/what-moves-rates/currency- converter.html?engine=ovtus+converter+converter&keyword=foreign+currency+conversions&CMP=SFS- 70130000000C5ygAAC (last visited June 8, 2006).

183 that, despite the Rantzen decision, jury awards continued to be excessive in libel cases.552

He argued that the Australian courts were increasingly beginning to embrace the use of personal injury awards as guidance in determining libel awards.553 He also argued that the £350,000-award in John was excessive under article 10 of the European Convention on Human Rights, as interpreted by the House of Lords decision in A-G v. Guardian

Newspapers.554

Bingham agreed with the newspaper’s contention that the decision in Rantzen should be reviewed since a legal process was required to “yield a successful plaintiff appropriate compensation, that is, compensation which is neither too much nor too little.”555 Since the court was not bound by practice in the area, such review was possible.

Bingham identified four ways in which juries could be guided in awarding compensatory damages. The first was reference to jury awards in comparable actions.

Lord Bingham agreed with the decision in Rantzen that previous jury awards had been made without guidance and so were unreliable markers.556

The second guide given by Bingham for awarding compensatory damages was to refer to awards approved or substituted for by the Court of Appeal. Bingham again

552 John, supra.at 49.

553 Id. at 50–51. In Coyne v. Citizen Finance Ltd., [1991] 172 C.L.R. 211, the minority in the court favored the reference to personal injury awards in directing libel juries. However, in the 1993 decision, Carson v. John Fairfax & Sons Ltd., (1993) 178 C.L.R. 44, the majority was of the opinion that the awards assessed in personal injury actions should be used as a guide in assessing damages in libel actions.

554 See id. at 51. See A.G. v. Guardian Newspapers Ltd., [1988] 3 All E.R. 545, 580– 582,597,615,627,652,660. See also Miloslavsky v. U.K. (1995) 20 E.H.R.R. 442 holding that a £1.5 million-award was a violation of a citizens rights to freedom of expression under art. 10 of the European Convention because of its large size and the lack of safeguards against such a large award.

555 Id.

556 Id. at 51. Bingham noted that in the future they could become more reliable as trial judges began to guide the jury men more effectively.

184 agreed with dicta in the Rantzen case that such awards would afford good guidance once a body of such decisions was developed.557

The third alternative, reference to the scale of damages awarded in personal injuries actions, Bingham noted had been rejected in Cassell v. Broome, and the 1990 decision

Sutcliffe v. Pressdam558 and in Rantzen because the nature of the damages awarded in the two cases were different, since libel cases allowed damages in vindication of “injured feelings and anxiety” and other issues that were discretionary.559 Nonetheless, Bingham said judges and juries should be allowed to use personal injury awards as guidance in libel cases.560 Bingham acknowledged the merit to the arguments that using personal injury awards as a measure of damages in libel cases introduced the use of a new

“incommensurable” element to the process of assessing damages and the low level of personal injury damages added to the uncertainty about what damages should be awarded.561 Nonetheless, he said, where awards ranging between £52,000 and £90,000 were made for pain and suffering and loss of amenities, the jury should be asked to determine whether the injury caused to the plaintiff’s reputation “should fairly justify any greater compensation.”562 He said:

557 See id. at 52. This was so despite the fact that time might be wasted in the process of comparing different damages awarded in each court.

558 [1990] 1 All ER 269, where the court rejected the analogy between libel and personal injury damages because the modes of trial were different and the measure of damages differed since the court had to take into account aggravation.

559 John, supra at 52.

560 Id.

561 Id. at 54.

562 Id.

185

The conventional compensatory scales in personal injury cases must be taken to represent fair compensation in such cases unless and until those scales are amended by the courts or by Parliament. It is in our view offensive to public opinion, and rightly so, that a defamation plaintiff should recover damages for injury to reputation greater, perhaps by a significant factor, than if that same plaintiff had been rendered a helpless cripple or an insensate vegetable. The time has in our view come when judges, and counsel, should be free to draw the attention of juries to these comparisons.563

The fourth guideline to damage awards, Bingham said, should be submissions by lawyers about the appropriate damages, coupled with guidance from the judge as to the appropriate bracket.564 Bingham noted that this was done in personal injury cases that had been tried by juries in the past.565 However, he also noted that in the 1965 case, Ward v.

James,566 the Court of Appeal had rejected this procedure since there was danger of the process developing into an auction.567 Similarly in 1990 in Sutcliffe v. Pressdam,568 the

Court of Appeal had rejected the use of the judge’s and counsels’ suggestions on appropriate levels of damages, since any jury rejection of that guidance could be an invitation for the disadvantaged to appeal. The Court of Appeal in Sutcliffe said that to

563 Id.

564 Id.

565 Id.

566 [1965] 1 All E.R. 563, 576.

567 John, supra. at 54. See Ward v. James, [1965] 1 All E.R. 563, 576, holding

If the judge can mention figures to the jury, then counsel must be able to mention figures to them. Once that happened, we get into the same trouble again. Each counsel would, in duty bound, pitch the figures as high or as low as he dared. Then the judge would give his views on the rival figures. The proceedings would be in danger of developing into an auction. Id.

568 [1990] 1 All E.R. 269, 262.

186 the degree that juries accepted the guidance from the judges and counsels, the role of the jury in awarding damages would be negated.569

However, Lord Bingham rejected the rationale of the courts in both Ward and

Pressdam. Lord Bingham contended that providing the jury guidance on damage amounts from the lawyers and the judge would not create an auction atmosphere but would “induce a mood of realism on both sides.”570 He noted that it was the practice in personal injury cases for counsel to suggest estimated damage amounts in their arguments to the judge. Although the judge was not bound by the suggestions, these estimates would be helpful to him in checking his own assessment.571 Bingham also suggested that the figures suggested by both counsel would reflect the lower and higher end of damages that could be awarded.572 Bingham said that the changes in assessing compensatory damages would not undermine the position of the jury, but would instead “buttress the constitutional role of the libel jury by rendering their proceedings more rational and so more acceptable to public opinion.”573

Bingham turned to the principles to be used in assessing exemplary damages. The

Court of Appeal judge held that, before awarding exemplary damages, the publisher should have published the article with knowledge of falsity and the mercenary objective of making profit.

569 John, supra at 55.

570 Id.

571 Id.

572 Id.

573 Id.

187

He noted that past cases and texts574 had established the following principles in awarding and assessing exemplary damages:

• Exemplary damages awards can only be made where the defendant “knew he was committing a tort or was reckless to whether his action was tortious or not, and decided to publish because the prospects of material advantage outweighed the prospects of material loss.”575 • However, the mere fact that the article was published for profit would not suffice to justify the award of exemplary damages.576 • Exemplary damages can be awarded where the jury determines that the compensatory damages award (including aggravated damages) was not sufficient to punish the defendant. However, the sum should only be increased where the sum awarded for compensatory and aggravated damages is “insufficient.” Then the court or jury could add enough to make the damage award sufficient. • Ultimately, the sum awarded in damages should be a single sum including aggravating or exemplary damages • The means of the parties—irrelevant in determining compensatory damages—can be taken into account in determining exemplary damages.577

Bingham agreed with the newspaper’s attorneys that the award of exemplary damages could only be made where, notwithstanding the fact that the publisher knew that the story was untrue, he published because he wanted to make a profit. Although no

“precise arithmetical calculation” was required before exemplary damages could be awarded, the publisher should have “acted in the hope or expectation of material gain,”

Bingham said. Thus, the publisher’s motivation should be mercenary before the jury could make an award for exemplary damages.578 Bingham said, however, that the proof of the mercenary nature of this charge should be clear and should not be lightly drawn.

574 Id. See Court of Appeal decision Riches v. News Group Newspapers Ltd. [1985] 2 All E.R. 845, 850. nd See also DUNCAN AND NEILL ON DEFAMATION para. 18.27 (2 . Ed., 1983).

575 John supra at 55.

576 Id. at 55–56

577 Id. at 56.

578 Id. at 58.

188

Thus, in Manson,579 the trial judge directed the jury that the mercenary intention could only be inferred where, the only inference that could be drawn from the proved facts was that the publisher’s motive was mercenary and this position was “quite inescapable.”580

Bingham also agreed in John that, once the relevant mercenary calculation was in place allowing the award of exemplary damages, exemplary damages could only be awarded where compensatory damages were insufficient to punish the defendant and deter the conduct by others.581 In computing full damages, the exemplary award should be added to the compensatory award. Also in computing exemplary damages, no account should be taken of the costs that either party would bear. However, the jury should take into account “the means of the defendant,” the degree of fault and the profit made by the publication.582

Bingham compared exemplary damages to a criminal penalty. Although the money was paid to the plaintiff instead of the state, it was not meant to compensate him. But the award should not exceed the minimum needed in the public interest of “punishing the defendant, showing that tort does not pay and deterring others.”583

The newspaper’s attorney noted that the “straightforward but relatively rare” cases where the publisher knew he was committing a tort was defined in the 1889 Court of

579 (1965) 2 All E.R. 954, 959.

580 Id. at 959.

581 John, supra at 58.

582 Id.

583 Id.

189

Appeal decision, Derry v. Peek.584 In Derry Lord Herschell had indicated that fraud was required and he defined the state of mind as:

fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth.585

The publication’s attorney stressed the fact that, in Herschell’s formulation of the state of mind, “recklessness or carelessness of whether a statement [was] true or false” depended on the “lack of honest belief” in the truth of a statement.586

Lord Bingham, in John v. MGN, noted that, in directing the jury on the standard to be used in determining whether exemplary damages should be awarded, the words

“reckless, not caring whether the publication was true or false” had been “sanctioned by long usage and [were] not incorrect.”587 However, Bingham was concerned that the phrase “not caring whether the publication [was] true or false” might confuse the jury into thinking that “mere carelessness” was sufficient to make an award of exemplary damages.588 Thus, Bingham said, in the future, in determining whether exemplary

584 (1886–1890) 14 AC 337.

585 Id. at 374. See also Manson v. Associated Papers Ltd., [1965] 2 All E.R. 954, 957, where Justice Widgery said exemplary damages could be awarded “in a case in which a newspaper quite deliberately publishes a statement which it either knows to be false or which it publishes recklessly, careless whether it be true or false. . . .”

586 John, supra at 56.

587 Id. at 57.

588 Id.

190 damages could be made, the direction to the jury should focus on “a lack of honest genuine belief in the truth of what is published.”589

Bingham noted that the newspaper’s attorneys in John v. MGN had argued that exemplary damages were “exceptional and anomalous” and, in light of the broadening of freedom of speech provided for in article 10 of the European Convention on Human

Rights, the circumstances in which exemplary damages could be awarded could not be enhanced.590 Thus, under article 10 any restriction on freedom of expression should be

“prescribed by law” and “necessary in a democratic society.”591 Lord Bingham contended that there was no conflict between the European Convention and the English common law.592 Thus, for Bingham, the European Convention reinforced and buttressed the position in the English law set out by him in John v. MGN.593

After laying down the principles for determining the award of compensatory and exemplary damages, Bingham turned to the jury instruction given by the trial judge in

John v. MGN. He noted that in determining compensatory damages, the trial judge in

John v. MGN had directed the jury to take into account the extent of the publication,594 the prominence of the publication and the words used.595 The trial judge had also told the jury to take into account the “upset, hurt and distress caused to” Elton John along with

589 Id.

590 Id. at 56.

591 Id.

592 Id. at 58.

593 Id.

594 Id. at 59. The judge noted that a publication to national audience would reach a larger audience than in a local paper. Id.

595 Id. at 59. An article on the front page was more prominent than one in the middle, the judge said.

191 the damage caused to his character and reputation.596 The trial judge reminded the jury of the evidence Elton John had given regarding how the article had hurt him. The judge pointed to the apology drafted and said that, although it had not been agreed by the parties it was open to the newspaper to publish an apology at anytime. The judge had warned the jurors to bear in mind the value of money awarded.597

Bingham noted that in his directions the judge had made some blunders. Thus, for example, the trial judge had misquoted the letter of March 11, 1993, giving the impression that the newspaper—rather than its sources—remained convinced of the truth of the published information.598 However, Bingham noted that the jurors had copies of the letter and could read the content of the letter for themselves. Bingham said the imperfections of the directions given by the trial judge did not amount to a misdirection.599

Nonetheless, the Court of Appeal believed that the £75,000-compensatory-damage award was excessive and substituted a £25,000 award.600 In coming to this position the court, Bingham noted, considered the prominence of the article; the distress and hurt described by the plaintiff; the fact that, though offered, no apology was made; and that

John was known internationally so that it was likely that all the readers of the newspaper knew who he was. However, Bingham said, although the article was “false, offensive and

596 Id.

597 Id.

598 Id.

599 Id.

600 Id. at 60.

192 distressing” it did not attack John’s personal integrity or damage his reputation as an artist.601

In relation to the issue of exemplary damages, Bingham noted the newspaper reporter had made no cross checks regarding the story and the only source checked,

John’s attorney, had indicated it was ‘bizarre.”602 Bingham decided that, based on the evidence, there had been sufficient evidence of recklessness603 and, because of the prominence given to the story, a consideration of making a profit, to leave these issues to the jury.604 Thus, the jury had the authority to find that John was entitled to exemplary damages and make the award.

Although deciding that the judge’s direction was not faulty, Bingham found the

£275,000 exemplary damage award was too high and reduced the award for exemplary damages from £275,000 to £50,000. Thus, the total damages were reduced from

£350,000 to £125,000.605

2.10 Conclusion

In the United Kingdom today parliament is sovereign. There is no written constitution. The United Kingdom is governed by a parliamentary democracy with the

Queen as head of government in title alone. Parliament is sovereign. Nonetheless the system embraces Montesquieu’s separation of powers with a government consisting of three branches – the legislative, executive and judicial branches.

601 Id.

602 Id.

603 Id. at 62.

604 Id.

605 Id. at 64.

193

The British press is seen as free by Freedom House’s standards. The major problem appears to be a movement toward conglomeration in the media. The right to freedom of speech emanates from common law and not the Constitution. In fact, the right to protect reputation is more strongly defined in the English law than the right to freedom of speech. In determining whether a statement is libelous the English courts will look at the words according to their natural meaning.606 The plaintiff in libel cases must prove that the statement referred to him, was defamatory and was published. However, in the United

Kingdom, malice is inferred in a libel case.

Under English law truth or substantial truth is a defense in an action for libel at both common law and by statute. Similarly fair comment on a matter of public interest and qualified privilege are also defenses at common law and by statute. U.K. statutes also provide for defenses in the case of accurate reports on proceedings in a tribunal and, since

1952, the special defense of an offer of amends, constituting an apology or correction, steps to notify persons to whom the article was published that it was incorrect and payment of money in compensation and for costs. The offer of amends, if accepted, brings the libel action to an end. A simple apology has the effect only of mitigating damages.

The English jurisprudence has established that where a statement is made in good faith and the speaker has an interest—or where there is a public or private duty to make a communication—the speaker is protected by privilege.607 However, the fact that a person has an interest in a statement does not automatically make the communication

606 Slim v. Daily Telegraph Ltd. [1968] 1 All E.R. 497.

607 Toogood v. Spyring, (1834) 149 Eng. Rep. 1044. See also Harrison v. Bush (1855) 119 Eng. Rep. 509.

194 privileged.608 Under English law, the defense of privilege is also available in the case of statements made in which the public has an interest.609 However, although the occasion on which the statement was made is privileged, the privilege may be defeated if, the person was motivated by express malice at the time of making the statement. Express malice will be found where the speaker did not have an honest belief in the truth of the libelous statement.610 A person would be found to lack an honest belief in the truth of a statement if he had knowledge the statement was false, did not believe in the truth of the statement or was “recklessly, careless whether it was true or false.”611 Express malice will also be found where the defamatory statement was irrelevant to the occasion giving rise to the privilege.612 The judge determines whether the evidence could support a finding of express malice, but would leave the determination of whether the evidence would lead to a finding of express malice to the jury.613

Reports on judicial proceedings are protected by qualified privilege, but there is no privilege for reports on foreign judicial proceedings.614 Privilege would not apply, also, in the case of communication about an ongoing investigation since there is no duty to communicate this information.615 Where information would be of interest to the citizens

608 Watt v. Longsdon, [1930] K.B.D. 130.

609 Horrocks v. Lowe, [1974] 1 All E.R. 662.

610 Id.

611 John v. MGN [1996] 2 All E.R. 35.

612 Horrocks v. Lowe, [1974] 1 All E.R. 662.

613 Adam v. Ward, [1917] A.C. 309.

614 Webb v. Times Publishing Co. Ltd., [1960] 2 Q.B. 535.

615 Purcell v. Sowler, (1877) 2 C.P.D. 215.

195 of the United Kingdom, or a party had an interest in clearing his name, the publication in the media of a charge could be protected by privilege.616 There was also no duty to inform a husband or wife about gossip heard about their spouse, so such a statement would not be privileged.617 Thus, although not specifically related to public persons, privilege provides a defense in cases where public persons are libeled.

The English courts have underlined the importance of protecting the right of citizens to complain when troubled about things in the nation, and such criticism is protected by fair comment.618

Justification, truth, is another defense open to newspapers in public person libel actions. Although partial justification is not a defense in libel actions, it would impact the damage awards made.619

In guiding the jury on an appropriate level of damages, reference should not be made to earlier jury awards, since, in the past, the jury did not have the benefit of instruction.620 However, the jury could be referred to awards upheld by or substituted by the Court of Appeal.621 The use of conventional awards in personal injury cases as guidance for assessing libel awards is more controversial. Different compositions of the

616 Adam v. Ward, [1917] A.C. 309.

617 Watt v. Longsdon, [1930] K.B.D. 130.

618 Slim v. Daily Telegraph Ltd., [1968] 1 All E.R. 497.

619 Rantzen v. Mirror, [1994] Q.B. 670.

620 Rantzen v. Mirror, [1994] Q.B. 670. See also Cassell v. Broome, [1972] A.C. 1027 and John v. MGN, [1996] 2 All E.R. 35.

621 See Rantzen v. Mirror, [1994] Q.B. 670, Cassell v. Broome, [1972] A.C. 1027 and John v. MGN [1996] 2 All E.R. 35.

196

Court of Appeal have variously found this an unreliable measure,622 or found it to be an effective means of cutting back on unrealistically high awards traditionally made in jury trials.623 Lord Bingham has suggested using guidance from submissions from counsel in the actual case as a third alternative.624

In assessing damages, the British courts have held that the jury should only award exemplary damages where the award of compensatory damages was insufficient to punish the defendant for his behavior.625 Exemplary damages can be awarded in cases where the government abused its power or where publication was made in a mercenary manner where the defendant had calculated that the profit or benefit to be gained from publishing the story exceeded the damages he was at risk of having to pay, if the item was found to be libelous.626 However, the mere fact that a publication was made for profit-making purposes would not justify an award of exemplary damages, without a finding that the publisher had knowledge that the publication was false or acted with reckless disregard for whether or not it was true.627

Certain factors tend to aggravate the damages that can be awarded to public and private plaintiffs in libel actions. While the absence of apology is not proof of malice, it

622 Rantzen v. Mirror, [1994] Q.B. 670, Cassell v. Broome, [1972] A.C. 1027.

623 John v. MGN, [1996] 2 All E.R. 35.

624 Id.

625 Cassell v. Broome, [1972] A.C. 1027.

626 Cassell v. Broome, [1972] A.C. 1027.

627 Cassell v. Broome, [1972] A.C. 1027.

197 affects the injury to the plaintiff’s feelings and should be taken into account in assessing damage awards.628

These principles inform the law of libel in the United Kingdom. In 1999 the law was further refined in a case involving libel against the Irish prime minister. Chapter 3 focuses on the House of Lords decision in Reynolds v. Times Newspapers.629

628 Rantzen v. Mirror, [1994] Q.B. 670.

629 [1999] 4 All E.R. 609.

CHAPTER 3 THE HOUSE OF LORDS’ DECISION IN REYNOLDS

3.1 Introduction

This chapter focuses on the most recent House of Lords decision on the standard of proof to be used in libel cases involving public officials in the United Kingdom. The

1998 decision in Reynolds v. Times Newspapers1 is important in British case law because it came at a time when the 1998 Human Rights Act2 had just been passed to incorporate the rights protected under the European Convention of Human Rights into English law.

In Reynolds, the House of Lords also synthesizes the principles important in making a finding that a defendant could rely on the defense of privilege in a libel action.

It provides a very good discussion of the defense of privilege and, because all of the judges in the court offer varied perspectives, different rationales for rejecting a new generic privilege for political speech.

The House of Lords specifically addressed itself in Reynolds to the issue of instituting a higher standard in libel actions brought in relation to political speech. The

Court rejected a “generic” protection for political speech. In the process, in Reynolds, the

House of Lords also expressly rejected the New York Times v. Sullivan3 actual malice standard laid down by the United States Supreme Court. As noted in chapter 2, decisions

1 [1999] 4 All E.R. 609.

2 Human Rights Act [1998 c. 42], http://www.opsi.gov.uk/ACTS/acts1998/80042--a.htm#1 (last visited June 3, 2006).

3 376 U.S. 254 (1964).

198 199 in the English Court and particularly in the House of Lords have persuasive effect in the

Caribbean territories.4 This is mainly because, to a large extent, the common law and the statutory law are similar in England and the Caribbean. However, it is also due, in part, to the fact that the same Lords of Appeal in the Ordinary who sit in the House of Lords usually sit in the Privy Council. In the post-Reynolds era, Caribbean courts have not considered the U.S.’s standard in public official libel actions. However, the issue has now been raised in the application by former Gleaner editor, Dudley Stokes, to the

Inter-American Court of Human Rights in Abrahams v. Gleaner. In Abrahams, the Privy

Council upheld a large damage award on a former public official. In looking at the issue of whether privilege applied, the Privy Council in Abrahams relied heavily on the interpretation in Reynolds.

In coming to its decision in Reynolds, the House noted that, unlike in the American system where there was no federal law allowing newspapers to conceal their source’s identities, in England newspapers had a right not to reveal their source’s identities. Thus, in the House of Lords’ opinion, unlike in the United States cases where the plaintiff had greater access to the information necessary to determine whether the newspaper acted with actual malice,5 because of confidentiality laws in the United Kingdom6 the identities of confidential sources would not be available to plaintiffs through discovery.

Thus, the House of Lords held, U.K. plaintiffs would be disadvantaged if the actual malice standard was imposed.

4 See chapter 2, 2.4.

5 See Herbert v. Lando, 441 U.S. 153 (1979), holding that journalists in libel cases don’t have a First Amendment privilege to refuse to provide information about the editorial process.

6 See Contempt of Court Act 1981 § 10.

200

While divided about the issue of whether a new test based on circumstances should be used in determining liability in libel actions, the court in Reynolds unanimously rejected a new privilege that would protect the publication of defamatory matters about public persons where the plaintiff showed the newspaper acted with malice. This chapter focuses on the Reynolds decision.

Section 3.2 discusses the facts of the case. Section 3.3 outlines the defenses proposed by the newspaper’s attorneys. Section 3.4 examines the majority opinion delivered by Lord Nicholls of Birkenhead. Section 3.5 discusses the concurrences by two law lords, and in section 3.6, the dissents by two law lords is discussed. The chapter is concluded in section 3.7.

3.2 Facts in the Reynold’s Case

Albert Reynolds was the taoiseach (prime minister) of the Republic of Ireland between February 11, 1992 and December 15, 1994.7 The eighth prime minister and the fifth leader of the Fianna Fáil party, Reynolds, during his administration, made advances in the peace process in Northern Ireland and developed a good relationship with British

Prime Minister John Major as they negotiated the process during 1993.8 The Irish

Revolutionary Army (IRA) called a ceasefire on August 31, 1994,9 and so Reynolds has been dubbed a “chief architect” of the peace process in Northern Ireland.10

7 See Albert Reynolds in ENCYCLOPEDIA BRITTANICA, http://www.britannica.com/eb/article-9063385 (last visited June 3, 2006). See also Albert Reynolds in POLITICS.IEWIKI, http://www.politics.ie/wiki/index.php?title=Albert_Reynolds (last visited June 3, 2006).

8 Id.

9 Id.

10 Reynolds v. Times Newspapers [1999] 4 All E.R. 609, 613.

201

However, Reynolds’ name was tainted in the early years of his administration by accusations that he had been involved in an export credit scheme while he was Minister of Industry and Commerce.11 This led to a 20 percent reduction in the popularity of the

Fianna Fáil party, and the inability of the Irish people to elect a prime minister in a clear majority vote after three elections. Thus, after negotiations, a coalition government was formed between the Fianna Fáil party and the Labor Party. Dick Spring of the Labor party became Reynolds’ tánaiste (second-in-command or deputy prime minister).12

The relationship between Reynolds and Spring was a tenuous one fraught with agitation. It came to a head when Reynolds insisted on appointing the attorney general,

Harry Whelehan, to the presidency in the High Court of Ireland.13 When it was revealed that Whelehan, as attorney general, had mishandled an attempt to extradite a pedophile,

Roman Catholic priest Brendan Smythe, Spring and his Labor Party resigned from government.14 Amidst protestations of his lack of knowledge of the pedophile extradition scandal, Reynolds resigned from the Irish Parliament on Thursday, November 17, 1994.15

The following Sunday, November 20, the British edition of the Sunday Times published an article titled “Goodbye goombeen man,”16 sub-titled “Why a fib too fat

11 POLITICS.IEWIKI, supra.

12 Id.

13 Id.

14 Id.

15 Reynolds v. Times Newspapers, [1999] 4 All E.R. 609, 613.

16 Id. “The Goombeen Man” is an Irish phrase for a village usurer or money-lender. See E. Cobham Brewer, The Dictionary of Phrase and Fable from the New and Enlarged Edition of 1894, THE FIRST HYPERTEXT EDITION OF THE DICTIONARY OF PHRASE AND FABLE, http://www.bootlegbooks.com/Reference/PhraseAndFable/data/535.html (last visited April 3, 2006). Nowadays, [the word “Goombeen man”] has come to mean just about any sort of petty underhand or corrupt activity (or the mindset possessed by those engaged in such activities). See BEER AND LOATHING:

202 proved fatal for the political career of Ireland’s peacemaker and Mr. Fixit.” The article filled most of the lead page of the newspaper’s “World News” section. The Irish edition of the newspaper contained a three-page article entitled “House of Cards” related to the fall of the government. It was more positive than the English article.17

Reynolds was upset about the article in the English edition of the paper because it intimated that he had deliberately misled the Dáil, the lower house of Parliament, and his deputy, Spring, on November 15, by withholding important information about the suitability of Whelehan for appointment to the presidency of the High Court of Ireland and lying to them about when he got access to the information.18 Additionally, the article did not include Reynolds’ denial at the Dáil that he had knowledge of Whelehan’s past conduct. Nor had the newspaper informed Reynolds of the story before its publication to allow him an opportunity to respond.19

Additionally, on the same day as the article was printed in the English Sunday

Times, the Irish edition of the newspaper had carried a longer article on the same subject that represented Reynolds as a victim of circumstances. The Irish newspaper had used a much more objective tone. Reynolds found the article in the Irish edition to be “largely accurate and unobjectionable.”20

STRANGE AND DISQUIETING DISPATCHES FROM DUBLIN’S PUB SCENE, http://www.beerandloathing.com/glos_g.htm (last visited July 16, 2006).

17 Id.

18 Id. at 613 & 648.

19 Id. at 646.

20 Id. at 639.

203

The article in the English newspaper was written by Alan Ruddock, an Irish editor;

Times Newspaper Ltd. was the publisher and John Witherow was the editor of the

Sunday Times. Reynolds brought an action against all of them for libel. By bringing the action, Reynolds waived his immunity under the Irish Constitution to proceedings in the

Dáil, the lower house of Parliament.21 In a November 1996 trial, the newspaper abandoned its pleadings of the defenses of fair comment on a matter of public interest and fair and accurate report of public proceedings in the Irish legislature. The jury held that the defamatory article was untrue and, thus, the defense of justification failed.22

However, the jury decided that Ruddock and Witherow had not acted with malice in writing and publishing the words.23 The judge in the trial substituted the jury award of no damages with an award of one penny.24 The problem related to costs. In relation to costs, the issue remained of whether the occasion of publication was privileged. If it were privileged Reynolds would have to pay the newspaper’s costs. The newspaper’s lawyers argued for a wider privilege than existed in common law for political speech. The trial judge ruled that the publication was not privileged.25

Reynolds appealed on the ground that the judge misdirected the jury.26 The newspaper cross appealed the judge’s decision on qualified privilege. The Court of

21 Id. See IR. CONST. § 13, http://www.taoiseach.gov.ie/upload/static/256.pdf (last visited June 12, 2006). Section 13 provides that “except in the case of treason,” the members of both houses would enjoy a privilege from actions in any court that emerged from “utterances” in the houses. Id.

22 Reynolds, supra at 646.

23 Id.

24 Id. at 614. The newspaper’s attorney suggested that the award of no damages by the jury might have been caused by the fact that a similar article had been published in an Irish newspaper. Id. at 637.

25 Id.

26 Id. There is no indication in the Court of Appeal decision on the area of misdirection.

204

Appeal allowed Reynolds’ appeal, concluding that the misdirection had denied Reynolds a fair trial. The court set aside the lower court’s decision and ordered a new trial.

The Court of Appeal found that there was no evidence before the jury that Spring authorized a lower official to accuse Reynolds of lying.27 It also found that Spring “did not in terms” accuse Mr. Reynolds of lying to the Dáil, as the newspaper claimed.28

Prior to this decision, the existence of privilege as a defense in English common law defamation actions had been premised on a two-part test involving the twin issues of whether the defendant newspaper had either a duty or an interest in printing the subject matter and the readers had a corresponding duty or interest in its receipt. This was referred to as “the duty-interest” test. However, the Court of Appeal introduced in its decision a third requirement in determining whether an occasion was privileged which would be dubbed the “circumstantial test.” The Court of Appeal described this test in the following terms:

Were the nature, status and source of the material, and the circumstances of the publication, such that the publication should in the public interest be protected in the absence of proof of express malice? We make reference to “status” bearing in mind the use of that expression in some of the more recent authorities to denote the degree to which information on a matter of public concern may (because of its character and known provenance) command respect. . . . The higher the status of a report, the more likely it is to meet the circumstantial test. Conversely, unverified information from unidentified and unofficial sources may have little or no status, and where defamatory statements of fact are to be published to the widest audience on the strength of such sources, the publisher undertakes a heavy burden in showing that the publication is “fairly warranted by any reasonable occasion or exigency.29

27 See Reynolds v. Times Newspapers, [1998] 3 All E.R. 961, 1006.

28 Id.

29 Reynolds v. Times Newspapers, [1998] 3 All ER 961 at 995.

205

In applying the test the Court of Appeal distinguished between “official” and

“unofficial” sources, and “a government press release” and “a statement made by a political opponent,” holding that greater authority should be given to official as opposed to unofficial reports.30 The court said:

Assuming in each case that a statement is defamatory and factually false although honestly believed to be true, it is one thing to publish a statement taken from a government press release, or the report of a public company chairman, or the speech of a university vice chancellor, and quite another to publish the statement of a political opponent, or a business competitor or a disgruntled ex-employee; it is one thing to publish a statement which the person defamed has been given the opportunity to rebut, and quite another to publish a statement without any recourse to the person defamed where such recourse was possible; it is one thing to publish a statement which has been so far as possible checked and quite another to publish it without such verification as was possible and as the significance of the statement called for. . . .31

Although persons “who engage in public life” were more subject to “close scrutiny and robust criticism,” the Court of Appeal said that “they should not in our view be taken to expect or accept that their conduct should be the subject of false and defamatory statements of fact unless the circumstances of the publication are such as to make it proper, in the public interest, to afford the publisher immunity from the liability in the absence of malice.”32

Although finding that the “duty-interest” test was satisfied by the publication, the

Court of Appeal found the newspaper report did not satisfy the “circumstantial test,” and so the newspaper could not depend on qualified privilege in the new trial. The Court of

Appeal granted the newspaper leave to appeal this decision to the House of Lords.33

30 Id. at 1004–1005.

31 Id.

32 Id.

33 Id.

206

Thus, the issue before the House of Lords was whether in the circumstances of the

Reynolds case, the newspaper could rely on privilege in the new trial.

3.3 Arguments and Defenses

In his arguments before the House of Lords, Lord Lester of Hernhill,34 the newspaper’s attorney, advocated a “generic privilege” that would extend to “any discussion of governmental or political matters affecting the people of the United

Kingdom.”35 This privilege would only apply in the case of political as opposed to private conduct. He argued that this was required in a modern democratic society because of the “strong public interest in free speech in general and in freedom of expression on political issues” for the media in particular.36

The newspaper’s lawyer also argued that the Court of Appeal’s circumstantial test was flawed. He said the test allowed the court to find that a publication was not privileged despite the fact that the court found there was a “duty to publish and a reciprocal interest” in receiving the information.37 The lawyer, therefore, asked the House of Lords not to adopt the circumstantial test.

A divided House of Lords upheld the lower court’s decision. The five lords, while unanimously rejecting the idea of a generic privilege, were divided about the legality of the circumstantial test laid down by the lower court. Lord Donald Nicholls of Birkenhead

34 It was not possible within the resources available to me to find all of the first names of justices and litigants in the English cases. The first names were frequently not reported in the opinions themselves.

35 Reynolds [1999] 4 All ER 609 at 649.

36 Id.

37 Reynolds v. Times Newspapers, [1998] 3 All E.R. 961 at 1006. The lawyers noted “Some unease with this approach may be seen in the Court of Appeal’s qualified conclusion that in the instant case ‘the duty and interest tests were, in general satisfied…’”

207 wrote the majority opinion. However, lords Robin Cooke of Thorndon and Hobhouse of

Woodborough delivered concurrences. Lords Johan Steyn and James Hope of Craighead dissented.

Table 3-1. Votes in the House of Lords in Reynolds Accept Court of Appeal’s Reject Court of Appeal’s “circumstantial” test “circumstantial” test Affirm Court of Appeal’s Nicholls (maj. opinion) Hobhouse (concur.) decision and not reconsider Cooke (concur.) issue of privilege (majority position) Reject Court of Appeal’s Steyn (dissent) decision and allow trial Hope (dissent) court to reconsider the issue of privilege

Lord Nicholls of Birkenhead, who delivered the majority opinion, had unanimous support for his position that the “generic” test proposed by the newspaper’s attorneys should be rejected. However, only one other judge, Lord Cooke, agreed with him that the

Court of Appeal’s circumstantial test should be preserved (see table 3-1 above). Despite disagreeing with the circumstantial test, Lord Hobhouse, nonetheless believed that the

Court of Appeal had applied the substantial issues correctly and so voted with Nicholls and Cooke that the lower court’s decision should be upheld (see table 3-1 above). What has emerged in the Reynolds decision is discussions from five perspectives of the defense of privilege.

3.4 Lord Nicholls of Birkenhead’s Majority Opinion

In issuing the majority decision, Lord Nicholls of Birkenhead began by examining the defense of qualified privilege within the context of the two other common law defenses to libel—truth and fair comment.

208

Because of the historic importance of reputation, the publication of a defamatory statement was actionable per se, Nicholls said.38 This meant that, in bringing a libel action, falsity is presumed and therefore it was unnecessary for plaintiffs to prove that a statement was false, Lord Nicholls said.39 Similarly, where an article had been published in a written, or permanent form, there was no requirement for Reynolds to prove that he had sustained damage. But if the newspaper proved the article was substantially true, it could rely on the defense of justification, also called truth, which was a full defense to a libel suit even if the publisher was acting spitefully in publishing the statement.40

The second defense available to defendants in a libel action was fair comment.

Nicholls noted that fair comment was a defense available to everyone, particularly the media. Freedom of expression was a basic right protected at common law, even before the existence of human rights conventions, and the freedom to discuss public matters had a wide scope, Lord Nicholls said.41 He noted the definition the House of Lords had given to public interest:

Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others, then it is a matter of public interest on which everyone is entitled to make fair comment.42

38 Reynolds, [1999] 4 All E.R. at 614.

39 Id. at 614.

40 Id. However, because of the fear that too strong protection would have a “chilling effect” on speech, there were exceptional cases where persons could “speak and write freely, uninhibited by the prospect of being sued for damages should they be mistaken or misinformed.”

41 Id.

42 London Artists Ltd. v. Littler, [1969] 2 All E.R. 193, 198.

209

The defense could be claimed where there was a finding that the comment was fair based on an “objective standard” of “whether any fair-minded person could honestly express the opinion in question,” Nicholls said.43 Despite the use of the word “fair,” the defense simply required that the comment should be “relevant to the facts to which it is addressed” and not be a cloak for “mere invective,” Nicholls said.44 Thus, the fact that the statement came from a crank would not affect the matter; the important test was whether the opinion “however exaggerated, obstinate or prejudiced was honestly held” by the speaker. Unlike truth, the defense of fair comment would fail if the comment was motivated by malice or the speaker or writer did not have an honest belief in the truth of the statement.45

Additionally, the defense of fair comment protects opinion and not factual assertions, Nicholls said. However, Nicholls said, there should be an indication of the facts on which the opinion was based.46

Privilege

However, the basis of the appeal in Reynolds was privilege. Nicholls noted that privilege would apply as a defense where the “common convenience and welfare of society” required a frank discussion on factual issues.47 He identified three types of privilege—absolute, qualified and statutory. When the interest in the society’s welfare

43 Reynolds, supra at 615.

44 Id.

45 Id.

46 Id.

47 Id., quoting Baron Parke in Toogood v. Spyring (1834) 1 Cr. M & R 181, 193. The Court noted also that privilege could apply where someone was in a situation that required him to give information for the public benefit or where the person listening to the communication had a special interest in learning the information.

210 outweighed the need to protect reputation, the statement would be protected by privilege,

Nicholls said.48 The first type of privilege, absolute privilege, applied in the case of statements made by judges, witnesses or advocates in court cases, the judge said.

However, usually the privilege that applied to the press was the second type of privilege—qualified privilege. Qualified privilege applied where the maker of the statement had a duty to make, and the recipient an interest in hearing, the statement communicated, Nicholls said.49 Qualified privilege differed from absolute privilege since it could be defeated where it was shown that the plaintiff was motivated by express malice.50 A statement would be found to have been made with express malice when the defendant “used the occasion for some reason other than the reason for which the occasion was privileged,” Nicholls said.51 The motive for which the statement was made was also important in finding express malice. The privilege would be lost if the dominant motive was to injure the plaintiff, or the writer did not believe the statement to be true or made the statement recklessly without considering whether it was true or not.52 In this context, mere “carelessness, impulsiveness or irrationality” did not equate to indifference to the truth, he said.53

48 Id.

49 Id. at 616. See Adam v. Ward [1917] A.C. 309, 334, citing Lord Atkinson.

50 Reynolds, supra at 615.

51 Id. at 616.

52 Id.

53 Id. See Horrocks v. Lowe [1974] 1 All ER 662, 669, supra chapter 2, 2.9. In Horrocks Lord Diplock said

In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment” of the value to be given to evidence. “In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to

211

In determining whether a communication should be privileged, in the public interest the court needed to view the circumstances in light of “current social conditions.”54 Although usually the privilege attached to dissemination to one person or a limited group of people, Lord Nicholls noted that there were occasions where public interest required that publication to the world be protected by privilege.55

Nicholls adopted the circumstantial test proposed by the Court of Appeal that, in

deciding whether privilege attached, the court would look at all the circumstances to

determine whether the information was of “sufficient value to the public, that, in the

public interest it should be protected by privilege in the absence of [express]

malice.”56However, Nicholls said, the Court of Appeal had incorrectly separated the

conclusions on inadequate evidence and fail to recognize the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be ‘honest’, ie., a positive belief that the conclusions they have reached are true. The law demands no more. Id.

Thus, Lord Diplock noted, the courts had held that employment references, complaints or information given to police about suspected crimes were included, but this did not exhaust the categories of privileged communications. Id.

54 Reynolds, supra at 617. Thus, the requirements at the close of the twentieth century might differ from those in earlier centuries.

55 Id. In Cox v. Feeney (1863) 4 F. & F. 13, 19, Chief Justice Cockburn approved a statement by Lord Chief Justice Tenterden that “a man has a right to publish, for the purpose of giving the public information, that which it is proper for the public to know.”

56 Reynolds, supra at 617, citing Purcell v. Sowler, (1877) 2 C.P.D. 215, holding that a newspaper report that a medical officer of a workhouse had neglected to attend pauper patients was not privileged, even though it was based on discussion in a public meeting of poor law guardians. Although the administration of poor law was of national concern, there was no duty to report charges made in the absence of the medical officer, preventing him from addressing the charge. Although the statement made at the meeting was privileged, the newspaper article was not. See also Allbut v. General Council of Medical Education and Registration, (1889) 23 Q.B.D. 400, holding that an article based on a council meeting, stating that the plaintiff’s name had been removed from the medical register for “infamous professional conduct” was privileged. There had been an inquiry where Allbut had been represented by legal counsel. The court looked at the nature of the tribunal, character of the report, public interest in the proceedings and duty of council toward the public. See also in chapter 2, 2.8 Webb v. Times Publishing Co., [1960] 2 All E.R. 311, holding that the publication of a criminal trial of an Englishman in Switzerland was privileged. However, cf. Blackshaw v. Lord, [1983] 2 All E.R. 311, where the Court of Appeal rejected the claim of a privilege under the wide claim of “fair information on a matter of public interest,” holding that the claim had to be

212

“circumstantial” test from the conventional “duty-interest” questions which provided that

a statement was privileged where the speaker had a duty to make it and the receiver had

an interest in receiving the information. Lord Nicholls said the “duty-interest” test should

not be isolated from other factors in the circumstantial test and a claim for privilege

succeeded or failed based on whether the claim passed both the circumstantial test that

included the duty-interest test.57

The third privilege identified by Nicholls that provided a defense to libel actions was statutory privilege.58 One of the categories of publications fully protected by qualified privilege under the 1952 Defamation Act was a fair and accurate report of public proceedings in the Irish legislature.59

However, English statutory law did not provide a special qualified privilege to

protect statements made in a newspaper or elsewhere when the matter was of public

more focused. Reynolds, supra at 618. The Court of Appeal in the Reynolds case had noted that, in determining whether privilege attached to a particular circumstance, the court would look at the name, status and source of the material published and circumstance of the publication. Id.

57 Reynolds, supra at 619.

58 Reynolds, supra at 619. Report of the Committee on the Law of Defamation (Cmd. 7536, 1948), Chairman Lord Porter. The Judge noted there were many cases where the reports that were protected at common law were also statutorily protected. Further, the statutes had expanded the categories.

59 Reynolds, supra at 619. See Defamation Act 1996 § 15 [1996, c. 31] 1) which provides

The publication of any report or other statement mentioned in Schedule 1 to this Act is privileged unless the publication is shown to be made with malice,

Schedule 1 includes

1. “A fair and accurate report of proceedings in public of a legislature anywhere in the world.” Id.

Originally the newspaper in the Reynolds case had pleaded this defense, but subsequently abandoned it. Lord Nicholls noted that in 1948 the Committee on the Law of Defamation had recommended the classification of reports protected by qualified privilege into two categories—those where privilege was unconditional and those where privilege was “conditional” on the publication where requested of a “letter or statement by way of explanation or contradiction.”

213 interest and the publisher believed the statement of facts to be true and had taken reasonable care in ascertaining the truth of these facts. The 1975 Faulks Committee on defamation rejected a proposal to enact such a qualified privilege.60 The commission had not accepted the proposal because the defense would alter the balance in the law of defamation between the right to freedom of speech and the right to one’s reputation.

However, the committee noted, the common law defense of qualified privilege was still available in cases where there was an interest in making and receiving a communication.61

Nicholls also noted that the 1991 Supreme Court Procedure Committee had considered recommending that privilege should apply statutorily in the case of fair and accurate coverage by the British media of statements and proceedings abroad in circumstances where the statement would attract privilege if made in the country.62 The

Committee found that the “duty-interest” test of whether there was an interest and duty in making and receiving the statement was “too stringent in modern conditions and productive of too much uncertainty.” Nonetheless, the committee opposed the implementation of the “public figure” defense provided by the United States Supreme

Court’s New York Times v. Sullivan actual malice rule.63

60 Reynolds, supra at 619. Report of the Commission on Defamation (Cmnd 5909, 1975).

61 Reynolds, supra at 619.

62 Id.

63 Id. at 620. Lord Nicholls also noted that Canada had rejected the New York Times defense in Hill v. Church of Scientology of Toronto, (1995) 126 D.L.R. (4th) 129. But cf. Indian Supreme Court case Rajagopal ® (alias R. Gopal) v State of Tamil Nadu, (1994) 6 S.C.C. 632, 650 (holding that a public official had no remedy for libelous publications relating to his official duties unless he proved the publication was made with reckless disregard for the truth or personal animosity. When the official alleged malice, it was sufficient defense to show he acted after reasonable verification of facts). See also. the New Zealand Court of Appeal case, Lange v. Atkinson, [1998] 3 N.Z.L.R. 424, holding that the public had a “proper interest” in respect to statements made about the “actions and qualities of those currently or

214

Issue of a New “Generic” Privilege

Queen’s Counsel64 Lord Lester of Herne Hill had argued for the Times that qualified privilege should attach to political speech unless the plaintiff proved the newspaper failed to “exercise reasonable care.”65 This “political information” could be

“broadly defined” to include “information, opinion and arguments concerning

government and political matters that affect the people of the United Kingdom.”66 The newspaper had argued that, in the absence of ordinary malice, the publication of political

information should be privileged “regardless of the source of the material and the

circumstances of the publication.” The newspaper argued that the only alternative was for

the court to assess the public interest value of a publication. This assessment would have

to take into account the sources and circumstances which would lead to uncertainty about

which statements were privileged and which were not. 67 Additionally, it would give the court an “undesirable and invidious role as a censor or licensing body.”68

formerly elected to Parliament and those seeking election.” In New Zealand, in case of a libel action involving these issues, newspapers had special protection without showing that it had acted with “reasonable care.” But cf. the Australian case, Lange v. Australian Broadcasting Corp., (1997) 145 A.L.R. 96, holding that there was a qualified privilege to disseminate “information, opinions and arguments concerning government and political matters” affecting Australians, so long as the publisher proved “reasonableness of conduct.” Reynolds, supra at 620. The Court in Reynolds saw this as an extension of qualified privilege. The “reasonableness” requirement was based on the damage caused by mass dissemination. Id. See also the South African case National Media Ltd. v. Bogoshi, 1998 (4) S.A. 1196, 1212 where the South African Supreme Court followed the lead of the Australian Court. Id. at 621–622.

64 Queen’s Counsel is the highest status one can achieve at the English and Caribbean Bar. These are persons who usually have several years of practice at the bar and, because of their distinguished reputation and careers, the title of Queen’s Counsel is endowed on them.

65 Reynolds, supra at 624.

66 Reynolds, supra at 620.

67 Id.

68 Id.

215

Nicholls rejected the newspaper’s “generic” privilege which, he said, would allow a newspaper to publish “serious” defamatory statements that it had not been able to verify.

69 In rejecting this position, Lord Nicholls said the freedom to disseminate and receive

political information was essential to a parliamentary democracy because it allowed an

electorate to make an informed decision about information and policies in electing

representatives.70

In looking at the provision for freedom of speech in the United Kingdom, he noted that the United Kingdom was a signatory of the European Convention for the Protection of Human Rights and Fundamental Freedoms which, in addition to other guarantees, protects freedom of speech.71 In 1998, the United Kingdom passed its Human Rights Act,

scheduled to be effective in October 2000.72 The statute was intended to give legal effect

to the European Convention and mandated that statutes in the United Kingdom be interpreted in a manner consistent with the Convention.73

69 Reynolds, supra at 624. Lord Lester had suggested that the difficulty that the newspaper would be free to publish unverified defamatory statements would be removed if the limitation was stated more broadly, excluding qualified privilege where the plaintiff proved that the newspaper's conduct in making the publication was “unreasonable.” However, Lord Nicholls saw “no practical” distinction between looking at a publication to see if it attracted privilege (as in the common law position) and looking at it to determine whether privilege was defeated, as suggested by Lord Lester. See also dissenting opinion of Lord Johan Steyn, that endorsed this position Id. at 634.

70 Id. at 621.

71 European Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5), http://www.pfc.org.uk/legal/echr-sum.htm (last visited June 3, 2006). The European Convention on Human Rights, formed in 1950, includes several fundamental rights and freedoms that signatories undertake to ensure for their citizens. It is supervised by two bodies which examine petitions from states or persons who allege that the state interfered with any of the protected rights. These two supervisory bodies are the European Commission and Court of Human Rights.

72 Human Rights Act [1998 c. 42], http://www.opsi.gov.uk/ACTS/acts1998/80042--a.htm#1 (last visited June 3, 2006).

73 Id. at § 3.

216

In Reynolds, Lord Nicholls noted in his 1999 opinion that the 1998 act, when it became effective, would require the court to take into account the right to freedom of expression under the convention where applicable.74 Thus, Nicholls held, according to decisions of the European Court of Human Rights, any curtailment of freedom of expression should be “convincingly established by a compelling countervailing consideration” and employ means in a manner proportionate to the intended objective.75

Lord Nicholls was concerned that the newspaper’s “generic” privilege as configured shifted the burden to prove a lack of “reasonable care” to the plaintiff.

Nicholls decided it was best to leave the burden of proof on the person or organization asserting the privilege since the newspaper would have more information on the facts leading up to the publication.76 He acknowledged that, with the adoption of the European

Convention into British law, the right to freedom of expression was enhanced and limitations on the freedom were exceptions. However, Lord Nicholls said, shifting the burden of proof to the plaintiff would turn “the law of qualified privilege upside down.”77

The judge said that if the change in the law caused by the European Convention was applied only to political information, the “distinction would lack a coherent rationale,” since there were other subjects that were of serious public concern.

74 Reynolds, supra at 621. See Human Rights Act § 12(4) which provides that “The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material” the court should take into account the extent to which “the material has, or is about to, become available to the public;” or the extent to which “it is, or would be, in the public interest for the material to be published.” Id.

75 Reynolds, supra at 622.

76 Reynolds, supra at 624.

77 Id.

217

He noted that most people relied on the media for political information and, without the protection of the media’s right to freedom of expression, this protective role would be a “hollow concept.”78 The importance of freedom of speech in a democratic society weighed “heavily,” the judge said in determining the balance of whether the curtailment of speech was reasonable in relation to the purpose for its curtailment. Lord

Nicholls said that the investigative function of the media was as important as its traditional functions of reporting and commenting.79 However, reputation was an

“integral part of the dignity of the individual,” Lord Nicholls said. Reputation was also fundamental to the well-being of a democratic society in allowing individuals to make choices about which persons to employ or promote, and which persons to work for or do business with.80 Nicholls noted that the loss of reputation affected the democratic fabric of society. He said:

Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognize that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others.81

78 Id.

79 Id.

80 Id.

81 Id.

218

Nicholls said that the absence of protection at common law for libelous statements proved to be “actuated by” express malice was “fairly and reasonably necessary for the protection of reputation.” This was so because freedom of expression did not support the right to make defamatory statements because of “personal spite” or without a “positive belief in their truth,” Nicholls said.82

While statements of opinions on matters of public interest were protected if they expressly—or by implication—included the facts on which they were based,

“imputations of fact” were not, Nicholls said.83 Statements of opinion are sentences phrased as opinion; the second, opinions stated as if they were facts. The rationale for giving greater protection to statements of opinion than “imputations of fact” was that, while persons who read opinions could decide to agree or disagree with defamatory statements that were “recognizable as comment,” persons who read imputations would be unable to ascertain the truth of the facts stated. Nicholls said that, because of the difficulty of proving malice, protecting imputations of fact was not a sufficient safeguard against defamatory factual imputations.84 Thus, further protection was needed.85

82 Id. See Horrocks v. Lowe, [1975] A.C. 135.

83 Reynolds, supra at 622.

84 Id. He noted that the difficulty of proving malice was heightened when newspapers used anonymous sources. Plaintiffs had no means to force newspapers to reveal their sources and so could not prove that the defendant acted recklessly in relying on the source. Id. at 623.

85 Id. at 623. He noted that the means of protection adopted would vary from country to country depending on local conditions, including legal procedures and traditions and the power of the press. He dismissed the Times’ position that the United Kingdom courts should allow the editor to decide what content was appropriate for protection, relying on the ethical standards in the practice of professional journalism. Apart from mistakes that the editor might make from time to time that would occur in the “best regulated circles,” Nicholls noted, the national press had its own “commercial interests to serve,” which would not lead to confidence in its ability to fairly monitor its own use of defamatory language.

219

Lord Nicholls refused to develop political information as a new communication category protected by privilege since it would not provide “adequate protection for reputation.”86 He was opposed to the principle of distinguishing political discussion from other matters of serious public concern because, with the elasticity of the common law principle for determining whether a statement should be protected as speech, the court could appropriately weight the importance of the media’s right to freedom of speech on all matters of public concern.87

On the other hand, Lord Nicholls also rejected the suggestion by attorney-at-law

Andrew Caldecott, Queen’s Counsel, on behalf of Reynolds that a report on political speech should always fail the common law test of privilege where it ‘failed to report the other side.’88 Caldecott also suggested that the newspaper should be required to provide a

“cogent reason” why it should not be required to prove the truth of the publication.89

Lord Nicholls believed this position was not consistent with the common law principle in libel that journalists did not have to guarantee the accuracy of their facts, but should be allowed to rely on separate defenses of fair comment and privilege.90

86 Reynolds, supra at 624.

87 Id. at 625–626.

88 Id. Lord Nicholls said that, although the failure to report the plaintiff’s explanation should be taken into account, it should not be “elevated into a rigid rule of law” that the absence of such explanation would defeat privilege. Id.

89 Id.

90 Id. Nicholls held that the British common law principle also accorded with human rights jurisprudence in the European Court of Human Rights. See e.g. Lingens v. Austria, (1986) 8 E.H.R.R. 407, which involved expressions of opinion rather than facts. In Lingens, Lingens was fined for publishing comments in his magazine about the behavior of the Federal Chancellor Mr. Kreisky. Lingens accused Kreisky of ‘basest opportunism,’ immorality and being ‘undignified.’ Under the Austrian criminal code, the only defense was truth. The European Court of Human Rights (420–421, ¶ 46) held that a careful distinction should be made between fact and opinion. The truth of facts could be ascertained, while value judgments could not be proved. Thus, since the facts on which Lingens based his opinion and his good faith were not in dispute,

220

Circumstantial Test

Nicholls approved the position of the Court of Appeal91 that the common law required the court to take into account all the circumstances including the quality of the speech and its subject matter in deciding whether a publication was protected by privilege because of its public value.92 Nicholls said that this “circumstantial” test would be elastic

and could be appropriately applied to the specified circumstances in each case and to all

information in newspapers. He admitted that the test would lead to unpredictability and

uncertainty in borderline cases which could “chill” the publication of true statements of

fact.93 However, Nicholls said, once the court had determined some guidelines, much of

the uncertainty could be managed. He noted that the Court did not intend to impose a

higher standard than the principle of responsible journalism that the press, itself, had

espoused and the infringement on freedom of speech would neither be “excessive nor

and it was impossible to prove the truth of the opinions, the requirements of the Austrian Code that truth was the only defense was an impossible infringement on the article 10 guarantee of freedom of expression. This position was reiterated in De Haes v. Belgium, (1997) 25 E.H.R.R. 1, 54 (¶ 42). See also Fressoz v. France, Case 29183/95 (20 May 1999, unreported at ¶ 54), holding article 10 of the European Convention protected the rights of journalists, acting in good faith and in accord with recognized journalism ethics, to disseminate information in the public interest, and that a journalist need not guarantee the accuracy of his facts. See Tromso v. Norway, Case 21980/93 (20 May 1999, unreported), where the newspaper made factual allegations of cruelty on the part of seal hunters, the European Court had examined whether the newspaper had a “reasonable basis” for its factual allegations. See also Thorgeirson v. Iceland, (1992) 14 E.H.R.R. 843, holding that journalists that wrote a story alleging that members of the police force had assaulted and disabled citizens were not required to prove that the story was, in fact true. In Thorgeirson, two newspaper articles reported widespread rumors of brutality by the Reyjavik police. The articles “had some substantiation in fact” since a policeman had been convicted for abuse of his powers. The article was aimed at promoting an investigation by an independent body. The European Court held that, although the articles used “strong terms, the stories were about a matter of public concern. It was unreasonable to require the writer to prove that unspecified members of the police force had committed . . . assaults.” Id.

91 See 3.1 for discussion of Court of Appeal decision.

92 Id. at 623.

93 Id. He noted the chilling effect was more so in the case of the regional press, book publishers and broadcasters than in the national press.

221 disproportionate.”94 Nonetheless, Nicholls said, under the common law, “an impartial, independent court accustomed to deciding disputed issues”—rather than the press itself— should determine whether a publication was protected by qualified privilege.95

He noted that matters to be taken into account when evaluating whether privilege applied, under the circumstantial test included:

• The seriousness of the allegation. He said, the more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. • The nature of the information and the extent to which the subject matter is a matter of public concern. • The source of the information. Nicholls said some informants have no direct knowledge of the events, their own axes to grind, or are being paid for their stories. • The steps taken to verify the information. • The status of the information. When the allegation had already been the subject of an investigation this fact should be taken into account. • The urgency of the matter to be reported should also be taken into account. This was because, Nicholls said, news is often a perishable commodity. • Whether a comment was sought from the plaintiff. The plaintiff might have information others did not possess or had not disclosed. However, the judge said, it would not always be necessary to approach the plaintiff. • Whether the article contained the gist of the plaintiff’s side of the story. • The tone of the article. A newspaper could raise queries or call for an investigation without adopting allegations as statements of fact. • The circumstances of the publication, including the timing at which the story is published.96

94 Id. However, he said, there needed to be an objective check on the media, citing Justice Andrew Tipping in Lange v. Atkinson, [1998] 3 N.Z.L.R. 424, 477, who said

It could be seen as rather ironical that whereas almost all sectors of society, and all other occupations and professions have duties to take reasonable car, and are accountable in one form or another if they are careless, the news media whose power and capacity to cause harm and distress are considerable if that power is not responsibly used, are not liable in negligence, and what is more, can claim qualified privilege even if they are negligent. It may be asked whether the public interest in freedom of expression is so great that the accountability which society requires of others should not also to this extent be required of the news media. Id.

95 Reynolds, supra at 624. See also Lord Hobhouse concurring, Id. at 658– 659. Lord Hobhouse objected to the Sunday Times’ lawyers attempt to introduce an approach that allowed publishers to decide what to publish and be protected by privilege except where the plaintiff could prove bad faith on their part. This approach would give newspapers which were motivated by profit the power to deprive citizens of protection against misinformation, Hobhouse said. Citizens were entitled to disinterested and objective legal recourse. Thus, the publisher had to establish privilege. Once, the privilege had been determined, the burden of proof, which was not a light one, then passed to the plaintiff. Id. at 659.

222

Nicholls noted that the court had a responsibility always to bear in mind the importance of freedom of expression. He said:

The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favor of publication.97

Lord Nicholls’ Decision

Lord Nicholls said that, although the subject matter printed in the Sunday Times was information the public was entitled to know, the presentation of the allegations as fact excluding Reynolds’ response was not information the public had the right to know.

He voted to uphold the lower court’s decision and dismiss the appeal.98

Nicholls rejected the newspaper’s submission that it had not had an opportunity to plead and prove that the “circumstantial test” formulated by the Court of Appeal had been satisfied in its publication.99 Nicholls noted that Reynolds’ lawyers had specifically argued in the Court of Appeal that all circumstances should be taken into account. The lawyers had noted especially the gravity of the charge, the difference between the mainland and Irish editions’ versions of the news story, and the fact that the statement

96 Id. at 626. The judge noted that the list was not exhaustive and the weight to be given to each factor would vary depending on the case. The jury would determine disputes on facts, but the judge would determine whether, on the established facts, privilege attached. This was because the judge was better equipped to carry out a balancing operation. Over time, Lord Nicholls noted, precedent would be built. The unwillingness of a newspaper to disclose its source’s identity would not weigh against it, and the court should always bear in mind that journalists had no clear hindsight in publishing material.

97 Id.

98 Id. at 627.

99 Id. See also Lord Hobhouse, concurring Id. at 646. The lawyers for the newspaper had argued that, if the court decided that generic privilege failed, they should be allowed to start a new trial to determine culpability. At the trial they should be allowed to produce evidence to prove the article was protected by qualified privilege. Lord Cooke noted that they had an opportunity to make the arguments during the trial. Id. at 647.

223 had been presented as a fact rather than an opinion. They also noted that the article had omitted the defense presented by Reynolds in the Dáil (the Irish Legislature) debate on

Wednesday November 16 1994.100

Nicholls said that the writer, Alan Ruddock, had omitted Reynolds’ explanation to the Dáil because he rejected Reynolds’ version of the events and concluded Ruddock had been “deliberately misleading.” Although journalists were allowed to reach their own conclusions and “express them honestly and fearlessly” and to “disbelieve and refute explanations given,” Nicholls said, this was not an excuse to omit from “a hard-hitting article making serious allegations against a named individual, all mention of the person’s own explanation.” At the time when the issue of the attorney general Whelahan’s incompetence had arisen, Reynolds’ press offices had told Ruddock that Reynolds would not give an interview but would answer the allegation in the Dáil. Thus, Nicholls said,

Reynolds’ statement in the Dáil was his response to the allegation. An article omitting this statement would, therefore, not be a “fair and accurate report” since it left English readers with the opinion that Reynolds had not responded to the allegations and it was an elementary principle in fairness that “a serious charge should be accompanied by the gist of any explanation given.” By failing to do this, the newspaper would face an “uphill task” in proving privilege if the allegation was proven false and the unreported statement true.101

100 Id. Nicholls saw no “sufficient ground” to interfere with the Court of Appeal’s decision to decide for itself the issue of qualified privilege instead of sending the matter back to the trial judge. Id. at 627. Although the newspaper had criticized the grounds set out by the Court of Appeal, the facts presented by Reynolds’ attorneys were “clear and undisputed.” Id.

101 Id.

224

Thus, the House of Lords found that the newspaper could not rely on the statutory privilege to report on the Irish Parliament and upheld the lower court’s decision.

3.5 Concurrences

Lords Robin Cooke of Thorndon, and Hobhouse of Woodborough wrote separate concurring opinions, and Lords Johan Steyn and James Hope of Craighead wrote dissenting opinions. All the law lords rejected the new “generic” privilege for political communication suggested by the newspaper’s attorneys. However, while Lord Cooke endorsed the Court of Appeal’s circumstantial test, lords Hobhouse, Steyn and Hope all rejected it (see table 3-1 above).

Lord Cooke of Thorndon’s Concurrence

Lord Cooke’s arguments not only represent his point of view, but also sum up the issues in the case from his perspective effectively. Lord Cooke accepted Lord Nicholls’ decision wholeheartedly but expanded on the reasoning. He adopted the Court of

Appeal’s “circumstantial” test and found that, based on all the surrounding circumstances, the Sunday Times was not protected by privilege in the Reynolds’ case.

Lord Cooke, in concurring with Nicholls, noted that the defense of truth, also called justification, was disposed of when the jury found that the statement was not substantially true.102

The second and third defenses were fair comment on a matter of public interest and a fair and accurate report of proceedings in the Irish legislature.103 Although both

102 Id. at 637. This defense required an impugning of the statement made in the Dáil by Springer. Cooke noted that the Court of Appeal had found that the jury had been misdirected by the judge, denying the newspaper a fair trial. The jury in the trial court, though finding the newspaper liable for libel had not made an award for damages. Cooke commented on the inconsistency between the guilty verdict and the jury award of no damages. He said this may have been caused, as Lord Lester of Herne Hill, QC suggested, because of the existence of a report in the Irish newspaper. Id.

225

defenses were abandoned at the outset of the trial, fair comment would have failed as a

defense because, as the jury found, “the facts were not truly stated” since the article

omitted Reynolds’ explanation in the Dáil and the report of allegations made in the Dáil

were mixed with other allegations, including lying, which were not protected by the

statutory privilege to report on proceedings before the Irish Legislature.104

Responding to the newspaper’s attorneys’ argument for providing additional

protection for freedom of speech in a democracy, Cooke noted that two United States

cases cited by the attorneys, U.S. v. Associated Press105 and Abrahams v. U.S.,106 were not defamation cases and it was “dangerous to stretch them out of context.”107 While the

first of the cases dealt with anti-trust law, the second related more generally to freedom of

speech. The attorneys had cited Judge Learned Hand’s opinion in U.S. v. Associated

Press108 that the First Amendment

103 Id. at 638. See Defamation Act 1952, § 7 and Sch. ¶ 1 and 14; cf. Defamation Act 1996 § 15 and Sch. 1, ¶ 1. See, supra note 49.

104 Id. Thus, the defense could not succeed unless the case were protected by common law privilege (see Defamation Act 1952 § 7(4) cf. Defamation Act 1996 § 15(4)), or the court introduced a new generic head of qualified privilege for political discussion into the English law on lines similar to the New Zealand head introduced in Lange v. Atkinson, [1997] 2 N.Z.L.R. 22 (See Note 62, supra for a discussion on Lange v. Atkinson); which was on appeal to the Privy Council or the less sweeping one introduced by the High Court of Australia in Lange v. Australian Broadcasting Corporation, (1997) 145 A.L.R. 96 (see Note 62, supra). He noted that, in the Reynolds case, the defense counsel had argued for a new generic privilege limited where the plaintiff proved malice. Lord Lester had argued further the requirement for the plaintiff to prove “unreasonable conduct or lack of reasonable care” which resembled the Australian position.

105 52 F. Supp. 362 (1943).

106 250 U.S. 616 (1919).

107 Id. at 638–639. The attorneys had also cited Justice Wendell Holmes’ dissenting opinion in Abrams v. U.S., 250 U.S. 616, 630 (1919), where he said: “the best test of truth is the power of thought to get itself accepted in the competition of the market. . . .”

108 52 F. Supp. 362, 372 (1943).

226

presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To this is, and always will be, folly; but we have staked upon it our all.109

Cooke noted that, even in the United States, judicial opinions varied on how freedom of speech should be balanced with the protection of reputation. At any rate, he quipped, “it is certain that neither in the United Kingdom nor anywhere else in the

Commonwealth could it be maintained that the people have knowingly staked their all on unfettered freedom to publish falsehoods of fact about political matters, provided only that the writer or speaker is not actuated by malice.”110

The judge refused to find that a “commitment to the cause of human rights” under the European Convention and the1998 Human Rights Act, meant that common law limitations on political allegations of facts were to be fully abandoned.111 He believed that the effect of introducing the New York Times standard of proof would be to abandon these limitations and, therefore, opposed the introduction of the New York Times’ burden shift from the defendant to the plaintiff into English law.112

Similarly Cooke rejected the “generic” privilege for political speech argued by the newspaper’s attorneys for several reasons. First, he said, he believed that the commercial motivation of the media could lead to a tendency to “exaggerate, distort or otherwise unfairly represent alleged facts in order to excite the interest of readers, viewers or

109 Id. at 372.

110 Reynolds, supra at 639.

111 Id.

112 Id. He endorsed the commentary by Sir Sidney Kentridge who, speaking at a Francis McMann lecture, rejected the New York Times standard saying, “[I]t should not be beyond a court’s ability to distinguish in any particular case between hard-hitting political criticism and truly libelous allegations of fact.” See Sidney Kentridge, Freedom of Speech: Is it the Primary Right? (1996) 45 I.C.L.Q. 253.

227

listeners.”113 This was so although investigative reporting could benefit the public. Lord

Cooke also saw no reason why “politicians should be subjected to a greater risk than

other leading citizens, . . . or any other persons, of false allegations of fact in the

media.”114

The judge’s second reason for rejecting the “generic privilege” was that several qualified committees on reform of defamation law had rejected this privilege and had specifically rejected the United States’ approach in New York Times v. Sullivan.115 The newspaper’s attorneys, he said, were arguing for a limited application of the Sullivan standard under which the plaintiff had the burden to prove that the statement was untrue.116 Lord Cooke noted, however, that in the United States, plaintiffs commonly had

access to the defendant’s sources to allow them to prove that the statement was made

with malice.117 In the United Kingdom, however, the common law protection afforded to media sources had been strengthened by the 1981 Contempt of Court Act which prevented the court from forcing the disclosure of a journalistic source “unless satisfied

113 Reynolds, supra at 639. The judge cited as an example that, in the instant case, on the same date as the article was printed in the Sunday Times in England, November 20, 1994, the Irish edition of the newspaper had carried a longer article on the same subject which was written more objectively and which Reynolds found was “largely accurate and unobjectionable.” Cooke said in Reynolds that the persons responsible for the publication in the mainland knew what was to be published in the Irish edition. Perhaps, Cooke inferred—though he had no direct evidence—the British editors believed that the factually detailed and balanced account would not have appeal to mainland readers. Id.

114 Reynolds, supra at 639.

115 Id. Although the lawyers for the newspaper in the Reynolds case said they were not seeking to argue for the same libel protection as existed in the United States, they adopted in their arguments letters from a leading US libel attorney. Those letters included the argument that public figures and officials could—and sometimes did—meet the New York Times standard to recover damages.

116 Id. Limiting the application to politicians and not public figures.

117 Id. See Herbert v. Lando, supra at note 5.

228 that disclosure is necessary in (inter alia) the interests of justice,” the judge said.118 Thus,

U.K. plaintiffs would be disadvantaged in proving a statement was malicious.

A third reason why the judge refused to adopt the “generic privilege” was because the burden of proving malice was heavy in English libel cases since the defendant was entitled to a direction that, while recklessness as to whether the facts were true or not amounted to malice, “mere carelessness, impulsiveness, vehemence of language, and even gross and unreasoning prejudice” did not.119 Additionally, although a jury could find malice where a newspaper did not reveal its sources, a court would have to direct the jury that the unwillingness to reveal sources did not constitute malice. Thus, the burden of proving malice was a difficult one.120

A fourth reason stated by Cooke for refusing the privilege was that he believed it was unfair to confine such a defense to political discussion. “There are other public figures who exercise great practical power over the lives of people or great influence in the formation of public opinion or as role models,” he said. “Such power or influence may indeed exceed that of most politicians. The rights and interests of citizens in

118 Id. at 640. See Contempt of Court Act, 1981 § 10 which provides

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime. Id.

th Lord Cooke also noted that the textbook, CARTER-RUCK ON LIBEL AND SLANDER, 105–107 (5 ed., 1977) referred to the difficulty of predicting when disclosure should be ordered. The text cited X Ltd. v. Morgan-Gramptian (Publishers) Ltd., [1990] 2 All E.R. 1; Goodwin v. U.K., (1996) 22 E.H.R.R. 123, and Maxwell v. Pressdram Ltd., [1987] 1 All E.R. 656, 1 W.L.R. 298.

119 Id. Horrocks v. Lowe, [1974] 1 All E.R. 662, 666, 669 and [1975] A.C. 135, 145–146, 150, opinions of Viscount Dilhorne and Lord Diplock respectively.

120 Id. See Spring v. Guardian Assurance plc, [1994] 3 All ER 129, 156, 172, [1995] 2 A.C. 296, 329, 346, opinions of Lord Slynn of Hadley and Lord Woolf respectively.

229 democracies are not restricted to the casting of votes. Matters other than those pertaining to government and politics may be just as important in the community; and they may have as strong a claim to be free of restraints on freedom of speech.”121

Fifth, Cooke rejected the generic privilege as a defense for political discussion because he feared that it would upset the balance between the right to personal reputation and freedom of speech that had been developed carefully and gradually over the years at common law and by statute. Although the restrictions on freedom of speech necessary to protect personal reputation tended “to chill the publication, not only of untruths, but also of that which may be true but cannot be proved to be true,” he said, there was no way to determine whether the restrictions had a greater tendency to chill true or untrue speech.

Thus, the introduction of a “new generic qualified privilege . . . would do violence to the present pattern of the law without any compelling evidence of necessity.”122

Lord Cooke said that with the introduction of the generic privilege, the defenses of justification, fair comment and privilege for fair and accurate reports of official proceedings in legislatures, courts and other tribunals would be rendered “virtually obsolete” in relation to government and political matters. This would mean that a libel suit defendant would not be required to prove the truth—or facts—involved in defamatory allegations, nor would the report have to be fair and accurate.123 The only

121 Id.

122 Id.

123 Id.

230

protection for persons defamed would be the possibility of proving malice, which would

be very difficult.124

Sixth, while noting that the Australian High Court had introduced a new common law privilege for communications to the public about government matters or matters in the public interest in 1997,125 and the English libel law was for the most part similar to

Australian law,126 Lord Cooke declined to adopt the Australian position whole scale in

the United Kingdom. The law of defamation was aimed at allowing the plaintiff to clear

his name, Lord Cooke said, but the privilege allowed in the Australian precedent shifted

the focus of political defamation to the defendant’s conduct instead of the damage to the

plaintiff’s reputation.127 Lord Cooke said:

In practice it may leave a politician plaintiff without redress. His or her private life may be immune from the extended privilege, but otherwise the opportunity of a public clearing of name may be virtually gone. If the Australian solution has disadvantages, they may lie in this change of focus and in the singling out of politicians as acceptable targets of falsehood.128

At any rate Cooke said, the Australian position had not been argued by either party.

124 Id. at 641. This was because in English law, journalists were protected from having to reveal their confidential sources under the 1981 Contempt of Court Act, supra at note 118.

125 Lange v. Broadcasting Corp. (1997) 145 A.L.R. 96.

126 Reynolds, supra at 641. The judge noted that the United Kingdom was no less a representative and responsible government than Australia. He also noted that the context and background in the case of defamation law in the United Kingdom and Australia were not significantly different. Although the constitutional structure varied, the pervading ideals of freedom of speech and the right to reputation were both protected in all democracies.

127 Id. Lord Cooke questioned the position in the Australian case where the judge had held that, “Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defense of qualified privilege.” See Lange v. Australian Broadcasting Corp., (1997) 145 A.L.R. 96, 117. This reasonableness test, Lord Cooke said, meant that Australian judges were given the task of determining the common law of England in relation to a particular matter at a specific time, before deciding not to apply the law. He said that this would be inappropriate in England. Reynolds, supra. at 641.

128 Reynolds, supra at 641.

231

Seventh, Cooke said that, although the New Zealand legal position had also been altered in a 1998 Privy Council decision introducing a generic privilege,129 there was a possibility that English and New Zealand common law might differ.130 Thus, the United

Kingdom was not bound to adopt that court’s approach.

Eighth, the judge said the House of Lords was required to refer, where relevant, to international human rights law in developing the common law.131 The European

Convention on Human Rights prevented the court from acting in a manner inconsistent with the rights protected in the convention,132 including rights to freedom of expression.133 He noted that the European Court of Human Rights had emphatically distinguished between fact and opinion as well as the need to carefully examine “all the circumstances of a particular case” before making a decision about whether freedom of speech was a dominant right.134 Lord Cooke said the case law of the European Court did not embrace a generic privilege for political speech.135

Ninthly, the 1998 Human Rights Act provided at section 12:

129 Lange v. Atkinson, [1998] 3 N.Z.L.R. 424. In Lange, the Court did not follow its earlier decision in Templeton v. Jones, [1984] 1 NZLR 448, holding there was no general privilege protecting publication of political matters to the public at large. In Templeton, the parties were rival candidates for a parliamentary seat at general election. In a speech to the annual general meeting of the electorate branch of his political party, Jones said that Templeton despised Jews. He distributed copies of his speech to the parliamentary press gallery and it was broadcast on national television. The Court of Appeal held there was no privilege protecting the publication of the allegation in the instant case.

130 Reynolds, supra. at 643.

131 Id. at 643. European Convention of Human Rights art. 2(1)(a).

132 Id. European Convention of Human Rights, art. 6(1) & 6(3)(a).

133 Id. art. 10(1) which is restricted by art. 10(2) provisions.

134 Id.

135 Id.

232

(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. . . .

(4) The Court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—(a) the extent to which—(i) the material has, or is about to, become available to the public, or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code.

(5) In this section—“court” includes a tribunal; and “relief” includes any remedy or order (other than in criminal proceedings).

Lord Cooke said the emphasis on “journalistic material” and material published in the public interest, in the act effectively focused on the material rather than the general subject matter.136 Although the general subject matter should be considered, Lord Cooke said, there needed to be a more specific examination to satisfy the statute’s requirements.137

Lord Cooke noted that the Court of Appeal had held in Reynolds that, even where a case was not within the recognized privilege categories, it could qualify as privileged if the “classical tests of reciprocal interest and duty or common interest” were satisfied.138

Although the media could claim a “social and moral duty to publish defamatory material to the world at large,” the aim of increasing readership was not a sufficient motive and it was not realistic to treat the media as “no more than citizens communicating with other citizens on matters of common interest.”139

136 Id. at 644.

137 Id.

138 Id.

139 Id. In some cases newspaper privilege was equated with common interest, but generally the authority favored “underlining media responsibility.”

233

Lord Cooke noted that in the Court of Appeal’s decision in Reynolds the court had

distinguished between the circumstantial test and the duty and interest tests. The duty and

interest test, normally applied in the case of an ordinary citizen, required simply a

showing that the communicator had a duty to make a statement and the person to whom

the statement was made had an interest in receiving the information. But, the Court of

Appeal had said that the circumstantial test depended on whether in all the circumstances the reporter was fair in making his report. Thus, in Reynolds the Court of Appeal had held, the duty and interests tests were generally satisfied but the circumstantial test wasn’t.140

Cooke, like Nicholls, endorsed the circumstantial test. He said that, although a privilege that depended on particular circumstances would produce uncertainty and require more “editorial discretion” than a test under which certain speech was protected and other speech was not, the fourth estate should operate within the general guidelines given to all professions under the law—a standard of “reasonable care and skill.”141

140 Id. This was because while the general subject matter of the article could have made it privileged, the Court of Appeal believed the context and surrounding circumstances ruled out privilege.

141 Id. Cooke dismissed concerns that the Court of Appeal had introduced in its circumstantial test issues that had been determined as only relevant to “malice or abuse of the occasion” in determining whether privilege applied. Id. at 645, citing London Association for the Protection of Trade v. Greenlands Ltd., [1916–17] All E.R. 452 at 456, where Lord Chancellor Buckmaster said:

Again, it is, I think, essential to consider every circumstance associated with the origin and publication of the defamatory matter, in order to ascertain whether the necessary conditions are satisfied by which alone protection can be obtained, but in this investigation it is important to keep distinct matter which would be solely evidence of malice, and matter which would show that the occasion itself was outside the area of protection. Id.

In Reynolds Lord Lester had argued for the Sunday Times that “the failure to include the plaintiff’s account” or to allow him to respond was evidence relevant to malice and not relevant to privilege, though it could bear on loss of privilege.

234

The Law Lord distinguished cases where the publication was made to a small number of people from cases where the publication was distributed widely. He said that where a publication was made in confidence to a “single potential customer” or to a small number of persons, there was no need to look beyond the occasion and subject matter and apply the duty-interest test.142 However, Cooke said, “fairness and accuracy are essential at common law,”143 and by statute,144 when a publication is made to the world at large.145

In the past, the English courts had only extended privilege to “fair and accurate reports of certain proceedings or findings of legitimate interest to the general public.”146

However, in a new line of cases, the law was being developed to “meet the reasonable demands of freedom of speech in a modern democracy” by recognizing another privilege in certain circumstances.147 Thus, Cooke said, it was reasonable to examine all the circumstances of the case, including attempts by the newspaper to ensure the accuracy of facts.148 Cooke said that, although examining all of the circumstances of the case was similar to the “reasonableness” position in Australian law, the British position was more in line with common law tradition.149 In the common law, the judge noted the burden of

142 Reynolds, supra at 645.

143 Id.,citing Wason v. Walter (1868) LR 4 Q.B. 73.

144 Reynolds, supra at 645. Citing Libel Act 1996 Act §. 15 and Sch.1 which provided that statements in relation to certain issues were privileged unless malice was found.

145 Reynolds, supra at 645. Fairness and accuracy also required compliance with a request to publish “reasonable statements by way of explanation or contradiction.” Id.

146 Id.

147 Id., citing Blackshaw v. Lord, [1983] 2 All E.R. 311 and Templeton v. Jones, [1984] 1 N.Z.L.R. 448 and the Court of Appeal’s decision in Reynolds.

148 Reynolds, supra at 644. He referred to the facts listed by Nicholls in the majority opinion.

149 Id.

235 proof was unimportant except to the extent that evidence of “the circumstances surrounding the publication” was necessary.150

Cooke noted that, at common law, the jury would determine disputed facts relevant to qualified privilege, but beyond that, the judge would determine whether privilege applied.151 Cooke adopted the Court of Appeal’s position that the article was inaccurate because Spring had not accused Reynolds of lying, as the newspaper had reported. Spring had criticized Reynolds for failing to disclose what he knew.152 At any rate, Spring could not be considered an “authoritative source” since he was a member of Reynolds’ rival political party. Further, the newspaper had neither published Reynolds’ account of his conduct which he outlined at the Dáil nor informed him of the nature of the articles.153

Additionally, unlike the Irish edition, the British edition of the paper did not attempt to determine whether the Sunday Times report about Reynolds had victimized him unfairly or not. Based on all the circumstances the publication was not protected by privilege,

Cooke held.154 He agreed that the appeal should be dismissed and the issue of privilege should not be reopened in the new trial.155

150 Id.

151 th Id. GATLEY ON LIBEL AND SLANDER (9 ed., 1998) ¶ 34.15 and Adam v. Ward, [1917] A.C. 309.

152 Id. at 646.

153 Id.

154 Id. The lawyers for the newspaper had argued that, if the court decided that generic privilege failed, they should be allowed to start a new trial to determine culpability to allow them to lead evidence to prove the article was protected by qualified privilege. Lord Cooke noted that they had an opportunity to make the arguments during the trial. Id. at 647.

155 Id.

236

Lord Hobhouse of Woodborough’s Concurrence

Lord Hobhouse of Woodborough also agreed with Nicholl’s position that the appeal should be dismissed. Although believing that the Court of Appeal had wrongly separated the circumstantial test from the duty-interest test, he found that the substance of the Court of Appeal’s decision was correct (see table 3-1 above).156

He said that the case arose from the publication of untrue factual statements and did not involve freedom of expression and opinion which were protected by law and guaranteed to citizens in a free society.157 Hobhouse said that communication and not misinformation was protected in a free society. Similarly, no public interest was served by disseminating untrue information, and a democratic society depended on the members of the society being informed rather than misinformed. For him, the issue extended beyond the protection of reputation.158

Lord Hobhouse noted that the law of civil defamation was premised on the private law right to protect reputations, while privilege as a defense was premised on the needs of society. It would be impractical not to tolerate any level of factual inaccuracy in society, since “complete factual accuracy was not always practically achievable.” Thus, there needed to be some tolerance for factual inaccuracy, leading to the need for the defense of privilege.159

156 Id. at 659.

157 Id. at 657.

158 Id. There was “no human right to disseminate information that is not true,” he said.

159 Id. Also, Hobhouse said, sometimes it was not practical to establish absolute truth, and the distinctions between fact, innuendo and comment were also not capable of delineation, leaving no room for disagreement or honest mistake. The discussion of opinion would inevitably overlap with factual assumptions and implications. Id.

237

Lord Hobhouse said some protection for journalists against defamation was necessary because writers, editors, and publishers were all liable for what the newspaper printed, regardless of whether the statement had originated with them or not.160

Journalists often had to depend on others as sources for their stories because they had no personal knowledge of the events they reported. Lord Hobhouse said the nature of journalists’ sources was important to the kind and extent of privilege afforded to journalists. To satisfy the requirements of privilege, the report should have a qualitative content justifying the defense where the report included a misstatement of fact.161

Privilege attached to legal proceedings and legal inquiries because of the public interest in being informed about such matters, even where the information may not have been true. But there was no protection for casual gossip overheard by a journalist since there was no public interest in repeating it to the public, unless it was factually true, Lord

Hobhouse said.162

The common law recognized both the public interest in the law of privilege163 and the limits of the privilege.164 The publisher did not discharge his duty to show that the publication was in the public interest by merely showing that the subject matter was of public interest. The case law also revealed that the doctrine of express malice was not an adequate safeguard for defamed persons. Although a defamed person was only required

160 Id. at 657–658.

161 Id.

162 Id. at 658.

163 Id. See Perrera v. Peiris, [1949] A.C. 1.

164 Reynolds, supra at 658. See Blackshaw v. Lord, [1983] 2 All E.R. 311, See also Truth (NZ) Ltd. v. Holloway [1960] N.Z.L.R. 69.

238 to prove that the publisher did not have an honest belief in the truth of what was published,165 because of the subjective nature of the criterion, the plaintiff’s burden of proof was difficult to meet in all but the “most blatant cases,” the judge said.166

Hobhouse noted that, because of the inadequacy of the defense of privilege, in England and other countries, statutes had been passed to provide additional protection for defendants.167 In the case of England, the 1996 Defamation Act provided the media with additional special defenses, such as an offer of amends, whereby the media could offer to make and publish a suitable correction or apology and to pay compensation and costs to the defamed person.168 Where an offer to make amends was accepted a libel action could not be brought or continued against the newspaper.169 Lord Hobhouse said that the statutory provision allowing an offer of amends removed the need to modify the law with the new “generic” privilege requested by the newspaper.170

Hobhouse noted that all the law lords in the Reynolds case had agreed that there was no need for a new generic privilege. Lord Hobhouse said the only species of privilege that was required was that based on the public interest in knowing and “what the publisher should properly consider that he was under a public duty to tell the public.”171 This would be determined by the duty-interest test. The duty-interest test in

165 Reynolds, supra at 658. See Horrocks v. Lowe, [1974] 1 All E.R. 662, 699 opinion of Lord Diplock.

166 Id.

167 Id. These included New South Wales and section 9 of the 1992 Defamation Act of New Zealand.

168 Defamation Act 1996 § 2.

169 Id. at § 3.

170 Reynolds, supra at 658.

171 Id.

239 the law of privilege included both public and private duties and interests, Hobhouse said, and the public dimension protected in a “satisfactory and adaptable manner” the publications that should attach privilege. A new generic privilege would be both too wide and too narrow. It would be too wide because it failed to take into account the different characters and circumstances of the publications falling within its scope. It would be too narrow because it would fail to allow privilege to publications outside its definition which also deserved privilege.172

Hobhouse also said there was an advantage to the publisher of the English legal position vis-à-vis the United States position in the era following the 1964 New York

Times v. Sullivan173 decision. Hobhouse said that, in the United States, the trade-off for the extensive defense of actual malice in libel cases had been the requirement of the full disclosure of sources in an extensive and onerous pre-trial discovery.174 However, under

English law publishers could preserve their sources’ confidentiality in a libel action.

Since English law left the burden of establishing privilege with the newspaper’s publisher, he had the discretion whether or not to reveal his source in order to discharge his burden.

Lord Hobhouse agreed with Nicholls’ position that the circumstances of publication of a defamatory remark had to be taken into account in determining whether privilege applied, which he said already had been established in English law. However,

Hobhouse criticized the Court of Appeal’s circumstantial test because it treated the

172 Id.

173 376 U.S. 254 (1964).

174 Reynolds, [1999] 4 All E.R. at 659. See Herbert v. Lando, supra at note 5.

240 circumstances of the publication as a separate and distinct element from the duty and interest test. He said that treating the two categories as different was “unnecessary and mistaken.”

Nonetheless, Lord Hobhouse upheld the substance of the Nicholls’ opinion.175

Finding that the Court of Appeal had applied the law correctly in relation to the undisputed facts, he decided there was no justification to allow the defendants to re-open that aspect of the case and agreed the appeal should be dismissed. Thus, he held the newspaper should not be allowed to rely on privilege in the new trial ordered by the

Court of Appeal (see table 3-1 above).176

3.6 Dissenting Opinions

Lords Steyn and Hope in their separate dissents, rejected both the “generic” privilege argued by the newspaper’s attorneys and the circumstantial test relied upon by the Court of Appeal, highlighting the importance of distinguishing the role of the judge from that of the jury in determining privilege.

Lord Steyn’s Dissent

In his dissent, Lord Johan Steyn noted that the Reynolds case had brought to the forefront important issues that needed to be addressed in reconciling the rights to freedom of speech and reputation within the framework of the passage of the 1998 Human Rights

Act that provided greater protection for human rights.177 He noted that in the House of

175 Id.

176 Id.

177 Id. at 627.

241

Lords decision Silken v. Beaverbrook Newspapers Ltd178 Lord Kenneth Diplock had observed:

In the first place, every man, whether he is in public life or not, is entitled not to have lies told about him; and by that is meant that one is not entitled to make statements of fact about a person which are untrue and which redound to his discredit, that is to say, tend to lower him in the estimation of right-thinking men.179

Lord Steyn noted that the Reynolds case involved a defamatory statement which the newspaper honestly believed was true.180 If, however, Diplock’s construction was an absolute rule, there would be no room for qualified privilege. However, in Attorney

General v. Guardian Newspapers Ltd (No. 2),181 Lord Goff of Chieveley had held there was no difference between article 10 of the European Convention for the Protection of

Human Rights and Fundamental Freedoms and the protection for freedom of speech in

English common law. Article 10 provided for the right to freedom of expression bounded only by restrictions that were “prescribed by law” or “necessary in a democratic society.”182

Lord Goff’s observation that there was no difference between the provision of freedom of speech in the Convention and at English common law had been endorsed by

Lord Keith of Kinkel for a unanimous House in his 1993 decision in Derbyshire CC v.

Times Newspapers Ltd.183 The rationale for the position defended by lords Goffe and

178 [1958] 2 All E.R. 516, 1 W.L.R. 743 at 746.

179 Id.

180 Reynolds, supra at 628.

181 [1988] 3 All E.R. 545 at 660.

182 Id.

183 [1993] 1 All ER 1011 at 1021.

242

Keith was based on the principles of liberty and the constitutional right to freedom of speech, Lord Steyn said.184 Under the principle of liberty, individuals and their enterprises were free to do anything not prohibited by law185 while the executive and judicial branches of government were only allowed to do what the law specifically permitted.186 Because the right to freedom of speech was constitutionally protected in

England, it had the power of a higher normative right.187 Thus, both Goffe and Keith had determined that the English position was the same as the European Convention’s.188

Within the new protection provided by the European Convention, he said, because the right to freedom of speech was constitutionally protected, exceptions to this freedom had to be justified as “necessary in a democracy.”189 Thus, freedom of speech was the rule and regulation of speech the exception that required justification. Any regulation had to be justified in existence and breadth by a pressing social need. This, he said, was

184 Reynolds, supra at 628.

185 Id. See AG v. Guardian Newspapers Ltd (No. 2), [1988] 3 All E.R. 545 at 660. Lord Goff said “everybody is free to do anything subject only to the provision of the law.”

186 Reynolds, supra at 628.

187 Id. See Cassell & Co. Ltd. v. Broome [1972] 1 All ER 801, 876 opinion of Lord Kilbrandon.

188 Reynolds, supra at 628.

189 Id. at 629. See European Convention on Human Rights § 10(2) which provides that the exercise of the right to freedom of speech,

since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Id.

243 fundamental to balancing the right to freedom of expression with defamation laws.190 The issues to be determined in the Reynolds case, Steyn said were:

• Whether there was a generic qualified privilege for publication by a newspaper to the public at large of information including assertions of fact about government and political matters affecting United Kingdom citizens? • Whether the Court of Appeal’s circumstantial test to be observed alongside the duty and interest tests in determining whether privilege applied was correct in law? • What is the applicable law if neither the generic nor the circumstantial test was found to be good? • What are the respective functions of the judge and jury in the trial, regardless of the test? • Once the issues of law are resolved, should the Court of Appeal’s decision be affirmed or quashed? and • What order should be made?

Lord Steyn turned to address the issues. The first issue was whether there should be a new “generic” privilege in libel cases. The lawyers for the Times asked the House to recognize a qualified privilege for newspapers to publish factual information, opinions and arguments related to the government and political matters that affected the citizens of the United Kingdom.191 This privilege could be rebutted where the plaintiff proved that the paper acted with express malice, knowledge of falsity or reckless disregard for whether the statement was true. Steyn rejected the generic privilege for two reasons. His first reason was that the provisions in the United Kingdom law would prevent plaintiffs from recovering information from confidential sources that would be required to rebut the privilege, placing them at a disadvantage in meeting the burden to prove malice.

Secondly, he believed, the “generic” privilege was inconsistent with the decisions of the

European Court, which encouraged a balancing test in determining whether privilege applied.

190 Id.

191 Id. at 630.

244

Steyn noted the arguments of both lawyers in the Reynolds case on the issue of the new “generic” privilege. While Reynolds’ attorneys argued that a generic privilege would make it impossible to sue a newspaper that published defamatory information without checking the facts, the newspaper’s attorneys countered that, where information had been unchecked, this would be gross misconduct that would be at “significant risk of an adverse jury verdict on the ground of recklessness.”192 The lawyers argued that, without a generic privilege, investigative journalism of political matters was unprotected and the generic privilege would allow predictability in decisions.193 This, the lawyers said, was necessary in the new legal landscape created by the incorporation of the European

Convention into English law.194

In rejecting the generic privilege, Lord Steyn noted that the issue arose in light of the publication by the newspaper of a defamatory incorrect statement that it believed to be true.195 A generic privilege, Lord Steyn said, should be distinguished from a qualified privilege that arose from the consideration of all the circumstances, balancing the damage to the plaintiff’s reputation against the value of the publication in the particular case. In the case of a generic privilege, privilege was applied to a category or categories of cases.

One example was that, under the United States’ New York Times v. Sullivan decision, proof of actual malice was required in all cases involving a public official or public figure.196 In Reynolds, the Sunday Times had argued for a generic test that did not apply

192 Id.

193 Id. at 630– 631.

194 Id. at 631.

195 Id. at 630.

196 Id.

245 to the category in which the victim fell (such as a public figure), but to the subject matter

(political speech).197

Steyn noted that the common law decisions in libel actions brought by public officials varied in different jurisdictions depending on cultural and other peculiarities of the individual jurisdictions.198 Lord Steyn said there was a need to strike a “better balance between freedom of speech and defamation” to prevent the “chilling effect of the English defamation law on speech.199 Thus, Steyn endorsed Tony Weir’s description of defamation as “the oddest of torts.”200 Weir wrote:

he [the plaintiff] can get damages (swinging damages!) for a statement made to others without showing that the statement was untrue, [sic] without showing that the statement did him the slightest harm, and without showing that the defendant was in any way wrong to make it (much less that the defendant owed him any duty of any kind).201

Despite recognizing the need for a better balance between reputation and freedom of speech, Lord Steyn did not believe that the “generic” privilege would be appropriate in

England. Lord Steyn said that the Sunday Times’ lawyer had a burden to demonstrate that

197 Id.

198 Id. Thus, in the United States, the Supreme Court in Sullivan imposed a higher burden of proof for libel cases brought by public officials, thereby protecting newspapers that libeled public officials through a public official defense. Similarly, in Lange v. Australian Broadcasting , (1997) 145 A.L.R. 96, the Australian High Court allowed a qualified privilege of political speech subject to the requirement of due care. In Lange v. Atkinson, [1997] 2 N.Z.L.R. 22, the New Zealand Court allowed a generic defense of free speech based on policy considerations that were unique to New Zealand and, in Reynolds, [1998] 3 All E.R. 961, the United Kingdom Court of Appeal had decided upon a “circumstantial test” that depended mainly on the source of the information but rejected generic protection for political speech or for defamation of public officials.

199 th Reynolds, supra at 631. See TONY WEIR, CASEBOOK ON TORT, 528 (8 ed., 1996) and ERIC BARENDT ET AL, LIBEL AND THE MEDIA: THE CHILLING EFFECT, 191–192 (1997).

200 th TONY WEIR, CASEBOOK ON TORT 525 (8 ed., 1996).

201 Id.

246 the development of a generic privilege would be “fair and workable” and “sensibly accommodated” in the United Kingdom’s legal system, which he had not done.202

Steyn rejected the generic test for two reasons. First, like Lord Hobhouse, Lord

Steyn said the test was inappropriate in England because, while the United States law entitled plaintiffs to pre-trial inquiry into the sources of stories and editorial decision-making,203 under the rules and practice of English law, a newspaper could not be compelled to reveal its sources.204 The judge believed the procedural restrictions on forcing newspapers to reveal the identity of their sources, coupled with the generic privilege, would make it “unacceptably difficult” for plaintiffs to prove malice in defamation cases.205

Steyn’s second reason for rejecting the generic test was that he believed that the test that categorized cases involving political speech in the proposed generic privilege cases contradicted the European Court of Human Rights’ jurisprudence. The European Court had favored a balancing exercise in cases involving competing rights and interests.206 The judge believed that the English court should follow the prevailing approach in the

202 Id.

203 Id. See Herbert v. Lando 441 U.S. 153 (1979).

204 Id. See Contempt of Court Act 1981 § 10, RSC Ord. 82, r 6. See also Goodwin v. UK (1996) 22 E.H.R.R. 123, 143 (para. 39).

205 Reynolds, supra at 631.

206 Id. Steyn agreed with the position of Professor John Fleming who noted that the European Court’s approach was close to the German approach under which each case was individually analyzed. John Fleming, Libel and Constitutional Free Speech, in ESSAYS FOR PATRICK ATIYAH, 333, 337 & 345(Peter Cane and Jane Stapleton, eds., 1991).

247 interpretation of the European Convention. Thus, he rejected a generic qualified privilege in England.207

The second issue that Lord Steyn examined in his dissent was the circumstantial test authored by the Court of Appeal. Lord Steyn also rejected the circumstantial test.208

Lord Steyn believed that the circumstantial test would be a radical re-writing of the law of defamation and an unsatisfactory means of redressing the imbalance between free speech and defamation.209

The judge approved of the statement in the decision of the Court of Appeal that, although public persons were subject to closer scrutiny and criticism, they should not “be taken to expect or accept that their conduct” would be the subject of “false and defamatory statements of fact.” 210 Nonetheless, Lord Steyn rejected the Court of

Appeal’s circumstantial test that would make it more difficult for a newspaper to claim privilege as structurally flawed.211 He adopted the observation of the Reynolds’ attorneys

207 Id.

208 Id. Lord Steyn noted that there was very little support for the circumstantial test and, except for an obiter dicta reference to it in Blackshaw v. Lord, [1982] 2 All E.R. 311, 339, the decisions relied upon by the Court of Appeal were cases involving institutional reporting and materially different from investigative journalism. Id. at 632–633. He noted that Blackshaw predated the decision in Derbyshire CC v. Times Newspapers, [1993] 1 All E.R. 1011 where the duty and interests test had been laid down and thus, it was not the legal position. Id. at 633. The Court of Appeal had compared the “circumstantial test” with the reasonableness test adopted by the Australian Court in Lange v. Australian Broadcasting Corp., (1997) 145 ALR 96. However, Lord Steyn noted, the Australian decision had been influenced by a New South Wales statute that imposed a standard of reasonable care on publishers.

209 Id

210 Id. Emphasis Lord Steyn’s. See Reynolds [1998] 3 All ER 961 at 1004–1005.

211 Reynolds, supra at 633.

248 that it was “conceptually difficult to reconcile . . . a finding that there is a duty to publish and a reciprocal interest with a conclusion that there is nonetheless no privilege.”212

The third issue that Lord Steyn examined in his dissent was whether the duty and interest test should be applied in determining whether a statement was protected by privilege. Having rejected both the generic and circumstantial tests, the judge found the alternative test of duty and interest was sound.213 The test, Lord Steyn said, was flexible enough to embrace a qualified privilege in relation to political speech published at large.

He rejected the distinction outlined by the Court of Appeal between official and unofficial sources and that greater weight should be given to official rather than unofficial sources and to government press releases rather than to a statement made by a political opponent.214 He found “unacceptable to our democracy” the placing of stronger weight on information on behalf of the government than non-government information in considering a plea of qualified privilege.215

Reynolds’ attorneys had argued that where political speech was concerned, qualified privilege could only apply where three criteria were met:

• the occasion should be one where it was in the public interest to publish the information, • a report that did not include the other side would always fail the test, • the publisher had the burden to prove there was a cogent reason why the newspaper should be excused from justifying the truth of the assertion.

212 Id.

213 Id.

214 Id. at 634. See 3.1 supra at note 30 for the Court of Appeal’s discussion on what documents should be privileged.

215 Id.

249

The first proposition, that qualified privilege would apply where it was in the public interest to publish the information, was in line with existing law, the judge said.216

However, Steyn found the second proposition—that the privilege would fail if the article did not report the plaintiff’s side—was implausible.217 Like Nicholls, Steyn said that although the failure to report the other side of the story would be evidence that often tended to show that the occasion should not be privileged, it would not necessarily always mean the privilege was lost.218 Imposing a strict requirement to report both sides was contrary to the pragmatic common law position and a test that depended on circumstances, the judge said. The third proposition, placing the burden of proof on the publisher to protect himself from having to prove the veracity of the information,

“emasculated” the qualified privilege of political speech. Thus, Steyn rejected it.219

The proposition that for anything to be privileged it must meet a “public interest” test, the judge noted was imprecise, but was an area in law which needed minimum legal rules. The public interest was a well-known and serviceable concept, Lord Steyn said.

The standard that privilege would be a defense in situations where there was a public interest warranting publication complied with the requirement of a standard that provided legal certainty, he said. The issue would be determined in light of all the evidence. Where

216 Id. at 636.

217 Id. at 636.

218 Id. Steyn noted the case where the defamed person’s explanation was unintelligible or nonsensical. See Lange v. Australian Broadcasting Corp. (1997) 145 A.L.R. 96, 118.

219 Id.

250 a newspaper decided to protect its sources, the judge and jury could take into account the consequent gap in the evidence, Lord Steyn said.220

The judge noted that in English law the media had no special privilege protecting it in the case of libelous actions beyond that shared by individual citizens. Nonetheless, he noted that in its role as a “watchdog” the press needed special protection.221 Thus, Steyn noted that, in Castells v. Spain,222 the European Court said in relation the press’

“watchdog” role:

[T]he pre-eminent role of the press in a State governed by the rule of law must not be forgotten. Although it must not overstep various bounds set, inter alia, for the prevention of disorder and the protection of the reputation of others, it is, nevertheless, incumbent on it to impart information and ideas on political questions and on other matters of public interest. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society.223

Similarly, Lord Steyn said, the European Court of Human Rights had said that there should be a distinction between media reports on political and other types of reports in its

1986 decision Lingens v. Austria.224 The European Court said:

The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt Article 10(2) enables the reputation of others—that is

220 Id.

221 Id. at 635. See Godwin v. UK (1996) 22 E.H.R.R. 123 at 143 (para. 39).

222 (1992) 14 E.H.R.R. 445 at 476 (para. 43).

223 Reynolds, supra at 635. De Haes v. Belgium, (1997) 25 E.H.R.R. 1, the European Court of Human Rights emphasized that the press played an important role in a democratic society.

224 (1986) 8 E.H.R.R. 407, 419.

251

to say, of all individuals—to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.225

Steyn noted that this decision implied that speech about political matters was more protected than speech relating to a politician’s private life.226 Lord Steyn also said there was a need to take into account the fact that delaying news for a short time could deprive

“its value and interest.”227 Bearing in mind the importance of speech on political matters and the perishable nature of news, Steyn said, the balance in the law between freedom of expression and the right to reputation fulfilled the convention requirement of being

“necessary in a democracy.”228 Thus, the judge agreed with the test of duty and interest in weighing whether there was a qualified privilege for political speech as opposed to the circumstantial test.229

The fourth issue examined by Lord Steyn in his dissent was the separate roles of the judge and jury in a defamation trial, Lord Steyn referred to American law. He noted that the American Law Institute Restatement of the Law, Torts 2d.230 stated:

(1) The court determines whether the occasion upon which the defendant published the defamatory matter gives rise to a privilege.

(2) Subject to the control of the court whenever the issue arises, the jury determines whether the defendant abused a conditional privilege.231

225 Reynolds, supra at 635.

226 Id. See also Oberschlick v. Austria, (1991) 14 E.H.R.R. 229, 242.

227 Reynolds, supra at 635. See Sunday Times v. UK (No. 2), (1991) 14 E.H.R.R. 389, 422.

228 Reynolds, supra at 635.

229 Id. at 636.

230 RESTATEMENT OF THE LAW, TORTS 2d. (1977), Ch. 26. cf. Reynolds, supra at 656, Lord Hope of Craighead’s opinion.

252

Steyn noted that the position in the English common law was consistent with the

position in the United States in cases where the issue of qualified privilege arose.232 Thus, judges determined whether privilege existed while juries determined whether publishers were motivated by malice.233

The fifth issue addressed by Lord Steyn was the Court of Appeal’s decision. He held that the Court of Appeal’s decision that the publication should not be protected by

privilege in the public’s interest should be overturned.

Steyn’s rationale was that the Court of Appeal had enunciated a new test for

qualified privilege which the House of Lords had rejected.234 Since, the Court of Appeal

had sent the matter back for a retrial before a different judge and jury, Steyn said, it was

fair that the issue of qualified privilege be raised by the newspapers before the new court,

231 Id. at § 619. The commentary on section 1 states,

Whether a privilege exists at all is a question for the court. This requires the court to determine whether the circumstances under which the publication was made were such as . . . to make the publication privileged. This is true whether the issue involves the existence of an absolute privilege or of a conditional privilege. If the facts are in dispute, the jury is called upon to consider the evidence and pass upon the issues thus raised. It is for the court, however, to decide whether the facts found by the jury made the publication privileged or to instruct the jury as to what facts they must find in order to hold the publication privileged. Id.

The commentary on section 2 states,

The question whether the defendant acted for an improper purpose or in an improper manner is material if the publication is conditionally privileged . . . Under these circumstances, the qualified protection thus created is lost if the defendant has utilized the privilege for a purpose other than that for which the privilege was created, or if he otherwise abused the privilege. . . . These questions are for the jury to determine unless the facts are such that only one conclusion can reasonably be drawn. Id.

232 Reynolds, supra at 636, citing Hebditch v. MacIlwaine, [1894] 2Q.B. 54, 58; Adam v. Ward, [1917] A.C. 309, 318; Minter v. Priest, [1930] A.C. 558, 571–572; Kingshott v. Associated Kent Newspapers Ltd. [1991] 2 All E.R. 99, 108.

233 Reynolds, supra at 636. Steyn said that the judge could withdraw the issue from the jury if only one conclusion could be drawn and, once the jury made a finding on the facts, the judge had to decide whether the occasion was privileged.

234 Id.

253 in light of the House’s decision.235 He said that, failing this, the outcome would be an assumption that the failure to publish Reynolds’ explanation in the Dáil was sufficient to preclude the newspaper from relying on qualified privilege for political speech. He noted that none of the Law Lords had supported the proposition that the mere failure to report on Reynolds’ explanation would forfeit the newspaper’s right to the defense of privilege opinions. Thus, Steyn said he would allow the appeal against the Court of Appeal’s decision that, in the new trial, the newspaper could not rely on privilege. He said he would send the issue of qualified privilege for retrial before the lower court.

Lord Hope of Craighead’s Dissent

Lord Hope of Craighead, in his dissent, addressed the two major questions that all the law lords had discussed in the case. The first question was whether the generic privilege argued by the newspaper’s lawyers to protect “all defamatory statements made in the context of political discussion” should be introduced into the English law.236 The second question was whether the Court of Appeal went further than it should have in formulating the circumstantial test by introducing factors relevant to malice rather than to the question whether the occasion was privileged.237 Lord Hope rejected both the generic

235 Id. at 637. Steyn also noted that the Court of Appeal’s assumption that there was no evidence before the jury that Mr. Spring authorized Mr. Finlay to accuse Mr. Reynolds of lying” was wrong. See Reynolds, [1998] 3 All E.R. 961 at 1006. As was the position that “Mr. Spring did not in terms accuse Mr. Reynolds of lying to the Dáil” was contrary to the jury’s findings and debateable. The judge also noted that the issue of justification would have to be considered by the jury.

236 Id. at 647.

237 Id. at 648. See Reynolds v. Times Newspapers, [1998] 3 All E.R. 961, 994–995. In the Court of Appeal, Chief Justice Lord Bingham of Cornhill had identified three tests to be satisfied: the duty test, the interest test and the circumstantial test. While the duty and interest tests were satisfied, the Chief Justice said:

Given the nature, status and source of the defendants’ information, and all the circumstances of the publication, this was not in our judgment a publication which should in the public interest be protected by privilege in the absence of proof of actual malice. Id.

254 privilege and the Court of Appeal’s test and held that the newspaper should be allowed to rely on the defense of privilege in the retrial ordered by the Court of Appeal. Lord Hope said he would allow the appeal because the Court of Appeal had based its decision that the publication was not protected by qualified privilege on the issues considered under the circumstantial test. Although he recognized that there would be a question of whether privilege had been abused, the issue of whether the occasion was privileged had not been properly addressed.

In relation to the issue of whether there should be a “generic” privilege, Hope noted that the foundation for the action of defamation was malice, which was implied where defamatory and untrue words were used.238 The presumption was rebutted where the words were used on a privileged occasion. However, the claimant could then prove that there had been express, factual, malice, constituting knowledge of falsity or reckless disregard for whether a statement was false.239

The essential issue was whether the occasion was privileged or the person making the statement “had an interest or duty to make it to the person to whom it (was) made and the person to whom it was made (had) a corresponding interest or duty to receive it.”240

This “interest or duty” could be legal, moral or social, but there should be reciprocity of duty and interest.241

238 Reynolds, supra at 648.

239 Id. at 648–649.

240 Id. at 649. See Adam v. Ward, [1917] AC 309 at 334, opinion of Lord Atkinson.

241 Id. He noted that, although the communication is often referred to as privileged, the occasion itself was the thing to which privilege attached.

255

Lord Hope said that “no individual or organization, such as a newspaper or any other section of the media, can assert that it is entitled to the benefit of qualified privilege simply because of who or what the organization is or what it does.”242 In determining whether a communication should be privileged, it should be examined to determine whether there was an “interest or duty to make it and a corresponding interest or duty to receive it” which would be based on its subject matter.243

As a general rule, the judge said, it was in the public interest to protect communication between parties having a reciprocal duty and interest in receiving information. However, the circumstances in which the common law defense of qualified privilege applied were also broadly defined. The aim was to strike a balance between competing interests, and, in doing so, the court had to remain flexible. The advantages of certainty which arose from the recognition that cases falling within a certain category would always attract privilege should be balanced with the disadvantages of rigidity, he said.244

Hope identified three factors determining whether there was a “generic” qualified privilege in a specific situation. These were the precision with which the category protected by the privilege was described, the persons to whom the material was communicated, and the issue of whether the maker was actuated by malice.

242 Id.

243 Id. In applying these principles, Lord Hope said, there would be some occasions of qualified privilege that fell into a recognizable group or category and so attracted a generic common law qualified privilege. Occasions within this category would be treated as privileged and could only be held defamatory if they were found to be actuated by actual malice. The rationale for this was to assist freedom of speech by removing the “chilling effect” imposed by the law of defamation on the discussion of matters in the public interest. Id.

244 Id. See also Perera v. Peiris [1949] A.C. 1, 20, where Lord Uthwatt, speaking on behalf of the Privy Council, said they would rather relate their conclusions to the wider general principle underlying the defense than to debate whether the case fell within a specific category of privilege.

256

Where the category was not precisely described, the judge was concerned that it would be subject either to enlargement or erosion, losing touch with its underlying justification. Whenever it was impossible to have a precise definition, it was better to take each case on its particular circumstances to determine whether the privilege applied.245

When determining whether a communication was protected by privilege, Hope said, the fact that a communication to a particular group has less severe consequences than one sent to the general public would be taken into account. Thus, the issue in deciding whether a communication was protected by privilege was always whether the public interest in communicating the information outweighed the general public interest in protecting the individual’s reputation.246 Hope noted that the balance between the two public interests was subject to changing political or social circumstances as well as changes in the manner in which news was presented and distributed.247

Hope also noted that, since proof of malice was the only protection against the damage caused by communicating defamatory but privileged content, it was important not to give the benefit of privilege “too readily” to persons and organizations whose sources were so protected that they were rendered unavailable to determine malice.248 He said “the less open the communicator is to scrutiny, the more important” it was to remain flexible.249

245 Reynolds, supra at 650.

246 Id.

247 Id.

248 Id. at 649–650.

249 Id. at 650. cf. U.S. case Downing v. Monitor Publishing Co., 415 A.2d 683 (N.H. 1980), holding that where a journalist refuses to reveal the name of his source in a libel case, the court would assume no source was used and recklessness on the part of the journalist.

257

“Qualified privilege,” the judge said, “should not be given to a category where the occasion of the communication is such that the privilege is at risk of becoming, in practice, absolute.”250

Hope noted that election cases in late nineteenth century Scotland were a good example of a situation where generic qualified privilege would apply. The newspaper’s lawyer had argued that the temporal and geographical limits laid down by these cases were outdated and the law should recognize a point of principle in the cases that should be generally applied. Hope agreed with the attorney’s arguments, and noted the need to examine the line of Scottish election cases to determine what the principles were and whether the limits were too narrow and required modification.251 Although the facts of some of the cases discussed by Hope dealt with statements of opinion the arguments before the court centered on the defense of privilege.

Hope noted that the 1837 Scottish election case, Duncombe v. Daniell,252 involved a voter in a parliamentary election who wrote two letters published in the Morning Post that reflected on the character of a candidate in his constituency. The candidate was awarded damages in a defamation suit and the author of the letters applied for a new trial partly on grounds that it was justifiable for an elector to communicate in good faith to the appropriate constituency anything respecting a politician that he believed was true and material to an election.253 In refusing the application for a new trial, Justice Coleridge said the speaker was required to prove that he was entitled to publish the information to

250 Id.

251 Id.

252 (1837) 8 C& P 222.

253 Id.

258 the world, since the information had been published in a newspaper.254 The lawyer for the author submitted that so long as no more was done than required to let the constituents know of the bad behavior of the candidate, the publication was privileged. He also argued that the issue of whether no more was done than required to let the constituents know was for the jury. Chief Justice Lord Denham disagreed holding:

However large the privilege of electors may be, it is extravagant to suppose that it can justify the publication to all the world of facts injurious to a person who happens to stand in the situation of a candidate.255

Lord Hope also referred to the authority of several other Scottish cases. The 1891 decision, Anderson v. Hunter,256 involved an election candidate for county councilor. The parish for which Anderson was running for a seat had been divided into two electoral divisions. Hunter was from the same parish as Anderson, but was an elector in the other division. Hunter had told several people that Anderson was not fit for office because he would soon be bankrupt. Hunter’s lawyers argued that the statements were privileged because he was a taxpayer in the parish in which Anderson was running for a public office. The court rejected the argument because Hunter was not a voter in the election which his statements referred to.257

The 1892 case, Bruce v. Leisk,258 although involving an opinion, focused on the issue of qualified privilege. Leisk was an elector in the same ward of a burgh where

Bruce was seeking election as a councilor and as a member of the ward committee

254 Id. at 229.

255 Id.

256(1891) 18 R 467.

257 Reynolds, at 651.

258 (1892) 19 R 482.

259

appointed by the ratepayers of the constituency to recommend suitable candidates for

election. The lower court’s decision that Leisk’s words that impugned Bruce’s candidacy

were privileged and so required proof of malice was upheld by the higher court. The

higher court held that electors considering who should be elected were entitled to tell

others what they knew, or believed they knew, about candidates.259

Brims v. Reid & Sons260 involved the publication by a newspaper of an anonymous letter concerning the fitness for office of a candidate for re-election to the town council

and Dean of Guild. The newspaper refused to disclose the writer’s name. The court held

that the paper could not plead privilege for the words since they had been written in an

anonymous letter.261

259 Id. at 486–487. Lord Adam said,

The question we have to consider is whether an elector has a right and privilege to state to other electors, or to another elector, what is germane to the election, and what he believes at the time to be true. If it is not already implied in the judgment in the case of [Anderson v. Hunter] that where a candidate is standing for an important political office, one of the disagreeable incidents of it which he has to face from the electors is such language as is here complained of, I have no difficulty in laying this law down now. If it is alleged that the statement was made maliciously, then he will have an action, but not otherwise.

Lord Kinnear also agreed that privilege attached since the words complained of were uttered while the speaker was engaged in the “exercise of a public right” in the process of performing a public duty.

260 (1885) 12 R 1016.

261 Id. at 1020–1021. Lord Inglis reasoned that because the statements had been made in an anonymous letter they were not protected by privilege. He said that newspaper editors had “some” privilege to publish comments “upon the doings of public men.” But since the statements complained of in the case were “contained in an anonymous letter to the editor” and the editor “[had] declined to disclose the author,” then “the editor accept[ed] the position of the anonymous writer.” Because in the case the court did not know “who the writer was, whether he was a ratepayer in Wick, whether he ever was in Wick in his life, or whether he is even a subject of Her Majesty,” he was unable to justify the libel by showing he was protected by privilege because of his status. Lord Shand also said that “if the question related to an editorial comment in a leading article about the conduct of a public man seeking re-election on the eve of the election, [the statement] would have been protected by privilege. However, the writer of an anonymous letter could not be given privilege, and the editor could not by adopting the letter invest privilege.” Id. at 1021.

260

McKerchar v. Cameron,262 another decision in 1892, also involved the publication in a newspaper of an anonymous letter that accused a public official of being unfit for his post as a teacher in a public school. The argument that the ratepayers and inhabitants had an interest and right to know was dismissed by the court which followed the Brims decision. Lord McLaren, however, did not even believe there was a duty or right for a member of the public to criticize the conduct of a public servant in public employment.263

Lord Hope in the Reynolds case said that Duncombe v. Daniell —which prevented qualified privilege in the case of an elector who published in his own name—would most likely no longer be good law at the turn of the twentieth century. This was so because the decision in the two Scottish cases, Brims and McKercha,— when privilege was denied on the basis that the information was from an anonymous source—implied that privilege would not be denied on the mere grounds that the publication was made to the world at large.264

Hope noted that the criteria used to determine whose conduct would be subject to commentary that was protected by qualified privilege included being electors and candidates in the same electoral ward, district or constituency. Nonetheless the decision in Brims’ case implied that there generally was a distinction between persons in public positions and private persons, Lord Hope said.265 But other cases, including the publication of information on the public conduct of persons aspiring to office would also

262 (1892) 19 R 383.

263 Id. at 386.

264 Reynolds [1999] 4 All E.R. at 653.

265 Id.

261 attract privilege. However, the judge believed that, although the principles were clear, there was a difficulty determining the cases that fall within this category.266

The law lord said that the fundamental right to freedom of speech and the nature of the electoral process had changed since the mid-twentieth century with the establishment of the European Convention of Human Rights. The European Court of Human Rights had reinforced the arguments favoring a wider availability of privilege as a defense to persons publishing material to the general public on matters of general public interest.267 In 1948 the court held, in Braddock v. Bevins,268 that the welfare of society required the frank exchange of information and opinions on matters relating to the elections and the electorate. However, since 1948, “the width of and subject matter of the exchange had been enlarged by a greater concentration on parties rather than individuals in the political race.”269 Case law that confined privilege to comment on individual candidates during the electoral process, and within their own constituency, was outdated. Hope argued that this supported the argument for the wider availability of the defense of qualified privilege.270

266 Id.

267 Id. This was so although, Lord Hope said, “there was strong dicta to the effect that there was not an inconsistency between article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the English common law on freedom of speech.” Id at 653–654. See AG v. Guardian Newspapers Ltd. (No. 2), [1988] 3 All E.R. 545 at 660, citing dicta of Lord Goff of Chieveley.

268 [1948] 1 All E.R. 450.

269 Reynolds, supra at 654. Hope also noted that the rise of public opinion polls before and after elections shifted attention toward the performance of the parties throughout the year. Today, he said, the public conduct of leading politicians determined the political party’s performance and credibility.

270 Id. He also noted that developments in electing candidates through party lists in the Welsh Assembly and Scottish and European parliaments had also added to the developments. Case law that confined privilege to comment on individual candidates during the electoral process and within their own constituency was outdated. This supported the argument for the wider availability of the defense of qualified privilege.

262

Nonetheless, Hope did not believe that a common law generic qualified privilege should be recognized for political discussion. One reason for Hope’s rejection of the generic privilege was because of the difficulty of achieving a satisfactory definition of the category of speech covered by such a generic privilege to eliminate the risk of it being applied to discussion about people in public life generally.

However, in rejecting the generic privilege, Hope was more concerned that, under the generic privilege, defamatory statements based on information from anonymous sources would be communicated through the newspaper to a wide audience, depriving plaintiffs of the ability to know their accusers. Under the defense of qualified privilege, although journalists had the right to protect their sources, the reporter’s conduct in not revealing a source would be taken into account in determining whether a defendant could rely on privilege. However, under the generic privilege there was no such protection for plaintiffs.271 The plaintiff’s burden of proving malice would be impossible where the sources could not be identified, the judge said. Finally, the judge said, when the issue of whether privilege applied was determined on a case by case basis, as the law of qualified privilege provided for, the risk could be accepted and justified in the public interest, but the judge said he would be unwilling to extend the risk to political comment generally as the generic privilege did. Thus, Hope agreed with Lord Nicholls and the other law lords and declined to find a generic qualified privilege.272

The second issue discussed by Lord Hope was whether the Court of Appeal’s circumstantial test should be adopted as the relevant test in determining whether a

271 Id.

272 Id.

263 statement was protected by privilege. Lord Hope disagreed with the Court of Appeal’s circumstantial test because the category of circumstances identified by the Court of

Appeal included matters related to malice rather than the issue of whether privilege applied. While noting that in principle there was nothing wrong with the circumstantial test, he said the detail comprising the test raised an issue about the structure of the common law relating to qualified privilege.273 The judge said that the circumstantial test obscured the separation of functions and the difference between the questions giving rise to the defense of privilege and those giving rise to the issue of malice.274 He noted that there had always been a need to examine the circumstances of a case to determine whether, as a matter of law, the interest and duty test was satisfied. The occasion had to be identified because this was the basis of privilege. The process of identifying the occasion included an examination of:

• the nature of the material published, • the persons by whom and to whom it was published, and • the circumstances in which it was published.

The question of whether the occasion was privileged was a question of law for the judge, while the issue of whether the privilege had been abused was a question of fact for

273 Id.

274 Id. at 656. Hope said the Court of Appeal’s decision in the Reynolds case had effected in the introduction, at the stage of determining whether the occasion was privileged issues relevant to the question of the fact about the motive of the publisher. The Court of Appeal had distinguished between a statement “taken from a government press release, the report of a public company chairman or speech of a university vice chancellor” and “the publication of a political opponent or business competitor or a disgruntled ex-employee.” Id. The Court of Appeal had also introduced questions about the use of sources, the failure to publish Reynolds’ account of his conduct and failure to alert Reynolds prior to publication to hear his side of the story. These issues, Hope said, went to the question of whether the privileged occasion had been abused rather than whether the privilege existed. Id.

264 the jury in a trial by jury, Hope said.275 After the facts were determined, the judge could resolve the legal question of whether the occasion was privileged. However, the judge said, once the legal question was resolved and the jury decided that the privilege was lost because the publisher misused the occasion or used it for a reason other than it was intended, new questions of fact would be raised involving a consideration of the circumstances. The circumstances relevant at this stage were likely to be different from those relevant to the question of whether the occasion was privileged since the question to be answered at this stage was a different one.276

Thus, in the House of Lords decision Horrocks v. Lowe,277 Lord Kenneth Diplock explained:

With some exceptions which are irrelevant to the instant appeal, the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit—the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.278

Lord Diplock had reviewed the situations that might indicate that the publisher had some other dominant or improper motive than that for which the occasion was privileged.

The commonest of the cases where improper motive arose, identified by Diplock, were where the publisher’s dominant motive was “to give vent to a personal spite or ill-will

275 Id. Hope noted that in the line of Scottish cases that he had noted earlier, once the privilege was determined, if the prosecutor was unwilling or unable to raise malice, there would be no issue for the jury. See also U.S. position note ,supra 231, Lord Steyn’s opinion.

276 Id. at 655.

277 [1974] 1 All E.R. 662 at 669.

278 Id.

265 toward the person defamed,” Lord Hope noted in the Reynolds case.279 Hope said that this improper motive could be proved by direct evidence or by “inference from the circumstances.”280

Hope said, express malice would arise where the defendant did not have an honest belief that the statement was true. If he was either “aware that the statement was not true or indifferent to its truth or falsity” this would be evidence that he acted with malice.281

In Horrocks, Diplock had held that malice should be inferred from “the contents of the speech, the circumstances in which it was made, the defendant’s failure two days later to apologize and the evidence which he gave in the witness box.”282

Hope said the House of Lords decision in Horrocks demonstrated that proof of malice required an examination of the circumstances of the case. Lord Hope said that the circumstantial test did not distinguish between the circumstances in which the defense of privilege arose and the circumstances that would support a finding of express malice.

This was important since the first issue was for the judge and the second for the jury.283

Thus, he concluded, the circumstantial test was confusing and should not be adopted.284

Thus, Hope held that the appeal should be allowed.

279 Reynolds, [1999] 4 All E.R. at 655.

280 Id.

281 Id. at 656, paraphrasing Clarke v.Molyneaux (1877) 3 Q.B.D. 237, 247.

282 Id. at 656. Nonetheless, in the end the judge who sat without a jury declined to infer that the defendant was indifferent to the truth or falsity of what he said.

283 Id.

284 Id.

266

3.7 Conclusion

In Reynolds, Lord Nicholls of Birkenhead reasserted the position that a substantially true statement was a full defense.285 He also affirmed the position that an honestly-held opinion based on relevant facts was protected regardless of who the maker was.286

Additionally, Nicholls said privilege arose in a situation where frank, honest discussion was required in the public interest, but would be defeated if motivated by malice287 or on a finding that the dominant purpose of the author of the statement was to cause injury or that the author of the statement did not believe that the statement was true or had been reckless as to whether or not it was true.288

However, the Reynolds decision is a milestone, not because it reiterated the principles of certain defenses available to public figures in a libel action, but because of its unanimous rejection of a generic privilege by all of the law lords. Lord Nicholls cited

British legislators who had deliberately rejected proposals for the kind of constitutional privilege created in the United States by the Supreme Court decision in New York Times v. Sullivan. Lord Steyn, in his dissenting opinion, expressed the reasons most succinctly noting that, unlike in the United States, the English press had the right to keep its sources confidential, which made it possible for the press to handicap a plaintiff in the discovery process and prevent it from proving malice.289 Such a privilege would also fly in the face

285 Id. at 614.

286 Id. at 615.

287 Id.

288 Id. at 615–616.

289 Id. at 631.

267 of the European Court of Human Rights’ decision that the competing interests should be balanced in each case by weighing each of the interests. If the House of Lords introduced a generic privilege one of the interests would be unnaturally weighted, leading to an imbalance in the balancing process.290

The Lords had greater difficulty with a controversial new circumstantial test proposed by the Court of Appeal. Ultimately, however, the majority rejected the circumstantial test that would allow all the circumstances to be taken into account in determining whether an occasion was privileged. The test had proposed that, in determining whether an occasion was privileged the court should look at the nature and seriousness of the allegation, the extent to which it should be of public concern, its source, steps taken to verify the information, the status of the information, the urgency with which it needed to be published, the issue of whether the defendant had sought and included comments from the plaintiff, the tone of the article and circumstances of publication.291

Lord Hobhouse in his concurrence,292 and lords Hope of Craighead293 and Steyn had all rejected the test. Lords Hobhouse and Hope said the test introduced elements such as “failure to include the plaintiff’s account.” These issues, the law lords said, were relevant only to the issue of malice or abuse of privilege into the question of whether privilege existed. Lord Steyn also found there was no authority for this approach in the law since it allowed the court to find that, despite the existence of a duty and interest,

290 Id.

291 Id. at 626.

292 Id. at 655.

293 Id. at 656.

268 there was no privilege. Only two justices, Lord Nicholls in his majority opinion294 and

Lord Cooke295 in his concurrence accepted the test.

Thus, the test to be applied in determining whether an occasion is privileged in

England continues to be the duty and interest test which requires a finding that the defendant had a duty in making the statement and the listener, an interest in hearing it.

Ultimately, however, the Reynolds decision is a complicated one with all five law lords issuing opinions. Although the decision was made by a slender 3-2 majority, all the lords agreed that the generic privilege suggested by the newspaper should be rejected.

Thus, today in English law there is no generic privilege protecting political speech and no constitutional privilege such as exists in the United States. Privilege continues to fall within the categories of qualified and absolute privilege laid down by statute and the

English common law.

294 Id. at 623.

295 Id. at 644.

CHAPTER 4 NEW YORK TIMES V. SULLIVAN AND ITS PROGENY

4.1 Introduction

This chapter focuses on the protection in the United States given persons or organizations who defame public persons.1 Before 1964, as is currently the case in the

English and Caribbean law of libel, no distinction was made between the burden of proof needed by public and private persons to win libel suits. However, since the 1964 Supreme

Court decision in New York Times v. Sullivan,2 before recovering damages, public officials—later public figures3—have been required to prove in order to win damages that a libelous statement was made with either knowledge of its falsity or without regard to whether it was true or not.

As we have seen in chapters 2 and 3, under the law in England in the case of statements that are deemed privileged, “express malice”—knowledge of falsity or carelessness about whether the statement is true or not—negates the defense of privilege.

However, express malice, or the lack of “an honest belief” in the truth of a statement only becomes an issue in the case of a statement that is privileged, meaning a speaker or writer has a duty to publish and a receiver an interest in receiving a statement. The defense of privilege in the U.K. is, thus, different from that in the United States and while, in some

1 See Chapter 1, 1.2 for discussion on public persons.

2 376 U.S. 254 (1964).

3 See Chapter 1, 1.3 for discussion on public persons.

269 270 circumstances, it protects libels against public persons, it also can protect libels against private persons where the duty-interest test is shown to apply.

The case that altered the status of the public person in libel actions in the United

States had its genesis in the early 1960s. In New York Times v. Sullivan, the Alabama

Supreme Court awarded the Commissioner of Police, L.B. Sullivan, $500,000 for an advertisement published in the New York Times that contained inaccuracies and attacked his reputation.4 Ultimately the decision of the Alabama Supreme Court would be overturned by the United States Supreme Court. However, the decisions of the lower courts are themselves instructive in demonstrating the tenor of the judicial position on libel law before 1964.

Before 1964 the legal burden of proof for litigants in libel actions by public officials varied from state to state. Wat Hopkins also chronicles that many jurisdictions in the United States applied strict liability in libel cases wherein, once a publication was false, “a publisher could be held accountable for material published, regardless of motivation” and be required to pay damages.5 Thus, the issue of malice—spite or ill will—did not arise as malice was presumed.6

The Supreme Court in New York Times v. Sullivan constitutionalized, and therefore federalized, the burden of proof that a public person would have to shoulder in order to win a libel case.

4 New York Times v. Sullivan, 273 Ala. 656 (1962).

5 WAT HOPKINS, ACTUAL MALICE: TWENTY-FIVE YEARS AFTER TIMES V. SULLIVAN 49 (1989).

6 Id.

271

The libel action in New York Times v. Sullivan was brought in the context of outrage by southern segregationists who were waging war against what they believed was propaganda in the northern media. The New York Times, with its dedicated southern reporters such as Claude Sitton, carried daily news on events in Montgomery and

Birmingham and other Dixie cities that refused to let go of Jim Crow laws and favored segregation. The all-white jury decision in the trial court in Alabama is not surprising in this context.

The changes that were taking place nationally as the north became sensitized to the racism in the south, no doubt, ultimately facilitated the final decision of the Supreme

Court in the New York Times case. Today, in public official libel actions United States plaintiffs must prove actual malice—knowledge that a defamatory statement was untrue or reckless disregard of whether the statement was true or not. This chapter traces the

New York Times case as it moved through the court system in order to place the decision within its context. The chapter also highlights subsequent cases that defined the extent of the actual malice doctrine.

Section 4.2 traces the political history of the United States. Section 4.3 outlines the structure of the court system in the United States. Section 4.4 examines provisions for freedom of speech in the United States. Section 4.5 looks at some theoretical discussions on the right to freedom of speech in the United States. Section 4.6 examines the structure of the media and extent of freedom of speech in the United States. Section 4.7 is a brief synopsis of the facts and history of the New York Times case in the lower court. Section

4.8 explores the U.S. Supreme Court’s New York Times decision. In section 4.9 there is a discussion on the cases in the aftermath of the groundbreaking decision. Section 4.10

272 discusses the cases that lay down the principles to be used in determining damages in cases involving public officials, and eventually, public figures. The chapter concludes with section 4.11.

4.2 Political History and Political Culture in the United States

To facilitate a legal comparison of libel laws in the United States and the Caribbean it is appropriate to look at the political history of the United States.

History professor Bernard Bailyn wrote that by the time American colonists were shaping their governments, Parliament in England had already been transformed and the system of government in England was centralized around a sovereign Parliament.7

However, the American colonies and the colonists resisted this centralized system of government as the English government was too remote to meet their personal localized interests.8 One important cause of the American Declaration of Independence and the revolution that followed it, historians Christopher and James Lincoln Collier wrote, was the refusal of the British government to allow the colonists freedom to establish independent trade relations.9 Thus, Britain attempted to force the colonists to trade trough

British vessels so that English middlemen could get the profits in the form of taxes.10 The

American colonies had grown to resent British control of their profits and the British navigation acts that secured this domination were, similarly, resented by the colonists.11

7 Bernard Bailyn, Defining Principles of a New, Federal Government, THE CREATION OF THE U.S. CONSTITUTION 56, 57 (2003).

8 Id. at 57.

9 Christopher Collier and James Lincoln Collier, Protecting Commercial Interest and Sealing the Fate of Slaves, THE CREATION OF THE U.S. CONSTITUTION 109 (2003).

10 Id. at 10.

11 Id.

273

Thus, when, through the Stamp Act of 1765, the English government sought to extract taxes from the colonists for the purposes of the management of internal affairs, the colonists resisted.12 The colonists had no personal relationship with the British government and, although Parliament created the laws, law and order was maintained on a daily basis by local administrators. The colonists resented having to pay taxes for a distant government.13

As Benjamin Franklin said, the colonists did not deny Parliament the right to impose taxes to regulate commerce and for the external government of the colonies, but they objected to the imposition of internal taxes, because he said, this right “was never supposed to be in Parliament as we are not represented there.”14 John Dickinson, in his

Farmers’ Letters between 1767 and 1768, went one step further to state that any taxation in the American colonies was outside Parliament’s authority.15 However, he did not take the next bold step to assert that Parliament had no regulatory right over the colonies.16 By

1775, when the Declaration of Independence was made, Dickinson’s argument, radical in the 1760s, had come to be the conservative position.17 By 1778, Bailyn writes, independence in the United States had “invoked the ultimate sovereignty of the people,” which opposed the sovereignty of parliament or government.18

12 Bailyn, supra at 66.

13 Id. at 63.

14 Id. at 67.

15 Id.

16 Id. at 68.

17 Id.

18 Id. at 69.

274

Even before 1787, when the United States Constitution was ratified, many of the political leaders in the colonies adhered to John Locke’s view of government. Locke believed that government needed the direct consent of people to be governed.19 The concept of a constitution was radical in the late eighteenth century.20 The states, however, agreed with the fundamental principle that the government had to be representative of the people.21 Thus, the role of the constitution as seen by the colonists was to “mark out boundaries of government power.”22 In England where there was no one written constitution, the government had unlimited powers, Bailyn wrote. Thus, to restrict the powers of government, the constitution in the United States had to be grounded in a fundamental source of authority that transcended “temporary laws.”23 The writers of the

U.S. Constitution decided that the people would be the governors.24

Bailyn writes, the rights in the U.S. Constitution are “guaranteed” instead of

“granted.”25 This reflected the views of the authors of the Constitution that the rights of

19 Id.

20 Id. at 59–60.

21 Id. at 59.

22 Id. at 60.

23 Id.

24 Id. See U.S. CONST. PREAMBLE states:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. Id.

25 Id.

275 the people were “indefeasible,” and inherent in all persons by virtue of humanity.26

Alexander Hamilton wrote

the sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of divinity itself, and can never be erased or obscured by mortal power.27

Thus, the bicameral congress was to prevent against unconstitutional legislation. If passed into law the President had executive veto over statutes and, similarly, statutes could be nullified by the judiciary.28

In England the position had always been that sovereignty must rest in one final authority—first it was the monarchy and, then it was Parliament.29 By 1783, when the

U.S. was forming its government, the leading thought in government was Montesquieu’s theory on the separation of powers of judiciary, legislature and executive, George W.

Carey wrote.30

Carey said that, at independence, the drafters of the Constitution had to grapple with three issues,

• “federalism” or state participation in the constitutional order, • “republicanism” or popular participation and control over the government and • the separation of powers or the division of functions between the independent branches of government.31

26 Id. at 61.

27 Id.

28 Id. Bailyn notes that in 1787 the judiciary’s power to review legislation could only be inferred. Id .But see Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), where Chief Justice John Marshall, speaking for the Supreme Court, held that the Supreme Court had the authority to void any statute that was inconsistent with the U.S. Constitution.

29 Id. at 62.

30 George W. Carey, Ensuring the Independence of the Three Branches of Government, THE CREATION OF THE U.S. CONSTITUTION 78 (2003).

31 Id. at 81.

276

The 1787 Constitution was both a constitution of a consolidation of states and a confederation of sovereign states, Don E. Fehrenbacher wrote.32 The framers had to draw a line between state and federal authority.33 The framers depended primarily on internal checks and balances to prevent the misuse of the federal government’s powers.34

Thus, the United States Constitution provides for three arms of government: the executive,35 the legislature,36 and the judiciary.37 The executive power is vested in the

President, who, along with the Vice President, expressly holds office for four years.38

Under the Constitution the President and Vice President are popularly elected.39 The

President is both commander in chief of the armed forces and has authority to grant reprieves and pardons.40 However, like the Vice President and other civil officers, he is subject to impeachment by the Senate if convicted of “treason, bribery, or other high crimes and misdemeanors.”41

32 DON E. FEHRENBACHER, CONSTITUTIONS AND CONSTITUTIONALISM IN THE SLAVEHOLDING SOUTH 33 (1989).

33 Id. at 34.

34 Id. at 35.

35 U.S. CONST. art. II.

36 U.S. CONST. art. I.

37 U.S. CONST. art. III.

38 U.S. CONST. art. II, § 1.

39 Id.

40 U.S. CONST. art. II, § 2.

41 U.S. CONST. art. II, § 4. See Carey, supra at 87. Carey suggests that, since the executive was given a large amount of independence the drafters used the tool of impeachment as the means to prevent the executive from infringing on the power of the other organs of the state.

277

Legislative power vests in Congress, consisting of a House of Senate and House of

Representatives.42 Both the members of the Senate43 and the House of Representatives44 are popularly elected within the states they represent. Members of Senate are elected every six years45 and members of the House of Representatives are re-elected every two years.46 The Senate has the sole authority to try all impeachments.47 Senators and

Representatives are prohibited from being appointed to any civil office within the executive.48 Ultimately, all legislation has to pass through both houses of Congress before being enacted.49

The third arm of government is the judiciary and the next section of this chapter outlines the organization of the judiciary in the United States.

4.3 Federal Court System in the United States

Under the United States Constitution judicial power is vested in the Supreme

Court.50 The Constitution, however, authorizes Congress to establish other inferior courts.51

42 U.S. CONST. art. I, § 1. See Carey, supra at 85. Fear of the legislature and its power caused the drafters to divide it into two bodies, Carey suggests.

43 U.S. CONST. art. I, § 3.

44 U.S. CONST. art. I, § 2.

45 U.S. CONST. art. I, § 3

46 U.S. CONST. art. I, § 2.

47 U.S. CONST. art. I, § 3.

48 U.S. CONST. art. I, § 6. See Carey, supra at 84. In addition to ensuring separation of powers, this protects the integrity of Congress from being abused by the executive holding out lucrative opportunities in return for favors.

49 U.S. CONST. art. I, § 7.

50 U.S. CONST. art. III, § 1.

278

The United States court system actually consists of 52 separate court systems that run parallel to each other: the federal court system and the 50 state court systems. The subject of this discussion is the federal court system which, in addition to enforcing federal laws, rules and regulations, applies and interprets the Constitution.52 The federal court system in the United States is comprised of the U.S. Supreme Court, the U.S. courts of appeals and the U.S. district courts (see chapter 1, figure 1-3).53 Under the federal

Constitution the federal court system has jurisdiction in cases interpreting United States laws and treaties with other nations. The federal courts also have jurisdiction in admiralty as well as in maritime cases; controversies in which the U.S. is a party; controversies between two or more states; between a state and citizens of another state; between citizens of different states; citizens of the same state claiming land grants in a different state; between a state and foreign states or citizens; or between citizens of a state and foreign states or citizens.54

The U.S. district courts are the courts with original jurisdiction or the jurisdiction to hear evidence and issue judgments in cases before it.55 There are 94 district courts in different districts across the United States.56 Decisions of the district court can be appealed to the intermediary U.S. court having jurisdiction (see chapter 1, figure 1-3).57

51 Id.

52 FEDERAL COURT SYSTEM: UNITED STATES OF AMERICA, http://www.thegreenpapers.com/Hx/FederalCourtSystem.phtml (last visited June 6, 2006).

53 Id.

54 U.S. CONST. art. III, § 2.

55 Id.

56 Id.

57 Id.

279

There are 11 U.S. courts of appeal, strategically placed across the United States.58

These courts are referred to as circuit courts and typically have jurisdiction over at least three states of the United States.59 The Court of Appeal has no authority to hear evidence or original jurisdiction, but is an appeal court with the power to review decisions of the district courts.60 Decisions of any U.S. Court of Appeal can be appealed to the Supreme

Court (see figure 1-3).61

The Supreme Court is the only judicial body specifically created by the

Constitution.62 In addition to its authority to hear appeals from the U.S. Court of Appeal, the Supreme Court has original jurisdiction in actions affecting ambassadors, public ministers and consuls.63

4.4 Provisions for Freedom of Speech in the United States

In 1791 the First Amendment to the United States Constitution was ratified providing for freedom of speech. The First Amendment provided:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.64

James Madison the “father of the Bill of Rights,” said during the debates that “the right of freedom of speech is secured; the liberty of the press is expressly declared to be

58 Id.

59 Id.

60 Id.

61 Id.

62 U.S. CONST. art. III.

63 U.S. CONST. art. III § 2.

64 U.S. CONST. amend. I.

280 beyond the reach of this Government. . . .”65 This was the only reference made to the scope of the provision. The historian Leonard Levy suggests the specific use of the word

“Congress” indicates a greater commitment to preventing the federal government from interfering in the utterances of locals, but allowing this power for the states.66

In fact it was not until after the Civil War and the abolition of slavery that

Amendment XIV was passed protecting the rights of all citizens to due process in cases touching on their life, liberty and property and equality and extending the protection to state actions.67 In the twentieth century, the Supreme Court has struggled with the issue of whether speech critical of government and government war efforts can be proscribed when the nation is at war. In several cases during the World War I era the Supreme Court upheld statutes that sought to use criminal laws to restrict speech.68

In the United States, seditious69 and criminal70 libel laws have both been held to be unconstitutional. However, civil libel remedies are still available to persons whose reputations have been defamed.71 In the United States at common law the defenses of truth or substantial truth,72 fair comment or opinion,73 and a qualified privilege to report on public matters74 are available for newspaper defendants in libel actions.

65 LEONARD LEVY, EMERGENCE OF A FREE PRESS 267 (1985).

66 Id. at 268.

67 U.S. CONST. amend. XIV.

68 See for e.g. Abrams v. United States, 250 U.S. 616 (1919).

69 New York Times v. Sullivan, 376 U.S. 254, 276 (1964).

70 Ashton v. Kentucky, 384 U.S. 195 (1966).

71 Rosenblatt v. Baer, 383 U.S. 75, 92 (1966).

72 See Memphis Publishing Co. v. Nichols, 569 S.W. 2d 412 (Tenn. 1978), holding that, although the statement that Mrs. Newton shot Ruth Nichols when she found her at home with her husband was true, by

281

The fair comment defense relies on the statement being stated as an opinion rather than in factual terms.75 However, the statement should be based on fact.76 In determining

whether a statement is one of opinion or fact the courts will variously look at issues

including the words used, whether the statement is verifiable and the social context in

which the words are used.77

The qualified privilege protects reports on official government activities and proceedings in all branches of government – the legislature,78 executive79 and judiciary.80

There is also privilege in the case of unofficial proceedings.81 In relying on the defense of privilege, reporters must show that their report was accurate82 and fair.83 In order to

omitting the fact that other persons were in the house with them the paper gave the false impression that Nichols was having an affair with Mr. Newton.

73 See Mashburn v. Collin, 355 So 2d 879 (La. 1977), holding that a newspaper reviewer’s opinion that the food in a restaurant was bad was a statement of opinion so not subject to a libel action.

74 See Shafer v. Lamar Publishing Co., 621 S.W.2d 709 (Mo. Ct. App. 1981), Swede v. Passaic Daily News, 153 A.2d 36 (N.J. 1959).

75 Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (holding that a statement in a newspaper that a coach had lied in a hearing in an Ohio State court was “sufficiently factual to be susceptible to being proved true or false.”)

76 Phantom Touring Inc. v. Affiliated Publications, 953 F.2d 724 (1992) (holding two columns in the Boston Globe were protected as opinion because the writer had first indicated the facts on which he based his opinion).

77 See National Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 268 (1974) (holding the words “traitor” used in relation to a person who crossed the picket line during a strike was exaggerated hyperbole which was protected as opinion).

78 Shafer v. Lamar Publishing Co., 621 S.W.2d 709 (Mo. Ct. App. 1981).

79 Freeze Right Refrigeration & Air Conditioning Servs., Inc. v. City of New York, 475 N.Y.S.2d 383 (N.Y. App. Div. 1984).

80 Cox v. Los Angeles Herald-Examiner, 286 Cal. Rptr. 419 (Cal. Ct. App. 1991).

81 Borg v. Boas, 231 F.2d 781 (1956).

82 Time Inc. v. Firestone, 424 U.S. 448 (1976) (holding that an article that erroneously reported that Mary Firestone’s divorce was granted because of her adultery was not protected by privilege).

282 ensure protection in a libel suit it is important for newspapers also to have attributed information for which they claim privilege to the original source.84

In the 1964 Supreme Court decision New York Times v. Sullivan85a new defense dubbed constitutional privilege was introduced. The privilege required public official plaintiffs to prove that newspapers printed with actual malice—knowledge of falsity or reckless disregard for the truth—before they could be successful in a libel action. Over the years the actual malice rule has extended to include public figures.86

4.5 Freedom of Speech Theory in the United States

Several theories have emerged over the years to justify the importance of freedom of speech and the circumstances in which it can be limited. Among these, American scholars have discussed the safety valve theory which proposes the need for free expression as a catharsis of feelings. Proponents of the fourth estate, or the watchdog role theory of the press argue the need to protect freedom of the press as a means to allow journalists to play their role as watchdog of the government. Also, it has been proposed that freedom of speech should be protected in the interest of self government to allow citizens to be informed and enable them to make wise decisions in the democratic system.

83 Street v. NBC, 645 F.2d 1235 (1981) (holding that an NBC report that did not present two sides of the story of a trial for alleged rape was not protected by privilege).

84 Hughes v. Washington Daily News Co., 193 F.2d 922 (1952) (holding that a newspaper could not rely on privilege for an unattributed reference to charges made by the U.S. Secretary of the Treasury against a couple that they were manufacturing and using counterfeit money).

85 376 U.S. 254 (1964).

86 Gertz v. Robert Welch Inc., 418 U.S. 323 (1974).

283

Thomas Emerson and His Four Defenses for Freedom of Speech

In 1970 Thomas Emerson underlined the importance of freedom of speech.87

Emerson defined the right to free expression as including the right to hold and communicate beliefs, ideas and opinions through any medium. However, Emerson wrote in 1970 that this individual right to freedom of speech should be reconciled with the rights of other groups and organizations to these freedoms as well as the need to protect other social and individual rights.88 Although the government has a duty to protect individuals from private and non-government interference, the state’s power to abridge these rights should be limited, Emerson said.89

For Emerson, free speech was inalienable for four reasons. First, it was inalienable because of the pivotal role of freedom of speech in allowing people to realize self- fulfillment. Suppression of belief was, for Emerson, an affront to individual dignity and people, as citizens, had a right to contribute their ideas to society. Cutting off an individual’s free speech would inhibit this right.90 For him, limiting free speech was equivalent to suppressing beliefs.

Second, Emerson argued that free speech was inalienable because of its role in advancing knowledge and discovering truth by allowing individuals to hear all sides of an argument and to engage in open discussions with others.91 For Emerson, discussion should be free, no matter how unaccepted the opinion might be, in order to reveal

87 THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION (New York, Random House, 1970).

88 Id. at 3.

89 Id. at 4.

90 Id. at 6.

91 Id.

284 falsehoods.92 Emerson advocated this freedom of speech notwithstanding the fact that the comment or statement might appear “false or pernicious” since such speech, even if untrue, would “compel a rethinking and retesting of the accepted opinion.”93

Thirdly, Emerson believed free speech was essential to facilitate citizens in participating in decision-making in society.94 Under the Declaration of Independence in the United States, the government gained its authority from the people, Emerson noted. In order to facilitate consent by the people to government activities, the public needed to have full freedom of expression to make individual and common decisions that would determine the culture of the country.95

Fourthly, freedom of speech allowed the community to be adaptable and, thus, stable, Emerson said. He wrote that, while suppression of speech prevented societies from adjusting to changing circumstances, discussion promoted cohesion in society since people were more likely to accept adverse decisions when they played a part in the decision-making process.96 Thus, freedom of speech provided a context for the conflict necessary in society to take place without destroying the society.97

Emerson’s First Amendment theory can be condensed into seven major points:

92 Id. at 7.

93 Id.

94 Id.

95 Id.

96 Id. at 7.

97 Id.

285

• The First Amendment is aimed at providing for free expression which is necessary for a democratic society.98

• There is a distinction between “expression” and “action.” The first is free from restriction, the second must be controlled subject to other constitutional rights, but not by controlling expression.99

• Freedom of speech should be protected fully from governmental restriction, even where the speech conflicts with other protected social interests and the legal structure should promote rather than retard free speech.100

• In jurisprudence, instead of simply balancing speech against other constitutional rights, the judiciary should define key elements of the First Amendment such as “expression,” “abridge” and “law.”

• In distinguishing between what constitutes “action” and what constitutes “expression,” the court should look at whether “action” or “expression” constituted the majority of the conduct.101 The determination of whether speech had been abridged should turn on the “actual impact of the regulation on the system.”102

• Legal doctrines should be determined to regulate where and in what circumstances free speech could be practiced or needed to be abridged.103

• Cases involving military operations, commercial activities and activities of children need protection and are exceptions from the absolute right to freedom of speech.104

Emerson argued that there were several dangers inherent in efforts to restrain free speech. First, people usually try to suppress speech that they disagreed with, thus creating a hierarchy of acceptable and unacceptable speech based on the views of a majority group. Second, where laws are aimed at restraining speech to prevent an illegal

98 Id. at 17.

99 Id.

100 Id.

101 Id. at 18.

102 Id.

103 Id. at 18–19.

104 Id. At 20.

286 consequence, often the vagueness of the laws leave wide discretionary powers to officials to limit speech rather than the consequence of speech. This leads to a larger restriction on speech than necessary to deal with the feared consequence.105 Third, limitations were often imposed in an atmosphere of “public fear and hysteria” leading to unreasonable incursions into the freedom.106

Emerson said in 1970 that the right to freedom of speech trumps “other protected social interests.” Thus, Emerson suggested that freedom of speech should not be infringed even in the interest of protecting reputation in libel actions. He wrote that over the years the effectiveness of libel law actions had been whittled down by the courts in the New York Times decision and its progeny. In the New York Times case the Supreme

Court disallowed an award of damages in public official libel suits without a showing of actual malice, knowledge of falsity or reckless disregard for the truth.107 He also noted that libel laws were ineffective because of the certainty of delay and uncertainty of the decision and the speculative nature of the damage awards made.108

In reviewing the decisions in New York Times v. Sullivan and its progeny, Emerson noted that in the cases the Supreme Court had not adhered to any of the previous tests such as “clear and present danger” or ad hoc balancing. Instead the Court had focused on the object of ascertaining “what is necessary or appropriate for maintaining in operation an effective system of freedom of expression.”109 Emerson said building a system of

105 Id. at 10.

106 Id. at 11.

107 Id. at 518–519.

108 Id. at 519.

109 Id. at 529.

287 freedom of expression would advance “the treatment of First Amendment issues.”110

Nonetheless, Emerson argued that the Court had not gone far enough since there were three problems inherent in the doctrinal analysis in New York Times v. Sullivan.111

First, for Emerson, the Court had not accepted “the fundamental premise of the

First Amendment,” which was that the right to freedom of expression could not be abridged even to advance “other social interests.”112 Rather, the Court had tried to accommodate other social interests. Thus, Emerson chided the Supreme Court for not accepting that even the punishment of intentionally false statements by libel actions would interfere with the operation of an effective system of freedom of expression.113

Thus the Supreme Court had held there were instances where the interest of an effective system of free speech could be subjugated to “the government’s interest in not being subject to attack by the citizen-critic.”114

A second criticism made by Emerson of the Supreme Court decision in New York

Times v. Sullivan was that the majority of the Court reverted to “earlier modes of thought” as indicated by Justice Brennan’s position that “calculated falsehoods” were not entitled to First Amendment protection because they played “no essential part of any exposition of ideas.”115 He wrote that Brennan’s opinion disregarded the principle in First

110 Id.

111 Id.

112 Id.

113 Id.

114 Id. Only Justices Black and Douglas dissented to this position.

115 Id. at 530.

288

Amendment theory “that it is not a part of government’s business to decide for the citizen-critic what is of social value and what is not.”116

Third, Emerson criticized the majority position in New York Times v. Sullivan since it had only “half-heartedly” attempted to formulate rules that would allow effective administration.117

Additionally, Emerson chided the majority in the New York Times v. Sullivan Court for not recognizing that the concept of libel law was inconsistent with that underlying a system of freedom of expression.118 While recognizing that libel or seditious libel laws that were aimed at preventing government criticism or breach of the peace were unconstitutional, Emerson criticized the Court for not recognizing the danger of libel laws that protected individual interests in “economic ventures, standing in the community

[and] general good feelings.”119 This, for Emerson, was also incompatible with the approval given by Justice Brennan in his opinion in New York Times v. Sullivan to

“uninhibited, robust and wide open” expression and “vehement, caustic and sometimes unpleasantly sharp attacks.”120

While preferring the actual malice standard of fault imposed by the Supreme Court in New York Times v. Sullivan to a lesser standard of protection for newspapers in libel

116 Id.

117 Id. Thus, he wrote, only Justice Hugo Black had made an effort to make the rules laid down by the Court in Sullivan capable of “effective administration.” Id.

118 Id.

119 Id.

120 Id.

289 cases,121 Emerson argued for an unconditional privilege.122 For Emerson, the Court’s rationale for drawing the line at actual malice was “unconvincing.”123 Emerson argued that the New York Times v. Sullivan decision had focused on the importance of free speech in attaining the truth as decisive. For him, the refusal to give value to false speech was inconsistent with the First Amendment and the government, through the court, had no authority to decide whether or not speech had value.124 Emerson doubted whether a government agency was the best arbiter of the truth or falsity of statements of fact or opinion that centered on issues of public interest.125 He, thus, argued that libel suits were not the best remedy, but that such issues should be determined in the marketplace of ideas in an effective system of freedom of expression.126

Emerson wrote that really dangerous falsehoods were usually opinions rather than fact, were aimed at groups rather than individuals and emanated from the government which was immune from libel actions.127 Such statements could not be protected by libel actions. Further Emerson wrote “[t]he health and vitality of the system depends more upon untrammeled freedom of discussion, in which the citizens entered vigorously, than in judicial attempts to establish the motives of the participants.”128 In relation to the

121 Id. at 533.

122 Id. at 535.

123 Id. at 536.

124 Id.

125 Id. at 537.

126 Id.

127 Id. at 538.

128 Id.

290 vigorous discussion of public issues, Emerson wrote, “citizens have an obligation to enter the public arena.”129 However, concomitant with the obligation of citizens to enter the public arena was the obligation for them to understand that they could not be granted immunity from fair and unfair criticism.130

Emerson wrote that “traditions, attitudes and general rules of political conduct” were more important than libel suits in limiting the bounds of public controversy.131

Emerson suggested that there was no evidence that libel laws improved the level of public debate. Since libel actions were time consuming, expensive and the outcome of the action was uncertain, Emerson said they were an inefficient means for relief.132 For

Emerson other devices such as a right to reply were more consistent with an effective freedom of expression regime for protecting reputations.133 The use of the right to reply was appropriate, in Emerson’s opinion, since the injured party would have a forum to defend himself publicly and discussion would be kept in the marketplace.134

Thus, ultimately, Emerson rejected any attempt by the state to interfere with freedom of speech as inimical to the system of freedom of expression.135 He believed that

129 Id.

130 Id.

131 Id.

132 Id.

133 Id. at 539.

134 Id.

135 Id. at 543.

291 political discussion should be “fought out in the public forum” and not decided by government authorities.136

Meiklejohn and Self Government

One of the rationales proposed by Emerson for protecting freedom of speech was because the system of government in the United States was based on self governance. In his 1948 book, Free Speech and its Relation to Self Government, Alexander Meiklejohn argued that in the American system the people are governors and the government derives its power from the consent of the people.137 He proposed that self government is based on an agreement by all citizens to submit to governance, and persons who do not submit would be subjected to legal consequences.138 Thus, he wrote, self government did not mean freedom from control.139 Minority groups were not at will to disobey military control simply because they did not support the government in the general elections.

However, unlike in the case of slaves, citizens who freely contracted to submit to the state were involved in the process of making laws to which they were bound.140

Thus, the Declaration of Independence ends with the words, “we mutually pledge to each other our lives, our fortunes, and our sacred honor.” In effect, the contract was

136 Id. cf. He recognized the need, however, to protect people’s feelings in the private sphere. In this situation, “the government’s role was umpire” and it had no personal agenda. Thus, such an action did not affect freedom of speech. However, Emerson believed that recovery could be allowed in private libel actions without interfering with the “system of freedom of expression.” Emerson believed private cases of libel could be protected adequately in the sphere of privacy. Id.

137 ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF GOVERNMENT 3 (Kennikat Press, Port Washington, N.Y./London, 1948).

138 Id. at 9.

139 Id. at 9.

140 Id. at 10–11.

292 voluntary, Meiklejohn wrote.141 Because of this, citizens were required to obey the political institutions created.142 Meiklejohn suggested that, in the American system, government both controls and is controlled by its citizens.143 Thus, government agencies are subject to a system of checks and balances aimed at preventing the government from abusing its power.144

Meiklejohn wrote that where citizen governors were denied access to “information, or opinion or doubt or disbelief or criticism” relevant to an issue, the decision-making would be “ill-considered” and “ill-balanced” and not for the general good.145 Thus, the

First Amendment to the Constitution was directed at preventing “mutilation of the thinking process” and important to self-government.146 Thus, Meiklejohn dismissed people who tried to suppress “hostile criticism” and different viewpoints as being simple minded.147

Meiklejohn identified two types of freedoms protected in the United States

Constitution—those which are limited such as the right to property and those which are not limited such as freedom of religion and speech.148 Meiklejohn differentiated between the right to property and the right to freedom of speech. The first, being a qualified right,

141 Id. at 11.

142 Id.

143 Id. at 12–13.

144 Id.

145 Id. at 26.

146 Id.

147 Id. at 4.

148 Id. at 2.

293 could be subject to confiscation where it was legally provided for.149 However, for

Meiklejohn, citizens had a “right and duty” to disobey any law that limited their freedom of opinion.150

However, because Meiklejohn’s absolutist approach to freedom of speech derives from self government rather than “natural right,” the scope of the right is limited to speech relating to matters in the public interest.151 “Private speech, or private interest in speech,” Meiklejohn argued, had “no claim whatever to the protection of the First

Amendment.”152 Thus, the First Amendment had no claim to protect against infringements on “private privileges” and “private possessions.”153 He said that, under a democratic government while the people were the rulers, they submitted their private possessions and activities to regulation.154 He said that the subjection of private interests was necessary for the common good because of five interrelated factors.155

First, the “public interest,” Meiklejohn wrote, really consisted of a combination of separate individual purposes of the citizens in a democracy.156 The public interest did not, therefore, exist as a separate body from the common interest. Second, because human

149 Id. at 22.

150 Id. at 21–22.

151 Id. at 94.

152 Id.

153 Id.

154 Id. at 95.

155 Id. at 96.

156 Id.

294 interests conflicted with each other they could not all be achieved.157 Thus, there needed to be a balancing of the interests to select which would be protected “based upon judgment of relative values and mutual implications.”158 Third, Meiklejohn said the interests are judged based on general principles such as “unity, justice, tranquility, defense, welfare, equality, liberty.”159 To preserve these principles, the government has the authority, through due process to “make and enforce” decisions that certain citizens are required to lose their lives, liberty, property and happiness.160 Fourth, the government’s role in addition to protecting individuals and groups through laws and their enforcement, also supplies facilities including roads, postal services and pensions.161

Finally, he wrote that the American Constitution did not prescribe the type of government system to be used in the United States.162 Thus, the people were free to embrace the type of system they wanted.

Meiklejohn said there were exceptions to the right to freedom of speech under the

U.S. Constitution. Thus, Meiklejohn observed three things about the constitutional guarantee of freedom of speech in the United States.163 First, although Congress could not pass legislation that would restrict freedom of speech, laws could be passed that

157 Id.

158 Id. at 97.

159 Id.

160 Id.

161 Id.

162 Id. at 98.

163 Id. at 16.

295 would enhance the right.164 This was because the legislature was allowed to ensure freedom of speech because a democratic society depended on the dissemination of information.165

Second, the absolute statement in the First Amendment that “Congress shall make no laws . . .” prohibited the legislature from passing any laws limiting freedom of speech.

The absolute prohibition should apply both in war and peace-time, Meiklejohn wrote.166

Third, however, Meiklejohn wrote, in any “well-governed society” the government can regulate certain types of speech, including defamatory or seditious and treasonous statements and writings. These were repressed “for the sake of the general welfare.”167

Thus, the Constitution did not prevent the “abridgement of speech,” but rather, the

“abridgement of freedom of speech.”168 While underlining the absolute protection for speech, Meiklejohn allows for exceptions in the case of libelous statements.

Meiklejohn wrote that order was required in exercising the right to freedom of speech. Thus, he wrote, the right to freedom of speech by self-governing men did not mean that everybody had a right to speak at anytime they wanted.169 “The welfare of community requires that those who decide issues understand them,” he wrote. To allow citizens to be informed, all facts and interests that related to a particular problem should

164 Id.

165 Id. at 16–17.

166 Id. at 17. Meiklejohn wrote that the drafters of the First Amendment were aware of the necessities of war and the fact that its terror could lead to suppression of the right to free speech. Thus, the statute had been phrased in absolute terms to prevent this.

167 Id. at 18.

168 Id. at 19.

169 Id. at 24.

296 be presented to the public.170 This ensured that the self-governing community that determined issues through its votes could make wise decisions at the ballot.171 It was more important that everything worth saying should be said than that everyone should speak.172 In this context, for Meiklejohn, it was important that no idea be denied voice because the majority disagreed with it.173

Vincent Blasi and the Emergence of the Fourth Estate in the 1960s and 1970s

Vincent Blasi’s freedom of speech theory embraces freedom of the press in order to protect the press’ role as a watchdog for the public of what government does. However, while advocating protection for the press’ role in unearthing scandals about government, he did not believe the same protection should be given speech that focuses on private enterprise.

Vincent Blasi174 wrote that one of the press’ roles is to check against government officials’ tendency to abuse their power.175 Abuse of power by government officials, said

Blasi, is particularly dangerous because of the government’s ability to affect the rights of individuals through the use of violence and police force.176 Blasi believed that by

170 Id. at 25.

171 Id.

172 Id.

173 Id. at 26.

174 Vincent Blasi, The Checking Value in First Amendment Theory, AMERICAN BAR FOUNDATION RESEARCH JOURNAL 521 (1977).

175 Id. at 538.

176 Id. Blasi cites as an example the effects of U.S. invasion on the Vietnamese people and the annihilation of several people by the Nazi and Soviet governments in the 1930s. Id.

297 preventing speech, the government could become totalitarian, and the press was the best means of protecting against this.177

For Blasi this checking value by the press of government excesses derived from the democratic principles that the public is final judge of whether public officials behave appropriately.178 He noted the dissenting opinion of Justice Hugo Black in New York

Times v. United States:179

The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of the government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.

Blasi suggested that in the early part of the twentieth century three main First

Amendment theories emerged as the Supreme Court tried to protect the speech of various dissident groups.180 The first was the individual autonomy in dealing with personal beliefs discussed by Emerson. Second, the marketplace of ideas theory under which a diversity of ideas should be aired with the aim of arriving at the truth. The third First

Amendment theory emerging from Supreme Court opinions, said Blasi, advocated free speech to facilitate the principle of self government in the United States. Thus, all persons

177 Id.

178 Id. at 541. He notes the democratic theory that he refers to is not the one proposed by Meiklejohn where the citizen contributes on a continuing basis to the development of public policy. Instead he advocates the democratic theory proposed by John Locke and Joseph Schumpeter, who said citizens’ democracy would have to exert a veto power over public policy at intervals. Id. at 542.

179 403 U.S. 713, 717 (1971).

180 Id. at 524.

298 should have the right to be heard and to hear information necessary to government.181

Blasi said the cases that formed the base of these theories mostly concerned private litigants and the judgments were aimed at checking government attempts at silencing unpopular speech made by individuals.182

However, in the 1960s and 1970s the civil rights movement and the widespread

protest against the Vietnam War led to mass demonstrations, sit-ins and burnings.183

Blasi suggested that during this time period the mass media began to play an active role in these struggles, getting involved in challenging the status quo and increasingly becoming litigants in First Amendment cases.184

Blasi suggested that the First Amendment values that emerged in these cases,

instead of embracing the protection of the minority voice, focused on the role of a media

in monitoring the legislature, executive and judiciary.185 In carrying out its role, Blasi

suggested, the media had to be armed with greater First Amendment protection than

181 Id.

182 Id. See for e.g. Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17 (1919) (holding that publishing and distributing pamphlets critical of the war was not protected speech). See also Schenck v. United States, 289 U.S. 47 (1919), in convicting Schenck for distributing leaflets critical of the war, the Court noted that, although in ordinary times the distribution of leaflets would be protected by the first amendment, in times of war “many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” Id. But in Brandenburg v. Ohio. 395 U.S. 444 (1969), the Court overturned a conviction under a statute prohibiting the advocacy of “crime, sabotage violence or unlawful methods of terrorism,” finding the statute unconstitutional.

183 Blasi, supra . at 525..

184 During this period there was an emergence of cases such as New York Times v. United States, 403 U.S. 713 (1971) (holding that the government’s imposition of an injunction on the New York Times and Washington Post against the publication of information on the actions of government was unconstitutional prior restraint). See also Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) (holding that a Georgia University football coach was a public figure to whom the public person standard of actual malice would apply).

185 Blasi, supra. at 525.

299 existed in the 1970s. In this process, freedom of the press had to trump traditional social and individual values including “individual reputation, fairness, efficient public administration and peace and quiet” to allow the press freedom to perform its watch dog role, Blasi wrote.186

The system of checks and balances in the United States wherein each branch of government checked the power of the others, Blasi wrote, only became effective when there was an outcry from the citizens to perform a checking function—often the media played a role in facilitating the outcry.187 Since government misconduct, when unchecked, could lead to serious consequences, Blasi argued that the role of the press in exposing government actions is important.188

Blasi based his argument on the role of the public official. He wrote that, along with the high honor of public office, there was a concomitant responsibility for public officials to abide by higher moral standards.189 He noted that this standard is not the same for private enterprise since Watergate damaged American society more than the discovery that General Electric and Westinghouse were involved in price fixing.190 This is why it was more important that abuse of power by public officials be revealed to the public than the activities of private enterprise tycoons.191

186 Id.

187 Id.

188 Id.

189 Id. at 540.

190 Id.

191 Id. at 541.

300

Blasi argued that the checking system is more important today than in the eighteenth century because of the more complicated structure and larger size of modern-day government.192 The size and complicated nature of the government also necessitated “well-organized, well-financed, professional critics,” such as the press, with the facility to access information, analyze and judge government actions and distribute its information and judgments to the public.193 Thus, professional critics are a necessary check on government excess.194

Blasi said that in 1964 when the U.S. Supreme Court held in the libel decision, New

York Times v. Sullivan, that special protection should be given to the speech of public persons, the checking value system had not been formulated.195 Nonetheless Blasi found several aspects of the New York Times v. Sullivan decision and its progeny that could be rationalized and benefit from the checking value system. He outlined the principles that should guide judges in developing standards for determining the status of public and private persons in libel actions.196

The first principle is that under the checking value, speech about the official actions of public officials was more important than any other form of communication. This accorded, for Blasi, with the decision by the U.S. Supreme Court in New York Times v.

192 Id. Thus, although in the eighteenth century the public could be mobilized against a particular policy by makeshift propaganda methods, in the twentieth century such agitation would be insufficient beyond local levels. Id. He cites the fact that protests against Vietnam did not pick up wide support until academics, journalists and, eventually politicians took up the cause. Id. at 542.

193 Id. at 541.

194 Id. at 542.

195 Id. at 581.

196 Id.

301

Sullivan that the actual malice standard—knowledge of falsity or reckless disregard for the truth—should apply only in the case of public officials.197 However, he wrote, the subsequent extension of the constitutional privilege to public-figure defamation cases was inconsistent with the checking value theory.198 Although not opposing a higher standard for public figures than the negligence standard that private plaintiffs had to meet, for

Blasi, the fundamental principle in checking value was that “speech on the subject of official behavior deserves special immunity from liability for defamation precisely because such speech is more important than speech on other subjects.”199 Thus, Blasi advocated an absolute privilege for communication, but only for official behavior.200

Thus, Blasi distinguished the standard under the checking value system from that used in New York Times v. Sullivan and Gertz, where the level of privilege was determined based on the identity of the plaintiff—public or private.201 Under the checking value, the level of protection was determined by the content of the communication—a public issue.202 Thus, private communication about both a private and public person would not be protected by privilege. However, public communication on both a private and public person would be protected.

197 Id.

198 Id. See Curtis v. Butts, 388 U.S. 130, 155 (1967).

199 Blasi, supra at 582–583.

200 Id. at 587.

201 Id. at 583.

202 Id.

302

Blasi wrote that there were several problems that arose from the categorization of speech about public officials as enjoying greater protection.203 These included the issue of whether public employees not involved in policy making such as school teachers and bus drivers should be fitted in the category of public officials.204 Another issue was whether the private activities of public officials should be subject to scrutiny.205 Blasi wrote that Meiklejohnian adherents would believe that these activities were subject to greater scrutiny because they enabled the voter in his decision-making process. However,

Blasi said, the checking value theory, because its rationalization was to prevent abuse by government officials already in office, rather than to facilitate the process of selecting government representatives, would not support a higher privilege for speech about private activities of public officials.206 Thus, speech about the private actions of public officials was seen as less important under the checking value system than speech about the public activities of officials.207

However, Blasi did not believe the heightened prohibition of successful libel actions should be limited to speech considered to be a breach of the public trust for two reasons.208 First, he believed the public was the best judge of whether its trust had been

203 Id.

204 Id.

205 Id. at 584.

206 Id.

207 Id. at 584–585.

208 Id. at 585.

303 breached. Second, often an apparently innocent story could lead to several other stories that revealed a breach of trust.209

Blasi also noted that the checking value could be used in determining appropriate levels of damages to be awarded in libel actions.210 First, he said, it formed the basis for

“prohibiting presumed and punitive damages” in libel actions.211 He said extremely high awards tended to lead to self censorship.212 By categorizing some speech as more important than others, self censorship of communication falling within the bracket of the preferred speech would be seen as more serious. Thus, restrictions on recovering punitive and presumed damages would be applied to these categories of speech.213

Blasi was mostly concerned that journalists would lose their autonomy if they faced high damage awards.214 This danger of loss of autonomy could be caused by self-censorship or an over reliance on insurance agents.215 He noted that some legal systems protected individual reputation by means other than damages.216 Thus, he noted that some jurisdictions used a right to reply,217 a declaratory judgment by the court about

209 Id.

210 Id. at 587.

211 Id.

212 Id. at 588.

213 Id.

214 Id. at 588.

215 Id.

216 Id. at 590.

217 Id. citing Richard C. Donelly, The Right to Reply: An Alternative to an Action for Libel, 34 VA. L. REV. 867, 884–891 (1948), for a discussion of European and South American countries that rely on a right to reply instead of large damage awards.

304 the validity of the defamatory statement or a government-sponsored press council.218

With the exception of the right to reply, Blasi rejected these non-monetary solutions.

Although he recognized that the non-monetary penalties cured the problem of self censorship by the newspaper, he was concerned because they undermined the autonomy of the newspaper. Since journalism autonomy was fundamental to the checking system,

Blasi viewed “any procedure that provides for structured, authoritative government pronouncements” on the performance of the press as “highly problematic.”219

Finally, within his system of checking value, though recognizing the importance of media autonomy, Blasi believed that persons and institutions other than journalists should be protected from successful libel suits.220 He wrote that the contribution of non-professional observers was just as important as the need for an autonomous journalism sector.221

Rodney Smolla’s Rationale for Freedom of Speech

While Blasi and Meiklejohn both limited their discussion of freedom of speech mainly to political speech or speech in the public interest, American law professor

Rodney Smolla, like Emerson, embraced a wider approach to the protection of freedom of speech. Smolla, in his 1992 book Free Speech in an Open Society, argued that the absolutist First Amendment prohibition, Congress “shall make no law . . .,” places a burden on government to justify encroachments on freedom of speech.222 For him there

218 Blasi, supra at 590.

219 Id.

220 Id. at 591.

221 Id.

222 RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 5 (1992).

305 should be no restriction on any type of speech without a “compelling justification.”223

Thus, he disagreed with Meiklejohn’s theory that over emphasized the need to protect political speech as opposed to other forms of speech.224

Smolla did not believe there was a need to choose one first amendment theory as being superior to others as cumulatively they protected a wider range of expression.225

Thus, he noted the marketplace of ideas is based on laissez faire notions using the commercial marketplace as a metaphor for speech.226 The market place of ideas theory proposes that, when ideas compete in the market the truth emerges triumphant. Smolla suggested specific factors exist that militate against exempting the marketplace from governmental restrictions.227

First, since in the marketplace persons with resources have greater access to the means to disseminate their ideas, ideas do not have an equal opportunity of emerging as truth.228 Second, he suggested that in reality good ideas do not always triumph over bad and there continue to be several bad ideas circulating alongside the good ones.229 Third, he contended “emotional distortions” such as “irrational appeals to hate and prejudice” often lead to “orgies of violence and destruction.”230 Nonetheless, despite the

223 Id. at 9.

224 Id. at 5–6.

225 Id.

226 Id.

227 Id. at 6.

228 Id.

229 Id.

230 Id. at 7. He noted that Nazis and Ku Klux Klan groups continue to be active in the United States.

306 shortcomings of the marketplace metaphor, Smolla suggested that it was preferable to “a system of regulated speech.”231

Smolla favored combining the marketplace theory with the other theories of freedom of speech. Thus, Smolla said the protection of free speech could be rationalized based on its importance to democratic governance.232 Free speech relates to democratic self government in five ways, Smolla wrote. First, free expression is a means of facilitating participation in the debate of issues which enable citizens to participate in governance. For Smolla, participation of citizens in government was aimed at individual fulfillment and grew out of “the entitlement of the citizen” rather than “the needs of the state.”233

Second, Smolla said, freedom of speech is important in self governance in the quest for truth.234 Just as the metaphorical marketplace facilitated the discovery of truth, so

Smolla argued, “the best test of the intelligent political policy is its power to gain acceptance at the ballot box.”235

Third, Smolla said, freedom of speech is important in democratic governance to facilitate majority rule by ensuring policy making represents the collective will. This

231 Id. at 8. At any rate, he noted that even Oliver Wendell Holmes, who though not believing in truth, believed the marketplace to be the “best test of truth.” Id. at 8. Nonetheless, Smolla cautioned, the irony of the marketplace theory is that there is no empirical test to determine whether truth triumphed over error in the marketplace since such a test would mean imposing an “objective measure of truth,” which the marketplace theory forbade. Id.

232 Id. at 12.

233 Id.

234 Id.

235 Id.

307 rationale for freedom of speech differentiates from the search for political truth in that, the collective will may not be founded on truth, but on governance by the people.236

The fourth principle on which free speech could be based was that freedom of speech prevented government tyranny in democratic governance.237 He wrote that John

Locke’s perspective was that, since the ultimate sovereignty rested with the people, they had a right to protest or revolt.238 However, the right to revolt was a last resort and generally the people could eradicate government excesses through non-violent speech.239

Fifth, Smolla wrote, self governance required freedom of speech to protect minority viewpoints.240 He noted Justice Louis Brandeis’ position that repression could lead to hate which would destabilize the system of government and cause it to explode.241

However, while recognizing the importance of freedom of speech in democratic governance, for Smolla, the protection of democratic governance was not the exclusive basis for giving certain speech heightened protection.242 Thus, he argued that other types of speech should be given the same protection as political speech for several reasons.

First, he argued that non-political speech was not “intrinsically less valuable than political speech” and such speech facilitated discovery and invention in many fields.243

236 Id.

237 Id.

238 Id. at 13.

239 Id.

240 Id.

241 Id.

242 Id. at 14.

243 Id.

308

For him, “a culture that treats politics as somehow more vital than art, science, sex or religion is a culture with an intellectual landscape that is barren, sterile and gray, probably designed by bureaucrats and tended by lawyers.”244

Second, Smolla argued that self-governance theories did not demand the exclusive use of self governance for justification of the right to freedom of speech.245 He dismissed the perspective that self governance is the only rationale justifying heightened protection of speech as narrowly premising the right to speech as being derived from the needs of the state.246 For him, freedom of speech was an individual right also.

Third, he noted, self governance could not be limited to “conventional political speech” since, in modern times, often non-conventional “political speech” impacted on self governance. This type of speech required protection in order to provide “a buffer zone” for political speech, which could not totally be extracted from the non-conventional political speech.247

Fourth, Smolla denounced a tendency on the part of advocates of self governance as the major rationale for protecting speech to treat political speech as having an elitist right to protection not shared by other forms of speech.248 He suggested that for an individual who wanted fulfillment and to participate in government, “it is important that he be heard, even if only to second another’s view,” and the state had no “moral

244 Id. He noted that, although the creators of the First Amendment did not define its limitations, they were intellectually involved in all spheres of communication, indicating to Smolla that they intended all spheres to be protected. Id.

245 Id.

246 Id. at 15.

247 Id.

248 Id. at 16.

309 entitlement” to dictate “what is ‘worth saying’ and when ‘everything worth saying has been said’”249

Apart from the marketplace and self governance theories, Smolla said the right to freedom of speech was premised on the right to human autonomy and dignity. Thus, he said, the right to speak one’s mind was integral to human autonomy and dignity.250 This right to speech existed notwithstanding the fact that the speaker was incapable of persuading others to agree with him, or that the opinion might not advance the cause of truth.251 The rationale for this right to speech was premised on the fact that speech would allow the speaker “inner satisfaction and realization of self-identity essential to individual fulfillment.”252

Smolla noted that the theory has been criticized because of its hedonistic nature, and it had been argued that speech aimed at self gratification should be regulated by government.253 Smolla argued that government should not be allowed to monitor speech because speech differed from other types of gratifications since it allowed fulfillment to people.254 He wrote that the ability to think gives people humanity.255 Because speech is connected to thought, he wrote, it should be recognized as different from other types of gratifications and protected. For Smolla, thought and speech were complementary aspects

249 Id.

250 Id. at 9.

251 Id.

252 Id.

253 Id. The rationale is that since other forms of self gratification are subject to government regulation, speech that is wholly aimed at self-gratification should also be subject to government regulation.

254 Id. at 10.

255 Id. at 11.

310 of private and social personality which nourished the human nature.256 The First

Amendment was intended to protect this expressive need. Thus, Smolla argued that the government should not interfere with speech unless “it can demonstrate compelling justifications for its intrusions” such as the need to prevent one person from hurting another.257 However, Smolla indicated that the kind of harm that would justify a restriction on speech should be more than “generalized disgust or disquiet over another’s conduct.”258

Smolla noted that the Supreme Court had often asserted a societal interest in protecting reputation.259 He noted that, since the New York Times v. Sullivan decision in

1964, in the U.S. there has been a multi-tiered set of rules concerning defamation.

Thus, Smolla wrote, where a libelous statement implicates a public person and involves an issue of public concern, the actual malice standard—knowledge of falsity or reckless disregard for the truth applies (see table 4-1).260 Where the subject matter of the libel is a private person but it involves public issues, the standard of fault would be at least negligence, but could be actual malice in some jurisdictions (see table 4-1).261 In the case of private persons on topics that were private the standard was negligence (see table

4-1).262

256 Id.

257 Id. at 9.

258 Id. at 10.

259 Id. at 118.

260 Id., citing Curtis v. Butts, 388 U.S. 130 (1967).

261 SMOLLA, supra at 118, citing Gertz v. Robert Welch Inc., 418 U.S. 323 (1974).

262 SMOLLA, supra at 118.

311

Table 4-1. Categorization of Standard of Proof in Libel actions in the United States Actual Malice Negligence/Actual Negligence Malice Public Official/Public Figure Private Person Private Person Public Interest Matter Public Interest Matter Private Interest Matter

Smolla noted that the Supreme Court had difficulty in defining the categories of persons that fell within the definition of “public person.”263 Nonetheless, Smolla wrote, public officials and figures, by assuming positions of fame, had also assumed the consequence of being allowed less privacy than private persons.264 Smolla also recognized that in circumstances, there would be protection for journalists in libel suits brought by private persons where the communication was newsworthy. Within the category of newsworthy speech he identified “issues of public concern.”265 He wrote that issues of public concern were not limited to politics and self governance since the First

Amendment was concerned with more than political affairs. Also, he wrote that speech that did not occur in the general “arena” of public discourse—such as speech about secrets—could qualify as being of public concern.266 Smolla listed the following categories of speech that were private but fell within the category of public concern:267

• private information that is manifest in an independently newsworthy event; • information on private activity that reveals inefficiency in public office • flaws in judgment that relate to a person’s public office;268

263 Id. at 135.

264 Id.

265 Id.

266 Id.

267 Id. at 136.

268 Id.

312

• information about private activities that reflects on a person’s character. Thus, Smolla wrote, “character failings endemic to human existence” such as hypocrisy and dishonesty were newsworthy if there was a connection between the private failing and public official status of the person committing it.269

The theories advocated by First Amendment scholars over the years have run the gamut of freedom of speech based on self government to freedom of speech based on man’s innate dignity. The 1964 New York Times v. Sullivan decision and its progeny, however, which defined the standard of proof in public-person libel actions and standards for recovering damages, was based primarily on the importance of freedom of speech to self governance.

4.6 United States Press

In the United States the media includes television, radio, cinema, newspapers, magazines and Internet-based Web sites. Several of the media in the U.S. are controlled by large corporations.270

The broadcast media is regulated by the Federal Communications Commission

(F.C.C.). Although there are several thousand local stations across the country, many belong to the seven nationwide commercial broadcast networks. The seven networks are

N.B.C., A.B.C., C.B.S., the traditional networks have been joined by Fox, U.P.N., W.B. and I. The not-for-profit television network P.B.S. is partially government subsidized.271

There is no national newspaper in the U.S. Each major metropolitan area in the

U.S. has its own paper. Over the years the number of media has deteriorated from 1950 when there were 1,772 daily newspapers to 2000 when there were 1,480 daily

269 Id. at 136–137.

270 Media in the United States, WIKIPEDIA, http://en.wikipedia.org/wiki/Media_in_the_United_States (last visited June 11, 2006).

271 Id.

313 newspapers. Probably also caused by competition, newspaper circulation has declined in the United States from 1960 when there were 58.8 million to a high of 62.3 million in

1990 and back down to 55.8 million in 2000.272

Along with the reduction in the total amount of newspapers, there has been an increasing tendency to the conglomeration of the media businesses. Thus, Ben Bagdikian wrote in 2004 that there were five major global media conglomerates in the United

States.273 Each of these conglomerates operated several newspapers, magazines, book publishers, motion picture studios, radio, and television stations in the United States.

These conglomerates were Time Warner, Walt Disney Co., Murdoch’s News Corporation

(based in Australia), Viacom, and Bertelsmann (based in Germany).274 Bagdikian also wrote that Clear Channel, the largest radio station in the United States owned 1,240 radio stations across the country.275

A 2004 Freedom House report ranked the United States as experiencing less freedom of speech than some of the British Caribbean nations in the study.276 The rankings came in the midst of journalists being imprisoned to reveal their sources, allegations that some political commentators had received grants from federal government agencies to promote the Bush administration’s policies, the refusal of entry and deportation of certain foreign journalists, large fines levied against CBS by the

272 Id.

273 BEN BAGDIKIAN, THE NEW MEDIA MONOPOLY 3 (2004).

274 Id.

275 Id. at 1.

276 See http://www.freedomhouse.org/inc/content/pubs/pfs/inc_country_detail.cfm?country=6858&pf. Last visited 4/7/2006.

314

Federal Communications Commission for subjecting its audience to a nearly bare breast during the football championship broadcast, and media concentration.277 Nonetheless, in the midst of this, Freedom House lauds the United States for its “long tradition of legal protection for press freedom” enshrined in the Constitution and reinforced by Supreme

Court decisions. It also notes that the standards set by the U.S. Supreme Court makes it difficult for a successful libel suit to be brought against the media.278

In a survey reported by the Freedom Forum in 2005, 23 percent of Americans believed the First Amendment “went too far in the rights it guaranteed,” a more than 25 percent decline from 2002, the year following the September 11, 2001 attack on the

World Trade Center, when 49 percent of the population believed the rights went too far.279 College graduates were the least likely to agree that the First Amendment rights went too far, and those without high school degrees were most likely to agree.280

When asked, however, whether the press had too much freedom to do what it wanted, 39 percent believed it had too much freedom and only 10 percent too little.281

Since 2000, when 51 percent of Americans believed the media enjoyed too much freedom the trend has been toward less people believing the media has too much power.282

277 Id.

278 Id.

279 STATE OF THE FIRST AMENDMENT 2005, http://www.freedomforum.org/publications (last visited Feb. 16, 2005).

280 Id.

281 Id. at 12.

282 Id. In 2001 and 2003 46 percent believed the media had too much freedom. In 2002 and 2004 42 percent believed the media had too much power. Last year in 2005 only 39 percent believed the media had too much power.

315

Conversely, the trend toward Americans believing that the media should be able to criticize the military increased between 2002 and 2005, although in small amounts. In

2002, 57 percent of Americans believed that newspapers should be allowed to criticize the military and, of this figure 24 percent strongly agreed with this.283 In 2005, the figures were 59 and 36 percent respectively.284

In 2005, 63 percent of Americans were aware that the First Amendment protects freedom of speech.285 However, Americans were largely unaware that the First

Amendment also protects freedom of the press,286 religion,287 and freedom of association.288 Very few knew that the amendment also protected the right to petition the government for redress of grievances.289

4.7 Facts in New York Times v. Sullivan

In 1964 the Supreme Court overturned a libel award against the New York Times for a story it published about a police commissioner in Alabama. This section outlines the facts leading to the 1964 New York Times v. Sullivan decision that played an important role in changing the law of libel concerning public officials, and, eventually, what the

Court called public figures, in the United States.

283 Id. at 14.

284

285 Id. at 11.

286 Id. at 11. Only 16 percent named this aspect of the First Amendment.

287 Id. Only 20 percent named this aspect of the First Amendment.

288 Id. Only 14 percent named this aspect of the First Amendment.

289 Id. Only 3 percent named this aspect of the First Amendment.

316

In the years following the 1956 desegregation of the bus system in Montgomery,

Alabama the segregation that blacks faced in Alabama had not improved significantly.290

Police Commissioner L.B. Sullivan, a strong segregationist, was active in Alabama politics between the 1950s and his 1977 death.291 In the process of his rise to prominence in the south, Sullivan made friends with several segregationists, according to constitutional historian Kermit Hall.292 He believed the progress of Montgomery

depended on opportunities for both races without disturbing the status quo, Hall wrote.293

Events in Montgomery, Alabama in 1960

The series of incidents in Montgomery that would become a focal point of an advertisement in the New York Times that provoked the New York Times v. Sullivan case,

290 Kermit L. Hall, Lies, Lies, Lies: The Origins of New York Times v. Sullivan, 9 COMM. L. & POL’Y, 391, 399 (Autumn 2004). In 1958 John Patterson, running on a platform of racism, defeated George C. Wallace in the bid for Governor. Wallace declared that he would “never be out-niggered again.” Id. Patterson won an order from Circuit Judge Walter Burwyn Jones outlawing the National Association for the Advancement of Colored People in Alabama. In Montgomery, the City Council ordered all 13 city parks and the zoo to be sold rather than integrate when ordered to do this by the federal court. Finally, in March 1959, when Earl James was elected mayor, defeating moderate William Gayle who he characterized as being uncommitted to the cause of segregation because he had lost the bus boycott case, Lester Bruce Sullivan also defeated the incumbent police commissioner Clyde Sellers.

291 Id. The son of a Kentucky farmer and sheriff, he joined the army and, later, became a military police officer. He began his public office career in the Alabama Public Service Commission in 1947 as chief inspector, and became friends with the, then, head of the Commission, Gordon Person, who later became governor. In 1951 Person appointed Sullivan Director of Public Safety, which position he continued to hold until 1956. In this position he had control of the Alabama State Police. In 1954 when Senator Albert Patterson, candidate for Attorney General, was assassinated Sullivan joined forces with his son John Patterson and Judge Walter Burwyn Jones in cleaning up Phenix City which had had a reputation for corruption. Id. at 401. Thus, began the bond between the three men who played a large role in the New York Times v. Sullivan case. Sullivan, following his success in Phenix City, was appointed police consultant with the International Association of Chiefs of Police, which included 14 southern states. He held this position between 1955 and 1957, during which time he developed a reputation for being tough on crime.

292 Id. A one-time member of the Ku Klux Klan, in his 1959 campaign, he promised voters a “continuation of Southern traditions and customs” and to promote “industrial growth and development of our city, county, and state.”

293 Id. at 402. Sullivan was forced to address the issue of segregation shortly after his victory when the February 1, 1960, black sit-in at the F.W. Woolworth lunch counter in Greensboro, North Carolina fueled a reaction of similar sit-ins across the South. See also Dixie Dissension: Racial Hostility Grows As Negro Drive Against Discrimination Spreads, WALL ST. J., Mar. 14, 1960. Soon, there where Negro sit-ins in the Carolinas, Virginia, Tennessee, Arkansas, Florida, Georgia, Alabama and Texas.

317 began on February 25, 1960, when 35 black students from Alabama State College, attempted to be served at a snack bar in the basement of the Montgomery County

Courthouse.294 On the following day, Governor James Patterson demanded that the students be expelled.295

On March 1, six hundred Alabama State University students marched “solemnly” two-by-two from the campus to the capitol to protest the governor’s demand to expel the students who participated in the February 25 sit-ins.296 The students peacefully prayed and sang the National Anthem on the steps of the Capitol during the 25-minute demonstration, according to a report of New York Times journalist Claude Sitton.297

Alabama State students boycotted classes in protest and, on March 3, approximately

2,000 students “milled about the campus, singing and chanting protests” against the

expulsions.298 On March 4, the state board of education that governed Alabama State

294 J. MILLS THORNTON, DIVIDING LINES, 115 (2002). In the process, Christine Stovall, a young black woman, was hit over the head with a bat by one of the Klansmen, an event that was never punished. The Klan newspaper the Montgomery Home News actually rejoiced in the incident saying, “The crisp crack of a hickory bat on a Negro head snapped the people out of their apathy into the realization that the steady, cold siege against their way of life was now breaking out in an obviously Communist-inspired racial strife.” Id. at 113. According to Mills the more moderate Montgomery Advertiser condemned the attack, rebuking Sullivan for not stopping the action and arresting the perpetrators, several of whom appeared in photographs carried by the newspaper of the brutal event. Id.

295 Id. Montgomery Restive After Race Incident, in CHRISTIAN SCIENCE MONITOR, Mar. 5, 1960, at 7.

Governor Patterson demanded that the president of the college, Dr. H. Council Trenham expel all students involved in the boycott, and hinted the state-funded University might lose funding if it refused.

296 J. MILLS.THORNTON, DIVIDING LINES, supra at 114.

297 Claude Sitton, 1000 Negroes Join March in Alabama, in N.Y. TIMES, Mar. 2, 1960, at 1.

298 Montgomery Restive After Race Incident, CHRISTIAN SCIENCE MONITOR, Mar. 5, 1960, at. 7.

318

University, ordered nine of the students who participated in the sit-ins to be expelled, and

20 others were placed on probation.299

Negroes from churches across Montgomery met at the Capitol on Friday, March 6,

1960.300 As the estimated 800 blacks led by Rev. Ralph Abernathy and Rev. Robert Du

Bose Jr. emerged from the Dexter Avenue Baptist Church at 2 p.m. to walk to the capitol, a crowd of approximately 5,000 hostile white people confronted them.301

Twenty mounted Sheriff’s deputies stood between the white mob and the church, according to a report by Sitton.302 Firemen from two fire trucks pointed their hoses toward the Negroes now standing on the church steps, while the white mob shouted for the fire hoses to be used against the Negroes.303 “We are not afraid,” the Negroes chanted. Then they began singing the national anthem and the “Battle Hymn of the

Republic.” As the black group sang peaceably, the crowd of white people continued to jeer at them.304 It took more than 400 city police, highway patrolmen and mounted volunteer sheriff’s deputies to wedge their way between the blacks and whites, before

299 THORNTON, supra at 114. See also 1000 Dixie Negroes to Cut Classes, CHRISTIAN SCIENCE MONITOR, Mar. 3, 1960, at 5, which reported that Rev. Ralph Abernathy, president of the Montgomery Improvement Association, described the expulsion order as “one of the greatest blunders in the history of education in Alabama.” Governor Patterson saw the move as necessary “to prevent bloodshed.” He said, “if we ever bow to the threat of a mob,” he said, “we are on our way out and they’ll get more arrogant everyday.” MILLS, supra at 114. Authorities continued to harass the protesters and the boycott had collapsed by March 10. Id. The authorities fired some of the faculty members at Alabama State. Among those professors purged were historian Lawrence D. Reddick, Martin Luther King’s friend, and bus boycott leader Jo Ann Robinson. Id.

300 Claude Sitton, Negroes Dispersed In Alabama March; Attacked by Whites, N.Y. TIMES, Mar. 7, 1960, at 1.

301Id.

302 Id.

303 Id.

304 Sit-Ins Heighten Stress in South, CHRISTIAN SCIENCE MONITOR, Mar. 7, 1960, at 1.

319 they drove blacks forcibly back up the steps of the church, according to a report in the

Christian Science Monitor.305

New York Times

A New York Times editorial on March 19, 1960 titled “Amendment XV”306 advocated the passage of a civil rights bill that would allow blacks to vote. The editorial chided the government for its tardiness in passing a bill protecting the Negro’s constitutional right to vote.307 The editorial noted that, at its heart, the United States

Constitution guaranteed all citizens the right to vote.308 The article ended:

The civil rights measures have already been watered down in both houses to the point where they threaten to dissolve in a muddy puddle of obfuscation. Congress must not allow this to happen; it must produce a bill that represents a definite forward step in this long struggle. The growing movement of peaceful mass demonstrations by Negroes is something new in the South, something understandable and also something ominous. Let Congress heed their rising voices, for they will be heard.309

Prominent northern civil rights leaders had sided with the struggle in the south and were raising money to support the sit-ins. Among them was Bayard Rustin, who formed a group called “Committee to Defend Martin Luther King and the Struggle for Freedom in

305 Id.

306 U.S. CONST., art. XV provides that

(1) The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation.

307 Amendment XV, N. Y. TIMES, Mar. 19, 1960, at 20.

308 Id. The editorial read

Unless the 1960 law includes a statutory method of materially advancing the Negro’s right to vote in all elections, the cause of constitutionalism in this country will have again suffered a disgraceful blow.” Id..

309 Id.

320 the South.”310 Dr. King, the head of the Southern Christian Leadership Conference

(SCLC), a group dedicated to ending segregation, was before the court on charges of tax evasion in Atlanta, Georgia. Rustin hired writer John Murray to produce an advertisement to help to raise money to aid King’s defense. The advertisement outlined events in the sit-in movement and listed the names of prominent entertainers, theologians and educators who supported the movement.311 On March 23, Murray took the ad into the

New York Times advertising department. Because of the endorsements of prominent figures, the advertisement passed through the system with no fact-checking.312

After the advertisement had been accepted, on March 28, Rustin changed it by adding the names of 20 southern civil rights leaders. These included four Alabama ministers: Ralph D. Abernathy, Solomon S. Seay Sr., both of Montgomery; Fred

Shuttlesworth, of Birmingham; and Joseph E. Lowery of Mobile.313 All four ministers were members of the S.C.L.C. Rustin also inserted in the copy, just above the new list of civil rights leaders, the words “We in the South who are struggling daily for dignity and freedom warmly endorse this appeal.”314

310 Hall, supra note 2 at 404.

311 Id. at 405. See Ad: Heed Their Rising Voices, N. Y. TIMES, Mar. 29, 1960. These included Harry and Julie Belafonte, Marlon Brando, Diahann Carroll, Nat King Cole, Dorothy Dandridge, Sammy Davis, Jr., Ruby Dee, Langston Hughes, Mahalia Jackson, Eartha Kitt, Sidney Poiter, A. Philip Randolph, Jackie Robinson, Eleanor Roosevelt, and Shelley Winters.

312 Id.

313 Id. at 406.

314 Id. Rustin brushed off Murray’s suggestion that the names of the ministers should not be used without, first, contacting them for permission, saying that there was no time to contact them since the ad was scheduled to run on the following day. He also said the S.C.L.C. was King’s organization so there was no need to ask the permission of individual ministers who were members of it.

321

The full-page advertisement that ran in the Times on March 29 was titled “Heed

Their Rising Voices,” adopted from the slogan in the final sentence of the New York

Times editorial that had been run 10 days before.315 The $4,800 advertisement urged readers to make donations to King’s defense, to help the students and to aid in the struggle for the right to vote.316 It ended with a call to not only “heed their rising voices” but “add our own.”317

In relation to Montgomery, the ad charged:

In Montgomery, Alabama, after students sang “My Country ‘Tis of Thee” on the State Capitol steps, their leaders were expelled from school and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.318

In relation to King, the ad charged:

Again and again the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times— for “speeding,” “loitering,” and similar “offenses.” And now they have charged him with “perjury”—a felony under which they could imprison him for ten years.319

There were several inaccuracies in the ad:320

315 Id.

316 Ad: Heed Their Rising Voices, N.Y. TIMES, Mar. 29, 1960. The first few paragraphs chronicled the events across the South since February of that year The advertisement also chronicled attempts by authorities to intimidate Martin Luther King Jr., and applauded the “creative daring” of the students and King’s “quiet heroism.”

317 Id. It ended: “We must extend ourselves above and beyond moral support and render the material help so urgently needed by those who are taking risks, facing jail, and even death in a glorious re-affirmation of our Constitution and its Bill of Rights.”

318 Id.

319 Id.

320New York Times v. Sullivan, 273 Ala. 656, 682 (1962).

322

The students in Montgomery had not sung “My Country ’Tis of Thee,” but the

National Anthem. The police did not “ring” the campus but were deployed in large numbers close to it on three occasions. Although a large number of students were involved in the demonstration, “the entire student body” was not, and all but 28 of the students had re-registered for classes. There was no evidence that the campus dining room had been padlocked.321 The Montgomery police entered the campus at the request of college officials after a “mob of rowdy students” threatened the Negro college custodian, and a college policeman had shot his pistol into the air several times to control the students.322 In relation to King, although his home was bombed during the bus boycott, his wife and child were not injured and he had only been arrested twice by

Montgomery police and assaulted once.323

Sullivan wrote the Times on April 7 demanding a retraction of the story. The Times responded with a letter asking Sullivan what statements in the ad reflected on him.324

Thereafter, however, the company investigated the truthfulness of the allegations in the advertisement and discovered the inaccuracies.325

The city of Montgomery brought an action for libel against the New York Times,

Shuttlesworth, Lowery, Abernathy and Seay, Sr. Joining the city as plaintiffs in the action

321 Id. at 683.

322 Id. at 682.

323 Id. at 683. King, himself, said that he had only been assaulted once when he was arrested four years before “for loitering outside a courtroom,” and an arresting officer had twisted his arm behind his back in the process. King’s arrests by Montgomery police consisted of one for speeding when he was fined $10, the second for loitering, for which he was convicted and charged $14. Id.

324 Id. at 682.

325 Id.

323 were Mayor Earl James, and city commissioners Frank Parks and L.B. Sullivan.326 They claimed that the advertisement subjected them to “ridicule and embarrassment” in its

“false version of incidents surrounding recent demonstrations” by students at the

Alabama State College.327 They had all demanded retractions but the Times had only

retracted in the case of the governor.328 The actions were for $500,000 each.329

Lower Court’s Decision

On November 1, the Sullivan trial began330 and soon a jury of 12 white men was

empanelled.331 The Alabama trial court ruled on several applications brought by the

parties. Roland Nachman, Sullivan’s attorney, told the court that his client was entitled to

punitive damages to deter the Times and the other defendants from repeating their actions

and to deter others from doing the same thing. In his opening statement, Eric Embry, the

Times’ attorney, argued that the ad had not been intended to refer to Sullivan and did not

326 Montgomery Suing The Times Over Ad, N.Y. TIMES, Apr. 20, 1960.

327 Id.

328 Id.

329 Times Loses Plea to Dismiss A Suit: Alabama Judge Rejects Bid by Paper and 4 Negroes in Montgomery Case, N.Y. TIMES, Oct. 29, 1960, at 23. See also Alabama Governor Sues for $1,000,000, N.Y. TIMES, May 31, 1960, at 20. Later, on May 30, despite the retraction, the governor brought a $1,000,000 action against the Times for libel against himself.

330 Id. In October, T. Eric Embry, a Birmingham attorney representing the Times, argued that the complaints were improper and should be dismissed because they joined three offenses in the same count, did not allege facts showing the ad referred to the plaintiffs and did not allege damages to the plaintiffs. Id. Solomon S. Seay, Jr., the lawyer for the four ministers, also added that the ad referred to a whole class of people and not the Montgomery Commissioners specifically. Roland Nachman, a Montgomery attorney representing the commissioners, said the ad implicated the three officials since policemen could not act without their direction. Circuit Judge Walter Burwyn Jones dismissed the motions brought by Embry and Seay Jr. He left the issues raised by Nachman for the trial.

331 Lawyers Clash at Times’ Trial, N.Y. TIMES, November 2, 1960, at 33. Two Negro men on the 36-man jury pool, were struck off by Sullivan’s counsel.

324

“by the widest stretch of inference.”332 He said the paper had no reason to believe the ad contained inaccuracies, and no intent to defame anyone. The advertisement was accepted from a reputable New York advertising agency and included the names of “responsible sources” on whose reputation the Times had relied.333 He noted that the Times had even asked Sullivan to clarify how the advertisement related to him when he had asked for the retraction, and that the paper had retracted all statements about Governor Patterson when he asked them to.334 Fred Gray, a Montgomery attorney appearing for the four ministers, said the four had not consented to the use of their names for the advertisement, they were not a part of the committee to raise funds for King’s defense, and had never been approached by the committee.335

Sullivan’s attorneys led evidence that was aimed at establishing that the advertisement would be understood by readers to implicate Sullivan in his role as police chief. Sullivan testified on his own behalf that the ad reflected on his ability and integrity because it implied improper conduct by police officers, thereby casting aspersions on him as police commissioner.336 Times’ attorney, Embry, argued that allegations of expulsions of students, padlocking of the dining hall and income tax indictments against King could not have referred to Sullivan who was not involved in these incidents.

332 Id.

333 Id.

334 Id.

335 Id.

336 Testimony Ended in Trial of Times, NEW YORK TIMES, Nov. 3, 1960, at 14.

325

In cross examination, Sullivan admitted that no one had shunned him and he had lost no friendships after the ad was printed.337 While several of the witnesses called by

Sullivan’s attorneys said they associated the statements with Sullivan, in cross

examination they admitted that the ad did not affect their opinion of Sullivan.338 Embry

relied on this testimony to argue that Sullivan’s reputation had not been damaged by the

ad.339

After trying unsuccessfully to get the circuit judge to throw out the case against

them, the attorney for the four black ministers called John Murray, the designer of the ad,

to give evidence. Murray said that Bayard had added the names of the Southern ministers

without their consent on the assumption that they would endorse the advertisement. The

newspaper also called Gershon T. Aronson, its advertising salesman who said he saw

nothing wrong with the ad, and D. Vincent Redding, manager of advertising acceptability

for the newspaper, who said he had depended on the reputations of the endorsers of the ad in accepting it.340

337 Id. Although the defense team for the Times did not contend that the ad was truthful, the commissioner’s attorneys elicited through the testimony of Frank Stewart, state school superintendent, that it was the State Board of Education that had expelled the nine students and not city authorities. The commissioner also put a policeman on the stand who had arrested King and testified that King had not been assaulted as the ad claimed. Id.

338 Id. Sullivan’s attorneys called as a witness Grover C. Hall Jr., editor of the Montgomery Advertiser, who said he associated the statements with Sullivan and the other two commissioners because they were “responsible for good order in this community.” Similar testimony was given by Arnold Blackwell, a real estate insurance dealer; Harry Kaminsky, a clothing store executive; H.M. Price Sr., a businessman and William M. Parker Jr., a partner in a service station. Blackwell, a member of the city waterworks board; and Kaminsky and Price, said in cross-examination that they did not recall seeing the ad until one of Sullivan’s attorneys showed it to them in his office three weeks before the matter came before the court.

339 Id.

340 Id.

326

Sullivan’s attorneys argued that the evidence revealed that the ad was false and libelous and reflected negatively on the commissioner, and that the Times had not attempted to verify its accuracy before publication.341 Although Sullivan had conceded that his reputation had not suffered, his attorneys argued that, under Alabama law, the commissioner did not have to prove damages since they were presumed.342

Embry argued on behalf of the Times that the statements in the ad were substantially correct and, except for the portion that said the dining hall had been padlocked, the ad could not be construed as referring to Sullivan. The attorney also argued that Times employees took all precautions to screen the ad and had found no reason to question its accuracy.343 Fred Gray, attorney for the Negro defendants, argued the evidence did not rebut his clients’ cases that their names had been used in the ad without consent.344

Circuit Judge Walter B. Jones, in his charge to the jury, said that the jury should not be swayed by the fact that one of the defendants was a newspaper and four were

Negroes.345 “They all stand before you on equal footing,” he said. “They are all equal before the bar of justice.”346

After 2 hours and 20 minutes of deliberations, foreman Wheeler McDade announced an award of $500,000 to Sullivan. The amount, which was the full amount

341 Times, 4 Clerics Lose Libel Case, N.Y. TIMES, Nov. 4, 1960, at 67.

342 Id. See 4.0, supra.

343 Times, 4 Clerics Lose Libel Case, N.Y. TIMES, Nov. 4, 1960, at 67.

344 Id.

345 Id.

346 Id.

327

Sullivan had asked for, was awarded against both the Times and the four Negro leaders.347

Counsel for the New York Times, Embry, quickly announced his intention to appeal on the basis that the judge had erred in allowing persons to give testimony based on their opinions about whether the ad had damaged or could damage Sullivan’s reputation.348

This type of evidence could only be given by expert witnesses, the lawyers said.

Alabama Supreme Court’s Decision

Two years after it had begun, on August 30, 1962, the New York Times v. Sullivan appeal reached the Supreme Court of Alabama.349 The newspaper and the ministers argued five grounds of appeal:

• “As a matter of law, the advertisement was not published of and concerning the plaintiff . . . • The publication was not libelous per se. • The complaint was defective in failing to allege special damages.350 • The complaint was defective in failing to allege facts or innuendo showing how the plaintiff claimed the article defamed him and • The complaint was bad because it stated two causes of action.”351

Justice Robert Harwood, speaking on behalf of the court, noted that, under

Alabama law, words that tended to injure a person’s “reputation, trade or business, or charge him with an indictable offense” or bring him into public contempt were libelous

347 Id.

348 Times will seek Alabama Retrial, N.Y. TIMES, Nov. 5, 1960, at 48.

349 New York Times v. Sullivan, 273 Ala. 656 (1962).

350 Id. Special damages are only recoverable on proof of actual out-of-pocket loss and should be specifically pleaded.

351 Id. at. 673. A complaint stating two causes of actions is normally disallowed because trial of one might prejudice the other.

328 per se.352 The effects of the words, the judge said, should be determined by “its natural

and probable effect upon the mind of the average lay reader” rather than the “effects

when subjected to the critical analysis of a trained legal mind.”353 The court, thus, held

that the words in the complaint were libelous per se if they referred to Sullivan.354

The court also disagreed with the Times lawyers’ challenge that the word “police”

encompassed too broad a group for people to believe that the statement in the ad referred

to Sullivan.355 The court said the “average person” knew that, in cities run by

commissions, municipal agents such as police, firemen and others were “under the

control and direction of the city governing body” or a single commissioner. Thus, he said,

“in measuring the performance or deficiencies of such groups, praise or criticism is

usually attached to the official in complete control of the body.”356

Since the advertisement was libelous per se, the court held there was no need to allege special damages.357 Special damages are meant to repay the plaintiff for actual

352 Id. at. 673, citing the Alabama Supreme Court case, White v. Birmingham Post Co., 233 Ala. 547 (1937). In White, the Birmingham Post published an article stating that Lytle White was assisting his friend, an Arab sheik, in searching for a chief-wife for his harem. The article stated that the Sheik had asked White to buy an American girl from Birmingham for his harem. White sued the paper for libel. In this case the court noted that case law indicated that “it is well settled that to constitute libel, it is not necessary that written statements should contain an imputation of an offense that may be punished as a crime. It is sufficient if the language tends to injure the reputation of the party, or to throw contumely or to reflect shame or disgrace upon him. As a general rule written words exposing the person to whom they refer to hatred, ridicule, contempt, shame or disgrace are libelous per se.” Id. at 549.

353 New York Times v. Sullivan, 273 Ala. at 673, quoting White v. Birmingham, 233 Ala. 547.

354 Id.

355 Id. at 674.

356 Id. at. 674–675.

357 Id. at. 675. He referred to authority in Johnson Publishing Co. v. Davis, 271 Ala. 474 (1960). In Johnson, Edward Davis, a Negro school teacher went to Ralph Abernathy’s church with a pistol and hatchet. Abernathy was the one of the ministers who were named in the libel action in New York Times v. Sullivan. There had been a problem between Davis and Abernathy, who, he alleged, had slept with his wife. Nonetheless he did not attack the minister. An article in Jet magazine reported not only that he had attacked

329 monetary loss and in libel law evidence should be provided before special damages can be recovered. Also the Supreme Court in New York Times v. Sullivan held that the lower court did not err in overruling the objection made in the lower court that special damages had not been pleaded.358

Embry had also objected to a section of the trial judge’s oral charge to the jury. The

judge had said:

if you are reasonably satisfied from the evidence before you, considered in connection with the rules of law the Court has stated to you, you would come to consider the question of damages and, where as here, the Court has ruled the matter complained of proved to your reasonable satisfaction and aimed at the plaintiff in this case, is libelous per se then punitive damages would be awarded by the jury even though the amount of actual damages is neither found nor shown.359

the minister but that he had quit his job after he was charged with having sex with students. Davis, the teacher, brought an action for libel. At trial no evidence was brought by the magazine publishers to support the allegations of sexual misconduct. The Supreme Court of Alabama held that since “damages are presumed from the circulation of a publication which is libelous per se, it is not necessary that there be any correlation between the actual and punitive damages. Id. at 487. Nonetheless, the damages were reduced from $67,500 to $45,000 since Davis, the teacher, had in fact, carried a pistol and hatchet to Abernathy’s church to confront him. Id. at 498.

358 New York Times v. Sullivan, 273 Ala. at 675. The court also dismissed the New York Times lawyers’ arguments that the trial judge had been wrong in overruling their objection to Sullivan’s witnesses Blackwood, Kaminisky, Price, Parker and White being asked whether, if they had believed the content of the ad, they would have thought less of Sullivan. Embry had objected on the basis that the question, as phrased, implied “that the ad was published of and concerning” Sullivan. Id. at 677. However, the court said, all the witnesses had given evidence prior to this that they associated the ad with the city commissioners and the questions were based on this testimony and not an implication that could be read into the question. Embry had also argued that the question was hypothetical since none of the plaintiffs had said they believed the ad or thought less of Sullivan. Although the judge said this evidence had little probative value (see, supra Chapter 1, 1.7), he agreed that it would be relevant in determining the ad’s effect on the individual witness who gave testimony and other readers of the information. Nonetheless, Harwood did not believe the “answers elicited were . . . injurious to the substantive rights” of the New York Times. Id. at 677–8. “Clearly we think it common knowledge that publication of matter libelous per se would, if believed, lessen the person concerned in the eyes of any recipient of the libel.” The court also dismissed Embry’s contention that the judge was wrong in denying the motion for a new trial. The motion had been made on the grounds that New York Times had been deprived of due process because of hostile articles in local newspapers, the presence of photographers in the courtroom and publication of pictures of the jurors before the verdict. Id. at 679. The Alabama Supreme Court held that since Embry had neither asked for a continuance or change of venue or mentioned the articles nor objected to the photographs at the time of the trial, the matters were not on the record and could not be considered in a motion for a new trial.

359 New York Times v. Sullivan, 273 Ala. at 679.

330

Embry argued that the words “and aimed at the plaintiff in this case,” could be taken by the jury to mean the ad was “of and concerning” Sullivan, thereby invading the jury’s function to determine whether the article referred to Sullivan.360 The Alabama

Supreme Court held that, although generally the words would have been seen as invading the juror’s role, in the context in which they were used they were not invasive.361

“A court’s charge must be considered as a whole and the part excepted to should be considered in light of the entire instruction,” Harwood said. “If, as a whole, the instructions state the law correctly, there is no reversible error even though a part of the instructions, if considered alone, might be erroneous.”362

Since the court’s entire oral instruction to the jury was “a fair, accurate, and clear expression of the governing legal principles,” the Alabama Supreme Court held that the portion complained of was “inconsequential” and “unlikely to have affected the jury’s feelings.”363

The Alabama Supreme Court, in examining the facts of the case, found that the

Times had articles in its files that would have shown that the allegations in the ad were false, and, in fact, when the Times investigated the allegations in the ad, they found them

360 Id. at 680.

361 Id.

362 Id.

363 Id. The judge also denied the appeal by Fred Gray, the lawyer of the four ministers, on grounds that the judge in the lower court had erred in his charge to the jury as it related to the ratification of the use of his clients’ name on the advertisement. Although Gray had objected in the lower court, Harwood said that the judge’s charge in relation to ratification had been more than one-half page long and Gray’s objection did not state with specificity the reason for the objection. Id. at 681. The judge also dismissed Gray’s argument that his clients were denied a fair trial since under an Alabaman Act, the trial judge was a member of the jury commission of Montgomery County. Since the objection had not been raised in the lower court, the judge said he could not consider it. Harwood, then turned to examine the facts of the case. He noted that the Times had articles in its files that would have shown that the allegations in the ad were false, and, eventually established as false. Id.

331 to be false. Harwood said that, in the trial, neither the Times nor the four ministers had contended the ad was true. Instead, the secretary of the Times had insisted the advertisement was “substantially correct.”364

“Even in the face of these reports, the Times adamantly refused to right the wrong it knew it had done to the plaintiff,” the judge said. “In the face of this cavalier ignoring of the falsity of the advertisement, the jury could not have been impressed with the bad faith of the Times and its maliciousness inferable therefrom.”365

The court distinguished the case from Johnson Publishing Co. where damages were reduced because there were elements of truth in some of the libelous statements366 and found “no such reason to mitigate the damages” in the New York Times v. Sullivan case.

He noted that the Times had retracted the statement in relation to the Governor, but not in relation to Sullivan although “the matter contained in the advertisement was equally false as to both parties.”367 Just as the Times could not justify its non-retraction of the ad relating to one party on the fallacious grounds that the ad was “substantially true,” the judge said, it could not rely on the fact that the signatories to the ad had a good reputation.368 The judge said the “irresponsibility” of those persons who attached their

364 Id.

365 Id.

366 Id. See Johnson v. Davis, 271 Ala. 474 (1960), supra at Note 357, where the Alabama Supreme Court reduced the damages in a libel action for a publication indicating Davis had attacked Abernathy because Davis had been carrying a pistol and hatchet although he had not attacked Abernathy with it, thus the article had an element of truth.

367 Id.

368 Id.

332 names to “this false and malicious advertisement” could not protect the Times from “its

irresponsibility in printing the advertisement and scattering it to the four winds.” 369

The court, thus, upheld the lower court’s decision and refused to mitigate the

damages awarded by the jury.370

4.8 United States Supreme Court’s Decision in New York Times v. Sullivan

On appeal the Supreme Court unanimously reversed the lower courts’ decision.371

Justice William J. Brennan, writing for the Court, distinguished the facts in Times v. Sullivan from those in its 1942 decision Valentine v. Chrestensen,372where the Court

had found no First Amendment protection for purely commercial advertising. Brennan

noted that the New York Times ad was not purely commercial, but concerned issues of the

“highest public interest.”373 He said that, if allegedly libelous statements would otherwise

369 Id.

370 Id. As far as the question of jurisdiction raised by the Times attorney was concerned the court rejected the circuit court’s decision in New York Times v. Conner, where the court had held that no cause of action for libel arose in Alabama in cases where the alleged libel appeared in a newspaper published in New York. The judge said that the decision in Conner was “faulty” because it ignored the position in the 1960 decision Johnson Publishing Co. v. Davis, supra at Note 357, where the court had rejected the position that the “whole process of writing, editing, printing, transportation and distribution of a magazine should be regarded as one libel” and the locus of the libel was in the place of publication. Johnson v. Davis, supra at 491. Johnson Co., publishers for Jet Magazine, had argued that it was not properly sued because the company wasn’t qualified to do business in Alabama, it could not be sued unless there was “affirmative evidence in the record that it did business in Montgomery County.” The court held that this was incorrect. The court relied on St. Mary’s Oil Engine Co v. Jackson Ice & Fuel Co, 224 Ala. 152 where the court held that “statutes prescribing the venue of personal actions are not applicable to nonresident corporations which have not qualified to do business in this state, and therefore the defendant was suable in any county in the state where service of process might be made . . .” Id. The court in Johnson v. Davis, also held that the onus to show that the magazine did no business in Alabama rested on the publisher of the paper.

371 New York Times v. Sullivan, 376 U.S. 254 (1964).

372 316 U.S. 52 (1942). In Valentine, the Court held that F.J. Chrestensen did not have a First Amendment right to distribute handbills advertising 25 cent tours of his submarine.

373 New York Times, 376 U.S. 254 at 265–266.

333 be constitutionally protected, they did not “forfeit that protection because they were published in the form of a paid advertisement.”374

Brennan said that from independence in 1776 Americans had adopted the fundamental principle of government that “public discussion [was] a political duty.”375

Because of the fear of repression and its effect on the stability of government, Brennan said, the government had amended the Constitution to protect freedom of speech and assembly from the tyranny of government interference.376

Brennan said that there was a “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”377 He said that the advertisement in the Times qualified for constitutional protection because it expressed a grievance and protest on a major current issue.378 He noted that constitutional protection didn’t turn on “the truth, popularity or social utility of the ideas and beliefs which are offered.”379

374 Id. at 266.

375 Id. at 270.

376 Id.

377 Id.

378 Id. at 271.

379 New York Times, 376 U.S. at 271. See NAACP v. Button, 371 U.S. 415, 445 (1963). In Button, N.A.A.C.P. attorneys were representing clients in a desegregation case, and the Virginia Bar Association sought to prohibit the N.A.A.C.P.’s assitance under a 1956 amendment to the Virginia legal professional provisions and professional canons prohibiting improper solicitation of legal business. The N.A.A.C.P. lawyers were accused of “fomenting and soliciting legal business in which they are not parties and have no pecuniary right or liability, and which they channel to the enrichment of certain lawyers employed by them, at no cost to the litigants and over which the litigants have no control.” The Court held the law abridged the freedom of association of N.A.A.C.P. lawyers to assist persons needing legal assistance. Justice William Brennan, speaking on behalf of the Court, said that the Constitution, in addition to protecting abstract discussion, also protected vigorous advocacy against governmental intrusion. He noted there was a right to

334

He said it had been recognized by the Supreme Court in 1963 in NAACP v.

Button380 that “erroneous statement is inevitable in free debate, and . . . must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.”381 He noted Americans had decided that, despite the probability of excesses and abuse, liberties were essential to the ability to share enlightened opinion. Thus, the fact that there was injury to an elected official’s reputation did not warrant the repression of speech.382 Thus, Brennan held, neither the fact that a statement injured an official’s reputation nor the fact that it included a “factual error” would warrant repression of speech.383

“If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct,” Brennan said, “the combination of the two elements is no less inadequate.”384

He noted that James Madison had criticized the 1798 Alien Sedition Act because it criminalized the publication of “false, scandalous and malicious writings … against the

freedom of political speech, and the N.A.A.C.P. allowed the ideas and beliefs of a minority group to be added to the society. See also 4 Elliot’s Debates on the Federal Constitution (1876) 571.

380 371 U.S. 415 (1963).

381 New York Times, 376 U.S. at 271–272, quoting from NAACP v. Button, 371 U.S. 415, 433 (1963), see also Sweeney v. Patterson, 76 U.S. App. D.C. 23, 24 (1942), cert. denied, 317 U.S. 678.

382 New York Times, 376 U.S. at 272–273. The Court had determined that this was the case in relation to judicial officers, notwithstanding the fact that the information contained “half truths” and repression would be allowed only where there was a clear and present danger of obstruction of justice. See Bridges v. California, 314 U.S. 252, Pennekamp v. Florida, 328 U.S. 331,342, 343, n. 5, 345(1946); Craig v. Harney, 331 U.S. 367, 376 (1947); Wood v. Georgia, 370 U.S. 375 (1962).

383 New York Times, 376 U.S. at 272–273.

384 New York Times, 376 U.S. at 273.

335 government of the United States, or either house of the Congress . . ., or the President.”385

Madison had said that under the structure of the British government, the crown was sovereign. The American federal constitution, however, had deliberately provided for a different structure of government in which the people were sovereign.386 The provisions of the 1798 Act, Madison had said, were contrary to the American Constitution and the government structure created by it. Madison argued in Congress that since, under a

Republican government, the people had censorial power over the government, and not the government over the people, the right to free public discussion by the press as the people’s steward was a fundamental principle of American government.387 Therefore

Madison said in the United States there had to be stronger protection for press freedom.388

Although initially the First Amendment protections for the press restricted only the federal government, Brennan said, the Fourteenth Amendment expanded the protection to limit state efforts to control the content of the press as well.389 Thus, the limitation recognized by Jefferson against the enforcement of seditious libel laws by the federal

385 Id. at 273–274.

386 New York Times, 376 U.S. at 274. See Virginia Resolutions of 1798, 4 Elliot’s Debates 569–570. The government had deliberately been created to be different from the British form of government from which the Republic had escaped through independence, Brennan said. New York Times, 376 U.S. at 274.

387 New York Times, 376 U.S. at 275.

388 Id. See Virginia Resolutions of 1798, 4 Elliot’s Debates 569–570.

389 Id. at 277. See Dennis v. United States, 341 U.S. 494, 522, note 4 (1951). In Dennis, while convicting members of the Communist Party of organizing a group aimed at the violent overthrow of the government, the Supreme Court, in upholding the Smith Act, held that a conviction based on speech could only be upheld in the case of “clear and present danger” of an attempt to commit or commission of a crime. cf. Gitlow v. New York, 268 U.S. 652, 666 (1925) where a statute was held to be constitutional where it was aimed at preventing a substantial evil rather than speech itself. See also Schneider v. State, 308 U.S. 147, 160 (1937); Bridges v. California, 314 U.S. 252, 268 (1941); Edwards v. South Carolina, 372 U.S. 229, 235 (1963).

336 government applied also to the state after the passage of the Fourteenth Amendment in the 1860s. It followed, for Brennan, that just as the federal and state governments were unable to use criminal libel laws to prevent speech critical of the government, so they were prohibited from using civil libel law suits that threatened damages to prevent such speech. “What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel,” he said. “The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute.”390

Brennan noted that the criminal libel law in Alabama that provided for the punishment of persons who made false accusatory statements included the protections for a defendant of an indictment and proof beyond reasonable doubt before prosecution. He said no such protection existed in the case of a civil action.391 Thus, in Sullivan, the lower court had awarded damages of $500,000 without proof of actual pecuniary loss.392 There also was no double jeopardy protection in civil libel suits, thereby allowing multiple judgments and awards for the same publication.393 Brennan was concerned about the

“pall of fear and timidity” that would result from public criticism of public officials.394

390 New York Times, 376 U.S. at 277. See City of Chicago v. Tribune Co., 307 Ill. 595, 607 (1923).

391 Id. See ALA. CODE, Tit. 14, § 350.

392 Id. This fine was much larger than the $500 maximum provided in the Criminal Act.

393 Id. at 278.

394 Id. He noted that, in addition to the Sullivan suit, other cases against the newspaper and the ministers pending brought by other Alabama officials were pending.

337

Thus, he said, the Alabama civil libel law would be a greater infringement on freedom of speech than criminal libel laws.395

The defense of truth provided for by Alabama was not sufficient to prevent against self censorship, Brennan said. He argued that there needed to be a defense for erroneous statements honestly made.396 Requiring critics of official conduct to guarantee and prove

the truth of their assertions to avoid paying an exorbitant fine, Brennan said, not only

suppressed false statements but led to self censorship.397 Effectively, people would be

afraid to criticize officials, even where they believed their opinions were true because

people would fear that they could not prove the truth in court. Under the libel law as it existed, the inability to prove the truth of the statements published would subject publishers to large damage awards, thereby dampening the “vigor” and limiting the

“variety of public debate.”398 This was inconsistent with the First and Fourteenth

amendments from Brennan’s perspective.399

395 Id.

396 Id. He noted that this was no less essential than the requirement that booksellers know the content of books before being convicted of possessing obscene writings announced by the Court in Smith v. California, 361 U.S. 147, 153–154, in Smith the Court had said that

if the bookseller is criminally liable without knowledge of the contents . . . he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature . . . and the bookseller’s burden would become the public’s burden, for by restricting him the public’s access to reading matter would be restricted. . . . [His] timidity in the face of his absolute criminal liability, thus would tend to restrict the public’s access to forms of the printed word which the State could not constitutionally suppress directly. The bookseller’s self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it, the distribution of all books, both obscene and not obscene, would be impeded. Id.

397 New York Times, 376 U.S. at 279.

398 Id.

399 Id.

338

Brennan argued that, to protect the guarantee of freedom of speech, there was a need for a federal rule prohibiting “a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he prove[d] the statement was made with ‘actual malice.’”400 Actual malice, he said, consisted of either “knowledge that the [statement] was false or [that the statement was made] with reckless disregard of whether it was false or not.”401 He noted the decision of the Kansas Supreme Court in

Coleman v. MacLennan,402 where, upholding a lower court’s jury decision in favor of a newspaper publisher, Justice Rousseau Angelus Burch said:

It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged. . . . In such a case the occasion gives rise to a privilege, qualified to this extent: anyone claiming to be defamed by the communication must show actual malice or go remediless. This privilege extends to a great variety of subjects and includes matters of public concern, public men, and candidates for office.403

400 Id. at 279–280.

401 Id. at 280–281.

402 78 Kan. 711, 98 p. 281 (1908).

403 Id. at 285–286. In MacLennan, the state attorney general, who was running for re-election—and a member of the commission responsible for management of the state school fund, sued a newspaper publisher for an allegedly libelous statement in regard to his conduct in relation to the funds. The trial judge had directed the jury that “where an article is published and circulated among voters for the sole purpose of giving what the defendant believes to be truthful information concerning a candidate for public office and for the purpose of enabling such voters to cast their ballot more intelligently, and the whole thing is done in good faith and without malice, the article is privileged, although the principal matters contained in the article may be untrue in fact and derogatory to the character of the plaintiff; and in such a case the burden is on the plaintiff to show actual malice in the publication of the article.”

339

Justice Brennan, in New York Times v. Sullivan, noted that the decision in

MacLennan had been followed by several state courts.404 He compared the privilege provided in MacLennan to the protection given a public official in a libel suit for a statement made within the perimeter of his duties and made without actual malice.405 He noted that the privilege accorded to the statements of government officials was intended to protect “fearless, vigorous and effective administration of policies of government.”406

Similar considerations applied in the case of criticisms of government, Brennan said, since citizens had the power to censor government, public servants would have an unjustified preference if critics of government conduct did not have equivalent immunity to that granted to the officials, Brennan said.407

Thus, Brennan said that the First and Fourteenth amendments required a constitutional privilege delimiting the “power to award damages for libel in actions brought by public officials” against persons criticizing their official conduct.408 In libel suits involving criticism of public officials, Brennan said, public officials would have to prove actual malice—knowledge of falsity of the remarks or reckless disregard to

404 New York Times, 376 U.S. 254, 282. See e.g. Ponder v. Cobb, 257 N.C. 281, 299 (1962); Lawrence v. Fox, 357 Mich. 134, 146 (1959); Stice v. Beacon Newspaper Corp., 185 Kan. 61, 65–67 (1959); Bailey v. Charleston Mail Association, 126 W. Va. 292, 307 (1943); Salinger v. Cowles, 195 Iowa 873, 889 (1922); Snively v. Record Publishing Co., 185 Cal. 565, 571–576 (1921); McLean v. Merriman, 42 S.D. 394, (1920). Legal scholars also approved it see e.g. 1 HARPER AND JAMES, TORTS, § 5.26, at 449–450 (1956); Noel, Defamation of Public Officers and Candidates, 49 COLUM. L. REV. 875, 891–895, 897, 903 (1949); Hallen, Fair Comment, 8 TEX. L. REV. 41, 61 (1929).

405 New York Times, 376 U.S. at 282. See Barr v. Matteo, 360 U.S. 564, 575 (1959).

406 New York Times, 376 U.S. at 282. See Barr v. Matteo, 360 U.S. 564, 571.

407 Id. at 282–283, quoting Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis J., concurring, quoting Madison, supra at 275).

408 New York Times, 376 U.S. at 284.

340 whether the defamation was true or false—in order to win their libel suits.409 Although

Alabama law required actual malice for the award of punitive damages, general damages were presumed, which was inconsistent with the new standard revealed by the Supreme

Court.410 Since the trial judge had not differentiated between punitive and general damages, Brennan noted that the award may have been wholly based on either. Thus, he reversed the verdict because of this uncertainty.411

Because the case involved the issue of whether the constitutional principles had been correctly applied, Brennan said the Supreme Court was required to examine the evidence to determine whether the decision could be constitutionally supported.412 He held that the proof presented to show actual malice lacked “the convincing clarity which the constitutional standard demands, and . . . would not constitutionally sustain the judgment for respondent under the proper rule of law.”413

Brennan noted that, in the case of the ministers, even if they had endorsed the advertisement, there was “no evidence . . . that they were aware of any erroneous statements or reckless in any regard.” Thus, there was no constitutional support for the judgment against them.414 Similarly, the Court rejected the Alabama Supreme Court’s

409 Id.

410 New York Times, 376 U.S. at 284. See Bailey v. Alabama, 219 U.S. 219, 239 (1911), (holding “the power to create presumptions is not a means to escape from constitutional restrictions . . .”). See also Lawrence v. Fox, 357 Mich. 134, 146 (1959) (holding “the showing of malice required for the forfeiture of the privilege is not presumed but is a matter for proof by the plaintiff . . .”)

411 New York Times, 376 U.S. at 284.

412 New York Times, 376 U.S. at 284–285. See Speiser v. Randall, 357 U.S. 513, 525 (1958) and Pennekamp v. Florida, 328 U.S. 331, 335 (1946); One, Inc. v. Olesen, 355 U.S. 371 (1958); Sunshine Book Co. v. Summerfield, 355 U.S. 372 (1958); Edwards v. South Carolina, 372 U.S. 229, 235 (1963).

413 New York Times, 376 U.S. at 286.

414 Id.

341 opinion that the jury had been correct in finding the Times acted with bad faith and malice based on the statement by the Times’ secretary that, apart from the padlocking allegation, he thought the ad was “substantially correct.”415 There was no evidence of malice or lack of good faith at the time of publication even if the ad was not

“substantially correct,” Brennan said.416 The Court opinion also said the fact that the

Times failed to retract in the case of Sullivan—although it retracted in the case of the governor—did not justify a finding of bad faith either. The Court said that the letter, sent to Sullivan by the Times asking for how the article had libeled him, reflected a reasonable doubt and was not a final refusal but a request for some indication of a nexus.417

Although the New York Times published the advertisement without checking its accuracy against news stories it had in its files, the presence of the stories did not establish that the Times knew the information to be inaccurate, Brennan said.418 He explained that the state of mind required for actual malice would have to be present in the minds of the persons with the responsibility of publishing advertisements which didn’t happen in the “Heed Their Rising Voices” ad.419 In failing to check the accuracy of the description of the events in the ad, the Court’s opinion said, the Times relied on its knowledge of the good reputation of its sponsors and a letter from A. Philip Randolph,

415 Id.

416 Id. at 286. Brennan noted, however, that the ad was substantially correct.

417 Id. See also Id. at 286–287, He also noted that the apology to the Governor had been explained effectively and had not impeached its good faith.

418 Id. at 287.

419 Id.

342 who the newspaper knew to be responsible.420 Brennan noted that the evidence against the Times could only, at best, support a finding of negligence in failing to discover misstatements, which was “constitutionally insufficient to show the recklessness… required for a finding of actual malice.”421

Finally, the Court held that the evidence did not support a finding that the statements in the ad were made “of and concerning” Sullivan.422 Even where the statements referred to the police there was not even an oblique reference to Sullivan in his personal capacity, Brennan said.423 Brennan noted that the Alabama Supreme Court had inferred a common knowledge by citizens of the role played by the commissioner in relation to the police based on the evidence of the supporting witnesses who had not given a reasonable basis for the belief apart from knowledge of Sullivan’s responsibility for the police department.424

Brennan noted that no U.S. court of last resort had “ever held, or even suggested, that prosecutions for libel on government had any place in the American system of jurisprudence.”425 He was concerned that by allowing speech that was critical of

420 Id.

421 Id. at 287–288 cf. Charles Parker Co. Silver City Crystal Co., 142 Conn. 605, 618 (1955); Phoenix Newspapers Inc. v. Choisser, 82 Ariz. 271, 277–278 (1957).

422 New York Times, 376 U.S. at 288. He noted that, despite the evidence of the witnesses brought by Sullivan and his own evidence, there was no reference to Sullivan in the advertisement. References to the padlocking of the dining hall, the bombing of King’s home, and assault against King, and a perjury prosecution had nothing to do with the police. The two references to the police were about truckloads ringing the Alabama State College Campus and the demonstration on the Capitol steps, and seven arrests of King. Id. at 288–289.

423 Id. at 290.

424 Id. at 290–291. See New York Times v. Sullivan, 273 Ala., at 674–675.

425 Id. at 291, quoting City of Chicago v. Tribune Co., 307 Ill. 595, 601 (1923).

343 government to be construed as a personal criticism that could sustain a libel action, the

Alabama Court was evading the obstacle to government prosecutions of libelous statements.426 Further, allowing large civil damage awards for criticism of the government would prevent any good faith criticism of government.427

The Supreme Court, thus, reversed the Supreme Court of Alabama’s decision and remanded the case for proceedings consistent with its opinion.

In his concurrence, Justice Hugo Black, joined by Justice William Douglas, supported the reversal of the $500,000 award but suggested that the actual malice standard was an “elusive, abstract concept, hard to prove and hard to disprove.”428 Thus he advocated an “absolute, unconditional constitutional right to publish” criticisms.429 He said that state libel laws that allowed heavy damages threatened freedom of speech.430 He believed that the Federal Constitution had sought to prevent the effect of these state libel laws by providing an absolute privilege for the press to criticize public officials.431 Black said that the First and Fourteenth amendments to the Constitution allowed citizens and the press to criticize the government regardless of abuses and excesses that might arise.432

He said

426 New York Times, 376 U.S. at 291–292.

427 Id.

428 Id. at 293–294.

429 Id. at 294.

430 Id. at 295. He noted that in Alabama in 1964 when the action was heard there were 11 libel suits pending in Alabama brought by state officials against the Times in the amount $5,600,000 and five suits against Columbia Broadcasting System for $1,700,000.

431 Id. at 295.

432 Id. at 298.

344

The theory of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious. In a democratic society, one who assumes to act for the citizens in an executive, legislative, or judicial capacity must expect that his official acts will be commented upon and criticized. Such criticism cannot, in my opinion, be muzzled or deterred by the courts at the instance of public officials under the label of libel.433

He noted, however, there needed to be limitations in the case of defamatory statements relating to the private affairs of government officials.434

4.9 New York Times’ Progeny

In his New York Times v. Sullivan decision, Justice Brennan declined to determine the parameters of the officials who fell within the actual malice standard and the boundaries of “official conduct.”435 However, since the 1964 decision, the Supreme

Court has refined the principles in a series of decisions.

Curtis Publishing Co. v. Butts and Associated Press v. Walker

Three years after the New York Times decision, the Supreme Court further developed the standard applicable to libel actions brought by public persons in Curtis

Publishing Co. v. Butts and Associated Press v. Walker, two cases the Supreme Court decided as one.436 At issue was the question of whether the actual malice standard applied to “public figures.” Butts was also important in refining the definition of the actual malice standard.

433 Id. at 299.

434 Id. at 301.

435 Id. at 284 note 23.

436 388 U.S. 130 (1967).

345

Wally Butts was the athletic director of the University of Georgia, employed by the

Georgia Athletic Association, and was a well known and respected coach among his peers.437 In March 1963 the Saturday Evening Post carried a story titled, “The Story of a

College Football Fix.” The subhead stated,

Not since the Chicago White Sox threw the 1919 World Series has there been a sports story as shocking as this one. . . . Before the University of Georgia played the University of Alabama . . . Wally Butts . . . gave [to its coach] . . . Georgia’s plays, defensive patterns, all the significant secrets Georgia’s football team possessed.438

The article indicated that the newspaper’s source was an Atlanta insurance salesman, George Burnett, who accidentally overheard a conversation between Butts and

Alabama coach Paul Bryant on September 13, 1962, in which he allegedly revealed players’ names and plays that Georgia would use in its opening game against Alabama.

Ultimately, Alabama won the game 35-0.439 The article also stated that players were aware that Alabama was privy to Georgia’s game plan and that Burnett had presented notes to Johnny Griffiths, Georgia’s head coach. The news story alleged that after

Griffiths had been told of Butts’ revelation of the plays to Bryant, Butts had resigned for

“health and business reasons.”440 The article ended:

The chances are that Wally Butts will never help any football team again. . . . The investigation by university and Southeastern Conference officials is continuing; motion pictures of other games are being scrutinized; where it will end no one so far can say. But careers will be ruined, that is sure.441

437 Id. at 136. He was actually negotiating for a position with a professional team in 1968, according to Supreme Court Justice Harlan.

438 Curtis Publishing Co. v. Butts, 351 F.2d 702, 706 (1965).

439 Id. at 705–706.

440 Curtis v. Butts, 388 U.S. at 136 (1967).

441 Id. at 137.

346

On March 11, 1963, eleven days before the article was published, Curtis, the owner of the magazine, had been informed by telegram and letter both sent by Butts’ lawyers that the charges in the proposed story were an “absolute falsity.”442 The publishing house did not appear to have made any further investigations after receiving these communications, according to the Court of Appeal opinion. Butts’ daughter had also made a long distance call to the publishing house asking it not to publish the story.443 The company rejected the request. Further, after publication, the company refused to publish a retraction of the story, according to the Court of Appeal opinion.444

Butts brought a libel action in the Georgia federal courts on March 25, 1963, seeking $5 million each in compensatory and punitive damages.445 The only defense raised by Curtis, the publisher, was substantial truth.446

The evidence revealed that Burnett had, in fact, overheard a conversation between

Butts and Bryant, but the conversation had been general football talk that could not affect the game, according to Justice John Harlan in his majority opinion for the Supreme

Court.447 This was confirmed by experts on an examination of Burnett’s notes and a film of the game, Harlan said. Further, based on the evidence, there was doubt that the newspaper’s investigation of the allegations had been adequate. Additionally, the

442 Curtis v. Butts, 351 F.2d at 706.

443 Id.

444 Id.

445 Curtis v. Butts, 388 U.S. at 137.

446 Id.

447 Id.

347 investigation substantially departed from usual standards used by reporters to investigate allegations of the kind, according to Harlan.448

The trial judge in his charge to the jury said that to sustain the traditional defense of truth, the truth should be “substantially portrayed” in portions of the article which related to the alleged libelous statements. In the case of Butts, the libelous portion was the allegation that Butts had fixed the 1962 Georgia-Alabama game.449 The trial judge also indicated that punitive damages could be awarded to deter the wrong-doer from repeating the wrong if made with ill-will.450

The jury awarded $60,000 and $3 million in general and punitive damages respectively in August 1963.451 The trial court reduced the damages to $460,000 on

January 22, 1964.452 Thereafter, the Supreme Court handed down its decision in New

York Times v. Sullivan on March 6, 1964 and Curtis applied for a new trial on the basis of this decision.453 The trial judge rejected the motion for a new trial because, firstly, he said, Butts was not a public official. Secondly, the trial judge found that, even if the actual malice principle applied, there was enough evidence to support a finding of

448 Id. at 138.

449 Id.

450 Id.

451 Curtis v. Butts, 351 F.2d at 705.

452 Id.

453 Curtis v. Butts, 388 U.S. at 137.

348 reckless disregard for the truth.454 The Court of Appeals for the Fifth District affirmed the lower court’s decision by a 2-to-1 vote in July 1965.455

The second of the two cases the Court examined, Associated Press v. Walker, was initiated by Edwin Walker, a former distinguished Army officer, who had been in command of federal troops during a 1957 “school segregation confrontation in Little

Rock, Arkansas.” Walker was known to be against federal intervention in state issues such as segregation,456 and was mentioned in an Associated Press news dispatch about a riot on September 30, 1962 at the University of Mississippi. The disturbance was a result of federal efforts to enforce integration through a decree ordering the enrollment of James

Meredith, a Negro, into the university.457 The news reports published by the Associated

Press on October 2 and 3, 1962 stated that Walker, who had been present at the riot, had actually led a charge against federal marshals, encouraged the rioters to use violence, and gave the rioters advice on how to combat the effects of tear gas.458 Walker sought $2 million in compensatory damages in an action brought in Texas. The Associated Press

454 Id. at 139.

455 Id. The lawyers for the newspaper sought to rely on the constitutional privilege. Without referring to the merits of the case, the court concluded Curtis’ attorneys had been involved with the New York Times v. Sullivan case from the outset and had, thus waived its rights to challenge the verdict on a constitutional basis. See Michel v. Louisiana, 350 U.S. 91 (1955), holding that constitutional objections can be waived by failure to raise them at a proper time. The court of appeal in Curtis found the compensatory damages decision to be in line with state law and the punitive damage as stemming from the “enlightened conscience” of the jury as adjusted by the trial judge. Thus, the court upheld the lower court’s award of damages. Judge Richard Rives dissented arguing the record did not support waiver and the New York Times rule applied to Butts because of his involvement in “activities of great interest to the public.” Id.

456 Curtis v. Butts, 388 U.S. at 140.

457 Id.

458 Id. at 140.

349 relied on the defense of truth and the New York Times v. Sullivan constitutional defense.459

At the trial in 1962 Walker said he had addressed the rioters counseling restraint and peaceful protest rather than encouraging rioting. He said he had exercised no control over them and they had rejected his pleas.460 He denied involvement in the charge against the federal marshals.461

The author of the AP dispatch, Van Savell, had been present at the events and reported them as they unfolded to the Atlanta AP office. There was one discrepancy in the report submitted by Savell. Apparently his written account differed from an earlier oral account about whether Walker spoke to the group before or after the marshals approached.462 However, there was no evidence of improper preparation of the story nor personal prejudice or incompetence on Savell’s part.463 The jury was instructed that compensatory damages could be awarded if the dispatch was not substantially true and punitive damages if the article was actuated by “ill will, bad motive or evil motive, or that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person to be affected by it.”464

459 Id. at 140–141.

460 Id. at 141.

461 Id.

462 Id.

463 Id.

464 Id. at 141.

350

The jury awarded $500,000 in compensatory damages.465 The Texas Court of Civil

Appeals affirmed the lower court’s decision, on July 30, 1965, stating that the New York

Times v. Sullivan case did not apply with no “elaboration,” according to Justice Harlan in his Supreme Court decision.466

The Supreme Court granted certiorari in both Butts and Walker.467 The Court, although recognizing that both Butts and Walker were public figures, held that the New

York Times standard did not apply to public figures. Using common law negligence as the standard of fault in both cases, the Supreme Court in a plurality decision in which two judges dissented and five concurred, ultimately upheld the lower court’s decision in

Butts, but reversed in the case of Walker.

Curtis had argued that Butts was charged with the “responsibility of managing athletic affairs of the University of Georgia.” Although the Athletic Association was financially independent from the state and Butts wasn’t a state employee, his role in state administration was significant enough to trump this technical distinction.468 Further, “the public interest in education and the conduct of athletic affairs of educational institutions,” required comparative constitutional protection of discussion about persons involved

465 Id. The trial judge did not allow a further award made by the jury of $300,000 in punitive damages since there was no evidence to support punitive damages which would have required a finding of actual malice. Id. at 141–142.

466 Id.

467 Id. See Id. at 142–143. In the case of Butts, the Court held that the failure to raise the constitutional defense prior to the decision would not be a basis for finding for a waiver. A waiver had to be based on “a known right or privilege,” Justice Harlan said and the Court could not rely on information that was outside the record to determine such knowledge. Id. at 144. Also in the peculiar decision of New York Times, discussions had largely focused on an analogy to sedition. It was not until the final decision was handed down that the constitutional position emerged. Id. at 145.

468 Id. at 146.

351 sports administration as that enjoyed in discussions about public officials.469 The AP had raised a similar argument in Walker, based on the public interest in being informed about events and people involved in the Mississippi riot.470 The AP also argued that Walker could not claim protection under libel laws because he had “thrust himself into the

‘vortex’ of the controversy.”471 Butts and Walker both argued that society had a

“pervasive and strong interest in preventing and redressing attacks upon reputation.”472 In these cases government employees were not involved and there was no analogy to seditious libel prosecutions, their lawyers said.473

Justice John Harlan, in his majority opinion, distinguished the facts in the Curtis and Walker cases from the New York Times case where the Court had been adjudicating a decision that bordered on seditious libel because it was brought by a public official.474

While the New York Times case involved a public official using laws bordering on criminal libel laws to repress speech, neither of these important considerations were present in Curtis and Walker, Harlan said.475 Neither party had a special privilege

469 Id.

470 Id.

471 Id.

472 Id. See Rosenblatt v. Baer, 383 U.S. 75 (1966).

473 Curtis v. Butts, supra at 147. The vindication of honor through civil suits was aimed at protecting the law’s civilizing function of providing a substitute for violence in settling disputes. See Afro-American Publishing Co. v. Jaffe, 125 U.S. App. D.C. 70, 81 (1966). The judges also noted that newspapers were profit-making enterprises and should be held responsible for “injured persons” when they inflicted damage in the course of their business (see Buckley v. New York Post Corp., 373 F. 2d 175, 182 (2d. Cir. 1967).

474 Curtis v. Butts, supra at 153. Public officials enjoyed privilege for their utterances (see Barr v. Matteo, 360 U.S. 564); Thus, the Court had hypothesized that speech could be used to rebut speech (see Dennis v. United States, 341 U.S. 494, 503 (1951) and limited recovery to cases where there was “calculated falsehood” (see Garrison v. Louisiana, 379 U.S. 64, 75 (1964).

475 Id. at 154.

352 associated with utterances related to a public office, nor any position on government.476

Thus, under regular rules related to libel actions, Harlan noted that, where a person departed from the standard of care expected by society from a reasonable man performing such activities, he would be open to sanctions.477

Harlan said that Butts was a public figure because of his status, and Walker was a public figure because he had had deliberately thrust himself into the “vortex” of an important public controversy.478 However, Harlan said that public figures who were not public officials could recover damages where the substance of a libel made it clear that there was a “substantial danger to reputation” based on “highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.”479

Harlan, therefore, found that the damages assessed in Butts was correct based on the evidence of the deficiency in the investigation, the harm caused to Butts and the unreliability of the source, Burnett, who had been convicted with using bad checks and was on probation at the time the he claimed to have overheard the conversation.480 There

476 Id.

477 Id. Harlan agreed that the public interest in receiving the information was no less important than that in New York Times, and both Walker and Butts commanded “substantial . . . independent public interest” and would be labeled “public figures.” Id. at 155. Butts’ public figure status emerged because of his position, and Walker’s because he had thrust himself into the midst of a controversy. Id. See Whitney v. California, 274 U.S. 357, 377 (1927). However, both had access to the means of communicating counter arguments to expose the falsehood.

478 Curtis v. Butts, 388 U.S. at 155.

479 Id.

480 Id. See also Curtis v. Butts, 351 F.2d at 706.

353 was also no urgency to get the story out quickly such as would preclude proper investigation. The Court upheld the lower court’s decision.481

However, in the case of Walker, the Court held the evidence could not support a finding of negligence, since the news required immediate dissemination, the information was received from a correspondent present at the scene and appeared to be trustworthy and competent.482 Further, the Court found, the newspaper would not have found the charges made against Walker to be inconsistent with his reputation as a segregationist.483

Thus, the Court held that Walker was not entitled to damages.484

Only three other justices —justices Thomas Clark, Potter Stewart and Abe Fortas— joined Harlan’s decision (see figure 4-2 below).485 Three other judges, while concurring in his decision to reverse the Court of Appeals for the Fifth Circuit’s decision in Butts and affirm the Texas Appeals Court decision in Walker, nonetheless disagreed with the distinction Harlan made between “public officials” and “public figures” in applying the actual malice standard.

Table 4-2. Votes in the Supreme Court decision in Curtis v. Butts/Walker v. A.P. Public figures not subject Public figures subject to to actual malice standard actual malice standard in in libel cases (Harlan) libel cases (Warren) No absolute immunity for Harlan (Court’s opinion) Warren (concurrence) newspapers in libel Clark Brennan actions (Harlan) Stewart White Fortas

481 Curtis v. Butts, 388 U.S. at 157.

482 Id. at 158.

483 Id. at 159.

484 Id.

485 Id. at 133.

354

Table 4-2. Continued Public figures not Public figures subject to subject to actual malice actual malice standard in standard in libel cases libel cases (Warren) (Harlan) Absolute immunity for Black (dissent) newspapers in libel Douglas (dissent) actions (Black)

Chief Justice Earl Warren, along with justices William Brennan and Byron White, disagreed with Harlan’s differentiation between “public officials” and “public figures,” finding no basis in logic and law for this distinction (see table 4-2 above).486 Although maintaining the position that there should be an absolute immunity for newspapers, justices Hugo Black and William Douglas also agreed with the Chief Justice’s position that public figures should have to prove actual malice (see table 4-2 above). Thus, the majority accepted Warren’s position that there should be no distinction between the two categories (see table 4-2 above).

Chief Justice Warren reasoned that, although there was no privilege for defamatory statements made about public figures, they played an “influential role in ordering society,” and had the same access to the media as that enjoyed by public officials.487

Thus, he suggested, the New York Times standard should apply to public figures since its aim was to safeguard the rights of the press and public to inform and be informed about legitimate matters.488 Thus, the best way to insulate the fundamental interests protected

486 Id. at 163.

487 Id. at 164.

488 Id. at 164–165.

355 by the First Amendment, he said, would be to evenly apply the decision to cases involving “public officials” and “public figures.”489

Warren endorsed the New York Times actual malice standard as a proper balance for the legitimate interests protected by defamation law. He said, because recovery was limited by both the standards of “knowledge of falsehood” and “recklessness about the truth” of statements, the standard neither restricted recovery to situations where the defendant knew the statement was untrue, nor allowed the press to get away with reckless reporting.490 The standard protected the press’ and public’s right “to inform and be informed on matters of public interest,” the judge said.491

Thus, although a majority of seven judges agreed with Harlan’s decision in relation to the outcome of the case, a separate majority of five judges voted for the application of the New York Times standard in the case of public figures. This means that after 1967 the substantive law was that public figures were subject to the actual malice standard of proof in libel cases.

Gertz v. Robert Welch, Inc.

The 1974 decision in Gertz v. Robert Welch, Inc.492 was the most comprehensive refinement of the New York Times v. Sullivan decision for public figures. In Gertz the

Supreme Court extended and defined the categories of public persons that fell within the

New York Times actual malice rule that required them to prove the higher standard,

489 Id. at 165. Nonetheless, he believed that AP v. Walker, 388 U.S. 130 (1967) should be reversed because it conflicted with the New York Times decision and the constitutional defenses would avail. He also agreed that Butts would fall short of the requirements to show there had been no reckless disregard for the truth.

490 Id. at 164.

491 Id. at 164–165.

492 418 U.S. 323 (1974).

356 knowledge of falsity and reckless disregard for the truth in libel cases. The Gertz case arose after 1968, when Chicago policeman Richard Nuccio shot and killed a 17-year-old youth named Ronald Nelson. The state prosecuted Nuccio for the homicide and Nelson’s family retained Elmer Gertz, a well-known attorney, to represent them in a civil case against Nuccio.493

About a year later, in 1969, Gertz was the focus of an attack from American

Opinion, a monthly publication of the John Birch Society. Robert Welch, the publisher of the magazine, had long warned of a nationwide Communist conspiracy to discredit local law enforcement agencies and replace them with a national police force. The editor of the

American Opinion commissioned a reporter to cover Nuccio’s murder trial. In March

1969 an article entitled “FRAME-UP: Richard Nuccio And The War On Police,”494 purported that the testimony against Nuccio was false and his prosecution was part of the

Communist campaign. The article directly attacked Gertz as Nelson’s family’s attorney who had attended the inquest into the boy’s death and initiated civil actions, but had neither played a part in the prosecution nor discussed it with the press.495

Notwithstanding the fact that Gertz had not been involved in the criminal trial, the newspaper article in American Opinion portrayed him as the architect of the “frame-up” against Nuccio. The article also indicated that the police file on Gertz took a “big Irish cop to lift,” and that he had been an official of the “Marxist League for Industrial

Democracy, originally known as the Intercollegiate Socialist Society, which has

493 Id. at 325.

494 Id. at 326.

495 Id.

357 advocated the violent seizure of our government.”496 Labeled a “Leninist” and

“Communist-fronter,” Gertz was also accused of being an officer in the National

Lawyers’ Guild, which the article described as a communist organization that “probably did more than any other outfit to plan the Communist attack on the Chicago police during the 1968 Democratic Convention.”497

The statements in the newspaper were inaccurate and misleading, according to

Supreme Court Justice Lewis Powell in his majority decision. First, they implied that

Gertz had a criminal record, which was untrue. Second, although Gertz had been a member of the National Lawyers Guild 15 years before, there was no evidence that the organization had communist connections or had planned the 1968 demonstrations.498

There was no evidence that Gertz was a “Leninist” or “Communist-fronter” and he had not been a member of either the “Marxist League for Industrial Democracy” or the

“Intercollegiate Socialist Society,” according to Powell.499

No efforts had been made by the managing editor of American Opinion to verify the charges, although he printed an editorial introduction that indicated that the author had “conducted extensive research into the Richard Nuccio case.”500 The article was also accompanied by a photograph with the caption, “Elmer Gertz of Red Guild harasses

496 Id.

497 Id.

498 Id.

499 Id.

500 Id. at 327.

358

Nuccio.” The issue of the paper was placed on newsstands throughout the country and reprints of the article were distributed throughout Chicago.501

Gertz sued the American Opinion in the United States District Court for the

Northern District of Illinois, claiming that the falsehoods injured his reputation as a lawyer and a citizen.502 In a pretrial motion for summary judgment, the magazine’s lawyers asserted that Gertz was a public official or public figure and the article concerned issues of national interest, and thus, it could rely on the New York Times constitutional privilege.503 Thus, they argued, the newspaper was not liable unless Gertz showed the publication was made with actual malice.504 An affidavit from the editor denied any knowledge of the falsity of the statement and claimed that he had relied on the reputation of the writer.505

The district court ruled—after the evidence was heard, but before submitting the case to the jury—that Gertz was neither a public figure506 nor a public official and New

York Times did not apply.507 If the New York Times standard applied, the court said, it would have had to direct a verdict in favor of the publication because there was no

501 Id.

502 Id. Initially the newspaper sought to have the action dismissed because it failed to plead special damages (see chapter 1, 1.7 where “special damages” is defined), but the Court held the allegations were libelous per se and there was no need to plead damages. When a statement is libelous per se, it means damages are presumed and there is no need to prove them.

503 Id.

504 Id. at 327–328.

505 Id. at 328.

506 Id., citing Curtis, supra for authority that the actual malice standard applied in the case of the “public figure.” Id..

507 Gertz, supra at 328, citing New York Times v. Sullivan, supra for authority that the actual malice standard applied in the case of the “public official.” Id.

359 evidence that the article had been written with actual malice. However, since New York

Times did not apply and the article was libelous per se, in accordance with Illinois law the court submitted the case to the jury, withdrawing the consideration of all issues except the measure of damages.508 The jury awarded $50,000 to Gertz.509

After further reflection the district court decided that the New York Times standard did apply even though Gertz was neither a public official nor a public figure and reversed the jury’s decision.510 The court decided that constitutional privilege protected any discussion of a public issue, notwithstanding the status of the person defamed.511 Thus, despite the jury’s decision, the trial court entered judgment for the publication.512

Although the Court of Appeals for the Seventh Circuit doubted the district court’s contention that Gertz was not a public figure, it upheld the lower court’s decision, holding that the Times v. Sullivan rule applied because the issue concerned a matter of public interest.513 The court held that Gertz had failed to show actual malice which, under

New York Times v. Sullivan, required more than just a showing that there was a failure to

508 Id. at 328–329.

509 Id. at 329.

510 Id.

511 Id.

512 Id.

513 Id. See the intervening decision of the Supreme Court in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971). In Rosenbloom a 5–4 majority upheld a Court of Appeal decision that before a distributor of nudist magazines could recover damages for a libelous publication of his arrest for the sale of obscene magazines, he had to show that the publication acted with actual malice—knowledge of falsity or reckless disregard for the truth. The court of appeal had read Rosenbloom to mean that constitutional privilege attached to any publication in the public interest, regardless of the fame or notoriety of the person defamed. In its plurality decision in Rosenbloom, the Court was heavily divided. Justice William Brennan was joined in his majority decision by Chief Justice Warren Burger, and Justice Harry Blackmun. Justices Black and Byron White wrote concurrences. Justice Harlan wrote a dissent and Justice Thurgood Marshall also wrote a dissent in which Justice Potter Stewart joined.

360 investigate the truth of the accusations made in the article.514 Since New York Times v.

Sullivan, the Court had determined that a finding of reckless disregard for the truth required evidence of “a high degree of awareness of . . . probable falsity.”515 The

Supreme Court reversed the lower court’s decision. The majority held that Gertz was not a public person and not required to prove actual malice before recovering damages in a libel action. The Court also held that the standard to be applied in the case of private person libel actions should be determined by the states, so long as the states did not institute strict liability, meaning there was not a requirement to prove fault or ill will on the part of the defendant.

Justice Lewis Powell, speaking for a majority of the Court, noted the conflict between the First Amendment protections for freedom of expression and defamation laws and the need to find a “breathing space” in balancing the two competing interests.516

This, he said, was the rationale for the Court’s extending a level of strategic protection to false, defamatory statements in the case of public officials in New York Times v.

Sullivan.517 The New York Times v. Sullivan constitutional privilege was an “extremely powerful antidote to the inducement to media self censorship of the common-law rule of strict liability for libel and slander.”518

514 Gertz. supra at 332.

515 Id. See St. Amant v. Thompson, 390 U.S. 727, 731 (1968); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 84–85 (1967); Garrision v. Louisiana, 379 U.S. 64, 75–76 (1964).

516 Id. at 342. See Curtis Publishing Co. v. Butts, supra at 152 (1967). See also N.A.A.C.P. v. Button, 371 U.S. 415, 433 (1963).

517 New York Times v. Sullivan, supra.

518 Gertz, supra at 343.

361

Public officials were subjected to a higher standard in libel actions because they had actively sought public office and were, thus, required to submit to the concomitant enhanced scrutiny that accompanied the office, Powell said.519 The public’s interest in public officials extended to anything that might affect their suitability for public office— malfeasance and dishonesty being fundamental to this.520 In defining public figures, the

Court noted, there were a few cases of truly involuntary public figures—persons who

“assumed roles of special prominence in the affairs of society” or who occupied

“positions of such persuasive power and influence that they are deemed public figures for all purposes,” Powell said.521 The Court noted that it was more common that persons classed as public figures “thrust themselves into the forefront of particular public controversies in order to influence the resolution of the issues involved.”522 He saw no distinction between these persons and public persons who actively sought out public office because they all invited attention and comment.523

Thus, Powell noted a higher standard of proof in libel actions against public persons was required because, even in situations where the opposite was true, the media was entitled to assume that public officials and figures had voluntarily exposed themselves to heightened public scrutiny. However, Powell said, the same assumption did not hold in the case of a private person who had not relinquished his interest in protecting

519 Id. at 344.

520 Id. at 344–345.

521 Id. at 345.

522 Id.

523 Id.

362 his name. Thus, Powell said, private people were more deserving of protection and recovery in the case of libel actions.524

While the New York Times actual malice standard was appropriate in the case of public officials and figures, Powell said, the rationale for the protection did not relate solely to the need to protect media from liability, but was intended to balance this need with the limited state interest in prosecuting libel actions brought by public persons.525

Powell noted that public officials and figures generally had greater access to the means of rebutting and counteracting libelous statements than private persons who would be more vulnerable to injury. Thus, the state interest in compensating injury to the reputations of private persons who had less chance of fighting back in the media to counter any damage done to their reputation was greater than that for public officials and public figures.526

The Court was reluctant to determine the standard to be applied on a case-by-case basis because it would lead to unpredictability.527 Thus, the Court recognized the need to lay down broad rules of general applicability.528

Powell’s majority opinion said that public officials should be subjected to a higher standard of proof in libel actions because they had access to self-help remedies that

524 Id.

525 Id..

526 Id.

527 Id. See Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 63 (1971), where Justice Harlan in his dissent said:

it might seem, purely as an abstract matter, that the most utilitarian approach would be to scrutinize carefully every jury verdict in every libel case, in order to ascertain whether the final judgment leaves fully protected whatever First Amendment values transcend the legitimate state interest in protecting the particular plaintiff who prevailed. See, supra note 512.

528 Gertz, supra at 343–344.

363 private persons could not access. Thus, a public official plaintiff could defend his reputation by contradicting the lie using the resources available to him. The Court noted that public officials and figures generally had greater access to the means of rebutting and counteracting the libelous statements than private persons who would be more vulnerable to injury. Thus, the state interest in protecting private individuals was greater than that of protecting public persons.529

Therefore, the Supreme Court held, it was important for states to exercise more latitude in protecting the reputations of private persons in libel actions brought by them.530 However, the Court decided not to adopt the suggestion of the plurality in the

1971 decision Rosenbloom v. Metromedia531 to extend the New York Times standard to private persons involved in events that were of public interest. The Court noted that this would require judges to determine on an ad hoc basis where liability would arise and

“what information was relevant to self-government.”532 The effect would be that a private person might be required to meet the New York Times v. Sullivan standard in order to get recourse in a libel action where the publication concerned matters of public interest, while the publisher of a defamatory statement deemed to be unrelated to the public interest would also be liable in a libel case, even where he took all precautions to ensure accuracy.533

529 Id. at 344.

530 Id. at 345–346.

531 Id.

532 Gertz, supra. at 346. quoting Justice Thurgood Marshall’s dissenting opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. at 79 (1971).

533 Gertz, supra at 346.

364

Instead, the Court held, states could determine the appropriate standard of liability in libel cases involving private figures, so long as they did not impose liability without fault or strict liability.534 This, the Court said, provided an adequate balance between the competing interests.535

But the Gertz Court held that the actual malice standard did have a place in libel decisions involving private persons when it came to the recovery of damages.536 Thus, while in cases involving private persons compensatory damages were recoverable on a finding of negligence, presumed or punitive damages could not be awarded without a finding of actual malice.537 Justice Powell noted that, unlike other tort cases where proof of loss was required in order to recover actual damages, in libel law, injury was presumed from the fact of publication.538 Powell was concerned, however, that presumed damages allowed the jury discretion to punish unpopular speech rather than to compensate for actual injury. The state had no interest in ensuring “gratuitous awards of money” exceeding actual injury.539 Thus, in order to balance the interest in free speech, the

Supreme Court held it was important to ensure state remedies did not surpass what was required to protect the legitimate interest. Thus, to recover “substantial” damages, plaintiffs were required to show knowledge of falsity or reckless disregard for the

534 Id. Meaning the defendant could recover damages without having to prove either negligence or actual malice.

535 Id. at 347–348.

536 Id. at 348.

537 Id. at 349.

538 Id.

539 Id.

365 truth.540 Powell also noted that the jury discretion to award punitive damages also led to

“substantial” awards that were inconsistent with a finding of negligence.541

Finally, Powell held that Gertz was neither a public figure nor a public official and, therefore was not required to prove the New York Times actual malice standard to recover damages.542 Although in the past Gertz had held a position on housing committees appointed by the mayor of Chicago, at the time of publication he did not hold a remunerative post and Powell rejected the argument that by appearing at the coroner’s inquest he thereby became a “de facto public official.”543 Neither was he a limited vortex public figure for purposes of the case. Although Gertz was active in community affairs, had served on several civic groups and professional organizations, had published several books and articles, and was well known in some circles, he was not generally notorious.

Thus, he was unknown to the prospective jurors at the trial and there was no proof that the juror’s lack of knowledge about him was not typical of other persons in society.544 In the absence of “clear evidence” that he was generally notorious in the community Gertz could not be deemed a public person for all aspects of his life.545

540 Id. The Court noted, however, that actual injury was not limited to out-of-pocket loss, but included “impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.” Juries should, however, be guided by instruction and the evidence that they rely on should be good.

541 Id. at 350.

542 Id. at 351.

543 Id. That proposition, Powell said, would sweep all lawyers within the category and distort the meaning of public official beyond recognition.

544 Id. at 351–352.

545 Id. at 352.

366

In relation to the limited vortex of a particular controversy, the Court noted, there was no evidence of notoriety since the only role Gertz had played in the coroner’s inquest was related to his representation of a private client. He had not been involved in the criminal prosecution of Officer Nuccio, he had not discussed the prosecution with the media and had not thrust himself into the vortex of the public issue. Thus, Gertz was not a limited vortex public figure.546

Thus, holding that the New York Times standard was inapplicable in the case and that the trial court jury had improperly been allowed to award presumed damages without proof of fault, the Court remanded the matter for further proceedings.547 Chief Justice

Warren Burger and justices William Douglas, William Brennan and Byron White all wrote dissents (see table 4-3 below).548

The Chief Justice advocated reversing the Court of Appeal decision that the actual malice standard applied in any publication in the public interest and the re-instatement of the trial court’s decision (see table 4-3 above). He suggested that the Court had abandoned the traditional position relating to the private person by finding that the media would be liable on proof of negligent publication of a defamatory statement. He did not agree with the application of a “negligence doctrine” to media.549 Thus, he opposed the

546 Id.

547 Id. In his concurrence Justice Harry Blackmun said he believed the de facto reversal of the Rosenbloom, supra note 512 decision was illogical, because it removed actual malice standard from private libel cases. However, he concurred with the Gertz majority because the decision effectively prevented the award of presumed and punitive damages in the absence of actual malice, leaving “adequate breathing space for a vigorous press.” He also recognized that the Court had been fractured in the Rosenbloom decision which led to uncertainty. He believed it was important for the Court to reach a definitive decision on the issue of libel to remove the uncertainty caused by Rosenbloom. Id. at 353–354.

548 Id.

549 Id. at 355.

367 requirement for private persons to prove the publisher’s culpability and actual damage to reputation. He, therefore, believed the injury should be presumed and advocated that the jury’s award of $50,000 be reinstated (see table 4-3 below).

Table 4-3. Votes in the Supreme Court decision in Gertz v. Robert Welch New York Times New York Times New York Times inapplicable to applicable to cases applicable to all cases involving involving private cases private persons/public persons/public issues issues (Court’s holding) Reverse Court of Powell (Maj. Appeal’s decision. opin.) Remanded for Stewart further proceedings Marshall (Court’s holding) Rehnquist Blackmun (concur.) Reverse Court of Burger (dissent) Appeal’s decision White (dissent) and re-instate jury award Affirm Court of Brennan (dissent) Douglas (dissent) Appeal’s decision

Justice Douglas reiterated his position in the Butts case that the First Amendment prevented Congress from passing any libel law.550 He was unable to agree that, in light of the incorporation of the First and Fourteenth amendments, the states had a greater ability

550 Id. at 356.

368 to restrict freedom of speech than Congress.551 Thus, he said, he would affirm the lower court’s decision (see table 4-3 above).552

Justice Brennan, like Douglas, affirmed the lower court’s decision (see table 4-3 above). While Brennan agreed that Gertz was not a public person, he would not agree that adequate breathing space had been allowed to freedom of speech in a situation where the New York Times standard was not applied in cases involving public or general interest, even where the persons involved were private.553 He noted that the Court had held that self-governance was protected through “uninhibited, robust and wide open” debate on public interest.554 Thus, protection should be extended to all speech involving public interest regardless of the status of the individual.555

Justice White, on the other hand, was concerned that the Court had improperly used the First Amendment to whittle down the protection for reputation that libel laws allowed.556 In the past, he said, in most states the defamed private citizen had only to prove the falsity of the publication and that it would subject him to hatred contempt and ridicule.557 He balked at the idea of the new federalized requirement that all libel plaintiffs had to prove “culpability beyond the act of publishing” and that the publication

551 Id. at 357. He said that like Congress, states could not use civil or other laws to impose damages for “merely discussing public affairs,” quoting New York Times v. Sullivan, supra at 292, Black concurring.

552 Gertz, supra at 360.

553 Id. at 361. See Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971).

554 Id. at 362. See New York Times v. Sullivan, 376 U.S. 254, 270.

555 Gertz, supra at 362.

556 Id. at 369–370.

557 Id. at 370.

369 caused actual damage to reputation. He also disagreed with the Court’s decision that punitive damages would no longer be recovered without a finding of actual malice.558 He contended that the Court had rejected the traditional position that actual injury was so difficult to prove that “the risk of falsehood should be borne by the publisher.”559 The changes to the law that invaded the states’ prerogative, he said, had not been demonstrated to be required by the First Amendment.560 Although he agreed with the

Sullivan decision which prevented seditious prosecution of criticism of government, he said, the Sullivan decision and its progeny had not suggested that private citizens should be deprived of their rights to redress published falsehoods that were injurious to their reputations.561

White also rejected the Court’s blanket prohibition of “liability without fault,” even in cases where the publisher, based on the content, he said, was aware of the damage that publication would do to the plaintiff’s reputation.562 He dismissed the Court’s fear of

“uncontrolled awards of damages by juries” as “judicial overkill” since the protection against this was the province of appeal courts.563

558 Id.

559 Id. at 376.

560 Id. at 376–377.

561 Id. at 387.

562 Id. at 390.

563 Id. at 394–395.

370

“It is not at all inconceivable that virtually unrestrained defamatory remarks about private citizens will discourage them from speaking out and concerning themselves with social problems,” White said. “This would turn the First Amendment on its head.”564

Hutchinson v. Proxmire

In the 1979 decision, Hutchinson v. Proxmire,565 the Supreme Court further refined the definition of the public person. The Supreme Court reversed a lower court’s decision dismissing a libel suit brought by a behavioral scientist against a senator who gave him an award for “egregious examples of wasteful government spending.”566 The Court said that where, because of a defamatory statement, a person had been thrust into the vortex of a controversy the defamer could not rely the very notoriety that he created as a basis for saying that the public person standard should be applied.

The Proxmire suit was initiated by Ronald Hutchinson, a Michigan State employee and director of research at the Kalamazoo State Mental Hospital. He was also an adjunct professor at Western Michigan University.567 Most of his research focused on emotional behavior and, in the process of trying to find an objective measure of aggression, he concentrated on the behavior patterns of certain animals.568 The National Aeronatics and

Space Agency and the Navy were both interested in the research because of its potential

564 Id. at 400. See Note, The Scope of First Amendment Protection for Good-Faith Defamatory Error, 75 YALE L.J. 642, 649 (1966).

565 443 U.S. 111 (1979).

566 Id. at 114.

567 Id. at 114–115.

568 Id. at 115.

371 for identifying and dealing with the effects of enclosure in close quarters for an extended period.569

In March 1975 Wisconsin Senator William Proxmire instituted the “Golden Fleece of the Month Award” to publicize the most “egregious examples of wasteful government spending.”570 The second award, in April, went to the National Science Foundation, the

National Aeronautics and Space Administration and the Office of Naval Research for spending about $500,000 over a seven-year period on Hutchinson’s research.571 In granting the award, Proxmire had relied on research by his legislative assistant Morton

Schwartz, who read reports prepared by Hutchinson under grants from NASA. The research revealed Hutchinson had received grants from other agencies.572 Schwartz helped Proxmire to prepare a speech for Senate and an advance press release which was sent to 275 news media members around the United States and abroad.573

When Schwartz told Hutchinson about the award, before the presentation, he protested that the release was an “inaccurate and incomplete summary of his research,” but Schwartz insisted that the summary was fair.574

Proxmire concluded his presentation with the words:

The funding of this nonsense makes me almost angry enough to scream and kick or even clench my jaw. It seems to me it is outrageous. . . . Dr. Huchinson’s studies

569 Id.

570 Id. at 114.

571 Id.

572 Id. at 116. These were the National Institute for Mental Health (NIMH), the National Institute for Drug Abuse (NIDA), the National Science Foundation (NSF) and the Office of Naval Research (ONR). See Hutchinson v. Proxmire, 431 F. Supp. 1311, 1315 (1977).

573 Hutchinson v. Proxmiere, supra 443 U.S. 111, 116 (1979).

574 Id.

372

should make the taxpayers as well as his monkeys grind their teeth. In fact, the good doctor has made a fortune from his monkeys and in the process made a monkey out of the American taxpayer. . . . It is time for the Federal Government to get out of this ‘monkey business.’ In view of the transparent worthlessness of Hutchinson’s study of jaw-grinding and biting by angry or hard-drinking monkeys, it is time we put a stop to the bite Hutchinson and the bureaucrats who fund him have been taking of the taxpayer.575

Thereafter in May, 1975 Proxmire repeated the charge against Hutchinson in a newsletter to approximately 100,000 people including constituents of Wisconsin or other states and appeared on a television interview where he referred to Hutchinson’s research.

Finally, in a newsletter in February 1976 he also referred to the award.576 After the award was made, Schwartz, acting for Proxmire, called several of Hutchinson’s sponsors indicating that he was not trying to dissuade them from funding the research but wanted to discuss the subject. Hutchinson contended that the calls were intended to persuade the agencies to end his grants.

Hutchinson brought a libel action against Proxmire and Schwartz in April 1976, claiming that the award and its nationwide publication libeled him and damaged his professional and academic standing and his contractual relations.577 He also noted the publications had caused him “mental anguish and physical illness and pain.”578

The U.S. District Court for the Western District of Wisconsin granted summary judgment to Proxmire on the basis that his speech and press release were protected under the constitutional protection provided for speech made in either House of Congress and

575 Id. See 121 CONG. REC. 10803 (1975).

576 Hutchinson, supra at 117. Among the words used were, “The NSF, the Space Agency, and the Office of Naval Research won the ‘Golden Fleece’ for spending jointly $500,000 to determine why monkeys clench their jaws.”

577 Id. at 114.

578 Id. at 118.

373 because the Court found that Proxmire was a public figure and actual malice had not been proven.

The district court referred to the Speech and Debate clause of the federal

Constitution which provided that

The Senators and Representatives . . . for any Speech or Debate in either House, . . . shall not be questioned in any other Place.579

The court held that the Speech and Debate clause of the federal Constitution provided absolute immunity for Proxmire’s investigation of the funding for Hutchinson’s research, Proxmire’s speech in the Senate and the press release that his office sent out.580

All these communications, the court held, fell within the “informing function” of

Congress.581

However, the court also found that Hutchinson was a public figure for purposes of liability.582

Given Dr. Hutchinson’s long involvement with publicly-funded research, his active solicitation of federal and state grants, the local press coverage of his research, and the public interest in the expenditure of public funds on the precise activities in which he voluntarily participated, the court concludes that he is a public figure for the purpose of this suit. As he acknowledged in his deposition, ‘certainly, any expenditure of public funds is a matter of public interest.583

The district court held that neither a failure to investigate nor unfair editing and summarizing could substantiate a finding of actual malice and found that there was no

579 U.S. CONST. Art. I § 6(1).

580 Hutchinson v. Proxmire and Schwartz, 431 F. Supp. 1311, 1325 (U.S. Dist. Ct., 1977).

581 Id.

582 Id. at 1327.

583 Id.

374 evidence that Proxmire and Schwartz had acted with actual malice.584 The court held that since the New York Times actual malice could not be proved, the court was mandated to

make summary judgment585 in favor of Proxmire.586

The district court noted that the protection under the Debate and Speech clause was

not limited to words spoken in debate but also included reports, resolutions or any other

written document presented in Congress.587 Thus, the Supreme Court had held that

activities within a “legitimate legislative sphere” were covered by the speech and debate

clause and not subject to interference.588 The court held that since Proxmire served on subcommittees of the Senate Committee on Appropriations that were required to review the budgets of various agencies, his inquiries about how the money of these agencies was spent was privileged as “legitimate legislative activity.”589 The Court of Appeal affirmed

the lower court’s decision.590

584 Id. at 1329. At any rate, the trial court held, whether the laws of Wisconsin or District of Columbia were relied on, the state law determined that, even if Hutchinson were a private person, Proxmire was entitled to a grant of summary judgment.

585 A Summary Judgment is “a court order ruling that no factual issues remain to be tried and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial. A summary judgment is based upon a motion by one of the parties that contends that all necessary factual issues are settled or [the issues are] so one-sided they need not be tried.” See DICTIONARY.LAW.COM, http://dictionary.law.com/definition.asp?selected=2063&bold=%7C%7C%7C%7C (last visited July 11, 2006).

586 Hutchinson v. Proxmire and Schwartz, 431 F. Supp., supra at 1329. Id. See Meeropol v. Nizer, 381 F. Supp. 29, 32, fn. 1 (S.D.N.Y.), pet. denied, 508 F.2d 837 (2d Cir. 1974). A summary judgment is a judgment made by the judge without involving a jury.

587 Hutchinson v. Proxmire, 431 F. Supp. at 1320, citing Kilborn v. Thompson, 103 U.S. 168, 204 (1880).

588 Hutchinson v. Proxmire, 431 F. Supp. at 1321, quoting Eastland v. United States Servicemen’s Fund, 421 U.S. 306, 314 (1973).

589 Hutchinson v. Proxmire, 431 F. Supp. at 1321–1322.

590 Hutchinson v. Proxmire, 579 F.2d 1027, 1034. The Court of Appeal for the Seventh Circuit held that, although follow up calls and television and radio interviews were not protected by the state law, they were protected by the First Amendment. The Court of Appeal noted that Hutchinson had actively sought and attained federal grants for his research and published several articles, and several stories had been

375

The Supreme Court, in reversing the lower courts’ decision, looked at three issues:

• The scope of the Speech or Debate Clause; • First Amendment claims; • The appropriateness of the summary judgment.

The Supreme Court said the Speech and Debate Clause of the Constitution was rooted in the struggle between the English House of Commons and the Tudor and Stuart monarchies, a time when the crown had used civil and criminal means to intimidate legislators.591 However, the Court held, the clause should be applied in terms of the

American experience and Constitution.592 In England, Parliament was sovereign, but in

the American context, the privilege was intended “to preserve legislative independence,

not supremacy.”593

Thus, Chief Justice Warren E. Burger said of the Speech or Debate Clause,

speaking for the Court,

the heart of the Clause is speech or debate. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the

published in the local media about his research. Thus, the Court held he had access to the media to rebut the defamatory false statements and was a public figure in relation to his work. Id. at 1034–1035.

591 Hutchinson v. Proxmire, 443 U.S. 111, 126 (1979). See M. M. KNAPPEN, CONSTITUTIONAL AND LEGAL HISTORY OF ENGLAND 316 (Fred B. Rothman & Co., Littleton, Colorado, 1987)(1942). Henry VII (1455– 1509) by strengthening his personal financial base gained independence from Parliament, effectively breaking the power of the nobility. Id. Later, the Henry VIII (1509–1547) also broke down the power of the Roman Catholic church and clergy when the Roman clergy tried to block his divorce from Catherine of Aragon to marry Anne Boleyn, one of Catherine’s attendants. Id. at 323. Ultimately, by 1540 the monarch in England had emerged as sovereign and wielded absolute power. Id. at 329. See Chapter 2, 2.1 for the discussion on the Stuart Kings James I and Charles I and their absolutist tendency. Ultimately, the Charles I was did not summon Parliament for 11 years between 1629–1640 which led to the Cromwellian war and, ultimately, the 1688 Bill of Rights declaring the supremacy of parliament (See Chapter 2, part I).

592 Hutchinson v. Proxmire, 443 U.S. 111, 126 (1979).

593 Id. at 126, (quoting United States v. Brewster, 408 U.S. 501, 508 (1972)). See also Chapter 2, Part I, for a discussion on the supremacy of the sovereignty of parliament in England.

376

jurisdiction of either House . . . the courts have extended the privilege to matters beyond pure speech or debate in either House, but ‘only when necessary to prevent indirect impairment of such deliberations.’594

Burger said that there was no authority for assuming an intention by the drafters of the Constitution to create an “absolute privilege from liability or suit for defamatory statements made outside the Chamber.”595 To guard against the abuse of the privilege, he said, the clause had been written in terms that prevented the shield from extending beyond “what is necessary to preserve the integrity of the legislative process.”596 Thus, a member could be liable for republishing defamatory statements originally made in either

House.597 Thus, while a Senate speech made by Proxmire was “wholly immune,” since the newsletters and press release were not “essential to the deliberations of the Senate” and not a part of the deliberative process, they were not protected by privilege.598

The Chief Justice then turned to the First Amendment issue and retraced the decisions that had focused on determining the categories of people who fell within the

New York Times v. Sullivan rule.599 He noted the description in Gertz of public figures as persons who became public figures either because of their “prominence in the affairs of

594 Hutchinson, supra at 126–127. (quoting Gravel v. United States, 408 U.S. 606, 625 (1972)) (quoting United States v. Doe, 455 F. 2d 753, 760 (CA1 1972)) [emphasis Burger’s].

595 Hutchinson, supra. at 127 (quoting Brewster, 408 U.S. 501, 507).

596 Hutchinson, supra at 127 (quoting from Brewster, 408 U.S. 501, 517).

597 Hutchinson, supra at 127–128. See King v. Lord Abingdon, 1 Esp. 225, 170 E.R. 337, where Lord Chief Justice Kenyon rejected Abingdon’s argument that parliamentary privilege protected him from suit for republication of a speech made in House of Lords. Id. at 129. See also Gravel v. United States, 408 U.S. 606, 622–626 where the Supreme Court recognized the doctrine denying immunity for republication; Doe v. McMillan, 412 U.S. at 314–315.

598 Hutchinson, supra at 130. The Court rejected Proxmire’s arguments that the press releases and newsletters allowed him to have a significant effect on the other senators. Id. at 131.

599 Id. at 134.

377 society” or their voluntary acts in thrusting themselves into the midst of a controversy to influence its outcome.600

The Court disagreed with the lower court’s position that Hutchinson was a limited vortex public person as defined in Gertz.601 Neither the fact that he had successfully applied for federal funds, nor his access to the media to respond to the Golden Fleece award, which came after the publication of the award, made him a public person, Burger said.602 Burger noted that information on Hutchinson’s research had always been read only by a small category of professionals interested in research on human behavior, and had only become a public controversy after the award was made.603 He also said that

Hutchinson had not thrust himself or his views into a public controversy to influence others. Proxmire had pointed to concern about public expenditure which was a concern shared about most public expenditures and not sufficient to transform Hutchinson into a public figure.604

Hutchinson had never assumed a role of public prominence in the broad question of expenditures, and his applications for federal grants and publications in professional journals had not invited public attention and comment to meet the requirement of a public figure.605 Finally, the Court held, Hutchinson’s access to the media had been limited to

600 Id.

601 Id. Gertz, supra, at 345–346. See also, supra notes 520–526 generally.

602 Id. at 134–135.

603 Id. at 135.

604 Id. If this were the case, the Court was concerned, anyone who benefited from public funds would become a public figure, leading to an improper balance between the competing interests. Id. See Time v. Firestone, supra. at 456.

605 Hutchinson v. Proxmire, supra at 136.

378 responding to the announcement of the Golden Fleece Award, rather than regular or continuing access.606 Thus, the Court reversed the lower court’s decision and remanded the case to the Court of Appeal to proceed consistently with the Supreme Court’s decision.607

4.10 Damages in Libel Actions

In the 1985 decision Dun & Bradstreet, Inc. v. Greenmoss Builders Inc,608 the

Supreme Court held in a 5-4 majority decision that the rule in Gertz that prohibited awards of presumed and punitive damages in libel cases without showing the defendant acted with actual malice only applied in cases involving public persons or private persons involved in public controversies.

In Dun & Bradstreet, a credit reporting agency by that name sent a report on July

26, 1976 about Greenmoss Builders, a construction contractor, to five of its clients.609

Dun & Bradstreet—a credit reporting agency that provided subscribers with confidential, financial information about businesses—indicated in the report that Greenmoss had filed a voluntary petition for bankruptcy.610 The false report misrepresented the assets held by

606 Id. at 136.

607 Id. Justice Brennan dissented, disagreeing with the Court’s decision that Proxmire’s news releases fell outside First Amendment protection of speech-or-debate immunity because, he said, “public criticism by legislators of unnecessary government expenditures, whatever its form, is a legislative act shielded by the Speech or Debate Clause.” Id.

608 472 U.S. 749 (1985).

609 Id. at 751.

610 Id.

379

Greenmoss and led to the denial of a bank loan to Greenmoss’ president by one of Dun &

Bradstreet’s subscriber banks.611

Greenmoss’ president contacted Dun & Bradstreet, told them that the report was erroneous and asked them to correct it. He also asked for the names of the firms that had received the report so he could call them and assure them that his company was solvent.

Dun & Bradstreet promised to investigate the matter but did not reveal the names of persons who received the report.612

After an internal investigation, Dun & Bradstreet realized the report was false and issued a correction to the five companies on August 3, 1976.613 The notice stated that one of Greenmoss’ ex-employees had declared bankruptcy, but the company, itself, was solvent.614 Greenmoss was, however, dissatisfied with the notice and asked, again, for a list of the subscribers who had been issued the original notice. Dun & Bradstreet refused to give Greenmoss the list.615

Greenmoss sued for libel alleging that the false report injured its reputation. The company sought compensatory and punitive damages.616 During the trial it emerged that the error was caused when a 17-year-old high school employee of Dun & Bradstreet erroneously attributed to Greenmoss a bankruptcy filing made by its ex-employee.617 Dun

611 Id. Neither the Supreme Court decision nor the decision of the Supreme Court of Vermont reveals the name of the president.

612 Id.

613 Id. at 751–752.

614 Id. at 752.

615 Id. The case does not indicate the reason for Greenmoss’ dissatisfaction.

616 Id.

617 Id.

380

& Bradstreet usually checked the accuracy of these reports with the businesses themselves, its representative at the trial said, but did not do so in the case of

Greenmoss.618

The jury returned a verdict for Greenmoss and awarded the company $50,000 in compensatory or presumed damages and $300,000 in punitive damages.619 Dun &

Bradstreet requested a new trial citing the fact that judge’s direction to the jury allowed an award of presumed and punitive damages without proving actual malice and that in

Gertz the Supreme Court had held that presumed and punitive damages could only be recovered in libel actions where actual malice was shown.620 The trial court, allowing the new trial on the basis that it had incorrectly charged the jury to use the Gertz standards, said it doubted that the Gertz position applied in the case of non-media publications.621

The Vermont Supreme Court reversed the lower court’s decision to allow a new trial.622 The Court noted that in some instances the distinction between media and non- media defendants was hard to determine, but in the case of Dun & Bradstreet there was no difficulty.623 He noted that Dun & Bradstreet was a credit reporting agency that sold financial information to a limited number of subscribers who paid “substantial” fees for the information. The court held that credit reporting agencies were not “the type of media

618 Id.

619 Id.

620 Id. Gertz, supra at 349.

621 Dun & Bradstreet v. Greenmoss, supra at 753. See also Greenmoss v. Dun & Bradstreet, 143 Vt. 66, 69 (1983).

622 Greenmoss v. Dun & Bradstreet, 143 Vt. 66 (1983).

623 Id. at 73.

381 worthy of First Amendment protection as contemplated by New York Times and its progeny.”624 The Vermont Supreme Court distinguished between a publication disseminating information to the general public and one that provided “specialized information to a selective finite audience.”625 The court held the balance between protecting freedom of speech and reputation should be “struck in favor of the private plaintiff defamed by a non-media defendant.”626 This was because there was “no threat to the free and robust debate of public issues; there [was] no potential interference with a meaningful dialogue of ideas concerning self-government; and there [was] no threat of liability causing a reaction of self censorship by the press” as had existed in New York

Times and other cases where the U.S. Supreme Court had held there was a need for greater scrutiny. Thus, the court overturned the lower court’s decision, holding there was no need for a new trial and the jury award should be allowed. The Court of Appeal held that the media protections outlined in Gertz did not apply to non-media defamation cases.627

The United States Supreme Court in a plurality upheld the lower court decision to reinstate the jury award. However, the U.S. Supreme Court based its decision on different factors than the Vermont Supreme Court. The U.S. Supreme Court found that the Gertz prohibition against recovering punitive and presumed damages without proving actual malice did not apply in the case of actions brought by private persons for libelous statements in which the public had no interest.

624 Id.

625 Id.

626 Id. at 73–74.

627 Dun & Bradstreet(1984), supra at 753.

382

Justice Powell, in delivering the plurality decision, said that in Gertz the Court had held that the fact that publication related to a public issue did not automatically “entitle” the defendant in a libel trial to protection under New York Times v. Sullivan.628 Nor was the New York Times protection justified solely in cases involving media liability, Powell said.629 The defense rested, Powell said, on the need to accommodate the First

Amendment concerns and the “limited state interest present in the context of private actions brought by public persons” for libel.630 Thus, Powell said, because private persons had not voluntarily exposed themselves to the risk of injury from defamatory statements and they lacked access to opportunities to rebut defamatory statements, the

Court had found in Gertz that the competing interests were different where the plaintiff was a private person. He said that the state had a “strong and legitimate . . . interest in compensating private individuals for injury to reputation.”631 Powell noted that, although in Gertz the Court had held that presumed and punitive damages could not be recovered without a showing of “actual malice,” it had not indicated that “actual malice” would be required in the case of all types of speech.632

Powell said that where speech was not related to an issue of public concern, the state’s interest in “compensating private individuals” for injury to their reputation against the First Amendment interest in protecting” speech was “strong and legitimate.”633 He

628 Id. at 756, citing Gertz, supra at 343.

629 Dun & Bradstreet, supra at 756.

630 Id, quoting Gertz, supra at 343.

631 Dun & Bradstreet, supra at 756, quoting Gertz, supra at 345, 348–349.

632 Dun & Bradstreet, supra at 757.

633 Id., quoting Gertz, supra at 348.

383 noted Justice Potter Stewart said in his concurring opinion in Rosenblatt v. Baer634 that the individual’s right to protect his good name

[R]eflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. . . .635

Justice Powell noted in Dun & Bradstreet that the Supreme Court had found in past decisions that all speech did not have equal protection under the First Amendment636 but speech concerning matters of public concern had special protection.637 This was because,

Powell said, the First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”638

Because speech that concerned public affairs went to the essence of self government,639 the Supreme Court had held, it occupied the “highest rung of the hierarchy of First

Amendment values” and had special protection.640

On the other hand, Powell noted, speech about matters of “purely private concern” did not warrant the same level of First Amendment protection.641 In these cases, where

634 383 U.S. 75, 92 (1966) (concurring opinion).

635 Id. at 92.

636 Dun & Bradstreet, supra at 758, citing First National Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978), citing Thornhill v. Alabama, 310 U.S. 88, 101 (1940).

637 Dun & Bradstreet, supra at 758–759.

638 Dun & Bradstreet, supra at 759, quoting New York Times v. Sullivan 376 U.S. 254, 269 (1964) (quoting Roth v. United States, 354 U.S. 476, 484 (1957)).

639 Dun & Bradstreet, supra at 759, citing Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964).

640 Dun & Bradstreet, supra at 759. citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982); Carey v. Brown, 447 U.S. 455, 467 (1980).

641 Dun & Bradstreet, supra at 760.

384 there was no threat to “free and robust debate of public issues; there [was] no potential interference with a meaningful dialogue of ideas concerning self-government; and there

[was] no threat of liability causing a reaction of self-censorship by the press,” the role of the Constitution in limiting speech was “far more limited,” Powell said.642 In these circumstances there was no requirement for special protection of speech. Thus, in the case of libels against private persons, Justice Powell noted the First Amendment interest is less important than that identified in Gertz.643 The Court held that the facts in Dun &

Bradstreet did not involve the “First Amendment concerns with which the Supreme

Court of the United States [had] been struggling.”644

Powell acknowledged that the Court had held there was no “substantial” state interest in awarding presumed and punitive damages in the case of speech which was “at the core of First Amendment concern.”645 However, he said, there was a “substantial” interest in providing remedies in cases involving private persons. He said that this was because under the common-law rules of libel law it was often “impossible” to prove actual damage in many cases where it was clear from the “character of the defamatory words” and “the circumstances of the publication” that serious harm had been caused by the libel.646 Thus, for centuries, the courts had allowed juries to presume damage had occurred from the “defamatory utterances” and publications.647 Because of the reduction

642 Id.

643 Id. at 757.

644 Id. at 760, quoting Harley-Davidson Motorsports, Inc. v. Markley, 279 Ore. 361, 366.

645 Dun & Bradstreet, supra at 760, citing Gertz, supra at 349.

646 th Dun & Bradstreet, supra at 760, citing W. PROSSER, LAW OF TORTS 765, § 112 (4 ed., 1971).

647 Dun & Bradstreet, supra at 760–761, citing RESTATEMENT OF TORTS § 568, Comment b, 162 (1938).

385 in the constitutional value of speech that involved matters of non-public concern, Powell held that “the state interest adequately support[ed] awards of presumed and punitive damages” in such cases without a showing of actual malice.648

The Court held that, based on its content, form and context, Dun & Bradstreet’s report did not concern a public issue.649 It was speech “solely in the interest of the speaker and its specific business audience,” Powell said.650 Thus, the Court held that

there was no prohibition against permitting presumed and punitive damages in

defamation cases involving issues not of public interest.651 The Court affirmed the Court

of Appeal’s decision.652

Justices Sandra Day O’Connor and William Rehnquist joined Powell’s opinion;

Chief Justice Warren Burger and Justice Byron White wrote concurrences; and justices

William J. Brennan, Thurgood Marshall, Harry Blackmun and John Paul Stevens dissented.

648 Dun & Bradstreet, supra at 761.

649 Id

650 Id. at 762. Powell noted that there was “no credible argument that this type of credit reporting requires special protection to ensure that ‘debate on public issues [will] be uninhibited, robust, and wide-open.” Id., quoting New York Times v. Sullivan, supra at 270. He also noted that speech such as credit reporting, like advertising, was “hardy and unlikely to be deterred by incidental state regulation solely motivated by the desire for profit” which did not enjoy the same protection as speech in the public interest, citing Virginia Pharmacy Board v. Virginia Citizens Consumer Council Inc., 425 U.S. 771–772. He noted that the speech in Dun & Bradstreet would have been more easily verified than other speech that deserved protection. Dun & Bradstreet, supra at 762. At any rate, because the motive of the speech was profit, there was a “powerful incentive” to Dun & Bradstreet to be accurate in its report, according to Powell. Id.

651 Dun & Bradstreet, supra at 763.

652 Id.

386

Justice White suggested, in his concurrence, that in both New York Times and

Gertz, the Supreme Court “engaged in overkill.”653 In the first case, the Court “escalated the plaintiff’s burden of proof to an almost impossible level” in the case of public-official libel actions.654 In the case of Gertz, the Court had removed common law remedies from private-libel plaintiffs without a finding of actual malice.655 He said he believed the common law rules should have been retained in the case where the plaintiff was not a public official or figure (see table 4-4).656 He said in Sullivan and Gertz, the Supreme

Court “undervalued the reputational interest at stake.”657

Table 4-4. Votes in the Supreme Court decision in Dun & Bradstreet v. Greenmoss New York Times Retain common New York Times Actual Malice law standard in all Actual Malice shouldn’t apply to cases and keep should apply in all private awards in cases persons/private reasonable bounds issues Affirm Vt. Powell (plurality) Burger (concur) Supreme Court Day O’Connor White (concur) Decision and re-instate jury Rehnquist damage award Reverse Vt. Brennan,.Marshal Supreme Court Blackmun, Stevens Decision and allow a new trial

653 Id. at 770.

654 Id. at 771. He suggested that a better means of protecting speech in cases involving public persons would have been to limit the amount of presumed and punitive damages they could recover.

655 Id. at 771.

656 Id. at 772.

657 Id. He said, even if he accepted the premise in Gertz that the press needed protection in private libel suits, “there was no need to modify the common-law requirements for establishing liability and to increase the burden of proof” to be satisfied to allow nominal damages. Id.

387

For White, under the New York Times standard, the plaintiff’s burden could only be met by an expensive, “long and complicated” period of discovery “involving detailed investigation of the workings of the press, how a news story is developed, and the state of mind of the reporter and publisher.”658 He noted that the press would be “no worse off” if, instead of imposing the New York Times standard, the common law rules for libel continued to apply and the jury was directed to keep its awards within bounds that would not threaten the press.659 This solution served both parties since, he said, libel plaintiffs are “most likely” more interested in clearing their names than in obtaining damages.660

He said,

the necessary breathing room for speakers can be ensured by limitations on recoverable damages; it does not also require depriving many public figures of any room to vindicate their reputations sullied by false statements of fact.661

White noted that, at any rate, if the press was conforming to “decent journalistic standards” it should not be “intimidated” by the threat of libel suits.662

White concurred with Powell’s decision. He said that in Dun & Bradstreet the defamatory statement was not one of public concern and should not be subject to the actual malice standard in order to allow a recovery of presumed and punitive damages.663

658 Id. at 774.

659 Id. at 771.

660 Id.

661 Id. at 772.

662 Id. at 774.

663 Id.

388

Chief Justice Burger, while agreeing with Powell that the Gertz decision that private persons had to prove actual malice to recover presumed and punitive damages was limited to situations involving matters of public concern, agreed with Justice White that

Gertz decision was “ill-conceived” and should be “re-examined.”664

Justice William Brennan was joined in his dissent by justices Thurgood Marshall,

Harry Blackmun and John Paul Stevens. Brennan said that states had a responsibility in libel law as in other areas, to “ensure adequate space for protected expression” and, the

Supreme Court had held that, restraints on speech should be “narrowly tailored to advance a legitimate government interest.”665 Thus, he said, even in purely private libel actions, “the First Amendment should be construed to limit the imposition of punitive damages to those situations where actual malice” is proved.666 He argued that the Dun &

Bradstreet decision was a departure from Gertz which, he said, was intended to apply to both public and private person libel cases.667

Further, Brennan said, the members of the Court who affirmed the damage award and advocated that presumed and punitive damages could be awarded in the case of discussion on purely private matters about private plaintiffs in Dun & Bradstreet provided no guidance on what speech would enjoy protection from such damages as a

“matter of public concern.”668 He contended that the Supreme Court had “consistently” rejected the position that speech concerning economic matters had diminished

664 Id. at 774.

665 Id. at 778.

666 Id. at 779.

667 Id. at 785–786.

668 Id. at 786–787.

389 protection.669 This was so even where the speech did not implicate “the central meaning of the First Amendment,” he said.670 Brennan said the commercial nature of the speech in

Dun & Bradstreet was important to the constitutional analysis in implicating the strong state interest in “protecting consumers and regulating commercial transactions.”671

Additionally, he said, the states’ interest in regulating transactions was served by allowing compensatory damages where fault was shown, there was no need to impose punitive and presumed damages.672 Thus, he said, while Greenmoss should be allowed to recover any compensatory damages for actual damage the company could prove resulted from the report, it should only be allowed to recover presumed or punitive damages on a showing of actual malice.673

Thus, in the United States, public persons must prove actual malice before recovering punitive damages in a libel action. In the case of private persons the standard of proof depends on the category of speech. Where the speech is related to a public issue, private persons must prove actual malice before they can recover presumed or punitive damages in a libel action. However, where the speech relates to a private matter, private persons need only prove negligence to recover presumed or punitive damages.

Notwithstanding the high standard of proof that public persons in the United States have to face in bringing libel actions, some public persons have won large awards. In

669 Id. at 787. See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501–502 (1952), American Federation of Labor v. Swing, 312 U.S. 321, 325–326 (1941); Thornhill v. Alabama, 310 U.S. 88, 101–103 (1940), Abood v. Detroit Board of Education, 431 U.S., at 231–232.

670 Dun & Bradstreet, supra at 787.

671 Id. at 795, quoting Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 460 (1978).

672 Id.

673 Id. at 796.

390

1988 a Pittsburgh judge won compensatory damages amounting to $210,000 and punitive damages of $2 million for a libelous publication that intimated that he had conspired in a plot to forge a will.674 In awarding damages a Superior Court of Pennsylvania found that

Judge Richard DiSalle and his wife Joan DiSalle were public persons, but the Pittsburgh

Post-Gazette had acted with actual malice in its September 10, 1979 article.

In DiSalle v. P.G. Publishing Co., the article in question was triggered when Robert

Ciaffoni called the assistant city editor of the Pittsburgh Post to inform him of a feud over his deceased father’s estate. A reporter, Tom Porter, was sent to investigate the story.675 The principal source for his story was Robert Ciaffoni who alleged that his father’s will was not authentic. Ciaffoni alleged that Richard DiSalle, an attorney-at-law in Pittsburgh, had conspired with Ciaffoni’s sister, Elizabeth Cowden, to produce an allegedly fraudulent will. Yet 6 months before Ciaffoni contacted the newspaper a judge had upheld the will’s validity.676 As Porter proceeded to investigate his story, the editor asked for more information on a motive for DiSalle to involve himself in the fraudulent will. Porter included evidence from a deposition taken from Ciaffoni during the proceeding of contesting the will. When this evidence was reduced into one sentence, it left the impression that DiSalle had an intimate relationship with Cowden.677 At the time

674 DiSalle v. P.G. Publishing Co., 375 Pa. Super. 510 (1988) appeal denied, 557 A.2d 724 (Pa. 1989), cert. denied, 492 U.S. 906.

675 Id. at 515.

676 Id.

677 Id. at 516.

391 of the publication DiSalle was judge on the Pennsylvania Commonwealth Court

Bench.678

In a libel action the jury awarded DiSalle $200,000 in compensatory and $2 million in punitive damages. On appeal a Superior court of Pennsylvania affirmed the award. The

Court found that DiSalle was a public person so that he had to show actual malice to be successful in the lawsuit.679 The court, however, held that the trial court had not erred in holding that the newspaper acted with actual malice and in rejecting the defense of neutral reportage.680 The court noted that the newspaper had not objected to the compensatory damage award in a “timely manner” and so it was unable to interfere with the award.681 The Superior Court also found that neither the trial court nor the Superior

Court had the authority to “declare an award excessive” because it would have awarded a lesser sum. A jury’s award could not be reduced without a finding of “abuse of discretion,” the Superior Court held.682

In relation to the award of punitive damages, Judge Vincent Cirillo, the president judge of a Superior Court of Pennsylvania, who spoke on behalf of the court, noted that

678 Id. at 515.

679 Id. at 517.

680 Id. at 545. Some state laws provide a privilege where a defamatory accusatory statement relates to an existing public controversy and has significant informational value for the public regardless of the truth. Because the making of the statement “sheds valuable light on the character of the controversy,” once the report accurately relates the accusation and makes it clear that the publisher did not agree with the accusation, and provides additional information such as the response of the defamed person where practical, to allow readers to draw their own conclusion the publication will be protected by the neutral reportage privilege. The U.S. Supreme Court has not held that the First Amendment requires a neutral reportage. The Court declined to answer the question in Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 660 (1989).

681 Id. at 546.

682 DiSalle, supra at 567, quoting Sulecki v. Southeast National Bank, 358 Pa. Super. At 138.

392 the newspaper had argued that the trial court erred in awarding punitive damages and in not limiting the amount of punitive damages awarded.683 The newspaper’s lawyers had argued that the trial court should not have left the issue of punitive damages to the jury.684 Cirillo noted, however, that in leaving the issue of whether punitive damages could be awarded to the jury, the trial judge had directed that punitive damages could only be awarded where both actual malice and common law malice were “established by clear and convincing evidence.” Actual malice involved either knowledge of falsity or reckless disregard for the truth.685 Common law malice, in establishing punitive damages, involved “‘conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others,’” and “‘conduct’” that was “‘malicious,’”

“‘wanton,’” “‘reckless,’” “‘willful,’” or “‘oppressive.’”686 The trial court judge had also held that punitive damages could be awarded “‘when the act [of publishing the defamatory statement was] done with reckless indifference, as well as bad motive,’”

Cirillo said.687

However, the Post Gazette argued that punitive damages should only be awarded when there was evidence of actual knowledge of falsity and actual intent to harm.688 The newspaper’s lawyers argued that allowing the jury to consider “reckless disregard of

683 Id. at 546–547.

684 Id. at 547.

685 Id. New York Times v. Sullivan, supra at 278–279.

686 DiSalle, supra at 547, quoting Feld v. Merriam, 506 Pa. 383, 485 (adopting Restatement (Second) of Torts § 908(2).

687 DiSalle, supra at 547, quoting Delahanty v. First National Bank, N.A., 318 Pa. Super. 90, 130 (1983).

688 DiSalle, supra at 547–548.

393 falsity” and “reckless indifference to the plaintiff’s rights,” in determining whether an award of punitive damages could be made, did not “sufficiently protect robust reporting.”689 Judge Cirillo, in the Superior Court rejected what he called the “actualness” standard, finding no basis for it in law or logic.690

The judge noted that the United States Supreme Court had not prohibited the award of punitive damages to public officials in defamation actions. He noted that in Gertz, which involved a private person implicated in a public issue, the Court had held punitive damages were prohibited without a finding of actual malice, knowledge of falsity or reckless disregard for the truth.691 This, he noted was justified by the fact that states had a

“legitimate … interest in compensating private individuals for injury to reputation” but

“punitive damages” were “wholly irrelevant to [this] state interest” and the jury discretion to award [such] damages unnecessarily exacerbates the danger of media censorship.”692

Cirillo noted that in Dun & Bradstreet the Court had decided that, in the case of a private person libeled in relation to speech on private matters, there was no requirement to find actual malice before making an award of punitive damages.693 Cirillo said the distinction between Gertz and Dun & Bradstreet was the fact that Gertz involved a private plaintiff libeled in relation to a matter of public interest, while in Dun &

Bradstreet, the plaintiff was a private person suing for a matter of only private interest.694

689 Id. at 548. Emphasis Cirillo’s.

690 Id.

691 Id. Gertz, supra at 349.

692 DiSalle, supra at 548, quoting Gertz, supra at 348–350.

693 DiSalle, supra at 548. See Dun & Bradstreet, supra at 761.

694 DiSalle, supra at 549.

394

Since the only “relevant factual distinction” between DiSalle and Gertz was the fact that in the instant case the plaintiff was a public figure, Cirillo concluded that the same standard applied in Gertz would apply in DiSalle.695

Cirillo noted that the Pennsylvania Superior Court had held in 1984 that “courts in libel cases should be guided by the same general rules regarding damages that govern other types of tort recovery.”696 Therefore, the judge saw “no reason to abandon the traditional requirement for a showing of actual or apparent ill will toward a plaintiff before allowing punitive damages.”697 The Court held that the lower court had been correct in saying that before allowing a recovery of punitive damages in the case of a public person the jury had to make a finding of both common law and actual malice.698

Cirillo said that, in instructing the jury that it should make a finding of both actual and common law malice before awarding punitive damages, the trial court judge had discharged his constitutional obligation to limit the amount of punitive damages awarded to prevent an intrusion on the First Amendment.699 Cirillo also said that the jury had a responsibility to determine damages “without a yardstick subject only to the reduction by the court if deemed excessive under the circumstances of the particular case.”700 Thus,

Cirillo found, the judge did not have to put the issue of the excessiveness of a damage

695 Id. at 549–550.

696 Id. at 559, quoting Aggriss v. Roadway Express, Inc., 334 Pa. Super. 295, 329 (1984).

697 DiSalle, supra at 559.

698 Id.

699 Id. at 563.

700 Id. at 564, quoting International Electronics Co. v. N.S.T. Metal Products Co., Inc., 370 Pa. 213, 225 (1952).

395 award to the jury. The issue was left to the trial court and to appellate courts for review.701

In instructing the jurors in the DiSalle trial, the trial judge had said that “[t]he amount you assess as punitive damages need not bear any relation to the amount you choose to award as compensatory damages.”702 Cirillo noted in the Superior Court of

Pennsylvania that, under Pennsylvania law, punitive damage awards were required to bear a reasonable relationship to the compensatory damages awarded.703 However, the

Superior Court could not consider whether the trial court had erred in its direction to the jury on this issue, since the newspaper’s lawyers had not objected at the time the error was made, thereby waiving their right to appeal.704

The court noted that the trial court had the discretion to decide to grant a new trial or to remit the damages on the ground of excessiveness and the trial court’s exercise of its discretion “will not be interfered with on appeal unless the record disclose[d] a clear abuse thereof.”705 However, Cirillo noted that the trial court could not “declare an award excessive simply because it might have awarded a lesser amount sitting in place of the jury.”706 Similarly, the judge said, the Superior Court could not find “an abuse of

701 DiSalle, supra at 565.

702 Id. at 566.

703 Id. at 565.

704 Id. at 566.

705 Id. at 567, quoting Corabi v. Curtis Publishing Co., 441 Pa. 432, 472–473 (1971).

706 DiSalle, supra at 567, quoting Sulecki v. Southeast National Bank, 358 Pa. Super. At 138.

396 discretion on the part of the trial judge simply because we would have awarded a different amount.”707

In charging the jury, Cirillo noted, the trial judge had told them to look at four factors in determining the amount of punitive damages to be awarded:

• the character of the defendant’s acts; • the nature and extent of the harm to the plaintiff which the defendant caused or intended to cause; • the wealth of the defendant insofar as it is relevant in fixing an amount which will punish it and deter it and others from similar conduct in the future . . .;708 • “[t]he amount of punitive damages awarded must not be the result of passion or prejudice against the Defendant on the part of the jury. The sole purpose of punitive damages and the only purpose for which [the jury could] make an award and set an award of punitive damages is to punish the Defendant’s outrageous conduct and to deter the Defendant and others from the commission of similar acts.”709

Judge Cirillo said that the judge’s jury instructions had been correct.710 He noted that the jury had determined that the article was false and the Post-Gazette published with actual malice. He also said the jury had found the publication had been made with, at least, reckless indifference to the rights of DiSalle, thus, finding that the publication was made with common law malice. After this finding the trial judge observed that

[t]he Defendant’s actions evidenced a particular disregard for its responsibilties as a major news gathering and conveying source. Far from attempting to report dispassionately on a dispute which had ripened into a protract[ed] legal proceeding, the purpose of the Post-Gazette was to sensationalize this bitter family controversy by lurid suggestions of fraud and sexual impropriety by a man whose reputation was above reproach. It is not simply that the article prepared by the Post-Gazette was replete with inaccuracies; it was more that the editors in charge of the preparation of the article found it necessary to insert an unfounded and sensational element to fill a “hole” in the story. Rather than reporting accurately that this

707 DiSalle, supra at 567, citing Walder v. Lobel, 339 Pa. Super. 203, 211, 212 (1985).

708 DiSalle, supra at 568.

709 Id.

710 Id.

397

“hole” was not even of prime consideration to counsel for the contestants, the Post- Gazette highlighted it in such a way as to leave the natural impression on the part of the reader that a serious question of Mr. DiSalle’s competence and integrity had been entertained by a court of law.711

Judge Cirillo found that the trial judge’s comments were “amply supported by the evidence.”712 He also agreed with the trial judge’s comment that the story was not “a fast-breaking news story in which time for reflection and thought on the part of the newspaper was out-weighed by the need to quickly and properly report the essence of the facts to the public,” but had been prepared over a “substantial period of time.”713 This, for the trial judge, meant that the article was published with “discretion and premeditation” by the newspaper executives.714

The trial judge also found that the evidence presented at trial revealed that the

Post-Gazette was sufficiently wealthy that the $2 million award was not so large as to indicate that the jury had been motivated by “passion or prejudice.”715 Instead, he said, the jury was reacting to “the grossly cavalier attitude toward the sensitivities and reputation of a prominent member of the community by a major publishing force in the region.”716

The Superior Court affirmed the lower court’s decision.717 The U.S. Supreme Court denied certiorari.718

711 Id. at 569, quoting Trial Court Opinion at 30–31.

712 DiSalle, supra at 569.

713 Id. at 570, quoting Trial Court Opinion at 34.

714 Id.

715 Id. at 571.

716 Id.

717 Id.

398

4.11 Conclusion

In the United States in libel cases public figures and officials are required to prove actual malice on the part of publishers before recovering damages for libelous statements published about them. Actual malice requires a showing of knowledge of falsity or reckless disregard of whether the statement was false.719

Public figures include persons who actively seek public office or place themselves under public scrutiny and limited vortex public persons who thrust themselves into a controversy to influence its outcome.720 Even in situations where the public persons involuntarily become public, a court may treat them as public persons.721 However, a publisher is not entitled to rely on a person’s access to the media as an indication of his notoriety in a circumstance where his access was caused by the very article which was the subject of the libel suit.722

In the case of private persons, the Supreme Court has not determined a standard of fault, leaving this to the discretion of the states so long as the states do not impose strict liability.723 Strict liability is where liability is imposed without proving fault on the part of the publisher. The rationale for not extending the Times v. Sullivan standard to private persons was that private persons have less access to the media than public persons.724

718 P.G. Publishing Co. v. DiSalle, 492 U.S. 906 (1989).

719 New York Times v. Sullivan, 376 U.S. 254 (1964).

720 Gertz, 418 U.S. 323, 345.

721 Id.

722 Hutchinson v. Proxmire, supra.

723 Gertz, 418 U.S. 323, 346.

724 Id. at 344.

399

Public persons who have actively sought out office or entered the vortex of a controversy to influence its outcome were assumed, according to the Supreme Court, to have submitted themselves to enhanced scrutiny,725 an assumption that did not hold in the case of private persons who did not relinquish their right to protect their reputations.726 Thus, there was a greater state interest in protecting the reputations of ordinary persons than public persons.

Compensatory damages can be recovered in any libel case once they are proven.

However, before recovering presumed or punitive damages, the Court has held that public persons always need to prove actual malice.727 Although Private persons involved in a public controversy need not prove actual malice to win a libel case, they must prove actual malice before recovering presumed or punitive damages.728 However, private persons involved in a purely private issue, need not prove actual malice to recover presumed or punitive damages.729

Effectively, in the United States, the federally-imposed standard in public person libel cases is a heavier burden than the negligence standard traditionally used in private person libel cases. The rationale for the distinction turns on the commitment to public debate in the United States and the belief that such debate is integral to a truly democratic society.

725 Id. at 344–345.

726 Id. at 345.

727 Gertz, supra.

728 Id.

729 Dun & Bradstreet, supra.

400

Caribbean jurisprudence, on the other hand, has largely been shaped by the United

Kingdom’s jurisdiction, a common law that does not recognize a distinction between the liability to be imposed in the case of public and private libel cases. Instead the English courts have recognized a qualified privilege to publish statements made in the public interest. Additionally, in the British Caribbean there is a stronger emphasis on the need to protect reputations of all citizens and for the press to act responsibly in carrying out its role to disseminate information.

CHAPTER 5 A HISTORICAL AND CULTURAL LOOK AT THE BRITISH CARIBBEAN

5.1 Introduction

This chapter introduces a brief history of the British Caribbean. It also examines the political culture and media culture in the Caribbean. The chapter also includes a discussion on the theoretical basis underlying the practice and development of freedom of speech and its protection in the Caribbean.

Section 5.2, in order to provide a basis for combining all the British Caribbean territories in one category for the purpose of this paper, deals with the regional similarities and efforts at cooperation in trade, economics and politics. Section 5.3 provides a short history of the British Caribbean to independence. As Jamaica was the first British Caribbean country to gain independence much of the discussion will focus on

Jamaica’s experience, which was later largely repeated in the other islands. Section 5.4 provides a theoretical perspective on constitutions in the former British colonies and the building of the first British Caribbean Constitution and the political system that it produced in Jamaica. Section 5.5 of this chapter is a discussion of the structure of government in the British-speaking Caribbean and section 5.6 is an outline of aspects of

British Caribbean political culture. Section 5.7 is a discussion of media culture in the

Caribbean as defined by law and practice, and of the extent to which British Caribbean media experience freedom of the press. Section 5.8 explores the legal theory relevant to freedom of speech and libel law discussed by Caribbean legal scholar Simeon C.R.

McIntosh. Section 5.9 is the conclusion.

401 402

5.2 Similarities Between the British Caribbean Nations

Some common political, social, geographical and legal factors have led to the development of similar legal and political frameworks in the British Caribbean territories.

First, the British Caribbean nation states share the feature of the small size of both

their population and landed area (see figure 5-1 below). Although Guyana on the

mainland is a large land mass, much of the land space is unused and its population is

smaller than Jamaica’s.1 Jamaica, the largest island, with a land mass of 4,411 square

miles2 had a population exceeding 2.6 million in its 2001 census.3 Because of the small size of these nations they have been dependent on, and vulnerable to, external forces.

Table 5-1. Area size and population of British Caribbean states4 Country Land Area (sq. km) Population (2005) Anguilla 102 13,250 Antigua and Barbuda 443 68,722 The Bahamas 13,940 301,790 Barbados 431 279,254 Belize 22,966 279,457 British Virgin Islands 153 22,640 Cayman Islands 262 45,436

1 Guyana, on the mainland, has a land mass of 83,000 square miles (see Introduction to Kaieteur Falls, http://www.mnh.si.edu/biodiversity/bdg/kaieteur/intro1.html). However, Guyana’s estimated population is only 765,283 (see The World Factbook—Rank Order—Population, http://www.cia.gov/cia/publications/factbook/rankorder/2119rank.html (last visited May 20, 2005).

2 See Wildfire’s Caribbean, Jamaica, http://www.wildfireinvestments.com/Jamaica.htm. Trinidad has a land mass of 1,864 square miles and Tobago, 116 square miles (see the Government of the Republic of Trinidad & Tobago’s Web site, available online at http://www.gov.tt). (All Web sites last visited May 20, 2005).

3 See Population Census 2001, http://www.statinja.com/census.html (last visited Mar. 23, 2006). In July 2005 Jamaica’s population was estimated at 2,735,520; Trinidad’s was 1,075,066 and Barbados’ was 278,870 (see The World Factbook – Rank Order – Population, http://www.cia.gov/cia/publications/factbook/rankorder/2119rank.html (last visited May 20, 2005).

4 See World Population and Area of all countries of the World, CITY POPULATION, http://www.citypopulation.de/WorldPop.html (last visited June 3, 2006).

403

Dominica 754 69,029 Grenada 344 89,502 Guyana 214,970 765,283

Table 5-1: Continued Country Land Area (sq. km) Population (2005) Jamaica 10,991 2,731,832 Montserrat 102 9,340 St. Kitts and Nevis 261 38,958 St. Lucia 616 166,312 St. Vincent and the 389 117,534 Grenadines Trinidad and Tobago 5,128 1,088,644 Turks and Caicos 430 20,560

Second, along with its small size, the British Caribbean states share a common historical background as mono-crop societies involved in slave-based sugar production for more than two centuries. Because the British rulers wanted to retain the Caribbean market for metropolitan industrial goods, efforts at industrialization were thwarted by the

British Colonial Office in the early twentieth century.5 Political scientist Trevor Munroe, who led a Marxist political party in Jamaica between 1978 and 1990,6 writes that the effect of what he refers to as British “imperialism” in Jamaica was to stunt the country’s

5 RICHARD HART, TOWARDS DECOLONIZATION: POLITICAL, LABOR AND ECONOMIC DEVELOPMENT IN JAMAICA, 1938–1945 109 (1999).

6 The party became defunct in 1990. See Trevor Munroe, WIKIPEDIA, http://en.wikipedia.org/wiki/Trevor_Munroe (last visited May 17, 2006). Munroe studied political science at the University of the West Indies, and won a Rhodes Scholarship to Oxford University where he received his Ph.D. in political science, in part for what has been called, a landmark study of the process of decolonization in Jamaica between the 1930s and 1960s, published as The Politics of Constitutional Decolonization in 1972. Munroe denounced Marxism in 1990 and the party became defunct. He is currently a Senator in the Jamaican government. (see Workers Party of Jamaica, WIKIPEDIA, http://en.wikipedia.org/wiki/Workers_Party_of_Jamaica (last visited May 17, 2006).

404 development by turning it into an “agrarian, raw material appendage.”7 Britain, according to Munroe, thus prevented Jamaicans from owning the means of production, including plantations, mines and local businesses.8 At the same time, Munroe wrote, the reliance on

“imperial” capital and the policy of retarding local industry that accompanied it prevented the local production of goods that were demanded in the Caribbean and thereby ensured a certain market for British-produced goods.9 Effectively, therefore, the policies of the

British colonial government forced third-world colonies to continue being dependent on

British funds and industry to supply goods that could have been produced locally. In the meantime, local agriculture, industry and manufacturing were “blocked from developing” in a manner consistent with local needs.10 Despite nascent attempts at diversification in industry and agriculture between the 1940s and 1960s, the British Caribbean colonies emerged from colonialism in the period following 1962 almost totally dependent on the

British and other first-world foreign markets for food, shelter and clothing, Munroe wrote.11

A third factor—apart from the small size and common historical background—that allows the British Caribbean to be treated as a single entity is the fact that the countries have often cooperated with one another at several levels, particularly since the late 1950s.

7 TREVOR MUNROE, SOCIAL CLASSES AND NATIONAL LIBERATION IN JAMAICA 19 (1981). “Imperialism” has been defined in the Oxford English Dictionary as “a policy of extending a country’s power and influence through colonization, use of military force, or other means.” CONCISE OXFORD ENGLISH th DICTIONARY, (11 Ed., Catherine Soanes & Angus Stevenson, eds., 2004)(1911).

8 Id.

9 Id.

10 Id.

11 Id. at 20.

405

Just before independence, 10 colonies in the British Commonwealth Caribbean had

attempted to form a federation under British guidance to combat the effects of small size

and dependency (see figure 5-2 for the colonies that had membership in the West Indies

federation).12 The attempt at federation failed not in small part because of the varying stages of development of the islands and the unequal distribution of resources.13 Over the next two decades some of these 12 colonies gradually gained independence from England beginning with Jamaica and Trinidad and Tobago (the latter two as a single state) in 1962 and ending with St. Kitts and Nevis (also as a single state) in 1983.14 The newly

independent Caribbean Commonwealth countries continued efforts at cooperation and,

today, the results of this cooperation can be seen in the University of the West Indies,15 political and economic initiatives including the Caribbean Free Trade Association

(CARIFTA)16 and Caribbean Community (Caricom) (see figure 5-2 below for the

12 The countries were Antigua and Barbuda (one government), Barbados, Dominica, Grenada, Jamaica (and its dependencies Cayman Islands and the Turks & Caicos), St. Christopher-Nevis-Anguilla (now St. Kitts, Nevis and Anguilla), St. Lucia, St. Vincent and the Grenadines (the latter two have one government), and Trinidad and Tobago (one government). See ANSWERS.COM, http://www.answers.com/topic/west-indies- federation (last visited May, 20, 2005).

13 H.W. Springer, The West Indies Federation, In THE WEST INDIES FEDERATION 14 (David Lowenthal ed., Columbia University Press, 1971).

14 See ANSWERS.COM, supra.

15 UNIVERSITY OF THE WEST INDIES, http://www.mona.uwi.edu/about/index.htm (last visited May 17, 2006). The University College of the West Indies which was opened in Mona, Jamaica in 1948 was later changed to the University of the West Indies in the 1960s and two other campuses were later added—St. Augustine, Trinidad and Cave Hill, Barbados.

16 The new CARIFTA agreement came into effect on May 1, 1968, with signatories being Antigua, Barbados, Trinidad and Tobago (one government for the latter two) and Guyana. The original idea to permit all territories in the region to participate in the association was achieved later that year with the entry of Dominica; Grenada; St. Kitts, Nevis and Anguilla (the last three being one government), St. Lucia and St. Vincent in July and of Jamaica and Montserrat on August 1, 1968. British Honduras (Belize) became a member in May 1971. CARIFTA was to be the beginning of the Caribbean Common Market which was aimed at achieving a viable Economic Community of Caribbean Territories. See CARICOM, http://www.caricom.org/ (last visited May 3, 2006).

406

colonies that signed the CARIFTA agreement).17 The most recent effort at Caribbean

co-operation has been the move toward a Caribbean Court of Justice to replace the

Judicial Committee of the Privy Council as the final Court of Appeal for the territory.18

Table 5-2. Members of the West Indies Federation and Caricom/CARIFTA Members of Federation Signatories to the CARIFTA Agreement Antigua and Barbuda Antigua (May 1, 1968) Barbados Barbados (May 1, 1968) Dominica Guyana (May 1, 1968) Grenada Trinidad and Tobago (May 1, 1968) Jamaica (Cayman Isl. and Turks & Dominica (July 1968) Caicos) St. Christopher-Nevis-Anguilla Grenada (July 1968) St. Lucia St. Kitts-Nevis-Anguilla (July 1968) St. Vincent and the Grenadines St. Lucia (July 1968) Trinidad and Tobago St. Vincent and the Grenadines (July 1968) Jamaica (Aug. 1, 1968) Montserrat (Aug. 1, 1968) British Honduras (May 1971)

A fourth feature shared by all the British Caribbean is the adoption of the

Westminster-style democratic government from Britain. At independence all the islands

adopted the two-party parliamentary system of government used in Britain. The late

Jamaican social scientist Carl Stone, writing in 1986, has credited the English-speaking

Caribbean as “the only area in the Third World where politics based on free elections,

17 In 1972, at the Seventh Heads of Government Conference, Caribbean leaders decided to transform the Caribbean Free Trade Association (CARIFTA) into a Common Market and establish the Caribbean Community, of which the Common Market would be an integral part. The Treaty of Chaguaramas, which introduced the Caribbean Community, was signed on July 4, 1973. See CARICOM, supra.

18 For the text of the agreement visit http://www.sice.oas.org/trade/ccme/ccj1.asp (last visited Feb. 8, 2005).

407 multiple parties, and liberal democratic freedoms are still dominant.”19 Thus, unlike in

Latin America, where the democratic structure has come under attack in various countries, the British Caribbean relies on regularly-held elections to determine who should govern the country rather than on a one-party or autocratic system.

Fifth, the Caribbean also can be considered as one group of nations because the final court of appeal for all the English-speaking Caribbean states, except Guyana, is the judicial arm of the Queen’s Privy Council which meets in England. The Privy Council in

England is a body of advisers for the reigning monarch.20 The English-speaking

Caribbean constitutions provide for appeals from Court of Appeal21 decisions to Her

Majesty in Council.22 When the monarch acts on the Council’s advice it is referred to as

“the King-in-Council” or “the Queen-in-Council.”23 When a matter comes before the

Queen in Council it will generally be referred to the Judicial Committee of the Privy

Council, the final appeal court for all United Kingdom overseas territories, Crown dependencies and other Commonwealth countries.24

19 CARL STONE, CLASS, STATE AND DEMOCRACY IN JAMAICA 6 (1986).

20 Privy Council of the United Kingdom, WIKIPEDIA, http://en.wikipedia.org/wiki/Privy_Council_of_the_United_Kingdom (last visited May 17, 2006).

21 The Court of Appeal, is the name of the highest court in each Caribbean country.

22 See e.g. JAM. CONST. § 110(1) (1962); TRIN. & TOBAGO CONST. §109 (1976); BARB. CONST. §§. 87 & 88 (1966).

23 Id.

24 Privy Council Web site, http://www.privy-council.org.uk/output/page5.asp (last visited May 15, 2005). Id. Her Majesty has the power to refer any matter to the Board for "consideration and report" under the Judicial Committee Act, 1833, § 4 (Eng.). Id.

408

Table 5-3. Status of the Caribbean Countries25 British Overseas Commonwealth Commonwealth Countries Territories Countries Constitutional Republics Monarchies Anguilla Antigua and Barbuda Dominica Bermuda Bahamas Guyana * The British Virgin Islands Barbados Trinidad and Tobago The Cayman Islands Belize Montserrat Grenada The Turks and Caicos Isl. Jamaica St. Kitts and Nevis St. Lucia St. Vincent and the Grenadines

The British Commonwealth is a voluntary grouping of 53 countries, most of which were formerly British colonies. The organization actively promotes “democracy, the rule of law and human rights as well as economic and social development” among member nations.26 Twelve of the 18 countries in this study are part of the Commonwealth. These are Antigua and Barbuda (one state), Bahamas, Barbados, Belize, Dominica, Grenada,

Guyana, Jamaica, St. Kitts and Nevis (one state), St Lucia, St. Vincent and the

Grenadines (one country) and Trinidad and Tobago (one state) (see table 5-3 above).27

25 Note * denotes that the Country’s final Court of Appeal is not the Privy Council.

26 Guide to government, The Commonwealth, DIRECTGOV, http://www.direct.gov.uk/Gtg11/GuideToGovernment/InternationalBodies/InternationalBodies (last visited May 15, 2006). See also Commonwealth of Nations, WIKIPEDIA, http://en.wikipedia.org/wiki/British_Commonwealth (last visited May 15, 2006).

27 List of Members of the Commonwealth of Nations by Name, WIKIPEDIA, http://en.wikipedia.org/wiki/List_of_members_of_the_Commonwealth_of_Nations_by_name (last visited May 31, 2006).

409

The British overseas territories are the territories formerly known as the dependent territories.28 They have not been given independence because the small size of their populations, or their economic instability and vulnerability to outside forces requires

British presence to guard them against hostile neighbors. In the Caribbean these are

Anguilla, Bermuda, the British Virgin Islands, the Cayman Islands, Montserrat, and the

Turks and Caicos Islands (see figure 5-3 above).29

Although Trinidad and Tobago (one state) and Dominica are republics, they are a part of the Commonwealth and have voluntarily retained the right to appeal to the Privy

Council.30 The Cooperative Republic of Guyana no longer uses the Privy Council as its final court of appeal (see figure 5-3 above).

The common reliance on the same final appellate court, by all but one of the

Caribbean states, along with the fact that the constitutions of the islands are almost identical, has meant that, over the years, precedent from legal cases decided in one nation state has had a strong persuasive effect in the other states.31 In the case of decisions of the

Privy Council the effect is binding. In this Guyana is the exception. Since 1970 when

Guyana became a republic, the final court of appeal in that country has been the Court of

28 British overseas territories, WIKIPEDIA, http://en.wikipedia.org/wiki/Crown_colony (last visited May 31, 2006). See the United Kingdom’s British Overseas Territories Act 2002 [2002, c 8].

29 Id.

30 TRIN. CONST. § 109, http://pdba.georgetown.edu/Constitutions/Trinidad/trinidad76.html. (last visited April 8, 2006). DOMINICA CONST. § 106, http://dominicacompanies.com/dominica/constitution/const.html#106 (last visited May 31, 2006).

31 Caribbean courts often refer to the decisions of courts in other Caribbean countries. Thus, for example, in the 1969 libel case that ended with a decision to reduce damages (Gairy v. M.A. Bullen & Alston Andrew, (unreported) in the High Court of Justice of Grenada Suit No. 97 of 1968) the Grenadian Court of Appeal referred to libel awards in a Barbadian case (Husbands v. Advocate Co., (1968) 12 W.I.R. 454); a St. Lucian case (Monplaisir v. The Voice Publishing Co., (1953)); and two Jamaican cases (Joseph v. Lockhart, Civil Appeal No. 1 of 1970 and Evans v. Johns and the Gleaner Co. Ltd., (1961) 4 W.I.R. 502).

410

Appeal. Nonetheless, Guyana’s libel law and the protection in its 1980 Constitution for freedom of speech are still consistent with the remainder of the Caribbean and legal decisions in Guyana are still strongly persuasive in the other Caribbean islands.

Legal scholar K.W. Patchett’s thesis, “Reception of Law in the West Indies,” provides an exhaustive discussion of the difference between the legal systems in colonies acquired through settlement and those that were acquired through conquest or were ceded to England.32 Basically, settled territories were those that were first settled by the British, while conquered and ceded territories were foreign colonies captured or ceded as a result of war. Patchett identifies the settled territories as the Leeward islands—St. Christopher

(now St. Kitts), Nevis, Anguilla, Antigua, Montserrat, and the Virgin Islands. Apart from the Leeward Islands, Barbados and the British Honduras (now Belize) were also originally settled. The conquered or ceded territories were Jamaica, Dominica, Grenada,

St. Vincent, Tobago, Trinidad, St. Lucia, and British Guiana (now Guyana) (see table 5-4 below).

Table 5-4. Settled vs. Conquered or Ceded Territories in the British Caribbean Settled Territories Conquered or Ceded Territories St. Christopher (St. Kitts) Jamaica Nevis Dominica Anguilla Grenada Antigua St. Vincent Montserrat Tobago The Virgin Islands Trinidad Barbados St. Lucia Belize British Guiana (Guyana)

32 K.W. Patchett, Reception of Law in the West Indies, JAMAICA LAW JOURNAL 17 (April 1973). K.W. Patchett was the dean of the Faculty of Law at the University of the West Indies in 1973.

411

The ceded or conquered territories for the most part have retained aspects of the legal rules that had existed prior to the British conquest or cession. Thus, in these territories traces of French law and Roman-Dutch law can still be found.33 The extreme case, St. Lucia, is the only island in the British Caribbean that has not adopted British law as its major legal system.34 However, the research for this dissertation has proven that, in the case of the law of libel, all the countries in the British Caribbean—including St. Lucia

—have adopted British legal principles.35 Thus, it is possible to group all the

English-speaking territories together for the purpose of this dissertation.

5.3 Short History of Jamaica and the British Caribbean

In order to understand the differences between the development of libel law as it relates to the public person in the United States and the Caribbean, it is important to have a background on the history of the British Caribbean nation states. This section provides a short discussion on the history of the Caribbean. In this dissertation, for ease of discussion, the focus will be on Jamaica’s history as a prototype or typical example of the political history of the British Commonwealth Caribbean up to independence with some reference to the other islands. Although the process of political development differed from nation to nation, and depended on factors such as the landed area and population size, there were still basic similarities between the British Caribbean nations.

33 Id. at 30.

34 Id. at 30. He notes that in countries such as Jamaica, Guyana, and Trinidad and Tobago (one country) where there are relatively large East Indian populations, in recognition of the existence of diverse groups, the law refers to and recognizes Hindu and Islamic customs and formalities (such as marriage and funerals). Id.

35 See Chapter 6, 6.1, infra for a discussion on the libel statutes in the British Caribbean.

412

Jamaica became a British colony in 1655, whereupon large-scale sugar production replaced tobacco as the major economy and brought with it the purchase of large numbers of African slaves.36 In 1838 slavery was abolished in the British Caribbean.37 After slavery the ex-slaves abandoned the plantations in droves. Wishing to disentangle themselves from the vestiges of their lives as slaves, they bought small parcels of land on

the hills where they planted cash crops.38 However, because the best land was held by the

plantation owners, the slaves were forced to set up their peasant farms on the least arable

and accessible lands and could barely eke out a living. Therefore they were often forced

by necessity to return to the plantation as wage laborers.39 The development of a peasant

class and of wage labor on plantations occurred between 1838 and the 1940s.40

36 RICHARD HART, FROM OCCUPATION TO INDEPENDENCE: A SHORT HISTORY OF THE PEOPLE OF THE ENGLISH-SPEAKING CARIBBEAN REGION 19 (1998).

37 See MICHAEL MANLEY, JAMAICA: STRUGGLE IN THE PERIPHERY 17 (1982) for the view that the reason for slavery’s abolition was that it had become an expensive means of production due to the lack of technology and the fact that the land was exhausted. In addition, there had been several slave uprisings across the West Indies (including the 1831 Sam Sharpe Rebellion in Jamaica) which were becoming increasingly difficult to put down, and the rise of “new forces” in the British Parliament for whom slavery was either an “economic anachronism” or “morally repugnant.” Although the Emancipation Act was to take effect in 1834, in fact slavery was not fully abolished until 1838 because there was a four-year apprenticeship period, during which time slaves were forced to remain on plantations as laborers. See also CLINTON V. BLACK, THE STORY OF JAMAICA FROM PREHISTORY TO THE PRESENT 47 (Collins Clear-Type Press, 1965)(1958). During the apprenticeship period the slaves were to work for their erstwhile masters for 3/4 of the work week, in return for the basic necessities. This period was supposed to provide a transition period for the slaves into their new status as freed men, as well as to soften the transition for the slave masters into the wage labor market. The hope was that it would mend the relationship between the ex-slaves and their masters. Id. The apprenticeship period was meant to react to the “fear that on abolition the slaves would abandon the plantation, settle in lands in the interior and set up a kind of jungle society which would become a social danger to the country while causing economic ruin . . .” See MANLEY, supra at 17. “By 1838 slavery was abolished in Jamaica to be succeeded by wage labor which, in the absence of the trade unions and political rights was to prove to be a cheaper method of production.”

38 Id. at 17.

39 Id.

40 See TREVOR MUNROE, THE POLITICS OF CONSTITUTIONAL DECOLONIZATION, JAMAICA, 1944–62 2 (1972).

413

The post-emancipation process differed from island to island, depending largely on the population-to-land ratio.41 The inclination of the slaves was to leave the plantations on emancipation, but this was not possible in all the territories. In Barbados, St. Kitts and

Antigua, since most of the arable land was occupied by plantations, there was a smaller exodus from the plantations.42 However, Caribbean historian Woodville Marshall writes that the plantations in the Windward Islands were not as productive because of the late settlement of these islands which led to a sparse population as well as the fact that their mountainous terrain was not as suited for sugar production.43 For example, those plantations that remained in business in post-emancipation St. Vincent and Montserrat could pay only low wages, and the ex-slaves’ movement to peasant farming was economically advantageous for them.44

However, in British Guiana (now Guyana), Trinidad and Jamaica where the population densities were lower, and land was cheaper, it was more difficult for plantation owners to retain labor.45 The response to an inadequate labor supply was to

41 Woodville K. Marshall, Peasant Development in the West Indies Since 1838, in CARIBBEAN FREEDOM: ECONOMY AND SOCIETY FROM EMANCIPATION TO THE PRESENT 99, 102 (Hilary Beckles & Verene Shepherd, eds., 1996)(1993).

42 O. Nigel Bolland, Systems of Domination After Slavery: The Control of Land and Labor in the British West Indies After 1838, in CARIBBEAN FREEDOM: ECONOMY AND SOCIETY FROM EMANCIPATION TO THE PRESENT 107, 110 (Hilary Beckles & Verene Shepherd, eds., 1996)(1993). In 1844 in Barbados and St. Kitts 25 and 30 percent of the populations respectively were involved in plantation labor; in Antigua in 1847 the figure was 40 percent. Id. at 110–111. See also Marshall, Peasant Development, supra note 34 at 100.

43 Marshall, Peasant Development, supra note 40 at 100.

44 Id. at 36.

45 Id. at 111. In Antigua in 1847 approximately 40 percent of the population “regularly provided” plantation labor, while in Trinidad in 1848 only 19 percent of the population was employed in plantation labor. In Jamaica the number of freeholds increased from 2,000 in 1838 to 27,379 in 1845 to 50,000 in 1861. Id.

414

import indentured contract laborers.46 The importation of East Indian laborers effectively drove down the high wages that the planters were paying the freed Negroes to keep them on their plantations.47 Ultimately, this form of labor led to greater racial diversification in

the population.48

The phenomenon of what Trevor Munroe called an “agro-proletariat” or ex-slave peasantry existing alongside the plantation and enjoying a symbiotic relationship with the

plantation, was a central feature of the British Caribbean.49 The peasants could not afford

to abandon the plantation totally and continued to provide labor on a part-time basis.50

But, Marshall wrote, the peasants were “innovators” in the economic lives of the islands where they appeared and their input largely led to diversification of the agricultural

structure and change from dependence on sugar.51 Marshall, however, suggested that the

46 KEITH O. LAURENCE, A QUESTION OF LABOUR : INDENTURED IMMIGRATION INTO TRINIDAD AND BRITISH GUIANA, 1875–1917 1 (1994). See also Bolland, Systems of Domination, at 111.

47 Id.

48 See for e.g. THE WORLD FACTBOOK, http://www.cia.gov/cia/publications/factbook/geos/td.html (last visited Feb. 24, 2006). In Trinidad the breakdown of populations is East Indian (40 percent), African (37.5 percent), mixed (20.5 percent), other (1.2 percent) and unspecified (0.8 percent) according to the 2000 Census.

49 Sidney W. Mintz, From Plantations to Peasantries in the Caribbean, in CARIBBEAN CONTOURS 127, 134–135 (S. Mintz & S. Price eds., 1985). See TREVOR MUNROE, THE POLITICS OF CONSTITUTIONAL DECOLONIZATION, JAMAICA, 1944–62 2 (1972). Munroe wrote,

[t]he distribution of rural income, derived from the pattern of land ownership as well as wages, continued to bear the marks of an earlier age. A peasantry—more properly designated an agro-proletariat because of its regular seasonal employment in sugar factories—‘independent’ in a narrow legal sense only, eked out an existence on inadequate plots of land. Half of these rural farmers operated farms of 4 acres and under; in fact 2/3 of the country’s population lived on small squares of under one acre or in villages. Id.

50 Douglas Hall, The Flight from the Estates Reconsidered: The British West Indies, 1838–1842, in CARIBBEAN FREEDOM: ECONOMY AND SOCIETY FROM EMANCIPATION TO THE PRESENT 55, 58 (Hilary Beckles & Verene Shepherd, eds., Markus Wiener Publishers, 1996)(1993).

51 Marshall, supra. note 40 at 103–104. In Jamaica the peasant farmers planted bananas, coffee, citrus, coconuts, cocoa and logwood; in the Windward Islands they planted cocoa, arrowroot, spices, bananas and

415

British government’s policy toward the peasants was neglectful because the planter class had convinced the government that the “prosperity and civilization” of the British

Caribbean depended on the success of the plantation.52 Since peasant farming drew labor away from the plantations, the government was unwilling to fully support the farmers.53

It was these difficult living conditions of the ex-slaves that, ultimately caused ex-slaves in

Jamaica to riot over unimproved social conditions almost 30 years after emancipation.

Nonetheless, the peasant farms continued to be major providers of food to the plantations while the peasants, in turn, benefited from occasional labor on the plantation to supplement their income.54 In British Guiana (now Guyana), peasant production grew in the context of the importation of thousands of East Indians to supplement a small plantation workforce.55 In St. Vincent, where East Indian indentureship schemes were unsuccessful in saving the sugar industry, peasant farming of arrowroot for export took the place of plantation sugar production as the major staple grown.56

Slave abolition in the British Caribbean was followed by coercive government efforts to make the ex-slave peasant farmer’s life more difficult and to force him back to the plantation, according to Caribbean historian Nigel Bolland.57 Peasant farmers were

logwood for export after the 1850s. Later these would be adopted by the planters to become important trade items in the islands. Id. at 103.

52 Id. at 104.

53 Id.

54 Mintz, supra note 48 at 139.

55 Id. at 135.

56 Id. at 143.

57 O. Nigel Bolland, Systems of Domination After Slavery: The Control of Land and Labor in the British West Indies After 1838, in CARIBBEAN FREEDOM: ECONOMY AND SOCIETY FROM EMANCIPATION TO THE

416 subjected to laws restricting emigration to other islands and “vagrancy” laws that allowed their arrest if they were seen loitering.58 Additionally, taxation laws were skewed in favor of large plantations, forcing peasant farmers to pay comparatively heavy taxes. In post-emancipation Antigua and other colonies, the wage/rent system was introduced allowing landlords/planters to reduce labor costs by attaching labor costs to the rent they charged laborers who continued living on the on plantation at the end of slavery.59

It was in the midst of these conditions that the ex-slaves in Morant Bay, in the parish of St. Thomas in southeastern Jamaica, rose against the authorities in 1865. They marched through the streets pillaging and killing planters and authority figures who had oppressed them. The Morant Bay rebellion was aimed at an economic improvement in the conditions of laborers and peasant farmers. The peasant farmers wanted lower rents,60 the laborers wanted better wages.61 After the authorities had suppressed the Morant Bay rebellion, the Legislative Assembly system of government was replaced by Crown

Colony government in 1866.62

Under the Legislative Assembly system that existed prior to the Morant Bay

Rebellion, Jamaican residents enjoyed internal self-government through the popularly elected assemblymen. In most of the British colonies settlers who owned or rented

PRESENT 107, 109 (Hilary Beckles & Verene Shepherd, eds., Markus Wiener Publishers, Princeton, NJ, 1996)(1993).

58 Id.

59 Id.

60 GAD HEUMAN, THE KILLING TIME, THE MORANT BAY REBELLION IN JAMAICA 49 (1994).

61 Id. at 51.

62 Id. at 177.

417 property could elect legislators, but financial and property restrictions ensured that most ex-slaves did not enjoy this right.63 After the Morant Bay Rebellion, however, across the

British Caribbean, governments became afraid that they would not be able to avert future rebellions and voluntarily gave up power replacing the Legislative Assembly with Crown

Colony government. The Crown Colony form of government consisted of a Legislative

Council made up of five government officials64 and four unofficial members who did not have an administrative duty. All these persons were appointed by the ruling monarch in

England.65

In the period following the establishment of the Crown Colony system, the government restricted “the growth of social services, the administrative services and the revenue base for public spending,” according to historian Richard Hart.66 The government deliberately blocked social policies that could improve the circumstances of the black majority, according to political scientist Carl Stone.67 The planter class feared that blacks would develop “an independent political voice under conditions where they gained democratic rights.” While the planter class rationalized these fears by claiming that blacks were both “too illiterate and unsophisticated to be granted such extensive

63 RICHARD HART, FROM OCCUPATION TO INDEPENDENCE: A SHORT HISTORY OF THE PEOPLE OF THE ENGLISH-SPEAKING CARIBBEAN REGION 60 (1998). See also Roy Augier, Before and After 1865, CARIBBEAN FREEDOM: ECONOMY AND SOCIETY FROM EMANCIPATION TO THE PRESENT 170, 171(Hilary Beckles & Verene Shepherd, Markus Wiener Publishers, 1996)(1993).

64 These were the colonial secretary, attorney general, financial secretary, director of roads and collector of customs. See RICHARD HART, TOWARDS DECOLONISATION: POLITICAL, LABOR AND ECONOMIC DEVELOPMENT IN JAMAICA 1938–1945 1(1999).

65 RICHARD HART, TOWARDS DECOLONISATION: POLITICAL, LABOR AND ECONOMIC DEVELOPMENT IN JAMAICA 1938–1945 1(1999). See also RICHARD HART, FROM OCCUPATION TO INDEPENDENCE supra note 62 at 84–87.

66 Id.

67 CARL STONE, CLASS STATE AND DEMOCRACY IN JAMAICA 17 (1986).

418 democratic rights,” Stone suggested that “at the root of these rationalizations were deep fears that the unpredictable black population would use these newly won powers to overturn the system of white and brown68 privilege and power…”69

In Jamaica in 1938, during the Great Depression, wide-scale labor unrest and rioting broke out in Kingston and on the Frome sugar estate in Westmoreland in southwest Jamaica.70 Out of this discord, Alexander Bustamante, a charismatic strike leader, and his cousin, Norman Washington Manley, an Oxford-trained attorney who played a mediating role in the labor strikes, came to the forefront of the Jamaican political scene.71 While Bustamante was forming the Bustamante Industrial Trade Union

(B.I.T.U.), Manley formed the People’s National Party (P.N.P.) in 1938 with the support of a cadre of local intellectuals and a program aimed at self-governance and the end to

British imperial rule. At first the B.I.T.U. and the P.N.P. were associated with each other and worked together, but in 1943 there was an ideological split between the two cousins and Bustamante formed the Jamaica Labor Party (J.L.P.) while Manley formed the

National Workers Union (N.W.U.)72 These two trade unions were the basis of the labor movement in the 1930s. Eventually, in 1944, through the efforts of Norman Manley,

68 In Jamaica and the Caribbean, the term “brown” is used to refer to persons of mixed races—black and white.

69 STONE, supra at 17.

70 MANLEY, supra. Note 36 at 20.

71 BLACK, supra Note 28 at 208–209

72 Id. at 209. See also MANLEY, supra note 36 at 20. See also JAMAICA INFORMATION SERVICE, supra.

419 universal adult suffrage was introduced in Jamaica and a two-party system replaced the

Legislative Council.73

The 1930s labor movement in Jamaica was mimicked throughout the British

Caribbean. The leadership of the labor movement was typically a disgruntled black middle class, unable to overcome a political color barrier despite the strides it was making as a class intellectually, socially and economically.74 Because of its dissatisfaction there was an increasing consciousness of race and an increasing nationalistic feeling and desire to increase the political power among the colored population.75 At the same time, the poor blacks were less concerned about racism as an issue, but instead focused on struggling against class oppression, heavy taxation and injustice.76 In this context several riots and protests led by the middle classes and supported by the lower classes occurred across the Caribbean and in Jamaica between the turn of the twentieth century and the 1930s.77

Across the British Caribbean the process was the same leading the British government to appoint a commission to prepare a report on the conditions of Negroes in the West Indies.78 The Moyne Commission of 1938 reported “such extreme poverty, poor housing, malnutrition, unemployment and illiteracy” that the British government did not

73 CARL STONE, CLASS STATE AND DEMOCRACY IN JAMAICA 16 (1986). See also BLACK, supra Note 36 at 212 for the view that Norman Manley’s efforts were largely responsible for universal adult suffrage.

74 O. NIGEL BOLLAND, ON THE MARCH: LABOR REBELLIONS IN THE BRITISH CARIBBEAN, 1934–39 6–7 (1995).

75 Id. at 7.

76 Id.

77 Id.

78 HART, FROM OCCUPATION TO INDEPENDENCE, supra. note 62 at 132–133.

420 publish the report fearing it would be used by the German government to discredit the

British Empire at the outset of hostilities against the German Nazi regime.79

As the middle classes seized control of the labor movement in the Caribbean, they began to advocate for local rule and universal adult suffrage.80 The process had its denouement with the declaration of universal adult suffrage by the British government.81

In the case of Jamaica, this took place in 1944.82 The system of government that emerged in Jamaica in 1944 included a House of Representatives, a Legislative Council and an

Executive Council. The members of the House of Representatives were elected under full adult suffrage. The Legislative Council, nominated by the governor, had only delaying powers in the legislative process. Thus, the Legislative Council had no power to disallow but could delay the passage of a statute for up to one year through its debates. The

Executive Council included the governor and 10 other members, five of whom were government officials and five of whom were elected.83 Despite the larger degree of self-government, the system of government was imposed by the British government which still had the right to alter the system of government when it wished.84 This distinguished Jamaica from the members of the British Commonwealth who had gained independence, Jamaica continued to be a British colony.

79 Id. at 133.

80 O. NIGEL BOLLAND, ON THE MARCH, supra note 73 at 124.

81 Id.

82 O. NIGEL BOLLAND, THE POLITICS OF LABOR IN THE BRITISH CARIBBEAN: THE SOCIAL ORIGINS OF AUTHORITARIANISM AND DEMOCRACY IN THE LABOR MOVEMENT 449 (2001).

83 HART, FROM OCCUPATION TO INDEPENDENCE, supra note 62 at 139.

84 HART, TOWARDS DECOLONISATION, supra at 245.

421

Nonetheless, the majority class was, thus, given the opportunity to determine its political destiny through the popular vote. However, the people were still largely uneducated and, since colonial history had left a legacy of patriarchy and dependence, they were ill-equipped to handle the franchise.85 The peasants transferred their dependence from their former English masters to embrace their local labor leaders, according to political scientist Trevor Munroe.86

Caribbean historian Nigel Bolland characterizes the politics of trade unionism and the political parties that emerged from this trade unionism as largely being dominated by charismatic and autocratic leaders who treated the union as if it were their “personal vehicle rather than the organized expression of working-class aspirations.”87 In this context, the political tradition that developed in Jamaica was steeped in clientelism and party patronage. The word “clientelism” is defined in the Oxford English Dictionary as “a social order which depends on relations of patronage.”88 It is a term applied in third-world politics to a system of government that features political leaders providing scarce benefits to their supporters in return for support. These benefits could include, for example, employment in government projects, access to housing in housing schemes or employment in labor schemes overseas. 89 In the period following universal adult

85 Trevor Munroe, Transforming Jamaican Democracy Through Transparency: A Framework for Action, FOSTERING TRANSPARENCY AND PREVENTING CORRUPTION IN JAMAICA 13, 15 (Laura Neuman, ed., The Carter Center February, 2002).

86 Id. at 15.

87 O. NIGEL BOLLAND, THE POLITICS OF LABOR IN THE BRITISH CARIBBEAN: THE SOCIAL ORIGINS OF AUTHORITARIANISM AND DEMOCRACY IN THE LABOR MOVEMENT, supra. at 582 (2001).

88 th CONCISE OXFORD ENGLISH DICTIONARY, (11 Ed., Catherine Soanes & Angus Stevenson, eds., 2004)(1911).

89 Munroe, Transforming, supra. Note 55 at 14. See also STONE, CLASS STATE AND DEMOCRACY IN JAMAICA supra Note 49 at 54.)

422 suffrage, political candidates in Jamaica were not selected in popular elections on the basis of their competence to develop the nation, but on the basis of what the largely uneducated poorer classes believed they could get from individual politicians and their political parties.90

For political scientist Carl Stone, the party leader generated by the clientelistic and charismatic political culture is usually authoritarian. As Stone suggests, “the social need for a sense of power that lies at the root of the political impulse in the society dictates that leaders should be strong authoritarian figures defining a path to be followed by the party hardcore with unambiguous loyalty.”91 In this setting, Stone contends, “the party leader is invested with ultimate authority and becomes a sort of transcendental larger than life figure who must not be criticized nor questioned.”92

On August 6, 1962, Jamaica gained independence from Britain. In the following two decades several of the other British Caribbean countries also gained independence.

One of the first things that the newly independent Caribbean nations were called upon to do was to adopt a constitution that suited their newly independent status. With independence, the nations were in a position to define their own political system. The process of constitution-making will be discussed next.

90 See STONE, CLASS STATE AND DEMOCRACY, supra at 54: “A more central issue for party rank and file relates to how well the parties take care of the economic and social needs of the party faithful…”

91 Id.

92 Id. at 53: At independence Jamaica had a 45 percent illiteracy rate (see Jamaica Information Service Web site, http://www.jis.gov.jm/JA40/JIS. (last visited on October 21, 2002). The estimated literacy in Jamaica between the years 2000 and 2004 was 94.5 percent according to the UNESCO Institute of Statistics, http://unstats.un.org/unsd/mi/mi_results.asp?crID=388&fID=r15 (last visited May 3, 2006).

423

5.4 Theory on Constitution-Building and the Jamaican Constitution

Along with the other one-time colonies of Britain, the British Caribbean nations are

members of the Commonwealth. In his 1960 book, Constitutional Structure of the

Commonwealth, K.C. Wheare discussed 3 areas in which their prior status as British

colonies created challenges for the British Commonwealth countries in establishing and

asserting independent governments.93 First, Wheare noted, the United Kingdom

Parliament had always made laws to govern its colonies that trumped all locally-made laws.94 Also, the pre-independence constitutions of the colonies either emanated from

Parliament or in an order-in-council enacted under Parliament’s authority.95 The

governor of the colonies, sent from England and appointed by the monarch, had the

authority to reserve his assent to any bill being proposed locally for the monarch’s

decision.96 When local statutes were passed, the government of the United Kingdom had the power to disallow or to invalidate the statute.97

93 K.C. WHEARE, THE CONSTITUTIONAL STRUCTURE OF THE COMMONWEALTH 21 (1960).

94 Id. The Colonial Laws Validity Act 28 & 29 Vict. C63 § 2 provides

Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which any law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative. See A.C.T. Legislation Register, http://www.legislation.act.gov.au/a/db_1778/default.asp (last visited Feb. 7, 2005).

95 WHEARE, supra note 92 at 23.

96 Id. The governor could reserve his assent to the bill based on instructions from the Queen or the secretary of state or on the basis of the Constitution or within the governor’s own discretion. Id.

97 Id. According to Wheare, though this power was very infrequently exercised it was a potential means to control the local legislature. Id. at 24.

424

A second area where the British Commonwealth countries lacked experience was in overseeing their court systems, since the final court of appeal in the British colonies was the London-based Judicial Committee of the Privy Council.98

The commonwealth countries also had no experience in foreign affairs because they had not had control over their external affairs and could not pass laws that were effective outside the country, receive or accredit diplomatic representatives, negotiate, sign or ratify treaties or join international organizations.99

On gaining independence, Wheare argued, the nations tried to institute legal measures to protect their independence.100 In the case of young nations, Wheare differentiates autonomy, a lack of subordination to the mother country, from autochthony which he defines as “being constitutionally rooted in their own native soil.”101 According to Wheare, at independence, the citizens of most countries want to be autochthonous.102

The concept of autochthony relies on a constitution emanating from the people and a break with the past, Wheare said.103 In this context, to be autochthonous, local Caribbean legislatures would need to determine the system of government that the countries would adopt.104 Wheare’s book was published in 1960, two years before Jamaica, the first

98 Id. at 24–25. Such appeal, being regulated by the British legislature, could not be abolished by the colonies themselves without authorization from the British Act, Wheare wrote.

99 Id. at 24.

100 Id. at 58.

101 Id. at 89. See also CONCISE OXFORD DICTIONARY, supra Note 71. The Oxford Dictionary defines the word autochthonous as “indigenous.”

102 Wheare, supra at 94.

103 Id. at 95. Wheare notes that in the case of India the source of the constitution was declared to be the people. Id. at 103.

104 Id. at 103.

425

British Caribbean country to gain independence, became independent. Still, the issue of autonomy versus autochthony faced Jamaica when she gained independence on August 6,

1962.

A Jamaican attorney and constitutional scholar, Lloyd G. Barnett, traced the origins of Jamaica’s Constitution in his book The Constitutional Law of Jamaica.105 He noted the similarity of the Jamaican Constitution to that of other commonwealth countries around the world that were granted independence after World War II.106 Nonetheless, he saw the

Jamaican constitution as the product of the country’s history, rather than as being merely copied from other countries.107 Although the right to have a Constitution was granted by the Queen, the Constitution emanated from local sources.108

As discussed earlier, Jamaica had universal adult suffrage after 1944. The result of the first general election held under universal suffrage, in 1949, solidified the positions of the P.N.P. and the J.L.P., the two major Jamaican political parties formed by rival cousins, Norman Manley and Alexander Bustamante.109 The government system that evolved was, thus, a de facto two-party political system consisting of a House of

Representatives elected under full suffrage and an Executive Council. The Executive

Council consisted of five members of the House elected by a simple majority and five others. Three of the other members of the Executive Council were government officials

105 LLOYD G. BARNETT, THE CONSTITUTIONAL LAW OF JAMAICA (1977).

106 Id. at 24.

107 Id.

108 Id. at 27–28.

109 TREVOR MUNROE, THE POLITICS OF CONSTITUTIONAL DECOLONISATION: JAMAICA 1944–62 63 (1972). In the 1949 General elections, the J.L.P. and P.N.P. had between them more than 85 percent of all the votes and won 30 of the 32 legislative seats.

426

and two were nominated by the Governor.110 In the pre-independence period, as in the other commonwealth countries, the leader of the political party with the most votes was known as the Premier and the leader of the other political party was the Leader of the

Opposition, a tradition that was continued in independent Jamaica.

In the late 1950s the British Caribbean nations had been working together at forming a union or Federation of West Indian nations.111 In September 1961, in a national referendum, 54 percent of the Jamaican population voted against Jamaican membership in the Federation.112 At the same time Trinidad and Tobago (one government) was uncomfortable with the proposed distribution of powers among the member governments of the Federation.113 After Jamaica’s withdrawal from the federation, the British government decided that federation would not work and the existing federation government was soon dissolved.114 The process of independence began in 1962 when the

West Indies Act was passed, resulting not only in the dissolution of the Federation of

110 Id. at 46.

111 Caribbean, WIKIPEDIA, http://en.wikipedia.org/wiki/West_Indies (last visited June 1, 2006). The entry in Wikipedia states:

The West Indies consist of the Antilles, divided into the larger Greater Antilles which bound the sea on the north and the Lesser Antilles on the east, and the Bahamas which are northeast of the sea. Bermuda lies much further to the north in the Atlantic Ocean and is sometimes included in the West Indies. Geopolitically, the West Indies are organized into 28 territories including sovereign states, overseas departments, and dependencies. At one time, there was a short-lived country called the Federation of the West Indies composed of ten English-speaking Caribbean territories.

112 TREVOR MUNROE, THE POLITICS OF CONSTITUTIONAL DECOLONISATION, supra at 134. See also RICHARD HART, FROM OCCUPATION TO INDEPENDENCE: A SHORT HISTORY OF THE PEOPLE OF THE ENGLISH-SPEAKING CARIBBEAN REGION, supra at 150.

113 Id.

114 Id. See also Elizabeth Wallace, The Break-Up of the British West Indies Federation, CARIBBEAN FREEDOM: ECONOMY AND SOCIETY FROM EMANCIPATION TO THE PRESENT, supra at 455. Jamaica had actually been a leading member of the Federation government. However, while Norman Manley supported Federation he was unsuccessful in educating the Jamaican public about what it involved. Id. Jamaica’s secession led to its downfall since Trinidad, the second largest nation, had indicated that it would back out if Jamaica did. Id. at 457–458.

427

West Indian nations but also the repeal of the United Kingdom Act of 1866, which required the Crown’s consent before certain acts were signed. Thereafter, in July 1962, the Independence Act was passed by the British Parliament making “provision for and in connection with the attainment by Jamaica of fully responsible status within the commonwealth.”115

Once the country gained independence a committee was convened to draft the constitution. The committee included members of the popularly elected House of

Representatives, including five government members and five opposition members, and a committee from the Legislative Council, including two of the members appointed by the government and two of the members appointed by the opposition.116 It also included the

Premier as the chair of the committee.117 Barnett argues that the fact that the committee was comprised of local politicians, along with the fact that the constitution was drafted directly after Jamaicans had voted down membership in the West Indies Federation meant that the Constitution was nationally focused.118 Proposals for a Constitution were widely discussed in the media and among discussion groups formed by the government for that purpose. The public was invited to submit written suggestions about what should

115 BARNETT, supra Note 91 at 23.

116 Id. at 30.

117 Id.

118 Id. at 30.

428 be included in the constitution.119 Thus, according to Barnett, the citizens viewed the constitution as a national product.120

The primary innovation identified by political scientist Trevor Munroe in the 1962

Jamaican Constitution was the Bill of Rights.121 In Britain, legal minds had opposed such a document as being either too abstract to have legal effect or too restrictive of the legislature’s power.122 Popular opinion in Jamaica favored a Bill of Rights and an editorial in the Daily Gleaner, Jamaica’s only daily paper at the time, advised that the

Constitution “should compulsorily include a Bill of Rights,” Munroe wrote in his book,

The Politics of Constitutional Decolonization.123 A sub-committee formed to draft this bill of rights emphatically agreed to include a clause preventing existing laws from being inconsistent with the Constitution. Munroe said the Bill of Rights did not introduce any new rights, but instead validated statutes that already existed in Jamaica to protect the 10 entrenched rights.124

Political Scientist Trevor Munroe suggested that the process of drafting the independence constitution in Jamaica was riddled with the conflicting desire for change and realization of the necessity for continuity. Munroe suggested that, instead of leading

119 Id. However, the author, Barnett, criticizes the process since the public was only given 30 days to submit their opinions and many of the more salient questions were settled before the process was opened to the public. Id. at 31.

120Id. at 32.

121 MUNROE, POLITICS OF CONSTITUTIONAL DECOLONIZATION, supra. at 157.

122 Id.

123 Id.

124 Id. at 159.

429 to a break with the British form of government, independence reaffirmed this position.125

In adopting the British system of government, then Premier Norman Washington Manley described the English Parliamentary system of government in the following terms:

[T]his system of parliamentary government which, over the centuries, has been evolved by the British people who certainly have displayed the most unique genius of any people in history for devising a form of government acceptable to people. And I make no apology for the fact that we did not attempt to embark upon any original or any novel exercise for constitution-building.

We had a system which we understood; we had been operating it for many years with sense. It is a system which has endured in other countries for generations successfully. It is a system which is consistent with the sort of ideals we have in this country and it was not too difficult to decide that we would follow that familiar system with those modifications we thought the circumstances of Independence deserved.126

The Jamaican experience was echoed in the other British Caribbean countries.

Caribbean jurisprudence scholar Simeon McIntosh wrote that the process of writing a

Constitution is a country’s citizens “most prominent attempt at self definition.”127 By adopting British constitutional principles, Caribbean people allowed their British erstwhile masters to define them in independence, McIntosh contended.128

The bi-cameral parliamentary system of government that emerged in post-independence Jamaica is an indication of the tendency to imitate British

125 Id. at 149. Rooted in colonialism, Munroe wrote, was the view of the English imperial power that the local people were backward and not ready to handle the government system in Britain. Id. at 148. Munroe suggests that, in response to the English government’s lack of trust, in asserting equality, the local people tried to demonstrate they were ready. In doing this, the frame of reference for government institutions had to be that of the imperial power. Id.

126 Id.

127 SIMEON C.R. MCINTOSH, CARIBBEAN CONSTITUTIONAL REFORM: RETHINKING THE WEST INDIAN POLITICS 51 (2002).

128 Id. at 51. Thus, the Caribbean people adopted concepts of the world, human nature and categories of speech, thought and action that were uniquely British. Id.

430 constitutional principles. Before proceeding further it is important to explain the system of government in the British Caribbean under the independence constitutions.129

5.5 System of Government in the Caribbean

Because, largely, the cases on public person libel in the Caribbean focus on actions brought by government officials or politicians for libels against them, it is important for readers to have a general understanding of the system of government in the British

Caribbean.

The Caribbean constitutional system of government is based on the separation of powers with three arms of government—the executive,130 charged with the administration of the country; the legislature,131 that makes laws; and the judiciary,132 which interprets the law. Under the principle of the separation of powers each of these organs of government exists as a check against the abuse of the others’ powers.133 In

Jamaica and most of the British Caribbean constitutions executive power vests in the

Queen of England134 and is exercised by her local representative, the governor general.135

Although the Constitution provides that the governor general should be appointed by the

Queen,136 in practice in all the independent Caribbean countries that have retained the

129 JAM. CONST. (Order in Council 1962), http://www.georgetown.edu/pdba/Constitutions/Jamaica/jam62.html (last visited May 3, 2006.).

130 JAM. CONST. § 68.

131 JAM. CONST. §§ 34–36.

132 JAM. CONST. §§ 97–113.

133 W. IVOR JENNINGS, THE LAW AND THE CONSTITUTION 22 (University of London Press Ltd.,1943)(1933).

134 JAM. CONST. § 68.

135 JAM. CONST. § 27.

136 JAM. CONST.

431

Queen as head of state, the Queen appoints the governor general on the advice of the prime minister.137 The system of government in these territories is known as a constitutional monarchy, wherein the Queen is titular head of state, but co-exists with a parliament.138 In the case of Jamaica, political scientist Trevor Munroe notes that at independence some Jamaicans argued for a republic with a titular president.139 Despite the urgings of a spokesperson from the University of the West Indies that the difference would be that the head of state would derive its power from the constitution and not be the Queen’s representative,140 the Constitution Committee rejected the idea of a

Republic. The Committee argued that there was little difference between a constitutional monarchy and a republic with a titular president.141 Nonetheless, perhaps the best argument for the fact that constitutional monarchies that retain the Queen as head of state are, nonetheless, independent is the fact that the countries’ legislators voluntarily, as in the case of Jamaica, make the Queen the head of state.

137 FRED PHILLIPS, COMMONWEALTH CARIBBEAN CONSTITUTIONAL LAW 326 (2002). See also Background Note: Jamaica, U.S. DEPARTMENT OF STATE, http://www.state.gov/r/pa/ei/bgn/2032.htm (last visited June 2, 2006).

138 Id. at 319. See also John Bowman, Constitutional Monarchies, CBC News Online, CBC, http://www.cbc.ca/news/bigpicture/queen/con_monarchies.html (last visited June 4, 2006).

Constitutional monarchy, WIKIPEDIA, http://en.wikipedia.org/wiki/Constitutional_monarchy#Constitutional_Monarchy (last visited June 2, 2006).

139 TREVOR MUNROE, THE POLITICS OF CONSTITUTIONAL DECOLONISATION, supra. at 151–152.

140 Id. at 151.

141 Id. at 152. Munroe suggests that this was “precisely one of the stronger arguments in favor of a symbolic variation” that would represent a “new phase of . . . national life.” Id.

432

In the case of Trinidad and Tobago (one government), Guyana, and Dominica which are all republics, the executive power vests in a president.142 In Guyana the president is popularly elected.143 However, in Trinidad the president is appointed by an electoral committee comprising both houses of Parliament144 and in Dominica he or she is nominated by agreement between the prime minister and leader of the opposition.145

The Constitution also provides for a Cabinet constituting the popularly elected prime minister and no less than 11 other ministers of government.146 The Cabinet is defined in the Constitution as “the principal instrument of policy” and is “charged with the general direction and control of the government of Jamaica.”147 In Jamaica and the constitutional monarchies the prime minister presides over the Cabinet.148 Similarly, in

Trinidad and Tobago (one country) and Dominica the president functions as a titular head and the prime minister presides in Cabinet. However, in Guyana, the president presides in

Cabinet.149

142 TRIN. & TOBAGO CONST. §§ 22 and 74, http://pdba.georgetown.edu/Constitutions/Trinidad/trinidad76.html. See also GUY. CONST. § 89, available online at http://www.oas.org/juridico/mla/en/guy/en_guy-int-text-const.pdf. (Both sites were last visited on Apr. 18, 2006). DOMINICA CONST. § 18(1), http://dominicacompanies.com/dominica/constitution/const.html#18 (last visited May 24, 2006). See also HART, FROM OCCUPATION TO INDEPENDENCE: A SHORT HISTORY OF THE PEOPLE OF THE ENGLISH-SPEAKING CARIBBEAN REGION, supra at 151. Guyana and became a republic in 1976, Trinidad and Tobago in 1976. Dominica became a republic in 1978 on obtaining independence.

143 GUY. CONST. §§ 91 and 177.

144 TRIN. & TOBAGO CONST. §§ 22 and 26.

145 DOMINICA CONST. § 19.

146 Id. at § 69(1).

147 Id. at § 69(2).

148 JAM. CONST. § 75. See also BARB. CONST. § 70.

149 GUY. CONST. § 106.

433

For all the Caribbean countries, legislative power vests in a bi-cameral

Parliament.150 Jamaica’s Constitution provides for a Parliament consisting of the Queen, represented by a governor general, a Senate and House of Representatives151 to “make laws for the peace, order and good government of Jamaica.”152 The governor general is merely a ceremonial head of state and has no authority to perform any governmental role except on the advice of the Cabinet.153

The Constitution, in addition to providing for the position of a prime minister who presides at all meetings of Cabinet,154 provides for a leader of the opposition.155 Both of these persons are appointed by the governor general on the premise that they are the leaders of the two political parties that command the largest level of support of any party in the House of Representatives.156 Munroe commends the innovation of the position of the leader of the opposition as a means of providing a check on government abuse because of his role in selecting Senate members and because of the constitutional

150 See for e.g. JAM. CONST. § 34–36; TRIN. & TOBAGO CONST. § 53; GUY. CONST. § 65.

151 JAM. CONST. § 34.

152 JAM. CONST. § 48(1).

153 JAM. CONST. § 32.

154 JAM. CONST. § 75.

155 JAM. CONST. § 80.

156 JAM. CONST. §§ 70(1) and 80(2) respectively. But see MUNROE, POLITICS OF CONSTITUTIONAL DECOLONISATION, supra. at 163, Munroe argued that although the Leader of the Opposition was an innovation in Jamaica’s Constitution, this position was a de facto aspect of British politics. The effect was that, notwithstanding the number of political parties opposing the government, there was only one recognized Opposition Leader with the legitimate right to be represented with 8 members on the Senate. The new Constitution, Munroe argued, reinforced the control of the two leading Jamaican parties that had held political power since Universal Adult Suffrage. Id. at 165. Munroe suggests the provision was intended to curb the aspiration of the then existing third party, Millard Johnson’s People’s Political Party which had gathered some support because of its appeal to the black race. Id. at 164.

434

requirement that the Prime Minister consult with him before making recommendations to

the Governor General.157

The Senate consists of 21 members,158 13 named by the Prime Minister159 and eight named by the Leader of the Opposition.160 The House of Representatives consists of popularly elected members.161 In accordance with the principle of the separation of

powers, the Constitution prevents persons holding positions on the Senate from being

elected to the House of Representatives.162 Similarly, members of the two houses are

157 MUNROE, POLITICS OF CONSTITUTIONAL DECOLONISATION, supra. at 165.

158 JAM. CONST. § 35(1).

159 JAM. CONST. § 35(2) provides,

Thirteen Senators shall be appointed by the Governor-General, acting in accordance with the advice of the Prime Minister, by instrument under the Broad Seal. Id.

160 JAM. CONST. § 35(3) provides,

The remaining eight Senators shall be appointed by the Governor-General, acting in accordance with the advice of the Leader of the Opposition, by instrument under the Broad Seal. Id.

But see MUNROE, THE POLITICS OF CONSTITUTIONAL DECOLONIZATION, JAMAICA, 1944–62,, supra. at 155–157 Munroe suggested that the Senate, the upper house remained in the Constitution because of inertia. First, the Senate was justified as a delaying Chamber, which by its “level of debate” would facilitate the “education of public opinion” and, by scrutinizing bills from the lower house, would “heighten the quality of Parliamentary Legislation.” Munroe scoffs at this position, observing that although the Legislative Council—which preceded the Senate in pre-Independence Jamaica—was less politically based than the Senate, it had not played the role of an “enlightened chamber of non-partisan” politics. Thus, he said it was naïve for the Commission debating the formation of the Constitution to think the newly-formed Senate would play this role. Secondly, the inclusion of the Senate in the Constitution had been argued to be necessary to guard the Constitution. Munroe also criticized this perspective, arguing that “in order to guard the Constitution, the opposition appointees to the Senate would need to deprive the Government of its 2/3 majority.” Finally, the Senate was argued to be necessary to reinforce the two-party system. Id. at 156. Munroe also disagreed with this third reason because the dependence of the Senate members on the Prime Minister and Minister of the Opposition for their appointment would militate against “the loftier goals of providing objective discussion in the course of legislating and guarding the people’s rights against victimization by their elected representatives.” Id.

161 Id. at § 36. The ability to run for office is limited by the requirement that the representative not be subject to an imprisonment sentence exceeding 6 months or a death sentence (s. 37(a)), disqualified by any law (§ 37(b)), legally “certified insane” or as a “criminal lunatic,” ( Id. at s. 37(c)) or disqualified because he is holding another position of responsibility connected with the electoral process in his constituency (§ 37(d) See also § 40(1)(b)).

162 Id. at § 40(1)(a).

435 disallowed from holding positions in the judiciary or the defense force, or armed services,163 or being a partner or director in any company benefiting from government contracts.164

Again, while this discussion has focused on Jamaica, the other British Caribbean islands developed similar executive and legislative branches. The third arm of the government is the judiciary.

5.6 Political Culture in the British Caribbean

Because the majority of Caribbean cases involving libel claims made by public persons are in response to comments or reports about politicians and political matters, it is important for readers to have an understanding of the political culture and beliefs in the

Caribbean. This will promote an understanding of the case discussion that follows in chapters 6 and 7.

The late Caribbean political scientist Carl Stone defined political culture as the

“values, beliefs, myths, ideas, behavior patterns, and underlying patterns” shared by persons in a political community.165 In the case of Jamaica, the political culture is passed down through generations by “family, friends, community, church, the political parties and other agencies of political socialization,” Stone wrote.166 Although the parliamentary system of government has been transplanted from England, the local political culture

163 Id. at § 40(1)(b).

164 Id. at § 40(1)(c). Members of both houses are constitutionally required not to have acknowledged “allegiance, obedience or adherence to a foreign Power or State” (§ 40(1)(a)).

165 CARL STONE, CLASS, STATE AND DEMOCRACY IN JAMAICA 48 (1986).

166 Id.

436 determines how the system works in practice, Stone said.167 The main elements of political culture, according to Stone, are the way members of the political community believe power and influence are exercised, and the actual interrelation of power, influence and authority in the political community.168

Caribbean political culture is characterized mainly by class and color distinctions.

Sociology professor Anton Allahar in his 2003 article, Is there a new Political Culture in the Caribbean? Challenges and Opportunities, wrote that Caribbean culture consists predominantly of a Creole culture comprising European and African cultures along with, depending on the island, degrees of influence from India and China and indigenous cultures.169 Allahar wrote that the British political system was so ingrained in the

Caribbean that the subordinated Caribbean population largely embraced the British racial, social and cultural standards.170 The political system in the post-independence Caribbean states was based on liberal democratic principles that embraced capitalism, class inequality and race inequality as “‘natural’ facets of social life,” Allahar suggests.171

Because of their inherited dependency, Allahar wrote, the lower classes “identified with their oppressors and acquiesce[d] in their subordination.”172

167 Id.

168 Id.

169 Anton L. Allahar, Is there a new Political Culture in the Caribbean? Challenges and Opportunities, in MODERN POLITICAL CULTURE IN THE CARIBBEAN 22 (2003).

170 Id. at 26.

171 Id.

172 Id.

437

Allahar suggested that in the modern day Caribbean, institutions of race and class are the two most important influences on political culture.173 Racial and class inequities were important to maintaining stability in the colonial system that required the subordination of non-whites.174 However, in the period leading to independence, black

Caribbean people began to reject the colonial legacy and the racial dynamics were uprooted as “Black” and “African,” once symbols of inferiority, became symbols of pride and strength. Allahar argues that, to maintain the status quo, the minority white group began to embrace the economic rather than the color aspects of colonialism.175

The racial dynamics in the Caribbean are much more complicated than that in the

United States since distinctions are based on degrees of color rather than the fact of the existence of Negro blood, Allahar suggested.176 Additionally, in the Caribbean “social color” distinctions exist for blacks who attain financial success.177 Thus, black persons who achieve economic prosperity effectively gain access to a higher social status. Thus,

Allahar contended that class plays a larger role in the political structures of the British

Caribbean than race.178 However, Allahar suggested that race should not be discounted as a political factor since “at the level of . . . populist politics the irrational, primordial pull of race outweighs any rational appeal to class identity or consciousness.”179

173 Id. at 21.

174 Id.

175 Id. at 22.

176 Id. at 28.

177 Id.

178 Id. at 29.

179 Id. at 29.

438

Marxist political scientist Trevor Munroe in his book, Social Classes and National

Liberation in Jamaica, wrote that the effect of British colonial government in post-independence Jamaica was to stunt the country’s development, turning the country into an “agrarian, raw material appendage.”180 This was done by preventing national ownership of the means of production, including plantations, mines and local businesses.181 In the pre-independence period, Munroe wrote, British capital was used to prevent the local production of goods that were demanded locally, thereby ensuring a certain market for British-produced goods.182

European rule effectively forced third-world dependence on international capitalists while local agriculture, industry and manufacturing were “blocked from developing” in a manner consistent with local needs, Munroe argued.183 Jamaica emerged from colonialism totally dependent on imperialist capital for food, shelter and clothing, he wrote.184

Munroe also wrote that, in the latter periods of British rule in the Caribbean the ruling class’ power over the state machinery was reinforced by the colonial system of government which effectively excluded all local people from involvement in the government system.185 The British government also prevented the development of social

180 TREVOR MUNROE, SOCIAL CLASSES AND NATIONAL LIBERATION IN JAMAICA 19 (1983).

181 Id.

182 Id.

183 Id.

184 Id. at 20.

185 Id.

439 forces such as a local capitalist or intellectual class that could challenge the system.186

This was achieved by providing no local university or schools to encourage technological and scientific knowledge during the colonial period, a period that lasted between the seventeenth century and the 1960s.187

Munroe argued that the British colonial power destroyed the spirit of the local people by inculcating the belief that the black race was inferior.188 In books, newspapers, at school and elsewhere, blacks were being taught to deplore their African roots and embrace the manners and morals of the British.189

Political pollster and analyst Carl Stone said that at the base of Jamaica’s democratic political system is “a common core of political values that cut across class and political party affiliations.”190 These include the central importance of the right to private property, the dominant role of “religion and religious beliefs and practices to ensure the moral health of the political community,”191 individual personal freedoms, voting rights, membership in political organizations, and the state’s role in ministering to the needs of the disadvantaged classes.192

These beliefs, Stone wrote, stem from the erstwhile position of the majority as descendants of slaves, leading to a strong desire to purchase property as a measure of self

186 Id.

187 Id. at 21.

188 Id.

189 Id.

190 CARL STONE, CLASS, STATE AND DEMOCRACY IN JAMAICA 67 (1986).

191 Id.

192 Id.

440 worth.193 The beliefs also stem from the church’s traditional role in assisting newly emancipated slaves to purchase property and gain education.194 Stone said that Jamaican politics is characterized by liberal notions on individual rights and freedoms that protect the disadvantaged classes.195 These values provide the basis for the survival of democracy in Jamaica, Stone suggested.196

A December 1981 national survey conducted by Stone revealed that the majority of

Jamaicans believed that the progress of the poorer classes had been helped by freedom of speech and the right to own property, the assistance of politicians and government ownership of manufacturing and production facilities have helped to promote the progress of the poorer classes.197 Stone wrote that Jamaicans are proud of their right to vote and saw it as a means to exercise control over the government.198 He noted that in

1976, 72 percent of the population voted and in 1980, 80 percent voted.199 In the 2002, the most recent general election in Jamaica, the voter turn out was 65.22 percent of registered voters.200

193 Id. at 68.

194 Id.

195 Id.

196 Id.

197 Id.

198 Id. at 49.

199 Id.

200 Lloyd Williams, PNP wins fourth term 10-seat margin of victory, Jamaica Election 2002, DAILY GLEANER, updated June 2, 2006, http://www.jamaicaelections.com/election2002/news/20021017-1.html (last visited June 2, 2006).

441

Stone contrasted Jamaica’s political culture with that in western industrial nations where middle classes are more involved in political action groups than lower class, less educated groups. Stone defined lower classes as the bottom 40 percent of the Jamaican population in economic terms.201 In Jamaica both parties get the majority of their hardcore support from the lower-class urban and rural workers.202 This support, Stone said, was connected with the lower class’ desire for power.203

Stone, thus, characterized the two Jamaican political parties as “poor people’s parties.”204 He said that among the reasons for this are, first, the small minority privileged or rich class in Jamaica205 dominated the economy while middle classes, who Stone defines as the middle 40 percent of income earners, held key positions and used intra-class networks and professional organizations and interest groups to meet their economic and social needs.206 But the lower economic classes in Jamaica had no organized means of protecting their class interests. Lower class Jamaicans were largely unemployed; self-employed as hagglers,207 and small farmers; or very lowly paid workers and had no access to trade unions.208 Lacking motivation, resources and leadership to

201 Id. at 50.

202 Id. at 50. In the 1980s, Stone estimates that of one million eligible voters, Stone estimates the two major political parties could mobilize 250,000 hardcore supporters between them. Id. at 49.

203 Id. at 49.

204 Id. at 50.

205 Id.

206 Id.

207 CONCISE OXFORD DICTIONARY, supra. defines “higgler” as a West Indian term meaning “pedlar.” A “pedlar” or “peddler” is defined as “an itinerant trader in small goods.”

208 STONE, CLASS, STATE AND DEMOCRACY IN JAMAICA, supra Note 181 at50.

442 organize themselves and alienated from a system where economic power was concentrated in the hands of a few persons, the lower classes have, since universal adult suffrage in 1944, been drawn to either of the two major political parties as a means to gain some access to the decision-making processes of the country and to have their interests represented.209

Political parties in Jamaica bring together several class interests that unite in the bid to win the election and, within the party system, class loyalty is relegated to party loyalty,

Stone wrote.210 The internal party structure is shaped by the lower classes because they are the majority class. This gives the lower classes a sense of dignity, status, respectability and recognition through their identification with the party leader and the success of the party.211 Although, generally, middle class Jamaicans see politics as a dirty game, corrupted by the subculture of the poor people, Stone wrote that the leaders of the political parties are drawn from a small sector of the middle class, who are influenced by political and social beliefs that cause them to unite with the poor people’s cause.212

Despite middle-class leadership, Stone disagreed with the characterization of the parties as middle-class organizations.213

The political parties provide a framework for collective identification for the once alienated lower classes, Stone wrote.214 For the middle classes, the political parties

209 Id. at 50–51.

210 Id.

211 Id.

212 Id. at 53.

213 Id. .

214 Id.

443 provide political stability and minimum amount of support for professions that control the parties and their leadership, Stone contended.215 To encourage the lower class’ commitment, the parties often strongly support their interests, alienating several members of the rich and middle classes. However, by over representing the lower classes in middle-class controlled political parties, the party leaders sensitize their followers in the middle class to the “expectations, aspirations and world view of the very poor.”216

Over the years in the process of negotiating class conflicts, two types of leaders have emerged in Jamaica, Stone wrote.217 The first, the paternalistic populist leader, worked quietly and systematically to make changes for the poor, relying on persuasion and compromise. The second, the militant populist leader, directly confronted the powerful classes, alienated them and relied on the anger of the lower classes.218 While the militant leader attracted greater hostility, the privileged classes trusted neither type of leader.219

Regardless of their style of leadership, the populist leaders who emerge from this culture are authoritarian.220 This is necessary because the lower classes want a strong authority figure to define a path for the party, Stone wrote. The party leader has “ultimate authority and becomes a sort of transcendental, larger-than-life figure who must not be criticized nor questioned” since the lower-class party hardcore gain power vicariously

215 Id.

216 Id.

217 Id. at 51.

218 Id. at 52.

219 Id.

220 Id.

444 from the party leader’s strength, Stone wrote.221 In this system, at the national level within the party structure, there is “no room for consensus, fair discussion, internal self-criticism and critical evaluation of party direction.”222 Criticism of the leader is tantamount to party disloyalty, Stone wrote.223

While the party leader controls policy formation at the national level, at the community level, and within political constituencies, local autonomy over the allocation of scarce benefits, campaign strategies and local leadership is the norm, Stone wrote.224

Because Jamaica does not have the resources to maintain a welfare state as exists in

Western Europe and North America, welfare politics is an important aspect of Jamaica’s political culture, Stone wrote.225 Scarce benefits including employment on government projects, building contracts and access to housing are distributed to party faithful by the members of parliament and local government councilors, who are responsible for the internal management of individual constituencies, according to Stone.226

The allocation of scarce benefits even resulted in violent activity among rival political party hardcore members in the 1980s.227 Defeat in an election would lead to backlash as the losing party’s members were chased out of communities and became

221 Id.

222 Id.

223 Id.

224 Id. at 54.

225 Id.

226 Id.

227 Id.

445 victims of violence, Stone wrote.228 This violence was fueled by anger at their social condition, which led to inter-party antagonism.229 In this setting, political gangs, operating with the support of party faithful kept dissidents in line through “banishment, beatings, and threats of actual murder,” according to Stone.230 In eight of the 15 communities—called constituencies—across the adjoining major cities of Kingston and

St. Andrew, political gangs operated freely in the 1980s, according to Stone.231 Such communities, labeled “garrison communities,” were either built up by one or other political party with a predominance of its own handpicked supporters, or have, over the years, chased out all persons from the opposing political party, Stone wrote.232 According to Stone, the violence effectively destabilized the communities, intimidating the middle class and rich, and creating a feeling of anarchy among the poor population in the communities that were not associated with the political gangs.233

Although Stone was writing in the 1980s, the problem of garrison communities supported by each of the two political parties is still an issue. The1997 National

Committee on Political Tribalism chaired by Justice James Kerr reported that “garrison

228 Id. at 55.

229 Id. at 56. Hostility was sustained by stereotyping the party faithful of the other party as being evil, dishonest, unclean, opportunistic, violent, stupid and having a selfish “lack of commitment to the national interest.”

230 Id. at 57.

231 Id.

232 Id. During the 1980 election in Jamaica 510 people died because of political violence. Id. Seventy-seven percent of the deaths occurred in Kingston & St. Andrew, where only 36 percent of the island’s population was concentrated. Id.

233 Id. at 58.

446 phenomenon has become central to the practice of electoral manipulation in Jamaica.”234

The border wars between the garrison communities in the poor communities in West

Kingston prevented the maintenance of law and order, social infrastructure, and business opportunities in those areas because the authorities and businesses were afraid to go into these communities, the report of the committee chronicled.235 The committee said that the causes of the growth of garrison communities included the system of party patronage and the distribution of scarce resources such as housing and land to party faithful by the two major political parties.236 Garrison communities continued to thrive, the committee found, because of the high levels of poverty and lack of skill training in several parts of the island.237

Unlike Jamaica and other British Caribbean countries that have a majority black population, the twin-island government of Trinidad and Tobago238 and Guyana have almost equal percentages of blacks and East Indian populations. The double majority has meant that the racial dynamics in these two countries is more complicated than that in

Jamaica. Guyana’s experience provides an example of how the racial complexity interacts in the political culture of countries where there are two large majority races.

234 Behind Jamaica’s Garrisons (Part I), JAMAICA GLEANER, GO JAMAICA, http://www.jamaica- gleaner.com/pages/politics/ (last visited June 2, 2006).

235 Id.

236 Behind Jamaica’s Garrisons (Part II), JAMAICA GLEANER, GO JAMAICA, http://www.jamaica- gleaner.com/pages/politics/ (last visited June 2, 2006).

237 Id.

238 Percy C. Hintzen, Rethinking Democracy in the Post Nationalist State: The Case of Trinidad and Tobago, in MODERN POLITICAL CULTURE IN THE CARIBBEAN 395, 398 (Holger Henke & Fred Reno eds., 2003). In 1996 the population was estimated at 1,272,000. Afro-Trinidadians were 39.6 percent and East Indians were 40.3 percent, interracial groups, coloreds (blacks and whites) and dooglas (blacks and East Indians) accounted for 18.4 percent. Whites—including Portuguese, French Creole, Spanish Creoles and descendants of English colonizers—were 0.6 percent of the population.

447

Political Scientist David Hinds writes about the effect of race in Guyana where there are large East Indian and black populations in his 2003 article.239 Like Jamaica,

Guyana’s dominant political culture is authoritarian. The culture embraces “racial domination, confrontation, doublespeak and deference to foreign mediation,” Hinds contended.240 However, although the Indian-based People’s Progressive Party (P.P.P.) and the African-based People’s National Congress (P.N.C.) represent groups from different ethnic backgrounds, “they share the same political attitudes and values,”241 and the desire to secure domination within the racial hegemony by keeping the lower classes from governance, Hinds wrote.242

Both political parties create a culture within which the lower classes are co-opted by the privileged classes. The culture includes, “charismatic appeal, racial solidarity, appeal to racial insecurities among the masses and the power of the state to perpetuate itself,” Hinds wrote.243

Thus, Hinds wrote, race is the dominant factor in Guyana’s two-party political culture where most political activities, regardless of class, are motivated by racial factors or “racial insecurity.”244 The racial insecurity had its roots in the period immediately following slavery when indentured servants, brought from India to supplement the labor

239 David Hinds, Guyana’s Dominant Political Culture: An Overview, in MODERN POLITICAL CULTURE IN THE CARIBBEAN 351, 352, (Holger Henke & Fred Reno eds., 2003).

240 Id. at 354.

241 Id.

242 Id.

243 Id. at 355.

244 Id.

448 force, undercut the ability of newly-freed blacks to bargain for better wages. This led to conflict and distrust between the races.245

This conflict has continued into independence as the two dominant races, each in its own political party, compete for political control. The competition has escalated because of racial segmentation leading to fear of domination by the other racial groups, enhanced racial solidarity and emasculating all attempts at political co-operation, Hinds wrote.246 Instead, in 2003 when Hinds was writing, he contended the culture allowed domination by the political party in power. The system does not promote unity, Hinds argued, and, while the parties pay lip service to the need for racial accommodation when in the opposition, neither has tried to achieve cooperation when it gains political ascendancy, Hinds argued.247 Similarly, the lower classes within the two-party political structure condone authoritarianism and racial discrimination when their parties are in power, but criticize these policies when they are victims.248

Within the political party, the leader of the party is seen as a “Messiah,”

“Liberator,” and “Comrade Leader” in a system where the people’s expectations of the leader—and his concomitant understanding of the meaning of this expectation—leads to

245 Id. at 355–356.

246 Id. at 356.

247 Id. at 356–357.

248 Id. at 360. In Guyana, voting decisions are generally made along racial lines. Fifty-one percent of the Guyanese population are Indians, 42 percent are Africans and mixed races. In 1992, P.P.P., the political party that was started by East Indian Cheddi Jagan and continues to be run by East Indian leaders, received 53 percent of the votes. The P.N.C., the party that was started by a black political leader Forbes Burnham, and continues to be led by black leaders received 44 percent of the votes. In 1997 the P.P.P. received 53 percent and P.N.C. received 40 percent; in 2001 the P.P.P. received 52 percent and P.N.C. received 42 percent of the votes. Thus, Hinds suggested, largely, the success of the P.P.P. at general elections was almost proportional to the percentage of the population that was Indian.

449 an authoritarian form of leadership.249 Authoritarianism is rooted in the start of modern-day politics in Guyana in the 1940s when the P.P.P. founder, Dr. Cheddi Jagan, and P.N.C. founder, Forbes Burnham, both enjoyed unchallenged leadership in the political party.250 The democratic machinery that developed within each of the parties is weak. Instead of collective leadership, the leaders of the two parties are “generals” with unlimited authority, Hinds wrote.251

Politics in Guyana is also confrontational as political discussion among principal party figures includes threats, counter-threats and a lack of mediating forces, Hinds reports.252 Similarly, politics is characterized by double speak with one message for the nation and another for supporters, Hinds wrote.253 The message to the nation is multiracial cooperation, while among the party faithful the message is racial pride, according to Hinds.254

According to Stone and Hinds, both Jamaica and Guyana have authoritarian systems within the internal politics of political parties. In the case of Jamaica class plays a more important role than race, but in the case of Guyana, the issue of race complicates the political process.

249 Id. at 362.

250 Id. at 362–363.

251 Id. at 363. The P.N.C.’s constitution specifically gives the leader power over all party organs. Although the P.P.P.’s constitution does not specifically give the leader full control of party organs but he enjoys de facto control. Generally speaking most political parties in the British Caribbean have constitutions.

252 Id. at 364–365.

253 Id. at 366.

254 Id.

450

5.7 Media Culture and Freedom of Press in the British Caribbean

For the most part the Caribbean cases on public person libel focus around newspapers. In order to understand these cases it is important to understand the media culture, the relationship between media and government and, also, levels of media freedom in these countries.

International scholar and lecturer, John Lent, in his 1990 book examining freedom

of speech in the Caribbean,255 notes that all newspapers in the Leeward Islands256 were either owned or affiliated with the government or the opposition party, and all broadcast stations in both the Leeward and Windward islands257 were associated with or controlled

by the government.258 The facilities of the media outlets are enhanced by the government

association, Lent wrote.259 The association with government also enhances the broadcast

station’s ability to interview government officials and access stories about government.260

However, the opposition parties have complained that they are not allowed fair and equal time on the government-run broadcast media.261

255 JOHN A. LENT, MASS COMMUNICATIONS IN THE CARIBBEAN, (1990).

256 The Leeward islands are St. Kitts, Nevis, Anguilla, Antigua, Montserrat, and the Virgin Islands.

257 The Windward Islands are Dominica, St. Lucia, St. Vincent and the Grenadines and Grenada.

258 Id. at 73. This was most pronounced in the 1980s in the case of Antigua where the government held shares in, or controlled most of the media. But in St. Kitts the newspapers are owned or aligned with the trade unions and their political parties.” Id. Thus, 51 percent of the shares in the Democrat was owned in 1990 by a group, PAM Pubco, which is part of the People’s Action Movement (P.A.M.), a political party there, while the broadcasting stations are also government-owned. Id. Similarly, Lent writes that, in Montserrat traditionally the papers are owned by the government or political parties. Thus, major shareholders of The Mirror which folded in 1981 were government ministers. Id.

259 Id.

260 Id. at 75.

261 Id. Lent notes that while in Montserrat the opposition party is allowed to pay for unlimited amounts of commercial time, it is “denied participation in discussion, news, and other types of shows.” Id.

451

In both Montserrat and Antigua licensing fees have been imposed on the press.262

Although the Antiguan government abolished its licensing fee with the repeal of the

Newspaper Surety Act in 1976,263 government critic and journalist Tim Hector was prosecuted several times in Antigua under a criminal libel law preventing the distribution of false statements “likely to cause fear or alarm in or to the public or to disturb the public peace, or to undermine public confidence in the conduct of public affairs.”264

Hector, the leader of the socialist-oriented Afro-Caribbean Liberation Movement

(A.C.L.M.) and editor of its weekly newspaper the Outlet, criticized the government in his column “Fan the Flame.”265 He accused the government led by Lester Bird of being

“drunk with the heady wine of a one-party state,” and described the Bird administration as being absolutist.266 For its part, the newspaper of the Bird-led Nation’s Voice ran a photograph of dead people with the caption intimating that “the A.C.L.M. supports

Cuban-Russian killings in Nicaragua.”267

In the Windward Islands268 newspapers that are politically oriented are often both

“less than responsible” and lack objectivity in reporting, according to Lent. For example,

262 Id.

263 Id. The Newspaper Surety Act required newspapers to deposit a surety bond to be uses in the event the newspaper published a libelous article. It also required newspapers to pay a general license fee.

264 Id. at 76. The Public Order Act, as amended in 1968, made almost any criticism of government criminal. It provides criminal penalties for persons who make, print or distribute false statements “likely to cause fear or alarm in or to the public or to disturb the public peace, or to undermine public confidence in the conduct of public affairs.” Id.

265 Id. at 72.

266 Id.

267 Id.

268 See Chapter 1, 1.1 at note 19 for a list of the Windward Islands.

452 the Grenadian and Dominican papers have referred to their national leaders as

“Hitlerites” and “Gestapo imitators.”269

In Jamaica, both political parties have been accused of trying to censor the media.270 According to Lent, Michael Manley, who led Jamaica in a democratic socialist271 government in the 1970s, was in favor of a press that exercised “social responsibility” alongside the press freedom it enjoyed. Manley believed the national interest was paramount.272 In a 1981 interview with Lent, former Prime Minister Manley said:

I am very concerned with the way press freedom is misused. It is used by a given class to promote a given class, linking together the interests of multinational corporations, etc. Such freedom is not reflective of others. Jamaica has a tradition of press freedom, and I have had it drilled into me so I believe in it. But freedom of the press is for whom? The press is often used to manipulate.273

The Gleaner, Jamaica’s oldest newspaper has been described by Manley in his

1982 book Struggle in the Periphery as “the bastion of conservatism, defender of the status quo and the leader of reaction to any attempts at change.”274 In the 1970s the

Gleaner became increasingly critical of the government when Manley’s People’s

269 Id.

270 Id. at 78.

271 See MICHAEL MANLEY, JAMAICA: STRUGGLE IN THE PERIPHERY 123 (1982). For Manley, the label “Democratic Socialism” referred to a socialist government within a democratic system holding regular elections. Manley said that for the People’s National Party, the term “democratic” was as important as “socialist.” This was because the P.N.P. was “committed to the maintenance of Jamaica’s traditional and constitutional plural democracy” and to deepening and broadening democracy in the nation. However, the party was equally committed to socialism and wanted to “reorganize the Jamaican economy on the basis of a system of social control and popular participation.” Id.

272 LENT, supra at 79.

273 Id. at 78.

274 MANLEY, STRUGGLE IN THE PERIPHERY, supra at 134.

453

National Party (P.N.P.) embraced socialism, according to Lent. Manley never directly censored the media. However, when Manley called a state of emergency in 1976,275 the media ownership, afraid of detention, censored itself and dropped bylines to protect journalists, Lent wrote.276 However, when the Central Intelligence Agency (C.I.A.) bailed the newspaper out of financial problems it was facing in 1978, the Gleaner’s criticism of the Manley regime escalated, according to Lent.277 The P.N.P., the Press Association of

Jamaica (P.A.J.) and others believed that the C.I.A. had pumped money into the newspaper in an attempt to ensure the overthrow of the Manley government, Lent wrote.278

By 1979 the Gleaner and Manley were openly hostile to each other, the former embracing a Western alliance, capitalism and conservatism while Manley represented socialist development and third-world alignment, Lent wrote.279 In the ensuing battle,

Manley called the Gleaner “the brothel of North Street,” “harlot” and “Call girl” and accused the editors of “mendacity, lack of patriotism, and subversion.”280 The Gleaner

275 The Emergency Powers Act § 2 [1938] allows the governor general to declare a state of public emergency when a public emergency arises such as § 2(a) “earthquake, hurricane, flood, fire, outbreak of pestilence, outbreak of infectious disease or other calamity whether similar to the foregoing or not” or, according to § 2(b) when “action has been taken or is immediately threatened by any person or body of persons of such a nature and on so extensive a scale as to be likely to endanger the public safety or to deprive the community, or any substantial portion of the community, of supplies or services essential to life.” Under the Emergency Powers Act § 3(2)(a) the governor general can authorize the “detention of persons and the deportation and exclusion of persons from Jamaica” during a state of emergency.

276 LENT, supra at 78.

277 Id.

278 Id. at 79. A pamphlet produced by C.I.A. critic Fred Landis in 1980 charged that the “language style and unblinking coverage of violence and economic woes” in the Gleaner in the 1970s was “the handiwork of the C.I.A.” Id.

279 Id. at 80–81.

280 Id. at 81.

454 accused Manley’s People’s National Party of trying to implement communism and trying to stifle the press.281 After an article in the newspaper referred to Manley as “Judas,”

Manley adjourned a cabinet meeting and he and his ministers marched to the Gleaner’s office where they staged a protest.

A Gleaner’s call for “the overthrow of the government and the disobedience of lawful government decrees” was seen by some as seditious and the Gleaner was accused of distorting news to destroy Manley’s image.282 Nonetheless, the PNP did not retaliate by invoking the existing State of Emergency to shut down the newspaper. Rather, the

P.N.P. limited its responses to “libel suits, verbal attacks in interviews, press conferences and ministerial meetings.”283 Ultimately, the Press Association of Jamaica (P.A.J.) requested a public inquiry into the “unethical and improper journalism” being practiced by the Gleaner.284

In 1973 the Daily News was formed as an independent newspaper, though owned and run by supporters of the P.N.P. But by 1978 the newspaper was financially unstable and the government took control of it.285 Similarly, the government took control of Radio

Jamaica Rediffusion (R.J.R.) in 1978, it said to counteract the Gleaner’s oppositionist

281 Id. at 81.

282 Id. at 80, quoting Ellen Ray and Bill Schaap, Massive Destabilization in Jamaica: 1976 with a New Twist, COVERT ACTION (Aug.– Sept. 1–17, 1980).

283 Id. at 81.

284 Id.

285 Id. The Daily News was charged not to “support reaction; must promote egalitarianism, not elitism; must support the Third World in the North-South dialogue; and must support a ‘mixed’ economy of state-owned and private firms.”

455 tendencies. The government already owned both the television and radio broadcasting channels of the Jamaica Broadcasting Corporation (J.B.C.).286

The coverage by the Gleaner of the 1980 general elections has been described as biased against the P.N.P., according to Lent.287 When the P.N.P. lost the general election to the Capitalist-oriented Jamaica Labor Party (J.L.P.) led by Edward Seaga, the Gleaner did not attempt to hide its joy headlining one of its articles “Seaga Stuns Them with

Elegance.”288

However, once Seaga, the leader of the J.L.P., took office, he retained the offices of the Ministry of Information, Broadcasting and Culture and proceeded to exact revenge against the media that had supported the P.N.P.289 The Daily News was still owned by the government and its columnists were targeted with suspensions and dismissals. The editor of the Daily News, also head of the Press Association of Jamaica, was suspended.290

Similarly, staff members from the Jamaica Broadcasting Corporation (J.B.C.) were also fired. Mainly Lent criticizes Seaga for privatizing the formerly public broadcasting media. 291

In response to Seaga’s reaction the Press Association of Jamaica (P.A.J.) launched a campaign disclosing Seaga’s tactics to the European Parliament.292

286 Id.

287 Id. at 81.

288 Id.

289 Id.

290 Id. at 81.

291 Id. at 83.

292 Id. at 82.

456

The Gleaner, which was started in 1834,293 is Jamaica’s oldest existing newspaper and, has often existed without any competing national newspaper.294 In the 1980s Manley wrote of the Gleaner:

“It must be next to impossible for outsiders to understand a newspaper coming to occupy so dominant a position in the life of a country as the Gleaner does in Jamaica. The paper has been the only source of popular reading in the country for so long that it has become a part of the country’s unconscious system of habits. One often notices the fact that Jamaicans in a foreign country do not ask for a newspaper but enquire whether they can see the Gleaner.295

In Jamaica, the dominance of the Gleaner has been criticized by the Jamaica

Council of Human Rights (J.C.H.R.) as an impediment to freedom of speech.296 In the

1980s several small newspapers were started across Jamaica in response to a need identified by the P.A.J. for an alternative news source to the Gleaner.297 However, none of these newspapers were able to compete with the Gleaner for advertising.298

Like Jamaica’s Gleaner, the Trinidad Guardian, the traditional Trinidadian newspaper, has been criticized for its bias toward big business.299 The Trinidad Express, though also of a similar political slant, is less biased, Lent wrote.300 The Barbados

293 Id. at 13.

294 Id. at 80. In 1978 the Gleaner was the only national newspaper in Jamaica. See also Chapter 7 note 11, supra. Similarly, in 1987 the Gleaner was the only newspaper.

295 MANLEY, STRUGGLE IN THE PERIPHERY, supra. at 134.

296 Id. at 83. In 1986 the chairman of the Jamaica Council for Human Rights (JCHR) asked Americas Watch to study the Gleaner and another newspaper owned by the Gleaner Co., the Star for their coverage of the police killings of suspects between 1979–1985, which Americas Watch found to be inconsistent with eyewitness reports. Id.

297 LENT, supra at 83.

298 Id.

299 Id. at 89.

300 Id.

457

Advocate and Nation are also similarly biased toward big business.301 However, in

Trinidad, television and one of the two daily radio stations in the 1980s were government owned.302 In 1983 in Barbados then Prime Minister Tom Adams revoked the work permit of Caribbean Contact’s Guyanese-born editor Rickey Singh for criticizing the United

States’ invasion of Grenada in that year.303

In Guyana during the government of the Forbes Burnham-led People’s National

Congress (P.N.C.) in the1970s, the government amassed both dailies, both radio stations and the television station.304 This was achieved through purchase, nationalization, and the use of legislative, economic and physical sanctions against opposition groups. Laws passed to allow the government control of the media included the Publications and

Newspapers Act, which forced publishers of newspapers and pamphleteers to post a bond of G$5,000 and to provide two sureties, or two additional persons who could guarantee or post similar bonds. All these parties had to agree that the publisher would pay any fines that resulted from a libel suit.305

The process began in 1971 when the minister of state in the prime minister’s office,

Christopher Nascimento, announced that the “media were national resources and ownership could not be left to chance.”306 Subsequently, Burnham, who later declared his government socialist, said the press’ role was as an agent of the state to support the

301 Id. at 90.

302 Id. at 89.

303 Id. at 91–92.

304 Id. at 83–84.

305 Id. at 83–84.

306 Id. at 84.

458 development of the state.307 In October 1974 a government order banned any literature that in the minister’s opinion was “prejudicial to the defense of Guyana, public safety or public order.”308

Opposition newspapers in Guyana, Mirror, the Open Word, and the Catholic

Standard, were controlled by monitoring their access to newsprint and threatening and instituting libel actions.309 The remaining media, the Guyana Chronicle and the radio station were ineffective as objective critics of government, Lent wrote.310 According to a committee investigating human rights in Guyana, the Guyana Chronicle read like an

“election broadsheet for the P.N.C.” The committee also found that the radio station churned the P.N.C. party line, “ignoring all facts unfavorable to the P.N.C. or its agents, distorting or inventing stories with a view to discrediting opponents of the regime,” according to Lent.311 After Burnham’s death in 1985, the new President, Desmond Hoyte, instituted and won two libel suits against rival newspaper the Standard.312 The presiding judge was later promoted to attorney general and minister of justice.313

Before looking at the levels of freedom of expression enjoyed in the British

Caribbean in the twenty-first century, it is instructive to look at the Caribbean media’s concepts of journalistic standards.

307 Id.

308 Id. at 86.

309 Id. at 87. In mid-1982 seven libel suits were filed by government ministers including Burnham.

310 Id. at 88.

311 Id.

312 Id. at 88.

313 Id.

459

On November 8, 2001, when the Association of Caribbean Media Workers314 was

formed, the group wrote a Code of Ethics for Caribbean journalists.315 The first prong of

the code prohibits media workers from “writing, publishing or broadcasting news

information or comments not based on facts or designed to misinform.”316 The Eastern

Caribbean Press Council is an organization for journalists in Barbados, and the

Organization of Eastern Caribbean States (O.E.C.S.).317 The Code of the Eastern

Caribbean Press Council requires journalists to report stories accurately and states that

journalists shall “include all relevant facts and avoid rumor and unsubstantiated

statements in the interest of accuracy and fairness.”318

The Eastern Caribbean Code also requires journalists to be “free from bias and

distinguish clearly between comment, conjecture and fact” and to “make every effort to

publish all the main points of view or interpretations of an event or issue, regardless of

whether or not they agree with the views.”319

314 See ASSOCIATION OF CARIBBEAN MEDIA WORKERS, http://www.geocities.com/caribbeanmedia (last visited Nov. 3, 2005). The member nations of the A.C.M.W. are news organizations in Anguilla, Antigua and Barbuda (one government), Barbados, The Bahamas, British Virgin Islands, Dominica, Grenada, Guyana, Jamaica, Montserrat, St. Lucia, St. Kitts and Nevis (one government), St. Vincent and the Grenadines (one government) and Trinidad and Tobago (one government).

315 See CODE OF ETHICS: ASSOCIATION OF CARIBBEAN MEDIA WORKERS, http://www.presscouncils.org/library/Caribbean.doc (last visited Nov. 3, 2005).

316 Id.

317 See ECPC: The new Caribbean ‘watchdog’ body on ethics and freedom, www.sluonestop.com/news/jan%2027b%2003.html (last visited Nov. 3, 2005). The OECS is a nine-member grouping comprising Antigua and Barbuda, Commonwealth of Dominica, Grenada, Montserrat, St Kitts and Nevis, St Lucia and St Vincent and the Grenadines. Anguilla and the British Virgin Islands are associate members. See Organisation of Eastern Caribbean States Web site, http://www.oecs.org/about_origin.htm (last visited May 24, 2006).

318 CODE OF ETHICS: EASTERN CARIBBEAN PRESS COUNCIL, http://www.ijnet.org/FE_Article/codeethics.asp?UILang=1&CId=158570&CIdLang=1 (last visited Nov. 3, 2005).

319 Id.

460

Media associations in the Caribbean also support the position that the media has a role to play in the development of the country and is required to be responsible in reporting news. Thus, the Code of Ethics of the Association of Caribbean Media Workers includes a provision against “Writing, publishing or broadcasting materials inimical to the region’s cultural and political sovereignty.”320 Under the code member journalists are prohibited from publishing information “not based on facts or designed to misinform.”321

Thus, the Caribbean regional organization recognizes the need to report truthfully.

The only means of enforcement within the Eastern Caribbean Code is an obligation on its 14 member newspapers when criticized by the council, to “print promptly in full and with due prominence, the council’s adjudication.”322 There is no provision in the

Code of Ethics for Caribbean Media Workers to enforce its provisions.

International press freedom monitoring bodies have ranked the levels of freedom of press in the British Caribbean as being for the most part good. However, the bodies report that some Caribbean countries have instituted repressive measures that reduce the ability of media to publish freely.

The International Press Institute (I.P.I.)—an organization that consists of a network of international editors, media executives and leading journalists—describes itself as being “dedicated to the furtherance and safeguarding of press freedom, the promotion of the free flow of news and information, and the improvement of the practices of

320 Code of Ethics: Association of Caribbean Media Workers, section 7 in International Journalist’s Network Web site, available at http://www.ijnet.org/FE_Article/codeethics.asp? (last visited September 29, 2005).

321 Id. at §1.

322 Code of Ethics: Eastern Caribbean Press Council, supra at resolution 4.

461 journalism.”323 The organization has rated levels of press freedom in countries across the world.

In looking at Jamaica between 2001 and 2003, the organization said that the country has been hailed by international organizations because of its stance on media freedom and that the Human Development Report of the United Nations Development

Program ranked “Jamaica’s press freedom ratings higher than that in several developed countries, including the United States.”324 Gleaner columnist Ian Boyne on December 7,

2003 wrote of Jamaica:

The Press is healthy, robust and showing all the signs of vitality. Even if the cynical among us say that P.J. Patterson and his P.N.P. administration only grudgingly and reluctantly refuse to tamper with press freedom, it has to be admitted that the P.N.P. government has allowed as much dissent as any democratic government anywhere in the world.325

In the wake of an outbreak in violence in the depressed Western Kingston, Jamaica in May 2001, the International Press Institute found that the Jamaican independent media was free to report on sensitive stories.326 However, the I.P.I. report adds that there is a degree of self censorship in the Jamaican press because Jamaica’s Libel and Slander Act provides for 3 years imprisonment for the publication of libelous material.327

In a 2005 survey conducted by Freedom House, all the British Caribbean countries were rated as having free media, except the jointly governed islands of Antigua and

323 International Press Institute Web site, http://www.freemedia.at/wpfr/intro_wpfr.htm (last visited Nov. 3, 2005).

324 See http://www.freemedia.at/wpfr/Americas/jamaica.htm (last visited Nov. 3, 2005).

325 Ian Boyne, The State of the Media, THE DAILY GLEANER, Dec. 7, 2003, http://www.jamaica- gleaner.com/gleaner/20031207/focus/focus1.html (last visited Feb 16, 2005).

326 IPI Web site, supra., Jamaica at p. 3.

327 Id. at p. 3.

462

Barbuda.328 The Survey rated the countries on three criteria: legal environment, political influences and economic pressures, with the maximum points being respectively 30, 40 and 30.329 The larger the total rating, the less free the country is and, under Freedom

House’s rankings, a country with a rating of between 1 to 30 in all categories combined is considered to have a free media; a rating of 31 to 60 is a partly free media; and 61 and more would be media that is not free, according to the study.330

In the region the rankings in order of freedom of the speech measured in 2004 are

The Bahamas (14), Jamaica (15), St. Lucia (16), St. Vincent and the Grenadines (16),

Barbados (17), Dominica (17), Belize (20), Grenada (20), Guyana (23), St. Kitts and

Nevis (23), Trinidad and Tobago (24), and Antigua and Barbuda (40).331 The United

States had a ranking of 17 and United Kingdom had a ranking of 18.332

Table 5-5. Freedom House ranking of levels of Freedom of Speech Ranking Country Status 14 The Bahamas Free 15 Jamaica Free 16 St. Lucia Free 16 St. Vincent and the Grenadines Free 17 Barbados Free 17 Dominica Free 17 The United States Free

328 See Table of Global Press Freedom Rankings 2005, FREEDOM HOUSE, http://www.freedomhouse.org/template.cfm?page=204&year=2005 (last visited Apr. l 7, 2005). .

329 See Methodology, FREEDOM HOUSE, http://www.freedomhouse.org/template.cfm?page=56&year=2003 (last visited Apr. 7, 2005).

330 Id.

331 See Table of Global Press Freedom Rankings 2005, supra.

332 Id.

463

Ranking Country Status 18 The United Kingdom Free 20 Belize Free 20 Grenada Free 23 Guyana Free 23 St. Kitts and Nevis Free 24 Trinidad and Tobago Free 40 Antigua and Barbuda Partly Free

Generally speaking, the levels of freedom of the press in the countries being examined in this dissertation are good, according to the Freedom House Report. In looking at the countries that have been ranked as enjoying freedom of speech in the

Caribbean, the Bahamas had the best ranking. Although, according to the study, the statutory libel laws in the Bahamas are harsh, these laws were infrequently used. At the same time the government had taken positive steps to improve police relations with the mainly independent press, the report stated.333 Although Jamaica is ranked as enjoying the next highest level of freedom of the press, the Freedom House report chronicles the fact that the Jamaican courts are able, under its libel laws, to award punitive damages in the wake of a 2003 award of J$35 million to the Gleaner.334 In Barbados, the report indicates, the media is generally free to express diverse opinions, but the media has

333 See http://www.freedomhouse.org/inc/content/pubs/pfs/inc_country_detail.cfm?country=6790&pf. (last visited April 7, 2006).

334 See http://www.freedomhouse.org/inc/content/pubs/pfs/inc_country_detail.cfm?country=6761&pf. (last visited April 7, 2006). The report also notes that the Director of Public Prosecutions has threatened to prosecute journalists who discuss criminal cases pending before the court. Journalists also are afraid that proposed antiterrorism legislation might infringe on the press’ freedom. However, most of Jamaica’s media is privately owned (14 private radio stations, 3 private television stations and three major daily newspapers and several community newspapers) and free to express diverse views and the government respects independence of the media and supports media competition, according to the report. Id.

464 criticized the existence of harsh libel laws.335 In St. Vincent and the Grenadines (one state), though the media is generally free, the government has been criticized for withholding advertising from media that has been more critical of it, the report states.336

In St. Lucia, though the mostly privately-owned print media has traditionally been free to criticize the government, a new Criminal Code passed in 2003 allows the two-year incarceration of persons publishing false information harmful to the public good, according to Freedom House.337 A 2005 report by International Press Institute suggests that, although the media has freedom to report news stories in St. Lucia, the amendment to the Criminal Code which became effective in 2005 allows the imprisonment of journalists who publish news that endangers the “public good.”338 Additionally Prime

Minister Kenny Anthony has accused “certain select persons in the media” of being involved in a “disinformation campaign” to undermine his government.339 Thus, the relationship between the media and government is unstable.

In 2005, the same I.P.I. report lauded Jamaican journalists for drafting a new code of ethics for the media, but criticized a judge’s threat to ban the media from a high-profile

335 See http://www.freedomhouse.org/inc/content/pubs/pfs/inc_country_detail.cfm?country=6693&pf (last visited Apr. 7, 2006). However, the Association of Caribbean Media Workers criticized the state-owned Caribbean Broadcasting Corporation (CBC) for not airing a program critical of Barbados police’s conduct in restricting access to American golfer Tiger Woods’ wedding in Barbados, according to the report. Id.

336 See http://www.freedomhouse.org/inc/content/pubs/pfs/inc_country_detail.cfm?country=6822&pf (last visited Apr. 7, 2006).

337 See http://www.freedomhouse.org/inc/content/pubs/pfs/inc_country_detail.cfm?country=6721&pf (last visited Apr. 7, 2006). Under section 361 of the Criminal Code, “Every person who willfully publishes a false statement, tale or news that he or she knows is false, that causes or is likely to cause injury or mischief to a public interest, is guilty of an indictable offense and liable to imprisonment for a term not exceeding two years.”

338 St. Lucia, International Press Institute, http://www.freemedia.at/ (last visited June 4, 2006).

339 Id.

465

murder trial.340 In the Bahamas,341 Barbados,342 St. Vincent and the Grenadines,343

journalists reportedly enjoy freedom of the press, according to the I.P.I. report.

In Dominica, ranked by Freedom House as enjoying the same level of freedom of press as the United States and Barbados, apart from verbal attacks by the government, which the Media Workers Association of Dominica feared might encourage public hostility, the media has been generally free to report on government activities, the

Freedom House report states.344 However, according to the I.P.I. report the

government-media hostility escalated during the 2005 general elections when the prime

minister shunned a media invitation to a debate with other leaders.345 Following his re-election in Dominica, Prime Minister Roosevelt Skerrit said he had no intention of stifling press freedom, but would introduce legislation to prevent radio talk shows from damaging the country's image.346

340 Jamaica, International Press Institute, http://www.freemedia.at/ (last visited June 4, 2006).

341 Bahamas, International Press Institute, http://www.freemedia.at/ (last visited June 4, 2006).

342 Barbados, International Press Institute, http://www.freemedia.at/ (last visited June 4, 2006). There is concern that in November, “a forthcoming merger was announced between the Nation Corporation of Barbados, which owns the Nation newspapers and four radio stations, and the Trinidad-based CCN Group.” Id.

343 St. Vincent and the Grenadines, International Press Institute, http://www.freemedia.at/ (last visited June 4, 2006). Although opposition party talk show host Elwardo E.G. Lynch was found guilty of two counts of “making false statements likely to cause alarm,” Vincentian journalist Carlos James, wrote in Searchlight, an independent newspaper, that actions against Lynch should not be seen as media censorship since Lynch began all his talk show programs with a warning to “the public that the talk-show is a political one, organized and funded by the opposition party and is expected to have a biased view in their favor." Thus, James said, Lynch was not a journalist but “an employee of the opposition party." Id.

344 See http://www.freedomhouse.org/inc/content/pubs/pfs/inc_country_detail.cfm?country=6726&pf. Last visited 4/7/2006. The attacks by the government took place in the wake of by-elections called after Prime Minister Pierre Charles’ death in January 2005.

345 Dominica, International Press Institute, http://www.freemedia.at/ (last visited June 4, 2006).

346 Id. Skerrit said, “I want to make it clear that the laws of this country will be strengthened and enforced to stamp out lawlessness and irresponsible behaviour, [sic] calculated to do harm to the image and viability

466

In St. Kitts and Nevis (one state), according to the I.P.I. report, Guyanese-born journalist Clive Bacchus, president of the Media Association of St. Kitts and Nevis, criticized the government for the absence of a Freedom of Information Act, and for distributing "vigorous, politically-driven press releases,” which, he said, had created an atmosphere of uncertainty and widespread speculation."347 The Freedom House report, also found that, although the media is generally free to criticize the government, in 2004, a libel suit brought by a government minister against the opposition party’s newspaper was settled for E.C.$95,000348 (U.S.$35,000).349

In 2004, according to the Freedom House report, in Guyana the print media—even the state-owned Guyana Chronicle—was generally independent and free to criticize government abuse. 350 Still, the opposition has leveled charges that it does not have access to the state-owned broadcast media.351 However, the 2005 report by I.P.I. found the relationship between the media and government to be tense.352 The I.P.I. report cites an annual report of the Association of Caribbean Media Workers’ for 2005 that described of our country," He also said he welcomed discussions on topical issues but that radio call-in programs had persisted with a "campaign of tearing down, blackguarding and undermining." Id.

347 St. Kitts and Nevis, International Press Institute, http://www.freemedia.at/ (last visited June 4, 2006).

348 The Eastern Caribbean dollar (E.C. $), issued by the Eastern Caribbean Central Bank in Basseterre, St. Kitts, is the joint currency of Anguilla, Antigua & Barbuda, Dominica, Grenada, Montserrat, St Kitts & Nevis, St Lucia and St Vincent & the Grenadines. The official rate of conversion fixed since 1976 is E.C. $2.70 to US$1.00. See EAST CARIBBEAN DOLLAR, FLIGHTMAPPING, .http://www.flightmapping.com/Caribbean/currencies.asp (last visited June 5, 2006).

349 See http://www.freedomhouse.org/inc/content/pubs/pfs/inc_country_detail.cfm?country=6820&pf (last visited Apr. 7, 2006). There were also charges that a radio station’s permit renewal was delayed for political reasons.

350 See http://www.freedomhouse.org/inc/content/pubs/pfs/inc_country_detail.cfm?country=6749&pf (last visited Apr. 7, 2006).

351 Id.

352 Guyana, International Press Institute, http://www.freemedia.at/ (last visited June 4, 2006).

467 the government’s abuse of the state-owned media for propaganda as "appalling."353 The government of Guyana also suspended a broadcast station that criticized the government’s flood relief efforts for one month, claiming the station’s comments would encourage disorder, according to the I.P.I. report.354

The single government of Trinidad and Tobago enjoys freedom of speech, according to the Freedom House report.355 However, Trinidad and Tobago’s Prime

Minister, Patrick Manning, has criticized the press and suggested there needs to be a local code of ethics for journalists there, according to the Freedom House report. In 2005, the

I.P.I. report states, the government of Trinidad and Tobago, with populations of black and

East Indians in the majority, issued a draft national broadcasting code that will deter

356 talk-radio stations from “aggravating simmering ethnic tensions.” The Trinidad and

Tobago Telecommunications Authority, under pressure from the media as a result of the draft code357 has agreed to hold discussions with the media before implementing the code.358

In 2004, the government of Grenada is reported by Freedom House to have been involved in a campaign to intimidate the media by threatening libel actions in the wake of

353 Id.

354 Id.

355 See http://www.freedomhouse.org/inc/content/pubs/pfs/inc_country_detail.cfm?country=6849&pf (last visited Apr. 7, 2006).

356 Trinidad and Tobago, International Press Institute, http://www.freemedia.at/ (last visited June 4, 2006).

357 Id. Wesley Gibbings, president of Association of Caribbean Media Workers (ACM), said, "This draft code has to be the most shameless attempt to impose a regime of censorship on the media."

358 Id.

468 the 2004 Privy Council decision that its criminal libel laws are constitutional.359 The

2005 report by I.P.I. suggested that Grenada’s media-government relations have deteriorated as the media and Prime Minister Keith Mitchell are locked in an impasse over media coverage of stories that he accepted money illegally.360 Several libel suits are pending, according to the I.P.I. report.361

Although Belize has a statute allowing the three-year imprisonment of journalists who criticize public financial disclosures of government officials, the law has not been invoked for many years. The Freedom House reported that, despite a 2003 incident where a journalist was forced to flee to the United States after reporting on corruption in the country, the media is usually free to express diverse opinions.362

What distinguishes the jointly governed islands of Antigua and Barbuda, the only country that is adjudged to have only a partly free media, is the legacy of the recently deposed Bird regime.363 The Bird family, that had controlled government in Antigua and

Barbuda through the Antigua Labor Party (A.L.P.), systematically stifled the constitutionally protected right to freedom of speech by preventing equal access to both

359 See http://www.freedomhouse.org/inc/content/pubs/pfs/inc_country_detail.cfm?country=6745&pf (last visited Apr. 7, 2006). See also Chapter 8 generally for a discussion of George Worme & Grenada Today Ltd. v. Commissioner of Police of Grenada, [2004] UKPC 8 in (2003) 63 WIR 78.

360 Grenada, International Press Institute, http://www.freemedia.at/ (last visited June 4, 2006).

361 Id.

362 See http://www.freedomhouse.org/inc/content/pubs/pfs/inc_country_detail.cfm?country=6696&pf (last visited Apr. 7 2006). In 2003 the Grenadian government forced investigative journalist Melvin Flores to flee to the United States in the wake of threats after he reported on corruption in Belize.

363 See http://www.freedomhouse.org/inc/content/pubs/pfs/inc_country_detail.cfm?country=6684&pf, (last visited April 7, 2006).

469 print and broadcast media for opposition parties, according to the report.364 In addition to monopolizing ownership of the media, the government has not honored its promises to privatize it, the report states.365 Additionally, according to the report, “several companies

. . . withheld advertising from one private radio station” fearing loss of government contracts.366 After the March 2004 election ended the Bird dynasty, the Baldwin

Spencer-led government promised to depoliticize the media environment and introduce freedom of information legislation. However, Baldwin Spencer had not honored the promises by the end of 2004, according to the Freedom House report.367 Instead, the government criticized the ZDK station, still owned by the brother of former prime minister Lester Bird, of trying to stir up unrest and briefly closed two formerly government-owned broadcast outlets for not paying their electricity bills.368

In 2005, the I.P.I. report states, Antigua and Barbuda was criticized for ongoing attempts by the government to intimidate the media that ran stories critical of the government.369 At the same time two actions brought by the Director of Public

Prosecution and a government minister against media for libel have been criticized as an

364 2004 report on Antigua and Barbuda, http://www.freedomhouse.org/inc/content/pubs/pfs/inc_country_detail.cfm?country=2879&pf (last visited April 7, 2006).

365 Id.

366 2005 report on Antigua and Barbuda, supra.

367 Id.

368 Id.

369 Antigua and Barbuda, International Press Institute, http://www.freemedia.at/ (last visited June 4, 2006).

470 attempt to stifle freedom of speech.370 The I.P.I. report lauds the government of Antigua for the introduction of its freedom of information act.371

In general, the British Caribbean countries were rated well by Freedom House and the International Press Institute. However, there tends to be ongoing individual problems—ranging from licensing to libel actions being brought by the government and the introduction or invocation of criminal law statutes—that continue to threaten freedom of the press.

5.8 Simeon McIntosh and Freedom of Speech

Simeon McIntosh, a law professor at the University of the West Indies who specializes in constitutional law and jurisprudence in the Caribbean, is one of the few

Caribbean scholars to identify a theoretical perspective on human rights in the

Caribbean.372 McIntosh suggests that free speech is a basic requirement of democracy or governance of a common will.373 He writes that “in a self-reflexive political culture, all the significant political practices will be the subject of continuing, un-manipulated

(public) debate.”374 This involves, for McIntosh, freedom of political expression, belief and association and access to information to evaluate all public and policy alternatives including alternative forms of government. Freedom of speech which allowed “critical self examination” was fundamental to the formation of a self-reflexive political culture,

370 Id. Government threats to take action against talk radio shows that promote what the government calls hate speech that could incite violence, has been viewed with trepidation by the media who fear that such an action might be used to censor media that is critical of the government.

371 Id.

372 SIMEON C.R. MCINTOSH, FUNDAMENTAL RIGHTS AND DEMOCRATIC GOVERNANCE 93 (2005).

373 Id. at 93.

374 Id. at 96. McIntosh defines the term “self reflective” as subjection to “continuing critical examination through unmanipulated debate.” Id.

471 for McIntosh.375 Ultimately, freedom of speech was a necessary corollary to the position of people as governors.376

McIntosh wrote that a normative theory of constitutional democracy required some limitation on sovereign powers beyond majority will.377 Freedom of speech, for

McIntosh, was anti-majoritarian in nature, gaining its importance from the fact that it protected minority speech. This was because, for McIntosh, the aim of freedom of speech is equality rather than the majority rule principle.378 Within this context, freedom of speech does not exist in a vacuum but as an integral part of a system embodying fundamental rights and justified by the principle of the separation of powers.379

McIntosh disagrees in part with scholars who rationalized freedom of speech as a means to attain truth or to protect democratic governance. These scholars view speech as a means to an end rather than the final product, McIntosh says. However, for McIntosh, speech is most naturally associated with an individual right or interest.380 Thus, for him, the real significance of freedom of speech is its ability to promote human dignity and individual autonomy.381 McIntosh writes that the concept of human dignity requires freedom of speech for all persons to ensure equal treatment. Denying one person the right to speak, McIntosh writes, effectively makes him and his speech unequal to others. Thus,

375 Id.

376 Id. at 98.

377 Id.

378 Id.

379 Id. at 98–99.

380 Id. at 99.

381 Id. at 100.

472 free speech can only be restricted on “substantive moral grounds.” The concept of individual autonomy, for McIntosh, requires individuals to be in the position to make autonomous, rational decisions after weighing opposing positions.382

However, McIntosh suggested, fundamental to autonomy is the recognition that individuals are the centre of society, with the ability to influence government by making independent decisions.383 A constitutional democracy, McIntosh wrote, requires a culture in which citizens can “exercise fairly the deliberative powers of independent critical thought essential to their sovereignty over themselves and their state.”384 This argument was linked to the democratic argument for freedom of speech. Since freedom of speech is required to allow individuals to exercise their ability to influence government, freedom of political speech is thus, fundamental to the concept of independent autonomy in allowing individuals to make informed decisions. He acknowledged that this freedom of speech functions best in a system in which self governance was constituted by the people themselves as the governors. He noted that the United States is the best example of this.385

But some speech is not protected under even the constitutional guarantee in the

United States, McIntosh acknowledged.386 Thus, McIntosh, recognized that there are circumstances when speech can be limited.

382 Id. at 101.

383 Id. at 101.

384 Id., quoting DAVID A. J. RICHARDS, TOLERATION AND THE CONSTITUTION, supra note 19, 173 (1986).

385 MCINTOSH, supra at 102.

386 Id. at 104.

473

McIntosh wrote that, rather than relying on liberal definitions to determine what speech was allowed, speech should be viewed as a social bond, fundamental for cohesion and cooperation in community.387 Thus, for McIntosh, the value of speech should depend on its moral quality.388 Speech that does not strengthen and enrich the community, but perpetuates hierarchies and subordination of powerless persons should not be protected.389 Thus, McIntosh wrote, since communication is an action that takes place among people, any communication which had as its primary purpose hurting people’s reputations would not be protected speech because “we live together in communities, and our sense of self is ultimately shaped by how we are regarded by others.”390 A good reputation is essential to full enjoyment of the pursuit of everything in life and fundamental to self respect.391 While humans can exist without wealth or health, the destruction of reputation and social contempt caused by defamatory statements could prevent the development of all their meaningful ambitions.392 Nonetheless, because freedom of speech had a “facial claim” to protection in order to promote autonomy and

387 Id. citing Lisa Heldke, Do You Mind If I Speak? Reconceptualizing Freedom of Speech, in THE ETHICS OF LIBERAL DEMOCRACY IN THEORY AND PRACTICE: STATE, LAW AND SOCIETY 112 (1995) and ROBIN WEST, PROGRESSIVE CONSTITUTIONALISM: RECONSTRUCTING THE FOURTEENTH AMENDMENT, 145–146. (Durham: Duke University Press, 1994).

388 MCINTOSH, supra. at 104, quoting WEST, supra. at 146.

389 Id. at 105.

390 Id. 105–106.

391 Id. at 106.

392 Id. quoting DAVID A.J. RICHARDS, TOLERATION AND CONSTITUTION, 197. (Oxford, Oxford University Press, 1986).

474 human dignity, it was more difficult to justify the need for restrictions on speech than in other situations.393

Yet, McIntosh distinguishes the protection from defamatory remarks that should be provided for public officials from that provided for other citizens. McIntosh says that it is important that public officials face a more difficult burden of proof than other citizens suing for libel because of the importance for self governance of political discourse and of the freedom to criticize public officials.394 For McIntosh, political speech should only be punished where there was “incitement of imminent violence and public disorder.”395

McIntosh is concerned that sometimes libel laws may be abused “to restrict criticism of the government officials.”396 For example, both criminal and civil libel laws can be used to suppress criticism of government by threatening the speaker with incarceration or large damage awards.397 He fears the effect of libel cases might be to chill the press so that it is ineffective in its watchdog role by forcing it to censor itself.398

McIntosh is particularly opposed to criminal prosecutions for libel. He writes that seditious libel laws cannot be condoned because of their chilling effect on speech.399

McIntosh distinguishes between seditious libel and advocacy of unpopular doctrines such

393 Id. at 103.

394 Id. at 108.

395 Id. at 125.

396 Id. at 109

397 Id. at 125.

398 Id. at 135.

399 Id.

475 as Marxism by drawing a line between speech inciting lawlessness and the mere advocacy of subversive ideas.400

McIntosh noted that criminal activities are “moral wrongs” which “derogate from the peace, order and good governance of the society.”401 By punishing crimes, McIntosh wrote, the government vindicates its sovereignty, the rights of its citizens and “a collective commitment to those values protected by the rights.”402 Criminal prosecutions are appropriate in cases involving rape and murder, he wrote. However, criminal libel law was coercive in nature and a “particularly pernicious way to punish political speech critical of the government.”403

Thus, McIntosh based the need to protect freedom of speech on the autonomy of citizens in the process of making decisions as sovereigns in a democratic system and on the importance of the right to speak for human dignity. However, he recognized that because of the social nature of communities, speech intended to ruin another’s reputation and libelous statements should not be protected. He also distinguished political speech and advocated greater protection for libelous statements against public officials. In line with this perspective he strongly opposes criminal and seditious prosecutions by the government for libel.

5.9 Conclusion

In the British Caribbean what overwhelmingly emerged in the newly independent nations were largely strongly autocratic governments that, although elected popularly,

400 Id. at 109.

401 Id. at 125.

402 Id. at 124.

403 Id. at 125.

476 were unchecked in their abuse of democratic processes while in power. Additionally, aside from the constitutional protection for freedom of expression, the freedom of speech and libel regimes that emerged in these nations were almost identical to those in the

English motherland. Thus, constitutions that broadly protected freedom of speech were coupled with statutes providing for criminal prosecutions of government dissenters.

The development of the British Caribbean laws on libel are a good example of how, almost 50 years after independence, these erstwhile colonies continue to be restrained by

British ideas of freedom of speech, particularly since they have adopted constitutions protecting freedom of speech. One thesis of this dissertation is that this factor, as much as the continuing reliance on the Judicial Committee of the Privy Council as the final court of appeal, dissuades the Caribbean from adopting U.S. concepts of libel law regarding public persons.

It is important, however, not to lose sight of the local factors that have led to the difference in the standards used in the United States and the Caribbean. In the early years autocratic leaders systematically bullied the press with threats of libel actions, used licensing schemes and other measures to control the press. However, by the end of the twentieth century the only British Caribbean government that continued to openly prevent freedom of speech was the Antiguan government led by Lester Bird.

Also, in relation to local factors, an important one was the specific protection given to reputation in the Caribbean nation-states, expressed as a specific exception to the right to freedom of speech in the constitutions. In the Caribbean setting because of the small size of the community and islands, reputation continues to exist as an important principle that limits the right to freedom of speech, whether the speech is political or not.

477

The relatively short time that the Caribbean nations have been independent could still be a factor in the development of tradition of free expression. The United States won independence in 1776, more than 200 years ago. The newly independent Caribbean countries, on the other hand, have less than 50 years each of independence and are in the process of nation-building. In this context, we see Manley in the 1970s calling on the media to exercise responsibility in its reporting. The importance of national responsibility is even acknowledged by an organization of media personnel. This dual role of the media as both responsible citizen and as the government’s watch dog must necessarily come in conflict.

But, more importantly for purposes of this dissertation, the emphasis on national responsibility—as well as the emphasis on reputation—can prevent the development of a legal system that disallows the repercussions ranging from criminal prosecution and imprisonment to large libel awards in cases of libel against public persons.

CHAPTER 6 THE CARIBBEAN CASES

6.1 Introduction

As we have seen in Chapter 5, the relationship between politicians and the media in the British Caribbean is generally contentious. It should, therefore, not be surprising that most libel cases that form the basis for the discussion of the public-person standard in the

Caribbean focus on political figures, with only a few cases involving the defamation of persons in their professions.

There have been at least four Caribbean Privy Council cases that have addressed the standards to be used in libel cases involving public figures. All of these decisions have taken place between 2002 and 2005, and they all add significantly to the discussion of standards used in assessing libel actions brought against public figures.

Additionally, more than 20 cases have been decided by the courts of appeals in the various territories since the 1960s, and more than 20 other cases determined by the supreme courts (see figure 1-2 in chapter 1 for the structure of the court system in the

Caribbean). The courts in each Caribbean jurisdiction have liberally used precedent from other islands in determining their legal positions. Ultimately, over the years these courts have established a public person status in libel actions that can be termed a “British

Caribbean position.”

In the process of developing Caribbean jurisprudence in relation to public figures in libel law, two distinct periods can be identified. The first period in Caribbean jurisprudence is the period before 1999 when the British House of Lords made its

478 479 decision in Reynolds. During this period, the jury was largely left alone to make damage awards and there were few cases in which the Caribbean courts of appeal re-examined the jury awards. The second period is the post-Reynolds period. Reynolds is a watershed era because the case effectively introduced a higher standard in establishing the defense of qualified privilege. In addition to the old standard that malice, meaning knowledge of falsity or recklessness had to be shown before imposing liability in a case where qualified privilege applied, Reynolds established that the defendant had to show that he had practiced responsible journalism based on all the circumstances involved in reporting and printing the story.

In this chapter, I examine the pre-1998 Caribbean cases and all but one of the major cases1 decided later to identify the principles determined by the courts in assessing liability for libel and the award of damages. Section 6.2 outlines the structure of the court in the Caribbean. Section 6.3 examines the statutory protection for reputations in libel statutes across the Caribbean. Section 6.4 focuses on the cases in the pre-independence to early independence period in the region—the late 1950s to the 1970s. This period was marked by political unrest as the nascent states attempted to define their paths of development. Section 6.5 focuses on the 1980s to the twenty-first century. Section 6.6 focuses on two Privy Council decisions that took place in the post-1998 period through the twenty-first century. The third Privy Council decision will be discussed in chapter 7.

In section 6.7 the chapter is concluded.

1 The Abrahams v. Gleaner case will be discussed in Chapter 7.

480

6.2 Court System in the Caribbean

The Jamaican Constitution provides for a Supreme Court,2 a court of record with original jurisdiction to hear evidence. The court also has authority to hear appeals from some tribunals and lower courts. The judges in the Supreme Court in the Caribbean system are called puisne judges. The Supreme Court consists of a chief justice,3 a senior puisne judge and as many other puisne judges as prescribed by Parliament.4 Under the

Caribbean system of government, decisions of the Supreme Court or other lower courts

can be appealed to the Court of Appeal in the respective territories, also provided for in

the Constitution (see figure 1-2).5

The Constitution also provides for a Court of Appeal.6 The Court of Appeal, unlike

the Supreme Court, does not hear original evidence, but relies on the records of the lower

court and the arguments and pleadings made by lawyers in the process of appeal. The

2 JAM. CONST. §. 97(1). In the case of Trinidad, Grenada and Barbados, the court is the High Court (see TRIN. & TOBAGO CONST. § 99, http://pdba.georgetown.edu/Constitutions/Trinidad/trinidad76.html, see GREN. CONST. §101(1) (1973), http://pdba.georgetown.edu/Constitutions/Grenada/gren73eng.html see BARB. CONST. § 80(1), http://pdba.georgetown.edu/Constitutions/Barbados/ch7.html). (All three Web sites last visited on 3/30/2006).

3 JAM. CONST. § 97(2). See also § 98(1) which provides that the chief justice is appointed by the governor general (the Queen’s representative in Jamaica) on the recommendation of the prime minister in consultation with the leader of the opposition. See BARB. CONST. §§ 80(2) and 81(1) respectively. See also TRIN. & TOBAGO CONST. §§ 100(1) and 102 respectively (because Trinidad is a Republic, the president appoints the chief justice in consultation with the prime minister and opposition leader. Also in Trinidad the chief justice is an ex-officio member of the High Court, but actually sits in the Court of Appeal).

4 JAM. CONST. § 97(2). See also § 98(2) which provides that the puisne judges are appointed by the Governor General acting on the advice of the Judicial Service Commission. See § 111(2) which provides that the Judicial Service Commission consists of the chief justice, chairman (§ 111(2)(a); the president of the Court of Appeal (§ 111(2)(b); the chairman of the Public Service Commission (§ 111(2)(c)); and three other appointed members (§ 111(2)(d)). The appointed members are appointed by the governor general on the recommendation of the prime minister in consultation with the leader of the opposition (§ 111(3)) and they hold office for three years (§ 111(4)). See BARB. CONST. §§ 80(2) and 81(2) respectively; See TRIN. & TOBAGO CONST. §§ 101(1) and 104(1) respectively.

5 JAM. CONST. § 110(5).

6 JAM. CONST. § 103(1). See BARB. CONST. § 80(1) and TRIN. & TOBAGO CONST. § 99.

481

Court of Appeal consists of a president,7 the chief justice,8 three other judges,9 and such other judges as prescribed by Parliament.10 In addition to its role in hearing appeals from the lower court, the Court of Appeal in Jamaica also has the authority to allow parties the right to bring their civil appeal cases before the Privy Council, the highest court in the

Caribbean, in cases that involve a question of “great general or public importance or otherwise.”11 The Privy Council has an unconditional right to grant special leave to appeal from decisions of the Court of Appeal in civil or criminal matters (see figure

1-2).12

The members of the Organization of Eastern Caribbean States (O.E.C.S.)—Antigua and Barbuda (one government), Dominica, Grenada, St. Lucia, St. Vincent and the

Grenadines (one government), St. Kitts and Nevis (one government)), Montserrat,

Anguilla and the British Virgin Islands—share a common court system.13 The court is known as the Eastern Caribbean Supreme Court.14 The Eastern Caribbean Supreme Court

7 JAM. CONST. § 103(2)(a). See also § 104(1) which provides that the president of the Court of Appeal is appointed by the Governor General on the recommendation of the prime minister in consultation with the leader of the opposition.

8 JAM. CONST. § 103(2)(b), the chief justice is, however, only allowed to sit where there are at least four other judges sitting with him, or he is invited to sit by the president of the Court of Appeal.

9 JAM. CONST. § 103(2)(c).

10 JAM. CONST. § 103(2)(d). See also § 104(2) which provides that the judges of the Court of Appeal are appointed by the Governor General acting on the advice of the Judicial Service Commission.

11 JAM. CONST. § 110(2)(a). See also § 110(2)(b) which also authorized the Court of Appeal to grant leave in other cases determined by Parliament. See TRIN. & TOBAGO CONST. § 109(2).

12 JAM. CONST. § 110(3), TRIN. & TOBAGO CONST. § 109(3).

13 See The West Indies Associated States Supreme Court Order, SI 1967/223. See also ROSE-MARIE BELLE ANTOINE, COMMONWEALTH CARIBBEAN LAW AND LEGAL SYSTEMS 220 (Cavendish Publishing Limited, London, 1999).

14 ANTOINE, supra. at 220.

482 comprises a Court of Appeal and a High Court comprised of puisne judges.15 Both are headed by a chief justice.16 The jurisdiction of the Supreme Court varies from state to state depending on the constitutions of the individual states.17

The final court of appeal in the Caribbean is the Judicial Committee of the Queen’s

Privy Council, otherwise called the Privy Council Board, which sits in England (see figure 1-2).18 Decisions of the Court of Appeal can be appealed to the Queen in Council

or the Privy Council.19 The Queen will generally refer these matters to the Judicial

Committee of the Privy Council.20 The Queen has the power to refer any matter to the

Judicial Committee for “consideration and report.”21

15 The West Indies Associated States Supreme Court Order § 4. Puisne judges are the judges in the Supreme Court in the British Caribbean.

16 Id.

17 ANTOINE, supra at 221.

18 See PRIVY COUNCIL, http://www.privy-council.org.uk/output/page5.asp (last visited May 4, 2006), where the Judicial Committee of the Privy Council is described as “the court of final appeal for the U.K. overseas territories and Crown dependencies, and for those Commonwealth countries that have retained the appeal to Her Majesty in Council or, in the case of Republics, to the Judicial Committee.”

19 JAM. CONST. §§ 110(1)(a)–(d), TRIN. & TOBAGO CONST. § 109(1)(a) –(d) this is in the case of property or damages exceeding $1,000, final decisions in dissolution of marriage, final decisions in civil, criminal or other proceedings on questions of interpretation of the constitution and other cases prescribed by Parliament. PRIVY COUNCIL, http://www.privy-council.org.uk/output/page5.asp (last visited May 4, 2006). Trinidad and Tobago, which consists of one government, and Guyana are republics. The other British Caribbean countries are constitutional monarchies or, in the case of Montserrat, Anguilla and the British Virgin Islands, colonies of Britain. In all the territories the Privy Council is the final court of appeal. The fundamental difference between the mode of appeal by the republics and the constitutional monarchies is that the appeal is made directly to the Privy Council’s Judicial Committee rather than to Her Majesty in Council in the case of republics. See for e.g. TRIN. & TOBAGO CONST. § 109(1) which provides “An appeal shall lie from decisions of the Court of Appeal to the Judicial Committee as of right . . .” cf. JAM. CONST. § 110(1) which provides “An appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council as of right . . .” Note that the constitutions of Guyana and Trinidad and Tobago are preceded by a preamble that squarely identifies the authority behind the constitution rests in the people. In the case of the other territories, the authority clearly rests with the Queen. TRIN. & TOBAGO CONST. preamble cf. JAM. CONST.

20 JAM. CONST. § 110(1). BARB. CONST. § 88(1) and TRIN. & TOBAGO CONST. § 109. See also PRIVY COUNCIL, http://www.privy-council.org.uk/output/page5.asp (last visited May 4, 2006). The constitutions of Guyana and Trinidad and Tobago are preceded by a preamble that squarely rests the authority behind the constitution in the people. In the case of the other territories, the authority clearly relates back to the Queen.

483

The Judicial Committee of the Privy Council is presided over by the Lord President of the Council, the Lord Chancellor, ex-lord presidents, the Lords of Appeal in the

Ordinary (from the House of Lords) and can be enlarged to include persons who have held high judicial office in the Commonwealth.22 Generally, the Lord Chancellor and

Lords of Appeal in the Ordinary in the British House of Lords are the members of the

Privy Council Board that sit in cases.23 Appeals to the Judicial Committee are heard before not less than three, but usually five, members of the Committee.24 The Privy

Council does not pass judgment but advises the Queen. After the Council advises the

Queen, by convention, the advice is implemented by Order in Council.25

Thus, the final court of appeal, and the ultimate arbiter of Caribbean law, as ordained in the constitutions of the British Caribbean countries, is the Judicial Committee of the Queen’s Privy Council that sits in London. As discussed earlier, this is so with the

Montserrat and the British Virgin Islands can be identified as colonies because they each retain a governor rather than a governor general as the Queen’s representative. Thus, MONTSERRAT CONST. § 1(1), http://www.opsi.gov.uk/si/si1989/Uksi_19892401_en_4.htm (last visited May 13, 2006), provides,

There shall be a Governor of Montserrat who shall be appointed by Her Majesty by Commission under Her Sign Manual and Signet and shall hold office during Her Majesty's pleasure. Id.

JAM. CONST. § 27, http://www.georgetown.edu/pdba/Constitutions/Jamaica/jam62.html (last visited May 13, 2006) provides,

There shall be a Governor-General of Jamaica who shall be appointed by Her Majesty and shall hold office during Her Majesty's pleasure and who shall be Her Majesty's representative in Jamaica. Id.

See also Chapter 2, 2.1 for a general discussion of the Queen’s Privy Council or advisory body. The Judicial Committee is one arm of the Privy Council.

21 Id. See the Judicial Committee Act 1833 § 4.

22 th R.J. WALKER, THE ENGLISH LEGAL SYSTEM 181 (4 ed., London Butterworths, 1976).

23 Id. at 182. Thus, Privy Council decisions have high persuasive authority in the United Kingdom. Id.

24 Id. at 182.

25 Id.

484 exception of Guyana, which abolished appeals to the Privy Council in its 1970

Constitution. The 1980 Constitution also did not incorporate the Privy Council as the final court of appeal. Under the Guyanese Constitution, the Supreme Court of Judicature in Guyana consists of a Court of Appeal and a High Court.26 The High Court is a court of origination which, like the Jamaican Supreme Court, hears some matters on appeal. The

Court of Appeal is the highest court of appeal in Guyana.

The Trinidad and Tobago (one country) and Barbados constitutions provide for one

Supreme Court comprising a High Court and Court of Appeal, with the chief justice taking the place of the president of the Court of Appeal in the case of these islands.27

However, the actual system of appeal is the same as in Jamaica and the other territories.

Caribbean countries have signed a cooperative treaty to replace the Privy Council with a Caribbean Court of Justice comprised of judges from the 14 member countries.28

However, on February 3, 2005 the Privy Council ruled unconstitutional the Caribbean

Court of Justice (Constitutional Amendment) Act 2004 of Jamaica, establishing the

Caribbean Court of Justice as the final court of appeal for the island. The Privy Council said the act was not passed according to the procedure required in the Constitution.29

26 See GUY. CONST. art. 124 and 125.

27 See BARB. CONST. § 2 and TRIN. & TOBAGO CONST. § 101(1).

28 These are Antigua and Barbuda (one country), Barbados, Belize, Dominica, Guyana, Haiti, Jamaica, Montserrat, St. Kitts and Nevis (one country), St. Lucia, St. Vincent and the Grenadines (one country), Suriname and Trinidad and Tobago (one country).

29 Independent Jamaica Council for Human Rights (1998) Ltd. and others v. Hon. Syringa Marshall-Burnett and the Attorney General of Jamaica, Privy Council Appeal No. 31 of 2004 (Advance Copy), http://www.privy-council.org.uk/files/other/independent%20jamaica.jud.rtf (last visited February 13, 2006).

485

Until Jamaica holds a referendum, it is unlikely that the nation state can enact into law the agreement she signed with 13 other nation states.30

6.3 Provisions in Libel Acts in the British Caribbean

This section identifies the statutory law in the British Caribbean as it relates to the libel of public persons.

Most of the Caribbean countries have Libel and Slander31 or Defamation Acts,32 which generally include similar provisions. In understanding differences in the Caribbean statutes the dates on which they were passed has some significance. Statutes passed between 1843 and 1881 are patterned after the English Libel Act of 1843 (Lord

Campbell’s Act).33 These are the statutes for Antigua and Barbuda (one government),

Jamaica, St. Vincent and the Grenadines (one country), Bermuda, Dominica, Anguilla,

St. Christopher and Nevis (one government), British Virgin Islands, Trinidad and Tobago

(one government), the Bahamas and Turks and Caicos (one government). Statutes passed between 1952 and 1996 will reflect the 1952 English Defamation Act.34 These are the

30 For the text of the Agreement visit www.sice.oas.org/trade/ccme/ccj1.asp (last visited Feb. 8, 2005).

31 See Libel and Slander acts for the following countries: Grenada (1956) at Cap 171; Jamaica (1851 revised 1961, 1969) at Cap. 219; St. Vincent & the Grenadines at Cap. 89; Bermuda (1857) at Title 8, Item 65; Dominica (1876 revised 1979) Chap. 7:04; St. Christopher & Nevis (1876) at Cap. 44; Virgin Islands (1876 revised 1957) Cap. 42; and Anguilla (2000) R.S.A. c. L50.

32 See defamation statutes for the following countries: Guyana (1959) Cap. 6:03 and Barbados (1997) Cap. 199. See also Trinidad’s Libel and Defamation Act (1846 revised 1950) Chap. 11:16; Bahamas Libel Act (1843) Chapter 72; Turks & Caicos (1843) 10 Victoria, Chapter 8.

33 Libel Act 1843 (Lord Campbell’s Act) [6 & 7 Vict., c. 96]. See also Libel Act 1845 [8 & 9 Vict., c. 60] which did not substantially change the law.

34 Defamation Act 1952 [15 & 16 Geo. 6 & 1 Eliz. 2, c. 66].

486

Grenadian and Guyanese statutes. Statutes passed after 1996 reflect the statute passed that year.35 The 1997 Barbadian and Jamaican acts falls in this category.

Universally, the statutes provide for truth, also called “justification,” as a defense in libel actions.36 The extent of the defense varies, however, as the statutes in six countries require proof that the publication was made for the public benefit in addition to the fact of its truthfulness.37 However, in Grenada, Barbados and Guyana—all of which have relatively new statutes patterned on either the 1952 or 1996 United Kingdom acts—the libel statutes provide for a defense where the defendant shows the statement was partially or fully true and that the sections that were untrue did not “materially damage” a person’s reputation.38 The other countries lack a similar provision.

The newer statutes also specifically provide defenses for “fair comment” on matters of public interest.39 Under the statute the fact that each allegation is not proven does not necessarily mean that the defense fails.40 The 1997 Barbadian Act, the most modern of the statutes, specifically provides for the defense notwithstanding any improper or ill motive in making the statement.41

35 Defamation Act 1996 [1996, c. 31]. These are Barbados and Anguilla.

36 See acts of Barbados (§ 7(1)); Grenada (§ 12); St. Vincent and The Grenadines (§ 3); Anguilla (§ 5); St. Christopher and Nevis (§ 7); Guyana (§ 7); Trinidad and Tobago (§ 10); Virgin Islands (§ 7); Dominica (§ 7); Jamaica (§ 7); Turks and Caicos (§ 7).

37 See statutes for Jamaica, Trinidad and Tobago, Bahamas, Turks and Caicos, Anguilla, British Virgin Islands, Dominica, St. Christopher and Nevis, St. Vincent and the Grenadines.

38 Barbados, Guyana, Grenada.

39 Grenada Libel and Slander Act § 13; Guyana Defamation Act § 8; Barbados Defamation Act § 8 and Jamaica Defamation Act § 8 .

40 Id.

41 See Barbados Defamation Act § 8(3).

487

The statutes in Guyana, Grenada, Barbados, Trinidad and Tobago and Jamaica also specifically provide for the defense of privilege in the case of fair and accurate contemporaneous news reports of proceedings in courts and other tribunals.42 The level of the privilege granted varies among the territories with the Barbadian Act specifically granting an absolute privilege.43 The Grenadian and Trinidadian statutes specifically limit the privilege to the publication of pleadings or transcripts of evidence, notices or information published for the benefit of the private bar,44 or of judicial proceedings in actions for divorce or to determine the custody of children.45 Additionally, along with

Jamaica, Grenada and Trinidad and Tobago remove the privilege in the case of the publication of “indecent matter or indecent medical, surgical or physiological details being matter or details the publication of which would be calculated to injure public morals [sic].”46 The statutes in Barbados, Grenada, Trinidad and Tobago, and St. Vincent and the Grenadines provide for privilege for the fair and accurate report of proceedings in public meetings.47 However, in these countries, the defense would be defeated where the newspaper refused to publish a “reasonable letter or statement by way of contradiction or

42 Barbados § 9, Grenada § 16, Guyana § 13, Jamaica § 15, Trinidad & Tobago § 13.

43 Barbados Defamation Act § 9(1). See chapter 1, 1.2 at note 84 for a definition of absolute privilege.

44 Grenada Libel and Slander Act § 15(4), Trinidad and Tobago Libel & Defamation Act § 13(5).

45 Grenada Act. at § 15(2)(b), Trinidad Act § 13(2)(b).

46 Grenada Act at § 15(2)(a), Trinidad Act § 13(2)(a).

47 Barbados Act, Schedule Part II § 12(1). Grenada Act § 16, Guyana Act § 14, Trinidad & Tobago Act § 14; St. Vincent & the Grenadines § 17.

488 explanation” of the report.48 Similarly, a publication of proceedings in a public meeting would only be protected if it was of public interest or concern.49

The Barbados act also provides the defense of absolute privilege in the case of things said during actual proceedings in Parliament and the live broadcast of the proceedings.50 However, the printed publication of stories about these privileged proceedings is covered by qualified privilege under the statute.51 The Barbados act also provides for qualified privilege in the cases of fair and accurate reports of proceedings of several government organizations and associations,52 press conferences and documents circulated at such conferences,53 and in several other circumstances. However, the

Barbados, Grenada and Guyanese acts specifically do not allow a privilege for a defamatory publication for, or on behalf of, a candidate in an election purely because it was “material to a question or issue in the elections.”54The Guyanese and Grenadian acts go a step further, providing that this is the case even if the person disseminating the information is qualified to vote in the election.55

48 Barbados Act § 11(2)(a) & (b), Grenada Act § 16(3), Grenada Act § 14, Trinidad & Tobago Act § 14(2); St. Vincent & the Grenadines § 17.

49 Barbados Act § 11(3)(b); Grenada Act § 16(4); Guyana Act § 14(b); Trinidad & Tobago Act § 14(4). The Grenadian and Trinidadian statutes contain an additional provision limiting the defense in relation to indecent or blasphemous materials (Grenada Act § 16(1); Trinidad Act § 14(3)(a)).

50 Barbados Act § 10(1).

51 Id. at §§ 10(2)(a),(3),(4),(5).

52 Id. at Schedule Part II, § 11.

53 Id. at Schedule Part II, §§ 12(2) &(3).

54 Barbados Act § 33, Grenada Act § 19, Guyana Act § 15.

55 Grenada Act § 19, Guyana Act § 15.

489

The acts of Barbados, Grenada and Guyana provide that the privilege would be destroyed if the plaintiff proved that the statement was published maliciously.56 Where a statement is made without actual malice or gross negligence, statutes in all the Caribbean territories provide that defendants can make a plea that the defamatory statement was printed without actual malice or gross negligence and that the newspaper made a full apology or offered to make an apology on the plaintiff’s terms at the earliest opportunity.57 This plea is a plea in mitigation of damages and, if successful would reduce the amount of damages that the defendant has to pay. The plea will not provide a full defense.58 The newer statutes in Barbados, Grenada and Guyana provide that in the case of unintentional libels, “an offer of amends” could be made.59 An offer of amends consists of an offer to publish or join in publishing a “suitable correction” or a “sufficient apology,”60 and taking steps to notify persons to whom the publication was distributed that the story was defamatory.61 An offer of amends, if accepted has the effect of

56 Barbados Act § 12; Grenada Act § 16(1); Guyana Act § 14.

57 See Anguilla, Bahamas, Dominica, Guyana § 11, Jamaica, St. Christopher & Nevis, Virgin Islands acts at §. 3; see the Bermuda and Turks & Caicos acts at § 2; and the Trinidad & Tobago Act at § 5; St. Vincent & The Grenadines Act § 14. The defendants are required to make a payment of money into the court as surety in case the defendant is found to be liable. Id.

58 GATLEY, § 31.1.

59 Barbados Act § 16(3)(a); Grenada Act § 9(3)(a); Guyana Act § 12(3)(a).

60 Barbados Act § 16(3)(a); Grenada Act § 9(3)(a); Guyana Act § 12(3)(a). See GATLEY § 18.1. See also English Defamation Act 1952, supra at § 4 which also provides for an “offer of amends” to be made.

61 Barbados Act §16(3)(b); Grenada Act § 9(3)(b); Guyana Act §12(3)(b).

490 discontinuing the libel action.62 Where the offer is not accepted, the fact of the offer can be used by the defense as evidence that the libel was published innocently.63

In Gleaner Co. Ltd. v. Wellesley,64 a 2004 decision, the Jamaican Court of Appeal held that the decision about the adequacy of an apology in a libel case was for the jury.65

6.4 The 1950s to 1970s

The cases involving libel against public persons in the pre-independent and early independent stages of the British Caribbean countries established the principles that the courts would be looking at in assessing libel actions. In the 1950s to 1970s defenses of privilege, fair comment and truth were all available in libel actions in all of the British

Caribbean countries. Additionally, most of the Caribbean statutes provided for the possibility of a mitigation of the amount of damages awarded in cases where the defendant published an apology.

In the 1955 Grenadian case, Soltysik v. Julien,66 the Court of Appeal for the West

Indies overturned a decision in favor of a defendant being sued for libel by a surgeon specialist. The court held that none of the defenses of justification, fair comment and privilege applied in this case.

62 Barbados Act § 16(1)(a); Grenada Act § 9(1)(a); Guyana Act § 12(1)(a).

63 See GATLEY, § 18.1. See also English Defamation Act 1952, supra at § 4(1)(a) &(b).

64 (unreported) In the Court of Appeal, Supreme Court of Civil Appeal No. 96/2000 (2004).

65 Id. at 9. In this case an October 2, 1999 article in the Star entitled “Jail my client, Attorney tells Judge,” was held to be misleading and libelous. Vincent Wellesley, a criminal attorney, had been retained to defend a man charged with possession of, dealing in and taking steps to export cocaine. Wellesley was making a plea in mitigation on behalf of his client who had pleaded guilty to the offense. While the article purported that Wellesley was prosecuting his own client, Wellesley was, in fact, addressing the trial judge on the issue of reducing the length of time that his client would serve in prison. Id. at 2. On Wellesley’s attorney’s request the Gleaner published an apology under the title “Clarification” on October 7 and 8.

66 Judgments of the High Court of Appeal of Trinidad & Tobago and of the Privy Council in England, Vol. 19, 1966–69 Part 3, 63 (1955 decision).

491

In Soltysik, Dr. Adam Soltysik was the surgeon specialist at the Colony Hospital, a contractual employee of the government of Grenada. Under his contract he could not charge patients for an operation.67 However, when he performed an operation for appendicitis on Wilfred Julien, he charged him a consultancy fee of 6 guineas.68 The bill was not paid and subsequently, when he saw Wilfred Julien in the street he demanded payment for the consultancy. Wilfred had asserted that he had not consulted with Soltysik and another doctor had told him he had appendicitis. After that Julien said, Soltysik had operated on him. According to evidence in the trial, Soltysik told Wilfred, “I see you do not want to pay but next time you will see you will have to pay.”69

Willan Julien, the father of Wilfred, sent Soltysik a letter accusing him of dishonestly charging his son a consultation fee for a consultation he did not perform and subsequently threatening his son when he refused to pay the bill saying, “you don’t intend to pay me the money; the next time you come to the hospital you will see.”70

Julien in his letter wrote:

Now, doctor, these words used by a surgeon to a supposed debtor can be interpreted to mean two things to a jury but, to me, that threat can mean one thing only.

I am responsible for the non-payment of that bogus consultation fee, and I tell you this so that if you have the pleasure of knifing me at any time, you may by way of revenge allow your knife to slip because I am not afraid to die. But let me warn you that I would not stand by and let you or any other man threaten my son for a debt which was not incurred.

67 Id. at 625.

68 Id.

69 Id.

70 Id. at 625–626. Oliver Harbin, who was called as a witness for Soltysik, supported Wilfred Julien’s testimony, according to the Court of Appeal.

492

Many Grenadians have borne with a heavy heart your demands for the now famous “consultation fee” because they are afraid that “next time they would see.” 71

Julien sent a copy of the letter to the governor of the island and the hospital’s administrator, informing them of his intent to take legal action in the event he did not receive an explanation of the threat to his son.72

Soltysik brought an action for libel against Julien claiming that he had painted him as “a cruel, inhuman and dangerous person and unfit to be employed as a surgeon at

Colony Hospital” because he would deliberately seek revenge against patients who were negligent in paying hospital bills by murdering them on the operating table. He also said the words implied that he had exacted fees from many people because they were afraid that he would murder them on the operating table.73

Julien denied that the letter had been written maliciously or bore the meaning alleged by Soltysik.74 His defense was that the words were privileged, without malice and amounted to fair comment on a matter of public interest.

Although the trial judge noted that it was prima facie libelous to defame the doctor’s professional practice and morals, nonetheless, he found that such a libel could be excused where the comment could be defended by justification, privilege or fair comment. The judge found that, although the letter was defamatory—intimating that

71 Id. at 623–4.

72 Id. at 624.

73 Id. at 625.

74 Id.

493

Soltysik would “allow his knife to slip”—the defense of fair comment was established and gave judgment to Julien.75

Soltysik appealed to the West Indian Court of Appeal and the lower court’s

decision was unanimously reversed.76 The Court of Appeal noted that fair comment required a showing that a statement was based on facts truly stated, did not contain imputations of corrupt or dishonorable motives on the person whose conduct or work was criticized except where warranted by the facts and was an honest expression of the writer’s real opinion.77 The court noted that Julien, instead of confining his letter to the issue of whether the doctor was entitled to charge consultation fees, had imputed that the doctor would allow his knife to slip and kill persons who did not pay his fees.78 Julien had not proved that the subject matter was of public interest and a fair comment and that the statements of facts were true and warranted.79 The court found that the letter was

75 Id. at 626. The trial judge found the evidence given by Wilfred Julien to be substantially correct. This was because the only eyewitness to the discussion between Soltysik and Wilfred Julien on the street was Oliver Harbin. Though Harbin was called by Soltysik, the judge found that his evidence supported Wilfred’s version of the events. Id. Nonetheless, Julien had not provided any evidence supporting the truth of the statement. Id. Nonetheless, since he accepted the Wilfred Julien’s version of the events the trial judge believed the letter was substantially true. Id.

76 Id. The appeal was before Justice J. Matthieu Perez, chief justice of Trinidad & Tobago, E.A. Collymore, chief justice of Barbados and Donald Jackson, chief justice of the Windward and Leeward Islands. One ground of the appeal was that the trial judge erred in finding fair comment because he did not “give proper effect to his finding of malice” on the part of Julien. This error destroyed both the doctrine of qualified privilege and fair comment, because the comment was “intrinsically unfair” and was not protected even if there was no malicious motive and the “attack on the moral and professional character” of the doctor was unwarranted by the facts as stated, even if they were true and so was “perversely unfair,” Soltysik’s appeal said. Id.

77 Id. at 627. They noted that the trial judge “evidently thought that whatever views a commentator may express short of mere abuse or invective . . . cannot constitute a libel so long as they are the commentator’s honest views; on this he is seriously in error and his view is in conflict with authority for the views must not only be honest but be well founded.” Id. at 629.

78 Id. The court noted that, “a graver accusation against a surgeon would be difficult to conceive.” Id.

79 Id. at 629–630.

494 defamatory and the defenses failed.80 The court set aside the judgment and awarded

Soltysik £500 in damages.81

In the 1967 Jamaican case, United Printers Ltd. v. Bernard and others,82 which was brought by a high-ranking media management executive, the Jamaican Court of

Appeal—similar to the West Indies Court of Appeal in Soltysik—upheld a lower court’s libel conviction but reduced the damages awarded.

Hector Bernard was the director of news and public affairs at the Jamaica

Broadcasting Corporation (J.B.C.), a broadcasting organization in Jamaica created by statute. In April 1960, New Day, a monthly magazine distributed in Jamaica and elsewhere, published an article entitled, “The New Arrangement.” The article erroneously inferred that Bernard had been passed over for promotion to the top position in the J.B.C. when Peter Aylen, the general manager resigned because he had “mediocre” ability and no experience. It stated:83

The showdown put the Board in a bad fix. Self-propelling ex-soldier Hector Bernard, who had been hired as [Peter] Aylen’s understudy—wouldn’t do—he had previously been only a grade 2 journalist of no proven high executive ability and no previous experience in radio. The only man in sight was over-aged Captain William Strange, retired Royal Canadian Navy deskman (who regularly produced two of the station’s best programmes)[sic].84

80 Id. at 630.

81 Id at 631. In awarding damages the justices noted that when Soltysik’s attorneys had written Julien offering to waive his claim for damages in the event that he signed a withdrawal and apology, Julien testified that he ripped up the letter and treated it with “the contempt it deserved,” and that he had never shown remorse throughout the proceedings. Id. at 630.

82 (1967) 10 J.L.R. 135.

83 Id. at 137.

84 Id.

495

Bernard brought a libel action against United Printers and the publishers of the monthly paper. In his libel suit Bernard claimed that the statement was untrue, defamatory and painted him erroneously as a “mediocre journalist with no particular executive ability and possessed of limitations which rendered him unfit to be general manager” of the media house.85 It also, incorrectly, gave the impression that he had been hired to understudy the, then, manager Peter Aylen, but his employers had discovered that he had “deluded” them into thinking that he could fill Aylen’s shoes, forcing them to pass over him and hire Captain Strange into the position that he had been “striving to attain,” Bernard said.86

The newspaper pleaded fair comment on a matter of public interest in its defense.87

The evidence was that, on leaving school in 1938, apart from a brief army stint between

1940 and 1943, Bernard had always been employed directly or indirectly as a journalist and had also acquired executive experience, according to the opinion of Justice Herbert

Duffus of the Court of Appeal.88 In 1959, when he was hired by the J.B.C. as head of a department, and later given responsibility for all “the spoken word programs on radio and, later, on television,” he had the highest paying job next to Aylen, but had never been his understudy.89

85 Id.

86 Id.

87 Id.

88 Id. at 138. In 1953 Bernard was appointed Assistant Information Officer of the Caribbean Commission, where he had been involved in public relations and journalism. In 1957, he was managing director and editor of Spotlight, a monthly Jamaican magazine. In both of these posts he had a gained a large amount of executive experience, according to Bernard’s evidence in court.

89 Id. Bernard said he never saw himself as understudy and was not “put out” when he was not chosen to succeed Aylen as general manager.

496

Bernard was also upset at the implication that he was not qualified for a senior

executive position at J.B.C., since he had joined the station before it went on air and had

played an instrumental role in getting the station on air. Although, unlike other

employees at J.B.C., he had no broadcast experience, he believed that he held his position

because of his experience as a journalist. Because the article belittled his experience in

journalism, it had caused him embarrassment among his colleagues, he claimed.90

Bernard also contended that the article derided his personal integrity by the use of the word “self-propelled.”91

Justice Herbert Duffus, the president of the Court of Appeal, delivered the court’s opinion. Duffus said that the article was, in fact, a statement of fact rather than opinion.92

Thus, he found that the judge had correctly rejected the fair comment defense, which was predicated on opinion.93

90 Id. Bernard said he had to endure the “mocking remarks” made by other employees, colleagues and acquaintances and a “sort of facetious malicious attitude” from junior employees toward him.

91 Id.

92 Id. at 141. In coming to this opinion the court looked at the context in which the section of the article at issue was framed. It centered on a factual discussion about a one-week notice given by Aylen which meant that the station had to find a replacement in a very short time period. The paper had defined Bernard’s position as an understudy, which was untrue, and from this untrue statement had sprung several derogatory statements about him, Justice Duffus said.

93 Id. at 142. See Hunt v. The Star Newspaper Co. Ltd. (4), [1908] 2 K.B. 309, 319, where Lord Justice Fletcher Moulton said,

The law as to fair comment … stands as follows. In the first place, comment in order to be justifiable as fair comment must appear as comment and must not be mixed up with the facts that the reader cannot distinguish between what is report and what is comment. . . . The justice in this rule is obvious. If the facts are stated separately and the comment appears as an inference drawn from those facts any injustice that it might do will be to some extent negatived [sic] by the reader seeing the grounds upon which the unfavorable inference is based. But if fact and comment are intermingled so that it is not reasonably clear what portion purports to be inference, he will naturally suppose that the injurious statements are based on adequate grounds known to the writer though not necessarily set out by him. In the one case, the insufficiency of the facts to support the inference will lead fair-minded men to reject the inference. In the other case, it merely points to the existence of extrinsic facts which the writer considers to warrant the language he uses. . . . Any matter therefore which does not indicate with a reasonable clearness that it purports to be comment and not statements of fact cannot be

497

However, the justices reduced the £4,000-damage award. Duffus and the other

Court of Appeal justices did not agree with the trial judge’s finding that the words

“self-propelling ex-soldier” meant Bernard had contrived to have himself appointed to the position through deception. Secondly, they did not agree that the evidence given by the newspaper’s board of director’s chairman, who described his evidence as his

“personal opinion” and not that of the board, should influence the award for aggravation.94 The court held that these interpretations of the words would have contributed to the level of the award, which was “grossly excessive.” Thus, damages were reduced to £500.95

While the Jamaican Court of Appeal found a £4,000-damage award excessive in

1967, in 1969 the Barbadian Court of Appeal upheld a $20,000 libel award in Advocate

Co. Ltd. v. Husbands.96 The court rejected the Advocate’s plea of privilege for an article that defamed the country’s director of public prosecutions. The court found that the article had been written with express malice—knowledge of falsity or reckless disregard for the truth. However, the Court of Appeal held that the fact of an apology should be taken into account in assessing damages in libel actions.

Husbands was brought by Clifford Husbands, the director of public prosecutions in

Barbados, for a defamatory statement published about him in 1967 in the Advocate, a

protected by the plea of fair comment. In the next place, in order to give room for the plea of fair comment the facts must be truly stated. If the facts upon which the comment purports to be made do not exist the foundation of the plea fails. Id.

94 Bernard, supra at 143.

95 Id. at 144.

96 Supreme Court of Judicature Court of Appeal for Barbados, Suit No. 1 of 1968 (unreported).

498

Barbadian newspaper.97 The newspaper argued that the article, which had been taken from a report of a debate in the House of Assembly, was protected by absolute or, alternatively, qualified privilege. Also, the paper’s lawyers said, the newspaper had offered to print an apology which Husbands had refused.98

On his part, Husbands alleged that the newspaper had acted with malice in printing the article that defamed him in his official and personal capacities. The paper had also refused to publish a reasonable statement of explanation or contradiction that he had submitted or other reasonable statement of apology or explanation.99 The trial judge, finding that the words were defamatory and were made in reference to Husbands, decided that “…the questions of apology and malice did not . . . arise” for determination.100

Justice D.H.L. Ward in the Court of Appeal of Barbados, although upholding the lower court’s decision that the statement was not protected by privilege, disagreed with the court’s decision that apology and malice “did not arise” in the case. Although holding that the trial judge had not adequately considered the issues of apology and malice as mitigating factors, the Court of Appeal found the damages awarded did not amount to a

“substantial miscarriage of justice” and dismissed the appeal.101

Ward acknowledged that the allegations that impugned the director of public prosecutions’ honesty and integrity in the performance of his role as the person who had the power to “institute, undertake, take over and continue or discontinue in any court

97 Id. at 2.

98 Id.

99 Id.

100 Id. at 3.

101 Id.

499 other than a court martial criminal proceedings against anyone” would have caused him deep hurt.102 The extent of the hurt, Ward said, would best be determined by the presiding trial judge who had heard all the evidence.103

The article published in the Advocate, which was claimed by the newspaper to be a fair and accurate account of public proceedings, was neither fair nor accurate, Ward found.104 Although the evidence did not support a finding of malice, the Court of Appeal noted that, on discovering the falsity of the information, the newspaper should have made efforts to mitigate the damages.105 The Advocate continued to base its defense on shorthand notes taken by a reporter, saying they provided a fair and accurate report of a speech made by Prime Minister Sir Grantley Adams, despite the fact that the newspaper had been referred to the Official Gazette106 which demonstrated that the reporter’s notes were neither verbatim nor accurate.107

Nonetheless, the court agreed with the newspaper’s attorneys that the offer of apology, when it finally came, should be taken into account as a mitigating factor.108 He

102 Id.

103 Id. at 4. The justice noted that, despite the absence of proof of pecuniary loss or social ostracism, Clifford Husbands’ reputation would have been damaged in the minds of the public in Grenada, Antigua, Montserrat, St. Kitts-Nevis-Anguilla (one government) and Barbados, where he had a “distinguished legal career.” He had also been described in an article in the Advocate on February 11, 1968 as having “outstanding virtue.” And, throughout the trial and in his role of public prosecutor his conduct had been “unimpeachable,” according to Justice Ward. Id.

104 Id.

105 Id. at 5.

106 The Official Gazette is an official record of government speeches, and discussions in Parliament.

107 Husbands, supra at 5.

108 Id. See Rookes v. Barnard, [1964] A.C. 1129, McCarey v. Associated Newspapers Ltd., [1964] 3 All E.R. 947, Associated Newspapers Ltd. v. Dingle, [1964] A.C. 371. The judge in Husbands noted that the proposition in Rookes that damages should be made to accord with those given in personal injuries cases was “judicial dicta only and [did] not afford authority for this proposition.” Id.

500 noted, however, that precedent in such cases had determined that the Court of Appeal should only exercise power to review an assessment of damages where it was “satisfied that a substantial wrong or miscarriage of justice must have been occasioned by the award.”109

Justice Ward noted that, although the judge did not take the apology into account, he would have awarded higher damages if the matter had been before him at the lower court and he thought the award was fair in the circumstances of the case. Thus, the court did not interfere with the award.110

The 1970 Grenadian Court of Appeal’s decision in Gairy v. M.A. Bullen & Alston

Andrew,111 was an appeal from a Supreme Court decision awarding Eric Gairy, the premier of Grenada, $10,000 in damages for an article printed in the Vanguard newspaper on March 1, 1968. The Court of Appeal dismissed the appeal holding that the

Supreme Court was correct to take into account Gairy’s standing and position in society, the nature of the libel, the extent of publication, and absence of apology in determining damages.

109 Husbands, supra at 6. See Flint v. Lovell, [1935] 1 K.B. at 360 where the court held,

I think it right to say this Court will be disinclined to reverse the finding of a trial judge as to the amount of damages merely because they think that if they had tried the case in the first instance, they would have given a lesser sum. In order to justify reversing the Trial Judge on the question of the amount of damages it will generally be necessary that his Court should be convinced either that the amount awarded was so extremely high or so very small as to make it, in the judgment of the Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.

110 Husbands, supra at 6.

111 Unreported in the Court of Appeal of Grenada, Suit No. 4 of 1970. The fact that a case is unreported does not affect its precedential value.

501

The article in the newspaper included the following paragraph which attacked

Gairy in his position as premier and president of the Grenada Manual and Mental

Workers Union (G.M.M.W.U.):

A certain trade union leader has threatened a city Bank with closure after the Manager had refused to predate a union account. Reliable sources reported that the union leader taxied to the manager’s home after making an appointment with him. There the manager was asked to predate a union account in such a way that the account might appear to have been opened long ago. The manager refused pointing out not only the immorality of the thing, but also the question of the obvious errors in the annual bank statements already published.

The possibilities are that other banks may be approached, and although juggling the books of other banks would lead to the same difficulties and problems, their managers might be bulldozed into doing a most despicable and immoral act. No Trade Union can threaten all the banks and put them out of business: except to substitute their own trade union Banks. All banks are warned that a handwriting expert would easily determine the age of any writing used for the purpose of predating any account.

To what corrupted depths can trade unionists go? For what foul purpose has the request been made? If they can so use their trade union power to subdue bank managers, what can they not do to us lesser mortals? We are not now free to strike without fear of intervention by the police? It may well be that this sinister move on the part of the trade union leader, is one in a series designated to culminate in a take-over bid of the banks by trade unions. We would have no choice then but to invest or save our money as directed by trade union leaders. To what sorry pass has our country and people come!112

Gairy brought an action against the newspaper, claiming that the article referred to him. The newspaper’s defense was that the article did not refer to the premier. Justice

Glasgow113 in the Supreme Court held that the words referred to Gairy and were defamatory.114 The judge granted a $10,000 award to Gairy.115

112 Gairy v. M.A. Bullen & Alston Andrew, unreported in the High Court of Justice of Grenada Suit No. 97 of 1968.

113 It was not possible within the resources available to me to find the all of the first names of justices and litigants in the Caribbean cases. The first names were frequently not reported in the opinions themselves.

114 Gairy, supra at 2.

502

The Vanguard appealed the judgment on grounds that Glasgow acted on the wrong legal principles in assessing the amount of damages and the amount awarded was inordinately high.116 The newspaper’s attorneys argued that Glasgow took into account factors such as Gairy’s position and standing in the community, the nature of the libel, the extent of publication and absence of apology, which he was not entitled to take into account in determining damages.117

Counsel H.E.L. Hosten argued for the newspaper that, while Gairy’s position was that of premier, no evidence was led by Gairy’s lawyers of his standing in the community or the manner in which he was regarded by the people of Grenada or his “esteem and reputation.”118 He argued that Gairy’s “standing” in the community was separate and distinct from his position.119 In the absence of evidence about Gairy’s standing in the community he would only be entitled to nominal damages.120

Justice Cecil Lewis of the Grenadian Court of Appeal refused to accept this restricted view of the word “standing” in relation to the assessment of damages.121 Lewis

115 Id. at 3. In awarding damages the court took into account Gairy’s position and standing, the nature of the libel, the extent of the publication and absence of an apology.

116 Id.

117 Id.

118 Id. at 4.

119 Id.

120 Id.

121 Id. The word “standing” here refers to Gairy’s standing in the community rather than the sense it is often used in legal decisions. Usually, in legal decisions the term standing refers to whether the plaintiff was affected by the libel such as would allow him the legal “standing” to bring an action for libel.

503 said that the word “position” had a broader meaning than “standing” and the words were often used synonymously.122

“His position in the community is that of head of Government, and obviously being head of Government he must have a certain standing,” Lewis said.123 There was no legal obligation for the newspaper to offer an apology, but the apology could have mitigated the damages. Thus, the court held, Glasgow was justified in taking into account the fact that no apology was offered.124 Justice Lewis noted that the nature of the libel was very serious since Gairy was being accused of attempting to encourage a bank manager to falsify the account books of his company under threat of closing the bank.125

In relation to the amount of damages, the court held that the newspaper had to demonstrate that the award was inordinately high. The judge reviewed four previous

122 Id. at 4–5.

123 Id.

124 Id. at 6. The lawyers for the newspaper said that the judge was not entitled to take into account the absence of an apology since no apology had been requested. The court held that the newspaper had failed to establish that the statement was made without malice on an issue of public interest. It was open to the newspaper to consider issuing an apology. Id.

125 Id.

504

Caribbean decisions,126 and determined that, the $10,000 award was in line with awards made in comparable cases.127 Justice Lewis said that:

When one looks at the nature of the libel, and considers the position of the person libeled, also the fact that the libel was published in a newspaper circulating not only in St. George’s128 but also in Grenville and Sauteurs, the population of which areas was given in evidence as being approximately 12,000 and 10,000 respectively, it does appear to me that the trial judge made an award which cannot be said to be so out of line with the awards . . . as to be considered a wholly erroneous estimate of the damage the respondent [Gairy] suffered.129

The court held that the trial judge had not acted on wrong principles of law in assessing damages and dismissed the appeal.130

126 Id. at 6. See Husbands v. Advocate Co., (1968) 12 W.I.R. 454, supra. The second case was Monplaisir v. The Voice Publishing Co., (1953), a St. Lucian case where the court upheld an award of $15,562.50 in compensatory damages when a high-ranking executive in the banana industry was libeled by a newspaper article that falsely accused him of misappropriating $1.5 million. The third case was Joseph v. Lockhart, Civil Appeal No. 1 of 1970, an Antiguan case, where the Court of Appeal upheld a $5,000 award for an article published in the news organ of the Antigua Trade and Labor Union (A.T.L.U.), stating that Lockhart, a trade unionist who had left the ATLU to form his own union, had advised Antiguans to kill each other and intended to “incite the people to bloodshed and violence.” The fourth case was Evans v. Johns and the Gleaner Co. Ltd., (1961) 4 W.I.R. 502, where the Jamaican Supreme Court made an award of £2,400 (the equivalent of $11,520 in 1970 when the Gairy case was held) for a libelous statement accusing the owner of a shoe factory of using political influence to obtain a contract to supply shoes to the Kingston and St. Andrew Corporation. Id.

127 Id. at 10. See also the St. Lucian Court of Appeal case Crusader Caribbean Publishing Co. (1971) Ltd. & Odlum v. John Compton, (unreported in the Court of Appeal of St. Lucia, Civil Appeal No. 9 of 1977), where the Court of Appeal, in reducing damages awarded to Prime Minister John Compton from $60,000 to $35,000, took into account the awards made by the courts in Gairy v. Bullen and Andrew, supra, and Monplaisir v. The Voice Publishing Co. (1953) Ltd. In Crusader v. Compton, the newspaper had accused the prime minister of committing a criminal act by using his position to purchase government lands for himself, of being guilty of corruption and breach of trust in issuing a Crown Grant to himself, rendering him unfit for his office. The words injured Compton’s reputation both in his professional and public capacity, the court found. The newspaper pleaded justification in its defense but was unable to substantiate the defense. Chief Justice Sir Maurice Davis believed that the award was excessive and above what any jury could reasonably award. The Chief Justice took into account the surrounding circumstances including the nature of the libel; Compton’s conduct; position and standing; the mode and extent of the publication; the absence of an apology; the conduct of the defendants before the trial; and their failure to justify the publications. Id.

128 St. George is the capital of Grenada.

129 Bullen v. Gairy, supra at 10.

130 Id.

505

The 1973 Guyanese case, Jagan v. Burnham,131 involved an article published about the then prime minister, Forbes Burnham, in the Mirror newspaper that was published by

Janet Jagan. Burnham was awarded $25,000 by the Supreme Court and the Court of

Appeal upheld the decision. The Court of Appeal held that a defendant could only rely on the defense of an honest belief in the truth of a statement where the belief was based on reasonable grounds.

The political context is important in understanding the article. The late Forbes

Burnham, prime minister of Guyana between 1964 and 1980, had vied for political leadership of the country with Cheddi Jagan, his one-time ally, during most of the 1970s.

Janet Jagan, Cheddi’s wife, was the editor of the Mirror between 1973 and1997.132 The libel action emanated from a news item published on the front page of the Mirror on

February 8, 1972 entitled “P.M.’s COW ELECTROCUTED.”

Burnham argued that the story was libelous because it purported that he had deliberately installed live concealed electronic wires to ward off prowlers and thieves from his farm. This was a dangerous act calculated to cause harm and death and, as it had been installed in a public place, could endanger the lives of innocent persons, Burnham’s libel action said. Added to this was the information that the wires had enough electrical energy to electrocute a 300-pound cow which implied that Burnham had committed a criminal offense, Burnham’s lawyers said. 133 Thus, the article portrayed Burnham as

131 (1973) 20 W.I.R. 96.

132 See PROFILE OF JANET JAGAN, http://www.jagan.org/janet_jagan3.htm (last visited Feb. 20, 2006). In 1997 Janet Jagan became the first female prime minister in Guyana.

133 Id. at 101. As senior counsel and barrister, Burnham should have known the electric wire was illegal. In the legal system in the Caribbean there is a hierarchical system determined by the year, date and time when one is called to bar. The most senior lawyers are Queen’s Counsel, specially so-designated for years of distinction at the bar. After Queen’s Counsel, the legal profession is designated on the basis of the amount

506 unfit for the office of prime minister of the Republic of Guyana and for his profession as senior counsel, Burnham said. 134

After Burnham sued for libel, the Mirror printed a full apology on March 19, 1972, admitting the statement was false. The apology included the words,

[t]he Mirror is now fully satisfied that the said statements were wholly unfounded and desires to express its regret to the Prime Minister and to apologize for any embarrassment and inconvenience which may have been thereby caused to him.135

In determining liability the trial judge in the High Court had decided that the editor had purposefully abstained from inquiring into what was true and what was not since he had the means to inquire and “the slightest inquiry would have shown that the whole news item was fictitious.”136 He also noted that the apology was insufficient because it had not been given the same prominence as the defamation.137

In upholding the lower court’s decision, Sir Joseph Luckhoo in the Court of Appeal for Guyana noted that the sub-editor Mohamed Ali admitted that, from the outset, he recognized the defamatory implications of the article, but believed the story to be true.

The court noted that, while honest belief was a defense in a libel action, there needed to be “reasonable” grounds for this belief. The trial judge could decide that the grounds identified by the defendant were so untenable that the newspaper could not have had an of years an attorney has practiced at the bar. There is also an understanding within the legal system that junior counsel should pay deference to senior counsel when dealing with matters before any court. It is not clear whether or not Burnham was a Q.C., but he appears to have had several years at the bar at the time of this action. Id.

134 Id. at 100.

135 Id. at 102.

136 Id. at 105.

137 Id. at 106. The apology had been placed on the back page of the Sunday issue of the Mirror on March 19, whereas the defamatory article had been printed on the front page of the newspaper on February 8, more than one month before. Id.

507 honest belief in the truth of the statement and, therefore, imply malice on the newspaper’s part.138

In relation to the apology, Sir Luckhoo noted that it was published 39 days after the libel, which rendered it late and insufficient. Further, Luckhoo noted that, during the trial, the newspaper had attempted to justify the statement that it had admitted was false.139

This, for Luckhoo, removed the value of the retraction.140

Thus, in testimony, the editor said “until this moment I believed [sic] what the reporter wrote was true as regards the whole article.” He also said later that “I was not sorry for the publication . . . but my lawyers told me that the matter might be libelous. As a result, I am prepared to be guided by them. I am personally apologizing. I now say I am sorry.” Sir Luckhoo said these statements made “a sham of the apology, for to say in one breath there was regret, and in the next there was belief in what was said renders the retraction farcical and no more than a course adopted for expediency.”141

Luckhoo held that the trial court’s decision was not in breach of the constitutionally protected right to freedom of speech.142 He noted that, in the Guyanese Constitution, the

138 Id. at 111–112. Justice Luckhoo referred to the English case Derry v. Peek, [1889] 14 A.C. at 375, where Lord Herschell said,

when a false statement has been made, the questions whether there were reasonable grounds for believing it, and what were the means of knowledge in the possession of the person making it, are most weighty matters for consideration. The ground upon which an alleged belief was founded is a most important test of its reality. I can conceive many cases where the fact that an alleged belief was destitute of all reasonable foundation would suffice of itself to convince the Court that it was not really entertained . . . Id.

139 Jagan v. Burnham, supra at 112.

140 Id.

141 Id.

142 Id. at 113. Guyana’s Constitution provides at art. 12(1)

508 right to freedom of speech was expressly limited by the right to protect reputation. Thus, in a case where a newspaper admitted to printing an untrue and libelous statement that injured the reputation of another, therefore, abusing the right to freedom of speech it, thereby, forfeited its constitutional protection.143

The Court of Appeal, therefore, dismissed the appeal and upheld the $25,000 award.

In the 1974 Barbadian case, Neville G.A. Maxwell, The Democrat Ltd., the Trident

Publishing Co. Ltd. v. Forde & St. John,144 the publishers also had admitted that the article was defamatory and the issue at trial was the amount of damages awarded.145 The

Court of Appeal upheld an award of damages for an article published five days before the general election that libeled two electoral candidates.

The case centered around the will of Barbadian General Christopher Codrington, who died in 1710, directing that his financial and property estate were to be used to establish a college where West Indians could be trained in “physics and chirugery as well

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 information without interference.

This is, however, bounded by the provision at art. 12(2)(b)

Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision . . . for the purpose of protecting the reputations, rights and freedoms of other persons. . . .

143 Jagan v. Burnham, supra. at 114.

144 (Unreported) In the Supreme Court of Judicature Court of Appeal Barbados, 1974.

145 Id. at 2. The page 5 article was printed on September 3, 1971

509 as divinity.” Codrington College was built in 1745 and by 1829 was a full-fledged college.146

Henry Deboulay Forde and Harold Bernard St. John were members of the

Barbadian bar and of the, then, opposition Barbados Labor Party.147 In 1970 Forde and

St. John had represented the United Society for the Propagation of the Gospel (U.S.P.G.) in an action challenging Codrington’s will and claiming ownership of the estate.148 The

U.S.P.G. lost the case. Subsequently, Forde and St. John were candidates for seats in parliament in the general elections scheduled for September 9, 1971. They were both representatives of the Barbados Labor Party.149

The Democrat, a newspaper, was an organ of the Democratic Party which was then in government. The paper was under the direction of the newspaper’s editorial board of which the Prime Minister was chairman. On September 4, 1971, five days before the general election, the Democrat published an article entitled “Forde defends Forde.”150

The article accused Forde and St. John of committing a treasonous act against “the people of Barbados” by representing the U.S.P.G. The newspaper charged that if the U.S.P.G. had won its case, the people of the Caribbean would have lost Codrington College, which

146 Id. See The University of West Indies at Cave Hill Web site, Codrington College, Theological College of the province of the West Indies, http://www.cavehill.uwi.edu/fhe/codrington (last visited Feb 20, 2006). The University of the West Indies was founded in 1955 and, in 1965, Codrington College became an affiliate of the University of the West Indies, preparing students for the Licentiate in Theology (L.Th.) and Bachelor of Arts (B.A.) in Theology.

147 Id. at 2.

148 Id. See The University of West Indies at Cave Hill Web site, Codrington College, Theological College of the province of the West Indies, http://www.cavehill.uwi.edu/fhe/codrington (last visited Feb 20, 2006).

149 Maxwell v. John, supra at 4.

150 Id. at 4.

510 had been the only university college in the Caribbean for approximately one century.151

The article had imputed that Forde and St. John were “treasonous” and “unpatriotic;” motivated by the desire of obtaining “improper financial gain;” had behaved with

“professional impropriety;” and were unfit to be members of the General Assembly.152

In this context, the Democrat deprecated the right of St. John and Forde to run for candidacy as the people’s representatives in “any constituency in Barbados.”153

St. John and Forde brought a libel action on September 6 requiring a full and unqualified apology, and the withdrawal of the imputations against their professional characters in a prominent place in the newspaper. The apology was drafted for publication on September 8, the day before the election. However, in a meeting between the newspaper’s printers and the representatives of the Democratic Party, the latter insisted that the apology could not be printed on the front page since it was reserved for the candidates for election. The printers refused to publish and the September 8 issue was never printed.154

Forde won the election but St. John lost by a narrow margin. After the election the newspaper’s attorneys wrote Forde’s and St. John’s attorneys, noting that changes had been made to the original article before publication, and that the chairman of the editorial board had seen nothing “reprehensible” about any lawyer representing a client in a case to decide the interpretation of Codrington’s will as Forde and St. John had done. They indicated the newspaper’s willingness to publish an apology stating this and to pay legal

151 Id. at 3. This was before the University College of the West Indies was founded in 1948.

152 Id. at 8.

153 Id.

154 Id. at 5.

511 costs of the suit to that date.155 The draft apologies were rejected and the attorneys for

Forde and St. John proceeded with the libel suit.156

The trial judge in the Resident Magistrate Court found that the article had attacked

Forde and St. John in their public, professional and personal capacities.157 The judge found that the publication contained five libels against Forde and St. John which were

• that they had committed treason, “one of the most heinous of crimes known to the law,” the judge said; • that they were unpatriotic in appearing for a plaintiff in a case involving the destruction of Codrington College; • that they were motivated in representing U.S.P.G. by the desire to gain improper financial gain; • that they had acted with professional impropriety; and • that they were unfit to be members of the General Assembly.

The Barbados Court of Appeal noted that words in a publication should be

construed in their “natural and ordinary meaning.”158 In this case, the court held, the

words “colossal act of treason against the people of Barbados,” would not have been

construed as an accusation of treason in its context, but as an unpatriotic act. The justices

agreed that the other 4 implications of the statement noted by the trial judge were amply

155 Id. at 6.

156 Id.

157 Id. at 8.

158 Id. at 10. He noted the cases argued by the defense attorneys. See Thompson v. Bernard, (1807) 1 Camp. 48, (holding that a statement made about a ship owner that he was a thief was not defamatory because it was not intended to impute a felony in its context). In Thompson the words uttered to the executor of the deceased ship owner were “Thompson is a damned thief; and so was his father before him; and I can prove it. . . . Thompson received the earnings of the ship and ought to pay the wages.” The words were spoken by someone who was applying for payment of his wages and were not libelous since the word “thief” was not intended to impute a felony. Douglas also referred to Holt v. Scholefield (1796) 6 Term Rep. 691, holding the words “Tim Holt has forsworn himself and I have three evidences that will prove it,” did not imply that Holt had committed perjury. The court held in Holt that the words were not libelous because they did not imply that Holt had forsworn himself in a judicial trial which would have amounted to perjury. Lord Chief Justice Kenyon said, “Either the words themselves must be such as can only be understood in a criminal sense,” or it should be shown by the introductory words “that [the words] have that meaning, otherwise they are not actionable.”

512 supported.159 Chief Justice Sir William Douglas, who delivered the opinion of the court, said that an appellate court should be “slow to disturb” a trial court’s award unless “the trial judge acted on some wrong principle of law, or has misapprehended the facts, or has, for these or other reasons, made a wholly erroneous estimate of the damages.”160

Although noting that, since the trial judge had erroneously read an imputation of treason into the publication, the Court of Appeal could reduce the damages, the justices decided that, in all the circumstances of the case, the award was appropriate.161

Douglas noted that the “grave professional impropriety” that the article had imputed, the delay in making an apology, the standing of Forde and St. John in the community and the nature and manner of the publication all meant that a large damage award was justified.162

In a 1976 case the Trinidadian Court of Appeal held that, in addition to construing words according to their “natural and ordinary meaning,” the meaning assigned to the words would depend not upon what the writer intended to convey, but what the

“reasonable reader” would have understood from the article. The court also held that aggravated damages should be assessed alongside compensatory damages where the jury was outraged at the injury inflicted on the plaintiff in a libel action by the defendant.

However, he said, exemplary damages could only be allowed where the defendant’s conduct in publishing the false defamatory statement was calculated to make profit for himself.

159 Maxwell, supra at 10.

160 Id. at 14.

161 Id. at 15.

162 Id. at 14–15.

513

The Trinidadian case Chokolingo v. Gordon163 involved a libel action brought by

Ken Gordon, managing director of the Trinidad and Tobago Express Newspaper Ltd., which published the Trinidad Express, against Patrick Chokolingo, the editor of The

Bomb newspaper. The publication should be seen in the context of the time period in the

Caribbean. The 1970s was a time of political turmoil in Trinidad and the Caribbean.

Notably, in 1970, there had been an attempt to overthrow Trinidad’s then prime minister,

Eric Williams. The Marxist revolt had been overthrown by government troops.164

Nonetheless, the fear of Marxist attacks continued for the next 3 years.165

In the context of this political unrest in Trinidad, an article was published in the

Bomb in June 1972 which intimated that there was an “underhand move afoot” in New

York to remove Prime Minister Eric Williams from his office by illegal means or a coup.

The newspaper said the movement was supported by the United States Central

Intelligence Agency (C.I.A.). The article also said that C.L.R. James was a “renowned

Marxist” who had been “linked . . . with certain subversive activities” in Trinidad.166

The Bomb indicated that its source was a New York paper, Echo, which had reported “a sinister plot in New York” and indicated that there had been a meeting in a

Brooklyn basement during the first week in June. The paper indicated that the meeting

163 (Unreported) In the Court of Appeal of Trinidad & Tobago Civil Appeal No. 31 of 1976.

164 CARIBBEAN ISLANDS, REGIONAL SECURITY THREATS, 1970–1980, http://www.country-data.com/cgi- bin/query/r-3376.html (last visited Feb. 24, 2006).

165 Gordon v. Chokolingo, supra at 2.

166 Id. at 3.

514 was attended by Gordon along with other supporters of both the ruling and opposition party.167

The article in the Bomb quoted the Echo editor, Crossley West, as saying “one thing is certain, there are plans for a movement decidedly an anti-Eric Williams movement [sic].”168 The editor of the Echo article ended with the words, “It is unfortunate though [sic] that some officials of the said government of Trinidad and

Tobago should find themselves engaged in this sort of underhand [sic] affair.”169

However, he wrote “[s]o far there is no indication what form the ouster will take, whether by election, take over coup or how.”

When Gordon sued Patrick Chokolingo, the Bomb’s editor, for libel the trial judge awarded Gordon $25,000 in damages. Chokolingo appealed partly on the basis that the words in the article did not constitute a libel in their ordinary meaning.

The Trinidadian Court of Appeal dismissed the appeal. Justice Maurice Corbin in his opinion for the court noted that the test of whether a word had a defamatory meaning was not the impression that the writer intended to convey, but what the “reasonable” reader would have understood from the article.170 The article alleged that Gordon was

167 Id. at 3.

168 Id.

169 Id.

170 Id. at 3–4. See Lewis v. Daily Telegraph (1964) A.C. 277, where Lord Patrick Devlin said that the words should not be construed as a lawyer might but according to their ordinary meaning.

The layman’s capacity for implication is much greater than the lawyer’s. The lawyer’s rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely, and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory.”

515 involved in a plot to overthrow the government, possibly “a coup, . . . by illegal and unconstitutional means,” which the judge noted would bring him into “hatred, contempt and ridicule in the estimation of right-thinking” Trinidadians.171

Corbin said that, based on the contextual description of Gordon as a supporter of the opposition leader, there was no intention to identify Gordon as having attended the meeting as a member of the press. Corbin noted that the last paragraph of the article had indicated that the Bomb did not know if the form of the ouster would be legal or illegal.

However, Corbin rejected the newspaper’s argument that, in the context of the last paragraph, the gist of the article was that the group intended to overthrow the government in the legal electoral process. He said that the earlier juxtaposition of the words “take over,” “sinister plot,” and “coup” in the article negated such an interpretation.172

Corbin noted that the trial judge, who sat without a jury, had correctly taken into account the plaintiff’s and defendant’s conduct, the plaintiff’s standing, the mode and extent of publication and the absence of a retraction or apology by the defendant.173 He

In Chokolingo the judge noted the Webster’s dictionary definition of “sinister” was “evil or productive of evil, bad” and of “plot” was “a secret plan contrived by one or more persons for accomplishing an evil or unlawful end.” Id.

171 Id. at 4.

172 Id. at 4. Corbin said

An attempt by the writer to water down the effect of the words by a sentence so contradictory to the gist of the publication as, for example, by suggesting in the final paragraph in the instant case that the overthrow might be by legal means, will not necessarily excuse his libel. A disclaimer so disproportionate as not really to modify the true meaning of the previous words would be of no avail. Id. at 2.

173 Chokolingo v. Gordon, supra at 5. See Cassell & Co. v. Broome, (1972) 1 All E.R. 801, 824.

516 also agreed that the trial judge was correct in assessing aggravated damages along with compensatory damages. 174

In the case, Corbin noted, the Bomb had shown reckless disregard for Gordon’s rights, publishing the “highly defamatory” article and making no attempt to withdraw it or apologize.175 The Trinidadian Court of Appeal inferred from the facts of the case that

the Bomb’s editor had “deliberately shut his eyes” and published the article with “guilty

knowledge” of its falsity. The court also found that Chokolingo’s motive in publishing

the false article was “to obtain an economic advantage that would outweigh any penalty”

imposed on him.176 The Court of Appeal held that the trial judge was entitled to award

exemplary damages since the publication had been made with guilty knowledge and/or

the object of gaining economic advantage, which were the only circumstances under

which such damages could be awarded.177 However, the court reduced the award of

174 Gordon v. Chokolingo, supra at 6. See Chapter 2, part VII, supra for definitions of “compensatory” and “exemplary” damages. See Cassell & Co. v. Broome (1972) 1 All E.R. 801 at 825, where Lord Hailsham said

“In awarding ‘aggravated’ damages the natural indignation of the court at the injury inflicted on the plaintiff is a perfectly legitimate motive in making a generous rather than a more moderate award to provide an adequate solatium. But that is because the injury to the plaintiff is actually greater and as the result of the conduct exciting the indignation demands a more generous solatium.”

In Chokolingo, Corbin believed that implication of misconduct, absence of apology, the standing of plaintiff all justified the judge’s decision to make a more than moderate award. See CONCISE OXFORD th ENGLISH DICTIONARY, (11 ed., 2004)(1911), where the word “solatium” is defined as “a thing given as a compensation or consolation.”

175 Chokolingo, supra at 8.

176 Id.

177 Id. at 7. See Rookes v. Barnard, (1964) 1 All E.R. 367, 410, where Lord Devlin said, although exemplary damages properly belonged in the criminal law, they could be awarded in civil cases where

the defendant’s conduct has been calculated by him to make profit for himself which may well exceed the compensation payable to the plaintiff. . . . Where a defendant with a cynical disregard for a plaintiff’s rights has calculated that the money to be made out of his wrongdoing will probably exceed the damages at risk, it is necessary for the law to show that it cannot be broken with impunity.

517 damages from $25,000 to $15,000 because the trial judge had taken into account the extent of publication in assessing both the compensatory and exemplary damages to be awarded, thereby increasing the award.178

6.5 Later Cases: 1980 to 1998

The period between 1980 and 1998 was the period just prior to the English House of Lords’ 1999 decision in Reynolds v. Times Newspapers,179 but after the House of

Lords’ 1972 decision in Cassell & Co. Ltd. v. Broome,180 when the English courts were preoccupied with the assessment of damages. However, in addition to some discussion on how damage awards could be addressed, the Caribbean cases in the 1980s and 1990s continued to define the parameters of the defenses available in libel actions.

In a 1981 decision, the Jamaican Court of Appeal held that, while privilege attached to the publication of statements made before a court, there was no privilege for the publication of statements made before a trial. In The Gleaner Co. Ltd. v. Small,181 attorney Richard Small was awarded $24,000 in damages, including exemplary damages, for a defamatory article published in the Gleaner. On appeal, the finding that the statement was defamatory was upheld, but the Jamaican Court of Appeal reduced the award to $5,000. The court held that exemplary damages could only be imposed in tort cases where a government servant had oppressed or acted unconstitutionally, the defendant’s behavior was calculated to make profit, or exemplary damages were authorized by law.

178 Chokolingo, supra. at 7.

179 [1999] 4 All E.R. 609.

180 [1972] A.C. 1027.

181 (1981) 18 J.L.R. 347.

518

Small, a prominent Jamaican attorney, had been arrested for obstruction and charged with resisting arrest. In July 1976, Small had accompanied his client to the police station to make a report of a motor vehicle accident. Small advised his client that he was required to report the accident to the police but advised him not to give the police a statement. The corporal on duty intervened and accused him of obstructing him in the execution of his duty. When Small attempted to leave with his client, the police pursued and detained him. The attorney told the police he had no right to arrest him, however, the corporal, encouraged by other police, arrested Small. 182 Small’s client posted bail for him and he was released.183

Shortly thereafter the Star, a Gleaner publication, published an article titled

“Attorney charged with obstructing cops.” The article stated in part:

Attorney at law, Richard Small is to answer charges of obstructing the police, failing to give his name to the police and resisting arrest, on Wednesday, August 18 in the Half Way Tree Court, following an incident which took place at the Half Way Tree police station on Monday.

It is alleged that Small accompanied a client to the station to report a traffic accident. While the report was being taken, Small is alleged to have told the client not to give a statement. Cpl. Clarence Rance of the same station explained that it was necessary, but Small continued to obstruct him from collecting the statement, stating, “You know who I am?” Small was then arrested by Cpl. Rance, and while being taken to the station, he allegedly made violent attempts to escape [sic].184

Small’s libel action against the Gleaner was premised on the statements that he had said “You know who I am” and that he had “made violent attempts to escape.”185 The

182 Id. at 351.

183 Id. at 352. Small was later charged with three offenses, but acquitted of all three. See Jamaican Road Traffic Act § 118 of Jamaica requires drivers involved in a motor accident to give their name and address, but is silent about any further information. Id.

184 Id. at 352.

185 Id.

519

Jamaican Court of Appeal upheld the Supreme Court’s finding that the two statements were defamatory.186 Justice Hugh Doston (H.D.) Carberry, speaking for the court, rejected the privilege defense. While privilege would attach to proceedings before a court, Justice Carberry said, there was no privilege at common law before a trial “to publish to the world at large defamatory statements about the persons engaged therein.”187 However, the court reduced the damages from $24,000 to $5,000. The court held that the lower court had incorrectly assessed the newspaper for exemplary damages which could not be imposed except in cases where the conduct of a government officer was “oppressive, arbitrary or unconstitutional” or where the defendant’s behavior was calculated to make profit, or where exemplary damages were authorized by law.188

In the 1983 Jamaican case, Caven v. the Gleaner Co. Ltd.,189 the Jamaican Court of

Appeal held that a reporter who acted without malice could publish an accurate report of a story, even if he did not believe it was true. In Caven, Dr. Trevor Munroe, the first vice president of the University and Allied Workers Union (U.A.W.U.), accused Hopeton

Caven, general secretary of a rival trade union, the Trade Union Congress (T.U.C.), of

186 Id. at 356.

187 Id. at 357. Carberry noted the defense of privilege applied where, based on the occasion, “the public interest would be better served by giving an immunity to utter defamatory words . . . than preserving the normal rules that protect the reputation of individuals.” See R. v. Wright, (1799) 101 E.R. 1396, Watson v. Waler, (1862) L.R. 4 Q.B. 73, Toogood v. Sprying, (1834) 149 E.R. 1044, Harrison v. Bush, (1855) 119 E.R. 509.

188 Id. at 376. Instead of applying principles determined in Rookes v. Barnard, [1964] A.C. 1129 and followed in Cassell v. Broome, [1972] in relation to the award of exemplary damages, the lower court had relied on the decision of Fielding v. Variety Incorporated, [1967] 2 Q.B. 841. Rookes had established that in determining damages the object was to compensate plaintiffs for their injury rather than to punish defendants. Thus, usually, exemplary or punitive damages should not be awarded in tort cases. The exception was in cases involving “oppressive, arbitrary or unconstitutional conduct by government servants,” where the defendant’s behavior was calculated to make profit, or where authorized by law. The Court noted in Small’s case that it was clear that the trial judge, applying pre-Rookes rules, had imposed exemplary or punitive damages. Id.

189 (1983) 20 J.L.R. 13.

520 organizing an attack against him that injured him so seriously that he had to get 100 stitches.190 Caven brought a libel action against the Gleaner when it published the article stating that he had attacked Munroe.191

The Gleaner editor said he did not believe that Munroe’s allegation was true, which the court noted, would usually tend to a finding of malice for publishing a statement the paper believed to be untrue.192 However, Justice Boyd Carey in the Court of Appeal noted that the presumption of malice would be rebutted where a statement was privileged.193 The court found that the editor had a duty to publish, even if, from his personal relationship with Caven, he did not believe the accusation to be true.194 Carey said that both “the subject matter and personalities involved” in the article made the report one of public interest. Carey said,

When the matter is of such national importance, the duty to publish altogether outweighs the fact of one man’s personal belief in its falsity.195

The court also held that a reporter, acting without malice, had a qualified privilege to publish an accurate account of what he heard.196

190 Id. at 14.

191 Id.

192 Id. at 15–16.

193 Id. This privilege would be defeated where the plaintiff could show that the real motive of the defendant was to expose him to ridicule rather than to inform the public. Id.

194 Id. at 19–20.

195 Id. at 19.

196 Id. at 20, citing Jamaica Defamation Act § 9 which provides

… subject to the provisions of this section, the publication in a newspaper of any such report . . . as is mentioned in the schedule shall be privileged unless the publication is proved to be made with malice. Id.

521

In the 1990 Jamaican case, Gleaner Co. & Sibblies v. Smart,197 the Jamaican Court of Appeal upheld a lower court’s decision that a publication based on a communication from a high-ranking police officer was privileged. The case had its genesis in nation-wide concerns in the 1970s about the inability of the police to control rising levels of crime in the island.198

In January 1976, after a Gleaner report of police unrest in the Mobile Reserve at

Harman Barracks, policemen demanded the resignation of the police commissioner and other high-ranking members of the force including Superintendent Eric Sibblies. The unrest was only averted when Prime Minister Michael Manley, the minister of national security and the commissioner of police went to the barracks to settle the grievances.199

In the midst of the discussion following the police demonstration, the Gleaner published a letter that it had received in an official envelope from the Denham Town Police Station which was signed, “Eric Sibblies,” stating:

On Monday 12th January, 1976 while men from Mobile Reserve were on duty at various places, an element in the force well known to be organized to undermine discipline and divide the security forces and who is an agent of certain political aspirants, with the clandestine instructions of the said political aspirants unauthorisedly took a Radio car and with his bodyguard (a fringe benefit which he is the only member of the Force to enjoy) called off a number of men, all young men, from duty telling them to come into Mobile Reserve for a meeting.200

In 1975 Rainford Smart, inspector of police and chairman of the Police Federation, had charged that politicians were actively involved in promoting gun crimes and preventing the police from arresting known criminals and hampering police in the

197 (1990) 27 J.L.R. 577.

198 Id.

199 Id. at 580.

200 Id.

522 performance of their duties. The statement had been made in the context of nationwide concern about the ability of the police to manage increasing crime in the country. The

Gleaner had published this report on May 28, 1975 and, thereafter, on June 1, 1975, the

Gleaner published another article indicating that, following his speech to the Police

Federation, Smart and his family had been provided with “round-the-clock” police protection and he had a personal body guard assigned to him. Thus it was known by most

Jamaicans that Smart had two body guards.

Smart claimed that the 1976 article referred to him and painted him as having a reputation for causing division in the force, being an agent for politicians involved with gun men, using a police car without permission and of having breached the Constabulary

Force Act in a manner punishable by imprisonment. He brought a libel action against the newspaper.201

The lower court awarded Smart $15,000 in damages and costs. The Jamaican Court of Appeal allowed the appeal holding that, because of Smart’s high-ranking position in the Constabulary Force, qualified privilege applied under section 9 of the Jamaican

Defamation Act.202 Section 9 of the statute provides:

(1) Subject to the provisions of this section the publication in a newspaper of any such report or other matter as is mentioned in the schedule shall be privileged unless the publication is made with malice.

(2) In an action for libel in respect of the publication of any such report or matter as is mentioned in Part III of the Schedule, the provisions of this Section shall not be a defense if it is proved that the defendant has been requested by the plaintiff to publish in the newspaper in which the original publication was made a suitable letter or statement by way of explanation or contradiction, and has

201 Id. at 581.

202 Id. at 583.

523

refused or neglected to do so, or has done so in a manner not adequate or not reasonable, having regard to the circumstances.

(3) Nothing in this Section shall be construed as protecting the publication of any matter the publication of which is prohibited by law, or any matter which is not of public concern and the publication of which is not for the public benefit.

Superintendent Sibblies said that he had written the letter to protect his integrity and the security of his family and friends. He testified that he had been accused of betraying the men under his command and endangering their lives, thus, he feared that he was in danger of being personally assaulted. He said that the fact that several police had asked for his transfer would lead the public to believe that he had acted dishonorably.203

The Court of Appeal accepted Sibblies’ contention that the dominant motive for the article was to inform Jamaicans that the police demonstration was not “spontaneous” as the press reported and that the demand for Sibblies’ resignation did not originate with the young police, but that Smart had instigated the rising.204 The court found that there was no evidence that Sibblies reacted out of malice in writing the letter, and Smart had failed to show either that there was no factual basis for the allegations or that Sibblies did not believe the statement to be true.205 Sibblies had a duty to inform the public that the

203 Id. at 588.

204 Id. at 588, citing Adam v. Ward, (1916–1917) All E.R. 157, 177, where Lord Atkinson said

A person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to discharge the duty which is the foundation of his privilege; but that on the contrary, he will be protected even though his language should be violent or excessively strong; if having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.

205 Id. at 588–589.

524 uprising had been manipulated by mischief-makers within the force.206 Thus, his letter was protected by privilege.

Justice Ira Rowe, speaking for the Court of Appeal, also held that the Gleaner had not acted recklessly since the newspaper was entitled to believe that a letter from the superintendent of police would be factually based. Thus, the Gleaner could publish the letter “without any fear that its action would be termed reckless.” The court held that the newspaper had not acted recklessly by not checking whether the information was true or had been actuated by malice.207

In another 1990 Jamaican decision, the Court of Appeal also ruled that where a newspaper relied on a police report in writing a news story, the newspaper was protected by privilege. The Jamaican Court of Appeal overturned a lower court’s libel award in the

Gleaner Co. Ltd. v. Trevor Munroe.208 Munroe involved a 1988 publication in the

Week-end Star, a Gleaner publication. The article alleged that Dr. Trevor Munroe, general secretary of the University Allied Workers Union (U.A.W.U.) and a senior lecturer at the University of the West Indies, had staged a political meeting outside an examination hall where students were writing exams on campus. The students, the article alleged, had been disturbed by the loud shouts and cries.

Munroe brought an action for defamation. The Jamaican Supreme Court had found that the public’s only interest in such an article was based on idle gossip. Rejecting the defenses of justification and qualified privilege, Justice Patterson held that, even if there

206 Id. at 589.

207 Id.

208 (1990) 27 J.L.R. 167.

525 had been privilege, it would be defeated because the article had been initiated by malice.

He awarded Munroe $12,000 in damages.209 The Supreme Court’s decision was overturned on appeal.

Justice Boyd Carey in the Court of Appeal noted that the U.A.W.U. was the union for many categories of workers at the University of the West Indies (U.W.I.) and the article had been written in the context of a labor dispute which had led to a strike. There had also been allegations that the U.A.W.U. had sabotaged an electrical cable leading to a power outage, which was denied. Thus, at the time, there was a tense relationship between the U.A.W.U. and the U.W.I. and the university had solicited police presence.210

According to the evidence of police witnesses, Munroe had addressed a meeting that took place when there was no examination.211

Nonetheless, the Court of Appeal disagreed with the lower court’s position that the public had no interest in hearing about the speech.212 The fact that a university lecturer may have disrupted his students was of public interest.213 The Court of Appeal also rejected the Supreme Court’s finding of malice. The lower court had held that Gleaner editor Hector Wynter had acted recklessly by failing to verify the facts. However, the

Court of Appeal found that the veracity of the article had been checked with the police.

Although the newspaper had not made checks with the university administration or guild

209 Id. at 168.

210 Id.

211 Id.

212 Id. at 169. The Court relied on Gafar v. Francis, (unreported CA 45/80 24 July, 1986) and the Supreme Court’s decision in Caven v. The Gleaner Co. Ltd, supra.

213 Id. at 170.

526 of undergraduates, the court held that the onus of the newspaper to take reasonable steps to ascertain the accuracy of statements was satisfied in the case where it relied on a statement made by senior police officers.214

In the 1995 decision McDonald Farms Ltd. v. Advocate Co. Ltd,215 the Court of

Appeal of Barbados dismissed an appeal against a lower court’s decision, holding the

Advocate liable for an article defaming a chicken farm. The Court of Appeal also disallowed an application to amend the newspaper’s plea to include the defense of privilege, holding that this defense was not open to the newspaper since there was no duty to publish the information.216

The case involved an article published in the Weekend Investigator on March 3 and

10, 1989. The article contained information regarding food contamination that was being investigated by the public health authorities.217 Initially, the newspaper’s pleaded defense was that the words were not defamatory of the Farm Co. and fair comment on a matter of public interest. The defense of fair comment was struck out.218

After the case was set down for hearing, the Advocate was granted leave to amend its defense to one of justification. A second application to add qualified privilege was dismissed on grounds that it was not open to the newspaper in the case.219 On appeal, the

Court of Appeal unanimously upheld the lower court’s decision.

214 Id. at 170. The Court referred to The Gleaner Co. Ltd. & Sibblies v. Smart, supra.

215 (1996) 52 W.I.R. 64.

216 Id.

217 Id.

218 Id. at 65.

219 Id.

527

Sir Denys Williams, speaking for the Court of Appeal, agreed that the defense of qualified privilege was available to newspapers.220 Although the health of the Barbadian public which would be affected by food contamination was a matter of public interest that the public would be interested in being informed about, Williams noted that in Blackshaw v. Lord, Justice Stephenson had held that:

public interest and public benefit are . . . not enough without more. There must be a duty to publish to the public at large and an interest in the public at large to receive the publication, and a section of the public is not enough.221

The court in McDonald Farms noted that the Advocate could only be allowed to plead privilege if it were found that it had a duty to print the article.222 Thus the court in

Blackshaw223 had said:

Where damaging facts have been ascertained to be true or been made the subject of a report, there may be a duty to report them provided the public interest is wide enough . . . But where damaging allegations or charges have been made and are still under investigation or have been authoritatively reported . . . there can be no duty to report them to the public.224

220 Id. at 67. See Blackshaw v. Lord, [1983] 2 All E.R. 311 at 326, where Justice Stephenson said,

“The cases to which I have referred show a uniformity of approach. In my view the privilege for publication in the press of general public interest is confined to cases where the defendant has a legal, social or moral duty to communicate it to the general public, or does so in reasonable self-defense to a public charge, or in the special circumstances exemplified in Adam v. Ward, [1916–17] All E.R. 157. A duty will thus arise where it is in the interests of the public that the publication should be made and will not arise simply because the information appears to be of legitimate public interest.”

See also Banks v. Globe and Mail Ltd., [1961] S.C.R. 474, 484; James v. Baird, 1916 S.C. (HL) 158, 163– 164.

221 McDonald’s Farms Ltd, supra at 67.

222 Id. at 67.

223 Blackshaw, supra at 326.

224 Blackshaw, supra at 32.

528

The court in McDonald Farms found that, since the allegations of contamination were still being investigated, there was no duty to publish the report.225 The appeal was dismissed with costs.226

In a 1996 decision in Dominica, Nicholas v. Augustus,227 the Dominican Court of

Appeal held that a person who sought redress for an injury would be protected by privilege if he communicated a libelous statement to the person(s) or body that could grant him redress. However, the court held that there was no privilege for the report of such an injury to the world at large.

In Nicholas the litigants were both trade unionists. Kertist Augustus was secretary/treasurer of the Caribbean Congress of Labor (C.C.L.), an umbrella organization for several affiliated trade unions. Bernard Nicholas was the general secretary of the Dominica Trade Union (D.T.U.) which was affiliated with the C.C.L.228

Nicholas wrote a letter addressed to several trade unions, including some not affiliated with the C.C.L., describing Augustus as deceitful and unfit for the position of treasurer of the C.C.L. and of being biased against D.T.U. Nicholas also accused Augustus of the

225 McDonald’s Farms, supra at 71.

226 Id. at 72, cf. the 1978 Court of Appeal decision in St. Christopher Nevis and Anguilla, Michael O. Powell v. Esmond St. John Payne (unreported in the Court of Appeal in the State of St. Christopher Nevis and Anguilla, Civil Appeal No. 7 of 1977), where Sir Denys Williams held that the lower court judge had been wrong in disallowing an application to alter the pleadings to include fair comment, setting aside a lower court’s $8,000 damages award for slander against a minister of government. The libel involved allegations that a minister had stolen from the public funds. Williams held that the lower court judge could not have known what factors would have been proved until the case had been heard. Thus, the judge ought to have allowed the amendment pleaded.

227 [1996] E.C.L.R. 133.

228 Id.

529 criminal act of fraudulently providing money on behalf of the D.T.U. to convene a meeting which Augustus was not authorized to do.229

In the High Court of Dominica a trial judge had found the letter defamatory. The trial court had rejected the defense of qualified privilege and, finding that Nicholas acted maliciously in publishing the letter, awarded Augustus $20,000.230 The trial judge found the article malicious because he did not believe Nicholas’ evidence that he had been authorized by the executive of D.T.U. to write the letter.231 Thus, the trial court found

that Nicholas was “venting his spleen,” which was an abuse of the privileged occasion.

The trial judge also found the letter was written in “scurrilous terms” indicating its

malicious nature.232 Nicholas appealed the issue of liability on the basis of qualified privilege and malice along with the amount of damages awarded.233 Justice Satrohan

Singh, speaking for the Eastern Caribbean Court of Appeal, dismissed the appeal with

costs.

229 Id. at 135.

230 Id.

231 Id. at 138.

232 Id., citing Horrocks v. Lowe, (1974) All E. R. 662, 669, where the House of Lords held that a defendant was entitled to be protected by privilege unless “some other dominant and improper motive” was proved on his part. Lord Diplock said in Horrocks

233 Id.

530

Nicholas had argued that the statements were privileged because they were made in the discharge of a public or private duty, or made on a subject matter in which both the speaker and the person to whom the statement was made had a legitimate interest, or made in order to redress a grievance.234 In evidence, Nicholas said he wrote the letter to get redress from CCL.235 Singh said there were three circumstances in which Nicholas could rely on the defense of privilege. These were in the case of:

• Statements made in the discharge of a public or private duty. • Statements made on a subject matter in which both the defendant and the person to whom the statements are made have a legitimate common interest. • Statements made by the defendant to obtain redress for a grievance.

However, the judge found that the circumstances that would allow Nicholas to rely on privilege applied only in the case of the report made to the C.C.L. There was no privilege for the communication of the statement to the other trade union addressees.

The first circumstance in which Nicholas might have been able to rely on privilege was where it was shown that the persons to whom the letter was sent had a “legitimate interest or duty” in the subject of the letter. Even where speech was communicated to persons having a legitimate interest, the communicator had no justification for making it in a place or manner in which other persons that had no interest in the communication would also be able to hear, Justice Singh said. 236 Singh reasoned that Nicholas had

234 TH Id. at 136 See GATLEY ON LIBEL AND SLANDER, 8 EDITION, ¶ 442. These are three of the nine categories that Gatley suggests would allow the defense of qualified privilege.

235 Nicholas v. Augustus,, supra at 136.

236 th Id. See GATLEY ON LIBEL AND SLANDER ¶ 520 (7 ed.), which states

The defendant must be careful to make his communication only to those persons who have a legitimate interest or duty in relation to the subject matter. The fact that a communication between A and B is privileged does not justify A in making the communication in a manner or at a time which would necessarily involve its publication to other persons who have no such interest or duty and no privilege will prima facie attach to any such publication. Id.

531 indicated his aim in writing the letter was to obtain redress since, he had claimed,

Augustus was “systematically” denying D.T.U.—the union headed by Nicholas—“its entitlements as a legitimate affiliate of C.C.L.”237 In the circumstances, the C.C.L.’s secretariat was the correct body to investigate the allegations and, if appropriate, grant redress but, until the C.C.L. made a determination about the truth, the contents of the letter were allegations only, and could have “no practical value.”238 Thus, the court found that, since the accusations in the letter were mere allegations, Nicholas had not been acting in “the honest discharge of a public or private duty” when he sent the letter to other trade unions.239 Thus, the communication to the other trade unions was not protected by privilege.240

Apart from the situation where a person had a legitimate duty or an interest existed,

Singh said a privilege would arise where a statement involved a subject matter in which both the speaker and recipient had an interest. However, Singh said that this interest could only be successfully argued in the case of the C.C.L. in the absence of a clear finding of guilt.241 Until guilt had been determined the other trade unions to which

Nicholas had communicated the libel had no interest in the information. Otherwise, Singh noted, even idle gossip would be protected.242

237 Id. at 135.

238 Nicholas v. Augustus, supra at 136. See De Buse and Others v. McArty and Stephney Borough Council, [1942] 1 All E.R. 19, 23.

239 Nicholas v. Augustus, supra at 136.

240 Id.

241 Id.

242 Id. at 138. He noted that, wherever the plea had been successful, it had been more than just an allegation. See Neville v. Fine Art and General Insurance Co., (1897) A.C. 68, Hunt v. Great Northern Rly, (1891) 2 Q.B. 189 and Boston v. W.A. Bagshaw & Sons, (1966) 1 W.L.R. 1126.

532

The third situation, Singh said, where Nicholas could rely on privilege was where the communication was aimed at redressing a grievance. This situation also would be limited to the publication to the C.C.L., and not the others to whom the letter was sent since, in practice, where a person alleged a grievance, he was entitled to bring the grievance to the attention of the body that could inquire into the grievance, redress it or punish the wrongdoer.243 The C.C.L. was the only one of the addressees that could redress the grievance.244

The judge noted there was a presumption of malice where false and defamatory words were published. This could be rebutted on a finding of privilege. However, the privilege would be lost where it was found that there was express malice.245 The chief justice noted that the judge in the Dominican High Court had rejected Nicholas’ argument that he was authorized by D.T.U. and decided that he was merely “venting his spleen.” Thus, the Dominican court had concluded that Nicholas had acted with malice.246

Singh held that the Dominican High Court had been correct in finding that

Nicholas’ defense of privilege failed because he was acting with express malice. He said that malice did not require spite or ill-will toward the plaintiff, but could include any improper motive in the defendant’s mind when he made the statement. A court should be slow in drawing the inference that the defendant acted for improper motives, unless it

243 Id. See GATLEY.

244 Nicholas v. Augustus, supra at 138.

245 Id. See GATLEY, ¶ 325.

246 Nicholas v. Augustus, supra at 138. The judge had referred to Horrocks v. Lowe, (1974) 1 All E.R. H.L. 662 where the court held that juries should be slow to draw the inference of an improper motive.

533 was satisfied that the defendant did not believe the statement to be true or was indifferent to whether or not it was true, Singh said.247

In the instant case, Justice Singh said, after the publication, Nicholas was informed of the falsity of the allegations by Augustus’ attorneys. He responded by asserting his readiness to “produce concrete evidence in support of those allegations.”248 However, although his initial defense had been justification, at the trial he testified to the falsity of the words and relied, instead, on honest belief.249

Singh agreed with the lower court’s decision and finding of express malice. Singh believed that the decision that Nicholas was operating with malice was borne out by the

“excessively strong language” in the letter and Nicholas’ decision to send his letter to several trade unions other than the C.C.L. in a situation where Nicholas was claiming he wanted redress. Singh also noted that, by abandoning his justification defense, the conclusion to be drawn was that the statement was false and Nicholas could not have had an honest belief in it.250 Thus, Nicholas published primarily from the improper motive of giving vent to his personal spite and the judge had correctly found that he was motivated by malice.251

Responding to the appeal on the damages awarded, Singh noted that this would be determined on the basis of “impression and common sense” and was the province of the trial court judge. Since the Court of Appeal had not seen the witnesses, which would be

247 Nicholas v. Augustus, supra at 138. See Horrocks v. Lowe, supra. at 669.

248 Id.

249 Id. at 140.

250 Id.

251 Id.

534 important in reaching conclusions on the amount of damages to be awarded, and the trial judge had taken all the proper elements of damages into account, and awarded a “fair and reasonable compensation under all the circumstances of the case,” the fact that the amount of damages did not equate with what the Court of Appeal would have awarded was not sufficient to disturb the award.252 The Court of Appeal found that, based on the judge’s reasoning, it did not agree that the amount was blatantly wrong, a wholly erroneous estimate, or out of proportion in the context of the case.253 The Court of

Appeal dismissed the appeal.

In the 2005 Jamaican Court of Appeal decision, Seaga v. Harper,254 a defamation conviction against then Opposition Leader Edward Seaga was upheld, although the damages were reduced. The action was brought by Leslie Harper, then deputy commissioner of police in the Jamaica Constabulary Force and attorney. Commissioner of Police Trevor McMillan was scheduled to retire and there was discussion about a successor. Harper was one of the prospective candidates to replace McMillan. Seaga, at a

March 1996 meeting of the opposition Jamaica Labor Party (J.L.P.), attended by several persons and the media, said:

Part of the strategy is to get rid of the present Commissioner of Police and to put in place someone whose credentials as a P.N.P.255 activist are impeccable, reliable, solidly supported—a distinguished supporter of the P.N.P. The only difference being that he is in uniform.

252 Nicholas v. Augustus, supra at 140. The Court would only interfere if there was no relation between the loss sustained and the damages awarded or the judge misunderstood the facts, took irrelevant issues into consideration or applied wrong principles of law or measure of damages. Id. at 140–141. See also GATLEY ¶ 1515–1518 (8th ed.)

253 Id. at 141.

254 (unreported) In the Court of Appeal of Jamaica, Supreme Court Civil Appeal No. 29/2004 (2005).

255 The People’s National Party (P.N.P.) was the political party in power at the time.

535

Mr. Harper who is considered to be the person to replace Trevor McMillan is someone who we cannot and never will be able to support, because it is recreating the conditions of 1993 when a similar type of Commissioner was in the post who did everything to turn a blind eye in that election.256

Articles including the comments were published in The Jamaica Herald, the R.J.R. radio station and C.V.M. television station. Harper brought an action against Seaga on the basis that the words were malicious, false and “calculated to disparage him” in his profession. Harper argued the comments implied that he was not impartial in his role as a senior police officer but politically biased and, thus, unfit to hold the position of commissioner of police.257

Seaga’s defense was that the words were protected by qualified privilege and he believed them to be true.258 He relied on opinions of members of the J.L.P. and the public, but had never enquired into the accuracy of the reports from the commissioner,

Trevor McMillan or Harper. Also he had not reported to either the Police Service

Commission or the Police Public Complaints Authority.259

Justice Patrick Brooks held, in the Supreme Court, the trial court, that the defense of privilege failed.260 Justice Paul Harrison who delivered the opinion of the Court of

Appeal agreed. He noted that qualified privilege arose as a defense where the speaker or writer had a duty to disseminate the statement and the person receiving it had a

256 Id. at 2.

257 Id. at 2–3.

258 Id. at 3.

259 Id. at 4.

260 Id. at 6. He found the case “materially indistinguishable” from the Reynolds case where the House of Lords had held there was no privilege. The judge noted that the information was “mere rumor” and there was no public interest in passing it on to the public. Id.

536 corresponding duty to receive it.261 Harrison held that the trial judge was correct to find that Seaga, as the leader of the opposition, had a duty to disclose public information in the public interest which the public had a right to receive.262 In addition to showing the information was public and there was a public interest in its dissemination, the court said,

Seaga had to show he had an honest belief in the information he had received and had exercised due care before he could rely on the defense of qualified privilege.263 In this case the Court of Appeal found the information was not in the public interest.

Additionally, the court found Seaga had no honest belief in the information and had not

acted with due care in disseminating it.

261 Id. at 10. See Adam v. Ward, [1916–17] All E.R. 157, 170 where Lord Atkinson said,

a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential.

262 Id. at 30.

263 Seaga v. Harper, supra at 30. Harrison referred to the English Court of Appeal decision Watt v. Longsdon, [1930] 1 K.B. 130, where the director of a company received a letter from an employee indicating immoral conduct, dishonesty and drunkenness on the part of another employee. He asked for confirmation of the allegations, but before this, the employer communicated the information to the chairman of the company and his employee’s wife. The court held that, although the qualified privilege attached to communication between an employee and supervisor applied in the case of the employee and chairman because of the common law duty to discuss the affairs of the company. However, no such privilege applied in relation to the employee’s wife. In Chapman v. Ellesmere, [1932] 2 K.B. 431, the English Court of Appeal held that a statement published by the stewards of a jockey club about the conduct of trainers was held to be protected by privilege since stewards owed a duty to inform all persons interested in racing of the conduct of trainers. A dictation to a typist in the course of business was also held to be privileged (see English Court of Appeal decision in Osborn v. Boulter, [1930] 2 K.B. 226). Defamatory statements made during investigations in a criminal case were also held to be privileged (Force v. Warren, (1964) 15 CBNS 806). In the English Court of Exchequer decision Harrison v. Bush, [1855] 5 E & B 344, 348, a complaint to a Home Secretary that a local magistrate who had incited people to break the peace should be removed from office was protected by privilege although the communication should have been sent to the Lord Chancellor. In Adam v. Ward, supra., an accusation by a former army officer in the House of Commons that defamed a general was privileged even though it had been subsequently distributed to the press since the person making the statement had “a legal, social or moral duty to make it.” See also Cox v. Feeney, [1863] 4 F & F 13, where the court held that information could be made public where it was proper for the public to know it. However, in Blackshaw v. Lord, [1983] 2 All E.R. 311, the court held that the publication of rumors still under investigation was not protected by privilege, unless the “urgency of communicating a warning is so great, or the source of the information is so reliable, that publication of suspicion or speculation is justified.” Id.

537

Justice Harrison said that Seaga had not provided any evidence of political bias on the part of Harper, nor had he provided information in support of the allegation he made against him.264 In the absence of such evidence, Harrison said, Seaga had a duty to take care before communicating the information. The publication of “mere rumors” was not in the public interest and there was no urgency to communicate the information since the incumbent commissioner of police was not scheduled to retire for three months.265 The court found that Seaga did not have an honest belief in the information and had not exercised due care. Thus, the court held that Seaga could not rely on the defense of qualified privilege.

The court held that Seaga had not exercised due care in disseminating the information.266 Harrison noted that, although Jamaicans had a right to know that the post of commissioner of police was occupied by someone with integrity and without bias, the electorate did not select the commissioner and Seaga had advised neither the Police

Services Commission nor the, then, commissioner, Trevor McMillan, nor the Minister of

National Security. These were the people with the responsibility to appoint and discipline police officers. Had he attempted to advise them, the judge said, the degree of care required would have been demonstrated.267

264 Seaga v. Harper, supra at 30.

265 Id. at 31.

266 Id. at 32. See Panday v. Gordon, Privy Council Appeal No. 35 of 2004, at ¶ 14 where the Privy Council held that “. . . those who make statements at large on matters of public concern and seek to avail themselves of this extended area of privilege, in addition to acting honestly, should exercise a degree of care.” Id.

267 Id. at 33. He could have also used the absolute privilege he was entitled to had he made the statement in Parliament. Id.

538

The court, thus, agreed with the lower court’s decision. However, Harrison reduced the damages award, noting that the trial judge had made an award for aggravated damages although aggravated damages had not been claimed by Harper.268 Harrison reduced the damages from J$3.5 million (approximately US$58,333), to J$1.5 million

(approximately US$25,000).269

6.6 Two Post-Reynolds Privy Council Decisions

The Privy Council decisions have been set apart from the Court of Appeal decisions since, because the Privy Council is the final court of appeal in the Caribbean, these decisions represent the substantive law. Also, both of these cases occurred in the post-Reynolds era and, therefore, represent the direction in which Caribbean libel law is developing. Just as in the pre-1998 period the law of public-person libel in the Caribbean was largely developing along similar lines to the English jurisprudence, after the

Reynolds decision Caribbean jurisprudence reflected the English decision. The Reynolds case had specifically rejected the New York Times actual malice standard. In subsequent

Caribbean decisions the courts did not, however, immediately address this position.

Slowly the courts began to bring their jurisprudence in line with Reynolds.

In 2002, the Privy Council underlined the need for responsible journalism in reporting on matters of public concern.270 The 2002 decision in Bonnick v. Morris &

268 Id. He noted that the Court of Appeal would hesitate to disturb a damages award made by a jury unless based on wrong principles. However, the Court of Appeal could change a damage award with substantially more discretion if it was modifying the decision of a trial court judge sitting alone.

269 Id. at 34. See Gleaner Co. Ltd. v. Abrahams, [2003] U.K. PC 55. Seaga is in the process of appealing the decision. See Caribbean Affairs: Seaga takes libel case to Privy Council, in CARIBBEAN IMPACT, http://www.caribimpact.net/v3_29_caribbean_affairs_8.html (last visited Feb. 24, 2006).

270 Bonnick v. Morris & Others (2002) 61 W.I.R. 358.

539

Others271 is the first Privy Council Caribbean civil libel decision involving a public person found in this research. The Privy Council Board, while holding that the statement which was the subject of the libel suit in Bonnick could be defamatory in its meaning, found that qualified privilege attached. The Board also suggested that where a statement was capable of two meanings, the meaning that would be less defamatory should be adopted.

The case involved the Jamaica Commodity Trading Company (J.C.T.C.), a government-owned company with the monopoly over the importation of basic foods into

Jamaica. In 1990 the managing director of J.C.T.C. was Hugh Bonnick. In that year, the company entered into two agreements with a Belgian company, Prolacto SA, to provide milk powder to Jamaica. Bonnick was later dismissed from J.C.T.C. in December 1990 before the contract was formally signed.272 Shortly after the contract was signed, a dispute arose between the J.C.T.C. and Prolacto about the money to be paid. Ultimately the J.C.T.C. brought an action against Prolacto for breach of contract.273An article published in the Gleaner titled, “J.C.T.C. sues Belgian milk company,” read in part:

In the second deal, Prolacto demanded that the interest on the deposit of approximately J$31.8 million should accrue to their account.

According to one authoritative source, “nobody at J.C.T.C. could be so mad as to agree to that.” He also contended that the contracts were arranged without the normal participation of the Purchasing Department and that Prolacto was not on J.C.T.C.’s list of approved suppliers.

Mr. Hugh Bonnick, then managing director of J.C.T.C., told the The Sunday Gleaner that there had been a mistake in the implementation of payments on the first contract and interest should have gone to the suppliers, not to JCTC. He said

271 (2002) 61 W.I.R. 358.

272 Id. at 359 ¶ 1.

273 Id. at ¶ 2.

540

he had “opened up the restricted lists” of all suppliers when he assumed the position at J.C.T.C.

Mr. Bonnick also emphasized that the Prolacto contracts were both put out to tender, evaluated and awarded according to the rules and that the auditors were present on all occasions. He indicated that he will sue anybody who suggests otherwise. Mr. Bonnick’s services as managing director were terminated shortly after the second contract was agreed.

An authoritative source pointed out other departures from the norm in respect to these contracts: the fact that Prolacto was late in starting delivery, and then requested a price hike to cover increased transportation costs because of the Gulf War. Much pressure was brought to bear on J.C.T.C. officers to accede to this request but the Sunday Gleaner was unable to find out the actual outcome.274

Bonnick brought a defamation suit against the journalist who wrote the article, Margaret

Morris, and the publisher and the editor of the Gleaner. Bonnick asserted that there was no irregularity in the process by which the contracts were made and that his dismissal had not been caused by the Prolacto contracts, but because the in-coming minister wanted to appoint “his own man” as managing director.275

Morris said that her story had been based on an article in Insight, a Jamaican magazine. She had called J.C.T.C., but the company would not answer her questions.

Thus, her two sources were an anonymous source and Bonnick himself.276 Morris believed both sources spoke honestly and decided to leave the determination of truth to her readers.277

274 Id. at 359–360 ¶ 2.

275 Id. at 361 ¶ 4. Bonnick had been asked to resign but refused to so he would be paid compensation for dismissal. Id.

276 Id. at ¶ 5. When she told Bonnick that she had information about irregularities related to the Prolacto contracts, he answered her questions. She had not enquired about the reasons for his dismissal, but asked him whether he had been “fired.” Bonnick had told her that he had made them fire him, because based on the advice he had received, this would ensure he had more compensation. He had told her his dismissal had nothing to do with Prolacto. Id.

277 Id.

541

In the Supreme Court, the trial court, Justice Rance Langrin held that the words were defamatory of Bonnick, because the “ordinary reader” would understand the words to mean that Bonnick had been dismissed because of irregularities in the Prolacto contract. He rejected the defense of justification and honest comment, holding that, although the occasion was privileged, there was malice. Since Morris believed Bonnick, she should not have printed the conflicting version of her anonymous source, Langrin said. His J$750,000 (approximately US$12,500) damage award included aggravated damages because of the Gleaner’s persistence in pleading justification.278

A plurality in the Court of Appeal overturned the trial court’s decision. Each of the three justices wrote their own opinions. Justice Henderson Downer found the article was not defamatory and that the “ordinary reader” would not have found that the termination was due to impropriety. Downer said that all of the defenses—justification, qualified privilege and honest comment—applied. Justice Donald Bingham, finding the article defamatory, nonetheless believed, like Downer, that the defense of qualified privilege would prevail.279 Justice Ian Forte, the president of the Court of Appeal, dissented finding the article defamatory and that the defenses were not available.280

Bonnick appealed to the Privy Council, where the law lords unanimously dismissed the appeal. The law lords agreed with Justice Langrin’s interpretation in the Supreme

Court (the trial court) that, in its context in the article, “termination” of Bonnick’s services would not be interpreted neutrally but would be linked in time with the Prolacto

278 Id. at 362. ¶ 6.

279 Id. at ¶ 7.

280 Id. at ¶ 8.

542 agreement. This, the law lords said, would indicate that Bonnick had been dismissed because J.C.T.C. was not satisfied with his handling of Prolacto.281 The lords decided that, in the circumstances, the defense of justification was not available, nor was fair comment since the article was not opinion but fact.282

However, Lord Donald Nicholls of Birkenhead, who spoke for the Privy Council

Board, found that the occasion on which the statement was made was privileged. He noted that malice would have been found under principles in Reynolds v. Times

Newspapers if Morris had explicitly declared that J.C.T.C. dismissed Bonnick because of dissatisfaction with handling the Prolacto agreement.283 However, since there was no express statement to this effect, Lord Nicholls said the defamatory meaning was implied.

He noted that Justice Downer in the Court of Appeal had not believed that the article contained the implication that Bonnick had been fired because of the Prolacto incident.284

Thus, he said, there was room for different opinions about whether the article implied that

Bonnick had been fired for this reason.285 Since the language was imprecise, he noted, the meaning should be determined based on its context.286

281 Id. at 363 ¶12–13. The law lords referred to principles in Skuse v. Granada Television Ltd., [1996] E.M.L.R. 278 at 285 and 287, where Sir Thomas Bingham said in the Privy Council that the trial court should give the ordinary meaning that an article would convey to a reader who read the newspaper once. The ordinary reader should neither be naïve or unduly suspicious, nor “avid to scandal” such as to select the bad meaning where other non-defamatory meanings were possible. The court should also read the article as a whole, and not disturb a lower court’s decision unless satisfied that it was wrong. Id.

282 Bonnick v. Morris, supra at 363 ¶ 14.

283 Id. at 364 ¶18.

284 Id. at 364–365 ¶ 19.

285 Id.

286 Id. at 365 ¶ 20.

543

He said that section 22 of the Jamaican Constitution which guaranteed freedom of speech was consistent with the European Convention of Human Rights’ guarantee of freedom of speech.287 This right, Nicholls noted, was bound by the need to protect “rights reputations and freedoms of other persons.”288 The law lord said there was a need for responsible journalism even when reporting matters of public concern.289 Thus, freedom of expression on matters of public concern should be balanced with the need to protect the reputation of people, Nicholls said. This balance was necessary, he said, in the public interest. Thus, in order to rely on privilege for protection against libel suits, journalists were required to exercise “due professional skill and care.”290 However, he noted, the court also needed to bear in mind “practical realities” when identifying this standard.291

“[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,” Lord Nicholls said. “Rather, a journalist should not be penalized for making a wrong decision on a question of meaning on which different people might reasonably take different views.”292

287 Id. at 364 ¶ 16.

288 Id. See JAM. CONST. § 22. See also European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 10.

289 Id. at 365 ¶ 23.

290 Id. at 365 ¶ 23.

291 Id. at 366 ¶ 24.

292 Id. Nicholls said, however, that the principle should not be taken too far. The issue was one of degrees. “The more obvious the defamatory meaning, and the more serious the defamation, the less weight will a court attach to other possible meanings when considering the conduct to be expected of a responsible journalist in these circumstances.” Id. at 366 ¶ 25. The one meaning position had been expressed in Slim v. Daily Telegraph Ltd., [1968] 2 Q.B. 157 at 171–172.

544

Lord Nicholls said that, since J.C.T.C. was a government-owned company and carried on business that affected the cost of living of all Jamaicans, the public was entitled to know about any irregularities carried out by the company. Thus, the newspaper had a duty to publish information of incompetent, irregular conduct, provided the reports were fair and balanced, Nicholls said. Bonnick had been contacted and his comments were included alongside those of the anonymous source.293 The fact of Bonnick’s dismissal was of public interest, and the defamatory imputation was not near “the top end of a scale of gravity.” The defamatory meaning was not glaringly obvious to conclude that all reasonable journalists would be aware of its nature.294

Balancing the failure to make further inquiry and the omission of Bonnick’s statement about the reason for his dismissal, the Privy Council, nonetheless, found that

“although near the borderline, overall this article was a piece of responsible journalism to which the defense of qualified privilege is available.”295 Thus, the Privy Council Board dismissed the appeal.

The final case to be discussed in this chapter is also a Privy Council decision. In the

2005 Trinidadian case, Panday v. Gordon,296 the Privy Council recognized the need to interpret the specific right to political speech contained in the Trinidad Constitution more widely than the constitutional provisions in the rest of the Caribbean which did not specifically protect political speech. However, the Privy Council held that the additional protection in the Trinidadian Constitution for freedom of political speech did not trump

293 Bonnick v. Morris, supra at 366 ¶ 26.

294 Id.

295 Id.

296 Privy Council Appeal No. 35 of 2004.

545 the common-law action in defamation.297 The Privy Council Board held that the

Trinidadian Prime Minister Basdeo Panday did not have an honest belief in the statement he made about journalist Ken Gordon and, thus, the defense of privilege failed. The

Trinidadian case, decided in October 2005, is the most recent Privy Council defamation decision in the Caribbean. In this case, the Privy Council upheld a $300,000 award of damages against then Trinidadian Prime Minister, Basdeo Panday, for libelous statements made by him about journalist and Caribbean businessman Kenneth Gordon.

The context of the case is important. In Trinidad and Tobago the largest ethnic group is of East Indian descent.298 The East Indians were brought to the island in the post-slavery days as indentured workers. The effect of this has been that the country has traditionally had very uncomfortable race relations between East Indians and the other majority race—blacks. Kenneth Gordon is a well-known Caribbean businessman and chairman of a large newspaper in Trinidad. In 1997 Basdeo Panday, who was the first

Trinidadian prime minister of East Indian extract, was prime minister of the twin islands of Trinidad and Tobago. On May 30, 1997 the country held its inaugural celebration of a new national holiday that marked the first arrival of indentured workers from India in

1845.299 In a televised speech to a group in commemorating the holiday, Panday said:

As you join me in this crusade for national unity you will meet many people who do not want national unity. They are the ones who in the past have benefited and thrived on maintaining division of our society. I call them the pseudo racists.

297 Panday v. Gordon, Privy Council Appeal No. 35 of 2004.

298 See The World Factbook, http://www.cia.gov/cia/publications/factbook/geos/td.html (last visited Feb. 24, 2006). In Trinidad the breakdown of populations is East Indian (40 percent), African (37.5 percent), mixed (20.5 percent), other (1.2 percent) and unspecified (0.8 percent) according to the 2000 Census.

299 Panday, at ¶ 1.

546

I call them the pseudo racists because they are not real racists. Real racists are people who look after their race. These fellas [sic] use race only to look after they [sic] self. They are pseudo racists. So I say the pseudo racists who have divided the society to maintain the political power [sic]. And even now they are doing so in the hope of political survival. The Ken Gordons who want to maintain his monopolistic advantage over his competitors in the media [sic].

My brothers and sisters, they come in many shapes and sizes. They do not want change, they continue to resist national unity. We pass laws to deal with criminals, they condemn us. We sign an agreement with the Americans to deal with drug lords, they condemn us. . . . We try to change U.R.P., they accuse us of racism. If someone gets fired from state enterprise because . . . he is corrupt, they scream. They doh [sic] want change, they want to continue in their old ways [sic].300

In the libel action that ensued, the trial judge in the Trinidadian High Court, Justice

Peter Jamadar, found in favor of Gordon, awarding him damages, including aggravated damages, of TT $600,000 (approximately U.S. $100,000).301 The High Court said that the

“ordinary listener” would have believed that Panday called Gordon a “pseudo racist” who used racism to maintain division in society and for commercial advantage which was defamatory. Because of this, the slander action was actionable without proof of special damage. The judge held Panday “intended” and “authorized” the republication of his words “throughout the length and breadth of Trinidad and Tobago and abroad,” and was, therefore, liable for damages caused by the republication in four newspapers and a television broadcast by Trinidad and Tobago Television.302

Further, late in the trial, Panday’s counsel raised the defense of qualified privilege, saying that the prime minister had made the speech in response to Gordon’s attack on the government’s proposal on reforming media law, “Toward a Free and Responsible

Media.” Both the paper, published in early 1997, and the United National Congress

300 Id. at ¶ 4.

301 TT $6 is worth approximately U.S. $1.

302 Panday, supra at ¶ 5. Gordon and two witnesses gave evidence, but Panday did not take the stand. Id.

547

(U.N.C.) government led by Panday, had been criticized by Gordon on May 7, 1997, approximately 23 days before Panday’s speech.303

Jamadar said that the defense of qualified privilege had not been specifically pleaded, but also rejected it on its merits. The judge said that Panday’s speech went beyond what was required to refute Gordon’s criticism and was motivated by malice. It was clear on the evidence, the judge said, that Panday did not believe that Gordon was

“pseudo racist” as he had charged.304

The majority in the Court of Appeal upheld the High Court’s decision but reduced damages to TT$300,000 (approximately U.S. $50,000).305 Section 4(e) of the Trinidadian

Constitution, which specifically protects freedom of political speech, provides:

It is hereby recognized and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, color, religion or sex, the following fundamental human rights and freedoms, namely—

(e) the right to join political parties and to express political views;306

However, in upholding the lower court’s decision on liability, the majority in the

Court of Appeal refused to allow Panday to rely on this constitutional defense premised on the right to express political opinion. The Court said the right to express political views was not an absolute right.307

303 Id. at ¶ 6.

304 Id.

305 Id. at ¶ 3. Justices Roger Hamel-Smith and Margot Warner held the majority position. Chief Justice Satnarine Sharma wanted to allow the appeal and dismiss the action.

306 TRIN. & TOBAGO CONST. § 4(e).

307 Id. at ¶ 7. Chief Justice Sharma disagreed, stating that the words were not defamatory, that the ordinary reader would not believe Gordon was “pseudo racist” and that the words would not, at any rate, lower him in the opinion of right-thinking Trinidadians.

548

Panday appealed to the Privy Council on three grounds. He said:

• no action could be brought in respect of the words complained of because of the right to express political opinion under section 4(e) of the Constitution; • the words were not defamatory; and • the words were not spoken of Gordon in relation to his profession.308

The Privy Council held there was no substance in grounds (2) and (3) of the appeal.

Lord Donald Nicholls of Birkenhead, speaking on behalf of the Court, accepted the positions of the High Court and the majority decisions in the Court of Appeal on the question of fact of whether the words would “tend to lower Mr. Gordon in the estimation of right-thinking members of society.”309 The Privy Council Board also agreed with the trial judge’s interpretation of the statement as inferring that Gordon had misused racism for improper motives.310

The Privy Council then turned to the constitutional appeal. In addition to the right to freedom of speech guaranteed in the Trinidadian Constitution, Nicholls noted there was a right to express political opinion.311 Nicholls noted that the law of defamation was intended to balance freedom of speech and the right to reputation. Thus, the common law imposed strict liability for defamatory statements made without justification. Defenses

308 Id. at para. 9.

309 Id. at para.10. Although Justice Margot Warner acknowledged that there was a tendency to exaggerate in Trinidad and Tobago, she said the attack on Gordon “went far beyond that which is acceptable in any contemporary society.” Justice Roger Hamel-Smith said a racist would “in the eyes of the public be condemned for his practice of racism.” The Privy Council Board noted that the concurrent opinions of all the Court of Appeal justices was that the words would tend to lower Gordon in the estimation of right-thinking Trinidadians. Lord Nicholls said that

How words of this character would be understood, and what effect such words would have on those who heard them, are matters on which local courts are far better placed than their Lordships [in the Privy Council to decide]. Id.

310 Id. at ¶ 11.

311 Id. at ¶ 12.

549 were also available in the case of honest comment, as opposed to statements of fact on matters of public interest;312 or where there was a public interest in the recipient receiving the information from a particular source, in which case qualified or absolute privilege defenses would avail.313

However, Nicholls noted, that there was an “increasing awareness” of the fact that the strict principles used in most libel cases were not satisfactory in the case of political speech and matters of public interest since the common law position on libel could have a

“chilling effect” on speech.314 However, there was also an “awareness” by the courts,

Nicholls said, that applying qualified privilege to all cases involving public figures was not a good policy in light of the “immense and lasting damage” sometimes caused by defamatory statements published to the world at large.315 Thus, in trying to balance the competing interests, the courts required that, to qualify for privilege, the writer should exercise a degree of care in addition to acting honestly.316 This objective requirement to exercise care and act honestly was elastic and would be determined based on all the circumstances of the case including “the importance of the subject matter of the

312 Id. at ¶ 12. The defense was available even where the statement was made with intent to injure. See Cheng v. Tse Wai Chun, [2000] 3 H.K.L.R.D. 418. See also Branson v. Bower, [2002] Q.B. 737, statements made in an attempt to damage political opponents.

313 Panday v. Gordon, supra at ¶ 12. But the maker of the statement should have a positive belief in its truth, and the defense would not be available where he acted for an “improper purpose.” See Horrocks v. Lowe, [1975] AC 135, 150.

314 Panday v. Gordon, supra at ¶ 13.

315 Id.

316 Id. at 14.

550 statement, the gravity of the allegation, and the context in which it is made,” Nicholls said.317

Nicholls noted that the Trinidadian Constitution was supreme and laws that were

inconsistent with it would be void.318 He noted that the provision in the Trinidad

Constitution for an absolute and unqualified right to political discussion was unique and should be interpreted more widely than if the freedom was subsumed under section 4(i) that protected freedom of speech.319

The question for the Court of Appeal was, then, whether Panday’s speech fell within the definition of political speech that would be protected under section 4(e).320 The

Privy Council held it was not political speech.321 The Privy Council Board noted that, in

drafting section 4(e), the drafters of the Trinidadian Constitution had attached “special

importance” to political speech.322 However, despite the obvious importance attached to

317 Id. The requirement to look at all the circumstances of the case, Nicholls said, went beyond the traditional malice standard determined in Horrocks v. Lowe, [1975] A.C. 135, where the court focused on the state of mind of the writer. The judge examined the position in Australia where the High Court (the highest Australian court) required the maker of the statement to have “reasonable grounds for believing the defamatory imputation was true” (see Lange v. Australian Broadcasting Corporation, (1997) 189 C.L.R. 520, 574) and The United Kingdom’s House of Lords decision that the public should be “entitled to know” the information, based on the standard of a reasonable journalist (Reynolds v. Times Newspapers Ltd., [2001] 2 A.C. 127, 197, 202]. He also noted that the Supreme Court of Canada had held that where it was shown that the recklessness went beyond state of mind to include irresponsibility by an objective assessment by the court, privilege would not be available (see Botiuk v. Toronto Free Press Publications, [1995] 3 S.C.R. 3, at ¶ 98 and 103). See also Lange v. Atkinson, [2000] 3 N.Z.L.R. 385, where, while the New Zealand Court of Appeal rejected the specific requirement of “reasonableness,” as required in Australia, it required a finding that the defendant had taken “reasonable care.” Id.

318 Panday v. Gordon, supra at ¶ 16.

319 Id. at ¶ 17.

320 Id.

321 Id. at ¶ 18.

322 Id. at ¶ 19. He noted that although, unlike the other Caribbean constitutions, the Trinidadian Constitution was based on the Canadian Bill of Rights, the Canadian Bill of Rights did not contain a clause similar to section 4(e). In fact, the section was added to the draft of the Trinidad Constitution at a late stage in the process at the independence conference held in London in May and June of 1962. Id.

551 political speech by the drafters of the Constitution, there was no indication that the right to political speech was without bounds and could be “misused, and debased, by permitting a politician’s reputation to be destroyed at will,” Nicholls said.323 He cautioned against circumstances that would allow grave factual allegations known to be false to be made without punishment, denying the politician the means of redress and to establish the truth.324 He said that the right to freedom of expression and the right to respect for private lives which were both constitutionally protected would sometimes collide with each other.325

Further, the argument that the constitutional protection given to political speech as trumping the pre-existing common-law defamation action was also wrong, Nicholls said.

This was so because the section providing for freedom of political speech also indicated that the rights protected under the bill of rights had “existed” in Trinidad and should continue, presumed the constitutional rights were consistent with existing rights— including the right to reputation.326 It also was precluded since section 6 specifically prevented the rights provided in section 4, including freedom of political speech, from invalidating existing laws.327

Nicholls found that Panday’s attorney’s arguments that Panday was entitled to the qualified privilege defense in the absence of proof of malice (or lack of good faith) to be

323 Id.

324 Id. at ¶ 21. Nicholls noted that the fact that section 4 simply listed the rights protected under the Constitution without elaboration indicated that the intention of the drafters was for the courts to define the boundaries. Id. at ¶ 22.

325 Id. at ¶ 22.

326 Id. at ¶ 23.

327 Id. See Matthew v. State of Trinidad & Tobago, [2005] 1 A.C. 433.

552 flawed since it precluded the application of the standard of “responsible” journalism applied in the Reynolds case.328 Thus, since the constitutional protection for political speech did not specifically provide that the only limitation on the right to express political views was “honesty” or good faith, the court could not be constrained by the position that the only limitation on freedom of speech was malice or the lack of good faith.329

However, Nicholls said, even if the requirement to exercise the right with good faith was the standard to be applied, Panday’s own attorney had conceded that, on the evidence,

Panday could not have “honestly or reasonably believed that Mr. Gordon was a pseudo-racist.”330 The Privy Council, thus, held that Panday had acted without an honest belief in the truth of the statement and was liable.331

The Privy Council Board also dismissed Panday’s appeal on the amount of damages. Panday’s attorneys had argued that there had been no allegation of bribery or corruption and no evidence of psychiatric injury or pecuniary loss on Gordon’s part. He continued to be a successful businessman respected in the media throughout the

Caribbean.332 The Privy Council Board noted that Trinidadian judges were better able to determine the appropriate amount to be awarded.

In the past, damages in libel cases in the Caribbean had been low. However, Justice

Roger Hamel-Smith had said in his majority decision in the Trinidadian Court of Appeal in Panday that times had changed and the press was no longer exhibiting the restraint

328 Panday v. Gordon, supra at ¶ 24–25.

329 Id. at ¶.25.

330 Id. at ¶ 26.

331 Id. at ¶.27.

332 Id. at ¶ 28.

553 appropriate to responsible journalism.333 The Board saw no indication that the Court of

Appeal had, in reducing the damages, misdirected itself. Justice Hamel Smith had noted that Gordon’s feelings had been injured by the libel, but the Court of Appeal had taken into account the fact that Gordon’s reputation had been cushioned by “the outpouring of support he received from the media” in Trinidad and overseas.334 Thus, the Court of

Appeal found the reduction of the award from the Supreme Court award of $600,000 to

$300,000 was appropriate since Gordon’s reputation had already, in part, been vindicated. The Privy Council Board upheld this decision.335

6.7 Conclusion

The Caribbean appeal courts in the pre-1998 cases had decided that in determining whether words are libelous, the words should be construed in their “natural meaning.”336

The test of whether a statement was libelous was not what the writer intended to convey, but what the “reasonable reader” would have understood from the article.337

The courts have also held that privilege, justification and fair comment on a matter of public interest are all defenses in libel cases.338 However, in order to be successful in a

333 Id. at para.29. See Frank Solomon v. Trinidad Publishing Co. Ltd., (unreported Civ. App. 125 of 1987 in the Court of Appeal of Trinidad and Tobago), where the Appeal Court decided to raise the bar in the level of damages awarded in a libel action in Trinidad and Tobago.

334 Panday v. Gordon, supra at ¶ 30.

335 Id.

336 Maxwell v. Forde, supra.

337 Chokolingo, supra. See also Smith v. Adams, supra.

338 Soltysik, supra.

554 defense of fair comment, the words had to be stated as an opinion rather than as a factual statement,339 and had to be based on true facts.340

To rely on the defense of privilege, the defendant in a libel case has to show that the person to whom the statement was made or published had a “legitimate interest” or a right to receive the communication.341 However, privilege would be defeated where there is a finding of express malice, which did not require spite or ill-will, but a finding that the defendant had acted for improper motives which the Court would find where the defendant did not believe the statement to be true or was indifferent as to whether it was true or not.342 This test is comparative with the New York Times actual malice that applies to all public officials and public persons in the United States. What differentiates the two tests is the point in time when the determination of express or actual malice comes into play. In the case of the Caribbean the protection arises in the cases where there was a

“legitimate interest” in the receiver getting the information, including the case of reports by public officials and speech of public officials—thus the privilege attaches to the category of speech or the occasion on which it was made. In the case of the United States the constitutional privilege attaches to the conduct of public officials and figures generally.

Although honest belief is a defense in a libel action, the belief has to be based on

“reasonable grounds.”343 A reporter, acting without malice, can publish an accurate

339 Bernard, supra.

340 Soltysik, supra. See also Smith v. Adams, supra.

341 Nicholas v. Kertist, supra.

342 Id.

343 Jagan v. Burnham, supra.

555 account of what he heard, where he had a duty to publish, even where he did not believe the accusation was true.344 Thus, where a statement was made in the public interest and is not actuated by malice, it will be protected by privilege.345 Caribbean courts have also held that there is no duty to publish a report about allegations still under investigation.346

Caribbean courts have also held that, although there is no legal obligation for the defendant to apologize in a libel action, in assessing damages the fact that the defendant has apologized should be taken into account as a mitigating factor.347 However, the courts have held the determination of whether an apology is adequate is for the jury and not the judge.348

In assessing the amount of damages to be awarded, Caribbean courts are required to take into account awards made in other Caribbean cases.349 The Court of Appeal will only review a lower court’s award of damages where it is satisfied the award is wrong and would lead to injustice.350

The principles are taken largely from the decisions in the British court and the jurisprudence has changed since the 1998 decision in Reynolds. Thus, the two twenty-first century Privy Council decisions both focused on the need for a newspaper to

344 Caven v. Munroe, supra.

345 Smart v. Gleaner, supra.

346 McDonald Farms, supra.

347 Husbands, supra. See also Gairy v. Bullen, supra.

348 Wellesley, supra.

349 Odlum v. Compton, supra. See also Gleaner v. Small, supra.

350 Husbands, supra.

556 act responsibly in reporting on matters in the public sphere.351 Thus, the Privy Council has held that newspapers should adhere to a “responsible journalism” standard determined in Reynolds. The Privy Council agreed that damage awards should be heightened in the face of a lack of restraint on the part of the media and a tendency not to adhere to standards of “responsible journalism.”352

351 Bonnick v. Morris, supra. and Panday v. Gordon, supra.

352 Panday, supra at ¶ 29.

CHAPTER 7 ABRAHAMS V. THE GLEANER CO.

7.1 Introduction

On July 14, 2003, Jamaica’s highest appeal court, the Judicial Committee of the

Privy Council, upheld a lower court’s decision to award J$35 million (approximately

US$500,000) in damages to Eric Anthony Abrahams, a former Minister of Tourism in

Jamaica.1 The Privy Council found libelous articles published in the Gleaner, Jamaica’s oldest newspaper, accusing Abrahams of taking kickbacks in return for granting lucrative advertising and public relations contracts to U.S.-based businesses, a criminal offense.

The libel dispute, which began in 1987 when the article was first published, took more than 15 years to make its way up to the highest court of appeal.

Interestingly, the decision has now been placed before the Inter-American Court of

Human Rights to review the size of the award and determine whether it is consistent with the American Convention on Human Rights’ freedom of expression guarantee. This chapter traces the movement of the Abrahams case through the Jamaican courts and the factors that determined the award. The chapter is divided into six sections.

Section 7.2 focuses on the background to the Abrahams case along with the chronology of events leading to the action being brought. Section 7.3 traces the history of the Abrahams case in the lower courts to the initial jury award exceeding J$80 million.

Section 7.4 focuses on the decision of the Jamaican Court of Appeal to reduce the

1 The Gleaner Co. & Dudley Stokes v. Eric Anthony Abrahams, Privy Council Appeal No. 6 of 2001.

557 558

Supreme Court’s J$80-million (approximately US$500,000) award while upholding its decision. It will focus on the Court’s discussion of principles in applying the defense of privilege in libel cases and section 7.5 delineates the Privy Council’s holding and its reasons for upholding the award figure. In section 7.6 the paper examines the subsequent appeal by then Gleaner editor Dudley Stokes to the Inter-American Court of Human

Rights. In section 7.7 the paper will be concluded.

7.2 The Background to the Abrahams Case

Plaintiff

In Abrahams v. Gleaner,2 where the plaintiff won an unusually high award of J.$35 million, the plaintiff was Eric Anthony Abrahams, the son of a well respected Jamaican family. Abrahams was educated at two of Jamaica’s best high schools and a graduate of the University of the West Indies. 3 He later attended Oxford University as a Rhodes

Scholar, but was expelled for planning a demonstration against the South African

Ambassador to the university during the apartheid regime.4 Abrahams became a television reporter for the British Broadcasting Corporation (B.B.C.) in the United

Kingdom, moving up in the system from production assistant to director and television reporter.5

In 1965 Abrahams returned to Jamaica where he was appointed assistant to the director of tourism and served in this position between 1965 and 1966. In 1968, when he was 28 years old, he was appointed chairman and director of tourism. He learned about

2 Privy Council Appeal No. 86 of 2001.

3 The Gleaner Co. Ltd. & Stokes v. Abrahams, (unreported) Supreme Court Civil Appeal No: 70/96 at p. 1.

4 Id. at p. 2. The demonstration coincided with Nelson Mandela’s arrest. Id.

5 Id. at p. 2.

559 the tourism business on the job and made several contacts in the industry before 1974 when he resigned and became a private tourism consultant. His clients included the

Organization of American States (O.A.S.), the El Salvadoran government and Eastern

Airlines. Abrahams ran for political office in the 1976 general election in Jamaica but was unsuccessful. After this, Abrahams was appointed to the Jamaican Senate,6 where he remained until he went to Barbados to head the Organization of American States’ regional office. In his role at the O.A.S. regional office, Abrahams consulted with the governments of Barbados, Grenada, St. Lucia, Haiti and Bolivia.7

Abrahams won a seat as a member of parliament in the 1980 Jamaican General

Elections, and was appointed minister of tourism. Abrahams continued as minister until

1984, when he resigned8 to return to his consulting work.9

Defendant

The Gleaner Co. is the proprietor, printer and publisher of the Daily Gleaner,

Jamaica’s oldest newspaper. The Gleaner Co. also was the publisher of the Star, a tabloid published on weekdays. Both newspapers are circulated in the Caribbean, North America and the United Kingdom.10 The Gleaner was first published in 1834. In 1987, when the libel occurred, the Gleaner and its publications were the only newspapers distributed across the island.11

6 Id. at 2.

7 Id. at 3.

8 Id. Abrahams continued to hold his parliamentary position after his resignation as minister. Id.

9 Id.

10 Id. at 65.

11 Id. at 64.

560

Facts of the Abrahams Case

On September 17, 1987, the Star carried an article titled, “Author says his diary sparked kick backs investigation.”12 It was based on comments made by Robin Moore, author of The French Connection, which was a novel on drug smuggling. Moore, who was awaiting sentencing for his conviction in 1986 of evading taxes, had said his diary— seized in the investigation—formed the basis for an investigation of American executives suspected of paying kickbacks to Jamaican officials for tourism promotion contracts being conducted by U.S. federal authorities in the United States.13

The story was a partial re-publication of an article originally prepared for publication in a Connecticut newspaper called The Stamford Advocate. The Gleaner got the story from an Associated Press newswire. The Associated Press had received the original version of the news story written by The Stamford Advocate and sent it out through its wire service on September 16. One half hour later, however, on being contacted by the Advocate and told that the story was incomplete, the AP withdrew the story. According to the evidence in the trial court the Gleaner publications did not receive the correction.14 The article published in the Star read in part:

All I can say is I suspected the Minister of Tourism was exacting a toll,” the writer, Robin Moore of Westport, told the Advocate of Stamford in a copyright story published Tuesday.

“Call it a bribe, call it anything you want,” said Moore, the author of The French Connection, a novel on drug smuggling.

The Advocate reported Sunday that federal authorities in Connecticut are investigating public relations and advertising executives suspected of paying

12 Abrahams v. The Gleaner Co. Ltd. & Stokes, (unreported) Suit No. C.L. A196/1987 at p. 1.

13 Id. at 2.

14 Id. at 4.

561

Jamaican officials one million dollars for contracts worth $40 million from 1981to 1985.

The Advocate, quoting anonymous sources close to the probe has said five or six executives of the public relations firm Ruder, Finn and Rotman and the advertising firm Young and Rubicam are the focus of the investigation. Officials of both firms have denied any wrong doing and said they are co-operating with investigators.

KEY FIGURE

Moore said that his files helped lead federal agents to suspect that Anthony Abrahams, Jamaica’s former Tourism Minister, was being paid by American businesses for the multi-million dollar tourism contracts.

Sources close to a federal grand jury have said Abrahams is a key figure in the investigation, the newspaper said. Abrahams, however, has not testified before the grand jury empanelled in New Haven, the Advocate reported.

The newspaper said efforts to reach Abrahams and his successor, Hugh Hart, during the past two weeks were unsuccessful, and Hart did not return telephone calls to his office on Monday.

Moore, 61, said the notes in his diary are impressions of what was going on between Abrahams and the United States companies. The subjects also appeared in letters between him and a friend in Jamaica.

“I have no definite proof that this ever happened—it was just a suspicion of mine,” Moore said.

“People were talking. There were certain things everybody knew there was no secret about the situation with the (former) Minister of Tourism [sic].”

The articles went on to state that Moore had lived in Jamaica periodically for the past 27 years and that in 1981 he volunteered his services to the Jamaica Government to find advertising and public relations companies that could help the country’s tourist trade

“. . . I did indeed help introduce the advertising agent of Young and Rubicam to Jamaica, but I certainly had nothing to do with any kickbacks, if indeed they did happen.15

15 Abrahams v.Gleaner Co. & Stokes, (unreported) C.L. A196/1987 at p. 2.

562

The article closed by stating that “U.S. Attorney Stanley Twardy Jr. had refused to confirm or deny the existence of the kickbacks investigation.”16 Twardy, a U.S. Attorney for Connecticut between 1985 and 1991, was a prosecutor involved in the investigation of

Young & Rubicam for the alleged kickback scam in the 1980s.17

Background to the News Story

The report published in the Gleaner was the first draft of an article written by reporter

Lisa Marie Petersen of the Stamford Advocate. On Wednesday September 16, 1987, prior to publication of the article in the Advocate, Petersen had contacted Abrahams.18 In addition to the information in the first draft, the article that ran in the Advocate contained the following paragraphs not included in the Star’s story:

But Moore said in an interview with the Advocate that the information gleaned from the papers—seized during an unrelated federal tax evasion probe in 1983— offered no proof of corruption in the Jamaica Government or of pay-offs by U.S. businessmen.

“I have no definite proof that this ever happened,” Moore said, “It was just a suspicion of mine.”19

The article also stated:

Anthony Abrahams, Jamaica’s Minister of Tourism from 1981 to 1984, the period under investigation by U.S. authorities, said in a telephone interview from Kingston, Jamaica, yesterday that he was not aware of any kickbacks nor had he been involved.

16 Id. at 3.

17 See Day Berry & Howard, LLP, attorneys, http://www.dbh.com/attorney.asp?key=1198 (last visited April 14, 2006). Ultimately Twardy was successful in gaining a conviction against Young & Rubicam for violating the United States’ Foreign Corrupt Practices Act in connection with the "Come Back to Jamaica" advertising campaign. Id.

18 Gleaner & Stokes v. Abrahams, [2003] U.K.P.C. 55 (14 July 2003) or Privy Council Appeal No. 86 of 2001 at p. 3.

19 Abrahams v.Gleaner & Stokes, C.L. A196/1987 at p. 9.

563

“I have never, ever accepted any kickbacks and I defy anybody to make that accusation,” Abrahams said. “I was Minister of Tourism. I was not on any tourist board and I had nothing to do with spending money. I didn’t award contracts and any suggestion that I have anything to do with any kickbacks is highly preposterous.”20

The report published in the Stamford Advocate included the fact that John Gentles, former director of tourism in Jamaica, had given evidence in the New Haven investigation and denied any personal involvement in kickback schemes. The article, also noted that Gentles had not mentioned a federal investigation:

Abrahams, who was Gentles’ supervisor, said he was aware of an investigation being conducted in Connecticut, but said he had not been contacted by investigators from the United States or his Government.

“I heard there was one but I thought it was over,” Abrahams said.

The article in the Advocate also made it clear that Abrahams was not being investigated:

The kickbacks are suspected of having been paid during Abrahams’ term in office,” a source close to the investigation said, “but Abrahams is not the subject of the investigation.

The article later stated:

Moore said the notes in his diary are impressions of what was going on between (a certain Jamaican official) and the U.S. companies. The subject also appeared in letters between him and friends in Jamaica [sic].21

Even later, the article stated:

Sources have said Moore is believed to have opened his home in Westport and his apartment in New York City for parties and meetings between officials of the Jamaican Government and United States advertising and public relations companies.

But Moore said he had only one large-scale party at his Westport home in 1981, when Abrahams became Tourism Minister. He also let an occasional Jamaican friend stay at his New York apartment.,

20 Id. at 10.

21 Id.

564

“I doubt very much there was ever a meeting at my house in Westport” Moore said. “I am not saying it didn’t happen, but I certainly didn’t know about it.”22

However, the Gleaner’s evidence at trial was that it did not get the A.P. correction and the newspaper did not run the story as it appeared in the Stamford Advocate, but ran the original story that implied that Abrahams had been involved in kickbacks.

On September 17, after the article was published in the Star, Abrahams went to see

Dr. Dudley Stokes, the then editor of the Gleaner, and informed him that the story published in the Star, the Gleaner publication, was incorrect. Abrahams also told Stokes that Marie Petersen, the Stamford Advocate reporter who wrote the original story, had corrected it, removing the sections that implied that Abrahams had accepted kickbacks.

On Stokes’ suggestion Abrahams wrote a rebuttal for publication in the Star on the following day.23

However, on the following day not only did the Star not print the rebuttal, but the

Daily Gleaner, another Gleaner publication, published the same story with the exception of a few paragraphs24 under the title, “Robin Moore: I suspected the Jamaican Tourism

Minister.”

As if to underscore the allegations made in the Gleaner publications between

September 17 and 18, on September 19, another article published in the Gleaner25 titled,

“Clarification” read simply:

22 Id.

23 Id. at 6.

24 Id. The story did not include the statement, “People were talking. There were certain things everybody knew there was no secret about the situation with the (former) Minister of Tourism.” These two sentences were omitted on the advice of Donna Smith, legal counsel for the Gleaner, who said the words might be libelous. Id.

25 Id. at 4.

565

Absolutely no reference was made or intended to be made to the current Minister of Tourism in the headline: “Robin Moore: I suspected Jamaican Tourism Minister” in the second paragraph of the Associated Press (A.P.) story, “All I can say is I suspected the Minister of Tourism was exacting a toll,” the writer Robin Moore of Westport told the advocate of Stamford . . . which [A.P. story] was published on page 2 of yesterday’s Gleaner September 18, 1987 [sic].26

Since the article only referred to two tourism ministers: Hugh Hart, the minister of tourism in 1987 when the articles were published, and Abrahams, the inference was that

Abrahams was the subject of the defamatory article.27

Finally on Sunday, September 20, Abrahams’ response was published in the

Gleaner in an article titled, “Abrahams: Has never accepted ‘kickback.’”28 The article read:

MR ANTHONY ABRAHAMS, M.P. and former J.L.P. Minister of Tourism (1981–84) has issued a statement in response to an Associated Press (A.P.) story appearing in the Star last Thursday (17.9.87) and the Daily Gleaner last Friday (18.9.87) refuting the inferences made in the article. Mr. Abrahams stated that—at no time in his entire career, including the period 1981 to 1984 when he was Minister of Tourism, has he ever accepted any ‘kickback,’ ‘toll’ or bribe to award or influence the award of any contract.

That I need at all to make such a statement for the first time after 20 years in public life is due to reports in your paper over the past months about an officially unconfirmed U.S. inquiry into alleged ‘kickbacks’ to Government officials in Jamaica and culminating in a statement in your paper attributed to Mr. Robin Moore.

“Moore’s statement,” Abrahams said, “was damaging in the extreme to my reputation in Jamaica and internationally and, though couched as a ‘suspicion’ about which he had no ‘evidence,’ is tantamount to a blatant lie.

“Accordingly, I have instructed attorneys in Jamaica and overseas to take legal action against Moore’s libel. I also take the opportunity of, for the record, stating that I have not been approached by any agent or servant of the United

26 Id. at 6.

27 Id. at 4.

28 Gleaner Co. & Dudley Stokes v. Abrahams, Supreme Court Civil Appeal No: 70/96, supra at 6.

566

States Government and asked any question, or invited to give evidence before any Grand Jury Inquiry by that Government.” [sic]

“I state further that at no time have I received any payment from any executive of Ruder Finn and Rotman, Young and Rubicam or any agent of theirs to at anytime do, or commit, any improper act of wrongdoing.”

“I also wish to state that neither I, nor any company owned by me, has, or ever has had any bank account in the Cayman Islands and that, in fact, anyone knowing of any account of any bank in Cayman under suspicion and alleged to be mine can rely on any co-operation that I could provide for any investigation in such account. I must repeat that I have no bank account in Cayman. . . .”

On September 24, 1987, Abrahams brought an action against the Gleaner and Dr.

Dudley Stokes, then editor of the Gleaner, for libel.29Abrahams set out the chronology of events and claimed that the words in “their natural and ordinary meaning” alleged that he had committed criminal offenses under the Jamaican Corruption Prevention Act and at common law. Abrahams’ attorneys asked the Supreme Court, the trial court, to find the defamatory articles published in the Gleaner were published with knowledge that they

“were libelous and/or reckless disregard as to whether or not they were libelous.”30

In Caribbean civil law, after an action is filed but before the case is brought before the court, there is a process where written statements are filed into the court and served between the parties referred to as pleadings.31 In civil procedure in Jamaica, in the process of pleadings, at the same time the plaintiff files an action, he is required to file a

“Statement of Claim,” indicating the circumstances of the case and the relief that he is

29 Id. at 1.

30 Abrahams, supra at 4.

31 GILBERT KODILYNE, & VANESSA KODILYNE, COMMONWEALTH CARIBBEAN CIVIL PROCEDURE 61 (1999). “Pleadings are formal documents which constitute court records and which define the facts and issues of a case. Their purpose includes (1) informing an opponent of the nature of the case, (2) providing the court with particulars of the relief or remedy sought, and (3) limiting the scope of discovery.” Id.

567 seeking.32 The defendant is required, if he wishes to respond to the action, to file a written document referred to as an “Appearance” within 14 days of receiving the

Statement of Claim.33 The appearance effectively gives notice of the defendant’s intention to contest some or all of the allegations made in the Statement of Claim.34 In

Jamaican Civil procedure, a defendant is required to enter a “Defense” refuting the facts laid out in the Statement of Claim within 14 days after filing his “Appearance,” if he intends to defend the case.35 If the defendant fails to file either an appearance36 or a defense37 within the time period required by law, the plaintiff may apply for and be granted judgment in default of appearance or defense.38 Judgment in Default of Defense or Appearance means that, because the defendant did not file a defense or an appearance, the plaintiff is granted judgment in his favor and in the terms in which he pleaded.39

The Gleaner, in the Abrahams case, though entering an appearance in the case on

October 2, 1987, did not file a defense, and on October 22, 1987, the court granted

Abrahams a judgment in default of the defense.40

32 Id. at 65.

33 Id. at 28. Jamaican Civil Procedure Code, Ord. 19.

34 KODILYNE, COMMONWEALTH CARIBBEAN CIVIL PROCEDURE, supra at 28.

35 Id. at 70.

36 Id. at 123.

37 Id. at 128.

38 Id.

39 Id.

40 Abrahams, supra at 4.

568

Default Hearing

Because a judgment in default is made without an investigation into the merits of the case, the court can set it aside.41 In January of 1988, The Gleaner applied to the court to set aside the default judgment granted to Abrahams and leave to file a defense out of time.42 The Supreme Court rejected the application.

By the time the Gleaner applied to set aside the judgment, it knew that the original

A.P. story had been withdrawn, but intended to rely on the evidence of John Gentles, a former director of tourism and chairman of the Tourist Board, who signed an affidavit swearing to the veracity of the facts printed in the Gleaner. Gentles had held these government posts at the time of the alleged kickbacks to Young & Rubicam. He had been dismissed by Abrahams for a conflict of interest having his wife’s company supply goods to the Tourist Board. Subsequently Gentles was hired by Oliver Clarke, the chairman of the Gleaner Co.43 Gentles told the Gleaner that he could testify that Abrahams had signed contracts and checks in the course of corrupt dealings and he was giving evidence to this effect to the grand jury investigating the kickbacks.44

The Gleaner also relied on an affidavit45 from its counsel, Donna Smith, who stated that the information published in the Gleaner and Star was republished from a wire supplied by the U.S. wire service, Associated Press, which had always been a reliable

41 KODILYNE, supra at 130.

42 Abrahams, supra at 4. The default hearing is an interlocutory matter, meaning it is not a final decision on the matters at issue in the case and, as such, in Jamaica, in practice as observed by the researcher these matters are heard by one puisne judge sitting alone in his chamber.

43 Id. at 7.

44 Abrahams v. Gleaner & Stokes, (unreported) C.L. A196/1987 at 8.

45 KODILYNE, supra at.85. “An affidavit is a sworn (written or printed) statement” by a person giving evidence in a trial. An affidavit is admissible as evidence in court, unlike pleadings. Id.

569 source of information. The affidavit also stated that it was true that U.S. federal authorities in Connecticut were investigating public relations and advertising executives for making payments to the Jamaican government in return for lucrative contracts and that Abrahams was a key figure in the investigation. Smith stated in her affidavit that the

Jamaican government and citizens had an interest in knowing about the investigation.46

Essentially, the Gleaner was claiming the defenses of justification (or truth)47 and qualified privilege.48

Abrahams, in his pleadings, denied awarding any contracts in return for kickbacks and, in fact, stated that while he was tourism minister, tourism advertising and promotional contracts were awarded by the Jamaica Tourist Board, headed by Gentles.49

He attached to his affidavit a copy of the article printed in the Stamford Advocate on

Wednesday, September 16, 1987, highlighting the difference between the published version in the Connecticut newspaper and that published by the Daily Gleaner.

When the parties to the case appeared before Supreme Court Justice Alvin Edwards in his chambers, Edwards denied the Gleaner’s application to set aside the Default

Judgment against it and the other defendants. Edwards’ grounds for denying the application was that the evidence provided was not enough for him to make a finding of

46 Abrahams v. Gleaner & Stokes, (unreported) C.L. A196/1987 at 8.

47 See GATLEY, supra at 233 ¶ 11.1. A plea of justification is a defense where the defendant establishes that “the imputation in respect of which he is sued is substantially true.” Id.

48 Abrahams v. Gleaner & Stokes, (unreported) C.L. A196/1987 at 8. See GATLEY, supra at 325 ¶ 14.1. Qualified privilege applies where “on grounds of public policy and convenience, less compelling than those which gave rise to absolute privilege, a person may . . . without incurring liability for defamation make statements about another which are defamatory and in fact untrue. On such occasions of privilege a person is protected if the statement was fairly warranted by the occasion (. . . was reasonably necessary to achieve the purpose for which the law grants the privilege) and so long as it is not shown that he made the statement with malice. i.e. knowing it to be untrue or with some indirect or improper motive).” Id.

49 Abrahams v. Gleaner & Stokes, (unreported) C.L. A196/1987 at 8.

570 qualified privilege since it did not include information about the investigation, when it began and if it ended and its outcome.50 Because Robin Moore himself had admitted in interviews that these allegations were mere suspicions, the Gleaner had a responsibility to make further inquiries before publishing, Edwards said.51

The Gleaner sought to rely on the fact that it had republished an article that it had received from the Associated Press “with whom [the Gleaner] had a history of reliable dealings.” The newspaper was attempting to rely on the wire service defense. The wire service defense in the United States law provides a defense where a newspaper relies on a report from a reputable news agency.52 However, there is no provision in Jamaican or

English law for such a defense. In Abrahams, Edwards held that reliance on a reputable publication afforded the Gleaner “no grounds for relief in law” for printing a defamatory statement.53 Edwards refused the Gleaner’s application to set aside the default judgment and file a defense.54

Leave to File Defense Granted

On October 6, 1989, the grand jury in Connecticut indicted Abrahams, along with

Young and Rubicam and another Jamaican, Arnold Foote, for corruption in various forms.55 Immediately after his indictment, Abrahams’ American attorney contacted the

50 Id. at 16.

51 Id. at 17.

52 Appleby v. Daily Hampshire Gazette, 478 N.E. 2d 721 (1985), holding that where a newspaper relied on a stories obtained from a reputable wire service in publishing incorrect information about a man murdering homosexual men and his interest in the Nazi party it was not liable for libel.

53 Id. at 18.

54 Id.

55 Id.

571 prosecutors and arranged for Abrahams to be interviewed by them in Canada.56

Abrahams fully disclosed his bank accounts. The prosecutors, after full investigation, could find no evidence, contracts or checks signed by Abrahams connecting him to kickbacks.57 They withdrew the indictment against Abrahams.58

In the Abrahams case the Gleaner had, in the meantime, appealed Justice Edwards’ decision to deny the application to set aside the default judgment. The Court of Appeal overturned the lower court’s decision in 1991.59 Speaking on behalf of the court, Justice

Henderson Downer noted that at a hearing to set aside a default judgment the onus rested with the Gleaner to show that there was an “arguable case” to be determined by trial.60

Nonetheless, the court held that, in the Supreme Court, Justice Alvin Edwards had erred in treating the application to set aside the default judgment as if it were a hearing on the substance of the case.61

While acknowledging that libel laws were intended to protect the good name of any servant of the state, Justice Downer said, the defense of qualified privilege rested on the premise that persons holding a high office had a higher standard of proof in libel cases.

“That privilege both by statute and at common law approves the publication, without

56 The Gleaner Co. Ltd. & Dudley Stokes v. Abrahams, Privy Council Appeal No. 86 of 2001. supra. at 9. A warrant had been issued for his arrest in the United States. Id.

57 Id. The prosecutors had visited Jamaica, obtained documents and interviewed people. Id.

58Id. at 10. Ultimately, Young and Rubicam pleaded guilty on February 9, 1990. Investigations had revealed no evidence that payments had been made to Abrahams, though Moore and Foote may have told Young and Rubicam that he needed to be paid to make them believe he was involved. Id.

59 The Gleaner Co. Ltd. & Dudley Stokes v. Anthony Abrahams, (unreported) C.A. No. 80/88 decided December 11, 1991.

60 Id.at 2. In his pleadings, Abrahams had not contended that there was a prolonged delay in filing the defense, but only that there was not an arguable case. Id.

61 Id. at 9.

572 malice of misconduct, on the part of those who hold high office,” Downer said. “Such publication is in the public interest as the public have a right to be informed. The law strikes a balance between the private right to a good reputation and the right of the public to be informed of misconduct in government,” Downer said.62

Justice Downer held that the decision of whether qualified privilege applied should be made in open court, after evidence was heard and legal principles were applied, and could not be determined by a judge in chambers on the basis that the Gleaner had “failed to comply with a procedural rule.”63 The Court of Appeal set aside the trial court judge,

Justice Edwards’ order and gave the Gleaner 14 days’ leave to file its defense.64

On December 24, 1991, the Gleaner published the court’s decision to allow it to file the defense under the subhead “True.” The article reiterated the Gleaner’s defense to the libel action of justification, or truth. This publication was made although the indictment against Abrahams had, by this time, been withdrawn.65

Dr. Donald Keith (D.K.) Duncan, a political opponent, colleague and friend of

Abrahams,66 would later give evidence at the trial that by the time he read the second article on December 24, he was sure that the Gleaner had convincing evidence of

62 Id.

63 Id. at 9.

64 Id. at 9. See also Stokes & Gleaner Co. vs. Abrahams (unreported) C.A. No. 80/88 decided March 26, 1992 where the Court of Appeal refused an application by Abrahams to appeal to the Privy Council. Id. at 11.

65 Stokes & Gleaner Co. vs. Abrahams, Privy Council Appeal No. 86 of 2001 at 10.

66 Duncan attended high school with Abrahams. Id.

573

Abrahams’ wrongdoing. Thus, the articles published in the Gleaner lowered Abrahams in

Duncan’s estimation.67

After the original article was published in 1987, Abrahams said that his relatively new tourism consultancy failed because he could get no clients. His only source of income was his salary as a member of Parliament.68 This was until 1992 when he got a position as a radio talk-show host, a job at which he was successful. In 1993, he was offered a job with Power 106, a radio station in which the Gleaner Co. had shares. He did not want to accept this position because of the company’s association with The Gleaner.

Abrahams would later testify at the trial that Oliver Clarke, chairman of the Gleaner, met him and told him that he should accept the contract. Clarke told him that if he accepted the contract, the Gleaner would issue an apology to him, but he should not expect damages and should realize if he did not accept the terms, the matter would probably not be resolved for another five years. Abrahams refused the offer.69

7.3 Procedural Decisions in the Court of Appeal and Supreme Court

In 1994 when the matter next came up before the Court of Appeal, to determine whether the Gleaner could rely on the defenses of qualified privilege and justification that it had pleaded, the court found for Abrahams and struck out both pleas.70 Justice

67 Stokes & Gleaner Co. vs. Abrahams, Privy Council Appeal No. 86 of 2001 at 10. The action before the Court of Appeal was brought by Abrahams who had sought further and better particulars on the issues of justification and qualified privilege. When his summons was dismissed by Justice D.O. Bingham on October 13, 1992, his attorneys appealed the decision. Id. at 10–11.

68 Id.

69 Id. at 11.

70 Stokes & Gleaner Co. vs. Abrahams, (1994) 34 J.L.R. 1 (decided January 24, 1994). Justice Henderson Downer was joined by justices Martin Luther Wright and Carl Patterson who each gave concurring opinions. Downer identified 2 legal principles in determining whether a defense would be allowed. First, he said, a defense had to reveal adequate information about the evidence which the defendant would rely on in arguing his case. Second, he also said that the defendant in any matter was required to make proper

574

Henderson Downer, in reviewing the facts of the case, noted that the charges made by

Moore and published in the Gleaner were so grave that, if Abrahams had not brought a libel action, then a commission of enquiry would have to be set up to determine whether criminal proceedings should be brought against Abrahams.71

Downer said that, before the defense of justification could be raised, counsel should have knowledge of the truth of the libel.72 In the Abrahams case, the court noted, the

Gleaner had relied on Gentle’s affidavit evidence that the allegations were true in

substance and fact.73 However, Downer noted, the Gleaner had an obligation to provide details of evidence it would rely on and to make it clear what its defense would be.74 In

Abrahams, the Gleaner’s defense was that John Gentles, former director of the Tourist

statements and disclosures to ensure that the plaintiff’s constitutional right to a fair hearing within a reasonable time was afforded him. Id. at 6.

71 Id. at 8.

72 Id. He relied on the English cases, Wooton v. Seiver, [1912] 3 K.B. 499, 506 and Associated Leisure Ltd. v. Associated Newspapers, [1970] 2 All E.R. 754, 757. In Associated Leisure, Lord Denning, Master of the Rolls, in the English Court of Appeal, interpreted the principle that, “A defendant should never place a plea of justification on the record unless he has clear and sufficient evidence of the truth of the imputation, the failure to establish this defense at the trial may properly be taken in aggravation of damages,” to mean that Counsel should not “. . . put a plea of justification on the record unless he has clear and sufficient evidence to support it.” Id.

73 Stokes & Gleaner Co. vs. Abrahams, (1994), supra at 8.

74 Id. at 9. The court relied on Lucas-Box v. News Group Newspapers Ltd., [1986] 1 All E.R. 177, 183, where the court said,

When setting up a plea of justification a defendant must plead his case with sufficient particulars to enable the plaintiff to know clearly what is the case, what is the possible defamatory meaning of the words complained of, which the defendant is seeking to justify. Id.

The Court also relied on Viscount DeL’Isle v. Times Newspapers Ltd., [1987] 3 All E.R. 499, 507 where the court interpreted the decision in Lucas-Box to mean that “the justification must be pleaded so as to inform the plaintiff and the court” the meaning that the defendant ascribed to the words. And in Prager v. Times Newspapers Ltd., [1988] 1 All E.R. at 310, where the court said, “[w]hatever may have been the practice to date, in the future a defendant who is relying on a plea of justification must make it clear to the plaintiff what is the case which he is setting up.” In this regard the Judge had said the pleadings could “make this clear, but if [the pleadings] are ambiguous then the situation must be made unequivocal.” Id.

575

Board when Abrahams had been Minister of Tourism, had provided an affidavit swearing that he had identified several documents and checks signed by or issued to Abrahams that implicated Abrahams in the Young & Rubicam scandal, when Gentles had given evidence at a federal grand jury hearing in the United States.75 The newspaper also claimed that federal authorities in Connecticut were investigating public relations and advertising executives suspected of paying kickbacks to the Jamaican government.

Finally, they claimed that the article published had been sent to them by the Associated

Press, a usually reliable source.76

The Court of Appeal held that the Gleaner had to identify the public relations and advertising contracts that were the subjects of the alleged bribes made by Abrahams and to reveal the checks which had allegedly “been drawn, made payable to or negotiated by him.”77 This was because Abrahams was constitutionally entitled to a fair hearing, to enable him to provide his defense.78 If specific documents which the defense intended to rely on had been identified, Abrahams could have filed for discovery79 or

75 Stokes & Gleaner Co. vs. Abrahams (1994), supra at 9.

76 Id.

77 Stokes & Gleaner Co. vs. Abrahams (1994), supra at 9.

78 Jamaica CONST. § 20(2) provides that

Any court or other authority prescribed by law for the determination of the existence or the extent of civil rights or obligations shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other authority, the case shall be given a fair hearing within a reasonable time.

79 KODILYNE, CIVIL PROCEDURE, supra. at 197. “Discovery is the procedure whereby one party to an action must disclose to the other party the existence of all documents which are or have been in his possession and which are material to the issues of the action.” Discovery is aimed at saving costs and allowing for the fair disposal of the action. Id.

576

interrogatories.80 However, without specific knowledge of the documents that the

Gleaner would rely on, Downer said, Abrahams could not prepare his defense.81

Downer said that Gentles had not identified specific documents that bore

Abrahams’ name or signature and the fact of investigations by federal authorities would not justify an allegation of bribery. Thus, Downer held that the defense filed by the

Gleaner was insufficient to form “the basis of a plea of justification.”82 Also, he said,

merely repeating a libel received from a reliable source would not constitute the defense

of justification or truth.83

Similarly, the court rejected the Gleaner’s plea of qualified privilege. Downer

noted that the Gleaner was bound by its pleadings.84 The Gleaner had pleaded in its defense that the United States federal authorities85 and Jamaican Ministry of Tourism86

80 Id. at 215. “Interrogatories are questions addressed to the opposing party in the action aimed at discovery of facts.” Id.

81 Stokes & Gleaner Co. vs. Abrahams (1994), supra at 9. Emil George, Queen’s Counsel, was given legal instructions to handle the case by Richard Ashenheim for Milholland, Ashenheim & Stone, who appeared for the Gleaner in the case. Emil George had indicated to the Court that it would take one year to obtain information on the secret investigation of allegations of bribes by high-ranking government officials in return for tourism contracts, from the federal grand jury. Justice Henderson Downer, speaking on behalf of the Court of Appeal, however, decided that he would only delay the trial further in exceptional circumstances since further delay would be detrimental to Abrahams, preventing him from having information necessary to take any other interlocutory steps. Id.

82 Id. at 10.

83 Id. The court relied on Donovan v. Thwaites, [1824] 187 E.R. 840 and McPherson v. Daniels, [1829] 109 E.R. 448.

84 Stokes & Gleaner Co. vs. Abrahams, (1994), supra at 10. The court relied on Cadam & Others v. Beaverbrook Newspapers Ltd., [1959] 1 Q.B. 413 at 425, where the court said “It is quite clear that in giving particulars of justification the defendants are bound by the particulars that they have given: they cannot go beyond those particulars [sic].”

85 Id. Paragraph 7(i) of the Particulars of Defense reads:

The United States of America Federal authorities in Connecticut, U.S.A., are investigating public relations and advertising executives who are suspected of making payments to Jamaica Government officials for the award of contracts by Jamaica Government agencies to the firms of those executives. Id.

577 had both been investigating allegations of bribery.87 Thus, the Gleaner claimed, it had a

“legal and/or moral duty to publish the said words and the public of Jamaica had a like duty and/or interest to receive them.”88

The court, however, cited the authority of Blackshaw v. Lord89 where the House of

Lords held:

When damaging facts have been ascertained to be true, or been made the subject of a report, there may be a duty to report them90 provided the public interest is wide enough. But where damaging allegations or charges have been made and are still under investigation,91 or have been authoritatively refuted92 there can be no duty to report them to the public.93

Since the issue of whether Abrahams had been involved in the kickback scandal was still under investigation, Downer said, the Gleaner had no duty to publish the libelous statement.94 Downer was, however, more concerned with the paragraph where

86 Id. Paragraph 7(iv) of the Particulars of Defense reads: “The Jamaican Ministry of Tourism and the Jamaica Tourist Board have made attempts to convene a meeting of all relevant parties who may have knowledge of the facts relevant to each of the said investigations.” Id.

87 Id.

88 Id.

89 [1982] 2 All E.R. 327.

90 Stokes & Gleaner Co. vs. Abrahams, (1994), supra at 11, citing Cox v. Feeny, (1863) 176 E.R. 445, Perera v. Peiris, (1949) 1 A.C. 1, Dunford Publicity Stratos Ltd. V. News Media Ownership Ltd., (1971) N.Z.L.R. 961.

91 Stokes & Gleaner Co. vs. Abrahams, (1994), supra at 11, citing Purcell v. Solver, (1877) 2 C.P.D. 215.

92 Stokes & Gleaner Co. vs. Abrahams, (1994), supra at 11, citing Adam v. Ward, (1917) A.C. 308.

93 Stokes & Gleaner Co. vs. Abrahams, (1994), supra at 11.

94 Id.

578 the Gleaner said Gentles had appeared before a grand jury and given evidence.95 Gentles’

Affidavit stated:

6. The matters involved are currently being investigated by a Federal Grand Jury in Connecticut aforesaid and I have given evidence before the said Grand Jury. I was asked to identify a number of documents and the signatures therein and these included public relations and advertising contracts and cheques [sic] either drawn by or made payable to the Plaintiff or negotiated to the Plaintiff and on which the Plaintiff’s signature appeared. I identified the Plaintiff’s signature on those cheques.

7. I am aware that the Plaintiff is a key figure in the Federal Grand Jury’s investigation.

When the Court of Appeal had initially allowed the Gleaner to file a defense, the court had understood the pleadings to mean that Gentles’ evidence would be available,

Downer said. Juxtapositioned with a paragraph indicating that Abrahams was a key figure in the investigation,96 the Court of Appeal had interpreted Gentles’ pleading as meaning that Abrahams was linked to the enquiry because of checks made payable to him as kickbacks.97 Downer said he had given the Gleaner leave to file its defense of qualified privilege out of time because of the “privileged status of reports from foreign judicial tribunals.”98 However, since the Gleaner’s attorney had indicated that the hearings were secret and it would be very difficult to secure the proceedings, there was no evidence to support the defense of qualified privilege.99

95 Id. at 11. Paragraph 7(ii) of the Particulars of Defense reads: “A former director of Tourism during the time when the Plaintiff was Minister of Tourism in Jamaica was a witness appearing before the said federal authorities, namely a Grand Jury in Connecticut aforesaid and gave evidence.”

96 Id. Paragraph 7(vi) is to this effect.

97 Id.

98 Id. The Court relied on Webb v. Times Publishing, [1960] 2 Q.B. 535.

99 Abrahams v. Gleaner Co. (1994), supra at 12. The court noted that since the hearings in the investigation were not open to the public, the Gleaner was not in the position to report what was happening to the Jamaican public [emphasis Downer’s] Id.

579

Downer noted that the question arose of whether the fact that United States

authorities and Ministry of Tourism were conducting investigations would, alone, attract

qualified privilege. He said that an allegation of fraud against a Minister was of “great

interest to the public of Jamaica,” but would not, alone, make a libelous publication

privileged.100

Counsel Emil George had argued for the Gleaner that in raising a defense of

justification there was no need to prove that all the words in a publication were true so

long as the substance was true.101 Queen’s Counsel Winston Spaulding, who appeared for

Abrahams,102 argued that the defenses submitted by the Gleaner should be struck out as they were inadequately argued and the action should be set down as undefended.103

The Appeal Court in the Abrahams case said that it was obvious that the plea of

justification should be struck out and, once the Gleaner failed to set out circumstances

establishing that the publications were privileged, that pleading also had to be struck

100 Stokes & Gleaner Co. vs. Abrahams, (1994), supra at 10.

101 Abrahams v. Gleaner Co. (1994), supra at 12. George relied on Marks & Another v. William Boyd & Others, [1939] 2 All E.R. 605, where the Court of Appeal had said,

There is not an absolute rule of practice that, whenever a plea of justification is raised in the common form that the words are true in substance and in fact, an order for full particulars of the facts and matters relied upon in support of the pleas must be made. Each case must depend on its particular facts, and, where the charges made are sufficiently specific, no general order for particulars should be made, though an order may be made for particulars of specific matters. Id.

102 Abrahams v. Gleaner Co. (1994), supra at 12. Spaulding appeared with B.J. Scott, Queen’s Counsel and Susan Richardson, instructed by Clough Long & Company.

103 Spaulding relied on Markham v. Wernher Beit & Co., [1902] 18 T.L.R. 763 at 764 where Lord Lindley in his House of Lords concurrence said he regretted that there

was not a larger order made by the Court of Appeal. This was in effect an undefended action. The defendant had no defense unless he produced at the trial evidence that the plaintiffs were thieves and swindlers in the ordinary sense. The particulars furnished no evidence of the kind and so far as he could see all the particulars might have been struck out. There was every reason why the particulars objected to should be struck out, and he was at a loss to know why any of them should have been allowed to stand. Id.

580

out.104 Since neither secret proceedings before a foreign tribunal nor damaging allegations still under investigation could support the claim for qualified privilege, the plea of qualified privilege had to be struck out.105

Thus, the court struck out the Gleaner’s defenses to Abraham’s statement of

claim.106 The case was remitted to the Supreme Court for further interlocutory steps to be

taken. The effect of the Court of Appeal’s decision was that the action was set down as

undefended in relation to liability.107

Two years after the Court of Appeal rejected all the pleaded defenses, the

Abrahams case was set down for trial in 1996. Since the action was undefended, the major issue before the Supreme Court, the trial court, was the amount of damages to be awarded. Ultimately, the court awarded J$80.7 million in damages.

Between the Court of Appeal’s decision and the trial, on July 9, 1995, the Gleaner, under the heading “Apology” published the following statement:

104 Id. at 24. The court relied on Elkington v. London Association for the Protection of Trade, [1911] 27 T.L.R. 329, where the defendant was ordered to make a specific plea that the libel was published under circumstances protected by qualified privilege. In Elkington, Elkington brought an action against the London Association for the Protection of Trade when the association gave its clients an incorrect report that imputed that Elkington had left his eight-year residence without leaving a forwarding address to avoid payment of a debt. In the action for libel the association said it had been given this information when one of its agents made inquiries. The Court of Appeal held that to rely on the defense of privilege the company had to provide information about who the informant was. Lord Justice Farwell said this was important to allow Elkington to test whether the inquiry was in fact made by the association. The Court of Appeal refused to rely on hearsay evidence. Id.

105 Stokes & Gleaner Co. vs. Abrahams (1994), supra at 24. While the motion brought by Abrahams was limited to a determination whether the Gleaner was required to furnish him with further and better particulars, Downer noted that, under the Jamaican Civil Procedure Code § 238, the court had the authority to invoke the drastic remedy of striking out the defense because of failure to disclose a legal defense and because it would embarrass Abrahams in trial. The court noted that the Gleaner’s counsel had been warned of this during submissions, but had not sought to amend the defense to disclose a legal defense. Id.

106 Id. at 14.

107 Id.

581

In September 1987, the story of which complaint is made concerning Mr. Anthony Abrahams, former Minister of Tourism of Jamaica, came from the Associated Press of the United States, in the ordinary regular course of business. At the time we honestly believed the information to be true and accurate considering the usually reliable source from which it came. This agency has supplied us with material suitable for publication over a number of years, and is responsible and reputable.

“Accordingly we published the information in the issue of the newspaper on the 17th of September, 1987. We were sued by Mr. Abrahams in libel and in our defence [sic] we pleaded justification and qualified privilege, sincerely and innocently believing that we could obtain evidence to support these defences [sic]. As it turned out the Court of Appeal dismissed these defences [sic] since the evidence was not forthcoming. We now realize that we cannot sustain these allegations. Accordingly, we hereby withdraw the allegations.

“In the circumstances we tender our sincere apologies to Mr. Abrahams and are very sorry for any embarrassment or discomfort arising from the article.”108

Approximately one year later, in May, June and July of 1996, when the trial took place, the Gleaner’s lawyers said that they would rely on this apology in mitigation of damages. The Gleaner also sought to rely on the fact that the AP, which was the source of the information for the original story, was a “responsible and reputable news agency,” that the grand jury in Connecticut had indicted Abrahams at one point in time, even if the indictment was later withdrawn and the Gleaner had offered Abrahams reasonable employment with Power 106, a radio station that was associated with the Gleaner.109

The parties appeared before Justice Algernon Smith in the Supreme Court in 1996.

Abrahams’ attorneys called Dr. Aggrey Irons, a consultant psychiatrist and Senior

Medical Officer at Bellevue Hospital, who had consulted with Abrahams in 1995 to provide evidence of the emotional effect of the publication on Abrahams. Irons testified that Abrahams had previously been a high-drive, high functioning, self-motivated and

108 The Gleaner v. Abrahams,Privy Council Appeal, supra. at 12.

109 Id.

582 successful person, whose character and personality were affected after the libel was published.110

Dr. D.K. Duncan, former general secretary and minister of government in the opposing political party also gave evidence. He had known Abrahams at high school and at the University of the West Indies and during his political career. Duncan gave evidence supporting Abrahams’ good reputation and integrity and also the interest and concern spurred in political circles after the scandal had broken and with subsequent articles published in the Gleaner.111

Mrs. Marcella Martinez, a consultant in marketing tourism who had worked with

Abrahams while he was director of tourism, also testified about Abrahams’ reputation and competence in the tourism business. She also testified by deposition about the lucrative nature of the tourism business which Abrahams had been forced to retire from.

This evidence supported Abrahams’ argument that the libel had affected his ability to make profit.112 She also gave evidence that most Jamaicans viewed news stories reported in the Gleaner as highly credible.

Gleaner Editor Dr. Dudley Stokes said the paper’s policy was to “ensure that the people of Jamaica (were) informed in relation to their leaders or any matter that will be of interest to them.” Though indicating that the Gleaner had no malice toward Abrahams, he

110 The Gleaner Co & Dudley Stokes v. Abrahams (unreported) C.A. No. 70/96 at 76 (1999).

111 Id.

112 Id. She testified that a Tourism Consultant could earn between US$200,000 and US$500,000 per year, thus supporting Abrahams’ argument that his financial prospects had been damaged because of the libel. Id.

583 said that “up until now he regarded Mr. Abrahams as being guilty, just that they cannot get the evidence.”113

On July 17, 1996, the Supreme Court jury awarded Abrahams J.$80.7 million

(approximately US$1.25 million) in compensatory damages.114 No award was made for exemplary damages. Because the action was undefended the issue of liability was never put to the jury.

7.4 Court of Appeal’s Decision to Reduce the Damages

Three years after the jury award was made the Gleaner’s appeal of the damage award came before the Court of Appeal. The Court of Appeal had to determine whether the Supreme Court’s award was fair.115 By consent, Abrahams also filed a respondent’s notice, seeking an award of exemplary damages.116 On hearing the parties arguments, the

Court of Appeal upheld the jury decision as to liability but reduced the damages to J$35 million (approximately US$500,000).117

General Damages

The President of the Court of Appeal, Justice Ian Forte,118 noted on behalf of the court that in order to recover specific pecuniary loss in general damages the plaintiff in a

113 Id. at 77.

114 The Gleaner Co. & Dudley Stokes v. Abrahams (unreported) decided July 31, 2000 at 9.

115 Id. at 10.

116 Id.

117 Id. at 97.

118 Id. at 11. The president was joined by justices Paul Harrison and Rance Langrin, who both wrote their own concurring opinions.

584

libel action had to specifically plead loss of a contract or employment.119 He noted that

evidence of actual loss could only be allowed where the details were set out in the

Statement of Claim, but evidence of specific loss could be tendered to assist the court in

assessing general damages.120

Forte held that the Supreme Court judge had correctly directed the jury regarding the probative value121 that could be placed on Abrahams’ evidence about the demise of

his consultancy business.122 Forte noted that the judge had directed the jury that evidence

given of the financial prospects that Abrahams had missed out on and specific figures

mentioned by his witnesses could not be awarded to Abrahams since he had made no

special claim for damages. The judge advised the jury that the evidence was only to assist

them in finding an appropriate reward in respect of the general loss in the case.123 Thus, the Court of Appeal found that the jury was “adequately assisted as to how to treat

119 Id. The president relied on Evans v. Harries, [1856] 1 H & N 251 where the plaintiff, an Inn Keeper recovered general damages when, because of a slander against him, his customers were reduced. He also relied on Harrison v. Pearce, [1859] 32 L.T. (O.S.) 298 where the proprietress of a newspaper was awarded damages for libel when the circulation of her newspaper declined.

120 The Gleaner Co. & Dudley Stokes v. Abrahams, 9 (2000).

121 See Chapter 2, 2.7 for the definition of probative value.

122 Id. at 12. The Judge in the lower court had told the jury,

“People didn’t want to do business with him, he says, because they felt he was a thief, he was corrupt, couldn’t trust him to deal with money business. . . . Now you must remember, members of the jury, that general loss of business, it is not special damages. . . . You have to estimate the general damages which the law presumes without proof . . . . In otherwords when you plead general damages you don’t have to set out an amount or set out to prove one dollar or two dollars, the law presumes that without proof, but evidence of general loss of business is given to help you to do so. You cannot make an award for general damages in respect of any loss of particular earning, particular customers, particular clients, particular transactions. However, evidence of specific losses is admissible, not with a view to recovering damages for such specific losses as such, but in order to assist you in assessing the general damages. . . .” Id. at 13.

123 Id. The Judge had said: “So, as I tried to explain . . ., if a mention is made of a particular amount, you can’t say we are going to find this amount because no special damages are claimed, but that may assist you when you come to deal with the general damages, general loss of business and so on, assist you in making your award.” Id. at 13.

585 evidence relating to specific monetary figures” used in the evidence of Abrahams and his witnesses.124

The Court of Appeal rejected the Gleaner’s contention that there was no clear relationship between the failure of Abrahams’ tourism consultancy and the libel. The court said since the libel alleged criminal behavior and attacked Abrahams’ “credibility and honesty,” as a government minister and a private person it would have affected his tourism business.125 Justice Forte’s opinion for the court said that because of the direct relationship of the published story to Abrahams’ professional expertise in tourism it would impact his professional and wage-earning capacity in the industry.126

Nonetheless, Forte agreed that the Gleaner was correct in saying that no evidence had been produced from anyone to the effect that they stopped doing business with

Abrahams because of the libel.127 Forte noted that to prove the special damage alleged,

Abrahams would have to call witnesses to give evidence about their reasons for not doing business with him. The court could not simply rely on his own hearsay evidence.128

Injury to Health

Forte, however, disagreed with the Gleaner’s argument that Abrahams’ evidence of injury to his health was not admissible since he had not pleaded health injury in his

124 Id. Abrahams had given evidence that because of the publication and loss of business revenues, he had been forced to depend on his father and been unable to meet his children’s expenses. Id. at 13–14.

125 Id. at 14.

126 Id.

127 Id.

128 Id. at 15. The Gleaner had relied on Tilk v. Parsons, [1825] 2 Car & P. 201, where the trial court held that a baker should bring persons to testify that they refused to buy his bread because of the libel. In Tilk the court refused to rely on hearsay evidence of the baker that he lost customers because of the libel. Id.

586 action.129 Abrahams had testified to becoming very depressed, breaking down and crying a lot and becoming obsessive. He also said that he had difficulty sleeping, developed stress-related obesity, and obesity-related type 2 diabetes. The diabetes was accompanied with cramps and he was forced to drink a lot of Gatorade to avoid getting the cramps.130

Forte noted that a plaintiff could recover for mental stress developed because of an attack on his character. However, he said, to be successful in alleging mental or bodily injury there would have to be evidence to establish that “the injury is the natural or necessary result of the libel before a plaintiff can recover damages.”131

Dr. Aggrey Irons, Abrahams’ psychiatrist, testified that Abrahams suffered from

“severely reduced self-esteem and self perception,” severe anxiety which led him to avoid public appearance and interaction with people, depression and excessive feelings of sleepfulness,132 rebound oral dependent behavior leading to severe weight control problems and social withdrawal and isolation caused by these phenomena.”133 Irons testified:

It was my opinion at the time and still is that Mr. Abraham’s self-image, public image and personality have been damaged to an extent requiring an ongoing psychotherapeutic intervention which would involve both psychoanalysis and

129 The Gleaner Co. & Dudley Stokes v. Abrahams, at 15 (2000). The President relied on Goslin v. Corry, (1841) 135 E.R. 143.

130 Id. at 18. Abrahams said he sought to divide emotional distress. “I have suffered emotional distress for four years after indictment was lifted and will only end when this case and the one in the U.S. end. All the emotional distress before the indictment (for two years before the indictment) were caused by the defendants. Then there were seven months of the indictment and since that five years of the prestigious Gleaner Company claims and maintaining and reporting in 1991 that I am guilty.”

131 The Gleaner Co. & Dudley Stokes v. Abrahams, at 18 (2000).

132 Id. at 19. He defines “hypersomnia” as “excessive feelings of sleepfulness, lack of energy etc.” Id.

133 Id.

587

pharmacological intervention over the next two years—at least for the next two years.134

It would follow that if verbal accusations or written accusations were being consistently applied to the various aspects of his profession—it would have a serious impact on him and his ability to perform. It is very clear that that sequence of events would lead to the situation I have earlier described.135

However, in cross examination, Irons conceded that he had no way of determining whether Abrahams’ state was due solely to the publications.136

The evidence provided by Abrahams’ expert witness mainly focused on the mental rather than the physical effects of the libel.137 Thus, Abrahams spoke mainly of his

“mental capacity to function and to do so in such a way that exuded confidence and trust in his own judgments.” These matters, Forte said, could be taken into account in assessing damages once the jury found that the condition described by Irons was a natural cause of the articles at issue.138

The court’s opinion also noted that Abrahams was first treated by Irons in 1995, eight years after the libel had been published. In the intervening time, Abrahams had been indicted in the United States on charges arising from the same publication. The indictment, however, had been withdrawn by 1995, but the Gleaner had continued to make allegations against him and had not apologized or withdrawn them. Thus, he said, the jury could, despite the intervening indictment, place the sole cause of Abrahams’

134 Id.

135 Id. at 19–20.

136 Id. at 20.

137 Id..

138 Id.

588 condition on the publication and the Gleaner’s insistence on its truth.139 The trial judge had directed the jury in looking at injury to health that:

you may take into consideration in assessing damages, any mental suffering or illness caused to the Plaintiff as a result of the publication, . . . you may take into consideration in assessing damages, any mental distress or illness caused to the Plaintiff himself as a result of the publication. . . . I mention too . . . injury to feelings. This is generally assumed. If your good name has been sullied, then the law will assume injury to feelings. You may award damages for the mental suffering arising from the apprehension of the consequences of the publication. . . . If there has been any kind of highhanded, oppressive, insulting or contumelious behavior by the Defendants which increases the mental pain and suffering caused by the defamation which may constitute injury to the Plaintiff’s pride and self-confidence, these are proper elements to take into account.140

However, the judge had taken away the consideration of whether Abrahams’ testimony of his physical condition could be relied on in assessing damages from the jury, noting that they needed medical evidence to substantiate this testimony.141

The judge ended the jury instructions with the warning:

look carefully at his (Dr. Irons’) evidence and see whether on his evidence you are satisfied on the balance of probabilities that what he outlined to you here was caused by the libelous publications, because that is key, you must say whether the libelous publication caused what the doctor had given to you here. And if you are not satisfied again on the balance of probabilities, then you can’t act on it; but if you are satisfied on the balance of probabilities, of course you may act on it.142

139 Id.

140 Id.

141 Id. The judge said,

you would need medical evidence from a doctor to say that the obesity caused the diabetes. You heard from Dr. Irons, the psychiatrist, and he couldn’t tell you that, so what you have is from Mr. Abrahams that diabetes sets in… that would not be evidence from a doctor to satisfy the balance of probability that the publication caused the stress which caused over-eating, which caused diabetes. Id.

142 Id. at 22.

589

Justice Forte found that that trial judge had properly directed the jury and rejected

the Gleaner’s argument that the trial judge had misdirected the jury about what general

damages could be awarded.143

Aggravated Damages

The Gleaner had argued that evidence of new articles published subsequent to the

time when the libel action was brought was inadmissible, unless specifically pleaded. The

subsequent articles had been admitted in the Abrahams case as evidence of the fact that

the Gleaner had acted with malice, by keeping the issue in the public’s eye.144 The

Gleaner’s attorneys argued, however, that, the judge had erred in not directing the jury that no damages could be awarded based on the effects of the content of the articles published subsequent to the start of the suit.145 Forte noted that in determining whether

there should be aggravated damages, the judge had carefully directed the jury on what

evidence they could rely.

143 Id. at 22. Forte also noted, in response to the Gleaner’s challenge that Abrahams had given evidence of his son’s distress, that the Judge had properly directed the jury that “you cannot take into consideration mental suffering or illness caused not to the Plaintiff, but to any member of his family as a result of the publication, nor mental distress caused to the Plaintiff by sympathy for the suffering endured by others.” Id.

144 Id. at 23.

145 Id. The Gleaner relied on Pearson v. Lemaitre, [1843] 134 E.R. 742, where Chief Justice Tindal held in the Court of Appeal,

either party may, with a view to the damages, give evidence to prove or disprove the existence of a malicious motive in the mind of the publisher or defamatory matter; but that, if the evidence given for that purpose, establishes another cause of action, the jury should be cautioned against giving any damages in respect of it. Id.

See also Anderson v. Calvert, [1908] 24 T.L.R. 399, where Lord Cozens-Hardy, Master of the Rolls in the Court of Appeal said,

Circumstances going to prove malice could not be excluded, whether those circumstances were before or after the publication of the libel sued upon. But the jury ought not to treat such prior or subsequent circumstances as giving a separate and independent right to damages. Id.

590

Firstly, Forte noted, the persistence of the Gleaner in its plea of justification was evidence of its malicious intent in publishing. This persistence had continued despite the fact that the Court of Appeal had struck out the plea because of lack of evidence, and even after the indictment against Abrahams in the United States was dismissed. This tended to support the jury’s finding that the Gleaner had a malicious intent in publishing.146

A second factor leading toward a finding of malice, the court said, was the tardiness of the Gleaner’s apology. The apology was published on the 9th and 10th of

July, 1995, almost eight years after the initial publication.147

Thirdly, “the jury could have concluded,” based on its wording, that the apology was not sincere. The character of the apology, Forte said, denoted that it was made not because the allegations were false but because they could not be proved and the jury was entitled to view it in that manner in determining aggravated damages.148 In fact, as the trial judge had reminded the jury, counsel for the Gleaner had said that the apology was wholly honest and without hypocrisy, adding,

we apologized because we can’t prove it. We made allegations and we could not get the evidence we hoped to get. To pretend we did not believe would be to tell a pack of lies.149

Fourthly, another basis for a finding of malice, Forte said was the Gleaner’s persistence in publishing the second article containing the charges against Abrahams notwithstanding the fact that, after the first publication, Abrahams had denied the

146 The Gleaner Co. & Dudley Stokes v. Abrahams, (2000), supra at 24.

147 Id. at 25.

148 Id.

149 Id. at 26.

591 allegations. The Gleaner’s failure to publish Abrahams’ denial on the second publication was also noted by Forte. The jury’s award of aggravated damages could also be substantiated by the offer of a job at a radio station made to Abrahams by Oliver Clarke, the Gleaner’s managing director, along with the threat that accepting the job offer was the only way he could get restitution.150

Constitutional Challenge

The Court of Appeal, although finding that there were circumstances that warranted aggravation of damages, held the jury award was excessive and reduced it. The Gleaner had argued that the award of J$80.7 million to Abrahams was in breach of the freedom of speech guarantees of the Jamaican Constitution.151 The Gleaner noted the similarity between the free speech provisions in the Jamaican Constitution and those in the

European Convention on Human Rights,152 both of which set out conditions for the right to be exercised.153 Both sections recognized that freedom of expression was not unlimited but had to be balanced against the individual’s right not to have his reputation tarnished.154 The court noted that article 10 of the Convention provides,

1. Everyone has the right to freedom of expression. The right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society. In the

150 Id.

151 Id.

152 Gleaner Co. v. Abrahams, at 28 (2000).

153 The Gleaner Co. & Dudley Stokes v. Abrahams, at 28 (2000).

154 Id.

592

interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of the reputation or rights of others, for preventing and disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” [Emphasis the Court’s].155

The Court noted, however, that while the Jamaican Constitution allowed exceptions to the right to freedom of expression where “reasonably required” the Convention prescribed laws where “necessary in a democratic society.” Forte said the court would have to determine whether the 2 phrases had the same meaning.

The court noted that in the 1994 decision Rantzen v. Mirror Group Newspaper Ltd. and Others,156 the United Kingdom Court of Appeal reduced a jury award for £250,000 to £110,000. The court in Rantzen held that giving almost unlimited discretion to the jury in determining damages was not an effective means of determining what restrictions on free speech was necessary in a democracy to protect reputation under article 10 of the

European Convention.157 Thus, the court in Rantzen had held it was necessary to “subject large awards of damages to more searching scrutiny than has been customary in the past.”158

Although there was no provision in the Jamaican Constitution for laws restricting freedom of speech to be “necessary” implying a “pressing social need,” Forte agreed with

155 Id.

156 [1994] Q.B.D. 670.

157 The Gleaner Co. & Dudley Stokes v. Abrahams, (2000) at 29. The court relied on the opinion of Lord Goff in the House of Lords in Attorney General v. Guardian Newspapers Ltd. (No. 2), [1990] 1 A.C. 109, 283–284. Lord Goffe said:

the words ‘necessary’ in this context implies the existence of a pressing social need, and that interference with freedom of expression should be no more than is proportionate to the legitimate aim pursued. Id.

158 The Gleaner Co. & Dudley Stokes v. Abrahams, (2000) at 30. See discussion on Rantzen, supra chapter 2, 2.8.

593 the approach of the English Court of Appeal and decided to use a similar approach in interpreting the Jamaican Constitution. Thus, he reformulated the principle stating that in the Jamaican context, an award that “exceeds an amount (given the circumstances of a particular case) which is reasonably required for the protection of the plaintiff’s reputation, could be subject to interference by (the) Court.”159

Thus, he said, the question was whether “a reasonable jury would have thought that this award was one which was reasonable to compensate the plaintiff and re-establish his reputation?”160 In determining this he considered the three methods used by courts to determine reasonable jury awards:161

• A comparison with awards in other defamation cases; • A comparison with awards in personal injuries cases; • A general review of the damages awarded by the jury on the basis that in the particular circumstances no reasonable jury would award such excessive damages.162

Forte disagreed with the approach in the 1986 Rantzen case that a jury should consider awards in other defamation cases since defamation cases were subjective and dependent on the character and circumstances of the defamed person, the effect of the libel on person, particulars of the publication, conduct of the publisher and any malice exhibited by him.163 Thus, the Court of Appeal’s opinion said, there were several variables not “conducive to making worthwhile comparisons one with the other.”164

159 Id. at 30.

160 Id.

161 Id. at 3. Counsel Emil George had suggested this three-part test based on Rantzen, supra.

162 Id.

163 Id.

164 Id. He also cited Rantzen, supra.

594

Justice Forte noted that, in Rantzen, the English Court of Appeal had interpreted a

1990 British statute as providing for the use of a corpus of Court of Appeal awards as a reference point in subsequent cases.165 However, he said, in Jamaica there was no provision to reassess a jury’s award except by consent of the parties.166 Nonetheless the court could develop a reservoir of cases to assist juries in making awards, as done in the

English courts.167

However, this was subject to the reservation that juries and judges should do this with care because of the subjective manner in which damages were assessed.168 Forte said that none of the cases cited by the attorneys in the Abrahams case bore a

“worthwhile comparison” to the circumstances of the current case, since it disclosed a serious libel that had a profound effect on Abrahams.169 Thus, the cases cited could not assist in determining the reasonableness of the award.170

In looking at the issue of awards in personal injury cases, the court noted that it was the first time in Jamaica that it was proposed that damages for libel cases should be compared with cases based on personal injuries in assessing damages.171 Forte noted that up until 1986 commonwealth courts were of the view that the “nature, circumstances, and method of assessing damages in defamation cases” made it unfair for assessments in

165 Id. at 32.

166 Id.

167 Id.

168 Id.

169 Id. at 33.

170 Id.

171 Id.

595

these cases to be determined by a comparison with awards in personal injury cases.172

However in 1997 in John v. M.G.N.,173 the court held that

[t]he conventional compensatory scales in personal injury cases must be taken to represent fair compensation in such cases unless and until those scales are amended by the Courts or by Parliament.174

Forte said that in Rantzen’s case175 the English Court of Appeal acknowledged that

awards in personal injury cases were not an exact guide, but juries could determine

whether damages to vindicate reputation could be higher than damages awarded in

personal injury cases.176 Thus, although personal injury cases could be used as a general

guide, Forte said, the jury in defamation cases was required to consider what was

reasonable to protect reputation.

172 Id. at 35. The court referred to dicta in Cassells & Co. Ltd. v. Broome and Another, [1972] A.C. 1027, 1071–1072, where Lord Hailsham of St. Marylebone said in the House of Lords that

a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason compensation by damages operates in two ways—as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money. . . . What is awarded is [thus] a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large. Id. at 34.

th See CONCISE OXFORD ENGLISH DICTIONARY, (11 ed., 2004)(1911), where the word “solatium” is defined as “a thing given as a compensation or consolation. This position was affirmed in the Court of Appeal decision in Rantzen v. Mirror Group Newspaper, [1986] where the court held

We have come to the conclusion . . . that there is no satisfactory way in which the conventional awards in actions for damages for personal injuries can be used to provide guidance for an award in an action for defamation . . .damages for defamation are intended at least in part as a vindication of the plaintiff to the public. . . . We therefore feel bound to reject the proposal that the jury should be referred to awards made in actions involving serious personal injuries . . . Id. at 35.

173 [1997] Q.B. 586. In John an article in a national newspaper published under the title “Elton’s diet of death,” alleged that Elton John was on a weird diet where he chewed food and spat it out. An expert said that the behavior indicated John was bulimic. He was awarded £350,000 damages (£75,000 compensatory and £275,000 was exemplary). The award was reduced to £75,000 (£25,000 and £50,000 respectively).

174 Id.

175 Supra.

176 Id. at 37.

596

However, Forte held, none of the personal injury cases cited by the Gleaner’s counsel could “equate with the mental agony and subjection to the contempt of the public and his friends” suffered by Abrahams because of the libel.177

The “reasonableness” of damage, Forte noted, depended on whether the amount awarded was too excessive to be reasonable to vindicate Abrahams’ reputation within the context of the constitutional guarantee of free speech.178 In the current case, there were circumstances that warranted aggravated damages.179

Forte noted, because of the injury caused to him by the defamatory statement,

Abrahams was entitled to a “high level of damages” to vindicate the damage to his reputation. However, Forte said that the sum of J$80.7 million awarded by the lower court was “phenomenal and multiple times any award” granted in Jamaica for either personal injury or defamation cases.180 Thus, he found, it exceeded the amount reasonably necessary to protect Abrahams’ reputation and Forde set aside the award of

J$80.7 million and substituted the sum of J$35 million.181

177 Id.

178 Id.

179 Id. at 38. The court reiterated that damages should take into account the fact that the Gleaner had failed to publish Abrahams’ denial until a few days after the original article was printed. The court also said damages should reflect the fact that the Gleaner insisted on a plea of justification and always claimed that it was their inability to gain the evidence which made them unable to prove the truth. Additionally in assessing damages the court should take into account the apology which had come eight years after the libel was first published and was inadequate, the pecuniary loss, mental stress and serious hurt to Abrahams’ feelings. Id. at 38.

180 Id.

181 Id. at 39.

597

Exemplary Damages

The court denied Abrahams’ application for exemplary damages. Abrahams’ counsel contended that the judge had misdirected the jurors in the lower court when he told them that if their award for compensatory damages was sufficiently high, they need not consider exemplary damages.182

Forte said that for an award of exemplary damages to be made, there had to be proof the publication had been motivated by a “cynical calculation of advantage”183 and the award was “insufficient to achieve the punitive and deterrent purposes.”184 Thus,

Forte said the judge had properly instructed the jury. The jury did not make an award of exemplary damages because of the failure of Abrahams to prove either that the publication was motivated by gain or insufficient to deter the Gleaner from making libelous comments in the future, and so the case did not warrant an exemplary damage award.185

The court said there was evidence to show that the Gleaner had no genuine belief in the truth of the content of the article, but none to show they were motivated by monetary gain in publishing the story. Thus, Forte denied Abrahams an additional award for exemplary damages.

Concurrences

Justices Paul Harrison and Rance Langrin agreed with Forte’s decision but wrote separate concurrences. Harrison said in his concurrence that the trial judge had partly

182 Id.

183 Id.

184 Id. at 40.

185 Id.

598 misled the jury on how damages should be assessed leading to the J$80.7 million award.

Harrison and Langrin both rejected the use of personal injury awards as a guide in assessing damages and Langrin advocated minimal directions to the jury about the level of damages to be awarded.

The Gleaner’s attorneys had argued that the trial judge had erred in “inviting the jury” to view the conduct of the Gleaner as persistence, and that the apology should have been seen as an honest one.186 Dr. Dudley Stokes, editor of the Gleaner and a party to the action, had said in evidence that, “I did not think an apology was necessary since he

(Abrahams) had sent me a statement denying it.”

In his direction the judge had told the jury:

[I]f you find that there was an unreasonable failure to apologize in time and adequately, that may be evidence of malice. It is for you to say, but you must say whether you find that there was an unreasonable failure to apologize adequately, in time and in the form of the apology, then it is open to you to say that that is evidence of malice. Further, the manner of an apology may tend to increase rather than diminish the damages, and you may ask yourselves . . . were the Defendants’ persistence in the defamation sufficiently met by this tardy apology. If you find that it was tardy and if you find that it was meager too, you can ask yourselves, were the Defendants’ persistence in the defamation. . . . If you find that the apology was such as to add any degree of bitterness to the original libel, then, of course, it may go to aggravate damages, make it worse. . . .187

Justice Paul Harrison, in his concurrence, wrote that the trial judge had correctly left the determination of whether the Gleaner had persisted in its libel and the apology was full, complete, genuine and honest to the jury,188 and the jury had authority to

186 Id. at 57.

187 Id. at 58–59.

188 Id. at 59.

599

determine whether the apology was insincere or “tongue-in-cheek,” causing greater

hurt.189

However, the judge did not direct the jury that in determining the amount of

damages it should take into account the fact that Abrahams would have been taxed on his

earnings. This omission, Harrison said, also contributed to the excessive amount of

damages awarded in the case.190

Harrison and Justice Rance Langrin both indicated in their concurrences that the

aim of an award of damages in libel as in other torts was restitutio in integrum or “to

restore the person libeled to the position he would have been in, if the tort had not been

committed.”191 Thus, libel awards were aimed at compensating the libeled party for injury to his reputation and his hurt feelings, Harrison said.192 Thus, he said, since the loss of a limb or major bodily function would not equate with the loss of one’s reputation and attract similar awards, he did not believe that personal injury cases should be used as

a guide in assessing damages.193

189 Id.

190 Id. at 60.

191 Id. at 47. See opinion of Justice Paul Harrison at 47, See also opinion of Justice Rance Langrin at 81.

192 Id. at 47. See also Langrin’s opinion at 81. The two justices relied on dicta in Cassell & Co. Ltd. v. Broome, [1972] 1 All E.R. 801, 824 where Lord Hailsham said,

In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge. Id.

193 Gleaner v. Abrahams, (2000), supra at 51. Harrison relied on dicta in Cassell, supra at 825, where the House of Lords said,

600

Langrin, in his concurrence, said judges should confine their jury directions to

“general principles (and avoid) any specific guidance to an appropriate level of general

damage.”194 He also said that a judge should not furnish the jury with a range of awards

for damages since this would be a subjective view on his part.195

7.5 Privy Council’s Decision

The Gleaner appealed the award of damages, stating that it was so large that it

would create a chilling effect on speech. In 2003 the Privy Council unanimously upheld

the lower court’s decision and damage award, stating that the highest court sitting in

Jamaica, the Jamaican Court of Appeal would be better placed to determine the award necessary to create the balance between freedom of speech and the right to reputation in the country.

In the time leading up to the hearing of the appeal by the Privy Council, Oliver

Clarke, the chairman of the Gleaner, called for a change in Jamaican libel laws in an

article published on Wednesday June 26, 2002 in the Gleaner.196 The Gleaner boss called

This is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries. Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libeled the defendant in reply. What is awarded is thus a figure that cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’. Id.

Langrin, in his concurrence in the Court of Appeal, also wrote that he didn’t believe there was a meaningful relationship between personal injury and loss of reputation and so refuted the Gleaner’s submission that jurors in libel cases should be addressed on the scales of damages in personal injury cases. Gleaner v. Abrahams, (2000), supra at 86.

194 Gleaner v. Abrahams, (2000), supra at 51.

195 Id.

196 Reform media laws, THE DAILY GLEANER, Wed. June 26, 2002.

601 for freedom of the press to be included in the Constitution197 and for a wire service defense. He also called for absolute privilege in relation to statements about government and quasi-government bodies and their members.198 Clarke said:199

If Jamaica is going to really challenge the public sector to be more efficient, to make better use of scarce public resources that we have, to be honest and less corrupt and to ensure that the country is run in the best interest of all, then there needs to be greater openness . . . and public officials need to come under much greater scrutiny in conducting their public activities than they do now.200

Clarke said that it was not equitable to punish the media in the absence of malice in reporting and that media houses that republished material from reputable wire services such as Reuters and Associated Press should not be held liable for defamation.201

Nonetheless, on July 14, 2003 the Privy Council upheld the Court of Appeal’s award of J$35 million finding that the evidence supported the finding that the Gleaner had acted with malice and that the Court of Appeal’s revision of the damage award was based on correct legal principles relating to the assessment of damages.202

197 JAM. CONST. § 22 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. Id.

Although the section does not explicitly mention freedom of the press, in Attorney General v. Antigua Times, (1976) A.C. 16, the Eastern Caribbean Court of Appeal held that the comparative section in the Antiguan Constitution protected freedom of the press.

198 Supra. Reform media laws, THE DAILY GLEANER, June 26, 2002.

199 Id.

200 Id.

201 Id.

202 Gleaner & Stokes v. Abrahams, Privy Council Appeal,, [2003] 63 W.I.R. 197.

602

The Gleaner had argued in the Court of Appeal when Forte had said that the sum awarded would punish the appellants and deter others from behaving as the Gleaner had done, he had erred by wrongly introducing a punitive element into compensatory awards.203 Speaking on behalf of the Privy Council, Baron Leonard Hubert Hoffmann of

Chedworth204 said that Forte’s observation reflected the “orthodox view of the dual function of compensatory damages” determined by Lord Patrick Arthur Devlin in the

1964 House of Lords case Rookes v. Barnard.205 Devlin had 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.206

Lord Hoffman said that, while compensatory damages could also have a “punitive, deterrent or exemplary function,” exemplary damages had no compensatory element.207

Lord Hoffmann said most judges had accepted that compensatory and exemplary damages were “inextricably mixed.”208 Three ways had evolved to guide juries away from excessive awards of damages, Hoffmann said.209 The first was to remind the jury of the purchasing power of money which Justice Algernon Smith had done in the Supreme

203 Id. at 212.

204 Lord Hoffmann was joined by Lord James Hope of Craighead, Lord John Stewart Hobhouse of Woodborough, Lord Millett and The Rt. Hon. Justice Andrew Patrick Charles Tipping who unanimously accepted his decision in full.

205 [1964] A.C. 1129.

206 Id. at 1228.

207 Gleaner & Stokes v. Abrahams,Privy Council Appeal, supra at 212.

208 Id.

209 Id.

603

Court.210 The other two were the comparison of awards in other libel cases and personal injury cases respectively as discussed in the Court of Appeal decision.

The second standard used in directing juries on libel awards is comparing awards in other Court of Appeal libel cases which had been advocated by the court in Rantzen.211

After the Rantzen decision in 1986, the practice was to refer the jury to a corpus or body of awards made by the Court of Appeal. In 2002 the corpus consisted of two cases,

Hoffmann said.212 In the aftermath of the passage of the 1990 Courts Legal Services Act in the United Kingdom—an act that allowed the Court of Appeal to substitute for jury awards that were either to large or too small—the Court of Appeal in Rantzen had supported using these Court of Appeal awards to guide the jury in libel cases.213 In advocating this method of guiding the jury, the Court of Appeal had anticipated the development of a corpus or body of cases in the Court of Appeal that could be used for reference.214

Coupled with the use of past libel awards as a method of instruction to the jury, the

Court of Appeal in Rantzen also recommended that jury awards be subjected to “a more searching scrutiny” than in the past.215 Even the Court of Appeal in Rantzen recognized that the method of guiding the jury based on awards in Court of Appeal decisions was

210 Id. at 213, citing Sutcliffe v. Pressdam Ltd., [1991] 1Q.B. 153, where the Court of Appeal recommended reminding the jury of the purchasing power of money in instructing them on assessing damages.

211 Gleaner & Stokes v. Abrahams, Privy Council Appeal, supra at 213.

212 Id.

213 Id.

214 Id. at 214. Lord Hoffman in Gleaner v. Abrahams noted that by the time of the 2002 decision in Kiam v. MGN Ltd., [2002] 3 W.L.R. 1036, the corpus consisted of only six cases.

215 Gleaner & Stokes v. Abrahams,Privy Council Appeal, supra at 214.

604 dangerous because of the amount of time such a deliberation took and tendency to inconclusive arguments about the facts of prior cases. So troubling was the time element in directing the jury that in the 2002 House of Lords decision Kiam v. MGN Ltd,216 Lord

Simon Brown had suggested in dicta that lawyers should “avoid reference to comparable cases and leave the detailed guidance on figures to the judge.”217 Nonetheless, the courts continued to follow the earlier decision in Rantzen, and refer English juries to awards in

Court of Appeal decisions, Lord Hoffman said in Abrahams.218

The Gleaner’s attorneys had argued that the Court of Appeal should have referred to earlier awards in substituting the new award of $35 million, since this figure was also much larger than previous awards.219 However, the Privy Council disagreed with this position. Hoffmann said that Forte’s decision not to allow counsel to address the jury about awards in other defamation cases since the variables were too numerous to facilitate a worthwhile comparison220 was consistent with the views of the Court of

Appeal in Rantzen and John’s cases and not open to criticism.221

The Privy Council law lords similarly held that there was no requirement in

Jamaica to follow the United Kingdom practice of using substitutions by the Court of

Appeal for jury damages as a guide in making awards in libel cases.222 This was because,

216 [2002] 3 W.L.R. 1036 at 1054.

217 Id.

218 Gleaner & Stokes v. Abrahams,Privy Council Appeal, supra at 214.

219 Id. at 218.

220 Id. at 217.

221 Id..

222 Id.

605

Hoffman said, the practice of the U.K. Court of Appeal in substituting awards in libel actions was non-existent in Jamaica and it was only because the parties in Abrahams had consented to a substituted award that the Jamaican Court of Appeal had been given the opportunity for the first time in a long time to make the substitution.223 Although both justices Forte and Harrison in the Court of Appeal favored reference to Court of Appeal decisions, there were no Caribbean Court of Appeal decisions in 2003 to form a body from which the decisions could be drawn.224 Lord Hoffman noted that in reducing damages, Forte had simply said that the jury’s award was “phenomenal” and “multiple times any award ever granted in Jamaica” in libel actions.225 The Court of Appeal did not make reference to other libel awards in Jamaica or the Caribbean in making its substitution. Nonetheless, the Privy Council accepted the Court of Appeal’s decision and rejected the newspaper’s attorneys arguments, noting that it was “impossible to produce a formula” to explain why certain awards were too much and others sufficient.226

The third method of directing the jury in libel actions discussed in the Privy

Council opinion was using awards given in personal injuries cases as a guide. Hoffman in the Privy Council decision in Abrahams, declined to express a view on the practice of using personal injury awards to guide jurors in libel actions, indicating that there were different opinions.227 Hoffmann noted that using personal injuries cases as a guide to libel

223 Id.

224 Id.

225 Id. at 218. Hoffman noted that libel awards in Jamaica had up to 2002 been “relatively modest.”

226 Id. at 23.

227 Id. at 219.

606 awards had been surrounded by controversy.228 Thus, the method had been advocated in some cases229 and rejected in others.230 Hoffman noted that after the 1996 decision in

John v. MGN Ltd,231 when the Court of Appeal reversed its decision in Rantzen that awards in personal injury cases were inappropriate to use as a guide in making awards in libel cases, juries were more frequently instructed to take into account personal injury awards in making awards in libel actions.232

Although noting that personal injury awards could be a “general guide” in making awards in libel actions, Justice Forte—in the Court of Appeal decision in Abrahams— said the facts of the present case were “too far removed” from the awards made in any personal injury cases to provide guidance.233 The Gleaner argued that the Court of

Appeal was incorrect in rejecting guidance from personal injury awards. Lord Hoffmann, however, said the issue of whether to use personal injury awards was “open to legitimate differences in opinion.”234 Before the decision in the Elton John case that personal injury awards could be used as a guide in determining damages, the law in Jamaica, as in

England, did not allow references to awards in personal injury cases. The Jamaican Court

228 Id. in Abrahams,

229 Id. The court noted that the method of using personal injuries cases as a guide to assessing damages in libel actions had been accepted by Lord Diplock in the Court of Appeal decision of McCarey v. Associated Newspapers (No. 2), [1965] 2 Q.B. 86, 109–110.

230 Gleaner & Stokes v. Abrahams,Privy Council Appeal, supra at 214. Lord Chancellor Lord Hailsham of St. Marylebone had rejected the test in Broome v. Cassell & Co. Ltd., [1972] A.C. 1027, 1070–1071. Id.

231 [1997] Q.B. 586.

232 Gleaner & Stokes v. Abrahams, Privy Council Appeal, supra at 214.

233 Id. at 218. Justices Harrison and Langrin both rejected using personal injury awards for guidance in making libel awards.

234 Id. at 218.

607 of Appeal was not required to accept the position in John that juries in libel cases could be instructed in accordance with decisions in personal injury cases, Lord Hoffman said.235

Whether the Lower Court’s Award was Excessive

The Privy Council found that the damage award as reduced by the Court of Appeal in Abrahams was not excessive and refused to interfere with the decision of the local court. The Privy Council believed that the Jamaican Court of Appeal was more equipped to determine an appropriate damage award.

In Rantzen the Court of Appeal had posited that in determining whether an award was excessive the court should look at whether it was “necessary in a democratic society” to protect the plaintiff’s reputation or rights. The Court of Appeal in Abrahams had based its determination of whether the libel award issued by the lower court was excessive on the European Convention’s requirement that the award should be “necessary in a democratic society.” However, in his discussion in the Court of Appeal, Forte had substituted the word “reasonable” for “necessary.”

The Gleaner’s attorneys argued that, by substituting the word “reasonable” for

“necessary” in the formulation of the test to determine whether an award was excessive,236 the Court of Appeal had watered down the test.237 The formulation used by the Court of Appeal read, “Could a reasonable jury have thought that this award was one which was reasonable to compensate the plaintiff and to re-establish his reputation?”

235 Id.

236 Id. at 219.

237 Id.

608

The Privy Council lords, however, held that, on a fair reading of Forte’s opinion, it was clear that Forte did not contemplate a different standard than that used in the English cases which were in line with the European Convention.238 Though not seeing a difference in the meaning, the lords suggested that to avoid “linguistic arguments” the

Jamaican Court of Appeal should in future adhere to the formulation that used the word

“necessary.”239

Award

The Privy Council rejected the Gleaner’s argument that the award was greater than what was “necessary” in a democratic society and upheld the Court of Appeal’s decision.

The Gleaner’s lawyers although agreeing that the Rantzen test of whether the award was

“necessary” in a democratic society was satisfactory to determine whether a jury’s award could be set aside, viewed it as inadequate to determine the amount to be substituted.240

The Privy Council lords were nonplussed by this criticism, it being logical that when the award was set aside, the Court of Appeal was required to apply the criteria the jury should have applied, which was set out in the Rantzen test.241 The law lords said the

Court of Appeal claimed that this is what it had done.

The Privy Council lords were not concerned that the Court of Appeal had not explained how it arrived at the figure announced.242 Lord Hoffmann said the Privy

238 Id.

239 Id. at 219.

240 Id. at 220.

241 Id.

242 Gleaner & Stokes v. Abrahams,Privy Council Appeal, supra at 220. The court noted that in both Rantzen and John the substitution had been made with no specific reason given.

609

Council believed the Court of Appeal was justified in simply substituting the figure of

J$35 million.243 The law lords did not think themselves in a position to question whether or not the award was appropriate.

“As the highest court sitting in Jamaica,” Hoffman said, “the Court of Appeal would have knowledge that the Privy Council could not about the appropriateness of the award, based on the standing of the Gleaner in Jamaica, sensitivity of the local community to corruption and links between the political, social and business life of the community.”244

Even if the approach to damages was the same as in Britain, the Privy Council held that the Abrahams case differed significantly from standard English “comparables,” because of the persistence of the Gleaner which made the case highly unusual.245 He noted that there had been no proof of injury in the two English cases, Rantzen and John.

However, Lord Hoffman said, in the case of Abrahams, the Gleaner had for almost 16 years “doggedly resisted the attempts of Mr. Abrahams to clear his name” and

“maintained their allegations far beyond the point in 1988 at which it became obvious that they had no evidence to support them.”246

243 Gleaner & Stokes v. Abrahams,Privy Council Appeal, supra at 221.

244 Id. at 221, citing Tolstoy Miloslavsky v. United Kingdom, (1995) 20 E.H.R.R. 442, 472, where the European Court of Human Rights said,

[P]erceptions as to what would be an appropriate response by society to speech which does not or is not claimed to enjoy the protection of Article 10 of the Convention may differ greatly from one Contracting State to another. The competent national authorities are better placed than the European Court to assess the matter and should therefore enjoy a wide margin of appreciation in this respect. Id.

245 Id. at 221.

246 Id.

610

The Privy Council Board dismissed the Gleaner’s attorneys’ arguments that they had been denied the opportunity to prove the facts because the Court of Appeal had struck out their defense, as a simple repetition of the libel under cover of absolute privilege. 247 Lord Hoffman said that this argument simply underlined the need to make the damages large enough to proclaim the libel baseless if it reemerged. The Privy

Council Board also dismissed the Gleaner’s attorneys’ argument that the high level of damages would unconstitutionally threaten freedom of speech, noting that the Court of

Appeal, in reducing the damages, had in mind the constitutional protection of speech.248

The issue was not one of free speech Hoffman said, since all parties had accepted that the publication was wrongful.249 That being the case, Hoffman said that the only question was whether the damages were more than necessary to compensate the plaintiff, a decision which the Privy Council did not want to interfere with.

The appeal was dismissed.

7.6 Appeal to the Inter-American Convention on Human Rights

Dr. Dudley Stokes, the one-time Gleaner editor and second defendant in the

Abrahams case, brought a petition before the Inter-American Commission of Human

Rights for review of the Privy Council’s decision.250 On October 14, 2004 the I-ACHR agreed to admit the case for review by the Inter-American Court of Human Rights. The case is still pending before the Inter-American Court.

247 Id. at 222.

248 Id.

249 Id.

250 Admissibility Dudley Stokes, Jamaica, Petition 28/04, Inter-Am. C.H.R.), Report No. 65/04, OEA/ (2004) http://cidh.oas.org/annualrep/2004eng/Jamaica.28.04eng.htm (last visited Nov. 3, 2005).

611

Article 13 of the Inter-American Convention provides for freedom of speech in the following words:

(1) “Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers either orally, in writing in print in the form of art or through any other medium of one’s choice.”

(2) “The exercise of the right provided for in the forgoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:

(a) Respect for the rights or reputations of others; or

(b) The protection of national security, public order, or public health or morals.251

In his petition filed on January 14, 2004, Stokes had alleged that his right to freedom of speech under article 13 of the Convention had been violated by the Jamaican courts because of the “unprecedented” award of libel damages made to Abrahams against himself and the Gleaner Co.252 He noted that the size of the award would have “a chilling effect” on freedom of expression.253

Jamaica argued in its response that Stokes had not exhausted all his domestic remedies before appealing to the Inter-American Commission and that article 13 did not permit Stokes to argue that the amount of damages awarded to Abrahams was a restriction on free speech.254

251 American Convention on Human Rights, “Pact of San Jose, Costa Rica,” http://www.oas.org/juridico/english/Treaties/b-32.htm (last visited Nov. 4, 2005).

252 Dudley Stokes, supra at ¶ 2.

253 Id. See also at paras. 7, 8, 9, 11 & 13. Amicus curiae briefs were submitted on behalf of Stokes’ petition from Freedom House (February 26, 2004), Nation Corporation of Barbados (March 8, 2004), the Inter-American Press Association (April 6, 2004), the Committee to Protect Journalists (April 30, 2004), and the Associated Press, Bloomberg News, Dow Jones & Co., Inc., Gannett Company, Inc., the Hearst Corporation, NYP Holdings, Inc., The New York Times Company, Reuters America LLC and the Washington Post (July 1, 2004).

254 Stokes, supra at ¶ 3.

612

Stokes’ Case

Stokes disagreed with the lawyers for Jamaica, arguing that domestic remedies had been exhausted and the Privy Council’s decision violated articles 1(1),255 2256 and 13 of the Convention.257 Stokes noted that he had appealed the damage award all the way to the

Judicial Committee of the Privy Council, the highest appellate court in the Jamaican legal system.258 Although he admitted that he had not appealed the January 24, 1994 Court of

Appeal decision striking the defenses of justification and qualified privilege, he said that such an appeal would be “needless and counterproductive to his interests and those of the

Gleaner Company.”259

He argued that at the time of the Court of Appeal’s decision, the law of qualified privilege was less developed in Jamaica than the rest of the Commonwealth Caribbean.

This implied that there might be no arguable legal grounds for appeal under Jamaican law, thus his avenue for appeal was exhausted and he had to refer the case to the

American System of Human Rights. His lawyers also suggested that an appeal might

255 Id. at ¶ 14. American Convention on Human Rights art. 1(1) provides:

The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. Id.

256 Stokes, supra at ¶ 14. American Convention on Human Rights art. 2 provides:

Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms. Id.

257 Stokes, supra at ¶ 14.

258 Id. at ¶ 29.

259 Id. at ¶ 30.

613 result in an even larger award of damages since, under Jamaican law, pleas of justification could be seen as constituting an aggravation.260

Stokes’ attorneys argued that although there had not been a separate constitutional motion before the Jamaican courts, the constitutional issues were addressed in the appeals261 and taken into account in the judgment.262 While a constitutional issue could be raised as an interlocutory matter at any time during the trial or appeals, a party was not entitled to file a separate motion to argue an issue that had already been exhausted in the courts, the lawyer argued.263 Thus, they argued, since the constitutional issue had been discussed by the Court of Appeal and the Privy Council, Stokes could not pursue the issue on a motion in the internal Jamaican courts.264

Attorney Claudio Grossman, who appeared on behalf of Stokes, also claimed that the government of Jamaica had violated Stokes’ rights to free expression under the provisions in articles 13,265 1(1)266 and 2267 of the Convention for four reasons.268

Grossman argued that Jamaica had violated the proportionality requirement in article 13,

260 Id.

261 Id. at ¶ 31, 32 and 33. The lawyers noted that both justices Forte and Langrin had made reference to § 22 of the Jamaican constitution and the Privy Council had also specifically referred to constitutional provisions.

262 Id. at ¶ 33.

263 Id. at ¶ 34.

264 Id.

265 American Convention on Human Rights art. 13 provides for freedom of expression.

266 See American Convention on Human Rights art. 1(1), at note 255, supra.

267 See American Convention on Human Rights art. 2 at note 256, supra.

268 Stokes, supra at ¶ 35.

614 by “ordering exorbitant damages.”269 Specifically he noted that under article 13,

“subsequent impositions of liability” should not restrict free speech protection “more than strictly necessary” and the restriction should be in proportion to “the interest that justifies it and it must be strictly adapted to the attainment of that legitimate objective.”270

In addition Stokes’ lawyers argued that the Jamaican courts did not apply the

“actual malice” test although the Inter-American Commission had said in Herrera-Ulloa v. Costa Rica (La Nación)271 that this test was applicable in determining civil liability for libel under the article 13 guarantee of freedom of speech.272 The test required proof that

“in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news.”273 Stokes’ attorneys argued that no proof was provided to substantiate a finding that the Gleaner had acted with actual malice.274

A third reason why Stokes’ attorneys argued against the damage award was that imposing liability on a newspaper for reproducing information from a reputable third-party publication such as the Associated Press was a “direct restriction on freedom of expression,” had a chilling effect on speech and imposed a requirement of third person

269 Id. at ¶ 36.

270 Id. at ¶ 36.

271 See Mauricio Herrera Ulloa v. Costa Rica (La Nación), Inter-Am. Ct. H.R., (Sept. 7, 2001).

272 Report No. 65/04 Inter-American Commission on Human Rights, supra at para. 37.

273 Id.

274 Id.

615 censorship on Jamaican journalists. This, they argued, was inconsistent with article 13(3) which prevented the restriction of the right to freedom of speech by indirect means.275

Finally, Stokes attorneys argued, the libel judgment against Stokes and the Gleaner

Co. undermined the “interest and right of the Jamaican populace to be informed of actions of their public officials,” and ignored principle 11 of the Declaration of Principles on Freedom of Expression that public officials, because of their positions, should justifiably be “subject to a greater degree of criticism and scrutiny for their actions.”276

Jamaica’s Case

Jamaica, in its response to Stokes’ case, submitted that Stokes had not exhausted the domestic remedies available to him because he had not brought a separate constitutional motion before the Jamaican courts alleging a violation by the government of Jamaica and requesting redress.277 Exhaustion of domestic remedies was required by the Convention before cases could be reviewed by the Commission. Article 46(1)(a) of the Convention stated:

Admission by the Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall be subject to . . . requirements . . . that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law.

Jamaica’s lawyers noted that the substance of Stokes’ claim concerned freedom of speech which was constitutionally protected,278 and under section 25 of the Jamaican

Constitution, individuals could file constitutional motions with domestic courts where

275 Id. at ¶ 38.

276 Id. at ¶ 39.

277 Id. at ¶ 40.

278 Id. at ¶ 41. JAM. CONST., § 22(1).

616

they believed their constitutional rights had been denied them.279 Thus, since no motion should have been brought specifically relating to constitutional issues, they argued that

the petition was premature.280

Attorneys for Jamaica also argued that the petition was inadmissible because of article 47(b) of the Convention which required a petition to be dismissed if it did not produce facts establishing that the Convention had been violated.281 They noted that the

Jamaican courts had tried to “promote and protect the right to freedom of expression” as

provided for in the Convention and the Jamaican Constitution, within certain

parameters.282 Article 13(2) of the Convention also expressly allowed subsequent

imposition of liability where necessary “to ensure . . . respect for the rights or reputations

of others.”283 They noted that neither article 13(2) nor (3) mentioned the amount of damages awarded in libel cases as a factor that would limit freedom of speech.284 They noted that since there was no provision included in article 13 of the Convention to limit

279 Report No. 65/04 Inter-American Commission on Human Rights, supra at ¶ 43. See JAM. CONST. § 25 “if any person alleges that any of the provisions in sections 14 to 24 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress.”

280 Report No. 65/04 Inter-American Commission on Human Rights, supra at para. 41. The state relied on the Commission’s admissibility decision in the 2002 Panamanian case of Report No. 71/02, Admissibility Petition 12.360, Santander Tristan Donoso, http://www.cidh.org/annualrep/2002eng/Panama.12360.htm (last visited May 7, 2006), where the Inter-American Commission had noted the that allowing local appeals courts to exhaust the case would facilitate the government in resolving issues raised within its own legal framework before bringing the action before an international body. Id. at ¶ 44.

281 Stokes, supra at ¶ 45. American Convention on Human Rights art. 47(b) provides that a petition could be dismissed where it “does not state facts that tend to establish a violation of the rights guaranteed by this Convention;”

282 Stokes, supra at ¶ 45.

283 Id. at ¶ 46.

284 Id. at ¶ 47.

617 libel awards as a means to protect free speech, the Inter-American System had no authority to do this.285

Lawyers for Jamaica further submitted the amount of damages awarded in libel cases should not be seen as one of the “indirect methods or means” used to restrict the right to freedom of expression which article 13(3) prohibited. The attorneys noted that the article specifically referred to the abuse of government controls over newsprint.286 The lawyers also noted that so long as there was no executive abuse of the legal system, it could not be argued that the amount of damages awarded by independent courts would be a breach of Article 13(3).287 Jamaica, thus, submitted that the ejusdem generis principle should be applied in interpreting article 13(3) of the Convention. The ejusdem generis principle is a rule in statutory interpretation that provides that where specific examples are given in the text of the statute, general words that follow them should be interpreted as being restricted to the specific examples given.288

Finally, the lawyers for Jamaica argued that the commission could not require

Jamaica to “erase all the consequences deriving from” the Privy Council decision in

Abrahams since this would be contrary to separation of powers since it required the executive to set aside a ruling by the judiciary.289

285 Id.

286 Id. at ¶ 48.

287 Id.

288 MERRIAM WEBSTER’S LEGAL DICTIONARY OF LAW, 1996, FIND LAW.COM, http://dictionary.lp.findlaw.com/scripts/results.pl?co=dictionary.lp.findlaw.com&topic=fc/fcd664e0fa9f0fd f9c3954d40f8821a1 (last visited May 7, 2006).

289 Stokes, supra at ¶ 50.

618

Commission’s Decision

After hearing the arguments from both sides and considering the issues, a 5 to 2 majority of commissioners on the Inter-American Commission decided that the Stokes case was admissible for review of the breach of articles 13, 1(1) and 2.290

Article 13 protects freedom of expression. Article 2 provides:

Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the State Parties undertake to adopt, in accordance with their constitutional processes and provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.291

Admissibility

The commission noted that any act or omission of any organ of the state would be sufficient to engage the international responsibility of the state.292 In Stokes’ case the violation committed by the judiciary in issuing an excessive damage award against

Stokes engaged Jamaica’s international responsibility, the commission decided.293

Stokes had locus standi to bring the petition under article 44 of the Convention since he had been named as co-defendant with the Gleaner Co., and therefore, it followed, he was jointly liable in his personal capacity to pay the damages awarded to

Abrahams. 294 Thus, Stokes would be considered a victim if the commission decided that

290 Id. at ¶ 1, of holding. President Jose Zalaquett, First Vice President Clare K. Roberts, Second Vice President Susana Villaran, and commissioners Paulo Sergio Pinheiro and Florentin Melendez agreed with the majority decision. Commissioners Evelio Fernandez Arevalos and Freddy Gutierez Trejo dissented.

291 American Convention at art. 2.

292 Id. at ¶ 52.

293 Id. at ¶ 53.

294 Id. American Convention on Human Rights art. 44 provides:

619 the damages award was in violation of the Convention. On the other hand, because

Jamaica had ratified the Convention on August 7, 1978 and was a party to it, the commission had the competence to determine the petition.295

Thus, the commission decided it had the authority to address the petition.296

Exhaustion of Domestic Remedies

Next, the commission turned to the question of whether domestic remedies had been exhausted to warrant an appeal to the Inter-American System.

The commission noted that, along with the Inter-American Court of Human Rights, it had consistently underlined its “reinforcing and complementary” status in the

Inter-American system as provided for in article 46(1)(a), which ensured that cases should be exhausted in the domestic courts before appeals were allowed in the international court system.297 However, the commission noted that it was clear in the judgment of both the Court of Appeal and the Privy Council in the Abrahams case that

Stokes and the Gleaner Co. had raised the constitutional issue of freedom of expression and the courts had “considered and ruled on them.”298

The commission noted that in claiming non-exhaustion, Jamaica had a responsibility to prove that additional domestic remedies were still open to Stokes and

Any person or group of persons, or any nongovernmental entity legally recognized in one or more member states of the Organization, may lodge petitions with the Commission containing denunciations or complaints of violation of this Convention by a State Party.

295 Stokes, supra at ¶ 54. The Commission had competence since there had been an alleged violation of rights under the Convention (Id. at ¶ 54), Jamaica had a duty to respect and ensure rights in the Convention (Id. at ¶ 55) and the petition alleged violations of the human rights that the Convention protected (Id. at ¶ 56).

296 Stokes, supra at ¶ 57.

297 Id. at ¶ 59.

298 Id. at ¶ 63.

620 such remedies were “adequate and effective.”299 The commission noted that “adequate domestic remedies are those which are suitable to address an infringement of a legal right” while effectiveness related to the ability of “a particular remedy to produce the result for which it was designed.”300 The commission found that Jamaica had not demonstrated why a constitutional motion before the Supreme Court would be an adequate and effective remedy in a situation where the two higher courts had already ruled on the constitutional issues.301 Thus, the commission decided that the constitutional issues had been exhausted in the domestic courts.302

Whether the Jamaican Court’s Decision Violated Stokes’ Rights

The commission next had to determine whether the facts alleged by Stokes established a violation of the rights in the Convention as provided for under article 47(b) or if the petition should be dismissed as “manifestly groundless” or “obviously out of order” under article 47(c).303

Article 27 of the commission’s Rules of Procedure requires that petitions provide facts “regarding alleged violations enshrined in the American Convention on Human

299 Id. at ¶ 69.

300 Id.

301 Id.

302 Id. at ¶ 70. The commission also noted that under art. 46(b) of the American Convention, before a petition could be admitted it had to be lodged within a period of six months from the date of the final judgment in the domestic jurisdiction which was said to be in violation of his rights. See ¶ 72. Since the petition in the case was lodged with the commission on January 14, 2004, exactly six months after the Privy Council’s July 14, 2003 decision it met the requirements of the article. Id. at ¶ 73. See also ¶ 74. The commission also noted that art. 46(1)(c) required that the subject of a petition should not be pending before any other international body, and art. 47(d) required that the petition should not be substantially the same as one already determined by the commission or another international organization. The commission noted that, based on all the facts before it, it did not appear that the either of these factors were in place. Id. at ¶ 75.

303 Id. at ¶ 76.

621

Rights and other applicable instruments.” Article 34(a) also provides that where a petition does not state facts establishing a violation of rights the commission was required to dismiss it. 304

The commission noted that the standard used to decide whether these 2 factors were in place would be determined by a prima facie evaluation to see whether the facts in the petition tended to establish a “potential or apparent violation” of a right protected by the Convention, rather than establishing “the existence of a violation.”305 Thus, the aim was not to issue an opinion on the merits of the case. The Commission noted that this procedure had been determined in the Rules of Procedure for the commission which distinguished the admissibility phase for the merits phase.306

Stokes’ attorneys had alleged that the Jamaican courts had violated his rights under section 13 by violating the proportionality requirement that the award be proportional to the injury. They also argued that the Jamaican courts had violated his rights by not applying the “actual malice” test, imposing subsequent liability on a third-party publication and ignoring principle 11 of the Inter-American Declaration of Principles of

Freedom of Expression. The commission noted that it had to determine the scope of possible liability for libel under article 13. The commission recognized that there were questions of law to be determined in the merits phase of the case, and held that the arguments showed that the petition was neither “manifestly groundless” nor “obviously

304 Id. Article 34(a) also provides that where a petition did not state facts establishing a violation of rights the commission was required to dismiss it.

305 Stokes, supra at ¶ 77.

306 Id.

622 out of order”307 under articles 47(b)308 and (c).309 Thus, the criteria which allowed a case to be admitted for review had been met.310

The commission decided to admit the petition.

The Dissent

Commissioners Freddy Gutierrez Trejo and Evelio Fernandez Arevalos both dissented.311Gutierrez Trejo wrote his dissent.

Gutierrez Trejo disagreed that the commission was competent to “take cognizance of, examine, and decide on conflicts between private individuals” in relation to civil legislation and involving the calculation of damages to reputation and property. He also did not agree that the facts showed Stokes and the Gleaner Co. as victims, and in fact, noted that they “could be termed as offenders” who had violated article 11 of the

Convention which provided:312

• Everyone has the right to have his honor respected and his dignity recognized. • No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.

307 Id. at ¶ 78.

308 American Convention on Human Rights art. 47(b) provides:

The Commission shall consider inadmissible any petition or communication submitted . . . if . . . the petition or communication does not state facts that tend to establish a violation of the rights guaranteed by this Convention. . . Id.

309 American Convention on Human Rights art. 47(c) provides:

The Commission shall consider inadmissible any petition or communication submitted . . . if . . . the statements of the petitioner or of the state indicate that the petition or communication is manifestly groundless or obviously out of order . . . Id.

310 Report No. 65/04 Inter-American Commission on Human Rights, supra at para. 79.

311 President Jose Zalaquett, First Vice President Clare K. Roberts, Second Vice President Susana Villaran, and commissioners Paulo Sergio Pinheiro and Florentin Melendez agreed with the majority decision.

312 Dissenting opinion by Commissioner Freddy Gutierrez Trejo, 14.

623

• Everyone has the right to the protection of the law against such interference or attacks.

Gutierrez Trejo noted that the Jamaican courts had decided that Stokes and the

Gleaner Co. had insulted Abrahams by “accusing him without evidence of collecting clandestine commissions.”313 He said the commissioners should bear in mind the fact that the truth of the story published in the Gleaner could not be proved in a manner consistent with legal procedure for providing proof and could not be sustained to the end of the proceedings. This was the circumstance in which the Jamaican court held that Stokes and the Gleaner Co., “the aggressors,” should pay compensation for the damage caused.314

Although article 13 of the Convention protected freedom of speech as a right, it was not absolute, the commissioner said. He noted exceptions ranging from preventing harm to minors, advocacy of violence, inciting war or undermining public order as well as protecting harm to reputation in conformity with article 11.315

When read in conjunction, Gutierrez Trejo noted that articles 11 and 13 aimed at protecting values ranging from “honor, honorableness, and the good name of persons.”316

He said that

under no circumstances do they permit making a mockery, through libel, calumny and insults, of the dignity and decorum of persons going about their business in society, because actions of that nature incur subsequent liabilities or legal consequences. Any other interpretation would imply that anybody can say whatever

313 Dissenting opinion by Commissioner Freddy Gutierrez Trejo, 14. He also noted that Stokes had admitted that he attacked Abrahams and apologized for it.

314 Id.

315 Id.

316 Id. at 14-15.

624

he or she likes about anyone else without those statements having any consequences. That would mean accepting impunity.317

Secondly, he contended that domestic remedies had not been exhausted before the matter was brought before the commission, because Stokes had not brought the constitutional motion which the Jamaican legal procedure provided for.318

Finally, Gutierrez Trejo said that the facts of the case did not support a possible finding that the damage award issued by the Jamaican courts in Abrahams curtailed the freedom of reporters, or the media to do their job. Nor did the award curtail any of the other rights protected by the Convention. He noted that it could be interpreted that, by agreeing to review the award, the commission was, in fact, protecting profit-making corporations since the Gleaner Co. owned three newspapers. The Gleaner Co. had also been joined by the Inter-American Press Association (IAPA), Dow Jones Co. Inc., the

Hearst Corporation, and the New York Times Co. in the action. While corporations were entitled to carry on the business in which they were employed, Gutierrez Trejo said, it was unacceptable “to violate internationally agreed upon norms, ratified by states through the domestic procedure” provided in legislation. He noted that a judgment that established compensation for damages conformed with the provisions of article 13 regarding subsequent imposition of liability.319

317 Id. at 15.

318 Id. He noted that Stokes had acknowledged that he could have brought the action but was afraid his damages would be increased because Jamaican legislation regarded arguments justifying the libel as aggravating factors.

319 Id.

625

7.7 Conclusion

Until the final decision of the Inter-American Court in Stokes, the issue of whether the actual malice standard will be applied in Caribbean cases is still uncertain. The Privy

Council, Jamaica’s final court of appeal, though not specifically referring to the issue has not imposed the actual malice standard. This is not surprising since the English House of

Lords, composed of the same justices, has specifically rejected this principle in Reynolds v. Times Newspapers.320

Nonetheless the Privy Council has not sought to impose English standards in determining libel damages in the Caribbean and has followed the lead of the damages awarded by Caribbean courts of appeal in both Abrahams and the later Privy Council case discussed in Chapter 5, Panday. The Caribbean law as interpreted by Caribbean courts does not apply the actual malice standard. Additionally, in recent years, the

Caribbean courts have increasingly awarded large damages for libel cases.

However, the Inter-American Court of Human Rights has, in a 2004 decision, supported the actual malice standard and objected to the imposition of high damage awards in public figure libel cases.321 Although, the Inter-American Court did not specifically adopt the “actual malice” standard in the Herrera-Ulloa v. Costa Rica decision, it very strongly advocated the adoption of the actual malice test in interpreting the article 13 protection of freedom of speech in the Inter-American Convention. If the

Inter-American Court’s decision in the Jamaican case falls in line with the Herrera-Ulloa decision the effect could be to impose the actual malice standard in Jamaican cases. Since

320 [1999] 4 All ER 609.

321 Herrera-Ulloa v. Costa Rica, 2004, Inter-Am. Ct. H.R. (ser. C) No. 107 (July 2, 2004).

626

Jamaica is a signatory of the American Convention and has recognized the competence of the Inter-American Court, the court’s decision will be binding on Jamaica.

In Chapter 9 there will be a discussion on the Inter-American Court’s 2004 decision.

CHAPTER 8 CRIMINAL LIBEL IN THE CARIBBEAN: THE GEORGE WORME CASE

8.1 Introduction

After a January 2004 decision by the Privy Council, the highest court of appeal for

Grenada and the other British Caribbean countries, that criminal intentional libel laws contained in the Grenadian Criminal Code are constitutional and justifiable in a democratic society, George Worme, the editor of a weekly Grenadian newspaper,

Grenada Today, is expected to be prosecuted for criminal libel.1 If convicted of criminal intentional libel, which is defined in the Grenadian Code as the publication of a defamatory matter about another person “with intent to defame that person,”2 Worme could face up to two years in jail.3

This chapter, in tracing the Privy Council’s decision in the George Worme case, will discuss the use of seditious libel and criminal libel laws in the United States and the

Caribbean and its implications for freedom of speech.

In section 8.2 the author traces the legal position on criminal libel laws in the

United States. Section 8.3 discusses statutory protection and past prosecutions for seditious and criminal libel in the British Caribbean. Section 8.4 delineates Grenada’s recent history. In section 8.5 the author traces the origins of the George Worme case and

1 George Worme & Grenada Today Ltd. v. Commissioner of Police of Grenada, [2004] UKPC 8 in (2003) 63 W.I.R. 78.

2 Grenada Criminal Code § 253.

3 See Grenada Criminal Code, § 252(2).

627 628 the factors leading up to it, along with the arguments made by the parties to the Privy

Council and the Privy Council Board’s discussion on the right to freedom of speech.

Section 8.6 examines the Privy Council Board’s decision on the substantive issues of the case including the burden of proof and whether the proof of truth or falsity was too onerous, the parameters of the defense of qualified privilege in criminal libel cases, the constitutionality of laws that allowed criminal intentional libel actions and their applicability in democratic societies. In section 8.7 there is a discussion on the effects of the Worme decision in Grenada and the Caribbean. In section 8.8 the chapter will be concluded with a discussion about the implications of the decision for freedom of speech in Grenada and the Caribbean.

8.2 Seditious Libel and Other Criminal Laws in the United States

From its independence in the late nineteenth century to the 1960s, when the U.S.

Supreme Court declared their unconstitutionality, seditious and criminal libel laws have existed in the United States. The first set of these was the Alien and Sedition Acts passed by a largely Federalist Congress in the United States on July 4, 1798.4 As the federalist press spread stories of the possibility of French invasion,5 the federalist government took advantage of the hysteria which resulted to pass the Sedition Act, which effectively criminalized any criticism of the government.67 Section 2 of the Act provided:

4 LEONARD LEVY, EMERGENCE OF A FREE PRESS 255 (1985).

5 See MICHAEL KENT CURTIS, FREE SPEECH, THE PEOPLE’S DARLING PRIVILEGE”: STRUGGLES FOR FREEDOM OF EXPRESSION IN AMERICAN HISTORY 60 (2000) for the position that in 1798 the French, affronted by a treaty between the U.S., their ally, and Britain began to attack U.S. shipping to prevent supplies going to Britain. When a mission was sent to France to resolve the impasse, the French foreign minister Tallyrand demanded a loan and a disavowal of parts of a speech made by President John Adams. This led to “a backlash” against the French. Id. Federalists were pressing for war and this led to an “undeclared naval war” between the countries. Id.

6 LEVY, supra at 298. As President John Adams expressed it, “tongues and pens of slander” were “instruments with which our enemies expect to subdue our country.” CURTIS supra. at 61.

629

[I]f any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.8

Between 1798 and 1800 when it was repealed, the Alien and Sedition Act was used to prosecute several journalists and persons opposed to the government.

Matthew Lyon, an Irish Republican congressman from Vermont, was the first person to be indicted under the act.9 When Spooner’s Vermont Journal, a federalist newspaper, criticized Lyon for opposing the federalist’s military intentions, Lyon wrote a reply to the editor on June 20, 1798, quoting Joel Barlow, an American poet living in

France.10 Lyon had rejected the position that the president was entitled to unquestioning loyalty and wrote:

As to the Executive, when I shall see the efforts of that power bent on the promotion of the comfort and happiness, and accommodation of the people, that executive shall have my zealous and uniform support: but whenever I shall, on the part of the Executive, see every consideration of the public welfare swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish

7 CURTIS, supra. at 61.

8 THE ALIEN SEDITION ACT, http://www.law.ou.edu/hist/sedact.html (last visited Apr. 28, 2004).

9 CURTIS, supra. at 80.

10 Id. at 81.

630

adulation, and selfish avarice; when I shall behold men of real merit daily turned out of office, for no other cause but independency of sentiment; when I shall see men of firmness, merit, years, abilities, and experience, discarded in their applications for office, for fear they possess that independence, and men of meanness preferred for the case with which they take up and advocate opinions, the consequence of which they know but little of—when I shall see the sacred name of religion employed as a state engine to make mankind hate and persecute one another, I shall not be their humble advocate.11

The part of the Barlow letter Lyon reproduced read in part:

But when we found [President Adams] . . . telling the world that, although he could succeed in treating with the French, there was no dependence to be placed on any of their engagements, that their religion and morality were at an end, that they would turn against them, though you were at peace; we wondered that the answer of both Houses had not been an order to send him to a mad house. Instead of this the Senator had echoed the speech with more servility than ever George III experienced from either House of Parliament.12

This letter was written 24 days before the Sedition Act was passed on July 14 of the same year. Once the act was passed, Lyon was indicted for publishing the article with the intention of stirring up sedition and bringing “the President and government of the United

States into contempt.”13

When Lyon appeared in the Vermont Circuit Court before Justice William Paterson of the United States Supreme Court, and Judge Samuel Hitchcock on October 6, 1798,

Lyon is reported to have observed repeatedly that the jurors were brought from towns known to be inimical to him.14 He was convicted after only one hour’s deliberation and

11 FRANCIS WHARTON, STATE TRIALS OF THE UNITED STATES DURING THE ADMINISTRATIONS OF WASHINGTON AND ADAMS WITH REFERENCES, HISTORICAL AND PROFESSIONAL AND PRELIMINARY NOTES ON THE POLITICS OF THE TIMES 333 (1849).

12 Id. at 334.

13 Id. at 333.

14Lyon’s Case, 15 F. Cas. 1183; 1798 U.S. App. LEXIS 37. at note 5.

631

sentenced to four months imprisonment, the costs of prosecution and a fine of $1,000. He

was to be committed to jail until the fine was paid.15

Lyon was the first of several Republicans convicted or charged under the Sedition

Act. William Duane, editor of a Philadelphia newspaper, Aurora, was charged on three

occasions under the act,16 William Durrell was sentenced to four months in prison and fined $50 for reprinting an article from the New Windsor Gazette,17 and Charles Holt of the Connecticut paper the Bee was sentenced to three months in prison and a $200 fine

for printing “a caustic comment on the moral character and influence of the Army.”18 In

1799 David Frothingham, a journeyman printer, was sentenced to four months in prison,

a $500 fine and imprisonment for up to two additional years until he could provide surety

in $1,000.19 James Callender, editor of the Richmond Examiner, was also tried and convicted in 1800 for criticizing Adams and sentenced to a $200 fine and nine months imprisonment.20

15 Id. at 3.

16 JAMES MORTON SMITH, FREEDOM’S FETTERS: THE ALIEN AND SEDITION LAWS AND AMERICAN CIVIL LIBERTIES 93 (Cornell University Press, 1956). The first time was for an affray when federalists objected to his circulation of a petition against the Alien and Sedition Acts in a church yard from which he was acquitted. Id. The second time was in 1799, when he said there was “improper British influence on the State Department.” This action was dropped when Duane said he had a letter from Adams making this charge. Id. The final action was for publishing the text of a bill in breach of their privilege. He wasn’t apprehended until Jefferson was president and he was pardoned. Id.

17 See SEDITION: THE CASES, http://www.class.uh.edu/comm/comm_law/federalist_era/listofcases.html (last visited Oct. 20, 2004). He was later pardoned by Adams.

18 Id.

19 WHARTON, supra. at 651.

20 Id. at 688–691, 718. in a book entitled The Prospect Before Us, Callender charged Adams with trying to destroy any opposition, imposing heavy taxes to build an army to fight the French, and not allowing anyone to disagree with him. Callender’s book also accused Adams of cooperating with Britain, the enemy, with an aim of defeating the French. It accused him of being petty, pompous, prejudiced and deliberately inciting a war with France that would be disastrous. He was tried in the Virginia Circuit Court by Justice Samuel Chase.

632

In 1800, Thomas Cooper, editor of the Northumberland Gazette in Pennsylvania, was sentenced to six months under the act for libels against the President.21 After unsuccessfully seeking a position in the newly-elected Adams administration, Cooper became a Jeffersonian and Republican publicist. However, when he criticized the administration, Adams published Cooper’s application for employment and painted an image of him as a disgruntled reject.22 This spurred Cooper’s reply in October, 1799, which read in part:

Nor do I see any impropriety in making this request of Mr. Adams. At that time he had just entered into office; he was hardly in the infancy of political mistake; even those who doubted his capacity thought well of his intentions. Nor were we yet saddled with the expense of a permanent navy, or threatened, under his auspices, with the existence of a standing army. Our credit was not yet reduced so low as to borrow money at eight per cent, in time of peace, while the unnecessary violence of official expressions might justly have provoked a war. Mr. Adams had not yet projected his embassies to Prussia, Russia and the Sublime Porte, nor had he yet interfered, as President of the United States, to influence the decisions of a court of justice—a stretch of authority which the monarch of Great Britain would have shrunk from—an interference without precedent, against law and against mercy. This melancholy case of Jonathan Robbins, a native citizen of America, forcibly impressed by the British and delivered up with the advice of Mr. Adams to the mock trial of a British court-martial, had not yet astonished the republican citizens of this free country; a case too little known, but of which the people ought to be fully apprised, before the election, and they shall be.23

Cooper was indicted and charged with publishing a “false, scandalous and malicious attack on the character of the President of the United States.”24 When Cooper appeared in the Pennsylvania Circuit Court before U.S. Supreme Court Associate Justice

Samuel Chase and Judge Richard Peters, he requested the attendance of several members

21 Id. at 89.

22 Id.

23 Id. at 659.

24 Id. at 662.

633 of congress25 and the president as witnesses.26 Chase denied the request, holding that in a prosecution for libel against the president, the latter could not be compelled to attend to answer questions put to him by the libeler as this would be improper and indecent.27

Denied the benefit of this evidence, the jury returned a verdict of guilty against Cooper.

Cooper refused to speak to any mitigating circumstances since he said, “not being conscious that I have set down aught [sic] in malice, I have nothing to extenuate.”28 The court sentenced Cooper to a fine of $400 and six months imprisonment. Under the sentence at the end of his imprisonment Cooper had to post $1,000 personal surety and two other sureties amounting to $500 each for his good behavior.

Ultimately the Alien Sedition Act was repealed when the horror of the prosecutions under the act hit the conscience of the American public. The trial of Lyon, a high-profile

Republican who was popular among his constituents, highlighted the unjustness of the

Alien Sedition Act. The response to the Alien Sedition Act, which was based on the premise that the government was master rather than the people’s servant, sent the strong message that the people were in charge.29 The First Amendment had abolished the

English common law crime of seditious libel and the American public was incensed that

Adams’ government had used the guise of war with France to re-install it.30 Their

25 Id. at 661. Judge Peters had agreed to allow Cooper to write a letter to the Speaker of the House to serve process, but Judge Chase refused it. Id. at 662.

26 Id. at 661.

27 Id.

28 Id.

29 SMITH, supra., at 431.

30 Id.

634 disenchantment became clear when Republican candidate Thomas Jefferson won the presidential election in 1800.31

In his inaugural speech, Jefferson said:

If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it. I know, indeed, that some honest men fear that a republican government can not be strong, that this Government is not strong enough; but would the honest patriot, in the full tide of successful experiment, abandon a government which has so far kept us free and firm on the theoretic and visionary fear that this Government, the world’s best hope, may by possibility want energy to preserve itself? I trust not. I believe this, on the contrary, the strongest Government on earth. I believe it the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern. Sometimes it is said that man can not be trusted with the government of himself. Can he, then be trusted with the government of others? Or have we found angels in the forms of kings to govern him? Let history answer this question.32

During his presidency, Jefferson pardoned all the victims of the sedition act who were in jail.33 The sedition act had been passed because of the fear of national security in a war against France. In the twentieth century, the Supreme Court has also struggled with the issue of whether speech critical of government and government war efforts can be proscribed when the nation is at war. In several cases during the World War I era the

Supreme Court upheld statutes that sought to use criminal laws to restrict speech.

Thus, in 1949, in Beauharnais v. Illinois,34 the Supreme Court upheld the constitutionality of a criminal libel statute and the conviction of Joseph Beauharnais for

31 Id. at 432.

32 Id. at 433.

33 WHARTON, supra., at 719.

34 343 U.S. 250 (1952).

635

utterances promoting friction amongst racial and religious groups.35 The United States

Supreme Court found that a statute prohibiting negative images of persons of “any race, color, creed or religion” did not contravene the free speech guarantee imposed on states under the due process clause in the Fourteenth Amendment to the Constitution.36 The

U.S. Supreme Court held that libelous utterances were not protected by the Constitution

and rejected Beauharnais’ argument that failure to instruct the jury that the publication

should be likely to produce a “clear and present danger” of a substantive evil before they

could convict under the statute nullified the decision.37

However, on November 23, 1964, approximately nine months after the March 9

decision in New York Times v. Sullivan, the Supreme Court decided in Garrison v.

Louisiana38 that a Louisiana criminal defamation statute that did not incorporate the

35 In this case Joseph Beauharnais distributed literature portraying blacks in a negative manner and calling on city officials to halt “the invasion of white people, their property, neighborhoods and persons by black people.” He was convicted of group libel by the Illinois Supreme Court under the libel statute and the Supreme Court upheld the conviction.

36 Ill. Rev. Stat § 224a (1949) states:

It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision or obloquy or which is productive of breach of the peace or riots . . . Id.

37 Beauharnais, supra at 266. Although the basis of the decision was libel law, the Court also took into account Illinois’ turbulent history of racial strife and recognized that, based on this fact; Illinois lawmakers had good reason to pass the criminal libel law. Justice Felix Frankfurter said:

It would be out of bounds of the judiciary to deny the legislature a choice of policy, provided it is not unrelated to the problem and not forbidden by some explicit limitation on the state’s power. That the legislative remedy might not in practice mitigate the evil, or might, itself raise new problems, would only manifest once more the paradox of reform. It is the price to be paid for the trial-and-error inherent in legislative efforts to deal with obstinate social issues. Id. at 262.

38 379 U.S. 64 (1964). The case involved a district attorney in Louisiana who, in a press conference, accused state judges of laziness, inefficiency and said the judges were preventing efforts to enforce vice laws. A state court convicted him of violating the Louisiana Criminal Defamation Statute, which allowed the prosecution of persons for statements critical of public officials made with or without actual malice

636

actual malice standard was unconstitutional. The Supreme Court reversed the lower

court’s conviction of district attorney Jim Garrison under the statute.

In a 1966 case, Ashton v. Kentucky,39 the Supreme Court held the common law

crime of libel was unconstitutionally vague and unenforceable. In Ashton, Steve Ashton was indicted and convicted for violating the Kentucky common-law crime of criminal libel by publishing a “false and malicious publication” tending to degrade and injure three persons.40 He was sentenced to six months in prison and fined $3,000.41 The

conviction was upheld by the Kentucky Court of Appeal.42

(knowledge of falsity or reckless disregard for the truth). The Louisiana Supreme Court affirmed the conviction. The Supreme Court reversed this decision on grounds that the statute unconstitutionally allowed convictions in the case of statements published without proof of actual malice.

39 384 U.S. 195 (1966).

40 Id. Ashton wrote of Sam Luttrell, chief of police of Hazard:

Six weeks ago I witnessed a plot to kill the one pro-strike city policeman on the Hazard Force. Three of the other cops were after him while he was on night-duty. It took five pickets guarding him all night long to keep him from getting killed, but they could not prevent him from being fired, which he was three weeks ago. Another note on the city police: The chief of the force, Bud Luttrell, has a job on the side of guarding an operator’s home for $100 a week. It’s against the law for a peace officer to take private jobs. Id.

Of Sheriff Charles E. Combs, Ashton wrote:

(he) has hired 72 deputies at one time, more than ever before in history; most of them hired because they wanted to carry guns. He, Sheriff Combs, is also a mine operator . . . in a recent Court decision he was fined $5,000 for intentionally blinding a boy with tear-gas and beating him while he was locked in a jail cell with his hands cuffed. The boy lost the sight of one eye completely and is nearly blind in the other. Before the trial Sheriff Combs offered the boy $75,000 to keep out of court, but he refused. Then for a few thousand dollars Combs probably bought off the jury. The case is being appealed by the boy to a higher court . . . [and] he wants $200,000. Combs is now indicted for the murder of a man . . . voluntary manslaughter. Yet he is still the law in this county and has the support of the rich man because he will fight the pickets and the strike. The same is true of the State Police. They escort the scabs into the mines and hold the pickets at gunpoint. Id.

In relation to Mrs. W.P. Nolan, co-owner of the Hazard Herald, he wrote:

The town newspaper, the Hazard Herald, has hollered that ‘the commies have come to the mountains of Kentucky’ and are leading the strike. The Herald was the recipient of over $14,000 cash and several truckloads of food and clothing which were sent as the result of a CBS-TV show just before Christmas. The Story was on the strike and aid was supposed to be

637

The Supreme Court adopted the position of the dissenters in the Court of Appeal

that

since the English common law of criminal libel is inconsistent with constitutional provisions, and since no Kentucky case has redefined the crime in understandable terms, and since the law must be made on a case to case basis, the elements of the crime are so indefinite and uncertain that it should not be enforced as a penal offense in Kentucky.43

Justice William Douglas, speaking for the Court, noted that in past cases the

Supreme Court had reversed a conviction under a common-law crime inciting breach of

the peace by playing a phonograph record that attacked religion and church in front of

Catholics.44 The Court had also held a statute punishing utterances that stirred public anger, invited dispute and unrest as a breach of the peace was unconstitutional.45 Breach

of the peace convictions were also overturned in other cases.46

sent to the pickets in care of the Hazard Herald, however the editor, Mrs. W. P. Nolan, is vehemently against labor . . . she has said that she would rather give the incoming aid to the merchants in town than to the miners. Apparently that is what she has done, for only $1100 of the money has come to the pickets, and none of the food and clothes. They are now either still under lock and key, or have been given out to the scabs and others still. Id. at 196–197.

41 Id. at 196.

42 Id.

43 Id. at 198.

44 Id. see Cantwell v. Connecticut, 310 U.S. 296 (1940). The Court in Cantwell noted, “Here we have a situation analogous to a conviction under a statute sweeping in a great variety of conduct under a general and indefinite characterization, and leaving to the executive and judicial branches too wide a discretion in its application.” Id. at 308.

45 Ashton v. Kentucky, supra at 199. See Terminiello v. Chicago, 377 U.S. 1(1949) where the Court said, “The vitality of civil and political institutions in our society depends on free discussion. See also De Jonge v. Oregon, 299 U.S. 353, 365 (1937) where Chief Justice Charles E. Hughes wrote,

it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes . . . Accordingly, a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative

638

Douglas noted that the cases demonstrated that imposing penalties for conduct that was “calculated to create disturbances of the peace” led to vagueness in determining the standard of responsibility, leading to the need to calculate the “boiling point of a particular person” or group. This led, Douglas said, to the criminalization of people because their neighbors had no self-control to refrain from violence.47

While all vague laws were constitutionally infirm, the Court held that laws that affected First Amendment rights would be more closely observed to prevent the destruction of freedom of speech and the press.48 These laws should be “narrowly drawn to prevent” the destruction of freedom of speech.49

8.3 Tradition of Prosecution for Seditious Libel in the Caribbean

The British Caribbean, like the United States, developed within the British tradition of using criminal or seditious libel laws to punish critics of the government. The period between 1831 and 1944 in the Caribbean was a tumultuous one which began with the emancipation of the slaves in 1838 and ended with the eventual gain of universal adult suffrage in 1944. The interim years were marked by protest and uprisings as the impoverished ex-slaves struggled to attain these rights. The law of seditious libel was adopted in the British Caribbean from Britain and used to suppress movements in opposition to the government.

and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. Id.

46 Ashton v. Kentucky, supra at 200. See Edwards v. South Carolina, 372 U.S. 229, 236–268 (1963); Cox v. Louisiana, 379 U.S. 536, 551-552 (1965).

47 Ashton v. Kentucky, supra at 200.

48 Id.

49 Id. at 201. See Cantwell v. Connecticut, supra. at 308.

639

During slavery, Jamaica has been described as having more slave rebellions than anywhere else in the British Caribbean.50 The most renowned of these took place during

Christmas 1831 in West Jamaica and was led by Sam Sharpe, a leader in the Native

Baptist Church. This rebellion contributed to the emancipation proclamation three years later.51

In the period after emancipation, the 1865 Morant Bay Rebellion in the parish of

St. Thomas to the east of Jamaica was led by Paul Bogle, a deacon in the Native Baptist

Church. The Morant Bay Rebellion was aimed at gaining better wages and land for the ex-slaves.52 The rebellion was partially incited by a set of political meetings held across the island criticizing the government for a host of policies that were unfair to the poor working-class people.53 Ultimately, the ringleaders of the rebellion and the meetings were tried and executed. Sidney Levien, a Jew who owned and edited a newspaper in

Montego Bay, though acquitted of conspiracy, was charged with and sentenced to 12 months for seditious libel.54

50 GAD HEUMAN, THE KILLING TIME: THE MORANT BAY REBELLION IN JAMAICA 33 (MacMillan Press Ltd., Britain: London and Basingstoke, 1994).

51 Id. at 35–36. The Christmas rebellion had a following of 20,000 blacks and, though put down after a few days, resulted in the destruction of £1,000,000 in property and the deaths of approximately 500 slaves.

52 Id. at 137. In the process of suppressing this rebellion, the militia had to be called and 200 blacks and coloreds were executed under martial law and another 200 flogged.

53 Id. at 50. The meetings, officiated by several prominent black or colored persons in the various communities, were dubbed the Underhill meetings in honor of Edward Underhill, secretary of the Baptist Missionary Society, who wrote a letter to the Secretary of State advising him of the poor conditions of Jamaican blacks. Id. at 45.

54 Id. at 152. Levien had consistently attacked Governor Eyre’s policies and maintained that he was imprisoned because of his attacks against Eyre rather than for involvement in the Morant Bay Rebellion.

640

In the 1890s Dr. Robert Love advocated black membership in the Legislative

Council.55 Love, who influenced Marcus Garvey, to be discussed soon, fought against the system of land holding and what he said was an inequitable taxation system in his writings in the Jamaica Advocate.56 In 1898, Alexander Bedward, a preacher in the

Native Baptist Church, was charged with seditious libel for a speech he made to a crowd of some 1,000 people that allegedly advocated the overthrow of the white government by force. 57 Bedward was acquitted on the charge, but found to be mentally insane and sent to an asylum.58

In Trinidad, following a period of strikes and demonstrations between 1919 and

1920, 99 people were arrested. Of these, 82 were subsequently convicted and either fined or imprisoned for seditious activities.59 Four non-Trinidadians were deported for seditious activities.60 The Trinidad Guardian reported that the men had conspired to

“massacre whites, overthrow the government and establish a black republic.”61

55 Patrick Bryan, Black Perspectives in Late Nineteenth-Century Jamaica: The Case of Dr. Theophilus E.S. Scholes, in RUPERT LEWIS & PATRICK BRYAN, EDS., GARVEY: HIS WORK AND IMPACT 47, 60 (1991).

56 Rupert Lewis, The Question of Imperialism and Aspects of Garvey’s Political Activities in Jamaica, 1929-1930, in RUPERT LEWIS AND MAUREEN WARNER-LEWIS, EDS., GARVEY: AFRICA, EUROPE AND THE AMERICAS 79, 86 (1994).

57 Arrest of Bedward, GALL’S DAILY NEWS KINGSTON, January 23, 1895, at 3.

58 A. A. BROOKS, HISTORY OF BEDWARDISM OR THE JAMAICA NATIVE BAPTIST FREE CHURCH, UNION CAMP, AUGUSTOWN, ST. ANDREW, JAMAICA, B.W.I. 8 (Jamaica: The Gleaner Co, Ltd., Printers, Kingston, 1917), http://www.kobek.com/bedwardism.pdf (last visited May 3, 2006).

59 NIGEL BOLLAND, ON THE MARCH: LABOR REBELLIONS IN THE BRITISH CARIBBEAN, 1934–3 32 (Ian Randle Publishers, Kingston, 1995).

60 Id. Brutus Ironman (Guyana), Bruce McConney (Barbados), J. Sidney de Bourg (Grenada) and E. Sellier Salmon (Jamaica).

61 BOLLAND, supra. See TRINIDAD GUARDIAN, 21 and 28 March 1920.

641

In 1930, Marcus Garvey, the controversial civil rights leader and Jamaican who would later become Jamaica’s first national hero, was convicted of seditious libel for an article written in the Blackman, a Jamaican newspaper affiliated with the United Negro

Improvement Association.62 His conviction in the lower court was ultimately overturned in the Supreme Court for procedural reasons.63 However, the conduct of the trial and the fact of his charge is an example of one of the attempts made by the authorities to abort

Garvey’s programs to improve the conditions of black people.

More recently, in 1933 Leonard Howell, an early leader of the Rastafarian movement64 in Jamaica, was charged with sedition when he preached the divinity of and allegiance to Ethiopian Emperor Haile Selassie.65

The laws of seditious libel have been used liberally in the late nineteenth and twentieth centuries in the Caribbean to prevent attempts at black mobilization. Seditious libel statutes still exist in some islands in the British Caribbean including Trinidad and

Tobago,66 Jamaica,67 Dominica,68 St. Lucia,69 the British Virgin Islands,70 St. Kitts,

62 Garvey Sentenced For Six Months, Aikman Three Months, THE DAILY GLEANER, Feb. 22, 1930, at 1.

63 Full Court Allows Appeal of Garvey & Aikman, THE DAILY GLEANER, March 18, 1930, at 10.

64 The name “Rastafari” derives from a combination of “Ras,” the title given to royalty in Ethiopia and “Tafari,” the pre-coronation name of His Imperial Majesty Emperor Haile Selassie of Ethiopia (1898– 1975). Rastafari originated in Jamaica, born out of the depression and class discrimination during 1930. The movement was born partly out of Marcus Garvey's "Back To Africa" movement. In 1930, when Ras Tafari was crowned Emperor Haile Selassie and was given the ancient title given to all Ethiopian Kings " The King of Kings, Lord of Lords, the Conquering Lion of Judah", the prophecy was said to have been fulfilled. See JAMAICANS.COM, http://www.jamaicans.com/culture/rasta/index.shtml (last visited July 5, 2006). Rastafarians believe that God is a spirit and that this spirit was manifested in King H.I.M. Emperor Haile Selassie I. Id.

65 Rastafari as the Pan African Spiritual and Cultural Leaders, http://rastaites.com/repatriationnews/report2.htm. (last visited July 5, 2006).

66 Sedition Act, 1920 (Chap. 11:04)

67 The Seditious Meetings Act, 1836 (Cap. 354).

642

Nevis and Anguilla,71 and Antigua and Barbuda.72 Where they exist, they authorize

prosecution for seditious publications that “bring into hatred or contempt or . . . excite

disaffection against” the Queen and government73 or tempt citizens into trying to

“procure the alteration” of any lawful existing situation in the country except by legal means74 or to “excite disaffection against the administration”75 or to “raise discontent or

discontent” among citizens about the administration of justice76 or to “promote feelings

of ill-will and hostility between different classes.”77 Persons convicted in each territory are liable to pay a fine and or imprisonment ranging between six months78 and five years.79

68 Seditious and Undesirable Publications Act, 1968 (Chapter 10:03).

69 Seditious and Undesirable Publications Act, 1965 (Chapter 3:08).

70 Sedition and Undesirable Publications Act, 1938 (Cap. 70).

71 Sedition and Undesirable Publications Act, 1938 (Chapter 73).

72 The Sedition and Undesirable Publications Act, 1938 (Chapter 396).

73 See statutes for Antigua & Barbuda, St. Kitts, Nevis & Anguilla, British Virgin Islands, § 3(i); see statute for Trinidad & Tobago § 3(1)(a); see statutes for St. Lucia and Dominica § 3(1)(a).

74 Id. at § 3(ii); see statute for Trinidad & Tobago § 3(1)(b); see statutes for St. Lucia and Dominica § 3(1)(c).

75 Id. at s. 3(iii); see statute for Trinidad & Tobago § 3(1)(c); see statutes for St. Lucia and Dominica § 3(1)(c).

76 Id. at § 3(iv).

77 Id. at § 3(v); See statutes for St. Lucia and Dominica § 3(1)(f); See statute for Trinidad & Tobago § 3(1)(d) & (e).

78 See St. Lucia § 4, Dominica § 5(1) & (2) which provide for six months imprisonment for the first offense and a year for the second.

79 See the Trinidad Act § 4(2)(a) which provides that, where indicted for seditious libel, a mandatory five- year sentence will be imposed. However, if convicted summarily, the person will be liable to two years imprisonment. But cf. St. Kitts Act and St. Kitts, Nevis & Anguilla, all provide at § 8(1), and Antigua & Barbuda Act § 4(d) provides for up to three years imprisonment for dealing in seditious publications and § 8(2) and 4(e) respectively of the same acts which provide for one years imprisonment on the first conviction for possession.

643

There have been no documented convictions for seditious libel in the British

Caribbean states in post-independence years.80 The single post-independence case was R. v. Tucker,81 when the Jamaican Court of Appeal overturned counts of seditious libel.

Tucker involved a pamphlet that accused Jamaican prime minister Michael Manley, known as “Joshua” after the biblical character who led the children of Israel into the promised land, of setting up a “Communist Organisation [sic] and Machinery so that I,

Joshua, shall rule Jamaica forever.” The Court of Appeal found that there was no incitement to violence in the pamphlet. Incitement to violence was a necessary element in the common law crime of seditious libel. Justice Graham-Perkins who spoke on behalf of the Court of Appeal said:

We are by no means certain what was or were the precise object or objects the prosecution claimed the appellant was seeking to achieve by publishing these pamphlets, what is certain is that in no sense imaginable can it be asserted that the contents of these pamphlets involved an exhortation or incitement to violence.82

However, the court found that the pamphlet amounted to criminal libel. Although,

Graham-Perkins said that the article was unlikely to lead to a breach of the peace, which was a matter that should be taken into consideration in determining criminal liability in libel actions, the court, nonetheless, found the statement libelous.83 Nonetheless, the court took into account the fact that Tucker, who had been involved in local government as a mayor and parish councilor, had an “unblemished” record and the prosecution had produced no evidence to rebut his argument that he was not the author of the pamphlet.

80 MARGARET DEMERIEUX, FUNDAMENTAL RIGHTS IN COMMONWEALTH CARIBBEAN CONSTITUTIONS 245 (1992).

81 (1974) 21 W.I.R. 472.

82 Id. at 478.

83 Id.

644

The court reversed the lower court’s three-month prison sentence and imposed, instead, a

$75 fine with an alternate three-month imprisonment on default.

Most of the libel statutes in the British Caribbean countries provide for criminal libel prosecutions including fines and various terms of imprisonment. Some of the older statutes in Antigua and Barbuda (one country), Anguilla, the Bahamas, Turks and Caicos

(one country), St. Christopher and Nevis (one country), the British Virgin Islands,

Dominica, and Jamaica provide for up to three years imprisonment in cases where the defendant in a libel action used publication or threatened publication to extort money from the plaintiff.84 Some statutes provide for up to two years imprisonment in cases where a libelous statement is printed with knowledge of falsity.85 Most jurisdictions allow the courts to impose a fine for criminal libel at its discretion.86 Statutes in the

Bahamas, Turks and Caicos, Dominica, Jamaica, St. Kitts and Nevis, British Virgin

Islands and Trinidad and Tobago also provide for a prison term, not exceeding one year, a fine, or both in the case of a malicious publication made without knowledge of falsity.87

In the case of Barbados, a court can jail a publisher found guilty of criminal libel for 12 months and fine him up to $2,000.88

84 Bahamas and Turks and Caicos acts at § 3, Anguilla, Antigua and Barbuda, St. Kitts and Nevis, Virgin Islands, Dominica, Jamaica acts at § 4.

85 Jamaica, Virgin Islands, St. Kitts and Nevis acts at § 5; Bahamas, Turks and Caicos acts at § 4; Trinidad and Tobago Act § 8.

86 See Jamaica, Virgin Islands, St. Kitts and Nevis, Trinidad and Tobago and Bahamas acts.

87 Bahamas and Turks & Caicos acts § 5; Dominica, Jamaica, St. Christopher and Nevis, Virgin Islands acts at § 6; Trinidad and Tobago Act at § 9.

88 Barbados Act § 34(3).

645

While a civil defamation suit requires publication to a third party because it is based on the need to protect reputation, criminal defamation turns on the danger to public peace and, accordingly, can be prosecuted when the defamatory statement is made only to the person being defamed.89 Jamaican constitutional scholar Lloyd Barnett notes that under Jamaican law, where a publication is made with the intent to excite hatred and contempt for—or disaffection with—the government, it is punishable as seditious libel.90

As discussed earlier, in 1974, the Jamaican Court of Appeal held that a pamphlet accusing the prime minister of trying to take control of the country by making it communist was criminal libel.91 In 1990 the Privy Council found unconstitutional an

Antiguan statute that sought to impose criminal liability for the distribution and printing of false statements “likely to cause fear or alarm in or to the public, or to disturb the public peace, or to undermine public confidence in the conduct of public affairs.”92 The

Privy Council Board found that making it a criminal act to use words that “undermine[d] public confidence in the conduct of public affairs” was offensive to the constitutional protection of free speech.93 Nonetheless, the Privy Council has never held, in the

Caribbean, that criminal libel laws are unconstitutional. Today, criminal libel laws

89 , LLOYD G. BARNETT, THE CONSTITUTIONAL LAW OF JAMAICA 408 (1977).

90 Id. at 409.

91 R. v. Tucker, supra.

92Hector v. Attorney General of Antigua and Barbuda and others, (1990) 37 W.I.R. 216. In Hector, Leonard Hector was convicted by the High Court of Antigua, which held that § 33B of the Public Order Act of 1972, which allowed prosecutions for speech that undermined “public confidence in the conduct of public affairs,” was unconstitutional. The Court of Appeal for the Eastern Caribbean States reversed the lower court’s decision. The Privy Council allowed Hector’s appeal finding the section unconstitutional.

93 Id. at 221. See Antiguan Constitution §§ 3 & 12.

646 continue in the Caribbean as an ominous threat to the press. These laws were invoked recently in Grenada in prosecuting a newspaper publisher in the George Worme case.

In 2004, the Privy Council upheld the constitutionality of the provisions in the

Grenadian Criminal Code for criminal prosecution and the imprisonment of persons convicted of libeling public officials.94 The Privy Council found that the statute was not inconsistent with a democratic society.95

8.4 Grenada’s Recent Political History

Before proceeding further, it is important to indicate the political context in which

George Worme and Grenada Today were being prosecuted for criminal libel. Grenada, with an estimated population in 2006 of 89,703, has a total area of 344 sq. kilometers.96

After the failure in 1962 of attempts to form a federation of Caribbean states, Grenada finally gained independence on February 7, 1974. Like the other British Caribbean islands, Grenada adopted the British Westminster parliamentary system of government with the Governor General as the Queen’s representative in Jamaica.97

94 George Worme & Grenada Today Ltd. v. Commissioner of Police of Grenada, (2003) 63 W.I.R. 78.

95 Id.

96 Grenada 03/03, CIA, THE WORLD FACT BOOK, http://www.cia.gov/cia/publications/factbook/geos/gj.html (last visited April 30, 2006).

97 Id. See also GREN. CONST. (1973), http://www.georgetown.edu/pdba/Constitutions/Grenada/gren73eng.html (last visited Nov. 10, 2005). GREN. CONST. § 57(1) provides

the executive authority of Grenada is vested in Her Majesty.

§ 57(2) provides

subject to the provisions of this Constitution, the executive authority of Grenada may be exercised on behalf of Her Majesty by the Governor-General either directly or through officers subordinate to him. Id.

647

Sir Eric Gairy, a former trade unionist and populist leader, became Grenada’s first

prime minister.98 However, in the 1970s, Gairy abused his power by rigging elections and

harnessing the bureaucratic and security forces in his increasingly authoritarian and

repressive regime.99

The repressive system of government and loss of legitimacy that followed led to a bloodless coup on March 13, 1979100 by a populist organization named the New Joint

Endeavor for Welfare, Education and Liberation (New Jewel Movement).101 The

People’s Revolutionary Government (P.R.G.) established attorney-at-law Maurice Bishop as prime minister.102 In March 1979 Bishop announced:

let me assure the people of Grenada that all democratic freedoms, including freedom of elections, religious and political opinion, will be fully restored to the people… people of Grenada, this revolution is for work, for food, for decent housing and health services, and for a bright future for our children and great grandchildren. . . .103

98 Id.

99 Carl Stone, A Political Profile of the Caribbean in SIDNEY W. MINTZ & SALLY PRICE, CARIBBEAN CONTOURS 13, 18 (1985). See also Eric Gairy, in SPARTACUS.SCHOOLNET, http://www.spartacus.schoolnet.co.uk/COLDgairy.htm (last visited Nov. 12, 2005). Gairy, on the advice and with the assistance of Chile’s General Augusto Pinochet, formed the Mongoose Gang in 1970 which the United States Department reported in 1978 “unleashed a series of unspeakable atrocities against the Grenada citizenry . . . a veritable reign of terror.” Id. See also Gordon K. Lewis, The Contemporary Caribbean: A General Overview, in SIDNEY W. MINTZ & SALLY PRICE, CARIBBEAN CONTOURS 219, 231 (1985). Grenada was an exception to the British Caribbean in this regard, since all the other countries managed to maintain democratic structures.

100 Eric Gairy, in WIKIPEDIA, http://en.wikipedia.org/wiki/Eric_Gairy. (last visited Nov. 12, 2005). There was also some concern about Gairy’s state of mind when, in an address to the General Assembly of the United Nations in October 1977 he called for 1978 to be dubbed “The Year of the UFO.” At the time of the coup, Gairy was actually in New York speaking to the United Nations about UFOs. Id.

101 See What was the NJM? in THE GRENADA REVOLUTION ONLINE, http://www.thegrenadarevolutiononline.com/page2a.html (last visited Nov. 12, 2005). The New Jewel Movement was formed in 1973 from a cooperative meeting between two other organizations Movement for Assemblies of the People (MAP) and the Joint Endeavor for Welfare, Education & Liberation (JEWEL).

102U.S. Department of State, Grenada 03/03, supra.

103 Maurice Bishop, in SPARTACUS.SCHOOLNET, http://www.spartacus.schoolnet.co.uk/COLDbishop.htm (last visited Nov. 12, 2005).

648

Bishop’s politics were influenced by Caribbean Marxists such as Fidel Castro, Che

Guevara and Daniel Ortega and he established workers’ councils in Grenada.104 He established political ties with Cuba and the Soviet Union governments which assisted in constructing an aircraft runway to improve Grenadian tourism.105 It is reported that in the four-year period following the coup, the Bishop-imposed socialist development program led to a 9 percent cumulative growth rate and a decrease in unemployment from 49 percent to 14 percent.106 The diversification of agriculture and an agro-industrial base also led to import reduction in the island from 40 to 28 percent while the literacy rate increased from 85 percent to 98 percent.107

However, in an attempt to improve relations with the United States, Bishop allowed private enterprise to continue on the island. This led to dissension within the party hard-core Marxist group led by Bernard Coard, the minister of finance and deputy leader.

In October 1983, in a bloody coup led by Coard, Bishop and three members of his parliament were assassinated and Coard took over control of the country.108 In response to a request for assistance from the governor general and the Organization of American

States, a United States-Caribbean coalition force landed in Grenada on October 25 and restored order to the country.109

104 Id.

105 Id.

106 Stephen Zunes, The U.S. Invasion of Grenada: A Twenty Year Retrospective, in FOREIGN POLICY IN FOCUS SPECIAL REPORT, http://www.fpif.org/papers/grenada2003_body.html (last visited Nov. 12, 2005).

107 Id.

108 Stone, A Political Profile of the Caribbean, supra. at 19.

109 U.S. Department of State, Grenada 03/03, supra. See also Zunes, supra., the U.S. invasion, criticized internationally, was controversial. Both U.S. President Ronald Reagan and his predecessor Jimmy Carter were against the New Jewel Movement because of its Marxist ties and had sought to overthrow it from the

649

Since 1983, regular constitutional elections have taken place in Grenada.110

However, when incumbent Prime Minister Keith Mitchell emerged victorious in the

November 2003 parliamentary election, there were accusations that he had paid public sector workers in exchange for their support.111 There were also reports of discrepancies in voter lists.112 Nonetheless, Freedom House ranks Grenada as a politically free country, enjoying free democratic elections, freedom of religion and association. Freedom House also noted a general respect for freedom of expression with a generally free independent media that enjoyed the ability to criticize the government.113

8.5 Facts of the Case

Before discussing the case, it is important to identify the facts that prompted the

prosecution. This section will provide a brief description of the events leading up to the

prosecution, along with some discussion of the statute under which George Worme and

Grenada Today were charged. start. Carter gave asylum to ousted Prime Minister Gairy and launched a campaign to discourage tourism, forbid emergency relief and would not recognize the Grenadian ambassador. Reagan blocked economic assistance through the World Bank and the Caribbean Development Bank and refused to meet with Bishop when he visited the United States. The Washington Post newspaper reported also that the C.I.A. had tried to destabilize the Grenadian government politically and economically since 1981 and as early as 1981, U.S. armed troops staged a mock invasion of Grenada. The actual invasion was predicated on the need to protect American lives in the wake of what Reagan dubbed a Cuban-led coup. In fact, Fidel Castro condemned the coup and declared a day of mourning for Bishop’s death. Id. See What about the Cubans? in THE GRENADA REVOLUTION ONLINE, http://www.thegrenadarevolutiononline.com/page4.html (last visited Nov. 12, 2005). Castro declared,

no doctrine, no principle or position held up as revolutionary, and no internal division justifies atrocious proceedings like the physical elimination of Bishop and the . . . worthy leaders killed yesterday. Id.

110 U.S. Department of State, Grenada 03/03, supra.

111 Freedom House: Freedom in the World: Grenada, http://www.freedomhouse.org/research/freeworld/2004/countryratings/grenada.htm (last visited Oct. 14, 2005).

112 Id.

113 Id.

650

The Grenadian Libel and Slander Act of 1956 specifically preserves all the

previously existing laws related to criminal libel114 and the Grenadian Criminal Code

contains substantive provisions for the criminal prosecution of libel actions. The statute

includes provisions allowing the six-month imprisonment of persons for negligent libel115 and two-year incarceration for intentional libel.116 Under the Criminal Code, a defamatory publication is defined as one that imputes that any person commits a “crime or misconduct” while in public office or a statement likely to injure a person in his

“occupation, calling or office, or to expose him to general hatred, contempt or ridicule.”117 The code defines criminal libel as the unlawful publication of any

defamatory matter concerning any person.118

In criminal libel actions in Grenada, the only defense is “privilege.”119 Under the code, absolute privilege attaches to publications by the members of either house of

114 Grenada Act § 23.

115 Grenada Criminal Code §. 252(1) provides

Whoever is convicted of negligent libel shall be liable to imprisonment for six months.

116 Grenada Criminal Code § 252(2) provides

Whoever is convicted of intentional libel shall be liable to imprisonment for two years. . .

117 Grenada Criminal Code § 254(1) provides

Matter is defamatory which imputes to a person any crime, or misconduct in any public office, or which is likely to injure him in his occupation, calling or office, or to expose him to general hatred, contempt or ridicule.

118 Grenada Criminal Code § 253 provides

A person is guilty of libel who, by print, writing, painting, effigy or by any means otherwise than solely by gestures, spoken words, or other sounds, unlawfully publishes any defamatory matter concerning any person, either negligently or with intent to defame that other person.

119 Grenada Criminal Code § 256 provides

Any publication of defamatory matter concerning a person is unlawful within the meaning of this Title, unless it is privileged on one of the grounds mentioned in this Title.

651

Parliament or by the Governor General. Privilege also attaches to the publication of

material that is true and published for the public benefit.120 A qualified privilege would

attach in the case of a statement published in good faith and relating to the conduct or

character of a person in “a judicial, official or other public capacity,”121 or to the conduct, character or integrity of a person regarding “any public question or matter,”122 or to

statements made for “the protection of the rights or interests” of the publisher or the

person to whom it is published.123

A publication would not be considered to be published in good faith if made with

knowledge of its falsity, without “reasonable care” to ascertain its truthfulness, or with

120 Grenada Criminal Code § 257(1) provides

(b) if the matter is published in the Senate or the House of Representatives by the Governor-General or by any Member of either House . . .

(h) if the matter is true, and if it is found by the jury that it was for the public benefit that it should be published.

121 Grenada Criminal Code § 258(d) provides

A publication of defamatory matter is privileged, on condition that it was published in good faith, in any of the following cases, namely . . . if the matter is an expression of opinion in good faith as to the conduct of the person in a judicial, official or other public capacity, or as to his personal character so far as it appears in such conduct.

122 Grenada Criminal Code § 258(e) provides

A publication of defamatory matter is privileged, on condition that it was published in good faith, in any of the following cases, namely . . . if the matter is an expression of opinion in good faith as to the conduct of a person in relation to any public question or matter, or as to his personal character so far as it appears in such conduct.

123 Grenada Criminal Code § 258(j) provides

A publication of defamatory matter is privileged, on condition that it was published in good faith, in any of the following cases, namely . . . if the matter is published in good faith for the protection of the rights or interests of the person who publishes it, or of the person to whom it is published, or of some person in whom the person to whom it is published is interested.

652

the “intent to injure” the person defamed more substantially than “reasonably necessary”

in the public interest or to protect a private right or interest.124 Thus, the statement would not be protected by privilege. However, where a statement was made in circumstances in which “the publication would be justified if made in good faith,” the statement would “be presumed to have been made with good faith until the contrary [was] proved.”125

Section 23 of the Libel and Slander Act126 expressly preserves the law relating to

criminal libel in Grenada, but section 17 prohibits any criminal prosecution for libel

without the attorney general’s sanction.127

In Worme, the 2004 case where the Judicial Committee of the Privy Council held

that criminal libel laws were constitutional, the facts were that on September 17, 1999, a

Grenadian weekly newspaper, Grenada Today, published a letter signed “The People’s

124 Grenada Criminal Code § 259(1) provides

A publication of defamatory matter shall not be deemed to have been made in good faith by a person within the meaning of the last preceding section, if it is made to appear either:

(a) that the matter was untrue, and that he did not believe it to be true;

(b) that the matter was untrue, and that he published it without having taken reasonable care to ascertain whether it was true or false; or

(c) that in publishing the matter, he acted with intent to injure the person defamed in a substantially greater degree or substantially otherwise than was reasonably necessary for the interest of the public or for the protection of the private right or interest in respect of which he claims to be privileged.

125 Grenada Criminal Code § 259(2) provides

If it is proved, on behalf of the accused person, that the defamatory matter was published under such circumstances that the publication would have been justified if made in good faith, the publication shall be presumed to have been made in good faith until the contrary is made to appear, either from the libel itself, or from the evidence given on behalf of the accused person, or from evidence given on the part of the prosecution.

126 Cap. 171 Laws of Grenada 1990 Revision.

127 Id. In the British Caribbean the Bahamas, Turks & Caicos, Barbados, Anguilla, Virgin Islands, St. Christopher & Nevis, Dominica, Trinidad & Tobago and Guyana also either provide for criminal prosecution or for trial by indictment, or for imprisonment for libelous statements.

653

Man” addressed to Prime Minister Dr. Keith Mitchell. 128 The letter appeared under the title “Doc, stop playing politics” and was critical of Mitchell’s attitude to teachers’ pay. It included the sentence:129

During the election campaign you spent millions of dollars to bribe people to vote for you and your party, disregarding what the law says governing the electoral process.130

After the letter was published, George Worme, the editor of Grenada Today, was invited to the Central Division of the Criminal Investigation Department of the Royal

Grenada Police. He, accompanied by his lawyer, answered a number of questions on

September 21, 1999 but was not arrested or charged.131 In the next issue of Grenada

Today, which was published on September 24, the letter was reprinted preceded by the following words:

The letter which angered Prime Minister Mitchell and forced him to attempt to use law enforcement officers of the Criminal Investigation Department (CID) to try and “silence” the Grenada Today newspaper.132

On September 27, Mitchell brought a civil action for libel against Worme and

Grenada Today Ltd. Worme was also arrested and charged with two criminal offenses for the publication of the letter on September 17 and 24. The charges stated:

[T]he defendant on Friday 17 September 1999 . . . did publish a defamatory libel concerning Keith Claudius Mitchell, Prime Minister of Grenada, in the form of a letter under the caption “Doc stop playing politics,” which said letter contained the following defamatory matter concerning the said Keith Claudius Mitchell, “During the election campaign you spent millions of dollars to bribe people to vote for you

128 Worme (George) and Grenada Today Ltd. v. Commissioner of Police of Grenada, (2004) 63 W.I.R. 79.

129 Id. at 84.

130 Id. The election was held on January 14, 1999.

131 Id.

132 Id. at 85.

654

and your party, disregarding what the law says governing the electoral process.,” with an intention to defame the said Keith Claudius Mitchell contrary to section 252(2) of the Criminal Code, Chapter 1 of Vol. 1 of the 1994 Revised Laws of Grenada.

The charges against Worme were for intentional criminal libel under the criminal code, and the civil action was stayed until the criminal charge could be determined.

Issues in Worme

In the Caribbean a preliminary inquiry takes place at the pre-trial stage of criminal cases involving murder, rape or other felonies. The preliminary trial is held in the

Resident Magistrates’ court. The Resident Magistrates’ court has no jurisdiction to try the matter but only has the authority to determine whether there is sufficient evidence to submit a case to the Supreme, or High, Court for trial. During the preliminary inquiry in

Worme, Worme’s lawyers argued in the Resident Magistrate’s Court that the libel provisions in the Criminal Code were “inconsistent” with Worme’s right to freedom of speech under section 10 of the Grenada Constitution and asked that the matter be referred to the High Court. The judge referred the matter to the High Court as required under

Grenadian law.133 The judge asked the High Court to determine the three issues:

The first issue for determination was whether the section 10 freedom of expression provision in the Grenadian Constitution protected freedom to publish information:

• discussing political matters; • of and concerning the conduct of public figures in relation to the election of persons to the House of Representatives of the Parliament of Grenada; or • in relation to the suitability of persons for office as members of the House of Representatives of the Parliament of Grenada?

The second issue for determinations was, if the Constitution protected the right to publish this information, whether the provision under section 252(2) of the Criminal

133 Id. at 85.

655

Code of Grenada which made persons liable to two-year imprisonment when convicted of intentional libel violated the right to freedom of expression under the Constitution.

The third issue was whether the director of public prosecutions violated the right to freedom of expression by sanctioning criminal prosecutions by the state for criminal defamatory intentional libel where the subject of the libel touched on reputation rather than the public interest.134

On November 9, 2000, Justice Brian Alleyne in the Grenada High Court delivered the opinion of the court. The High Court held that the constitutional provision for freedom of expression included the protection of political discussion and discussions of the suitability of politicians for public office. The court also held that the Criminal Code violated the constitutional guarantee of freedom of speech. Thus, he found it unnecessary to respond to the question whether the DPP had unconstitutionally sanctioned the provisions by bringing an action against Worme.135 The Court of Appeal allowed the appeal by the Commissioner of Police on June 5, 2001. That court held that while freedom of expression protected political speech it did not agree that the statute—by allowing criminal prosecutions for libel—infringed the freedom.136 On November 19,

2001, the Court of Appeal granted leave for an appeal to the Privy Council.137 The Privy

Council upheld the Court of Appeal’s decision.

134 Id. at 86.

135 Id. at 87.

136 Id. at 86.

137 Id.

656

Arguments before the Privy Council

In his arguments before the Privy Council, attorney Andrew Nicol, Q.C., who represented Worme, argued that provisions in the code allowing for the prosecution of criminal intentional libel cases were inconsistent with the constitutional guarantee of freedom of speech.138 He also argued that criminal libel prosecutions were an

“unnecessary remnant of the past” because civil laws were available to protect reputations.139 He noted that criminal prosecutions for libel were “virtually unknown” and were not “reasonably required” to protect the reputations of persons libeled.140

Criminal libel laws, he argued, prevented the publication of truth.141

Paragraph 1(1) and (5) of Schedule 2 of the Constitution provides:

(a) The existing laws shall, as from the commencement of the Constitution, be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution and the Courts Order…

(b) For the purposes of this paragraph, the expression “existing law” means any Act, Ordinance, law, rule, regulation, order or other instrument made in pursuance of (or continuing in operation under) the existing Constitution or the West Indies (Dissolution and Interim Commissioner) Order in Council 1962 and having effect as part of the law of Grenada or any part thereof immediately before the commencement of this Constitution.

Nicol argued that, since the provisions of the Criminal Code had been re-enacted in

1994, the code was not an “existing law” under the constitutional provision such as would be saved.142 Thus, he said, the Privy Council should dismiss the charges.143

138 Id. See Grenada Criminal Code § 252(2) as interpreted in light of §§ 253 to 257 of the Criminal Code

139 Worme, supra at 91.

140 Id.

141 Id.

142 Id. at 92.

657

James Dingemans, Queen’s Counsel, arguing for the government, said there was no basis for the belief that the crime of intentional libel was unconstitutional.144 He noted that under dicta in the House of Lords’ decision in Woolmington v. Director of Public

Prosecutions,145 the prosecution in a criminal case had the burden of proving the elements of the crime, including—in the case of a criminal libel trial—that the defendant printed the material unlawfully, and that the statement was untrue, if the issue was raised.146 He said a criminal statute that required the prosecution to prove that the libelous statement imputed a crime or misconduct to another was constitutional.147

Although the law hindered freedom of expression, it was reasonably required to protect reputations, rights and freedoms of others.148 Such a crime, he said, existed in the legal systems of other democratic countries such as England, Canada and Australia.149 He argued that the Grenadian Criminal Code had been an existing law in 1974 when the constitution was passed, and so was preserved under schedule 1 of the Constitution.150

143 Id.

144 Id.

145 [1935] AC 462. Woolmington actually involves a criminal trial for murder. In Woolmington, Reginald Woolmington was charged with the gun murder of his estranged wife. However, Woolmington’s defense was that he had shot her by mistake. Woolmington said he had taken out the gun threatening to kill himself if she did not move back in with him and the gun had killed her instead. The trial court judge’s direction to the jury was that, once it was shown that the defendant in a murder trial committed the offense, malice was presumed and, unless the defendant rebutted the presumption of malice with evidence of self-defense he would be guilty of murder. The House of Lords allowed the appeal holding that in a murder trial the crown or prosecution should prove both death as a result of accused’s voluntary act and that the accused acted with malice before the court could find the defendant guilty of murder. Id.

146 Worme, supra at 92.

147 Id.

148 Id.

149 Id.

150 Id.

658

Limits of the Freedom of Speech Guarantee

Lord Alan Ferguson Rodger of Earlsferry151 wrote the opinion of the Privy Council

Board.152 Rodger said that the first question was whether section 10 of the Grenada

Constitution protected freedom to publish material discussing political matters, the

conduct of public figures and their electoral conduct or suitability for the House. The

Board agreed with both parties that the Constitution protected political speech, subject to

limitations in section 10(2) that provided for the protection of reputation and national

security.153

In dealing with question (2), whether the Grenadian Criminal Code infringed this freedom of speech, the Board held that it did not. In reaching this decision the Privy

Council Board noted that the European Court of Human Rights in Lingens v. Austria,154

had held that “freedom of political debate is at the very core of the concept of a

democratic society” and was a prevailing concept in the European Convention.155 This decision, Rodger said, had been adopted also in the Caribbean case Hector v.

151 Also sitting on the Judicial Committee of the Privy Council were Lord Thomas Henry Bingham of Cornhill, Lord Browne-Wilkinson, Lord Gordon Slynn of Hadley, and Lord Robert Walker of Gestingthorpe. Rodger spoke for the board.

152 Generally speaking, because the Privy Council is an advisory board for the Queen, the Privy Council only delivers advice to the Queen. The Queen acts on this advice. Thus, the majority decision is the only one issued traditionally. However, in recent years this has changed, and where the law lords are in disagreement, the dissenting opinions are also issued.

153 Worme, supra at 93. In his opinion Rodger noted that the crown had not given any information about a Grenadian crime relating to the conduct of elections. Id. at 92. Although the newspaper’s attorney, Nicol, had taken no exception to this, he had reserved his position on whether the letter imputed any crime at all to the Prime Minister, or was protected as fair comment on how he had used Government expenditure to achieve political advantage. Id. at 93.

154 (1986) 8 E.H.R.R. 407, 418–419 ¶ 42. In this case a libel action was brought against Lingens, an Australian journalist and editor of a magazine called Profil, for publishing an article that implied that a prominent politician had been a member of the first SS infantry brigade during World War II that had massacred civilians behind German lines.

155 Id.

659

Attorney-General of Antigua and Barbuda156 where Sir Nigel Cyprian Bridge of

Harwich, speaking on behalf of the Privy Council Board had said:

In a free democratic society it is almost too obvious to need stating that those who hold office in Government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.157

Lord Rodger said that before the Privy Council could determine whether the criminal code was unconstitutional because it was inconsistent with the section 10 protection of freedom of speech in the Grenadian Constitution, the Board had to determine the scope of the provisions in the code.158 Thus, he moved on to determine what the prosecution would be required to prove in making a case for criminal intentional libel under the Grenadian Criminal Code.159

8.6 Whether Criminal Prosecution Infringes Freedom of Speech in Grenada

The Privy Council held that under the Grenadian Criminal Code the prosecution was required to prove the falsity of the statement that was the subject of the libel action.

The Board also held that in addition to proving that the statement was untrue the burden was on the prosecution to prove that it was not made in the public interest. However, the

Board held the prosecution did not have to prove that the accused person knew the

156 (1990) 37 W.I.R. 216, 219, see note 97, supra.

157 Id. The Board also noted that some of the authorities had been discussed in the 2001 Caribbean Privy Council decision Benjamin v. Minister of Information and Broadcasting, [2001] UKPC 8, 58 W.I.R. 171, 183. In the Anguillan case Benjamin the Privy Council held that when the government suspended a talk-show program from government-owned radio station for criticizing the government it was an infringement of the right to freedom of expression protected in the Anguillan Constitution. The radio station was the only one secular station in Anguilla.

158 Worme, supra at 93.

159 Id. at 94.

660 statement was untrue unless the defense of privilege was raised by the defendant and there was evidence to support it.

Once the defendant raised the defense of privilege it was the role of the defense to establish that the defense applied in the case. However, the privilege would be lost if the prosecutor proved that the defendant had not made the statement in good faith. Wherever a statement was made with knowledge by the publisher that it was false, or where the publisher had not taken reasonable steps to determine whether it was true, or where the publisher intended to defame the person libeled, it would not have been made in good faith.

Burden of Proof in Criminal Cases

The issue of where the burden of truth falls in criminal libel cases is very important because in general, a defendant can have more difficulty proving that a statement was true than a plaintiff will have proving falsity. This is because the newspaper would not have access to information on the activities of the plaintiff. There is a principle of statutory interpretation in English criminal law that in the absence of a specific burden being placed on the defendant by statute, the burden of proof rests with the prosecutor.160

Thus, in the 1935 case Woolmington v. DPP,161 Viscount John Sankey said in the House of Lords:

Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defense of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention,

160 Id. See Woolmington, supra at note 150.

161 [1935] A.C. 462.

661

the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.162

However, in Worme, Worme’s lawyers argued that the Grenadian Criminal Code placed the duty to prove the truth of the statement on the publisher, a heavy burden.

Andrew Nicol, Worme’s lawyer, said sections 256 and 257(1)(h) of the code, which provided a defense in the case of a true statement that had been published for the public’s benefit, was similar in wording to the English law’s provision in section 6 of the Libel

Act of 1843 (Lord Campbell’s Act).163 The English statute placed the burden of proving the truth, and establishing there was a public interest served by publishing the libelous matter, on the defendant in libel actions.164 Worme’s lawyer agreed that the Grenadian

Code placed the burden of proof of the truth on the defendant in criminal libel cases.165

The Board, however, dismissed Nicol’s argument. Lord Rodger said that the provisions in the Grenadian Criminal Code were not exactly the same as the English act.166 Rodger noted that the English Act divided criminal libels into two categories:167

• false defamatory libel or aggravated libel punishable by a maximum of two years’ imprisonment; and168

162 Id. at 481–482.

163 Worme, supra at 94.

164 Id.

165 Id.

166 Id.

167 Id.

168 Id. See Libel Act 1843 § 4 [6 & 7 Vict., c. 96], provides,

662

• malicious defamatory libel punishable by one year’s imprisonment.169

Under the English act, the defendant had to raise and prove the defense of

justification if he sought to rely on it. Additionally the defendant could only rely on the

defense of justification if, in addition to proving that the article was true, he proved that it

had been published in the public interest.170 Once the defendant proved both truth and

that the article was published in the public interest, the plaintiff had the burden to rebut it.

Thus, the initial burden of proof of the truth rested on the defendant in the English act.171

However, Lord Rodger noted on behalf of the Board that, unlike the English act,

the Grenadian code distinguished between negligent and intentional libel and, he said, the

Grenadian code did not specifically place the burden of proof of the truth of the statement

on the defendant.172 This, Lord Rodger said, was in part because the section 6 defense of the English Act had been incorporated into the Criminal Code as only one aspect of the

If any person shall maliciously publish any defamatory libel knowing the same to be false, every such person, being convicted thereof, shall be liable to be imprisoned . . . for any term not exceeding two years, and to pay such fine as the court shall award.

169 Id. at § 5 provides,

If any person shall maliciously publish any defamatory libel, every such person, being convicted thereof, shall be liable to fine or imprisonment, or both, as the court may award, such imprisonment not to exceed the term of one year.

170 Worme, supra at 94–95.

171 See also Libel Act 1843 § 6 [6 & 7 Vict., c. 96], provides:

On the trial of any indictment or information for a defamatory libel, the defendant having pleaded such a plea as hereinafter mentioned, the truth of the matters charged may be inquired into, but shall not amount to a defense, unless it was for the public benefit that the said matters charged; and to entitle the defendant to give evidence of the truth of such matters charged as a defense to such indictment or information, to allege the truth of the said matters charged in the manner now required in pleading a justification to an action for defamation, and the particular fact or facts by reason whereof it was for the public benefit that the said matters charged should be published, to which plea to prosecutor shall be at liberty to reply generally, denying the whole thereof; . . .

172 Worme, supra at 95.

663 broader defense of absolute privilege.173 Thus, the Privy Council Board held, the truth defense had to be interpreted in light of the broader context of the defenses in sections

257 and 258, which provided for privilege in the case of matters that were true and published for the public benefit.174

Sections 256 to 257 of the Grenadian Criminal Code provide for the defense of privilege175 in the case of matters published in either of the two houses of Parliament;176 and of truthful publications made for the public benefit.177 Under section 258 privilege also applied where a publication was made in good faith and related to a person in “a judicial, official or other public capacity,”178 was a comment that related to a matter in the public interest;179 or was published “for the protection of the rights or interests of the person who publishes it or the person to whom it is published.”180

The board noted that nothing in sections 256, 257(1), or 258 indicated that the burden of proving truth rested on the defendant.181

Section 259(1) removed the privilege where the matter was untrue, and [the writer] did not believe it [was] true;182 or published without taking reasonable care to ascertain

173 Id.

174 Grenada Criminal Code at § 257(h).

175 Grenada Criminal Code at § 256.

176 Id. at § 257(1)(a) and (b).

177 Id. at § 257(1)(h).

178 Id. at § 258(d).

179 Id. at § 258(e).

180 Id. at § 258(j).

181 Id.

664 whether it was true or false;183 or “acted with intent to injure the person defamed in a substantially greater degree or substantially otherwise than was reasonably necessary for the interest of the public or for the protection of the private right or interest in respect of which he claims to be privileged.”184 Section 259(2) provides

Since section 259 specifically stated that the burden of proof lay with the accused person,186 the board held that the contrast between the language in sections 257 to 258 and that in 259 indicated that the draftsperson had not intended to impose a burden of proof in the earlier sections.187 Whether or not the draftsman intended the defendant to bear the burden of proof, Rodger said, the burden of proof to be applied would be interpreted to fall in line with the current legal position on burden of proof in criminal matters.188

The court noted that this position was governed by dicta in the House of Lords decision of Woolmington which placed the burden of proof on the plaintiff in all criminal

182 Grenada Criminal Code at § 259(1)(a).

183 Id. at § 259(1)(b).

184 Id. at § 259(1)(c).

185 Id. at § 259((2).

186 Id. Thus, while § 259(1) states that there would be no presumption of good faith if “it is made to appear” that certain factors were in place, while § 259(2), provided for the presumption where it was “proved, on behalf of the accused person,” that the publication was made in certain circumstances.

187 Id.

188 Id.

665

cases.189 Nicholls said that since the Grenada Criminal Code did not impose a burden of

proof on the defendant, the prosecution must shoulder the burden of proof under the

general principle in criminal law established by the common law.190

Parameters of the Defense of Truth Under Section 257(1)(h)

The Board held that, in meeting his burden of proof of the truth, the prosecution was required to prove that the statement was false and not made in the public interest.

However, the prosecution was not required to prove that the defendant knew the statement was false.

The Board said that section 257(1)(h) provides a defense in libel where the statement is true and published for the public benefit.191 Rodger noted that the

Woolmington approach in which the burden of proof rested on the prosecution should be

applied to the issue of proof of the truth of the defamatory content.192 Rodger said that in the Worme case, it would not be onerous for the prosecutor to prove the falsity of the

189 Woolmington, supra.

190 Worme, supra at 96. In a 1999 when the article was published, the Grenadian Criminal Code had been interpreted to mean that there was no duty for the prosecution to prove a defamatory statement was untrue in making out a case for criminal libel. Nicol argued for the newspaper that the Privy Council Board could not hold that the Crown had a duty to prove the defamatory matter was not true, since that would prevent legal certainty by changing the law from its 1999 position when the statement was published. However, the Board disregarded this position, noting that the decision of the Privy Council Board about the issue should be deemed to reflect the law as it had always been decision, Kleinwort Benson Ltd. v. Lincoln County Council, [1999] 2 A.C. 349 at 377-379, Id. at 100, The Privy Council in Worme noted that, if in 1999 the understanding was that there was no requirement to prove the statement untrue and its publication was not for public benefit, then by introducing a new interpretation, the Privy Council Board would, by altering the legal position, “remove the ambiguity,” “narrow the scope of the offence” and make the position certain. The Board said that this would benefit rather than disadvantage editors and publishers who began actions in 1999. Worme, supra at 100.

191 See Grenada Criminal Code §257(1) which provides that

The publication of defamatory matter is absolutely privileged and no person shall under any circumstances be liable to punishment under this Code in respect thereof, in any of the following cases, namely . . . (h) if the matter is true, and if it is found by the jury that it was for the public benefit that it should be published.

192 Worme, supra at 96.

666 statement that the prime minister had spent millions of dollars to bribe people to vote for him and his party was not onerous. Although this requirement imposed a burden on prosecutors in a criminal libel trial that plaintiffs in a civil defamation case did not have,

Rodger said the burden was warranted because of the “fundamentally different nature, purpose and effect” of criminal and civil cases.193

Rodger said that although the prosecution had to prove that the statement was not true, he did not have to prove that the defendant knew it to be not true.194 Under section

253, the judge said, a defendant could unlawfully publish an untrue defamatory statement with the intention to damage someone’s reputation without knowledge that the matter was untrue.195 However, the defendant’s ignorance of the fact that the statement was false would be relevant to a defense of conditional or qualified privilege and would influence the penalty awarded by the court.196

The Board also noted that, after proving that the defamation was untrue, the prosecution had to persuade the jury—if it was trying to make the case for intentional libel—that the material was not published in the public interest. Rodger noted, however, that this second element in the crime of libel was more uncertain because the “height” of what had to be proven would depend on the individual jury.197

193 Id. Nicholls also noted that in assault cases, the onus of proving self defense also switched in criminal as opposed to civil cases. Id. at 98. See Spautz v. Williams, [1983] 2 N.S.W.L.R. 506 at 53 and R. v. Lobell, [1957] 1 Q.B. 547, 550.

194 Id. Rodger noted that the Court of Appeal’s decision delivered by Justice Albert Redhead indicated that there was a requirement for the prosecution to prove the defendant knew the statement was untrue, but this position was untenable. Id.

195 Id.

196 Id.

197 Id.

667

Thus, in a trial for criminal libel under section 253 of the Grenada Criminal Code,

in establishing a case in criminal libel under section 257(1)(h), the prosecution had to

prove that the defamatory article was not true and not for the public’s benefit.198 The

prosecution could only discharge its burden to establish the case by proving both of these elements.199

Defense of Privilege

The Criminal Code specifically provided for the defense of privilege where the publication was made in good faith and involved the conduct of a public official or a matter of public interest.200 The Privy Council Board moved on to discuss the parameters of the defense of privilege. The board held that once the elements of the crime of libel had been proved by the prosecution, it was for the defendant to raise and prove that the defense of privilege applied in the case.

Although section 253 of the Criminal Code required that, before it could be prosecuted, a defamation should be published “unlawfully,”201 section 256 provided that

198 Id.

199 Id. Although noting that there was no need for him to determine whether the statute was “an existing law” before February 7 1974, when the Constitution was passed, nonetheless Rodger embarked on a discussion of the Board’s position. Rodger noted that in 1974 the Criminal Code of 1897 that had been amended at various times was in force, except for the numbering, the provisions §§ 256–263 were identical to those in the original code. However, Grenada’s Continuous Revision of the Laws Act§ 14 (1994) provided that re-enactments took effect on the day they were re-enacted. Thus, the Criminal Code was not effective until the time of its re-enactment in 1994. Although other Caribbean Constitutions such as JAM. CONST. §§ 26(8) (9); TRIN & TOBAGO CONST. §§ 6(1) and (2); and BARB. CONST. §§ 30(1) respectively contained savings clauses that extended the meaning of “existing law” to re-enactments, the Grenadian Constitution did not. The Board reserved its opinion on whether “existing law” should “extend to provisions identical to those in force immediately before 7 February 1974.” Id. at 99.

200 Grenada Criminal Code § 258(d), (e) and (j).

201 Grenada Criminal Code § 253 provides

668 all defamatory material was unlawful unless protected by privilege.202 Thus, effectively,

Rodger noted, any privileged communication as defined under sections 257 and 258 was lawful.203

However, Rodger said, unless the defense of privilege was raised and there was evidence to support it, the prosecution did not have to introduce evidence to rebut the defense.204 He noted the authority of the 1983 New South Wales case, Spautz v.

Williams,205 where Justice Hunt, in overturning a lower court’s decision that the defendant had the burden of proving lawful excuse in a libel case, noted:

In my view, the time has come for the law relating to prosecutions for criminal defamation to catch up with developments in the general criminal law which have occurred since Woolmington’s case, particularly as such prosecutions may now become more frequent. . . . There is no reason why the “golden thread” should not run throughout the law relating to criminal defamation just as it does throughout the web of English criminal law generally.206

The judge was referring to the classic exposition of English criminal law in

Woolmington v. DPP that the burden to prove the guilt of the accused rested on the prosecution in all criminal cases. Rodger in the Worme case said that the Privy Council

202 Grenada Criminal Code § 256 provides

Any publication of defamatory matter concerning a person is unlawful within the meaning of this Title, unless it is privileged on one of the grounds mentioned in this Title.

203 Worme, supra at 96.

204 Id. He noted that this defense should be treated no differently from that of self defense in criminal cases, which the prosecution had to rebut only where the defendant raised it and showed evidence to support it.

205 Id.

206 See Spautz v. Williams, [1983] 2 N.S.W. L.R. 506, 533. In this case, Dr. Spautz privately prosecuted a criminal libel case against various university officials in New South Wales. The action was brought under the 1974 Defamation Act at section 50(1) which provided, “A person shall not, without lawful excuse, publish matter defamatory of another living person. . . .” The magistrate held that the onus of proving lawful excuse rested on the defendant, Dr. Williams. On appeal Justice Hunt held that the magistrate was wrong and that, unless the words of the statute placed the burden of proof on the defendant, in criminal libel, as in other criminal cases, the Crown had to negate the defense if it was raised.

669

Board also agreed that this was the approach that should be adopted in interpreting the defenses raised in sections 257 of the Grenada Criminal Code.207 He also said the

Grenada Constitution’s provision at section 8(2)(a) which imposed a presumption of innocence until guilt was proven in criminal trials, supported the position.208 Although the legislature could impose the burden of proof “of certain facts” on the defendant, wherever possible legislation should be interpreted in a manner consistent with the section 8(2)(a) constitutional guarantee of the presumption of innocence.209

Thus, once the prosecution discharged its burden to establish the elements of criminal libel including the falsity of the statement and that it was not made in the public benefit, the defendant had to raise the defense of privilege under the code. It was not until the defendant had raised the defense and provided evidence to support it that the prosecution had to rebut the privilege.

Arguments on Unconstitutionality

The newspaper’s lawyers argued that several of the other provisions in the Criminal

Code were inconsistent with section 10 of the Constitution which protected freedom of speech and, therefore, were unconstitutional.210 The board rejected these arguments holding, that there was no need to determine the constitutionality of sections in the statute

207 Worme, supra at 97.

208 The Grenada Constitution § 8(2)a provides:

Everybody who is charged with a criminal offence . . . shall be presumed to be innocent until he is proved or has pleaded guilty. . . .

209 Worme, supra. at 97.

210 Id.

670 that did not form a part of the action in the Worme case; it was sufficient to determine that the sections that affected Worme were constitutional.

Nicol contended for the newspaper that section 252(1) which, read in conjunction with section 253, allowed the criminal conviction of someone for a libelous statement made with negligence, specifically infringed the constitutional guarantee of freedom of speech. He also argued that these provisions, coupled with section 255(1), provided a wide enough definition of the word “publication” to allow criminal prosecutions in cases in which there was no certainty that the libelous statement would be published but it was only “likely” to be revealed to other persons. Similarly, unlike the civil libel laws which required a person other than the plaintiff to hear the libelous statement, the Grenadian

Criminal Code provided for criminal prosecutions in cases where the only person who heard the libelous statement was the libeled person.

Because the aim of civil libel law is to protect reputation rather than to repay persons for an insult, usually in civil libel cases an action cannot be brought unless someone other than the person libeled was exposed to the statement. However, in criminal libel law the situation is different and an action can be brought even where the only person exposed to the libelous statement is the person libeled.211

In the 1999 House of Lords decision, Reynolds v. Times Newspapers Ltd., the

House of Lords re-asserted the British position that qualified privilege was a defense used in libel suits that immunizes media from liability when it published stories which it had a

211 Id. See GATLEY ON LIBEL AND SLANDER, Sweet & Maxwell, London 1998, ¶ 1.4 notes

In English law there is no actionable tort (though there may be a crime) unless the words are ‘published’ to at least one person other than the person defamed: the wrong is an injury to reputation not an insult. Id.

671 duty to inform the public about and the public had a corresponding interest in receiving information.212 However, Nicol, the newspaper’s attorney noted that there could be no finding of qualified privilege under the provisions in question because section 258 was too narrow to allow a defense to protect what Nicol said was a duty for newspapers “to inform the public and engage in public discussion of matters of public interest, coupled with a corresponding interest in the public to receive information.”213

Thus, Nicol argued, some of the Criminal Code provisions infringed constitutional guarantees and the provisions as a whole should be deemed void.214

Lord Rodger did not agree. The Privy Council Board held that since the action before the Board in Worme was limited to sections 253, 254, 256, 257 and 258, the Board did not have to determine whether sections 252 and 255 were constitutional. Since there was no likelihood that cases would arise that would require a determination of the validity of the other sections, it was “sufficient” if the provisions under which the prosecution against Worme was based were found to be constitutional, Rodger said.215

The Privy Council Board noted that the Supreme Court of Canada in R. v. Butler216 had also adopted the position the Board was holding in Worme in interpreting sections of a statute dealing with obscenity. Justice John Sopinka said in Butler:

Both lower courts as well as the parties have focused almost exclusively on the definition of obscenity found in section 163(8). Other portions of the impugned provision, such as the reverse onus provision envisaged in section 163(3), as well as the absolute liability offence created by section 163(6), raise substantial Charter issues which should be left to be dealt with in proceedings specifically directed to

212 Reynolds v. Times Newspapers Ltd., [2001] 2 A.C. 127. 213 Worme, supra. at 100. 214 Id.

215 Id. at 101.

216 [1982] 1 S.C.R. 452.

672

these issues. In my view, in the circumstances, this appeal should be confined to the examination of the constitutional validity of section 163(8).217

The Privy Council Board in Worme agreed with the Canadian Supreme Court’s decision and said that it would deal with constitutional issues under sections of the code unrelated to the Worme case as raised.218

The Privy Council Board also disagreed with Nicol’s submission that section 258

was too narrow to contemplate a defense of qualified privilege premised on a finding that

the defendant had a duty to make a statement and the audience an interest in receiving the

statement. The Court noted that section 258(j) provided the defense of qualified privilege

where the defendant published in good faith to protect the interest of the persons to whom

it is published.219

Constitutionality of the Crime of Intentional Libel

The Board then looked at the constitutionality of a criminal action for intentional libel. It noted that in a 1998 Jamaican decision, deFreitas v. Permanent Secretary of the

Ministry of Agriculture, Fisheries, Land and Housing,220 the Board had adopted the

217 Id. at 471.

218 Worme, supra at 101. In relation to the argument raised by Nicol that § 252 allowed the prosecution of persons for libelous statements made negligently, the Board in Worme noted that the prosecution had to lead evidence to prove that the article was published with intent to defame the Prime Minister or the intent to injure his reputation. Thus, for purposes of the Worme case, the issue of whether the information had been published negligently and the constitutionality of such a provision did not arise. Id.

219 Id. § 258(j) provides for privilege,

if the matter is published in good faith for the protection of the rights or interests of the person who publishes it, or of the person to whom it is published, or of some person in whom the person to whom it is published is interested.

220 deFreitas v. Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing, (1998) 53 W.I.R. 171 at 143-144, adopting the analysis of Nyambirai v. National Social Security Authority, [1996] 1 L.R.C. 64 at 75. Although the Privy Council in deFreitas was adopting the decision of another court, the Privy Council in Worme referred to the later Caribbean decision because this decision was binding in the Caribbean. In deFreitas the Privy Council held that an Antiguan statute prohibiting civil servants from publishing any information or opinion about “matters of national or international political controversy” was

673 following test to determine whether a limitation on freedom of speech was arbitrary or excessive:

Whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish this objective.221

The Board noted that since the crime of intentional libel hindered citizens from full realization of constitutional guarantee of freedom of expression, the government had to show that the provisions in the Criminal Code were “reasonably required to protect the reputations, rights and freedoms of other persons.”222 Once this was shown, Rodger said, the burden shifted to Worme and Grenada Today to show that the provisions were not

“reasonably justifiable in a democratic society.”223

Rodger, speaking for the Board, said the crime of intentional libel arose in cases where a paper or journalist published “any false defamatory matter, imputing to another person a crime or misconduct in any public office, with the intention of damaging the reputation of that other person, in circumstances where the jury consider(ed) that the

unconstitutional. The court held that the restitution the constitutional provision of freedom of expression was neither reasonably justifiable in a democratic society” nor required for the civil servant in performance of his job.

221 deFreitas, supra. at 143–144.

222 Worme, supra. at 102.

223 Id. The Board noted the precedent of the Privy Council’s decision in the West Indian case Cable and Wireless (Dominica) v. Marpin Telecoms and Broadcasting Co. Ltd., (2000) 57 W.I.R. 141, 152 opinion of Lord Cooke of Thorndon. In Marpin the Privy Council remitted a case to the Eastern Caribbean Court of Appeal to determine whether the 1995 Dominican Telecommunications Act which would authorize a monopoly grant to a telecommunication station made provisions that were “reasonably required” to protect the right to freedom of expression under the Dominican Constitution. The Board held that if it was proved that the statute was reasonably required by the persons supporting the monopoly, then the burden shifted to those who challenged the exclusivity to show that it wasn’t reasonably justifiable in a democratic society.

674 publication was not for the public benefit.”224 The Board noted that the element of intent to damage the other person’s reputation was important since the law attached “a high value to a person’s reputation, not only for the individual’s sake but also in the wider interests of the public.”225 The Board noted that in Reynolds v. Times Newspaper Ltd.,226

Lord Nicholls of Birkenhead said:

Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which is fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognize that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others.227

Rodger said in Worme that the protection of reputation was “conducive to the public good,” as was the protection of the reputations of public figures from false debasing statements.228 Thus, the Privy Council Board in Worme held, “the objective of an offence that catches those who attack a person’s reputation by accusing him, falsely,

224 Worme, supra at 102–103.

225 Id. at 103.

226 [2001] A.C. 127

227 Id. at 201.

228 Worme, supra. at 103.

675 of a crime or misconduct in public office is sufficiently important to justify limiting the right to freedom of expression.”229

The Board noted that the offense of criminal libel was connected to protecting reputation and was limited to situations where “the publication was not for the public benefit.”230 The existence of a civil remedy in tort for the offense, the Board held, did not obviate the need for a criminal remedy.231 Similarly, Rodger said, although there had been no criminal indictments in the Caribbean or Grenada for libel in recent years, it did not mean the crime was unnecessary.232 The Board noted that, faced with a similar argument against the unconstitutionality of the crime of defamatory libel in 1998, in the

Canadian case Lucas v. R.,233 Justice Cory in the Supreme Court of Canada had said:

the “paucity of prosecutions does not necessarily reflect on the seriousness of the problem,” rather it “might be affected by a number of factors such as the priority which is given to enforcement by the police and the Crown”234 There are numerous provisions in the Code which are rarely invoked, . . . Yet the infrequency of prosecutions under these provisions does not render them unconstitutional or ineffective. I agree that the small number of prosecutions under section 300 may well be due to its effectiveness in deterring the publication of defamatory libel. . . . In my view section 300 [the relevant section on criminal libel law] is rationally connected to the legislative objective of protecting the reputation of individuals.235

Under the Grenada Constitution, as in the case of most Caribbean Constitutions, the right to freedom of expression could be infringed where the infringement was

229 Id.

230 Id.

231 Id.

232 Id. The Court noted that prosecutions were not always a sign of success of criminal law but of its failure to prevent conduct that the criminal statute punished. Id.

233 [1998] 1 S.C.R. 439 at ¶ [55] and [56]

234 Id. at para. [55], quoting from R. v. Labal, [1994] 3 S.C.R. 965,1007.

235 Id.

676

“reasonably required for the purpose of protecting the reputations . . . of other persons.”236 Nicol had argued that provisions for criminal libel prosecutions under the

Grenadian Constitution were not “reasonably required” to protect reputation.

The Privy Council Board in the George Worme case, however, rejected the argument that the law of criminal intentional libel was not reasonably required in

Grenada and held that it did not go further than necessary to protect reputations of people.237

The European Convention and the discussion in Reynolds required libel statutes to be “justifiable in a democratic society.” Rodger, speaking for the Board, rejected Nicol’s argument that criminal intentional libel was not justifiable in a democratic society.

Rodger noted that criminal intentional libel statutes existed “in one form or the other” in many democratic societies including England, Canada and Australia. Thus, he concluded, it could be “regarded as a justifiable part of the law of the democratic society of

Grenada.”238

The Board’s answer to question 1 of the appeal, which dealt with whether the constitution protected freedom to publish materials on political matters, was positive.239

However, the Board responded in the negative to the second question of whether

236 See GREN. CONST. § 10(2)(b).

237 Worme, supra. at 104.

238 Id.

239 Id. The question was

Does the freedom of expression guaranteed by the Constitution of Grenada protect a freedom to publish material: discussing political matters of and concerning the conduct of public figures in relation to the election of persons to the House of Representatives and in relation to the suitability of persons for office as Members of the House of Representatives of the Parliament of Grenada?

677 prosecutions for intentional libel under the Criminal Code of Grenada violated the constitutional protection for freedom of speech and to criticize politicians.240

The Board dismissed the appeal.241

8.7 Aftermath of the Worme Decision

Legal scholar Graeme Broadbent has said that the Privy Council decision in Worme only established that the offense of criminal intentional libel as defined in Grenada’s code was not unconstitutional.242 No determination had been made of the scope of the offense and what had to be proved in order for a conviction. Nonetheless, Broadbent admits

“whatever the outcome of this case, it will be difficult to avoid the appearance of criminal libel being a crime for the powerful.”243

Following the January 2004 decision, the government of Grenada began increasingly to use repressive measures to intimidate the media. In 2004, following an

April 30 article alleging that Prime Minister Mitchell had been improperly paid off in

2000 in the amount of $500,000 by the former trade counselor for the island, the government initiated a libel suit against the publisher in May.244 The government warned the news media that anyone publishing the story would “feel the full force of the law.”

240 Id. Thus, the Board found it unnecessary to respond to question 3 which related whether the Director of Public Prosecutions had violated the constitution by sanctioning criminal prosecution. Id.

241 Id. at 105.

242 Graeme Broadbent, Grenada: Criminal Libel— Constitutionality Worme v Commissioner of Police of Grenada; Trinidad and Tobago: Order Postponing Publication of Details of Court Proceedings Independent Publishing Company Ltd v Attorney-General of Trinidad and Tobago and Another, in JOURNAL OF CRIMINAL LAW 387, 391 (Vol. 68, Issue 5) (Oct. 2004).

243 Id.

244 Freedom House Web site: Freedom in the World: Grenada, http://www.freedomhouse.org/research/freeworld/2004/countryratings/grenada.htm (last visited Oct. 14, 2005). See also Peter Richards, News: PM’s Lawsuit Sparks Latest Media-Government Tussle, in TTGAPERS.COM, June 15, 2004, http://www.ttgapers.com/Article616.html (last visited Nov. 12, 2005).

678

The government also threatened an internet chat forum that published the story. The

Grenadian government also temporarily took the British Broadcasting Corporation’s

World Services off the air and detained and interrogated online journalist Leroy Noel for publishing the story about Mitchell’s alleged pay off.245

Many members of the local and regional media were incensed. For example, the

Media Workers Association of Grenada (M.W.A.G.) referred to Mitchell’s threats as an attempt to “intimidate” and “censor the media in Grenada.” The Association of Caribbean

Media Workers (A.C.M.) sent a four-member delegation to investigate and called the government warning “an explicit threat and an attempt to silence the press.”246 The news director of the GBN, a Grenadian television station, Odette Campbell, resigned after she was suspended for participating in a walkout by journalists on a government press conference. Campbell said:

Some people maybe never seem to understand what press freedom is and why the press should be allowed to do their job. It is a core value that as a journalist I have grown up with and it is not something that at this stage in my life that I am willing to give up.247

In June 2004 the Prime Minister filed a lawsuit against Cable & Wireless when users of its bulletin board Web sites repeated the allegation against Mitchell online.248 An editorial in the Jamaica Observer, a daily newspaper in Jamaica, stated:

We are concerned . . . over the apparent zeal of the Grenada police to pursue charges of criminal libel for certain allegations made against the prime minister,

245 Id.

246 Richards, supra.

247 Id.

248 Grenada’s PM files lawsuits against Cable & Wireless, in THE JAMAICA OBSERVER, June 5, 2004, http://www.jamaicaobserver.com/news/html (last visited Nov. 12, 2005).

679

and its seeming eagerness to detain Opposition politicians and journalists over these issues.

International Press Institute director, Johann P. Fritz, said:249

“Events in Grenada are extremely worrying. The prime minister and the government appear to be making a concerted effort to suppress news and intimidate journalists into submission.

“. . . the decision to use criminal libel amounts to nothing more than a government inspired attempt to silence the media by threatening them with punishment for practicing their profession.

“An action in criminal libel will undermine the right of Grenadian journalists to act in the public’s interest when evaluating the work of the government and reinforce the perception that, in Grenada, it is better to remain silent on this subject than face potential imprisonment.”250

On World Press Freedom Day, May 3, 2005, the Media Workers Association of

Grenada (M.W.A.G.) lauded the stance taken by journalists who came under threat during the previous year for the report.251 However, the association said that many media companies were limiting their staff to the use of press releases, and contended media owners were preventing their journalists from “dynamic” reporting because they feared reprisals from the state and libel suits brought by politicians. In addition to the threat of criminal libel for journalists, about a dozen lawsuits had been filed against journalists in a five-year period, according to M.W.A.G.252

249 Press Release, International Press Institute, IPI Concerned By Grenadian Government’s Deteriorating Media Relations, (Vienna, June 29, 2004), http://www.freemedia.at/Protests2004/pr_Grenada29.06.03.htm (last visited Nov. 10, 2005).

250 Id.

251 Threats of libel and lawsuits, GRENADA TODAY, May 7, 2005, http://www.belgrafix.com/gtoday/2005news/May/ (last visited Nov. 10, 2005).

252 Id.

680

8.8 Conclusion

In the United States both criminal and seditious libel laws have been declared unconstitutional.253 However, in the British Caribbean many countries have seditious libel statutes and most have provisions for criminal libel prosecutions.

In 2004 the Judicial Committee of the Privy Council declared the criminal libel laws in Grenada were constitutional and reasonably required in a democratic society. In

Grenada the Privy Council specifically upheld the constitutionality of prosecutions for criminal intentional libel. These are libelous statements made with the intention to defame another person.254

However, the crime of intentional libel under the Grenadian code differs from civil libel in the British Caribbean. Under civil libel laws the plaintiff only has to prove that a statement was defamatory, it concerned him and it was published. The falsity of the statement is presumed. Thus, the burden falls on the defendant to prove that the statement was in fact true. However, in the case of criminal intentional libel in making a case of criminal libel the prosecutor has the burden to prove that the statement was false.255

Without proof of falsity the crime cannot be established.

In addition to proving that the statement was false the prosecution in establishing a case for criminal libel must prove that the statement was not published for the public benefit.256 Without proof of both falsity and that the statement was not published for the public benefit, the prosecutor would not have established the case for libel.

253 See New York Times v. Sullivan, supra and Ashton v. Kentucky, supra.

254 Grenada Criminal Code § 253.

255 Worme, supra at 96–97.

256 Id. at 98. See Grenada Criminal Code § 257(h).

681

Once the prosecution has established his libel case, under the Criminal Code the defendant may plead the defense of privilege.257 He then must prove that the statement is privileged under one of the categories that were protected by privilege under the code.

The categories protected by privilege in the code range from the expression of an opinion about “persons in judicial, official or public capacity,”258 or about a “public question or matter,”259 or where the statement is published for the protection of the rights and interests of the publisher or the receiver.260

However, to rely on the defense of privilege a defamatory statement must have been made in good faith,261 which is presumed under the code once the other elements of the privilege claimed were proved.262 Because of the presumption of good faith the prosecutor has the burden of proving that the statement was made with good faith.

The presumption of good faith can be rebutted by the prosecutor in three circumstances. First, where a statement is untrue and the speaker does not believe that it is true, the presumption of good faith will be rebutted.263 Second, the presumption of good faith will be rebutted when a speaker or writer has not “taken reasonable care to ascertain whether a statement is true or false.”264 Thirdly, the presumption of good faith

257 Grenada Criminal Code § 258.

258 Grenada Criminal Code § 258(d).

259 Grenada Criminal Code § 258(e).

260 Grenada Criminal Code § 258(f).

261 Grenada Criminal Code § 258.

262 Grenada Criminal Code § 259(2).

263 Grenada Criminal Code § 259(1)(a).

264Grenada Criminal Code § 259(1)(b).

682 will be rebutted when the speaker or writer makes the statement intending to “injure the person defamed in a substantially greater degree or substantially otherwise than was reasonably necessary for the interest of the public or for the protection of the private right or interest of the public or for the protection of the private right or interest in respect of which privilege was claimed.”265

When the defendant is convicted under the Grenadian Code of criminal intentional libel he could be sentenced to a mandatory two-year imprisonment term.266 The

Grenadian Code also provides for the prosecution of persons for negligent or unintentional libel and a six-month imprisonment term on conviction.267 However, the

Privy Council has reserved its opinion on the constitutionality of this provision since the issue did not arise in Worme.268

Even if the Grenadian court system finds him guilty of libel, Worme has an avenue of review in the Inter-American System of Human Rights. Grenada is one of the 25 signatories to the American Convention on Human Rights, which protects several rights

265Grenada Criminal Code § 259(1)(c).

266 Grenada Criminal Code § 252(1).

267 Grenada Criminal Code § 252(2). See Grenada Criminal Code § 253 which provides

268 Worme, supra at 102. See Grenada Criminal Code § 252(2) which provides

Whoever is convicted of intentional libel shall be liable to imprisonment for two years.

683 for citizens in member states. 269 The Convention is binding on the states that have ratified or adopted it.270

This could be significant for Grenada since, in July 2004, the Inter-American Court on Human Rights, which monitors compliance with the Convention, overturned a 34,000 euro (approximately US$100,000) award for civil damages and criminal conviction against Costa Rican journalist Mauricio Herrera Ulloa for a 1995 article that accused a government official of corruption.271 In light of this decision it would appear that the

Inter-American Court may have a more liberal attitude toward the treatment of public persons in libel cases that could lead to the reversal of any determination of guilt and imposition of criminal penalty by the Grenadian court system.

In the next chapter we will look more closely at the Inter-American Court’s decision.

269 Id. To date 25 nations have either ratified or adopted the Convention. These are Argentina, Barbados, Bolivia, Brazil, Colombia, Costa Rica, Chile, Dominica, Ecuador, El Salvador, Granada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Suriname, Trinidad and Tobago, Uruguay and Venezuela.

270 Id.

271 The Inter-American Court of Human Rights overturns journalist’s libel conviction, REPORTERS WITHOUT BORDERS WEB SITE, http://www.rsf.org/print.php3?id_article=11101 (last visited Aug. 19, 2005).

CHAPTER 9 THE INTER-AMERICAN SYSTEM OF HUMAN RIGHTS AND THE LA NACIÓN CASE

9.1 Introduction

In 2004, the same year that the Privy Council decision in the Jamaican case

Abrahams v. The Gleaner was reviewed by the Inter-American Commission on Human

Rights and referred to the Inter-American Court, the Inter-American Court reversed a

Costa Rican decision awarding 60 million colones (US$200,000) in damages to a government official who alleged he had been libeled by a story published in La Nación, a

Costa Rican newspaper. In the course of the case the Inter-American Court made it clear that it favored the liberal actual malice standard used in the United States in approaching libel actions brought by government officials. In light of the approach of the

Inter-American Court to the American standard, there is a possibility that the court could impose the higher standard used in United States libel laws in Jamaica.

In the British Caribbean Jamaica, Grenada, Dominica and Barbados are the only current states that are signatories to the American Convention of Human Rights. The

Inter-American Court of Human Rights has the responsibility for interpreting the

American Convention.

This chapter will examine the progress of the Herrera-Ulloa v. Costa Rica1 action before the Inter-American Human Rights Court. The action had its denouement when the court annulled a Costa Rican internal court’s decision in 2004 and imposed a U.S.

1 2004, Inter-Am. Ct. H.R. (ser. C) No. 107 (July 2, 2004).

684 685

$20,000-damage award on the state. The two substantive issues before the

Inter-American System related to the right to freedom of speech and to a fair trial before an impartial jury under the Inter-American Convention. This chapter will focus on the first substantive issue.

Section 9.2 of the dissertation discusses the Inter-American system and how it works. In section 9.3 the author discusses the relationship of the British Caribbean member states with the American Convention. Section 9.4 focuses on the structure of the legal system in Costa Rica. Section 9.5 focuses on the facts of the Herrera Ulloa case, the process of the action through the Costa Rican court system and the provisional hearing before the Inter-American Commission on Human Rights. Section 9.6 focuses on the evidence and arguments in the Inter-American Court and delineates the written arguments presented to the Inter-American Court. Section 9.7 will focus on the arguments and court decision to freedom of speech and libel of a public official. Section

9.8 relates to the court’s discussion on the limits and boundaries of freedom of speech in the American Convention and the court’s decision on the substantive issue of whether

Herrera’s right to freedom of expression under the Convention was infringed by the internal courts’ decisions. Section 9.9 explores the Court’s decision as to damages.

Section 9.10 concludes the chapter.

9.2 Inter-American Human Rights System

The Inter-American Human Rights System started in April 1948 when the

American Declaration of the Rights and Duties of Man, the first general international human rights instrument, was adopted in Bogotá, Colombia. In November 1969, during the Inter-American Specialized Conference on Human Rights held in San José, Costa

Rica, delegates of the member states of the Organization of American States (O.A.S.)

686 adopted the American Convention on Human Rights, which became effective on July 18,

1978.2

The 25 countries that have either ratified or adopted the Convention to date are

Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, the

Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras,

Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Trinidad & Tobago,

Uruguay and Venezuela.3

The American Convention protects 25 human rights for the citizens of member states. Amongst these, the right to freedom of expression and thought is protected at article 13 in the following words:

(a) Respect for the rights or reputations of others; or

(b) The protection of national security, public order, or public health or morals;

2 Inter-American Court of Human Rights Web site, http://www.corteidh.or.cr/general_ing/history.html (last visited June 22, 2005).

3 Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123, ‘Pact of San Jose, Costa Rica,” “Signatures and Current Status of Ratifications,” http://www.cidh.org/Basicos/basic4.htm (last visited Apr. 17, 2006).

4 American Convention on Human Rights, http://www.itcilo.it/english/actrav/telearn/global/ilo/law/oashr.htm (last visited Oct. 29, 2002).

687

Thus, similar to the constitutions of the British Caribbean, under the American

Convention the right to freedom of expression is expressly limited by the requirement to protect reputation. Two bodies were created to promote the observance and protection of human rights protected under the Convention. The first was the Inter-American

Commission on Human Rights (I-ACHR), which was created in 1959 and held its first session in 1960.5 The I-ACHR promotes human rights by investigating petitions alleging human rights violations, observing the general status of human rights, “stimulat(ing) public consciousness” about and making recommendations for the promotion of human rights.6 The I-ACHR submits cases to the Inter-American Court, appears as a party in litigation before the court and asks the court for advisory opinions.7 The second body created under the American Convention is the Inter-American Court of Human Rights.8

The Inter-American Court has an adjudicatory function aimed at “enforcing and interpreting the provisions of the Convention.”9

Ratification of the Convention does not automatically make a country subject to the

Inter-American Court. Countries have the option to recognize the court as binding “on all matters relating to the interpretation or application” of the Convention at the time of

5 Inter-American Commission on Human Rights Web site, http://www.cidh.oas.org/what.htm. (last visited Aug. 22, 2005). Between 1960 and 1997, the commission held 97 sessions.

6 Id.

7 Id..

8 Inter-American Court of Human Rights Web site, http://www.corteidh.or.cr/general_ing/history.html. (last visited June 22, 2005). On May 22, 1979 the countries that were party to the Convention elected, at the seventh special session of the OAS General Assembly, the first judges to sit on the court. The court’s first hearing was held on June 29 and 30, 1979 at the OAS’ seat in Washington, D.C.

9 Inter-American Court of Human Rights, WIKIPEDIA, http://en.wikipedia.org/wiki/Inter- American_Court_of_Human_Rights (last visited Apr. 17, 2006).

688 ratification or at any time afterwards.10 Additionally a country’s declaration recognizing the Inter-American Court’s competence can be conditional, temporary or applicable only in specific cases.11 In each situation, the jurisdiction of the court only applies in situations where the state has specifically declared the court competent.12

To date, only 16 states have fully accepted the court’s jurisdiction in all matters pertaining to the American Convention. These are Argentina, Bolivia, Colombia, Costa

Rica, Chile, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Nicaragua, Panama,

Peru, Suriname, Uruguay and Venezuela.13 Other states have, however, allowed the Inter-

American Court to have jurisdiction in regulating some aspects of the Convention.

9.3 Status of the British Caribbean Countries that are Signatories

None of the British Caribbean states have fully recognized the jurisdiction of the

Inter-American Court. Only five British Caribbean nations—Barbados, Dominica,

Grenada, Jamaica and the single nation Trinidad and Tobago—had initially signed the

Inter-American Convention on Human Rights but only one country has recognized the partial jurisdiction of the court.14

When Barbados signed the treaty on November 5 1981, the country specifically reserved the issue of the death penalty which existed under the Barbados Criminal Code,

10 See Convention, supra, at note 3, article 62.1.

11 Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123, art. 62.2.

12 Id. at art. 62.3.

13 Inter-American Commission on Human Rights Web site at “Signatures and Current Status of Ratifications: American Convention on Human Rights ‘Pact of San Jose, Costa Rica,’” http://www.cidh.org/Basicos/basic4.htm (last visited Apr. 17, 2006).

14 Id.

689 but would be prohibited under the American Convention.15 Both Barbados and Trinidad and Tobago made reservations on the issue of the prohibition under the Convention of imposing the death penalty on a person over 70 years old.16 Dominica also reserved the right to impose corporal punishment on its citizens,17 made it clear that certain articles would be interpreted in light of the country’s constitution,18 and expressly did not recognize the court’s jurisdiction.19

Although initially accepting the Inter-American Court of Human Right’s competence only to the extent that it was consistent with its Constitution in 1991,

Trinidad subsequently denunciated the American Convention on March 26, 1998 because of concerns about the prohibition it contained against the death penalty which is legal in

Trinidad.20 Jamaica’s instrument of ratification expressly recognizes the competence of the Inter-American Court “to receive and examine communications in which a State Party alleges that another State Party has committed a violation of a human right set forth in

15 See the American Convention on Human Rights, supra at Note 3, article 4(4) which provides “In no case shall capital punishment be inflicted for political offenses or related common crimes.” Dominica also reserved in relation to the words “or related common crimes.” Barbados also reserved the right to execute persons of 16 years and older and persons over 70 years under its laws.

16 Organization of American States, American Convention on Human Rights art. 4(5) states “Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.” See text of Convention.

17 Id. See Organization of American States, American Convention on Human Rights art. 5.

18 Id. art. 21.1, providing for the right to property; and art. 27.1 allowing the derogation from the Convention in time of war.

19 Id.

20 Ratifications American Convention on Human Rights. See also American Convention on Human Rights art. 5.

690

this Convention.”21 Barbados and Grenada have not expressly accepted the competence

of the court. Thus, only Jamaica has recognized the competence of the court.

Several British and commonwealth courts have held that provisions in international

treaties are binding on states to the extent that they are not inconsistent with domestic

laws.22 This has been held to be the case even where countries have not formally adopted

the treaty into local law.23 In the Caribbean several territories have recognized the

enforceability of international treaties.24

Caribbean legal scholar Rose Marie Belle Antoine suggests that because of the similarity between British Caribbean constitutions and some international human rights treaties, notably the European Convention on Human Rights, and the Privy Council’s recent tendency to expand human rights protection in its jurisprudence, the treaties and their interpretation should be considered as indirect law.25

21 Id. See Organization of American States, American Convention, supra.

22 See R. v. SOS of the Home Dept. exp. Brind, [1991] 1 A.C. 696, 733, 787–789; Rantzen v. Mirror Group Newspapers Ltd., [1994] Q.B. 670.

23 See Bulmer v. Bollinger, [1974] 2 All E.R. 1221 (United Kingdom Court of Appeal); Tavita v. Minister of Immigration, [1994] N.Z.L.R. 257 (New Zealand Court of Appeal); Mabo v. Queensland, (1992) 175 C.L.R. 1 (Australia Court of Appeal).

24 See Peters v. Marksham, (1997) 2 C.L.B. 91, where the High Court of St. Vincent declared the enforceability of international law and found, therefore, that flogging with the cat-ó-nine tails, a form of corporal punishment, violated the United Nations Declaration on the Prevention of Crime and the Treatment of Offenders art. 1. See also Hobbs et al v. R, [1994] C.L.B. 45, where the Barbados Court of Appeal also held that flogging with the cat-ó-nine tails was inconsistent with emerging international standards of civilization. But cf. Re Admission to Practice of Fitzgerald, (1997) 2 C.L.B. 99, where the Belizean Supreme Court held that treaties that were not incorporated into the nation’s law could be used to interpret municipal law but were not binding.

25 ROSE MARIE BELLE ANTOINE, COMMONWEALTH LAW AND LEGAL SYSTEMS 157 (Cavendish Publishing Ltd., London, 1999).

691

9.4 Costa Rican Legal System

However, the case that is the subject of this chapter took place in Costa Rica, a nation that has formally recognized the competence of the Inter-American Court. To understand the Herrera Ulloa case, it is important to understand the judicial system in

Costa Rica.

Costa Rica is a democratic republic26 with sovereignty specifically vested in the people in the country.27 Costa Rica’s 1949 constitution provides for separation of powers between the legislative, executive and judicial branches of government.28

The judicial branch includes a Supreme Court and other legally established courts.29 The Supreme Court of Justice is the highest court in the judicial system (see figure 9-1).30 Under the system, lower courts include the appellate courts and trial courts.31 The Supreme Court consists of four chambers (see figure 9-1): Chamber 1, presided over by seven magistrates, has jurisdiction in civil and administrative matters;

Chamber II, presided over by five magistrates, has appellate jurisdiction in civil matters including family, estates and labor law; Chamber III, presided over by five magistrates,

26 COSTA RICA CONST., art. 1, http://www.costaricalaw.com/legalnet/constitutional_law/engtit1.html (last visited Apr. 17, 2006).

27 Id. at art. 2.

28 ROGER A. PETERSEN, A GUIDE TO LEGAL RESEARCH IN COSTA RICA (published October 2005), http://www.nyulawglobal.org/globalex/Costa_Rica.htm (last visited Apr. 17, 2006). Petersen is an attorney- at-law who practices in Costa Rica and Florida.

29 COSTA RICA CONST. art. 152.

30 COSTA RICA CONST. art. 156.

31 PETERSEN, supra at Note 28.

692 hears only criminal appeals; Chamber IV, has exclusive jurisdiction in constitutional matters.32

SUPREME COURT

CHAMBER I CHAMBER II CHAMBER III CHAMBER IV Civil-Administrative Civil-Family-Estates Labor Criminal Constitutional

APPELLATE COURTS Tribunales

Tribunal Tribunal Tribunal Tribunal Tribunal Tribunal Tribunal Tribunal Penal Juvenile Labor Admin. Agrarian Family Civil Notary Law Discipline

TRIAL LEVEL COURTS Juzgados

Civil Penal Labor Admin Family Juvenile Domestic Notary Agrarian Violence

LOWER LEVEL COURTS

Civil Labor Child Traffic Misdeamenor Summary Support Court Offenses Admin.

Figure 9-1. The Legal System in Costa Rica borrowed from ROGER A. PETERSEN, A GUIDE TO LEGAL RESEARCH IN COSTA RICA(published October 2005), http://www.nyulawglobal.org/globalex/Costa_Rica.htm (last visited Apr. 17, 2006).

As indicated earlier, not only is Costa Rica a signatory to the American Convention on Human Rights, but the government has fully recognized the competence of the

Inter-American Court of Human Rights. In addition, article 7 of the Costa Rican

Constitution provides that treaties ratified by the national legislature have “higher

32 Id.

693 authority” than national laws.33 To a large extent the Inter-American Court of Human

Rights has jurisdiction to make decisions nullifying statutes that are inconsistent with the provisions of the Human Rights Convention.

Costa Rica’s Penal Code establishes crimes and provides for punishments. The

Code of Criminal Procedure controls the procedures for adjudicating the criminal offenses.34 In the Herrera Ulloa case, aspects of the Penal Code that allowed the prosecution of journalists under criminal insult or “desacato” laws were found by the

Inter-American Court to be inconsistent with the article 13 protection of freedom of speech under the American Convention.

According to a report of the Special Rapporteur for Freedom of Expression of the

Organization of American States the criminal classification for libel or slander laws relate to “the false imputation of criminal offenses or of expressions that damage the honor of a person.35 “Desacato” or “offenses against the honor” laws emerged as an alternative used by the governments of some Latin American countries to replace honor crimes in the case of conflicts between private persons caused by insults, according to the O.A.S. report.36

In the past these conflicts caused by an infringement of the honor or dignity of another person were settled by a duel.37 As time passed these duels to restore one’s honor were criminalized. To ensure that persons could protect their honor it was made a criminal

33 COSTA RICA CONST. art. 7.

34 PETERSEN, supra at note 23.

35 ORGANIZATION OF AMERICAN STATES, 6-CHAPTER V – “DESACATO” LAWS AND CRIMINAL DEFAMATION, ¶ 23, http://www.cidh.org/Relatoria/showarticle.asp?artID=310&IID=1 (last visited July 12, 2006).

36 Id. at ¶ 24.

37 Id.

694 offense to besmirch another’s honor. These laws are referred to variously as “desacato” or “offenses against the honor” or “insult” laws.38

The Costa Rican Criminal Code provides at articles 145 to 155 for criminal prosecutions for insult or offenses against the honor crimes.

9.5 Facts of the Herrera Ulloa Case

Costa Rican journalist Mauricio Herrera Ulloa and La Nación, a Costa Rican newspaper, were convicted on November 12, 1999 in the San José First Circuit Criminal

Trial Court in Costa Rica on four counts of libel for articles published in La Nación on

May 19, 20 and 21 and December 13, 1995. This conviction was upheld by the Supreme

Court of Costa Rica, but the Inter-American Court of Human Rights, on reviewing the conviction, held that it was a violation of the article 13 protection for freedom of expression.

The articles had alleged that Félix Przedborski, Costa Rica’s honorary representative to the International Atomic Energy Agency in Vienna, Austria had committed several illegal acts including drug trafficking, tax fraud and fraudulent bankruptcy, and questioned his suitability for public office.39 The articles published by

La Nación included information that had previously been published in the Belgian press.40

38 Id.

39 Order of the Inter-American Court of Human Rights, Sept. 7, 2001: Provisional Measures Requested by the Inter-American Commission on Human Rights In the Matter of the Republic of Costa Rica—The La Nación case (hereinafter referred to as La Nacion, Sept. 7, 2001). ¶ 1(3) (a)

40 La Nación, Sept. 7, 2001, ¶ 1.3(a). See also Ulloa v. Costa Rica, Inter-American Court of Human Rights, supra at ¶ 95(d) (2004): The article published on May 19, 1995 titled “Diplomatic national questioned in Belgium,” included information reproduced from an article published in Him Soir Illustre based on an investigation by the daily Financieel-Ekonomische Tijd (FET), and linked Przedborski, who was at the time a delegate of Costa Rica, with diverse illicit activities. See id. at ¶ 95(e): The article published on May 20, 1995 reproduced information from the King’s attorney’s office in Bequeath, Belgium and was favorable of

695

Herrera Ulloa was a seasoned journalist who had worked 12 years at La Nación and was assigned to the paper’s political section.41 Attorney Fernán Vargas Rohrmoser, who

was also named in the libel action, was the president of the board and legal representative

for La Nación in 1999.42

Before publishing the articles, Herrera, as part of the newspaper’s fact-checking

procedure, sent Ricardo Castro Calvo, Przedborski’s lawyer, a questionnaire on the facts published in the Belgian press about his client.43 On December 13, 1995, an article was

published indicating that a high-level commission constituted within the Costa Rican

Ministry of Foreign Affairs and the Foreign Service of Costa Rica had proposed the

elimination of all honorary diplomatic posts. The article stated that because of his

diplomatic status, Przedborski was “beyond the reach of the law.”44

Przedborski had been in the diplomatic service for more than 20 years at the time the articles were written.45 On June 28, 1996 the Ministry of Foreign Affairs revoked the

Przedborski. See also id. at ¶ 95(f): An article published on May 21 included information published by “Him Soir Illustre,” by Financieel-Ekonomische Tijd (FET), and “The Free One Belgique” which intimated a relationship between Przedborski and Leon Deferm, who had been linked to the payment of hidden commissions to Italian soldiers in Belgium. See also id. at ¶ 95(g). In the article published on May 25, Felix Przedborski gave his version of the story.

41 Ulloa v. Costa Rica, Inter-American Court of Human Rights, supra at ¶ 95(a).

42 Id. at ¶ 95(b).

43 Id. at ¶ 95(c) & (h).

44 Id. at ¶ 95(i). Three additional articles published by La Nación on December 14, 15 and 16 were not named in the complaint. Id. at ¶ 95(j).

45 Id. at ¶ 95(k): Przedborski was appointed as Permanent Delegate for the International Atomic Energy Agency headquartered in Vienna on August 20, 1976. Id. at ¶ 95(l): On September 7, 1979 Przedborski was appointed Chargé for Tourist Matters ad honorem of the Embassy of Costa Rica in France. Id. at ¶ 95(m), On April 15, 1983, Przedborski was offered ambassadorship in his appointment as permanent delegate to the International Organization of Atomic Energy. Id. at ¶ 95(n): Costa Rica later named a commission to restructure the Department of Foreign Affairs and the commission repealed the appointments of ad-honorem officials including Przedborski.

696 appointment of some honorary diplomats including Przedborski effective June 30.46

Przedborski sued Herrera and La Nación in the Costa Rican courts for defamation, calumny and other publication offenses under the Penal Code for the articles published in

La Nación.47 Initially, on May 29, 1998, the Criminal Court of the First Judicial Circuit of San José acquitted Herrera finding an absence of the malice necessary to constitute the criminal defamation, calumny and publication offenses alleged. The court also dismissed the civil action against Herrera and La Nación.48

Przedborski applied to the Third Chamber of the Costa Rican Supreme Court which hears criminal appeals, to have the lower court’s decision nullified.49 The Court nullified the lower court’s decision on May 7, 1999 on the basis that the court had taken, in its analysis, a path

other than the one required for a proper inquiry into the existence or non-existence of the facts of the criminal complaint, particularly regarding such a fundamental question as what did defendant Mauricio Herrera-Ulloa know and what was his intent. . . . [T]he bases of the judgment are not sufficient to reasonably discard the presence of actual or possible malice (with regard to the crimes charged).50

The matter was, thus, remitted to the lower court for the court to make a deliberation on the issue of malice raised by the Supreme Court.

On November 12, 1999 the First Judicial Circuit Court of San José held that the articles had been published “fully mindful of the offensive nature of their content and for

46 Id. at ¶ 95(o).

47 Id. at ¶ 95(p). This was in relation to the articles published on May 19, 20 and 21 and December 13, 1995. He also filed a civil action.

48 Id. at ¶ 95(q).

49 Id. at ¶ 95( r). quoting Judgment No. 000540-99 of May 7, 1999 of the Third Chamber of the Costa Rican Supreme Court.

50 Id. at ¶ 95(s), quoting Judgment No. 000540-99 of May 7, 1999 of the Third Chamber of the Costa Rican Supreme Court.

697 the sole purpose of dishonoring and besmirching the reputation of Mr. Félix

Przedborski.”51 The court rejected the defense of justification and held that Herrera was guilty of four counts of defamation under the Criminal Code of Costa Rica.52 Herrera was fined 300,000 colones.53 Herrera was also held liable to pay 60,000,000 colones in civil damages. The court ordered that its ruling be printed in La Nación in the same section and using the same size typeface as that used in the articles that had spurred the libel case. The Court also ordered that the existing link to the stories about Przedborski in the online version of the newspaper, La Nación Digital, should be broken and replaced with a link connecting the articles to the First Judicial Circuit’s holding. Herrera and La Nación were also ordered to pay court costs and personal expenses of 1,000 and 3,810,000 colones respectively. 54 After this sentence no further stories about Przedborski were published, according to the Inter-American Court’s 2004 opinion in Herrera.55

Herrera and Rohrmoser, in his role as representative of La Nación, appealed the decision asking the Supreme Court to nullify the judgment and acquit Herrera and the newspaper.56 However, on January 24, 2001 the Third Chamber of the Supreme Court of

Justice denied Herrera’s and Rohrmoser’s application for the nullification of the

51 Id. at ¶ 95(t), quoting Judgment No. 1320-99 of November 12, 1999, of the Criminal Court of the First Judicial Circuit Court of San José, Court Three, San José.

52 Id. Costa Rica Criminal Code art. 152 and 146.

53 Id. Originally he had been fined 2,500 colones each day for 160 days. The fine was reduced to 2,500.00 colones each day for 120 days.

54 Id. at ¶ 95(u).

55 Id. at ¶ 95(v).

56 Id.

698 judgment and the November 12 judgment became final.57 The panel of judges in the

Third Chamber who denied the application for nullification was comprised of the same judges who had ordered nullification of the not guilty sentence in May 1998.58

Legal expert Carlos Tiffer Sottomayor gave evidence on behalf of Herrera before the Inter-American Court. According Sottomayor there are three effects of a criminal conviction in Costa Rica:

• legal; • professional; and • personal.59

Sottomayor said the legal effect was the actual judgment or conviction. On conviction, however, the convicted person’s name is automatically entered into the

Judiciary’s Record of Convicted Felons which prevents any applications to stay the execution of the judgment. Apart from civil and criminal penalties identified by the independent legal expert, Sottomayor, Herrera’s attorneys argued in the Inter-American

Court that the legal effect also includes restrictions against entering the civil service, obtaining a driver’s license, gaining admissions to a university to get a degree, obtaining a driver’s license insurance policy, obtaining pensions, adopting a minor, and obtaining work in Costa Rica and abroad.60

On the professional level, Herrera’s name in the Judiciary’s Record of Felons also exposed him to public censure and stigmatized him in such a manner that he could not

57 Id. at ¶ 95(x).

58 Id. at ¶ 95(y).

59 Id. at ¶ 66(e).

60 Id. at ¶ 102.4(b), Herrera’s lawyer’s argument.

699

practice his profession, Herrera’s lawyers said.61 On a personal level, having Herrera’s

name in the Record of Felon’s also was detrimental to Herrera’s family, name, honor and

reputation, according to Herrera’s attorneys.62

On February 21, 2001, the Criminal Court of the First Judicial Circuit Court of San

José ordered the execution of the November 12, 1999 sentence which had become

final.63At this point, Herrera applied to the Inter-American Human Rights System to

review the Costa Rican court’s decision.64

The Inter-American Commission was required to conduct a prima facie evaluation

of whether there were grounds to support an apparent or potential violation of the rights

in the Convention. Under the American Convention of Human Rights the petition for

review should be admitted unless it was found that the petition was “manifestly

groundless” or “obviously out of order.”65 The commission examined the petition which

61 Id. at ¶ 102.4(d).

62 Id.

63 Id. at ¶ 95(z).

64 Id., resolution section. The Inter-American Court said article 63 allowed the court to impose preventive measures to preserve the status quo in a “juridical situation” or to protect human rights. Id. at considerations ¶ 4. The Court said freedom of expression was a cornerstone for the existence of a democratic society and indispensable to the formation of public opinion.

It is also a condition sine qua non for the development of political parties, trade unions, scientific and cultural societies and . . . those who wish to influence the public. It represents . . . the means that enable the community, when exercising its options, to be sufficiently informed . . . a society that is not well informed is not a society that is truly free. Id. at considerations ¶ 6.

65 La Nacion, I-ACHR Report, December 3, 2001, at ¶ 45. The American Convention of Human Rights, art. 47(b) provided that

The Commission shall consider inadmissible any petition or communication submitted under art. 44 or 45 if: (b) the petition or communication does not state facts that tend to establish a violation of the rights guaranteed by this Convention . . .” (b) the statements of the petitioner or of the state indicate that the petition or communication is manifestly groundless or obviously out of order. . . . Id.

700 alleged that criminal libel laws infringed the right to freedom of expression under the

Convention because it allowed prosecution for “offenses against one’s honor” or desacato laws.66 The petition also claimed that the truth defense infringed freedom of expression under the Convention by limiting the defense to the proof of the truth of the statement and not providing defenses in the case of a neutral or fair report.67 The petition also alleged that, because the judges were impartial in the appeal made after the conviction,

Herrera and the others were denied their rights under the Convention to a fair trial.68 This argument was based on the fact that the same panel of judges that had overturned a lower court’s decision that Herrera was not liable for libel, appeared in another appeal against his conviction for libel. The commission found that the case was neither “manifestly groundless” nor “obviously out of order” and there were grounds to support the allegations.69 The commission admitted the case for review before the Inter-American

Court of Human Rights to determine whether Costa Rica had violated article 13 of the

The commission noted that under art. 47(b), there was no need for the commission to determine whether there was a violation of the Convention: it was sufficient to determine whether it could be characterized as a violation or was “manifestly groundless” or “obviously out of order.” Id. at ¶ 50.

66 La Nacion, IACHR Report, December 3, 2001, at ¶ 21.

67 Id.

68 La Nacion, I-ACHR Report, December 3, 2001, at ¶ 22.

69 Id. The commission found that the

extensive arguments presented by the [government of Costa Rica to establish the groundlessness of the case] demonstrated that the petition was not ‘manifestly groundless,’ that it is not ‘obviously out of order,’ or that it does [not] characterize a presumed violation. On the contrary, the very response of the [government] deserves a more careful examination of the petition during the stage involving its merits. Id. at ¶ 51.

The commission found that the Herrera had proven there was a prima facie case and that the petition required a “a more careful examination” on the merits of the case.

701

American Convention on Human Rights by convicting Mauricio Herrera Ulloa of

criminal libel and imposing both civil and criminal liabilities.70

When the matter was moved to the Inter-American Court of Human Rights, the court rejected preliminary arguments by the Costa Rica’s government’s attorneys that internal remedies had not been exhausted before the newspaper had appealed to the

Inter-American System71 and that Rohrmoser’s name had been illegally added to the action.72 The Inter-American Court held that Herrera’s right to a fair trial had been

infringed on two grounds—the lack of an effective system of appeal in the Costa Rican

system and the fact that the case had been tried before an impartial jury.73

In relation to the first issue, the lawyers argued that by not providing an effective

system of appeal to a higher court that would allow an in-depth re-examination of the

case, the Penal Code impeded Herrera’s right to due process and violated article 8.2(h).74

70 Herrera Ulloa v. Costa Rica, Inter American Court of Human Rights, ¶ 2.

71 Id. at ¶ 86–87. Article 46.1(a) of the Convention requires local resources to be exhausted before an action can be admitted for hearing before the Inter-American System. Costa Rica had argued that Herrera could have applied for an action for unconstitutionality. The Inter-American Court noted, however, that an action for unconstitutionality was an “extraordinary” action, aimed at questioning the constitutionality of a law rather than the revision of a court decision based on the law. Since the issue under review was the sentence imposed by the Penal Court of the First Judicial Circuit of San Jose on November 12, 1999, internal remedies had been exhausted in relation to that issue, it was not an internal resource that Herrera had to exhaust. Id. at ¶ 85.

72 Id. at ¶ 94. The court held that, although it had been annexed to the petition before the IACHR after the matter had been started on March 1, 2001, the April 3 resolution had been incorporated into the development of the case before the IACHR. On May 10, 2001, during the decision-making process, copies of the resolution were sent to the Court. Because the “probative heritage” of the case was integrated into the test during all phases of the process, the documents contributed at all stages were part of the probative material in the present case. Id. at ¶ 91. The court said the resolution was a legal effect of the sentence which was the subject of Ulloa’s petition and could not be examined independently of it. Id. at ¶ 92. The resolution had been decreed by a State organ and the State could not argue its “material non-existence.” Id. at ¶ 93.

73 Id. at ¶ 175.

74 Id. at ¶ 168. Art. 8.2(h) provides

702

The court said that an important aspect of an effective system of due process was that it

should allow the full re-examination of evidence in the case on appeal.75 The court noted that the only resource for appeal in Costa Rica that allowed a full examination of a case was an action for nullity.76 However, the resource of nullity only applied where a

decision was made that did not observe or erroneously applied a legal principle.77 Since the application of a wrong legal principle was not at issue in the Herrera case, there was

no effective avenue for a thorough review of the lower court’s decision and Herrera’s

right to due process was infringed, the Inter-American Court found.78

Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees . . . the right to appeal the judgment to a higher court. Id.

75 Id. at ¶ 163, 165 and 167.

76 Provisions for nullification are contained in arts. 443-451 of the Criminal Procedure Code.

77 Id. at ¶ 150. Under the Criminal Procedure Code art. 443, in order to justify a declaration of nullity, a sentence had to be defective because:

1. the allegations in the case were not sufficiently attributed to an individual;

2. the court failed to make a determination of a circumstance or fact that the tribunal felt was important;

3. the judgment was based on a consideration or probative elements inconsistent with legal opinion or incorporated a reading of the law that violated the rules established under the code;

4. the decision was insufficient or contrary to the findings of the majority of the court or did not observe the rules of healthy criticism of the media or probative elements of decisive value; there was a lack of impartiality in essential elements;

5. the date of the action was not known and it was impossible establish it or any of the judges had no firm stance and it was not possible to determine whether they had participated in the deliberation, excepting in cases where this is legally provided for;

6. rules provided for the deliberation and composition of the sentence or relating to the correlation between the sentence and the accusation or other rules were not observed; or there was an erroneous application of the substantive law. Id.

78 Id. at ¶ 167.

703

Secondly, the Inter-American Court also held that the state had violated article 8.1

of the Convention’s guarantee of the right to be tried by an impartial judge by allowing

the same magistrates of the Third Chamber of the Supreme Court to preside at both of the

nullity hearings in the same case. The effect was that Herrera did not have the

opportunity to have a fair trial before an impartial jury.79 In legal jargon the word “jury” is often associated with any panel of adjudicators including situations where a panel of judges sit alone without a jury.

Thirdly, the Inter-American Court held that the sentence against Herrera was an

infringement of his right under article 13 to give and receive information. This paper

focuses on the court’s decision on incompatibility of the decision with the right to

freedom of expression under the Inter-American Convention.

9.6 Written Evidence and Arguments in the Court

Lawyers for Herrera produced a written affidavit by Herrera’s wife. Additionally

Herrera, the newspaper’s attorney, Rohrmoser, and several legal experts gave evidence in

the court. Herrera and his wife outlined the circumstances in which he was tried for libel

79 Id. at ¶ 175. American Convention art. 8.1 provides

Every person has a right to a hearing, with due guarantees and within a reasonable time, by a competent, independent and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.

The court said it had determined in the past that, under art. 8.1 of the Convention, anyone subject to a sentence brought before any state agency should be guaranteed that the agency was impartial and was acting within the framework of proceedings legally provided for the resolution of the case. Id. at ¶ 169. The Inter-American Court also held that the right to be judged by an impartial and objective judge or tribunal was fundamental to due process to inspire the confidence of the parties and the citizens of the society. In the Herrera case, the same judges had sat in the original annulment hearing in 1999 as those who sat in the 2001 hearing. Id. at ¶ 172. In quashing the sentence in the first annulment hearing, the Third Room of the Supreme Court of Justice sent the matter back because, it held, the basis of the sentence was insufficient to rationally rule out the existence of malice, direct or indirect in publishing the material. Id. at ¶ 173. In coming to this decision, the judges said they had analyzed the case carefully and did not merely comment on the form. Thus, the magistrates of the Third Room should not have presided at the second nullification hearing, the Inter-American Court held. Id. at ¶ 174.

704 and the emotional effects of the trial on himself, his marriage and family. The newspaper’s legal experts argued that Herrera’s, and the newspaper’s, conviction was an infringement of freedom of speech which was protected under the Convention. The legal experts also noted that the Costa Rican court’s conviction was illegal because the judges did not apply principles such as actual malice in their decision. They also argued that the damages and entry of Herrera’s name in the Judiciary’s Record of Felons would have a chilling effect on expression and freedom of the press in Costa Rica. Thus, they argued that the conviction should be reversed.

Lawyers for Herrera produced a written affidavit by Herrera’s wife. Additionally

Herrera, the newspaper’s attorney, Rohrmoser, and several legal experts gave evidence in the court. Herrera and his wife outlined the circumstances in which he was tried with libel and the emotional effects of the trial on himself and his marriage and family. The newspaper’s legal experts argued that Herrera’s and the newspaper’s conviction was an infringement of freedom of speech which was protected under the Convention. The legal experts also noted that the Costa Rican court’s conviction was illegal because the judges did not apply principles such as actual malice in their decision. They also argued that the damages and entry of Herrera’s name in the Judiciary’s Record of Felons would have a chilling effect on expression and freedom of the press in Costa Rica. Thus, they argued that the conviction should be reversed.

Laura Mariela Gonzalez Picado’s Evidence

Laura Mariela Gonzalez Picado swore in an affidavit that she married Herrera in

1995, the same year that the articles were published. Herrera was a journalist at the time covering the Ministry of Foreign Affairs and the diplomatic service. She testified that from the time of their engagement, and when they were still newlyweds, Herrera was

705

“tense and depressed” because he had been threatened with the possibility of indictment for and, later, was indicted for, libel.80 Initially Herrera was acquitted, but the acquittal was reversed by the Supreme Court and the matter was remanded to the lower court by the Supreme Court of Justice in 1999. Herrera had to take medication to calm his nerves, his wife said.81 She said he spent more than one month going to court every day and asked her to take their children and live with her mother.

When Herrera was convicted of libel, and his name was recorded as a convicted felon in the Judicial Registration of Felons, his career as a journalist was destroyed, Laura said. Although the newspaper continued to assign him stories to write, Herrera was afraid to publish the stories, fearing another libel action. Laura and Herrera were forced to sell their home and move to another neighborhood where no one knew about his conviction.82

Testimony Before the Court

While the evidence of Herrera’s wife was provided in the form of an affidavit, the other evidence provided on behalf of Herrera was presented as testimony before the

Inter-American Court in a public hearing. Mauricio Herrera Ulloa stated that during 12 years as a journalist at La Nación he had been the editor of supplements, written stories for the political section, and was, in 2004, working in the newspaper’s research unit.83 He said that, on May 19, 20, and 21, and December 13, 14, 15 and 16, 1995, while he

80 Id. He was charged in January 1996.

81 Id. at ¶ 61. Laura was forced to leave the conjugal home, taking her children to live with her mother.

82 Id.

83 Id. at 66 a.

706 worked in the political section of the paper he published the seven articles about

Przedborski based on information in four leading Belgian newspapers.84

Mauricio Ulloa Herrera’s Testimony

In his testimony before the American Court of Human Rights, Herrera said he believed that La Nación had a duty to inform Costa Rican citizens about the stories on

Przedborski in the Belgian newspapers based on both a right for citizens “to seek and investigate and impart” information of public interest and to receive information. In writing the stories, Herrera said he was exercising both these freedoms.85

Before publishing, Herrera and La Nación had exhaustively verified, updated and confirmed the facts in the news story with all the sources they could contact. In accordance with the newspaper’s policy the story was also vetted by the editors, publishers and the paper’s lawyer.86 After exhaustive but unsuccessful attempts to locate

Przedborski the first story was published without input from him.87

After the first story was published Herrera was contacted by Ricardo Castro, who identified himself as Przedborski’s lawyer. Herrera attempted to get Przedborski’s comments through his lawyer and even sent him a written questionnaire. However,

Castro refused to answer the questions. Because he could not contact Przedborski,

Herrera said he resorted to sources in the Ministry of Foreign Affairs and to the foreign and deputy foreign ministers of Costa Rica. Both ministers supported the accusations that

84 Id.

85 Id.

86 Id.

87 Id.

707 had been made against Przedborski.88 He interviewed Costa Rican diplomats and ex-diplomats who all confirmed that the article had been published and accusations had been made against Przedborski in the Belgian press and expressed concern about the constant discussion of Przedborski in newspapers.89 Although he could not get a comment from Przedborski, Herrera included the favorable opinions of Przedborski held by former Costa Rican presidents Luis Albert Monge and Rafael Angel Calderón in the articles. He also included “verbatim” the information supplied by Przedborski’s lawyer,

Castro. He also “contextualized” the articles with information he retrieved from the public domain about Przedborski since the charges published in the Belgian press against

Przedborski were not isolated. Although he had no information to dispute the stories in the Belgian papers and his research confirmed the truth of the articles, Herrera stated in his evidence that he modified the tone of the information published in the European papers.90 However, he testified, he did not find any information that would “disprove the information” reported in the Belgian newspapers. All the information he found confirmed the truthfulness of his story. If he had found evidence that disputed the story in the

Belgian media, he said he would have issued a retraction.91

The publications had been printed in Costa Rica in the context of a national discussion and concern over diverse scandals involving Costa Rican diplomats. The scandals led the Ministry of Foreign Affairs to convene a special body to investigate what

88 Id.

89 Id. The Ambassador of Costa Rica in Belgium sent an official report to the Chancellery translating the article in the Belgian newspapers and expressing his concern.

90 Id.

91 Id.

708 was happening in the Foreign Service and some appointments of honorary diplomats were revoked.92 Nonetheless, as a result of the publication, Herrera was charged with two libel offenses, and ultimately convicted by the Costa Rican court.

The publication of Herrera’s name in the Judiciary’s Record of Felons concerned

Herrera. The publications in the Record are made available to local government bodies, the police, rural constabularies, and other government bodies. While the publication of his name in the judicial record was “widely reported and publicized,” Herrera said the removal of his name from the Judiciary’s record in accordance with a December 2001 order of the Inter-American Court was not widely known. Herrera said that throughout the criminal trial, conviction and inscription of his name in the Judiciary’s Record of

Felons, he was afraid of the effect of the whole process on his personal life, his career and his family. Herrera said the eight-year ordeal of trials and appeals was a disgrace for him because it discredited his adherence to professional standards in journalism.93

Ultimately, when he was convicted and treated as a felon, the stigma had a “tremendous, terrible, devastating” effect on his ability to practice his profession. After the conviction

Herrera said, each time he interviewed public official sources, they would say “oh, you are the convicted journalist.” and frequently warn him “be careful you could wind up in court again.” He said it was like walking with a label saying “convicted or libelous journalist.”

Herrera said it was impossible for him to pay the fines and damages—amounting to a total of 360,000 colones—under the judgment. He asked the Inter-American Court to

92 Id.

93 Id.

709 overturn the sentence of the Costa Rican court because it was important that no Costa

Rican should be treated as a “criminal” for “airing matters of public interest.”94 He also hoped that Costa Rica would decriminalize “crimes against the honor” to prevent Costa

Ricans who criticized public officials from being penalized. Although it was not possible to repair the damage to him, Herrera said, he asked the Inter-American Court to order the

Costa Rican government to compensate him and his family for the suffering they had endured and to publicly acknowledge the error of this conviction.95

Fernán Vargas Rohrmoser’s Testimony

Attorney Fernán Vargas Rohrmoser, who was president of the board of directors of

La Nación at the time the articles were published, and who was responsible for overseeing its corporate interest, in his testimony stated that the conviction against La

Nación negatively impacted the newspaper’s credibility.96 The conviction forced the board of directors of the newspaper to focus on its credibility and to institute procedures and edit the content of the newspaper to guard against a further conviction. Because of the “exaggerated amounts” of money the paper had to pay under the judgment,

Rohrmoser said, the editor’s independence was impaired because he feared another libel suit.97

Thus, the newspaper had instituted internal procedures to review articles and ensure that the stories were balanced and the facts were verified. The articles were reviewed by the writer, editor of the section or publisher, editor-in-chief, and director of the paper and

94 Id.

95 Id.

96 Id. at ¶ 66(b). Rohrmoser is currently Vice President of La Nación..

97 Id.

710 ultimately the legal adviser to ensure that there was nothing that might lead to a legal action. Because of the criminal conviction, there was a fear at La Nación that the newspaper could be indicted again at any moment.98

Legal Expert Testimony for Herrera and the Newspaper

Additionally evidence was presented on behalf of Herrera by three legal experts.99

The three lawyers were Rubén Hernández Valle,100 Héctor Faúndez Ledesma,101 and

Carlos Tiffer Sotomayor.102 Although the three are lawyers, they were not Herrera’s lawyers and were only testifying on behalf of Herrera.

Additionally evidence was presented on behalf of Herrera by three legal experts.103

The three lawyers were Rubén Hernández Valle,104 Héctor Faúndez Ledesma,105 and

Carlos Tiffer Sotomayor.106

The legal experts who gave evidence for Herrera agreed in their evidence that the

Costa Rican Penal Code that provided for criminal prosecutions for crimes against honor was inconsistent with article 13 of the Inter-American Convention which protected

98 Id. He said he hoped the judgment would be nullified “otherwise it [would] have a profound impact on democracy in Costa Rica.” Id.

99 These were Rubén Hernández Valle, (¶ 66 (c)), Héctor Faúndez Ledesma (¶ 66(d)), Carlos Tiffer Sotomayor (¶ 66(e)), Federico Sosto Lopez (¶ 66(f)).

100 Id. at ¶ 66 (c).

101 Id. at ¶ 66(d).

102 Id. at ¶ 66(e).

103 These were Rubén Hernández Valle, (¶ 66 (c)), Héctor Faúndez Ledesma (¶ 66(d)), Carlos Tiffer Sotomayor (¶ 66(e)), Federico Sosto Lopez (¶ 66(f)).

104 Id. at ¶ 66 (c).

105 Id. at ¶ 66(d).

106 Id. at ¶ 66(e).

711

freedom of speech107 because it inhibited political debate on matters of public interest.108

Further, they argued, crime against honor prosecutions were unnecessary since the criminal law should be used to prosecute libel actions only as a last resort and only in situations where there were no other effective remedies.109

Article 149 of the Costa Rican Penal Code as translated110 provides for the defense of truth where the statement was true and not made with malice or ill will.111 However, the defendant could only prove the truth of the statement where the statement was made in connection with the “defense of a current public interest,” or where the complainant asked the defendant for proof that the statements against him were made and the proof

“did not affect the privacy rights of third parties.”112 However, the truth defense would not apply in the case of offenses or matters of a private nature.113

107 Herrera Ulloa v. Costa Rica, Inter American Court of Human Rights, supra. See reports of Rubén Hernández Valle, (¶ 66 (c)), Héctor Faúndez Ledesma (¶ 66(d)), Carlos Tiffer Sotomayor (¶ 66(e)). Penal Code art. 146, 149 and 152 provided for actions to be brought for crimes against honor.

108 Id. See Ledesma (¶ 66(d)).

109 Id. See reports of Rubén Hernández Valle, (¶ 66 (c)), Héctor Faúndez Ledesma (¶ 66(d)), Carlos Tiffer Sotomayor (¶ 66(e)).

110 The Language Training Center in Kingston, Jamaica translated the relevant sections of the code on behalf of the writer.

111 Costa Rica Penal Code art. 149 as translated provides

The injury or defamation is not punishable if the utterance consists of an affirmation of the truth and has not been made out of malice or of a desire to offend. Id.

112 Costa Rica Penal Code art. 149 as translated provides

However, the accused person will only be able to assert the truth of the utterance:

(1) If the utterance is found to be connected to the defense of current public interest; and

(2) If the complainant requests the proof [of the facts] of the utterance against him, provided that the proof does not affect the rights or privacy of third parties. Id.

113 Costa Rica Penal Code art. 149 as translated provides

712

The legal experts called by Herrera’s lawyers agreed in their testimony that article

149 of the Penal Code required the defendant in relying on the defense of truth to prove the truth of the information published only rather than whether the journalist acted with good faith in publishing.114 The experts argued that requiring writers and speakers to prove the truth of the statements they made was incompatible with the requirements of a democratic society and with the American Convention. Thus, the article forced journalists to censor themselves to avoid criminal sanctions. This was an important criticism in the Herrera case since the information being censored was of public interest, said legal expert Rubén Hernández Valle.115

Valle said that Spain’s Constitutional Court had held that “were truth to be a prerequisite for the right [to free speech], then silence would be the only guarantee of legal certainty.”116 Thus, the Spanish Constitutional Court had developed a theory of neutral reporting into its jurisprudence. Neutral reporting applied as a defense in libel cases in Spain when a newspaper reported statements made by third parties. In such situations, once the newspaper abided by its “duty of diligent reporting,” it would not be liable, Valle said. The duty of diligence in reporting was usually served where the fact that the statement was made was verified, regardless of its truthfulness.117 Valle said diligence did not “extend to confirming the truthfulness of the statement, as truthfulness

The author of slander or defamation may prove the truth of the alleged act except where it deals with active offenses or matters of a private nature and that have not been promoted in the utterance. Id.

114 Herrera, supra. See Valle (¶ 66(c)), Ledesma (¶ 66(d)) and Sottomayor (¶ 66(e)).

115 Id. See Valle (¶ 66(c)).

116 Id. Valle at ¶ 66(c).

117 Id. Valle at ¶ 66(c). See also Sottomayor (¶ 66(e)).

713 could only be required of the person who made the statement.”118 Thus, instead of proving the truth of the statement it should be sufficient to show that the reporter acted with diligence, Valle said. Diligence, for Valle, involved the fulfillment of the “minimum required to check the information” by demonstrating that a journalists’ conduct was

“driven mainly by a desire to report a matter of public interest and that he had been reasonably diligent about getting to the truth.” The rationale for this, he argued, was the central role of reporters to report on matters of public importance and this would be hindered if penalties were imposed for the good-faith publication of erroneous matters.

Valle also said a distinction should be made between erroneous and false information. The second should carry both a criminal and civil penalty. However, he said, an erroneous statement should carry only a civil penalty where a reporter acted without diligence and care. A criminal penalty is more serious than the civil penalty and reflects the greater seriousness of the offense of publishing false information. A criminal penalty usually ranges from a fine to a prison sentence. However, the fine would be payable to the state rather than to the person defamed. A civil penalty usually takes the form of damages payable to the defamed person.

Valle also said where information was published in good faith the doctrine of actual malice developed by the United States Supreme Court should come into play.119 As was noted in chapter 4, the doctrine of actual malice requires a finding of either knowledge of falsity or reckless disregard for the truth on the part of the newspaper before a public-person libel action can be successful. Legal expert Carlos Tiffer Sotomayor, who

118 Id. See Valle (¶ 66(c)).

119 Id. See also Sotomayor at ¶ 66(e), noting that a penal sentence for erroneous comment such as that imposed on Herrera in Costa Rica would have a chilling effect on the practice of journalism.

714 gave evidence on behalf of Herrera, said that a new bill submitted to the legislature on freedom of speech and of the press in Costa Rica partially included the concept of actual malice. 120 Although the Costa Rican bill did not integrate the full concept of actual malice, it would introduce subjectivity into the determination of liability in libel actions.121

The legal experts agreed that the standard of proof in libel cases should be higher for public than for private persons.122 Sotomayor said in the United States a distinction was made between public officials and private people and the burden of proof lay with officials in libel cases involving public officials.123

Legal expert Héctor Faúndez Ledesma said both the European Court of Human

Rights and the Inter-American Court of Human Rights had declared that, to prevent an infringement of the article 13 guarantee of free expression, in cases of crimes against honor, the burden of proof should rest with the plaintiff rather than the defendant.124

Ledesma also noted that the United States Supreme Court had also held that freedom of speech and of the press were fundamental to democracy and designed to protect political speech and public debate on matters of public interest.125

120 Id. See Sotomayor at ¶ 66(e). Sotomayor also noted that the United States actual malice doctrine had been adopted into the Spanish Penal Code Spanish Penal Code, art. 204 and 207.

121 Id.

122 Id. See Valle (¶ 66(c)), Ledesma (¶ 66(d)) and Sotomayor (¶ 66(e)).

123 Id. See Sotomayor at ¶ 66(e).

124 Id. See Ledesma at ¶ 66(d). See Inter-American Commission on Human Right’s opinion, The Compatibility of Desacato Laws with the American Convention. Id. Ledesma said that the European Court of Human Rights had held that in matters of political criticism and public interest there was full protection for free speech.

125 Id. The Spanish Constitutional Court had also held that freedom of speech played an “important constitutional role in a system of checks, balances and counterbalances” and as a watchdog of democracy.

715

Valle said that public officials should be subject to scrutiny and be more tolerant of criticism in order to allow citizens to exercise control of the conduct of public affairs.126

He said the honor of public officials could be protected in two ways. The first, under the

American Convention, was the right of all persons to reply to allegations.127 Second, one could be compensated for any damage through a civil action.128

Article 152 of the Costa Rican Penal Code provides

Any person who publishes or reproduces by any method a defamatory offence, shall be punished as the author thereof.

The legal experts called by Herrera’s lawyers said article 152 of the Costa Rican

Penal Code imposed a criminal penalty on journalists who published libelous stories originating from a third-party source, despite the use of due diligence in fact checking and investigating the credibility of the source.129 The legal experts who gave evidence for

Herrera argued that the imposition of liability for articles retrieved from third-party sources violated the freedom of speech guarantee in article 13 of the Convention. This criticism was more important, the legal experts said, because of the code’s limited interpretation of the exception of truth and inhibition of criticism of public officials

126 Id. See Valle at ¶ 66(c).

127 Id. See American Convention on Human Rights art. 14.1, which provides

Anyone injured by inaccurate or offensive statements or ideas disseminated to the public in general by a legally regulated medium of communication has the right to reply or to make a correction using the same communications outlet, under such conditions as the law may establish. Id.

128 Id.

129 Id. See Ledesma (¶ 66(d)).

716 which was incompatible “with the needs of a democratic society.”130 Further, article 152 did not distinguish between publication of facts of private and public interest.131

Evidence of Legal Experts on Behalf of Costa Rica

Two legal experts gave evidence for the state of Costa Rica. These were Federico

Sosto López132 and Luis Alberto Saenz Zumbado.133

López said that although under the Costa Rican Constitution international treaties outranked Costa Rican statutes they were “subordinate to the Constitution” itself and, thus, the Convention’s protection for freedom of speech should not trump the provision in the Costa Rican Constitution.134 He said that in interpreting the right to freedom of expression under article 13 of the Convention it was important to remember the

Convention, though a product of its time, was a “living instrument for the protection of human rights.”135 Among the human rights protected by the Convention was the right to reputation, López said.136 “Reputation is a matter of particular importance because the exercise of freedom of expression has made the right to a good name much more vulnerable to attack,” López said. “When rights are exercised there is always the possibility that other rights might be infringed. The goal is to strike a proper balance.137

130 Id. See Valle (¶ 66(c)).

131 Id. See Sottomayor (¶ 66(e)).

132 Id. at 66(f).

133 Id. at ¶ 66(g).

134 Id. See López at ¶ 66(f).

135 Id.

136 Id.

137 Id.

717

López noted that under the Convention freedom of speech could be restricted where the restrictions were provided by law, had a legitimate purpose and were “necessary” and

“justified in a democratic society.”138 He noted that the Convention specifically attributed

“fundamental importance to the right to have one’s honor respected, precisely because it can be more vulnerable or more grievously affected.”139

Luis Alberto Saénz Zumbado, who was both an attorney and a journalist, also gave expert evidence on behalf of the state of Costa Rica.140 Zumbado said that the press had an important role to play in the society in facilitating the free flow of opinions and information.141 The free flow of information in a democratic nation, Zumbado said, facilitated the formation of opinion.142

However, Zumbado said, when journalists were forced to gather information from third parties because they were unable to witness the event themselves, a journalist had a duty to ensure that the “versions he used in his reporting reflect[ed] the event or fact in question as accurately as possible.”143

Zumbado said that under the Convention, the rights of each person were limited by the rights of others.144 Further, the Convention did not subjugate any protected right to

138 Id. See American Convention on Human Rights, art. 13, supra at Part I.

139 Herrera, supra at ¶ 66(g). See American Convention on Human Rights art. 13(2)(a), supra at Part I.

140 Herrera, supra at ¶ 66(g).

141 Id.

142 Id.

143 Id.

144 Id. See American Convention on Human Rights art. 32(2) which provides

The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society.

718 other rights.145 He noted that even the article 13 provision for freedom of expression include limits on this right. He said in the profession of journalism there was an obligation for journalists toe “draw their information . . . from at least two sources.”146

By using two sources, Zumbado said, the different versions of the facts could be

“compared and contrasted with at least one other news source.”147 In a democratic society where information helped build public opinion, Zumbado said, “a plurality of sources will better guarantee the quality of the information.”148 Zumbado did not indicate the basis for his belief that a large number of sources guaranteed quality information.

Having taken note of the evidence, the Inter-American Court turned to the substantive issue in the case of whether Herrera’s right to freedom of expression had been infringed by the sentence.

9.7 Substantive Issue of the Right to Liberty of Thought and Expression

The International Court of Human Rights found that the Supreme Court’s decision in the Herrera case was an infringement of the article 13 guarantee of freedom of speech under the American Convention. Herrera’s attorneys had argued that the Costa Rican government violated the Convention’s guarantees of rights to freedom of expression and to a fair trial, by imposing damages on Herrera and Rohrmoser.149 They argued that the

145 Herrera, supra at ¶ 66(g).

146 Id.

147 Id.

148 Id. Zumbado also distinguished between privacy and private life. He said that “what a public official does in his private life . . . is indeed reportable information, because it would generate a public interest. Acts of privacy are not reportable.”

149 Herrera, supra at para. 102.2(l). American Convention on Human Rights art. 1.1 in relation to art. 13 and 8 of the Convention.

719 state was obliged to adopt new local laws to protect their rights and to suppress all laws and practices that were incompatible with the Convention.150

Arguments in Favor of Herrera and the Right to Freedom of Expression

Because the action was brought before the Inter-American Court by the

Inter-American Commission, arguments were presented separately by both the commission and Herrera’s lawyers. Often these arguments overlapped each other.

Before the Inter-American Court, the commission and attorneys for Herrera argued that article 13 of the Convention, which guaranteed freedom of expression, included two dimensions. The individual dimension was the right to express and receive thoughts and ideas. The social dimension was the right to exchange large amounts of communication among human beings. Both of these ideas were guaranteed simultaneously. The lawyers for both parties argued that the articles written by Herrera involved both dimensions.151

Although many of these arguments parallel those of the attorneys testifying on behalf of

Herrera, the arguments here are those of Herrera’s personnel attorneys as well as those for the Inter-American Commission.

The commission and Herrera’s attorneys argued that the imposition of a criminal sanction to protect Przedborski’s honor and reputation had a chilling effect on freedom of speech and on the publication of information relating to matters of public interest or that involved public officials.152 The chilling effect on speech was more intense because,

Herrera’s attorneys said, to escape liability under articles 152 and 149 of the Costa Rican

150 Id. at ¶ 102.2(m). American Convention on Human Rights art. 2.

151 Id. at ¶ 101.1(a) & 102.1(a).

152 Id. at ¶ 102.3(a) & 101.2(a).

720

Penal Code, the courts had held that Herrera had to prove that the articles were true and not that news about Przedborski’s involvement in murky activities had emanated from the foreign press.153

The Commission and Herrera’s attorneys both argued that, in convicting Herrera and Rohrmoser, Costa Rica had contravened the general duty to respect rights and liberties under article 1.1 of the Convention.154 The commission and Herrera’s attorneys noted that, on conviction, the court’s order was automatically posted in the Judiciary’s

Record of Felons. Once posted, there was no effective remedy except the review under international human rights law.155 The inscription of Herrera’s name in the Judiciary’s

Record of Felons book affected Herrera’s fundamental rights to civil service income, motor vehicle license, pension, and his ability to work in Costa Rica and abroad were affected.156 The inscription also damaged Herrera’s family name, honor and reputation in

Costa Rica157 and restricted his freedom of speech in violation of article 13 of the

Convention.158 Article 13.2 of the Convention provides

the exercise of the right [to freedom of expression] provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:

(a) respect for the rights or reputations of others; or

153 Id. at ¶ 102.3(b).

154 Id. at ¶ 101.2(m) & 102.2(a). Under American Convention of Human Rights art. 2, the State is required to adopt all the measures established in the convention. Id. at ¶ 101.2(n).

155 Id. at ¶ 101.3(a) & 102.4(a).

156 Id. at ¶ 101.3(b) & 102.4(b).

157 Id. at ¶ 101.3(c) & 102.4(d).

158 Id. at ¶ 101.3(d) & 102.4(c). See American Convention article 13.3.

721

(b). The protection of national security, public order, or public health or morals.159

While the Convention allowed subsequent liabilities to be imposed for speech where it was necessary to protect reputation, the commission argued that the imposition of subsequent liability for speech in the Herrera case was disproportionate to the important social interest that was used to justify it.160 Thus, the imposition of subsequent liability violated article 13 of the Convention. To prevent an infringement on the right to freedom of speech, proportionality should be observed in the conflict between freedom of speech and the protection of privacy, the lawyers said.161 They argued that restrictions on freedom of speech and human rights, even when imposed for law and order and the common good, could not remove the right to freedom of speech itself.162 The conviction of Herrera for criminal libel and requirement for him to pay the fine was a larger infringement on freedom of speech than required to protect reputation and so was prohibited under the Convention.163

While the Convention allowed subsequent liability for speech in some circumstances, the Convention expressly prohibited prior restraints on speech. The commission and Herrera’s attorneys also argued that the Costa Rican court’s order to remove the link between Przedborski’s name and the articles in the online version of La

Nación, was a prior restraint and inconsistent with article 13. Similarly, the order to create a new link between the articles and the text of the court’s decision and sentence

159 See American Convention on Human Rights art. 13.2.

160 Herrera Ulloa, supra at ¶ 101.4(b).

161 Id. at ¶ 102.1(c).

162 Id.

163 Herrera, supra at 101.2(d).

722 issued against La Nación was a restriction on freedom of speech because the state’s order interfered with the content of a news publication which was outside the framework of limitations to free speech permitted under article 13.164 Such an order, the lawyers argued, directly imposed a prior restraint, controlling the dissemination of information before publication, which censored the individual’s as well as the country’s right to freedom of speech and information. It also infringed journalists’ rights to publish information on issues of legitimate public interest already published in the foreign press.165

The commission and Herrera’s lawyers both agreed that there should be greater tolerance for criticism of public officials and people voluntarily involved in public matters than that given to private individuals, according to the Inter-American Court’s decision.166 Thus, both parties argued, legal actions for defamation brought by public officials or private persons who voluntarily involved themselves in public matters should not be dealt with criminally but as civil actions and the actual malice standard should be applied.167

The commission said that under the doctrine of actual malice, the dissemination of information about the activities of public officials on issues of public interest could only attach civil responsibility where the communication was made with actual malice,

164 Id. at para. 101.5(a).

165Id. at paras. 101.5(b) & 102.6(a) and (b). The Convention prohibited prior restraint as a means of protecting the honor of public officials. Id. at para. 101.5(c).

166 Id. at ¶ 101.2(c) & 102.2(d).

167Id. at ¶ 101.4(c) & 102.2(h) & 102.5(c).

723 knowledge of falsity or reckless disregard for the truth.168Similarly, under the doctrine the burden of proof rested on the plaintiff to show that the writer intended to inflict damage or acted with knowledge of falsity under the doctrine of actual malice.169 Since, the commission said, Przedborski played an important role representing Costa Rica abroad and the citizens had a “substantial and legitimate interest” in knowing about his conduct in the exercise of this function the actual malice standard should be applied in the case of a libel action brought by him.170 Costa Rica had not presented convincing arguments that Herrera acted with actual malice in publishing the controversial articles about Przedborski, the commission and Herrera’s attorneys said, and so neither criminal nor civil sanctions should be imposed on Herrera and the newspaper.171

Herrera’s lawyers also agreed that a civil action was the correct remedy for a public official who was libeled. However, Herrera’s lawyers said that in the Herrera case the civil damages imposed on Herrera and La Nación by the Costa Rican courts were inseparable from the criminal sanctions and, thus, also infringed freedom of speech.

Since there had been no separate civil trial and the award was disproportionate, the lawyers argued that the civil sanctions violated freedom of speech under article 13 of the

Convention.172

168 Id. at para. 102.5(e).

169 Id. at ¶ 101.4(c).

170 Id. at ¶ 101.4(d).

171 Id. at ¶ 101.4(e). Thus, the civil sanction was also a violation of article 13 of the Convention.

172 Id. at ¶ 102.5(b), (c) & (d). Przedborski had the option to proceed against Herrera for damages under the civil jurisdiction of the court instead of the penal action. Instead he opted for the penal action tying the civil action to it.

724

Commission’s Arguments

The Inter-American Commission argued before the Inter-American Court that restrictions on freedom of speech could only be allowed where they were aimed at satisfying an important public interest. Where such restrictions were necessary in the public interest, the restriction should be appropriate to protect the interest it was intended to protect. Similarly, where more than one option existed to protect the interest, the one that was least restrictive of freedom of speech should be used.173 The commission argued that the restriction of the right in the Convention should not only be useful to obtain a legitimate end, but it also had to be “necessary” and the end should not be capable of being “reasonably” achieved by a less restrictive means.174

The commission argued that using criminal sanctions to prevent criticism of a public official’s illicit activities in the course of exercising his functions was a violation of the Convention.175 The Convention guaranteed Herrera the right to have his dignity and honor respected176 and to be free from “arbitrary or abusive” interference with his privacy and “unlawful attacks on his honor or reputation.”177 Herrera’s conviction was

173 Id. at ¶ 101.1(b).

174 Id. at ¶ 101.1(c).

175 Id. at ¶ 101.2(e).

176 Herrera, supra at ¶ 101.2(a). See American Convention on Human Rights art. 11.1 which provides

Everyone has the right to have his honor respected and his dignity recognized.

177 Herrera, supra at ¶ 101.2(a). See American Convention on Human Rights art. 11.2 which provides

No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.

725 inconsistent with the guarantee of protection of reputation and honor under the

Convention.178

The commission argued that, although criminal sentences for defamation that served a legitimate end were allowed in Costa Rica, the imposition of criminal sanctions for speech made in the public interest violated the article 13 guarantee of free expression under the Convention.179 The commission said that local laws of privacy should be adjusted to conform to international standards, allowing an adequate balance between protection of privacy and honor and the defense of free speech.180 The articles published in the European press about Przedborski were of as much public interest in Costa Rica as in the international community and the promotion of public debate about a public official was an important social interest in a democratic country.

The commission argued that the state had not proved there was a “pressing social need” justifying the restriction on freedom of speech and warranting the criminal sentence.181 The subsequent imposition of criminal liability on Herrera, had not been justified by a proportionate legitimate state interest and, less punitive measures were available to punish the libel.182 Criminal sanctions, they argued, indirectly restricted freedom of speech.183

178 Id. at ¶ 101.2(a).

179 Herrera, supra at ¶ 101.2(a). See section 9.2, supra for the full text of American Convention on Human Rights art. 13.

180 Herrera, supra at ¶ 101.2(b).

181 Id. at ¶ 101.2(i).

182 Id. at ¶ 101.2(j).

183 Id. at ¶ 101.2(k).

726

They also argued that the criminal defamation laws in Costa Rica infringed article

13 of the Convention by allowing truth as a defense only in certain circumstances and requiring the writer to prove the truth of the statement.184 Similarly, they criticized the use of criminal laws to convict journalists for the publication of information in a foreign media or international agency, even where the country had an evident interest in receiving the information. This prosecution for publication of information from third parties led to self censorship and was incompatible with the concept of freedom of speech, the attorneys argued.185 The right to seek information was extensive, they argued, and it was natural in this process that information in one media should be re-published in another media, specifically where the information published in a foreign press related to local issues and involved public officials.186

Herrera’s Lawyer’s Arguments

Herrera’s lawyers argued that the provisions of the Penal Code and the criminal sentence imposed on Herrera impeded criticism of public persons and the essence and content of freedom of speech.187 This was incompatible with the needs of a democratic society and there was no overriding social need to justify it, they said.188

184 Id. at ¶ 101.2(l). Herrera’s attorneys argued that the European Court of Human Rights had held that in a democratic society journalists should not have to prove the truth of their opinions about public figures. Id. at ¶ 102.2(i).

185 Id. at ¶ 102.3(e) and 101.3(e).

186 Id. at ¶ 102.3(d). Using the truth defense to prevent freedom of speech was a violation of the Convention. Id. at ¶ 102.3(c).

187 Id. at ¶ 102.2(j).

188 Id. at ¶ 102.2(k).

727

Herrera’s lawyers argued that articles 149 and 152 of the Penal Code of Costa

Rica189 made it criminal for a journalist to disseminate news from foreign media about public officials unless the facts were proved to be true. They said

A law that, without requiring proof of bad faith on the journalist’s part, makes it a crime for a journalist to publish news sourced to other foreign media outlets and containing alleged offenses against the Costa Rican public official, unless the journalist can prove that the information being reported is true is a violation [of the article 13.1 protection for freedom of expression under the American Convention.]190

Since the penalty imposed for republishing information published in foreign newspapers was a criminal conviction under the Costa Rican Code, Herrera’s lawyers said, the code violated article 13.1 of the Convention.191

The lawyers also argued that the civil award of damages of 60,000 colones violated freedom of speech and was manifestly disproportionate.192

Costa Rica’s Arguments

The state of Costa Rica argued that Przedborski had produced evidence of malice in the trial court. It also argued that a democracy was as much affected by receiving false information as it was affected when no information was received.193 The protection of the reputation of others was one of the few legitimate limitations on freedom of speech,

Costa Rica’s lawyers argued. Thus, they said, a democratic society should protect equally

189 See section 9.5 for the text of Costa Rica Criminal Code arts. 149 and 152.

190 Herrera, supra at 102.3(g).

191 Herrera, supra at ¶ 102.3(g). Herrera had relied on 4 reputable Belgian newspapers to ensure the veracity of the news, and, after he had tried unsuccessfully to contact Przedborski, he interviewed the chancellor and vice chancellor who confirmed the existence of questions on Przedborski’s behavior. Id. at ¶ 102.3(h).

192 Id. at para. 102.5(i).

193 Id. at para. 103(a).

728 the right to freedom of speech and the right to one’s honor.194 Thus, Costa Rica’s attorneys argued, imposing penalties for expressions that affected the honor or dignity of persons did not injure freedom of speech.

Under the due process guarantee in Costa Rican law, the government argued, a person could not be penalized solely for criticizing a public official without a finding by the court in a trial that he had “willfully or maliciously” damaged the reputation of the official.195 After the defamation of Przedborski, the government argued—and despite the criminal sentence and the award of civil remedies—it was very likely that Costa Ricans would continue to doubt Przedborski’s honesty and fitness for office.196 Unless the government establishan effective means to protect the honor of officials, it would be difficult to recruit the best people for official jobs and the public interest would be negatively affected.197

The government lawyers argued that the Costa Rican criminal libel law established a balance between the rights to freedom of speech and the right for an individual to uphold his honor and reputation by criminalizing malicious conduct in making speech.198

If attacks on the honor of public servants were treated differently from those on private individuals, it would be inequitable, the state’s attorneys argued.199 The lawyers cautioned against adopting the perspective that

194 Id. at ¶ 103(b).

195 Id. at ¶ 103(c).

196 Id. at ¶ 103(d).

197 Id. at ¶ 103(e).

198 Id. at ¶ 103(f).

199 Id. at ¶ 103(h).

729

the honor of a public servant is any less worthy of respect and protection than the honor of any ordinary private citizen. Such a distinction is an attack upon the principle of equality.200

The government’s lawyers said, the government had found that the best way to protect honor against injury was through a criminal sanction, and, under principles of sovereignty and self-determination, the Inter-American system could not use forceful measures to change the direction of Costa Rican law.201 The lawyers argued that if the sentence imposed led to self censorship, article 13.2 of the American Convention would have the same effect by establishing liability for libel after the speech was made.202

The government’s lawyers argued that Herrera’s conviction was based not only on the fact that he failed to prove the truth of the articles published in the European newspapers, but also because he acted with the malice by “spreading news that defamed” and offended Przedborski’s honor.203 The lawyers noted that Herrera’s attorneys had misunderstood about the justification or truth defense which did not exempt the plaintiff from showing that the defendant acted with malice.204 Truth was a defense the lawyers said. In most countries in criminal matters before a person can be found guilty there had to be proof of both mens rea, and actus reus. Mens rea, which means in Latin “guilty mind,”205 denotes “the mental state or subjective element required [to commit] a serious crime” or the requisite intention to commit the crime. The actus reus is the act of

200 Id.

201 Id. at ¶ 103(i).

202 Id. at ¶ 103(j).

203 Id. at ¶ 103(l).

204 Id. at ¶ 103(k). In Costa Rica the justification defense is known as “exceptio veritatis.”

205 GLANVILLE WILLIAMS, TEXTBOOK OF CRIMINAL LAW 30 (London, Stevens & Sons, 1978).

730 performing the criminal action. Both must be present for a criminal conviction.206 In other words it is not sufficient to find that the defendant committed a criminal act but it must also be shown by the prosecution that he had the requisite intention or the malicious state of mind to commit the crime. By the time the issue of whether the statement was true came to be determined, Przedborski had already established that Herrera, in publishing had the mens rea for the crime and that his conduct was unlawful and answerable, the government’s lawyers argued.207

The government’s lawyers also argued that the journalist Herrera had brought nation-wide attention to the fact that his name had been inscribed in the Record of Felons book. They said the Costa Rican public would “likely have never learned of his registration had he not taken it upon himself to announce it to the public.” Thus, the lawyers argued, Herrera caused his own “credibility, respect and dignity” problems.208

Costa Rica’s lawyers argued that inscription in the Judicial Registration of Felons did not affect the professional, social or personal life of any person. At any rate, the inscription was no longer in the book because of the Inter-American Court had imposed a provisional measure to remove Herrera’s name from the Judicial Registration of Felons book.209 After the sentence, Costa Rica’s attorneys argued, Herrera continued to write stories and he contributed “innumerable” articles and opinions on the acts of public

206 Id.

207 Ulloa Herrera, supra at ¶ 103(k).

208 Id. at ¶ 103(m).

209 Id. at ¶ 103(n). If the entry of Herrera’s name in the registry led to injury to his honor it was only effective during the period when it was recorded in the Judicial Registration of Delinquents. Id. at ¶ 103(o).

731 officials.210 Thus, his career was not affected and he continued to play his watchdog role after his conviction.

The government’s lawyers argued that, in addition to proving the existence of a crime, before the damage award was made, a plaintiff had to prove the existence of damage to himself. The plaintiff had to prove both civil and criminal liability in order to gain the criminal conviction and civil damages. Thus, the government’s lawyers said, although Herrera was both convicted for the crime of libel and found liable to pay damages in a civil action in libel by the same court, the independence of the civil trial was not lost inside the criminal trial.211

The government’s lawyers disagreed with Herrera’s attorneys’ arguments that crimes against the honor or desacato laws should be abolished in Costa Rica. The lawyers said that the abolition of crimes against honor in relation to public officials or private people involved in matters of public interest would contravene an essential pillar of democracy and was contrary to the Inter-American Convention because it was discriminatory.212 The lawyers argued that removing laws allowing the criminal prosecution of persons who defamed public officials would mean that officials would enjoy less protection for their reputation under the law than private persons. This would lead to discrimination.213

Finally, Costa Rica’s attorneys argued that defamatory statements such as those included in the articles published by Herrera were not political debate. Political debate

210 Id. at ¶ 103(p) & (q).

211 Id. at ¶ 103(r).

212 Id. at ¶ 103(u). See American Convention, supra. art. 24.

213 Id. at ¶ 103(u).

732 should not be confused, the lawyers argued, with the use of editorial or news space to falsely accuse officials who are subsequently given no opportunity to respond.214

9.8 Court’s Decision: Freedom of Speech in a Democratic Society

The Inter-American Convention on Human Rights included at article 13 the right to seek, receive and distribute all types of information and ideas “orally, in writing or printed” or otherwise, regardless of borders.215 The Convention also specifically provides

13(2) The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:

(a) respect for the rights or reputations of others; or

(b) the protection of national security, public order, or public health or morals.

(3) The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.

Thus, the right to free speech under the Convention is subject to subsequent responsibilities or communication can be made by the government. These subsequent responsibilities are explicitly set by the law to protect rights and reputations of others, national security, law and order, health or public morale.216 However, the government did not have the authority to abuse its power to restrict the freedom of the press.

Issues to be Examined

The Inter-American Court had to determine whether Costa Rica had unduly restricted Herrera’s right to freedom of speech by the criminal conviction and the civil

214 Herrera Ulloa, supra. at ¶ 103(v).

215 Id. at para. 104(1).

216 Id. at ¶ 104(2)a & b.

733 damages that he was required to pay.217 Thus, the court said it would examine the protection for freedom of speech under article 13 in relation to four issues. The four issues were:

• the content of the right to liberty of thought and expression; • the extent of liberty of thought and expression required in a democratic country; • the role played by the mass media in liberty of thought and expression; and • the restrictions permitted on liberty of thought and expression in a democratic country.218

Content of the Right to Freedom of Thought and Expression

Under the Convention, the court noted the right to liberty of thought and expression included not only freedom of speech, but the right to seek, receive and disseminate information of all kinds. Freedom of speech had both an individual and social dimension.

Both dimensions were equally important and guaranteed simultaneously under article

13.219 The individual dimension of freedom of speech included the right to speak or write, along with the right to use any medium to disseminate information to many people.

Expression and the dissemination of thoughts and ideas were indivisible, and restrictions on the publication of information directly limited freedom of speech.220 In its social dimension, freedom of speech was a medium for the exchange of ideas and information among people. It included the right to communicate one’s opinions, and for people to know the third-party opinions, news and stories.221

217 Id. at ¶ 106. Thus, the court noted it would not determine whether the articles were criminal according to Costa Rican law, but whether by imposing the penal prison sentence and civil costs the state had infringed the right to expression protected in the Convention.

218 Id. at ¶ 107.

219 Id. at ¶ 111.

220 Id. at ¶ 109.

221 Id. at ¶ 110

734

Thus, under the right to freedom of speech protected by the Convention no one

should be arbitrarily prevented from expressing his thoughts and there was a collective

right to receive information from other persons.222

Liberty of Thought and Expression in a Democratic Society

The Inter-American Court noted that, in a 1985 Opinion,223 it had declared that there was a strong relationship between freedom of speech and democracy.224 It had held

that in 1985 freedom of speech was fundamental in a democratic country and was

indispensable to public opinion formation. Freedom of speech was also important for

political parties, unions, cultural and scientific organizations and other bodies necessary

to develop communities and ensured that citizens made well-informed decisions at

election time. Thus, the court said, a country that was not well informed was not fully

free.225

222 Id. at ¶ 108.

223 See Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (articles 13 and 29 American Convention on Human Rights), Inter-Am. Ct. H.R. (ser. A) No. 5, at note 85 para. 70 (OC-5/85) (Nov. 13, 1985).

224 Id.

225 Herrera, supra at ¶ 112. cf. Case of Scharsach and News Verlagsgessellschaft v. Austria, ¶ 29 147 Eur. Ct. H.R. (Feb. 13, 2004) where the European Court of Human Rights held that freedom of speech was an essential pillar of democratic society and a fundamental condition for progress and personal development of individuals. Liberty, the European Court held, should not only be guaranteed for ideas that were “favorable,” “inoffensive or indifferent,” but also the offensive opinions that disturbed the State or sectors of the population. This was required to allow tolerance and openness, necessary in plural, democratic society. In this context, restrictions could only be imposed where there was a legitimate end to be pursued. See also the African Commission of Human Rights in Media Rights Agenda and Constitutional Rights Project v. Nigeria, Comm. Nos. 105/93, 128/94 and 152/96, (Oct. 31, 1998). The United Nations Human Rights Committee in Aduayom v. Togo, (422/1990, 423/1990 and 424/1990) (Jul. 12, 1996), where the relevant courts also made similar pronouncements. The Heads of State of the Government of Americas also approved the Pan-American Democratic Letter on September 11, 2001 declaring that the fundamental components of democracy included “transparency of government activities, probity, responsibility of government in public management, respect for social right and freedom of speech and the press.” Id.

735

The Inter-American Court said that in 1985 it had recognized that freedom of speech played an important role in democracy. The court noted without effective freedom of speech, there could be no democracy and pluralism would be destroyed creating a

“fertile field” for the emergence of authoritarian systems of government.226

Role of Mass Media in Liberty of Thought and Expression

The Inter-American Court held that mass media played an essential role as a vehicle to express the social dimension of freedom of speech in a democratic country.

Thus, it was important for the mass media both to collect a diversity of information and opinions and to exercise its social function responsibly.227 Journalism, the main and primary demonstration of liberty of expression, involved a public service through the application of a journalist’s training and responsible judgment.228 The court said it was fundamental to the right to freedom of speech that journalists should enjoy protection from government interference with speech and independence to carry out their function of keeping the public informed, which was indispensable to allowing society liberty and public debate.229

Restrictions to Freedom of Speech in a Democratic Society

The Inter-American Court noted that while prior restraints could not be imposed on speech, freedom of speech was not absolute under article 13 of the Convention. Article

13.2 imposed restrictions and subsequent responsibility for articles written in cases where

226 Id. at ¶ 116.

227 Id. at ¶ 117.

228 Id. at ¶118.

229 Id. at ¶ 119.

736 the right was abused. The court said that the expression of freedom of speech could be limited by subsequent responsibility where three requirements were met:

• the limitation on speech were explicitly set by law; • the limitation was aimed at protecting the rights or reputations of others, national security, law and order and the health or morals of the public; • the limitation was necessary in a democratic society.230

The court also noted that, under the Convention, restrictions on freedom of speech were allowed where they were aimed at satisfying an important governmental objective, important enough that it outweighed the social need for the full enjoyment of freedom of expression.231 Where several options were available to attain the important interest, the court said, the option that would be least restrictive of freedom of speech should be chosen. Further, the restrictions should be justified by and “so framed as not to limit the right” to freedom of speech.232 The court said the restraint “must be proportionate and closely tailored to the accomplishment of the legitimate governmental objective necessitating it.”233

Post-Publication Restrictions vs. Free Speech

The Inter-American Court then turned to the issue of whether post-publication restrictions on freedom of speech were compatible with the Convention. The court noted that Herrera Ulloa was a journalist providing facts and opinions that were of public

230 Id. at ¶ 120.

231 Id. at ¶ 121. See American Convention on Human Rights art. 13(2).

232 Id. at ¶ 121. The court noted that in Case of Barthold v. Germany, (ser. A) No. 90 ¶ 58 (Mar. 25, 1985), the European Court of Human Rights had held that, under article 10 of the European Convention, “necessary” wasn’t a synonym of “indispensable” but implied the “existence of an important social need.” It was not enough to show that the need was “useful,” “reasonable” or “opportune.” Id. at ¶ 122. The Inter- American Court had agreed that an “important social need” was required in its opinion in Compulsory Membership, supra. Id.

233 Id.

737 interest.234 The article also centered on the conduct of Przedborski, a public person. The

Inter-American Court noted that the European Court of Human Rights had held that limitations on freedom of speech differed in the case of private and public persons.235

The European Court had declared there was greater room for acceptable criticism in the case of the politician than in the case of the individual. It was inevitable that a public person would be subject to rigorous scrutiny, the court said, not only by the judiciary and legislature but also by the press and public opinion.236 Therefore, public persons should show greater tolerance. The European Court said that although article 10.2 of the

European Convention protected the reputation of all people including politicians in their private roles, this would be balanced with an interest in open debate on political matters.237 Freedom of the press was one of the best means of informing the public about the ideas and actions of political leaders and was important in a democratic society, the

European court said.238

The Inter-American Court said democratic control of the country by public opinion promoted transparency and responsibility among public officials.239 Public debate and speech about public officials and persons who exercised a public function was essential in a democratic society. This did not mean that the honor of public persons should not be

234 Id. at ¶ 124.

235 Id. at ¶ 125. See Case of Dichand and others v. Austria, ¶ 39 (Feb. 26, 2002), Case of Lingens v. Austria, (ser. A) no. 103, ¶ 41 (Jul. 8, 1986).

236 Id. at ¶ 126. See Case of Lingens v. Austria, (ser. A) no. 103, ¶ 42 (Jul. 8, 1986).

237 Id. at ¶125.

238 Id.

239 Id. at ¶ 127.

738 protected, the Inter-American Court said.240 However, people with the ability to influence matters of public interest also voluntarily opened themselves to “a more intense public scrutiny and, consequently, in this domain, they are subject to a higher risk of being criticized, because their activities go beyond the private sphere and belong to the realm of public debate,” the court opinion said.241

The Inter-American Court, thus, held that the criminal sanction imposed on Herrera was not a necessary restriction in a democratic society and was incompatible with the

American Convention.242 In the La Nación case, the court noted, the information published in La Nación about Przedborski’s alleged illicit activities partially reproduced the information published by the Belgian press. Herrera had limited himself to reproducing only the information relating to the conduct of the public official in a foreign country.243 When Herrera Ulloa proved that Przedborski had been questioned by

European journalists, the trial judge had found that this did not satisfy the truth defense under his interpretation of articles 146,244 149245 and 152 of the Costa Rican Penal Code, ordering the defense to be thrown out because Herrera had not shown the truth of the facts written about Przedborski. 246 The Inter-American Court held this was a severe

240 Id. at ¶ 128.

241 Id. at ¶ 129.

242 Id. at ¶ 130.

243 Id. at ¶ 131.

244 Costa Rican Penal Code art. 146 provides

Any person who defames another or utters language to affect that other person’s reputation shall be liable to a penalty of 20 to 60 days.

245

246 Id. at ¶ 132.

739 limitation on freedom of speech which was incompatible with the provisions in article

13.2.247 The sentence produced a “dissuasive, frightening and inhibitive effect on all those who practice the profession of journalism” and obstructed public debate on matters of social interest.248

The Inter-American Court held that the state of Costa Rica had violated Herrera’s right to freedom of thought and expression under the Convention.249

9.9 Inter-American Court’s Award

Having determined that the government of Costa Rica had infringed Herrera’s right to freedom of expression, the Inter-American Court turned to the issue of remedies.

Provisions in the Inter-American Convention

The Inter-American Court gains its authority to remedy infringements by member states of its citizens’ rights protected under the Convention from article 63.1. Article

63.1 of the Convention provides:

If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.250

247 Id.

248 Id. at ¶ 133. The Inter-American Court also noted that the European Court of Human Rights had held that punishing a journalist for republishing information brought to light by another source threatened the press’ contribution to discussions of public interest. Id. at ¶ 134.

249 Id. at ¶ 135. See ¶ 136. The Court noted that the state had violated art. 13 and 1.1 which respectively dealt with the right to freedom of expression and the obligation of the States to respect the rights given its citizens under the Convention.

250 See American Convention, art. 63.1.

740

Having determined that the Costa Rican courts had infringed on Herrera’s rights under the Convention, the Inter-American Court of Human Rights now turned to the issue of what damages the court should award.

Commission’s Arguments

The Inter-American Commission on Human Rights had argued that Herrera and

Rohrmoser were entitled to reparations and costs under article 63.1 of the Convention.251

The commission’s lawyers argued that measures should be adopted to ensure restitution for the situation that Herrera and the newspaper had been placed in and to pay for their costs and legal fees in both the internal and the international jurisdictions.252 However, the Commission argued, the special nature of the case required also that non-pecuniary damages or damages intended to repair injury of a non-monetary nature be awarded to

Herrera and Rohrmoser253 because the State had to reimburse Herrera and Rohrmoser for the injuries they suffered.254

Additionally, damages and loss of profit that could take effect in the future had to be considered by the court in the case since they could not have been calculated at the time the petition was made. The amount to be awarded could only be determined by examining the impact in Costa Rica of a conviction in such a case.255

The lawyers argued that Herrera should be repaid for the “moral” damage to his character caused by the publication. Moral damage, the lawyers defined as the effect of

251 Herrera Ulloa, supra at ¶ 188(a).

252 Id. at ¶ 188(b).

253 Id. at ¶188(c).

254 Id. at ¶188(d).

255 Id. at ¶ 188(e).

741

the conviction against Herrera on his ability to practice his profession as a journalist,

where credibility and personal image were important. Because credibility was so essential

to journalism, the Commission argued, the crime that Herrera had been accused of

affected his ability to practice his profession, leading to damages that could not be

repaired by monetary means alone.256

To restitute and repair the moral damage the commission suggested that the court adopt the following measures:

• Make the sentence of November 12, 1999 by the Penal Court of the First Judicial Circuit of San Jose—and the decisions in the higher courts confirming the sentence— ineffective, along with all “legal and practical effects” of the decision on Ulloa and Rohrmoser.257 • The articles of the Penal Code of Costa Rica that related to crimes against the honor should be adapted to be consistent with international norms governing the matter.258 • The Court should require the government of Costa Rica to publicly apologize for the human rights violations that it had caused.259 • The Court should require the publication of the sentence imposed in the present case.260

256 Id. at ¶ 188(f). The commission asked the court to order that the government of Costa Rica to repair the moral damage caused to Herrera by his prosecution, conviction and inscription of his name in the National Registration of Delinquents.

257 Id. at ¶ 188(g)1. Among these the commission noted were the February 21, 2000 warning given to Herrera and Rohrmoser that threatened them with incarceration; the inscription of Herrera’s name in the Judicial Registration of Delinquents and the order to withdraw the existing link in La Nacion Digital on the internet between Przedborski’s surname and the articles that were the subject of the action. In addition the newspaper was ordered to replace a link between the articles and the 1999 decision of the Penal Court of the First Judicial Circuit in the online version of the newspaper.

258 Id. at ¶ 188(g)2. In other words, the commission argued, Costa Rica should adopt measures necessary to ensure that the right to freedom of speech was not unduly restricted by laws making it criminal to publish matters about public officials or on issues of public interest. The government should also create an appeal court that was independent and could re-examine the decisions of the lower courts on appeal.

259 Id. at ¶ 188(g)3.

260 Id. at ¶ 188(g)4.

742

The commission had argued that, in addition, the court should order the government of Costa Rica to pay the costs of both the national and international proceedings.261 Herrera’s lawyers argued that the measure of restitution should be to remove all the impact of the November 1999 conviction and all the subsequent opinions in higher courts confirming it, and any judicial actions aimed at its execution.262

If, Herrera’s attorneys contended, the criminal accusation was a violation of

Herrera’s and Rohrmoser’s human rights and, thus, illegitimate, the direct consequences were also illegal including the civil costs and the inscription of Herrera’s name on the

Judicial Registration of Felons.263

They also argued that internal legislation in Costa Rica should be amended to ensure:

• the exercise of freedom of speech was not unduly restricted in Costa Rica to prevent the publication of information relating to public officials and matters in the public interest; • the “publication of offences” under article 152 of the Penal Code should be decriminalized, particularly where the publication related to public officials or people who had voluntarily involved themselves in public matters; • the rules used to test the truth should place the burden of proof on the accuser inline with principles governing public interest cases.

The commission had argued that the court should order the government of Costa

Rica to adopt the reforms necessary to provide for an “effective and full” resource for appeal against a criminal conviction by a trial court. This was because Costa Ricans

261 Id. at ¶ 188(h).

262 Id. at ¶ 189(a). Thus, the Costa Rican government should revoke the 1999 conviction of Herrera, the order to publish the sentence in the newspaper in the same part of the paper where the original articles leading to the complaint were published. It should also revoke the order to withdraw the link in the Digital Nacion between Przedborski and the articles that led to the complaint and to establish a link instead between the articles and the text of the 1999 holding, the order for civil responsibility and the criminal order in terms of costs should all be revoked. Id. at ¶ 189(b).

263 Id. at ¶ 189(c) & (e).

743 should not be required to rely on the extraordinary and restricted resource of nullification as the only thorough system of review.264 The commission asked the court to order the government of Costa Rica to publicly admit the human rights violations that it had illegally committed against Herrera by publishing the Inter-American Court’s decision.265

Herrera’s lawyers argued that Costa Rica should repay 60 million colones to

Herrera, Rohrmoser and the newspaper; the amount of the original judgment in favor of

Przedborski, adjusted for the real value of the money at the time of payment along with appropriate interest. The same should be done, they added, in relation to execution of the conviction to pay personal costs and costs to process the case totaling 3,810,000 and

1,000,000 colones respectively.266

The lawyers also asked the court to order the state to repair the moral damage caused by its prosecution, sentence and inscription of his name in the National

Registration of Felons.267 They asked for US$17,849.90 repayment to themselves including expenses for transportation, lodging, telephone calls and food during trips to

Washington, D.C. and San José.268

Costa Rican State’s Arguments

Costa Rica’s attorneys argued that the repairs, expenses and costs requested by

Herrera’s lawyers and the commission were improper and groundless.269 It was not

264 Id. at ¶ 189(g).

265 Id. at ¶ 189(h).

266 Id. at ¶ 189(i).

267 Id. at ¶ 189(k).

268 Id. at ¶ 189(l). The lawyers said they would not claim their own professional fees.

269 Id. at ¶ 190.

744 appropriate to annul the effects of the 1999 decision and, accordingly, there were no grounds to grant the request for all the effects of the decision to be reversed.270 At any rate, the lawyers argued, despite the personal and “spiritual” damages that the inscription in the Judiciary’s Record of Felons may have caused to Herrera, he had, during the time, won national journalism awards, and studied in Germany and Spain. Because he was outside of the country Herrera was not required to transact any business with Costa Rican governmental institutions that had access to the Record of Felons. Thus, he was not adversely affected by having his name on the record. At any rate, the government’s lawyers argued, if Herrera’s honor had been wounded, the period during which he could regain damages should be limited to the brief time during which his name was in the

Judicial Record between March 1 and April 26 of 2001.271

Costa Rica’s attorneys argued that Rohrmoser, on the other hand, could only obtain relief in the Inter-American System for personal injury. They said he had not produced evidence to satisfy the legal requirement of the Inter-American System to prove that he had been personally affected by the action.272 Rohrmoser could not claim pecuniary compensation for violations of rights he did not suffer such as freedom of speech, since he did not write “a single line” in the articles which were the subject matter of the case.273

270 Id. at ¶ 190(a). Similarly, the lawyers argued, it would be improper to make ineffective the civil sanctions against La Nacion, which were based on the same grounds under which Herrera had been convicted. Id. at ¶ 190(b).

271 Id. at ¶ 190(c).

272 Id. at ¶ 190(d).

273 Id. at ¶ 190(f).

745

Court’s Decision on the Question of Damages

The Inter-American Court noted that Costa Rica had violated the Convention274 in its treatment of Herrera. Under international legal principles, the court had decided in the past that every violation of an international obligation that produced damage would lead to a new obligation to adequately repair the damage caused.275 The standard required to repair the damage was, wherever possible, full restitution or restitutio integrum. This consisted of restoring Herrera and the newspaper to the position they were in before the violation took place.276 The obligation to repair determined the degree, nature, form and who the beneficiaries of the reparations should be. The obligation was regulated by international law and could not be modified or ignored by the invocation of a state’s internal rights.277 The applicable repairs required that the effects of the violations against

Herrera and the others be removed.278

The court noted that it had decided that the 1999 sentence was a violation of

Herrera’s right to freedom of thought and expression and, thus, Costa Rica must immediately quash the effects and third party repercussions of the decision. The effects of the decision included:279

• the guilty sentence, imposition of a fine of 300,000 colones,

274 Id. at ¶ 191. See American Convention art. 13 and 8.1 in relation to art. 1.1 and 8.2(h) in relation to art. 1.1 and 2 of the treaty.

275 Id. See art. 63.1.

276 Id. at ¶ 192.

277 Id. at ¶ 193.

278 Id. at ¶ 194.

279 Id. at ¶ 195.

746

• the civil damages of 60,000,000 colones levied jointly against Herrera and La Nación, • the order for Herrera to publish the holding in the 1999 guilty sentence in La Nación, • the order for La Nación Digital to withdraw the connection on the internet between Przedborski’s name and the contentious articles; • the order for La Nación Digital to establish a connection between the articles and the court’s holding; • the order for Herrera to pay procedural costs for the action in 1,000 colones and personal costs of 3,810,000 colones; and • the entry of Herrera’s name in the Register.

The court said that the state of Costa Rica was required to take all the legal, administrative and other measures necessary to nullify the November 12, 1999 sentence.280 The court noted that the state of Costa Rica was obliged to respect the guarantee of the right to freedom of thought and expression in article 13 of the

Convention.281 The state also had to make its internal legal decisions compatible with article 8.2(h) in conjunction with article 2 of the Convention.282 The Court noted that the claim for the refund of the payment for procedural and personal costs had already been resolved.283

In relation to the other issues raised by the Commission and Herrera’s lawyers, the court held that their decision constituted per se a form of compensation to Herrera.

Nonetheless, Herrera had suffered because of the events and the criminal sentence against

280 Id. at ¶ 195. The court ordered Costa Rica to replace the provisional measures that Inter-American Court had ordered Costa Rica to take in its September 6, 2001 resolution with these new measures. Id. The provisional measures were the immediate adoption of measures necessary to quash the inclusion of Herrera’s name in the register; the suspension of the order for Herrera to publish the 1999 holding in La Nacion; and the suspension of the order for La Nacion Digital to establish a link between the 1999 holding and the controversial articles. Id. at ¶ 196.

281 Id. at ¶ 197.

282 Id. at ¶ 198.

283 Id. at ¶ 199.

747

him which infringed his right to freedom of expression. Thus, the damage should be

repaired by an indemnity of US$20,000 or its equivalent in Costa Rican currency.284

The court held that Costa Rica should pay Herrera the costs he had incurred in

settling his legal defense in the Inter-American System, which was US$10,000 or its

Costa Rican equivalent.285

9.10 Conclusion

Like the Commonwealth Caribbean, Costa Rica’s justice system is based on the separation of powers and the system of checks and balances among the executive, legislature and judiciary. The Costa Rican government had argued in Herrera that under

the principle of separation powers, the executive could not interfere with the decisions of

the legislature or the judiciary.286 The government also argued that the international body

could not, under principles of sovereignty, force the national government to adopt

principles that ran counter to its own legal position that had been established in

accordance with Costa Rica’s specific interests.

284 Id. at ¶ 200.

285 Id. at ¶ 202. All the financial costs levied on Costa Rica should be paid at the equivalent exchange rate between the countries on the date of payment, the Court held. Id. at ¶ 203. Additionally the fees would not be subject to tax and future fees. Id. at ¶ 204. Costa Rica was required to pay the costs within six months of the decision and to make all other payments within a reasonable time period and would be liable to pay interest on the outstanding amount if it delayed payment. Id. at ¶ 204. If Herrera was unable to receive the money within the six-month period the Court held that it would be placed as a Certificate of Deposit in a Costa Rican Bank. If the money was not retrieved after 10 years, it would be returned to the State along with all interest earned. Id. at ¶ 205. The State was also required to submit a report of measures taken in compliance with the judgment within six months. Id. at ¶ 206.

Id. at ¶ 201.As far as the reimbursement of expenditure was concerned, the Court said that the custom was to judiciously assess the extent of the costs, including those resulting from the actions brought by the victim’s lawyers before the Inter-American Court itself. In assessing costs the Court would use the principle of equity.

286 Id. at ¶ 180(a). The Commission did not allege that article 50 had been violated. Id. at ¶ 179.

748

These arguments were overridden by the Inter-American Court, which asserted its right to intervene based on Costa Rica’s commitment to abide by the Convention. While holding that the “recommendations” of the Inter-American Commission were not obligatory decisions that would lead to State responsibility if breached,287 the court noted that, based on the good faith principle,288 where a country ratified an international treaty, especially one related to human rights as in the case of the American Convention, it had an obligation to do its best to apply the recommendations of the body that had the mandate to “promote the observance and defense of human rights” in the hemisphere.289

While in the British Caribbean there are four signatories to the American

Convention on Human Rights, only Jamaica has partially recognized the court’s competence in its jurisdiction so the issue of the executive’s interference may not have the same effect in law that it did in Costa Rica. However, the American Convention, like the European Convention on Human Rights could have a persuasive effect on Caribbean law.

In Herrera the Inter-American Court of Human Rights overturned a decision by the

Costa Rican courts awarding large damages to a public official for a defamatory publication made against him. The Inter-American Court on Human Rights based its decision on the importance of freedom of speech in a democratic society. While recognizing this right to freedom of speech could be infringed where speech negatively

287 Id. at ¶ 186.

288 Id. See Vienna Convention art. 31.1.

289 Id. The court referred to the Letter of the O.A.S. art. 52 and 111. It also noted that that the IACHR was a competent organ, along with the Inter-American Court, to determine the boundaries of the State commitments and, by ratifying the Convention, the States had agreed to abide by the Commission’s recommendations. Id. American Convention of Human Rights art. 33.

749 affected the reputation of others, the court differentiated speech about public and private persons. The court noted that public persons had voluntarily subjected themselves to criticism and should be more tolerant of criticism.

The Costa Rican government has decided to abide by the decision of the

Inter-American Court in the Herrera case.

CHAPTER 10 CONCLUSION

10.1 Introduction

This dissertation has been aimed at comparing the libel law related to public figures in the British Caribbean with that in the United States, exploring the principles used in determining liability and damages in the case of the public person libel actions in the two jurisdictions and highlighting the influence of membership in the Organization of

American States on the sovereignty of the Caribbean states.

The research questions identified in the introduction to this dissertation were:

• What is the libel law in the Caribbean and the United States that controls suits brought by public figures and public persons?

• How did the libel law with respect to public figures develop in the two jurisdictions? What were the most significant issues in the development of the law as documented in court opinions and supplemented by appropriate secondary sources?

• How can the precedent of the Herrera-Ulloa v. Costa Rica,1 decision in the Inter- American Court of Human Rights help us to understand the potential impact of membership in the American System of Human Rights on British Caribbean case law?

In responding to these issues, the conclusion will be divided into 10 sections.

Section 10.2 looks at the first question of the dissertation, outlining the fundamental distinction between libel law regarding public figures in the United States and the British

Caribbean and the standard of fault used in the jurisdictions. Section 10.3 examines the second question of the dissertation, discussing the cases that have played the most

1 2004, Inter-Am. Ct. H.R. (ser. C) No. 107 (July 2, 2004).

750 751 significant role in the development of libel laws in the jurisdictions. Section 10.4 examines the third primary question of the dissertation—the issue of the implication of membership in the Organization of American States for the British Caribbean nation-states. Section 10.5 focuses on the theories provided by Fredrick Seaton Siebert and Leonard Levy on circumstances where the government will allow the media to play its watchdog role and engage in critical discussion about government competence.

Section 10.6 focuses on the other theories discussed in this dissertation and their relevance in the protection given to freedom of speech in libel suits in the Caribbean and the United States. Section 10.7 examines the rationale for criminal libel laws. Section

10.8 discusses the implications of the Abrahams v. Gleaner2 decision for civil libel laws in the Caribbean. Section 10.9 looks at what can be learned about the role and defamation laws in developing nations. Section 10.10 begins a discussion on the political, governmental, and legal factors that determine the distinctions in the treatment of libel laws in the two jurisdictions. In section 10.11 we conclude the dissertation.

10.2 Standard of Fault Used in Public Figure Libel Cases in the Jurisdictions

Since the New York Times v. Sullivan3 decision in 1964, the United States has had a higher standard of fault in libel cases involving public officials and figures under its actual malice rule. This protection against liability, the Supreme Court has held, emanates from the First Amendment in the U.S. federal Constitution. The constitutional privilege prohibits public officials or figures from recovering damages in libel actions without evidence of actual malice, which requires a finding of either the knowledge of falsity or

2 Privy Council Appeal No. 86 of 2001.

3 376 U.S. 254 (1964). See also Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

752 reckless disregard for the truth.4 This position is rationalized on the basis that public persons voluntarily expose themselves to greater scrutiny than private persons and they also have greater access to the media to rebut negative allegations made against them.5 In the case of private persons there is not a voluntary exposure to public comment and they do not have the same access to the media to rebut allegations. The Supreme Court has thus held that there is a “strong and legitimate … interest in compensating private individuals for injury to reputation.”6 The Supreme Court said the determination of what should be proved in libel actions involving private persons has been left to the individual states with the one requirement that the private person should not be subject to strict liability or liability without fault. States virtually never require private persons to prove actual malice to be successful in a libel action. Usually states require private persons to prove negligence in order to win a libel suit. Additionally, in the United States private and public persons in bringing a libel action must prove that the statement is defamatory, was published, referred to the plaintiff, and was false.

In the twenty-first century British Caribbean both political and private figures must only prove in libel cases that a statement was defamatory, that it referred to the plaintiff

(or person bringing the action) and that it was published. Therefore, even in the case of public figures, newspapers must rely on defenses such as fair comment, truth, and privileged circumstances. These defenses are arguably limited in scope.

4 Id. See also Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

5 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

6 Dun & Bradstreet, supra at 756, quoting Gertz, supra at 345, 348–349.

753

Fair comment on a matter of public interest as a defense is limited to statements of opinion rather than fact. The statements must, however, be based on some factual information in order to be protected by the defense. Caribbean constitutional scholar

Margaret DeMerieux has suggested that the defense is limited in the protection it provides for freedom of expression because the “minutest deviation from the truth disallows the defense,” which could substantially limit public criticism of public figures.7

In relation to the defense of justification (truth), unlike in the United States, in the

Caribbean when an article about the plaintiff is proved to be both defamatory and published, falsity is presumed. This means that, notwithstanding whether the person defamed is a public official or a private person, the defendant publisher has the burden of proof to show that the statement was true. The difficulty of proving the truth of the statement often precludes this defense, Demerieux said.8 Further, as Caribbean tort professor Gilbert Kodilyne has suggested, a defendant should not plead the defense of justification unless he is certain that he can prove the truth of the statement, because if he fails to prove the truth of the statement, the court will treat this as an aggravation of the injury caused by the initial publication and it could lead to an inflation in the damages awarded.9

The defense of qualified privilege falls closest to the U.S. actual malice constitutional privilege in its scope. The defense of qualified privilege, which also exists

7 MARGARET DEMERIEUX, FUNDAMENTAL RIGHTS IN COMMONWEALTH CARIBBEAN CONSTITUTIONS 222 (1992).

8 Id. at 222.

9 GILBERT KODILYNE, COMMONWEALTH CARIBBEAN TORT LAW 320 (2000). See Small v. Gleaner Co. Ltd., (1979) Supreme Court of Jamaica, No. CL S-188 of 1976 (unreported). See also The Gleaner Co. & Dudley Stokes v. Eric Anthony Abrahams, Privy Council Appeal No. 6 of 2001.

754 in U.S. law, provides special protection for libelous statements on occasions when there is a public interest in hearing the speech or a duty and interest in its communication. As noted in chapter 1 the following are the categories of expression protected by a qualified privilege in the British Caribbean:

• Statements made in the performance of a legal or moral duty; • Statements made to the proper authorities in order to obtain redress for public or private grievances; • Statements made in self defense; • Statements made between parties with a common interest in receiving and making the statement; • Statements that are a fair and accurate report of proceedings in the legislature or a court of law; • Statements protected by a statutory privilege.

In the British Caribbean qualified privilege can be defeated by a finding of

“express” or “actual” malice. Express or actual malice in libel law in the British

Caribbean refers to the absence of an honest belief in the truth of the statement. There will be an absence of an honest belief in the truth of a statement where the defendant did not believe the statement to be true or was indifferent as to whether it was true or not.10

This is similar to the actual malice standard in the United States. However, express malice, such as would defeat the qualified privilege, can also be found where the defendant behaves in a hostile manner toward the plaintiff before or during the publication and trial.11 Further, the privilege in the Caribbean can also be defeated where the statement was made for improper purposes other than the reason for which the

10 Id.

11 See Nicholas v. Augustus, [1996] E.C.L.R. 135 (holding that because the defamatory statement was made in “scurrilous terms” indicating a “malicious nature” and that the defendant was “venting his spleen” the privilege was lost). See also Panday v. Gordon, Privy Council Appeal No. 35 of 2004 at 14.

755 occasion was privileged12 or if the dominant motive was to injure the plaintiff.13 In exercising the privilege the communicator is also required to act with due care based on all the circumstances of the case including the importance of the subject matter discussed, the gravity of the allegation and the context in which the statement was made.14 The

Caribbean courts have held that a publisher did not take due care where he published information that was “mere rumor” or communicated information to the general public rather than to specific persons who could remedy the evil in the public interest.15

From this it can be seen that the New York Times constitutional privilege differs from the Caribbean concept of qualified privilege in at least four ways. First, the qualified privilege in the Caribbean can be more easily defeated than the constitutional privilege in the United States would be defeated. Second, the qualified privilege defense in the

Caribbean attaches to circumstances as opposed to the New York Times constitutional privilege where the privilege attaches to any communication about a particular person or subject—a public official or figure.16 A third way in which the two privileges differ is that while the Caribbean privilege has its roots in the English common law and is

12 See Nicholas v. Augustus, supra, where the Eastern Caribbean Court of Appeal had held that where a defendant sought to rely on privilege, comments to a wider public than necessary to redress the breach would not be protected by privilege. See also McDonald Farms v. Advocate, (1996) 52 W.I.R. 64, holding that the publication of damaging facts that were still under investigation was not privileged.

13 See Reynolds v. Times Newspapers at 616.

14 Panday v. Gordon, Privy Council Appeal No. 35 of 2004 at 14. See also Seaga v. Harper (unreported) In the Court of Appeal of Jamaica, Supreme Court Civil Appeal No. 29/2004 (2005) at 30, where the Jamaican Court of Appeal held there was no duty or interest in publishing information that was “mere rumor.” In Seaga,the court also held that since there was no urgency to relay the information about the Deputy Chief of Police Harper, Seaga had a duty to investigate the charges before publishing them. Thus, by publishing without investigation, Seaga had not acted with due care in publishing that Harper was biased in his role as a high-ranking police.

15 Seaga v. Harper, (unreported) In the Court of Appeal of Jamaica, Supreme Court Civil Appeal No. 29/2004 at 33 (2005).

16 See generally Reynolds v. Times Newspapers, [1999] 4 All E.R. 609.

756 protected by statute, the constitutional privilege has been held to be protected by the U.S.

Constitution.

A fourth way in which the law in the Caribbean differs from the U.S. law is in the recovery of damages. In the United States presumed or punitive damages cannot be recovered in libel actions without a finding of actual malice in the case of suits brought by both public persons and private persons involved in a public issue.17 However, in the case of private persons suing for a libelous statement made in relation to a private issue, damages can be recovered without proof of either negligence or actual malice.18 The higher standard in relation to public persons and private persons involved in public actions has been rationalized because of the strong state interest in “compensating private individuals” for injury to their reputation.19 Notwithstanding the higher burden of proof placed on public figures to recover punitive damages in libel actions, when they are successful in demonstrating that a libelous statement was made with actual malice, they can recover large damage awards.20

In the Caribbean, in assessing damages, the distinction is not between private and public persons, but focuses on the malicious intention of the publisher. Thus, a publisher will be found to have published maliciously when a court finds that he or she “calmly calculated that the risks did not outweigh the chances of profit” and the plaintiff in such

17 Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974).

18 Dun & Bradstreet, Inc. v. Greenmoss Builders Inc, 472 U.S. 749 (1985).

19 Id., quoting Gertz, supra at 348.

20 See DiSalle v. P.G. Publishing Co., 375 Pa. Super. 510 (1988) appeal denied, 557 A.2d 724 (Pa. 1989), cert. denied, 492 U.S. 906, where the Pennsylvania Superior Court awarded $2 million damages to a judge for a defamatory statement made against him on a finding of actual malice.

757 circumstances will be allowed to recover punitive damages.21 While in the past the damages awarded in Caribbean libel cases have been generally low, the Court of Appeal in Trinidad has noted that there has been a trend toward higher damage awards than in the past because of the recognition that the press was not acting responsibly in its watchdog role.22 Despite this, the awards in Caribbean cases are still conservative when compared to awards in U.S. courts. In this regard the approximately U.S.$500,000 award made to the former minister of tourism in the 2003 Abrahams decision can be compared to the award made to the Pennsylvania judge of U.S.$2 million in the 1989 decision in the

United States, DiSalle. While it is true that the circumstances in the cases—which are 14 years apart—were not the same, the Abrahams award has been heralded as the highest ever award in the Caribbean and has received substantial criticism from journalists across the region as well as freedom of speech interest groups.

10.3 Public Person Libel Laws in the Jurisdictions

The preceding section of this chapter focuses on the first major question that this dissertation is aimed at answering—the difference between the law concerning public officials and figures in the British Caribbean and the United States. This section is focused on the case law and factors influencing the development of the different approaches to the law in the two regions. The U.S. has adopted a direction in its case law that provides stronger protection for freedom of speech than the Caribbean. The

Caribbean case law has promoted stronger protection for reputation. Thus, the U.S. has introduced the actual malice test—which prohibits a public person from winning a libel

21 See The House of Lords decision in Rookes v. Barnard, [1964] 1 All E.R. 367, 410. See also the Trinidadian Court of Appeal decision in Chokolingo v. Gordon, in the Court of Appeal of Trinidad and Tobago Civil Appeal No. 31 of 1976 at 7 (unreported).

22 Panday, supra at 14, citing Justice Roger Hamel-Smith in his Court of Appeal decision.

758 case without a finding of knowledge of falsity or reckless disregard for the truth. The

Caribbean courts have, on the other hand, rejected the actual malice test in favor of a balancing test to determine whether speech is protected by qualified privilege. Similarly, while the U.S. Supreme Court has held that criminal libel laws are unconstitutional, the

Privy Council has held that criminal libel laws are constitutional and justifiable in a democratic society.

The most significant case on the issue of public person libel in the United States is the 1964 case New York Times v. Sullivan,23 as discussed in chapter 4, where the

Supreme Court held that the standard to be imposed when public officials brought libel actions was actual malice—knowledge of falsity or reckless disregard for the truth.

Justice Brennan in Sullivan wrote that, based on the need to protect “fearless, vigorous and effective administration of policies of government,”24 public officials could not win a libel action without proving New York Times’ actual malice. This standard was extended to include public persons in the1970s in Gertz v. Welch.25

Additionally, in 1966 the U.S. Supreme Court held in Ashton v. Kentucky26 that criminal libel laws are unconstitutional, as discussed in chapter 8. Justice William

Douglas said that imposing penalties for conduct that was “calculated to create disturbances of the peace” led to vagueness as the courts would be required to calculate the “boiling point of a particular person” or group.27 The Court noted that all vague laws

23 376 U.S. 254 (1964).

24 Id. at 282. See Barr v. Matteo, 360 U.S. 564, 571.

25 418 U.S. 323 (1974).

26 384 U.S. 195 (1966).

27 Id. at 200.

759 were constitutionally infirm, but laws affecting First Amendment rights would be more closely observed because of the need to protect freedom of speech and the press.28 Thus laws that infringed on freedom of speech should be “narrowly drawn” to protect the right to freedom of speech.29

That the U.S. position on criminal libel differs from the Caribbean position was made clear when the Privy Council in a 2004 decision, Worme v. Commissioner of

Police,30 held that criminal libel laws are constitutional and justifiable in a democratic society. Thus, in Worme, the Privy Council held that under the Grenadian Criminal Code the burden was on the prosecution, or the person bringing the action, to prove that the statement was false. The prosecution also had to prove that the statement was not made for the public benefit to be successful in a criminal libel case. The Privy Council law lords also noted that the code provided the defense of privilege. Thus, the Privy Council held that the statute was not unconstitutional since the right to freedom of speech could be infringed where the statute was “justifiable in the democratic society of Grenada.”31

In its holding the Privy Council noted that similar criminal intentional libel statutes existed “in one form or the other” in many democratic societies including England,

Canada and Australia.32

The Caribbean courts have also adopted the British test in civil cases involving libel against a public person. In the United Kingdom the House of Lords expressly

28 Id.

29 Id. at 201.

30 (2004) 63 WIR 79.

31 Id. at 104.

32 Id.

760 rejected both a constitutional privilege for speech about public persons, as exists in the

U.S., and a generic privilege for political speech, as argued by the newspaper’s lawyers, in the 1999 decision Reynolds v. Times.33 Similarly, in the Caribbean the courts make no distinction between the treatment given to speech about public and private persons. As noted in section 10.1 the defenses to the civil action in libel that apply are truth, privilege and fair comment in the case of libel actions brought by both public and private persons.

Thus, in 2003, the Privy Council found in a Jamaican case, Gleaner v. Abrahams,34 that a statement made about a public person did not attract privilege because there was evidence that it was made with express malice or without an honest belief in its truth.

Similarly, in a 2005 Trinidadian decision, Panday v. Gordon,35 the Privy Council held that in making a case for qualified privilege the defendant had to show that, in addition to showing that the statement was made with an honest belief in its truth, that he acted with due care. This requirement to show due care emanates directly from the Privy Council’s decision in Reynolds. The Privy Council, like the House of Lords, has underlined the need for journalists to be responsible in reporting news stories.

10.4 Implication of Membership in the Organization of American States

The third primary question in this dissertation focuses on the potential impact of membership of countries in international human rights organizations. This section will discuss the possible implications in the Caribbean of membership in the Inter-American

33 [1999] 4 All E.R. 609.

34 Privy Council Appeal No. 6 of 2001.

35 Privy Council Appeal No. 35 of 2004.

761

System of Human Rights, using the Inter-American Court of Human Rights decision in

Herrera-Ulloa v. Costa Rica36 as a starting point.

Currently the Jamaican decision in Abrahams is awaiting review by the

Inter-American Court of Human Rights because it allegedly violated the freedom of press guarantee provided in the American Convention on Human Rights. A decision by the

Inter-American Court could have serious constitutional implications for Jamaica and other Caribbean signatories to the Inter-American Convention on Human Rights.

As mentioned in chapter 2 of this dissertation, the British Caribbean nations have enshrined into their constitutions the doctrine of the separation of powers, a legacy inherited from their British colonial background. The idea behind the separation of powers is that government consists of the executive, the legislature, and the judiciary and each of these organs operates as a check to protect against excesses by any of the other bodies.

Currently, under all the Caribbean constitutions except that of Guyana, the final appellate court is the Privy Council. Thus, the decisions of the Privy Council are binding as an interpretation of Caribbean laws. The Abrahams case, however, is currently before the Inter-American Court of Human Rights for review. Based on the previous discussion in its 2004 decision in the Costa Rican Herrera case, it is quite possible that the

Inter-American Court will seek to impose the U.S. standard of actual malice on Jamaican jurisprudence related to public officials. While “actual” or “express” malice are factors that will defeat qualified privilege once the defense is triggered, actual malice does not

36 2004, Inter-Am. Ct. H.R. (ser. C) No. 107 (July 2, 2004).

762 currently exist as a legal principle required to be proved in the case of public officials and persons in the Caribbean.

In 2003, when Gleaner editor-in-chief Dudley Stokes appealed the $500,000 award in Abrahams to the Inter-American System, the Jamaican government argued that the

Inter-American Commission had no authority to reverse the lower court’s decision. The

Jamaican government said that reversing the lower court’s decision would be inconsistent with the principle of separation of powers since it required the executive to set aside a ruling by the judiciary.37 This argument was also raised by the lawyers for the country of

Costa Rica in Herrera. The rationale behind the argument is that the executive, by entering into an agreement with an international body, made Jamaica subject to the legal principles governing this body. These legal principles may be contrary to the statute law in Jamaica which does not provide a defense based on actual malice and has no bearing on past decisions of the Privy Council which are binding in Jamaica. This subjection of the state to an international body for review could raise issues involving separation of powers and the autonomy of the Jamaican judicial system. It will, therefore, be significant to see how the Jamaican court system reacts.

At this point in time only three British Caribbean nations are members of the Inter-

American System.38 In these countries, a confrontation between the executive and judicial branches of government is quite possible. This could involve the legislative

37 Stokes, supra at ¶ 50.

38 See Web site for Inter-American Court of Human Rights, http://www.corteidh.or.cr/general_ing/history.html (last visited June 22, 2005). These are Barbados, Dominica, Grenada and Jamaica. Trinidad & Tobago withdrew membership.

763 branch, too, as Caribbean legislators may be placed under pressure to pass legislation that is consistent with the Inter-American Court’s decision.

Because of the impact of increasing globalization, membership in international human rights organizations is becoming increasingly important for the survival of small nations that are dependent on international capital and trade for development. This could increase commercial opportunities across borders. However, another effect of this membership could eventually lead to global standards of conduct and homogenous legislation. In the case of libel law, the global position embraced by some human rights bodies such as the European Convention on Human Rights and the Inter-American

Convention on Human Rights appears to be that of the United States’ actual malice standard.

However, this global standardization may conflict with the national goals and cultural mores of individual countries. In the Herrera case it was argued by the Costa

Rican government that under principles of sovereignty and self-determination, the

Inter-American system could not use forceful measures to change the direction of the law of Costa Rica.39 The lawyers argued that criminal libel laws had been found by the government of Costa Rica to be an effective means of protecting honor.40 Effectively, according to Costa Rica’s attorneys arguments, the Inter-American Court in its 2004 judgment has intruded on an area that should be uniquely local—the judiciary’s interpretation of its country’s legislation—and sought to impose standards that may have no bearing on Costa Rica’s peculiar social requirements.

39 Id. at ¶ 103(i).

40 Id.

764

Similarly, the peculiar requirements in the British Caribbean may also lead to conflict if an international body tries to impose stronger protection for libelous statements made about public officials. Thus, individual Caribbean countries may try to fight the imposition of greater protection for political speech about public officials.

While member states are not obliged to accept the decision of this Inter-American

Court of Human Rights, the Costa Rican authorities have indicated their intention to abide by the decision of the Inter-American court.

10.5 Siebert and Levy Principles on Freedom of Speech

In the introduction of this dissertation we discussed Fredrick Seaton Siebert’s and

Leonard Levy’s models of freedom of speech as the two theories that would guide the discussion and understanding of the development of freedom of speech and libel laws in the two jurisdictions. The two theories are largely parallel to each other and can be addressed together.

Fredrick Seaton Siebert’s two-point perspective on freedom of the press posits that:41

1. As democratic forms of government replaced monarchial [sic] government systems, the press took on an extra function, as watchdog of public affairs.42

2. The more secure a government is, the more willing it is to relinquish control of speech and the press.43

In relation to the first proposition, both the United States and the British Caribbean have embraced a democratic system of government.44 The first, premised on a democratic

41 FREDRICK SEATON SIEBERT, FREEDOM OF THE PRESS IN ENGLAND 1476–1776: THE RISE AND DECLINE OF GOVERNMENT CONTROL 10 (1965).

42 Id.

43 Id.

765 republic, the second, except in the case of Guyana, Trinidad and Dominica, premised on a parliamentary democracy. Guyana, Trinidad and Dominica dub themselves democratic republics. Largely speaking the press has been involved in a watchdog role in both jurisdictions. The more significant issue is the extent to which the governments have allowed the media freedom to perform this role.

Siebert’s second proposition is that a more secure government is more willing to relinquish control of the press. The United States has, since independence in the eighteenth century, strongly embraced freedom of speech, increasing the level of protected freedom over the years in a number of cases. In this regard the decision in New

York Times v. Sullivan stands out as providing almost complete protection to the U.S. press in the case of criticism of government officials.45 The case embraces the democratic principle that knowledge of public issues by the people is important to the governance of the people that developed in the United States’ republican system of government. In this context, U.S. newspapers have wide freedom since 1964 to perform their watch dog roles.

Despite their democratic status, in some British Caribbean countries the press has been threatened by the government and continues to be under government threat. In this regard Antigua stands out with active political efforts to muzzle the press. The twin-island state has been rated as having only a partly-free media with a high level of government control of access to both print and electronic media. 46 Further, although the

44 See Chapter 5, 5.4 for a discussion on the system of government in the British Caribbean.

45 New York Times v. Sullivan, supra

46 2004 report on Antigua and Barbuda, http://www.freedomhouse.org/inc/content/pubs/pfs/inc_country_detail.cfm?country=2879&pf (last visited April 7, 2006).

766

Freedom House report rates Grenada as enjoying freedom of speech, in recent years the media has been increasingly under threat of criminal prosecution by Prime Minister Keith

Mitchell.47 Most Caribbean states have seditious or criminal libel statutes that allow the prosecution and incarceration of journalists who criticize the government. These statutes, however, have infrequently been invoked in the post-independence British Caribbean.48

In 2004 the Privy Council held that these laws are constitutional.49 Thus, the governments have the authority to bring criminal actions against journalists. These laws could arguably limit the freedom of media in these countries to publish stories critical of the government.

As discussed in chapter 5 of this dissertation, the British Caribbean islands all have less than 50 years of independence. Thus, applying Siebert’s model, it could be argued that in British Caribbean countries such as Antigua and Barbuda (one government) and

Grenada where there have been attempts by the government to control or muzzle the press, these attempts took place in the context of countries where the governments were relatively young and insecure. This can be compared with the United States which gained independence more than 200 years ago and where the media is allowed a lot more freedom to criticize the government.

47 See George Worme & Grenada Today Ltd. v. Commissioner of Police of Grenada, [2004] UKPC 8 in (2003) 63 WIR 78.

48 The only three cases involving criminal libel actions in recent times were George Worme & Grenada Today Ltd. v. Commissioner of Police of Grenada, [2004] UKPC 8 in (2003) 63 WIR 78, Hector v. Attorney General of Antigua and Barbuda and others, (1990) 37 W.I.R. 216, and R. v. Tucker, (1974) 21 W.I.R. 472.

49 George Worme & Grenada Today Ltd. v. Commissioner of Police of Grenada, [2004] UKPC 8 in (2003) 63 WIR 78.

767

However, Siebert’s model does not fit precisely all the British Caribbean countries because some, such as the Bahamas, Jamaica, St. Lucia and St. Vincent and the

Grenadines, enjoy high levels of freedom of speech according to the 2004 Freedom

House survey discussed in chapter 5.50

Because Leonard Levy’s three prerequisites to the recognition of freedom of speech as a protected civil liberty runs parallel to Siebert’s model they can be discussed at this point. Leonard Levy’s three-point theory of the factors that allow countries to embrace freedom of speech are:51

• the recognition by people that their opinions are relative rather than absolute, • the recognition by governments that they are strong enough to stand up to criticism, and • the embracing of a system that regards citizens as sovereign and the master of the government, rather than as servants of the state.52

Levy’s first proposition is not addressed in this dissertation because the Caribbean literature does not at all address this issue and the means to test the hypothesis are beyond the research methodology used for this dissertation.

However, Levy’s second proposition, that a necessary prerequisite for freedom of speech is the recognition by governments that they are strong enough to stand up to criticism, is in line with Siebert’s second proposition of the importance of the security of the governments to freedom of speech. The difference between the two propositions is that Siebert focuses on the actual security of the government while Levy focuses on the perception of the governments of their own security. It is submitted that there is not a

50 See Chapter 5, 5.6.

51 LEONARD W. LEVY, EMERGENCE OF A FREE PRESS, 5 (Oxford University Press, N.Y., New York, 1987).

52 Id.

768 substantial difference in reality between the two propositions—the perception of a low level of political security of the government is arguably appropriate in the context of the relatively new British Caribbean governments. As discussed earlier, this has led to a heightened level of restriction of freedom of speech in Antigua and Grenada. However, all the British Caribbean countries have enjoyed democratic legitimacy since their independence with the exception of Grenada between 1979 and 1983.

In relation to Levy’s third prerequisite for a system embracing freedom of speech, recognition of citizens as sovereign, citizens in the British Caribbean states do not participate much in their government beyond the voting process. Although the countries in the British Caribbean states are democratic, to a large extent the leadership is autocratic.53 The autocratic structure of the political party leadership is often by implied consent as discussed in chapter 5 because Caribbean people demand strong leadership and the party leader is often elevated to the position of a messiah.54 This differs from the

United States theory of government which promotes the supremacy of the citizens and their right to involvement in the government process. In section 10.3 we will examine the factors that have determined the difference in approach to libel laws in the Caribbean and the United States.

The British Caribbean fits inside Levy’s and Siebert’s prerequisites for freedom of speech because most of the Caribbean states have embraced democratic government.

Although there are some countries that have not facilitated an autonomous media, for the most part the Caribbean has been recognized by Freedom House as enjoying freedom of

53 See Chapter 5, 5.5 for a discussion of the autocratic governments in the British Caribbean.

54 Id. See CARL STONE, CLASS, STATE AND DEMOCRACY IN JAMAICA 52 (1986).

769 speech. The United States has also been recognized by Freedom House as a country that has embraced freedom of the press and a democratic structure within which the media is largely allowed freedom to provide its watchdog function. In Section 10.6 we look at the other theories discussed in this dissertation to determine whether they fit the Caribbean or

U.S. approach to libel actions brought by public persons.

10.6 Freedom of Speech Theories

American First Amendment scholar Alexander Meiklejohn’s theory on freedom of speech is premised on self governance.55 The New York Times decision has been based on this premise—that freedom of speech is aimed at facilitating citizen participation in the decision-making process. This Meiklejohn saw freedom of speech as being important in a democratic society. Thus, freedom of speech is premised on the fact that the U.S. system of government is democratic and in order to allow the full participation of citizens in government, they needed to be free to criticize the government.

However, Meiklejohn embraced only limited protection of freedom of speech other than political speech.56 He suggested that private speech on matters of private interest had no “claim whatever to the protection of the First Amendment.”57 Thus, the First

Amendment had no claim to protect against infringements on “private privileges” and

“private possessions.”58

55 ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF GOVERNMENT 3 (Kennikat Press, Port Washington, N.Y./London, 1948).

56 Id. at 94.

57 Id.

58 Id.

770

Thomas Emerson, also in his theory on freedom of speech included self governance, the facilitation of citizen participation in decision-making, as one factor that justified the protection of freedom of speech.59 However, Emerson’s argument for the protection of freedom of speech includes a larger set of principles than self governance.

Thus, unlike Meiklejohn, Emerson advocated full protection for both public and private speech.60 For Emerson the right to freedom of speech trumped “other protected social interests.” Thus, he said, freedom of speech should not be infringed even in the interest of protecting reputation in libel actions.61 Taking an absolutist approach to freedom of speech, Emerson disagreed with the Supreme Court decision in New York Times v.

Sullivan because the Court had not accepted that under the First Amendment the right to freedom of expression could not be abridged even to advance “other social interests.”62

For Emerson even the punishment of intentionally false statements by libel actions would interfere with the right to freedom of expression.63

In addition to self governance Thomas Emerson posited that freedom of speech should be protected for three other reasons. These are:

• As a means to facilitate self-fulfillment and promote dignity for individuals; • As a means to advance knowledge and discover truth;64 • To promote adaptability and stability in the community.65

59 THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 7 (New York, Random House, 1970).

60 EMERSON, supra at

61 Id. at 518–519.

62 Id.

63 Id.

65 Id. at 7.

771

In the United States the second and third principles have been discussed in rationalizing increasing protection of freedom of speech. It is in this context that seditious libel laws have been abandoned in the quest for truth and there has been protection even for speech that is based on hatred.

The first premise advocated by Emerson for the protection of freedom of speech was to facilitate self fulfillment and the dignity of individuals.66 Caribbean legal scholar

Simeon McIntosh also advocates the protection of freedom of speech based on the need to promote the dignity and fulfillment of the individual. However, McIntosh’s argument for dignity also strongly embraces the protection of reputation. Thus, McIntosh argues the aim of speech is to provide community cohesion and cooperation.67 A good reputation was essential, McIntosh said, to full enjoyment of the pursuit of everything in life and fundamental to self respect.68 When individuals had their reputations destroyed by defamatory statements it could prevent the development of all their meaningful ambitions.69 In this context, for McIntosh, any communication which had as its primary purpose hurting people’s reputations would not be protected speech.70

At the heart of McIntosh’s discussion on freedom of speech is the belief that this right exists alongside other rights—such as reputation—that are equally entitled to protection. The emphasis on human dignity as a part of a theory of freedom of speech is reflected in recent British and British Caribbean libel decisions. In Caribbean

66 Id.

67 Id.

68 Id. at 106.

69 Id.

70 Id. 105–106.

772 jurisprudence there is, thus, a strong protection for reputation, and over the years the courts have sought to balance the right to freedom of speech against the conflicting interest of honor and reputation. This protection for reputation applies both in the case of the public and private person and is at the heart of the understanding of libel in the

Caribbean. Thus, the Caribbean court, based on the legal precedent71 applied in similar cases, balances these two rights on a case-by-case basis in determining whether a statement is libelous and whether a defendant can rely on the defense of qualified privilege. The appellate courts are required to examine each case and determine whether, in applying the relevant law on qualified privilege, in the unique circumstances of that case, the defense applies.

Rodney Smolla, another U.S. First Amendment scholar, on the other hand, premised the right to human autonomy and dignity on free speech.72 Smolla said the right to speak one’s mind was integral to human autonomy and dignity.73 Speech allowed the speaker the “inner satisfaction and realization of self-identity essential to individual fulfillment.”74 Although Smolla’s theory has been criticized because of its hedonistic nature, and it had been argued that speech aimed at self gratification should be regulated by government,75 Smolla said thought and speech were complementary aspects of private and social personality, aspects that nourished the human nature and were protected by the

71 See Chapter 1, 1.7 for a definition of “precedent.”

72 RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 9 (1992).

73 Id. at 9.

74 Id.

75 Id. The rationale is that since other forms of self gratification are subject to government regulation, speech that is wholly aimed at self-gratification should also be subject to government regulation.

773

First Amendment.76 Thus, Smolla argued that the government should not interfere with speech without a compelling reason such as the need to prevent one person from hurting another.77 However, Smolla indicated that the kind of harm that would justify a restriction on speech should be more than “generalized disgust or disquiet over another’s conduct.”78

Smolla’s discussion takes the argument of freedom of speech based on personal fulfillment in another direction from that proposed by McIntosh. For Smolla, the self- fulfillment rationale for freedom of speech, instead of leading to the recognition of freedom of speech as existing among several other rights, provides heightened protection for freedom of speech. This is because, like Emerson, Smolla embraces a near absolutist approach to freedom of speech.

Smolla, while recognizing self governance as being an important rationale for freedom of speech, also rejected the view that political speech should enjoy greater protection than other types of speech.79 Smolla, embracing an absolutist view of speech, said that non-political speech which facilitated invention and discovery was not less valuable than political speech.80 In addition to its role in meeting the needs of the state,

Smolla considered freedom of speech to be an individual right.81 He rejected the view

76 Id.

77 Id. at 9.

78 Id. at 10.

79 RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 14 (1992).

80 Id.

81 Id. at 15.

774 that political speech had an elevated status not shared by other forms of speech.82 Thus,

Smolla advocates protection for speech on both public and private matters.

Smolla and Emerson both have embraced near-absolutist positions on freedom of speech. Neither of these positions has been accepted in Sullivan and its progeny: the

Supreme Court has generally distinguished between the public and private person. Thus, the public person is required to prove actual malice in libel actions while the private person usually only proves negligence. In the case of the Caribbean there is also a recognition that communication in the public interest should have greater protection than private communication. Thus speech made in the public interest is protected by qualified privilege. However, this protection does not attach to speech about public persons, but rather to speech about public issues. Speech made in the public interest includes communication made where the communicator had an interest in making the speech and the receiver in receiving the information. This includes general communication about the conduct of a person running for public office to his constituents, but also can include making a report of misconduct by a public official or other person to a person with the authority to redress the grievance.

Notably, also, in the United States even private persons face a higher standard in recovering damages in a libel action than public persons in the Caribbean since private persons are required to prove negligence in the U.S. On the other hand, in the Caribbean, once a defamatory statement has been published and concerns the plaintiff, he can recover damages without proof that the statement was made with either negligence or actual malice.

82 Id. at 16.

775

U.S. First Amendment scholar Vincent Blasi came closest to rationalizing the qualified privilege defense in libel cases in the Caribbean. Blasi rejected absolute privilege in relation to scandals concerning private persons and non-government public persons, and criticized the Supreme Court for extending its actual malice privilege to non-governmental public figures.83 One of Blasi’s theories of freedom of speech, the checking value theory—which embraced the watchdog role of the media—also involved special protection for speech on public issues and not for speech about public persons.

For Blasi, the checking value theory was premised on the need to prevent abuse by government officials already in office, rather than to facilitate the process of selecting government representatives. Thus, the checking value theory did not support a higher privilege for speech about private activities of public officials.84 Speech about the private actions of public officials for Blasi was less important under the checking value system than speech about the public activities of officials.85

Blasi’s position would seem to support the House of Lords’ decision in the

Reynolds v. Times Newspapers,86 discussed in chapter 3, on the point that any privilege should extend to statements made only about the aspects of a public person’s public life rather than generally to cases involving both public and private life. In Reynolds the

House of Lords refused to embrace the New York Times actual malice standard in English libel law. The House of Lords favored a privilege based on statements made in the public

83 Vincent Blasi, The Checking Value in First Amendment Theory, AMERICAN BAR FOUNDATION RESEARCH JOURNAL 521 (1977).

84 Id.

85 Id. at 584–585.

86 [1999] 4 All E.R. 609.

776 interest rather than one based on the status of a person as a public official or person.

However, Blasi contemplates larger protection for speech than that posited by the law lords in Reynolds. Unlike the law lords, who rejected a generic privilege for speech about all political matters, Blasi advocates full freedom of speech on political issues.87

In this regard, the classic exposition of speech protected by qualified privilege in

Britain and the British Caribbean is where a speaker, writer or publisher has a duty to make the speech and the recipient an interest in hearing the statement communicated.88

Thus, the qualified privilege defense extends not only to political speech but has been fit into the following categories:

• statements made in discharge of a legal, moral or social duty,89 • statements made where the speaker has a legitimate interest,90 • statements made in the case of complaints about persons with public authority, • reports of parliamentary proceedings, • copies or extracts from public registers or reports of judicial proceedings,91 and • statements made where there is a statutory privilege.

However, this privilege is more easily defeated than the political privilege proposed by Blasi. Thus, the qualified privilege in the United Kingdom can be defeated where the statement for which privilege is claimed is made with express malice. In Reynolds Lord

Nicholls defined express malice as including the following circumstances:

87 Id. at 585.

88 Id. at 616. See Adam v. Ward [1917] A.C. 309, 334, citing Lord Atkinson.

89 Hoyte v. Liberator Press Ltd., (1973) High Court Guyana, No 269 of 1972 (unreported) (holding that words published by a newspaper intimating that the Minister of Finance of Guyana had been dishonest and should disclose his income tax returns were not privileged. The Court held although there might be a duty to communicate the information to the Inland Tax Revenue Commissioner, there was no duty to communicate this to the general public.)

90 This includes statements made in self defense. See Osborn v. Boulter, [1930] 2 K.B. 226.

91 GILBERT KODILYNE, COMMONWEALTH CARIBBEAN TORT LAW, supra at 349.

777

• when the defendant “used the occasion for some reason other than the reason for which the occasion was privileged;”92

• when the dominant motive for which the statement was made was to injure the plaintiff; or

• when the writer did not believe the statement to be true or made the statement recklessly without considering whether it was true or not.93

10.7 Criminal Libel Laws

Since 1966 criminal libel laws have been unconstitutional in the United States.94

However, in the British Caribbean, as in the United Kingdom, criminal libel laws have been held to be constitutional and justified in a democratic society in a 2004 Privy

Council decision, Worme v. Grenada Today.95 The Privy Council held that a Grenadian criminal libel statute that placed the burden of proof of falsity on the prosecution96 was justified in a democratic society. The Privy Council Board also noted that, under the statute, the prosecution had to prove that the statement was not made for the public benefit before the defendant could be found guilty of criminal libel. The Privy Council

Board held that the law was constitutional and could be invoked notwithstanding the fact that the existence of civil libel laws in Grenada also provided for civil libel actions and the statute had not been invoked for several years.97

92 Reynolds, supra at 616.

93 Id.

94 Ashton v. Kentucky, 384 U.S. 195 (1966).

95 George Worme & Grenada Today Ltd. v. Commissioner of Police of Grenada, (2003) 63 W.I.R. 78.

96 Id. at 94.

97 Id. at 103.

778

In Worme, Lord Rodger of Earlsferry, who spoke for a unanimous Privy Council, said that the protection of reputation was fundamental to a democratic society because it formed the basis of several decisions in society.98 Lord Rodger said:

Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual, is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognize that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others.99

Thus, the Privy Council Board in Worme, held the protection of reputation was sufficiently important to justify limiting the right to speech.100 The Board noted that the offense of criminal libel was connected to protecting reputation and was limited to situations where “the publication was not for the public benefit” and was, therefore, necessary in a democratic society.101

Caribbean legal scholar Simeon McIntosh disagreed with the Privy Council.

McIntosh suggested that criminal libel laws that prescribe imprisonment for newspaper workers who publish libelous statements against the government are unnecessary where civil laws are available to protect reputations.102 American journalism professor Jane

98 Id. at 201. Nicholls noted that the decisions included “whom to employ or work for, whom to promote, whom to do business with or to vote for.” Id.

99 Id. at 201. quoting Lord Nicholls decision in Reynolds, supra.

100 Id.

101 Id.

102 SIMEON C.R. MCINTOSH, FUNDAMENTAL RIGHTS AND DEMOCRATIC GOVERNANCE 135 (2005).

779

Kirtley has also suggested that criminal libel prosecutions are inappropriate and incompatible with a democratic society.103

Under the analyses of both McIntosh and Kirtley, there seems to be no function for criminal libel laws except as a punitive measure to assuage hurt feelings and allow retribution. McIntosh suggests that while libelous statements that attack a person’s reputation should be punished, imposing large damage awards for defamatory statements that are particularly malicious and damaging, is an effective punishment. After the 2004 decision in Grenada, as discussed in chapter 8, journalists in that country are being threatened with criminal libel suits for publishing negative statements about the prime minister and have become reluctant to play their watchdog role.104

As legal scholar Simeon McIntosh noted, the George Worme case involved criticism of the prime minister’s fitness for office, quintessentially political speech.105

There was no imminent danger of a riot or breach of the peace even if the content of the article was erroneous. Thus, there was no “morally compelling” ground to criminalize the speech.106

Caribbean constitutional scholar Margaret DeMerieux also has said that criminal and seditious libel legislation has no justification in the Caribbean.107 She argued that in

103 JANE KIRTLEY, CRIMINAL DEFAMATION: AN “INSTRUMENT OF DESTRUCTION” 1 (Nov. 18, 2003), http://www.silha.umn.edu/oscepapercriminaldefamation.pdf. (last visited Dec. 6, 2005).

104 See Chapter 8, 8.6, where the Media Workers Association of Grenada (M.W.A.G.) said that many media companies were limiting their staff to the use of press releases, and preventing their journalists from “dynamic” reporting because they feared reprisals from the state and libel suits brought by politicians. Additionally, M.W.A.G. said journalists were being threatened with criminal libel actions and about a dozen lawsuits were filed against journalists in a five-year period.

105 SIMEON C.R. MCINTOSH, FUNDAMENTAL RIGHTS AND DEMOCRATIC GOVERNANCE, 126 (2005).

106 Id.

107 DEMERIEUX, supra at 241.

780 the English common law, as discussed by Blackstone, criminal libel laws were justified on the common law position that free speech was premised on the absence of prior restraint for any speech, but not on restraint against criminal responsibility once the information was published.108 DeMerieux wrote that in the British Caribbean jurisprudence freedom of speech was also premised on the absence of prior restraints.

However, there was no specific constitutional protection for criminal libel law in

Caribbean constitutions. Thus, DeMerieux argued, the protection for criminal libel laws in the Caribbean had to be premised on the common law. Because the protection for criminal libel laws was premised on the common law, it was not entrenched and could be abolished, DeMerieux wrote.

Because of the importance of freedom of speech to the public, it could be argued that a free, full and truthful discussion of all public matters without prior restraint or subsequent criminal punishment is necessary in a democratic society. Kirtley and

McIntosh both also argue that criminal libel laws are inconsistent with what is required in a democratic society to balance the conflicting interests of freedom of expression and the right to reputation. No scholar could be found that disagreed with Kirtley and McIntosh.

Nevertheless, in the Caribbean, persons libeled could sue in a civil action as well as request that a libel be prosecuted.

10.8 Abrahams Case

In his 1994 concurrence in the Jamaican Court of Appeal decision in Abrahams,

Justice Martin Luther Wright said:

Once again the citizen, like the stripling David, is confronted with the awesome, but necessary power of the press, the Goliath of the equation. Public officials need

108 Id., citing W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, Book IV, Ch. Xi, para 13.

781

to be wary of the press, the people’s watchdog, but at the same time so incredible is the power which it exercises that the press is not left to run amuck but must abide by the legal leashes which apply in order to prevent avoidable damage. In other words, the press must respect the rules which apply to its operation.109

Similarly, in his dissent in the Inter-American Commission of Human Rights, commissioner Freddy Guttierez Trejo said that, by agreeing to review the award, the commission was, in fact, protecting profit-making corporations.110 In Abrahams the

Gleaner published an article accusing Anthony Abrahams, the former minister of tourism in Jamaica, of accepting kickbacks for tourism contracts. As Michael Manley indicated in the 1980s,111 and Marcella Martinez, one of Anthony Abrahams’ witnesses, testified to in the Abrahams trial,112 the Gleaner has a strong credibility in the Caribbean and several

Jamaicans associate the word “Gleaner” with “newspaper.” Thus, the Gleaner Co. had a virtual monopoly in Jamaica during several periods in history—including in 1987 when the article about Abrahams was published—had the ability to severely affect Abrahams’ reputation and his ability to conduct his tourism consultancy by the articles it published.

In their testimony in the Supreme Court, Abrahams and his psychiatrist Dr. Aggrey Irons discussed the effect of the libelous statement on his emotional state of mind and

Abrahams’ expressed fear of interacting with other people because of his embarrassment.113

109

110 Admissibility Dudley Stokes, Jamaica, Petition 28/04, Inter-Am. C.H.R.), Report No. 65/04, OEA/ (2004) http://cidh.oas.org/annualrep/2004eng/Jamaica.28.04eng.htm (last visited Nov. 3, 2005).Dissenting opinion by Commissioner Freddy Gutierrez Trejo, 15.

111 See Chapter 5, 5.6 at note 271, supra.

112 See Chapter 7, 7.3 at note 112, supra.

113 See Chapter 7, 7.3 at note 110, supra.

782

On November 8, 2001, when the Association of Caribbean Media Workers, of which Jamaica is a member,114 was formed, the group identified a Code of Ethics for

Caribbean journalists.115 The first prong of the code enjoins media workers from

“writing, publishing or broadcasting news information or comments not based on facts or designed to misinform.”116 Similarly the Code of the Eastern Caribbean Press Council, which is an organization for journalists in Barbados and the Organization of Eastern

Caribbean States (O.E.C.S.),117 explicitly provides the need for accuracy and states that journalists shall “include all relevant facts and avoid rumor and unsubstantiated statements in the interest of accuracy and fairness.”118

In the Abrahams case the Gleaner repeatedly printed articles that tended to portray

Abrahams as a criminal, when, as Stokes and his counsel later admitted, they had no evidence to back up the allegations against him. This violates the principle in the two

Caribbean press codes. The story printed by the newspaper was based on conjecture and the allegations made against Abrahams were unsubstantiated, but based on the belief of

114 See Web site of the Association of Caribbean Media Workers, http://www.geocities.com/caribbeanmedia (last visited June 3, 2006). The member nations of the ACMW are Anguilla, Antigua & Barbuda, Barbados, The Bahamas, British Virgin Islands, Dominica, Grenada, Guyana, Jamaica, Montserrat, St. Lucia, St. Kitts and Nevis, St. Vincent and the Grenadines and Trinidad and Tobago.

115See Code of Ethics: Association of Caribbean Media Workers, http://www.presscouncils.org/library/Caribbean.doc (last visited June 3, 2006).

116 Id.

117 See ECPC: The new Caribbean ‘watchdog’ body on ethics and freedom, www.sluonestop.com/news/jan%2027b%2003.html (last visited June 3, 2006). The OECS is a nine-member group comprising Antigua and Barbuda, Commonwealth of Dominica, Grenada, Montserrat, St Kitts and Nevis, St Lucia and St Vincent and the Grenadines. Anguilla and the British Virgin Islands are associate members. See Organisation of Eastern Caribbean States Web site

118 Code of Ethics: Eastern Caribbean Press Council, http://www.ijnet.org/FE_Article/codeethics.asp?UILang=1&CId=158570&CIdLang=1 (last visited June 3, 2006).

783

Stokes and the management team, as Stokes later admitted.119 The court found that the

Gleaner had no evidence to substantiate its stories but published with the intention of misleading the public into thinking that it had information that it did not have. In fact, the only source that the Gleaner had for its story once the Stamford Advocate withdrew the initial story was John Gentles, the former director of tourism. It could be argued that

Gentles may have wanted to destroy Abrahams’ name since Abrahams had fired him as tourism director because of his involvement in a conflict of interest.120 Thus, it could be argued that the Gleaner could have been more cautious in basing its case solely on

Gentles’ evidence. Under Caribbean law, in order to rely on the defense of privilege, any newspaper must have an honest belief that the statement at issue was true. In the circumstances leading to the Abrahams case it is questionable whether the Gleaner staff could have had an honest belief in the truth of the statement.

The Eastern Caribbean Code recommends that journalists should be “free from bias and distinguish clearly between comment, conjecture and fact.” In his testimony before the court, the Gleaner’s editor-in-chief—notwithstanding the fact that the newspaper had published an apology to Abrahams—indicated that he believed the story about Abrahams to be true but had no evidence of its truth.121 For the most part, these articles were not written as opinion but framed as if they were factual. In addition, the

Gleaner persisted in the libel even after it knew that the Associated Press had withdrawn

119 See Chapter 7, 7.3 at note 113. Stokes said in his evidence at trial that up to that point though the Gleaner had no malice toward Abrahams, “he regarded Mr. Abrahams as being guilty, just that they cannot get the evidence.”

120 See Chapter 7, 7.1 at note 43. Gentles was fired when he allowed his wife’s company to supply goods to the tourist board. Id.

121 See Chapter 7 at note 113. Stokes’ evidence was that “up until now he regarded Mr. Abrahams as being guilty, just that they cannot get the evidence.” Id.

784 the story. The newspaper’s persistence in publishing the libel, the Jamaican Court of

Appeal held, tended to support evidence of bias against Abrahams.122

The Eastern Caribbean Code also recommends that journalists should “make every effort to publish all the main points of view or interpretations of an event or issue, regardless of whether or not they agree with the views.”123 In the Jamaican Court of

Appeal in Abrahams, Justice Ian Forte said that the Gleaner had acted with malice by keeping the issue of the libelous statement in the public’s eye after it had gotten the retraction from Stamford Advocate, and after Abrahams had been cleared in the investigation.124 Lord Leonard Hoffman, upholding the lower court’s damage award for the unanimous Privy Council, said that for almost 16 years the Gleaner had “doggedly resisted the attempts of Mr. Abrahams to clear his name” and “maintained their allegations far beyond the point in 1988 at which it became obvious that they had no evidence to support them.”125 Thus, in Abrahams, the Privy Council held that the Gleaner could not rely on the defense of privilege. In the Abrahams case the Gleaner neglected to publish Abrahams’ response when he first sent it to them. This was interpreted by the

122 See Chapter 7, 7. 4 at note 150. Justice Ian Forte, in his decision in the Court of Appeal, noted the Gleaner’s persistence in publishing the second article containing the charges against Abrahams. He also noted that the newspaper persisted even after Abrahams had denied the allegations. These were factors the judge said that justified the jury’s decision to award aggravated damages. Id.

123 Id.

124 See Chapter 7, 7.4 at note 139 and 144.

125 Abrahams v. Gleaner, supra at 221. Lord Leonard Hoffman in his decision for the unanimous court said that for almost 16 years the Gleaner had “doggedly resisted the attempts of Mr. Abrahams to clear his name” and “maintained their allegations far beyond the point in 1988 at which it became obvious that they had no evidence to support them.” Id.

785

Court of Appeal as evidence of a malicious motive on the part of the Gleaner.126 It could also be argued that the newspaper contravened its ethical duty under the Caribbean codes of ethical conduct for journalists not to publish mere rumors and to present all sides of the story.

The one-sided report by the Gleaner may be more problematic since there was no alternate newspaper in Jamaica in 1987 for Abrahams to air his side of the story. Gleaner boss Oliver Clarke’s strong advocacy on behalf of a change in the rules governing reporting on public figures to bring it more in line with the U.S. position that requires reckless disregard for the truth or knowledge of falsity127 might suggest that he believed that under the U.S. standard, the Gleaner would have a better chance of defending itself.

However, it is very likely that under the U.S. standard the Gleaner would still be liable for libel. The persistence of the Gleaner in publishing the libel even after realizing that the original story had been withdrawn and there was no evidence to support the story— apart from the evidence of John Gentles who had been fired from his job in the tourism industry by Abrahams—could alone be adequate evidence of a reckless disregard for the truth on the newspaper’s part. In the circumstances it is fair to say that it is likely that even by the actual malice standard in the United States the Gleaner could be held liable.

Further, as indicated earlier, the Caribbean courts have been very conservative in making awards of damages. It is conceivable that, if the Abrahams case had been decided in the United States, Abrahams could have been awarded substantially more money. This

126 See Chapter 7, 7. 4 at note 150. Justice Ian Forte said in the Court of Appeal that the Gleaner’s failure to publish Abrahams’ denial on the second publication was another factor justifying the jury’s decision to award aggravated damages. Id.

127 This was the standard set in New York Times v. Sullivan, 376 U.S. 254 (1964).

786 is so despite the fact that local and international media have expressed concern over the level of damages awarded in the Abrahams case and its implications for freedom of speech in the Caribbean.

In the Caribbean, since defamatory statements are libelous per se and falsity is presumed, the burden is on the defendant to prove that a statement is true. In the

Abrahams case the Gleaner did not discharge its burden to prove that the statement was true. Additionally, the statement that formed the basis of the action in Abrahams was not phrased as an opinion but as fact which precluded the Gleaner from relying on the defense of fair comment.

The Abrahams decision can be used as a backdrop for discussing the implications of defamation in the Caribbean. This will be discussed more thoroughly in section 10.9.

10.9 Role of Freedom of Speech in Newly Independent Nations

In 2001 Dr. Keith Mitchell, prime minister of Grenada, urged Caribbean media workers to be more involved in educating the public than in reporting on perceived scandals:128

I believe one of the main responsibilities of the media is to empower your readers and listeners. You cannot do this effectively or with any consistency when you have a private agenda or allow your personal feelings, preferences and opinions to get in the way of your job. If your newspapers and your newscasts only report on the perceived scandals, the latest gruesome incidents of alleged corruption, or you report by innuendo rather than by fact; then you are distorting the image of your community…

This speech echoes an appeal to journalists to exercise responsibility in carrying out their role by the late Michael Manley, the then Jamaican Prime Minister in the 1970s.

128 Keith Mitchell, Prime Minister of Grenada address at the opening ceremony of the IV Annual Caribbean Media Conference, Grenada: The Role of a Free Press in a Small Island State – Size, Politics and a Free Press (May 25, 2001), http://www.caricom.org/jsp/speeches/4mediaconf-kmitchell.htm (last visited Nov. 12, 2005).

787

It also echoes standards of responsible journalism that are underlined by media associations in the Caribbean. A question that needs to be evaluated in future research is whether an emphasis on responsibility in reporting and nation-building is important or necessary for developing countries that are still trying to define their path in the 21st century.

The legal and jurisprudential structure in the United States has emerged because of its own political, geographical and cultural characteristics. During its early years of independence individuals in the United States were subjected to repression of speech through seditious libel laws. Today, however, because of several decisions by the United

States Supreme Court, Americans enjoy a large amount of freedom to criticize the government. The actual malice test has emerged as the standard in libel actions involving public figures and is justified by Justice Brennan on principles that have emerged as being important to U.S. citizens in the years following independence.

However, the history of the British Caribbean has been different and the British

Caribbean has not adopted these same principles into its libel law governing public officials. In the case of the Caribbean there has been no independent development of libel laws with regard to the nations’ peculiar historical circumstances. Instead, the libel statutes in the Caribbean mimic the British libel statutes past or present. To their credit

Caribbean legislators have, since the 1970s, began to produce legislation that reflects the needs of Caribbean nations although these laws do not relate to communication.129

129 See, e.g., Status of Children Act in Jamaica [Act 36 of 1976]. The text for the Status of Children Act is available online at the Ministry of Justice of Jamaica’s Web site’s Laws of Jamaica page at http://www.moj.gov.jm/?q=law/view/509 or at the Jamaican Supreme Court Web site at http://www.sc.gov.jm/LOJ/StatusOfChildren/status_of_childrens_act_Index.htm (Both Web sites last visited Apr. 16, 2006). The Status of Children’s Act abolished “bastardy” or “illegitimacy” as a legal status in Jamaica. See also The Intestates’ Estates and Property Charges Act (1937), available online at the Supreme Court’s Web site at

788

Similarly, Caribbean courts and the Privy Council have started to interpret statutes in accordance with the requirements of local conditions.130 Another move in the direction of an independent legal system in the Caribbean has been the introduction of the Caribbean

Court of Justice comprised of regional judges at the start of this century.131

As Sydney Kentridge suggests in his 1996 article in which he opposed the U.S. actual malice standard for application in the United Kingdom, “we should never assume

[that] there is only one path to that end [political or civil liberty], or that we must follow in the footsteps of others to reach it.”132 In the United States the Supreme Court has underlined the fact that the decisions relate to the peculiar history of that nation and the principles that Americans hold as important.133 There is the need, similarly, to introduce local considerations into libel law jurisprudence and legislation in the Caribbean.

As the Caribbean nations start to determine the level of freedom of speech that is appropriate for them there is a need to factor in the fact that, unlike the United States and the United Kingdom, the Commonwealth Caribbean nations are still in their youth and in the process of defining themselves, their political agendas, and the social and economic http://www.sc.gov.jm/LOJ/IntestateEstateandPropertyCharges/intestates_estates_and_property_Index.htm, (last visited Apr. 16, 2006). The Intestates’ Estates and Property Charges Act provides for common-law spouses of 7 years or more to inherit property.

130 See e.g. Jamaican case Crampad International Marketing Company Ltd. v. Val Benjamin Thomas, (1989) 26 J.L.R. 16. In Crampad the Privy Council recognized that the policy considerations that caused the British legislature to pass its Rent Restriction Act did not necessarily coincide with those causing the Jamaican legislature to pass the Jamaican Rent Restriction Act. Thus, regardless of the similarity in the wording, the Privy Council held that it was bound to interpret the Jamaican statute with regard to local policy considerations. Id.

131 See Chapter 6, 6.1 note 28 for a discussion on the Caribbean Court of Justice (C.C.J.).

132 Sydney Kentridge, Freedom of Speech: Is it the Primary Right? THE INTERNATIONAL AND COMPARATIVE LAW QUARTERLY, Vol. 45, No. 2, 253, 270 (April 1996).

133 See for e.g. Sullivan, supra at 270, where Justice Brennan said that from independence in 1776 Americans had adopted the fundamental principle of government that “public discussion [was] a political duty.” Id.

789 structures that are necessary for these agendas. In the process of development, both

Michael Manley and Keith Mitchell, prime ministers of Jamaica and Grenada have suggested that freedom of speech has sometimes to take a backseat to social responsibility and the best interest of the nations. This emphasis on responsible journalism has also been echoed by Caribbean journalism associations.134

In Reynolds, the House of Lords—in rejecting the actual malice standard in

England—cited the need to allow a more fluid test to balance freedom of speech with the right to protect reputation.135 Thus, the House advocated a balancing test in determining whether privilege applied. Under this test, the right to freedom of speech and to the protection of reputation would both be taken into consideration before allowing a defense of privilege instead of imposing a “generic” privilege in the case of political communication as had been proposed by the Times’ lawyers in Reynolds.136 Similarly, the House of Lords rejected a privilege covering speech about all public officials and figures as existed in the U.S. since 1964 with the only defense being knowledge of falsehood and reckless disregard for the truth.

The House of Lords in its dicta in Reynolds, instead of adopting the actual malice standard, decided to phrase its test so that journalists must take “due care” in exercising their watchdog role. The House of Lords based this decision on the fact that under the

European Court of Human Rights’ discussion of the role of freedom of speech under the

134 See Chapter 5, 5.6, supra. The Code of Ethics of the Association of Caribbean Media Workers includes a provision against “Writing, publishing or broadcasting materials inimical to the region’s cultural and political sovereignty.” Id.

135 See Reynolds, supra at 643. Although the New York Times standard is a balancing test, the law lords in Reynolds believed that the qualified privilege test was more fluid than the actual malice standard since the defendant had to prove that qualified privilege applied in each case. Id.

136 See Reynolds, supra at 643.

790

European Convention of Human Rights, the right to reputation was recognized as being as important as the right to freedom of speech in a democratic society. Thus, the House recognized that the publication of false statements that debased the character of politicians would affect the democratic fabric of society by preventing the electorate from making an informed decision.137 The House of Lords decision was echoed by the Privy

Council in 2005 in Panday v. Gordon138 which involved a libel by the Trinidadian prime minister against a journalist. In Panday, the Privy Council Board cautioned against allowing grave factual allegations known to be false to be made without punishment, denying the public person the means of redress and to establish the truth.139

Ultimately, in Caribbean jurisprudence in libel cases, there is a balancing by the court of the competing interests of the right to freedom of speech and to reputation. Thus, in Panday, Lord Nicholls, said that “immense and lasting damage” was sometimes caused by defamatory statements and the Privy Council refused to apply qualified privilege to all cases involving public figures.140 Thus, in order to be protected by qualified privilege, Nicholls said, a reporter should show he acted with due care in addition to acting honestly—or with an honest belief in the truth of the statement— in reporting the defamatory statement.141 The objective requirement to exercise care and act honestly, Nicholls said, was elastic and would be determined by examining “all” of the

137 Id.

138 Privy Council Appeal No. 35 of 2004.

139 Id. at ¶ 21. Lord Nicholls noted that the fact that section 4 of the Constitution simply listed the rights protected under the Constitution without elaboration indicated that the intention of the drafters was for the courts to define the boundaries. Id. at ¶ 22.

140 See Chapter 6, 6.5, See also Panday v. Gordon, supra at ¶ 13.

141 Id. at 14.

791 circumstances of the case, including “the importance of the subject matter of the statement, the gravity of the allegation, and the context in which it is made.”142

In this manner the Caribbean courts have emphasized the importance of responsible journalism. This places a burden on the defendant in a libel action to show that qualified privilege applies in each case and removes the privilege when the plaintiff shows that the defendant acted without an honest belief in the truth of the statement based on reasonable grounds143 or did not act with due care in publishing.144

This is by no means to suggest that freedom of the press is not a desired goal. The

Commonwealth countries have all embraced freedom of speech and have—with the exception of the one nation of Antigua and Barbuda—been recognized as enjoying freedom of the press by international standards.

10.10 Differences Between the Standards

While the House of Lords, the highest court of appeal in Britain, has overwhelmingly rejected the actual malice standard used in the United States in 1999,145 the Privy Council, the final court of appeal for the British Caribbean, has not done the same in relation to the Caribbean. The House of Lords has specifically laid down in its

142 Id. .

143 See for e.g. Chapter 6, 6.4 at note 265, where the Jamaican Court of appeal in the Seaga case noted the publication of “mere rumors” would not be privileged. See also chapter 6, 6.5 Panday, supra at Id. at ¶.27, noting that Panday could not reasonably have had an honest belief that Gordon was racist based on all the circumstances.

144 See chapter 6, 6.5, in Panday, supra. The Privy Council also held that because of the need for journalists to exercise “responsible” journalism, publication, honesty or “good faith” in publication alone would not be sufficient to allow a defense of qualified privilege, there had also to be a finding that the defendant took due care in publishing.

145 Reynolds, supra.

792 reasoning factors that militate against introducing the American standard, several of which factors don’t exist in the Caribbean.

One factor that may have led the Caribbean to adopt a different approach in cases involving public officials or figures than that in the United States is that the constitutional provisions in the Caribbean, unlike that in the United States, specifically provide “the protection of reputation” as an exceptional case where freedom of speech can be abridged. This underlines the importance in the Caribbean context of reputation. It also provides courts in the Caribbean with the leeway in determining the extent of liability in libel actions to recognize the right to protection of reputation as a constitutionally protected right. This can be compared with the U.S. position where reputation is not specifically protected under the federal Constitution. Instead, in constitutionalizing libel laws, the Supreme Court held that libel actions could claim “no talismanic immunity from constitutional limitations” but fell within the First Amendment.146

Similarly, after the British courts rejected a generic privilege that would automatically attach to political speech and a constitutional privilege for speech concerning public officials, the British Caribbean courts have continued to treat public persons in the same manner as private persons. This has also meant that journalists in the

Caribbean cannot claim a special privilege for speech either about public persons or about political matters. Instead, in the British Caribbean the defense of privilege only applies in cases where the circumstances of the publication of the statement warrant a privilege as determined by common law or statute.

146 New York Times v. Sullivan, 376 U.S. 254, 269 (1964).

793

This brings us to a second way in which the Caribbean differs from the U.S., which is that there is no constitutional privilege in the Caribbean. Instead public persons in the

Caribbean must rely on the defense of qualified privilege. In the U.S., qualified privilege protects defamatory remarks in official documents and proceedings. However, in the

Caribbean qualified privilege is a larger defense which, in addition to covering public hearings, comments in the legislature and court opinions, embraces any situation where the speaker had an interest in reporting the event and the recipient had an interest in receiving it. This qualified privilege can be defeated on a finding of express malice.

Express malice will be found where a statement was made without an honest belief in it—which includes a finding that the defendant had knowledge that the statement was false or was careless as to whether it was false. This standard closely approximates the

U.S. standard of actual malice but occurs only once a speaker or writer is protected by privilege compared to the protection that exists for any defamation of public persons in the United States. Indeed, under the Caribbean standard the qualified privilege can be lost where the statement was made for an improper purpose other than that for which the privilege was intended to be used. Thus, the U.S. constitutional privilege is a stronger privilege than the Caribbean qualified privilege.

It is also important to bear in mind that while the U.S. constitutional privilege attaches to a particular type of person—public persons—the Caribbean qualified privilege is applied on a case-by-case basis and arises because of the occasion on which the speech was made. In this regard the qualified privilege includes but is not limited to public persons. Nor is it limited to occasions involving a public interest.

794

In relation to damages, while compensatory damages are recoverable under both

U.S. and Caribbean law on a finding of liability, exemplary or punitive damages are not always recoverable. In the case of the U.S., punitive or presumed damages are recoverable in the case of a defamation of a private person where the publication involved a purely private matter on a showing of negligence. However, in the case of a publication about a public persons or about private persons involving a public issue, the plaintiff must show the defendant acted with actual malice—knowledge of falsity or reckless disregard for the truth. In the case of the Caribbean exemplary damages are only recoverable where the plaintiff shows the defendant acted in a manner calculated to make profit for himself.

It is beyond the scope of this dissertation to determine why the constitutional protection for speech in the Caribbean and the U.S. have led to different standards in libel cases involving public persons in these two jurisdictions. Future research should try to determine the reason why these neighboring countries which both had a history of

English domination have chosen different paths in dealing with public person libel actions.

One factor that could militate against the adoption of stronger standards for protecting the media in the case of public officials is that, because of the relatively new status of independence of all these nations, Caribbean leaders and its press have traditionally embraced the need for “responsible” news reporting as a means to ensure national development.147 Responsible news reporting, for Caribbean media148 and

147 Panday v. Gordon, Privy Council Appeal No. 35 of 2004 at 24–25.

148 See Chapter 5, 5.5, text accompanying note 319 which delineates the Code of Ethics of the Association of Caribbean Media Workers’ prohibition against publication of statements inimical to the state.

795 politicians149 alike, means giving greater deference to supporting the goal of national development than to protecting freedom of speech.150 This dissertation has not directly examined whether the emphasis on responsible news reporting in the Caribbean has impacted on the libel law as it pertains to public persons. Future research should look at the question of whether an emphasis on responsibility in news reporting in individual countries generally leads to harsher libel laws in the case of public persons. This could involve an examination of libel laws in Britain and other first world countries that have traditionally placed a strong emphasis on the protection of reputation.

Yet another way in which the Caribbean differs from the U.S. is the lack of diversity in the media. Several Caribbean countries have no daily newspapers.151 Others, such as Jamaica, are dominated by one newspaper that has gained ascendancy as the

Jamaican newspaper. Thus, although in Jamaica there are two daily newspapers—the

Gleaner and the Jamaica Observer—some Jamaicans still are more likely to believe information published in the Gleaner because it is the newspaper they grew up with. In this context the second newspaper is not an effective alternative source of news.

Additionally, because of the lack of resources on the part of investors and the limited airwave space, the electronic media is often government run which could preclude the presentation of an unbiased position.

The lack of diversity of news media in the British Caribbean can be contrasted to that in the United States where there is a diversity of privately-owned news media. Thus,

149 See Chapter 5, 5.5, text accompanying note 271 where Michael Manley, the former prime minister of Jamaica notes that the national interest was paramount.

150

151 Grenada has 5 weekly newspapers, but no dailies.

796 there is a diversity of outlets for several different ideas to be expressed. In contrast, in the

Caribbean the private press, such as exists, often has and pursues one political agenda.

Neither a bias toward or against government is conducive to providing an effective watchdog role. Because there are few alternative media to combat the bias in news reports the citizens can be left with a one-sided image of political affairs. This is not to minimize the watchdog role that the Caribbean media has been playing in reporting government scandals. The dissertation has not, however, addressed the issue of whether the lack of diversity of media affects the ability of the media to provide an unbiased presentation of the news and to play its watchdog role effectively.

In the writer’s opinion, allowing the media—which largely has a specific and biased political agenda—the wide discretion of the U.S. actual malice protection in the case of public figures and officials would not necessarily promote the watchdog role of the media in the Caribbean. This is because there is a possibility that the media—instead of using the privilege to provide the watchdog function it was intended to provide—could exploit the privilege to promote its own agenda. Future research should look at the issue of whether the diversity in the media affects the content of the news.

10.11 Conclusion

In the opinion of the writer, before embracing any foreign-generated legal position on public person libel laws in the Commonwealth Caribbean, the people and their governments in the region need to look at its own local history, geography and other unique aspects of the society to determine whether these laws would be applicable to its goals of nationhood. In the writer’s opinion, this approach will better facilitate the development of laws consistent with the development goals in the Caribbean, and ensure

797 that the local jurisprudence can be justified as being “necessary” in the democratic societies152 with the unique position of the British Caribbean.

The larger question: what is the role of defamation laws and freedom of speech in developing nations is not answered in this dissertation which focuses on a collection of small countries under the British Commonwealth. Based on the discussion so far, the evidence provided in this dissertation only suggests that in the case of the British

Caribbean freedom of speech is largely seen as playing a role in development of the country through responsibility in news reporting. Whether a newspaper reported responsibly in reporting is decided on a case-by-case basis in libel actions and is premised on the position that journalists should take “due care” in publishing news reports.153 In acting with due care, case law has determined that the newspaper is required by the court not to publish information in cases where there is doubt about the truth or where the information amounts to “mere rumor.”154 Similarly, privilege will only apply where information is published to the appropriate body that can allow redress of the ill that the privilege is being claimed to redress rather than to the world at large.155

Additionally, probably because of the commitment to the protection of reputation that is specifically set out in the British Caribbean constitutions, the courts have maintained a flexible position in determining libel laws involving both public and private persons. Thus, the courts employ a case-by-case analysis of whether in the circumstances

152 See Abrahams at 219, where the House of Lords held that in assessing damages the court should ask itself whether “a reasonable jury [could] have thought that this award was one which was necessary to compensate the plaintiff and to re-establish his reputation?” Id.

153 See Seaga at 322.

154 Id.

155 Id.

798 of the case the communication should be protected by qualified privilege rather than allowing protection for all political speech or speech about public figures.

Caribbean scholar McIntosh has suggested that the protection that the British law gives to criminal libel laws cannot be condoned because of their chilling effect on speech.156 In the opinion of the writer, because the civil law of libel provides an adequate balance between reputation and freedom of speech, it could be argued that there is no need in the British Caribbean for criminal libel laws. This is because, in the writer’s opinion, criminal libel laws have a chilling effect on speech. Where the libelous statement leads to harsh consequences for the defamed person, this writer believes, the appropriate means of redress should be immense damages to reflect the enormity of the damage caused.

On the other hand, the United States position that restricts public-person actions for libel, it could be argued, may not allow the level of flexibility that has developed in the

Caribbean civil law which, in balancing the two competing issues—freedom of speech and reputation—places the burden of proof on the defendant. This position may be consistent with the protection in the British Caribbean constitutions which is based on the

European Convention’s wording.

Under the Jamaican and other Caribbean constitutions the right to freedom of speech is restricted where “reasonably required … for the purpose of protecting the reputations, rights and freedoms of other persons.”157 Thus, the Jamaican Constitution states:

156 MCINTOSH, supra at 109.

157 JAM. CONST. § 22(2)(a).

799

Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of [the right to freedom of expression] to the extent that the law in question makes provision . . . which is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons.158

The Caribbean constitutions specifically provide that reputation is an exceptional circumstance where freedom of speech can be infringed. It is not surprising, therefore, that the jurisprudence in Caribbean courts and the Privy Council has consistently recognized the importance of protecting the right of all citizens to a good reputation.

It is not clear to this writer that there is a need now, based on all the circumstances—the youth and size of the countries, the lack of diversity of the media and the fact that the countries are all third-world underdeveloped countries in the process of trying to develop—to remove this protection for reputation by adopting the New York

Times actual malice standard. In this writer’s opinion the standard to be imposed on journalists where they claim a qualified privilege is not to prove the truth of all the statements they make but to exercise due care in publication. This is the current position in Caribbean law. In the writer’s opinion, it is not sufficient to democracy to have a vibrant press; it is also important in a democratic system to have a press that is accountable for its actions that fall outside responsible journalism. A responsible journalism standard, in the writer’s opinion, is similar to that imposed in the case of a private and public persons alike—that the journalist acted with due care in publishing the story.159

158 JAM. CONST. § 22. See also the Barbados Constitution which provides at part III “Whereas every person in Barbados is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, color, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest,

159 See section 10.1 for a definition of responsible journalism and due care.

800

In all the more recent Caribbean cases involving libel law discussed in this dissertation the standard applied in determining whether libel laws are allowed has been whether the law is “reasonably required” or “necessary in a democratic society.” In the author’s opinion, asking journalists to abide by standards of responsible journalism by applying due care whether the individual is a public or private person is a reasonable standard that serves the requirements of a democratic society. This is because the argument for protecting freedom of speech is based largely on the need to have robust discussion in democratic societies to facilitate the public in making decisions. In this context, the writer recognizes that in promoting this robust discussion some untrue statements may have to be condoned. However, in the writer’s opinion, the spread of untruths hinders and does not facilitate the citizens in the decision-making process. Thus, in the writer’s opinion, where a statement is published without due care or amounts to rumor the defendant should not be allowed to rely on privilege. Thus, to this extent, the

British position on libel law should be maintained in the Caribbean in the writer’s opinion.

Justice Paul Harrison in his 1999 concurrence in the Court of Appeal decision in

Abrahams said:

No media, and in particular the printed media, should ever so lightly and recklessly and unjustifiably besmirch a man’s character—that prized possession—and proceed unchecked and “unrewarded.” This is more so in respect of a man who has given himself to the service of the public.

In the Caribbean there is no enforceable code of professional ethics. While there are

Caribbean codes of ethical conduct for journalists none of these provides an inbuilt

801 mechanism to monitor or punish journalists who do not abide by the code.160 Without a regulatory and punitive mechanism it will be difficult to monitor compliance, in the writer’s opinion. In the writer’s opinion in the same way that the legal and the medical fields have disciplinary bodies to punish members who do not abide by professional standards, the media, if it is to take its place among other respected professional groups, will need such a body. Many people disagree with licensing of reporters because they believe that it removes the independence of the media voice, but, in the writer’s opinion, freedom of speech is not disturbed by introducing a system that monitors journalists to ensure that they abide by the standards of the profession. In the writer’s opinion, even in a system where freedom of speech is recognized as being a necessary element in a democracy, as in the Caribbean, it is important to prevent abuse by unscrupulous journalists by forcing journalists to abide by recognized professional standards.

As Justice Tipping said in the Australian case Lange v. Atkinson:161

It could be seen as rather ironical that whereas almost all sectors of society, and all other occupations and professions have duties to take reasonable care, and are accountable in one form or another if they are careless, the news media whose power and capacity to cause harm and distress are considerable if that power is not responsibly used, are not liable in negligence, and what is more, can claim qualified privilege even if they are negligent. It may be asked whether the public interest in freedom of expression is so great that the accountability which society requires of others should not also to this extent be required of the news media.

Doctors are responsible for the lives of their patients; lawyers are responsible to play their dual role as officers of the court and—as their client’s legal representative—to give their client the best advice they can, within the resources available. Both the medical

160 See Chapter 5, 5.6, supra at note 321, which states that the only means of enforcement within the Eastern Caribbean Code is an obligation on its 14 member newspapers when criticized by the council, to “print promptly in full and with due prominence, the council’s adjudication.” There is no provision in the Code of Ethics for Caribbean Media Workers to enforce its provisions.

161 [1998] 3 N.Z.L.R. 424 at 477.

802 and legal professions are important because of the impact that they have on the lives of thousands of individuals. The profession of journalism is no less important, in my opinion. In fact it could be argued that the profession is more important since, while doctors and lawyers deal with patients/clients on a one-on-one basis and can only affect individuals one at a time, the product of journalists is available to anyone who can access it and has the ability to affect the thinking of all their readers. In the circumstances, the same restraints placed on doctors and lawyers through codes of ethics determined by the medical and bar associations should be imposed on journalists by a monitoring association.

In this regard, in the same way that, in the Caribbean, the relevant bar association’s disciplinary councils consist of members of the country’s bar, the disciplinary council for journalists should consist of journalists themselves. The benefit of this is that journalists understand better than anyone else the standards that are important in their profession and have a greater interest in maintaining these standards to ensure that the dignity of the profession is maintained. Judges or lawyers, although understanding the principles in drafting a code, would be ineffective in determining the standard because they are not trained and have no experience of working in the profession and so would not be able to recognize the fundamental principles that form the basis of journalism. It would be inappropriate to have private citizens determine the standards because they also lack this background. On the other hand, in the writer’s opinion, journalists are the best persons to determine the standards that members of the profession should use. Because journalists have a vested interest in maintaining the dignity of their profession, the writer’s view is

803 that they would be unlikely to abuse their position in determining ethical standards for their profession.

The need for an enforceable code of ethics is particularly important in the context of the Caribbean where many countries have a limited number of newspapers and the electronic media is often owned by the government. Because of the lack of diversity of voices the media has the means and the power to abuse its position as the people’s watchdog by feeding the public with opinions clothed as facts. In my opinion, until a body to monitor the behavior of the media is formed, the constitutional protection for reputation and the law of libel is the major defense that the public has to protect their reputation against this type of abuse. In this context, under Caribbean law, each time a case arises involving allegations of libel, the media must rely on the balancing test designed by the court to balance the conflicting interests of freedom of speech and reputation. Under this test, the media has the burden to show that it acted with due care and had an honest belief in the truth of the statement—elements that have been recognized by Caribbean media associations as ethical practices that form the basis of good journalism.

Thus, the Annual Caribbean Media Conference has been attempting to provide guidelines for ethical conduct in the field, along with national and/or regional press councils or ombudsmen to hear complaints by the public against media.162 Claude

Robinson, a senior fellow at the Mona Institute of Business at the University of the West Indies, in his report on the impact of the media conference, notes that one theme of the conference

162 Claude Robinson, Impact of Annual Caribbean Media Conference, at 15. (Study prepared by UNESCO, Kingston, Jamaica, May 6, 2002), http://www.caribbean-media.net/cmc5/unesco.pdf (last visited Oct. 1, 2004).

804 has been emphasis on the need to educate media professionals and the public on

“standards and principles on which to judge the work of journalists and the output of media houses.”163

The issue of the level of professional training among Caribbean journalists has not been addressed in this dissertation. However, the showing of a lack of professionalism by the Gleaner in the Abrahams case could raise the issue of whether Caribbean journalists are adequately trained to provide the watchdog role that they are required to play. This issue could be examined in future research. For example, future research should examine the level of training of journalists in the Caribbean and the extent to which they are familiar with libel laws and the professional codes of conduct designed by Caribbean media associations.

This writer believes that perhaps size, measured by both population and the size of the islands, may be one factor that might influence the direction of the libel decisions relating to public persons in the British Caribbean.

Thus, while the total land area of Florida is 54,252 square miles,164 the landed area of Guyana, which has the largest size of the Caribbean countries, is 83,000 square miles.165 However, with an area mass that nearly doubles that of Florida, Guyana only has a population of 757,863166 which is significantly smaller than Florida’s population of

17,019,068. The country with the largest population in the British Caribbean is Jamaica

163 Id. at 14.

164 Florida Quick Facts, State of Florida. Com, http://www.stateofflorida.com/Portal/DesktopDefault.aspx?tabid=95 (last visited Aug. 1, 2006).

165 Guyana, General Information, http://www.geographia.com/guyana/geninfo.html (last visited Aug. 1, 2006).

166 Id.

805 with a population of more than 2,700,000 but a landed area of 4,411 square miles.167 The average size of the Caribbean nations is best compared to Rhode Island, the smallest state in the United States with a landed area of 1,045 square miles and a population of

1,048,319.168 Comparatively, Trinidad and Tobago’s total landed area of 1,864 square miles169 is coupled with a population in 2002 of 1,304,000.170 Jamaica and Trinidad and

Tobago are the two largest islands. All the other islands have populations of less than 1 million and landed areas of no more than 300 square miles.171 Thus, in both population and landed area for the most part the countries are small. For example, Barbados with an area of 166 square miles and population of 260,000, St. Vincent and the Grenadines with an area of 150 square miles and a population of 109,000 and St. Kitts and Nevis with an area of 104 square miles and a population of 41,000 are all rated amongst the smallest 17 countries in the world.172

However, the evidence in this paper is not sufficient to determine whether size is a factor in the development of the libel regime. Future research on the British Caribbean libel regime should also seek further to identify whether size has played a role in the development of libel decisions involving public persons and—in fact—what all the issues

167 General Information Jamaica, http://www.un.int/jamaica/basic.htm (last visited on Aug. 1, 2006).

168 Almanac, Rhode Island, http://www.netstate.com/states/alma/ri_alma.htm (last visited Aug. 1, 2006). The population size of the Caribbean islands can also be compared with the Hawaiian archipelago which, though measuring 10,931 square miles has a population of 1,211,537.

169 Area: about T&T, http://community.wow.net/area/ABOUT_TT.HTM (last visited Aug. 1, 2006).

170 Trinidad and Tobago, Encyclopedia Britannica, http://www.britannica.com/ebi/article-9277428 (last visited Aug. 1, 2006).

171 See Size matters, http://www.cnr.vt.edu/boyer/geog1014/TOPICS/108States/size.html (last visited Aug. 1, 2006). Grenada with an area of 133 square miles and population of 98,00; Antigua and Barbuda with a population of 171 square miles and population of 83,000.

172 Id.

806 are that have caused the Caribbean libel law to develop in the manner it has. In this regard, apart from small size, Caribbean countries are newly independent, have statutes that specifically protect reputation, have autocratic political leaders, and lack of diversity of sources of news. The question is to what extent, if at all, do all or any of these factors contribute to the development of the libel regime and standards in the Caribbean. Case studies should be done in all the countries to determine whether any or all of these factors play a role in determining the libel law. In doing this research, however, it would not be sufficient to rely on case studies of the British Caribbean countries.

In this regard as a point of reference further research should look at other non-Caribbean countries that are also former members of the British Commonwealth— for example African countries such as Nigeria, Ghana and Kenya. These countries are generally larger in population and size than the British Caribbean countries. It would be instructive to see whether the same levels of protection exists for these commonwealth countries in the case of libel laws involving public persons as exists in the British

Caribbean. Depending on the result, such a study could debunk or affirm the position of the writer that size plays a role in the development of libel laws. On the other hand, the research could support or negate the position that the major factor determining the libel regime is the historical association with Britain as a colony.

The position of these countries on libel should be contrasted with other erstwhile

British colonies that are now considered to be first-world developed countries such as

Canada, Australia and New Zealand to determine whether these countries have moved in a different direction than the Caribbean and Africa. As discussed in chapters 3 and 7, all these countries have moved their libel decisions away from the British position,

807 introducing an integration of the British and U.S. position in the case of matters in the public interest. This may help us better determine whether underdevelopment in the

Caribbean nations may be a more important factor in determining the direction in which the libel law moves than the former colonial association.

Research also needs to be done to determine whether the factors involved in the development of libel systems are the same in the Dutch, Spanish and French colonies in both Africa and the Caribbean. If the libel regimes are the same in these countries, it could buttress a finding that the fact of being a third-world colony rather than the association with Britain has led to the adoption of a regime that does not support greater protection for public officials and figures.

Regionally this dissertation has confined itself to the British Caribbean and the

United States, both of which have an English jurisprudential base. Future research could look at the status of libel laws concerning defamation of public persons in the French,

Dutch and Spanish Caribbean to determine whether these countries have adopted the actual malice standard and whether, based on their unique cultures, they should adopt the

New York Times standard in regard to public figures.

Another area for future research would be a comparison of the libel laws regarding public figures in the Spanish, French, Dutch and English Caribbean countries to determine the extent to which there have been civil actions and criminal prosecutions for libel against public figures, and whether the fact that these countries have developed under a different jurisprudential regime, has affected the development of the law of libel relating to public officials and figures there. Separate research is needed on the codes and statutes in these countries that pertain to libel actions.

808

In examining all these issues the researcher could bear in mind the Siebert/Levy theories on factors that determine levels of freedom of speech and other theories discussed in this dissertation. Specifically, after looking at the Spanish, French, Dutch and English Caribbean countries and the level of protection that is given to libel, future research should try to determine whether, on the strength of this evidence, Siebert’s position that less secure governments are more likely to facilitate freedom of speech is maintainable. On the other hand, the researcher will need to determine whether any of the theories of speech advocated by the four American and Caribbean scholar in this dissertation are applicable to or appropriate for the existing conditions in these countries.

This is research that needs to be done for all underdeveloped countries. There needs to be a discussion on how libel laws are being used in developing countries generally.

Future research should focus on the factors that determine the libel regime in these developing countries and differences between libel regimes in the developing countries.

Research should also look at how libel laws mesh with the level of freedom of expression which is necessary for developing democracies, perhaps using such standards as the

Freedom House index. Also future research should look at the issue of what kind of protection for freedom of expression and reputation is necessary for effective development in underdeveloped countries.

This research is only the beginning of what is needed to understand how libel laws change as countries develop, and what kind of libel laws are adopted in long-term stable governments that feature popular elections. As shown in the literature review, very little work has been done that focuses on this aspect of libel laws and governmental systems.

809

Even where libel law is studied, seldom does it help understand the factors for the differences. It is hoped that this dissertation is a beginning step toward that goal.

APPENDIX A CASES IN THE DISSERTATION

Caribbean Libel Cases (chronologically and by Court):

Privy Council Decisions

Hector v. Attorney General of Antigua and Barbuda and others (1990) 37 WIR 216. Bonnick v. Morris, (2002) 61 WIR 358 (Privy Council). Gleaner Co. Ltd. v. Abrahams (2003) 63 WIR 197 (Privy Council). George Worme & Grenada Today Ltd. v. Commissioner of Police of Grenada, Judicial Committee of the Privy Council [2004] UKPC 8 in (2003) 63 WIR 78. Basdeo Panday v. Kenneth Gordon, (2005) Privy Council Appeal No. 35 of 2004. Available at the Privy Council Web site at http://www.privy- council.org.uk/files/other/5.rtf.

Court of Appeal Decisions Lurline Bodden v. Karl Brandon, unreported Cayman Islands Civil Appeal No. 1 of 1965. Adam Soltysik v. Willan Julien, in the West Indian Court of Appeal in Judgments of the High Court and Court of Appeal of Trinidad and of the Privy Council in England Vol. 19, 1966-69 Part 3, at 623. United Printers Ltd. v. Bernard, (1967) 11 WIR 269 (Court of Appeal of Jamaica). Barrow v. Caribbean Publishing Co., Ltd. (No. 2), Court of Appeal of Barbados, (1967) 11 WIR 176 (on appeal from Barrow v. Caribbean Publishing Co., Ltd. (No. 1), High Court of Barbados, (1967) WIR 171. Advocate v. Clifford Straughn Husbands, Court of Appeal of Barbados No. 1 of 1968. Merrydale Bullen v. Eric Gairy, unreported Grenada Court of Appeal Civil Appeal No. 4 of 1970 (on appeal from Eric Gairy v. Merrydale Bullen, unreported Grenada High Court of Justice Suit No. 97 of 1968. Percival Reid v. Edison Arlain, in the Court of Appeal Civil Appeal No. 3 of 1971 on appeal from Edison Arlain v. Percival Reid, unreported in the High Court of Justice for St. Lucia Suit No. 76 of 1970. Joseph v. Lockhart, Civil Appeal No. 1 of 1970 (Court of Appeal). Alton Ying v. Lawrence Richards (1972) 12 JLR 134. (Court of Appeal). Janet Jagan v. Linden Forbes Burnham, (1973) 20 WIR 96. (Court of Appeal of Guyana). Michael Powell v. Esmond St. John Payne, in the Court of Appeal of the State of St. Christopher Nevis Anguilla, Civil Appeal No. 7 of 1977 (on appeal from Esmond St. John Payne v. Michael Powell, unreported in the High Court of Justice Saint Christopher Circuit.) Maxwell v. Forde, Barbados Court of Appeal No. 4 of 1972 (1978) 9 Barb. L.R. 24 (on appeal from Forde v. Maxwell (No. 2), Barbados Supreme Court, (1972) Barb. L.R. 112. See also Maxwell v. Forde, unreported, in the Supreme Court No. 4 of 1972.)

810 811

Crusader Caribbean Publishing Co. (1971) v. Hon. John G.M. Compton, unreported in the Court of Appeal of St. Lucia Suit No. 9 of 1977 (decided May 1978). Lawrence v. Lightburn, Court of Appeal of Belize (1978) 31 WIR 107. Patrick Chokolingo v. Ken Gordon, unreported in the Court of Appeal of Trinidad & Tobago Civil Appeal No. 31 of 1976 (decided April 1979). Smith v. Adams, Barbados Court of Appeal – Civil Appeal No. 6 of 1982, (1982) 17 Barb. L.R. 204 (on appeal from Adams v. Smith (No. 2), Supreme Court – Civil Suit No. 825 of 1980, (1982) 17 Barb. L.R. 32. The Gleaner Co. Ltd. v. Richard Small, (1981) 18 JLR 347 (Court of Appeal). Hopeton Caven v. Gleaner Co. Ltd., (1983) 20 JLR 13, (Court of Appeal) on appeal from Hopeton Caven v. Gleaner Co. Ltd., (1979) 16 JLR 541(Supreme Court). Gleaner Co. Ltd. & Eric Sibblies v. Rainford Smart, (1990) 27 JLR 577 (Court of Appeal). Gleaner Co. Ltd. v. Trevor Munroe, (1990) 27 JLR 167 (Court of Appeal). McDonald Farms Ltd. and Another v. Advocate Co. Ltd., Court of Appeal of Barbados (1996) 52 WIR 64. Bernard Nicholas v. Kertist Augustus, Court of Appeal of Eastern Caribbean Law Reports (1996) E.C.L.R. 133. The Gleaner Co. Ltd. v. Leymon Strachan, (1997) 34 JLR 83. (Court of Appeal).

Supreme Court Decisions Kendall v. The Daily Chronicle & others, (1952) LRBG 73. (Supreme Court, May, 1952). Monplaisir v. The Voice Publishing Co. (1953). (Supreme Court) Gonsalves v. The Argosy Co. Ltd., (Supreme Court) Reports of Decisions in the Supreme Court of British Guiana during the year 1953 and in the West Indian Court of Appeal 1953, 61 (ed. Kenneth S. Stoby, esq., Barrister-at-Law, Lincoln’s Inn, Third Puisne Judge, British Guiana, East Demerara, British Guiana, The “Argosy” Co. Ltd., Printers to the Governmentt of British Guiana, 1955) Case decided April 1953. Hardai v. Warrick, (Supreme Court) Reports of Decisions in the Supreme Court of British Guiana during the year 1956 and in the West Indian Court of Appeal 1956, 211 (ed. Joseph A. Luckhoo, esq., Barrister-at-Law, Lincoln’s Inn, Puisne Judge, British Guiana, La Penitence, British Guiana, The “B.G. Lithographic” Co. Ltd., Printers to the Government of British Guiana, 1959) Case decided December 1956. Seal Coon v. B.G. Lithographic Co. Ltd., (Supreme Court, in Chambers) Reports of Decisions on the Supreme Court of British Guiana, 1956, 70 (Case decided March 1956). Badri Nauth v. Alexander, (Supreme Court Decision) The Law Reports of British Guiana 1960 The Privy Council, The Federal Supreme Court of British Guiana, 313 (ed. M. Shahabuddeen, esq., Solicitor-General, British Guiana, La Prentice, British Guiana, The B.G. Lithographic Co. Ltd., printers to the Government of British Guiana, 1965) Case decided September 1960. Evans v. Johns & the Gleaner Co. Ltd., (1962) 4 WIR 503 (Supreme Court). D’Aguiar v. New Guiana Co. Ltd., Supreme Court of Guiana (1963) LRBG 365. D’Aguiar v. Jagan, Supreme Court of British Guiana (1963) LRBG 404. Ramsahoye v. Peter Taylor & Co. Ltd., (1964) LRBG 329. (Supreme Court, November 1964).

812

Taylor v. The Advocate Co. Ltd, Supreme Court of Barbados, (1965) 9 WIR 139. Guyana Marketing Corporation v. Peter Taylor, (1966) GLR 198. (High Court, July 1966). British Guiana Rice Marketing Board v. Peter Taylor and Co., Ltd., (1967) 11 WIR 208. (High Court of Guyana). No. 10 of 1967. The Gleaner Co. Ltd. v. City Printery Ltd., (1967) 10 JLR 241. (Supreme Court). Charles Brown v. The Advocate Co. Ltd., unreported Barbados Supreme Court – High Court – No. 599 of 1968. Mervin Riviere v. George Royer, unreported in the West Indies Associated States Supreme Court – High Court of Justice – Dominica Circuit No. 129/1968. Osbert Benjamin v. Merrydale Bullen, unreported Grenada High Court of Justice (Suit No. 116/69). Clifton Mortimer Llewellyn John v. Peter Taylor & Co. Ltd., (1969) LRG 162. (High Court, March 1969). Farfan v. Trinidad Publishing Co. Ltd., Judgments of the High Court and Court of Appeal and of the Privy Council of England Vol. 19, 1966-1969 Part 3 (Trinidad & Tobago High Court of Justice No. 1153 of 1969). James Kenrick Milne v. Attorney General of Grenada and Eric Matthew Gairy, unreported in the Grenada High Court of Justice Suit No. 201 of 1970 & Suit No. 212 of 1970. Stanley Morris v. Alphaeus King, unreported in the High Court of Justice St. Vincent No. 189 of 1965 (decided January 1970). Robinson v. Chokolingo, (1970) 16 WIR 407 ( High Court of Trinidad & Tobago). Errol Barrow v. Robert S. Target & Trinidad Publishing Co., Ltd. (1972) 22 WIR 486 (Court of Appeal of Trinidad & Tobago). Selwyn Richardson v. Carl A. Tull, Judgments of the High Court and Court of Appeal and of the Privy Council of England Vol. 20, 1970-1979 Part 1, 5 (Trinidad & Tobago High Court of Justice No. 2068 of 1974). Barrow v. Caribbean Publishing Co., Ltd., Supreme Court of Barbados – High Court – Suit No. 493 of 1965, (1971) 6 Barb. LR 74. Samuel v. Ashby v. Errol A. Bailey, unreported in the Supreme Court of Barbados – High Court, No. 345 of 1971. Ashby v. Bailey, Supreme Court of Barbados – High Court Suit No. 345 of 1971 (1973) 8 Barb. L.R. 67. Grace Bacchus v. Raymond Bacchus, (High Court, 1973) The Law Reports of Guyana 1973, 115 (ed. Victor E. Crane, O.R., LL.B. (Lond.), Former Chancellor of the Judiciary, Published by the Ministry of Justice, George Town, Guyana National Printers Ltd., Industrial Estate, Ruimveldt, Georgetown, 1988) Case decided September 1973). Kenneth N. Garrick v. Lindy Delapenha & Roy Hylton, unreported in the Supreme Court of Judicature Suit No. 1763 of 1973. Hugh Desmond Hoyte v. Liberation Press Ltd., (1975) 22 WIR 175. (Guyana High Court – in Chambers, 175). On appeal from Hugh Desmond Hoyte v. Liberation Press Ltd., unreported in the Supreme Court of Judicature No. 269 of 1972.

813

Satroman Singh v. The Editor, The Evening Post & Post Papers Limited, Printers and Publishers of the Evening Post, unreported in the Demerara High Court of Justice Suit No. 2754 of 1973 (decided March 1976). Winston Halliday v. Eileen Baronville, unreported in the High Court of Justice of Virgin Islands Suit No. 25 of 1977. Bradshaw v. Sealy, Barbados Supreme Court – Civil Suit No. 749 of 1978 (1978) 13 Barb. L.R. 178. Hopeton Caven v.Trevor Munroe, (1979) 16 JLR 286. (Supreme Court). John Samuel Gafar v. Alfred Alexander Francis (1980) 17 JLR 159 (Supreme Court). Earl Foster v. Desmond Walker and the Daily News Ltd. (1980) 17 JLR 92 (Supreme Court). Alleyne v. Greaves, Supreme Court of Barbados – High Court – Civil Suit No. 453 of 1981 (1981) 16 Barb.L.R. 184. Asha Mirchandani v. Barbados Rediffusion Service Ltd., High Court of Barbados (1982) 42 WIR 38. The Gleaner Co. Ltd. v. Jamaica Broadcasting Corporation, (1982) 19 JLR 35 (Supreme Court). Miller v. Seymour, Grand Court of Cayman Islands (1985) CILR 402. J. Bodden, T. Bodden, H. Bodden and McLean v. Bush, Uzell and Cayman Free Press Ltd., (1986) CILR 100. Gafar v. Francis (unreported CA 45/80 24 July, 1986) (Supreme Court). Charmaine Forde v. Raffique Shah and T& T Newspaper Publishing Group Ltd., (1990) 1 TTLR 73. Julian R. Hunte v. Sharon Williams, The Vanguard Publishing Ltd., High Court St. Lucia (1997) E.C.L.R. 248. Juan v. The Belize Times Press Ltd. and Mai, Supreme Court of Belize (2000) 2 Bel. L.R. 64 (See also Juan v. The Belize Times Press Ltd. and Mai, Supreme Court of Belize (2000) 2 Bel. L.R. 25 & Juan v. The Belize Times Press Ltd. and Mai, Supreme Court of Belize (2000) 2 Bel. L.R. 40.

Other Caribbean Cases (chronologically) R. v. Garvey, in Adrian John Clark, LL.B. of the Inner Temple, Supreme Court of Judicature of Jamaica Judgments 1917-1932, p. 327, (Government Printing Office, Kingston Jamaica, 1937). Attorney General of Antigua v. Antigua Times [1976] A.C. 16. Re Clarke 17 WIR 49. Francis v. Chief of Police [1973] A.C. 761. Frank Solomon v. Trinidad Publishing Co. Ltd. (unreported Civ. App. 125 of 1987 in the Court of Appeal of Trinidad and Tobago). Crampad International Marketing Company Ltd. v. Val Benjamin Thomas (1989) 26 JLR 16. deFreitas v. Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing (1998) 53 WIR 171. Cable and Wireless (Dominica) v. Marpin Telecoms and Broadcasting Co. Ltd. (2000) 57 WIR 141.

814

Independent Jamaica Council for Human Rights (1998) Ltd. and others v. Hon Syringa Marshall-Burnett and the Attorney General of Jamaica, Privy Council Appeal No. 31 of 2004 (Advance Copy), http://www.privy- council.org.uk/files/other/independent%20jamaica.jud.rtf (last visited Feb. 13, 2006). Matthew v. State of Trinidad & Tobago [2005] 1 AC 433.

United States Cases (chronologically) Lyon’s Case, 15 F. Cas. 1183; 1798 U.S. App. LEXIS 37. Coleman v. MacLennan, 78 Kan. 711 (1908). Bailey v. Alabama, 219 U.S. 219 (1911). Abrams v. United States, 250 U.S. 616, 40 S.CT. 17 (1919). Schenck v. United States, 289 U.S. 47 (1919). McLean v. Merriman, 42 S.D. 394, (1920). Snively v. Record Publishing Co., 185 Cal. 565 (1921). Salinger v. Cowles, 195 Iowa 873, 889 (1922). City of Chicago v. Tribune Co., 139 N.E. 86 (1923). City of Chicago v. Tribune Co., 307 Ill. 595 (1923). Gitlow v. New York, 268 U.S. 652 (1925). Whitney v. California, 274 U.S. 357 (1927). Stromberg v. California, 283 U.S. 359 (1931). De Jonge v. Oregon, 299 U.S. 353 (1937). White v. Birmingham Post Co., 233 Ala. 547 (1937). Schneider v. State, 308 U.S. 147 (1939). Cantwell v. Connecticut, 310 U.S. 296 (1940). Bridges v. California, 314 U.S. 252 (1941). Valentine v. Chrestensen, 316 U.S. 52 (1942). Williams v. North Carolina, 317 U.S. 287 (1942). Sweeney v. Patterson, 76 U.S. App. D.C. 23 (1942). U.S. v. Associated Press, 52 F. Supp 362 at 372 (1943). Bailey v. Charleston Mail Association, 126 W. Va. 292 (1943). Pennekamp v. Florida, 328 U.S. 331 (1946). Craig v. Harney, 331 U.S. 367 (1947). Terminiello v. Chicago, 377 U.S. 1 (1949). Dennis v. United States, 341 U.S. 494 (1951). Charles Parker Co. Silver City Crystal Co., 142 Conn. 605 (1955). Michel v. Louisiana, 350 U.S. 91 (1955). Phoenix Newspapers Inc. v. Choisser, 82 Ariz. 271 (1957). Yates v. United States, 354 U.S. 298 (1957). Speiser v. Randall, 357 U.S. 513 (1958). One, Inc. v. Olesen, 355 U.S. 371 (1958). Sunshine Book Co. v. Summerfield, 355 U.S. 372 (1958). Lawrence v. Fox, 357 Mich. 134 (1959). Smith v. California, 361 U.S. 147 (1959). Stice v. Beacon Newspaper Corp., 185 Kan. 61 (1959). Barr v. Matteo, 360 U.S. 564, 575 (1959). Johnson Publishing Co. v. Davis, 271 Ala. 474 (1960).

815

Ponder v. Cobb, 257 N.C. 281 (1962). New York Times v. Sullivan, 273 Ala. 656 (1962). Wood v. Georgia, 370 U.S. 375 (1962). NAACP v. Button, 371 U.S. 415, 445 (1963). Edwards v. South Carolina, 372 U.S. 229 (1963). New York Times v. Conner, New York Times v. Sullivan, 376 U.S. 254 (1964). Garrison v. Louisiana, 379 U.S. 64 (1964). Cox v. Louisiana, 379 U.S. 536 (1965). Ashton v. Kentucky, 384 U.S. 195 (1966). Rosenblatt v. Baer, 383 U.S. 75 (1966). Afro-American Publishing Co. v. Jaffe, 125 U.S. App.. D.C. 70 (1966). Buckley v. New York Post Corp., 373 F. 2d 175 (2d. Cir. 1967). Curtis Publishing Co. v. Butts & Associated Press v. Walker, 388 U.S. 130 (1967). Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 84-5 (1967); St. Amant v. Thompson, 390 U.S. 727, 731 (1968). Brandenburg v. Ohio, 395 U.S. 444 (1969). New York Times v. United States, 403 U.S. 713 (1971). Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971). United States v. Brewster, 408 U.S. 501, 508 (1972). Gravel v. United States, 408 U.S. 606 (1972). United States v. Doe, 455 F. 2d 753 (CA1 1972). Doe v. McMillan, 412 U.S. at 306 (1973). Gertz v. Robert Welch Inc., 418 U.S. 323 (1974). Herbert v. Lando 441 U.S. 153 (1979). Hutchinson v. Proxmire, 443 U.S. 111 (1979). Philadelphia Newspapers Inc. v. Hepps, 475 U.S. 767 (1986).

English Cases (chronologically) Heydon’s Case (1612) 11 Co.Rep. 5a. Hill v. Goodchild (1771) 5 Burr. 2790. R. v. Wright (1799) 101 E.R. 1396. Rex v. Wright (1799) 8 TR 293. Thompson v. Bernard (1807) 1 Camp. 48. Oliver v. Bentinck (1811) 3 Taunton 456. Donovan v. Thwaites [1824] 187 E.R. 840. Tilk v. Parsons [1825] 2 Car & P. 201. McPherson v. Daniels [1829] 109 E.R. 448. Toogood v. Sprying (1834) 149 E.R. 1044. Wright v. Woodgate (1835) 2 C.M. & R 573. Goslin v. Corry (1841) 135 E.R. 143. Pearson v. Lemaitre [1843] 134 E.R. 742. Clark v. Newsam (1847) Exh. 131 Hankinson v. Bilby (1847) 16 M. & W. at 433. Harrison v. Bush (1855) 119 E.R. 509. Evans v. Harries [1856] 1 H & N 251.

816

Lewis v. Levy (1858) E.B. & E. 537. Harrison v. Pearce [1859] 32 L.T. (O.S.) 298. Watson v. Waler (1862) L.R. 4 Q.B. 73 Cox v. Feeny (1863) 47 176 E.R. 445. Woodgate v. Ridout (1865) 4 F. & F 202, 217. Wason v. Walter (1868) L.R. 4 Q.B. 73. Salmon v. Isaac (1869) 20 L.T. 885. Spill v. Maule (1869) LR 4 Ex. 232. Henwood v. Harrison, (1872) L.R. 7 CP 606. Purcell v. Solver (1877) 2 C.P.D. 215. Clark v. Molyneaux [1877] 3 Q.B.D. 237. Allbut v. General Council of Medical Education and Registration (1889) 23 Q.B.D. 400, Derry v. Peek (1889) 14 A.C. at p. 375. Praed v. Graham (1890) 24 Q.B.D. 53. Hunt v. Great Northern Rly (1891) 2 Q.B. 189. Jenoure v. Delmege [1891] A.C. 73. Stuart v. Bell [1891] 2 Q.B. 341. Royal Aquarium & Summer & Winter Garden Society v. Parkinson, (1892) 1 Q.B. 444. Hebditch v. MacIlwaine [1894] 2Q.B. 54. Neville v. Fine Art and General Insurance Co. (1897) A.C. 68. Markham v. Wernher Beit & Co. (1902) 18 T.L.R. 763. Hunt v. The Star Newspaper Co. Ltd. (4) [1908] 2 K.B. 309. Anderson v. Calvert [1908] 24 T.L.R. 399. E. Hulton & Co. v. Jones [1910] A.C. 20. Elkington v. London Association for the Protection of Trade [1911] 27 T.L.R. 329. King v. Lord Abingdon, 1 Esp. 225, 170 E.R. 337, Wooton v. Seiver [1912] 3 K.B. 499. Greenlands Ltd. v. Wilmshurst and London Association for Protection of Trade [1913] 3 K.B. 507. James v. Baird 1916 S.C. (HL) 158. London Association for the Protection of Trade v. Greenlands Ltd. [1916-17] All E.R. 452. Adam v. Ward (1917) A.C. 309. Minter v. Priest [1930] A.C. 558. Watt v. Longsdon [1930] 1 K.B. 130. Osborn v. Boulter [1930] 2 K.B. 226. Chapman v. Ellesmere [1932] 2 K.B. 431. Flint v. Lovell [1935] 1 K.B. at 360. Mechanical and General Inventors Co. Ltd. and Lehwess v. Austin and Austin Motor Co. Ltd. (1935) A.C. 346. Ley v. Hamilton (1935) 153 L.T. 384. Woolmington v. Director of Public Prosecutions, (1935) A.C. 462. Marks & Another v. William Boyd & Others (1939) 2 All E.R. 605. English and Scottish Co-operative Properties Mortgage and Investment Society Ltd. v. Odhams Press Ltd. (1940) 1 K.B. 440. Davies v. Powell Duffryn Associated Collieries Ltd. [1942] A.C. at 616.

817

De Buse and Others v. McArty and Stephney Borough Council (1942) 1 All ER 19. Braddock v. Bevins [1948] 1 All ER 450. Perera v. Peiris (1949) 1 A.C. 1. Turner (otherwise Robertson) v. Metro-Goldwyn Mayer Pictures Ltd. [1950] 1 All E.R. 449. Bird v. Cocking & Sons Ltd. [1951] 2 T.L.R. 1260. Rushton v. National Coal Board [1953] 1 Q.B. 495. R. v. Lobell [1957] 1 Q.B. 547 at 550. Silkin v. Beaverbrook Newspapers Ltd. [1958] 2 All E.R. 516. Cadam & Others v. Beaverbrook Newspapers Ltd. [1959] 1 Q.B. 413. Webb v. Times Publishing [1960] 2 Q.B. 535. Lewis v. Daily Telegraph Ltd. [1963] 1 Q.B. 340. Force v. Warren (1964) 15 C.B.N.S. 806. Rookes v. Barnard [1964] A.C. 1129. McCarey v. Associated Newspapers Ltd. [1964] 3 All E.R. 947. Associated Newspapers Ltd. v. Dingle [1964] A.C. 371. Manson v. Associated Papers Ltd. (1965) 2 All E.R. 954. McCarey v. Associated Newspapers (No. 2) [1965] 2 Q.B. 86. Broadway Approvals Ltd. v. Odhams Press Ltd. (No. 2) [1965] 1 W.L.R. 805. Manson v. Associated Newspapers Ltd. [1965] 1 W.L.R. 1038. Boston v. W.A. Bagshaw & Sons (1966) 1 W.L.R. 1126. Ward v. James, [1966] 1 Q.B. 273. Fielding v. Variety Incorporated, [1967] 2 Q.B. 841. Slim v. Daily Telegraph Ltd. [1968] 1 All E.R. 497. London Artists Ltd. v. Littler [1969] 2 All ER 193. Associated Leisure Ltd. V. Associated Newspapers [1970] 2 All E.R. 754. Mafo v. Adams [1970] 1 Q.B. 548. Morgan v. Odhams Press Ltd. [1971] 1 W.L.R. 1239. Reg. v. National Insurance Commissioner, Ex parte Hudson [1972] A.C. 944. Cassell & Co. v. Broome [1972] A.C. 1027. Horrocks v. Lowe [1975] A.C. 135. Savalas v. Associated Newspapers Ltd. (unreported), 15 June 1976, Blackshaw v. Lord [1983] 2 All E.R. 311. Riches v. News Group Newspapers Ltd. (1985) 2 All E.R. 845, Lucas-Box v. News Group Newspapers Ltd. (1986) 1 All E.R. 177. Viscount DeL’Isle v. Times Newspapers Ltd. (1987) 3 All E.R. 499. Maxwell v. Pressdram Ltd. [1987] 1 All E.R. 656, 1 W.L.R. 298. Attorney General v. Guardian Newspapers (1987) 1 W.L.R. 1248. Pamplin v. Express Newspapers Ltd. (1988) 1 W.L.R. 116. Prager v. Times Newspapers Ltd (1988) 1 All E.R. X Ltd. v. Morgan-Gramptian (Publishers) Ltd. [1990] 2 All E.R. 1, [1991] 1 A.C. 1. Attorney General v. Guardian Newspaper Ltd. (No. 2) (1990) 1 A.C. 109. Sutcliffe v. Pressdam Ltd. (1991) 1Q.B. 153. Kingshott v. Associated Kent Newspapers Ltd. [1991] 2 All E.R. 99. Regina v. Secretary of State for the Home Department, Ex parte Brind [1991] 1 A.C. 696 Gorman v. Mudd, [1992] CA Transcript 1076 (unreported) 15 October 1992.

818

Derbyshire County Council v. Times Newspapers Ltd. [1993] A.C. 534. Houston v. Smith [1993] C.A. Transcript 1544. Spring v. Guardian Assurance plc [1994] 3 All E.R. 129. Rantzen v. Mirror Group Newspaper Ltd. and Others (1994) Q.B.D. 670. Skuse v. Granada Television Ltd. (1996) E.M.L.R. 278. John v. M.G.N. (1996) 2 All E.R. 35. Kleinwort Benson Ltd. v. Lincoln County Council (1999) 2 A.C. 349. Reynolds v. Times Newspapers [1998] 3 All E.R. 961. Reynolds v. Times Newspapers [1999] 4 All E.R. 609. Branson v. Bower (2002) Q.B. 737. Kiam v. MGM Ltd (2002) 3 W.L.R. 1036

Other Commonwealth Cases Duncombe v. Daniel(1837) 8 C& P 222 (Scotland). M’Grath v. Bourne (1876) Ir. R. 10 CL. 160 (Ireland). Richardson v. Wilson (1879) 7 R. 237 (Scotland). Brims v. Reid & Sons (1885) 12 R 1016 (Scotland). Anderson v. Hunter (1891) 18 R. 467 (Scotland). Bruce v. Leisk (1892) 19 R 482 (Scotland). McKerchar v. Cameron (1892) 19 R. 383 (Scotland). Dawson v. McClelland (1899) 2 Ir. R. 486 (Ireland). Truth (NZ) Ltd. v. Holloway [1960] N.Z.L.R. 69 (New Zealand). Banks v. Globe and Mail Ltd. (1961) SCR 474 (Canada). Uren v. John Fairfax & Sons Pty. Ltd. (1966) 117 CLR 118 affd. by Privy Council in Australian Consolidated Press Ltd. v. Uren[1969] 1 AC 590 (Australia). Dunford Publicity Stratos Ltd. V. News Media Ownership Ltd. (1971) N.Z.L.R. 961 (New Zealand). R. v. Butler [1982] 1 SCR 452 (Canada). Spautz v. Williams [1983] 2 NSW LR 506 (New South Wales). Templeton v. Jones [1984] 1 NZLR 448 (New Zealand). Coyne v. Citizen Finance Ltd. (1991) 172 CLR 211 (Australia). Castells v. Spain(1992) 14 E.H.R.R. 445. Rajagopal ® (alias R. Gopal) v State of Tamil Nadu (1994) 6 SCC 632 (India). Theophanous v. Herald and Weekly Times Ltd. (1994) 182 C.L.R. 104 (Australia). Stephens v. West Australian Newspapers Ltd. (1994) 182 C.L.R. 21l (Australia). R. v. Labal [1994] 3 SCR 965 (Canada). Hill v. Church of Scientology of Toronto (1995) 126 D.L.R. (4th) 129 (Canada). Botiuk v. Toronto Free Press Publications [1995] 3 SCR 3 (Canada). Lange v. Australian Broadcasting Corporation (1997) 189 C.L.R. 520, 145 A.L.R. 96 (Australia). National Media Ltd. v. Bogoshi 1998 (4) S.A. 1196 (Australia). Lange v. Atkinson [1998] 3 NZLR 424 (New Zealand). Lucas v. R. [1998] 1 SCR 439 (Canada). Lange v. Atkinson [2000] 3 NZLR 385 (New Zealand). Cheng v. Tse Wai Chun [2000] 3 HKLRD 418 (Hong Kong).

819

Inter-American System of Human Rights Cases Report No. 65/04, Order of the Inter-American Court of Human Rights, September 7, 2001: Provisional Measures Requested by the Inter-American Commission on Human Rights In the Matter of the Republic of Costa Rica – The La Nación case. Report No. 128/01, Case 12.367, Mauricio Herrera Ulloa and Fernan Vargas Rohrmoser of La Nacion Newspaper, Costa Rica, December 3, 2001, http://www.cidh.org/annualrep/2001eng/CostaRica12367.htm (last visited May 13, 2006). Report No. 65/04, Petition 28/04 Admissibility Dudley Stokes, Jamaica, October 14, 2004, http://www.cidh.org/annualrep/2004eng/Jamaica.28.04eng.htm (last visited May 13, 2006). Report No. 71/02, Admissibility Petition 12.360, Santander Tristan Donoso, http://www.cidh.org/annualrep/2002eng/Panama.12360.htm (last visited May 7, 2006). Petition 28/04 Admissibility Dudley Stokes, Jamaica, October 14, 2004 (Inter-American Commission on Human Rights), http://cidh.oas.org/annualrep/2004eng/Jamaica.28.04eng.htm (last visited Nov. 3, 2005). Order of the Inter-American Court of Human Rights, September 7, 2001: Provisional Measures Requested by the Inter-American Commission on Human Rights In the Matter of the Republic of Costa Rica – The La Nación case. Ulloa v. Costa Rica, Inter-American Court of Human Rights. Inter-American Court of Human Rights 1985 Consultative Opinion, OC-5/85.

European Court of Human Rights Cases The Sunday Times v. United Kingdom (1979) 2 E.H.R.R. 245. Lingens v. Austria, (1986) 8 E.H.R.R. 407. Sunday Times v. United Kingdom (No. 2) (1991) 14 E.H.R.R. 229. Thorgeirson v. Iceland (1992) 14 E.H.R.R. 843 Tolstoy Miloslavsky v. United Kingdom (1995) 20 EHRR 442. Goodwin v. United Kingdom (1996) 22 E.H.R.R. 123. Sunday Times v. UK (No. 2) (1991) 14 E.H.R.R. 389. De Haes v. Belgium (1997) 25 EHRR 1. Fressoz v. France Case 29183/95 (20 May 1999, unreported). Tromso v. Norway Case 21980/93 (20 May 1999, unreported).

APPENDIX B STATUTES AND CONSTITUTIONS IN THIS DISSERTATION

Caribbean Statutes Grenada Libel and Slander Act (1956) at Cap 171. Jamaica Libel and Slander Act (1851 revised 1961, 1969) at Cap 219. St. Vincent & the Grenadines Libel and Slander Act Cap. 89. Bermuda Libel and Slander Act (1857) at Title 8, Item 65. Dominica Libel and Slander Act (1876 revised 1979) Chap. 7:04. St. Christopher & Nevis Libel and Slander Act (1876) at Cap. 44. Virgin Islands Libel and Slander Act (1876 revised 1957) Cap. 42. Anguilla Libel and Slander Act (2000) R.S.A. c. L50. Guyana Defamation Act (1959) Cap. 6:03. Barbados Defamation Act (1997) Cap. 199. Trinidad & Tobago Libel and Defamation Act (1846 revised 1950) Chap. 11:16. Bahamas Libel Act (1843) Chapter 72. Turks & Caicos Libel Act (1843) 10 Victoria, Chapter 8. Trinidad & Tobago Sedition Act, 1920 (Chap. 11:04). Jamaica, The Seditious Meetings Act, 1836 (Cap. 354). Dominica Seditious and Undesirable Publications Act, 1968 (Chapter 10:03). St. Lucia Seditious and Undesirable Publications Act, 1965 (Chapter 3:08). The British Virgin Islands Sedition and Undesirable Publications Act, 1938 (Cap. 70). St. Kitts, Nevis & Anguilla Sedition and Undesirable Publications Act, 1938 (Chapter 73). Antigua & Barbuda, The Sedition and Undesirable Publications Act, 1938 (Chapter 396).

Caribbean Constitutions Barbados Constitution 1966, http://pdba.georgetown.edu/Constitutions/Barbados/ch7.html (last visited March 30, 2006). Costa Rica Constitution, http://www.costaricalaw.com/legalnet/constitutional_law/engtit1.html (last visited Apr. 17, 2006). Dominica Constitution, http://dominicacompanies.com/dominica/constitution/const.html#106 (last visited May 31, 2006). Grenada Constitution of 1973, Statutory Instruments, 1973 No. 2155, http://www.georgetown.edu/pdba/Constitutions/Grenada/gren73eng.html (last visited November 10, 2005). Guyana Constitution, http://www.oas.org/juridico/mla/en/guy/en_guy-int-text-const.pdf. (last visited on April 18, 2006).

820 821

Jamaica Constitution, (Order in Council 1962), http://www.georgetown.edu/pdba/Constitutions/Jamaica/jam62.html (last visited May 3, 2006). Trinidad & Tobago Constitution, http://pdba.georgetown.edu/Constitutions/Trinidad/trinidad76.html. (last visited April 8, 2006).

English Statutes Libel Act 1792 [32 Geo. 3, c. 60] Libel Act 1843 [6 & 7 Vict., c. 96]. The Colonial Laws Validity Act 28 & 29 Vict. C63, A.C.T. Legislation Register, http://www.legislation.act.gov.au/a/db_1778/default.asp (last visited Feb. 7, 2005). Law of Libel Amendment Act 1888 [51 & 52 Vict. c. 64]. Slander of Women Act 1891 [54 & 55 Vict., c. 51]. Defamation Act 1952 [15 & 16 Geo. 6 & 1 Eliz. 2, c. 66]. Contempt of Court Act 1981(-), LAW INDEX PRO, http://www.swarb.co.uk/acts/1981Contempt_of_CourtAct.shtml (last visited June 3, 2006). Broadcasting Act 1990 [1990, c. 42]. Courts and Legal Services Act [1990 c. 41] Defamation Act 1996 [1996, c. 31]. Human Rights Act 1998 [1998 c. 42], http://www.opsi.gov.uk/ACTS/acts1998/80042-- a.htm#1 (last visited June 3, 2006). British Overseas Territories Act 2002 [2002, c 8]. The Constitutional Reform Act 2005, http://www.opsi.gov/uk/acts2005/50004--g.htm (last visited May 10, 2005).

United States Statutes The Alien Sedition Act, http://www.law.ou.edu/hist/sedact.html (last visited 04/28/2004).

Treaties American Convention on Human Rights, “Pact of San Jose, Costa Rica,” http://www.oas.org/juridico/english/Treaties/b-32.htm (last visited Nov. 4, 2005). European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome 1950, TS 71 (1953) Comd. 8969 ETS No. 5), http://www.pfc.org.uk/legal/echr- sum.htm (last visited June 3, 2006).

LIST OF REFERENCES

Adams, John, in WIKIPEDIA, http://en.wikipedia.org/wiki/John_Michael_Geoffrey_Manningham_Adams (last visited Feb. 20, 2006).

Alabama Governor Sues for $1,000,000, N.Y. TIMES, May 31, 1960, at 20.

Allahar, Anton L., ‘Racing’ Caribbean Political Culture: Afrocentrism, Black Nationalism and Fanonism, in MODERN POLITICAL CULTURE IN THE CARIBBEAN 21 (Holger Henke & Fred Reno eds., University of the West Indies Press, Kingston, Jamaica, 2003).

Amendment XV, N.Y. TIMES, Mar. 19, 1960, at 20.

American Convention on Human Rights, http://www.itcilo.it/english/actrav/telearn/global/ilo/law/oashr.htm (last visited Oct. 29, 2002).

American Convention on Human Rights ‘Pact of San Jose, Costa Rica,” “Signatures and Current Status of Ratifications,” http://www.cidh.org/Basicos/basic4.htm (last visited Apr. 17, 2006).

AMPONSAH, PETER N. LIBEL LAW, POLITICAL CRITICISM, AND DEFAMATION OF PUBLIC FIGURES: THE UNITED STATES, EUROPE AND AUSTRALIA, (LFB Scholarly Publishing LLC, New York, 2004).

ANTOINE, ROSE-MARIE BELLE, COMMONWEALTH CARIBBEAN LAW AND LEGAL SYSTEMS 220 (Cavendish Publishing Limited, London, 1999).

Answers.com, http://www.answers.com/topic/west-indies-federation (last visited May 20, 2005.

Arrest of Bedward, GALL’S DAILY NEWS KINGSTON, January 23, 1895, at 3.

Association of Caribbean Media Workers Web site, http://www.geocities.com/caribbeanmedia (last visited Nov. 3, 2005).

Augier, Roy, Before and After 1865, CARIBBEAN FREEDOM: ECONOMY AND SOCIETY FROM EMANCIPATION TO THE PRESENT (Hilary Beckles & Verene Shepherd, Markus Wiener Publishers, Princeton, NJ, 1996)(1993).

822 823

BEN BAGDIKIAN, THE NEW MEDIA MONOPOLY (Beacon Press, Boston, Massachusetts, 2004).

Bailyn, Bernard, Defining Principles of a New, Federal Government, THE CREATION OF THE U.S. CONSTITUTION 56, (Greenhaven Press, 2003).

BARENDT, ERIC, LAURENCE LUSTGARTEN, KENNETH NORRIE HUGH STEPHENSON, LIBEL AND THE MEDIA: THE CHILLING EFFECT (Oxford University Press,1997).

BARNETT, LLOYD G., THE CONSTITUTIONAL LAW OF JAMAICA (Oxford University Press for The London School of Economics and Political Science, 1977).

Bishop, Maurice, SPARTACUS.SCHOOLNET, http://www.spartacus.schoolnet.co.uk/COLDbishop.htm (last visited Nov. 12, 2005).

BLACK, CLINTON V., THE STORY OF JAMAICA FROM PREHISTORY TO THE PRESENT (Collins Clear-Type Press 1965) (1958).

th Blackstone, Sir William, THE COLUMBIA ENCYCLOPEDIA, (6 ed., 2001-2005), http://www.bartleby.com/65/bl/BlackstoW.html (last visited May 26, 2006).

Blasi, Vincent, The Checking Value in First Amendment Theory, AMERICAN BAR FOUNDATION RESEARCH JOURNAL 521 (1977).

BOLLAND, O. NIGEL, ON THE MARCH: LABOR REBELLIONS IN THE BRITISH CARIBBEAN, 1934-39 (Ian Randle Publishers, Kingston, Jamaica, 1995).

BOLLAND, O. NIGEL, THE POLITICS OF LABOR IN THE BRITISH CARIBBEAN: THE SOCIAL ORIGINS OF AUTHORITARIANISM AND DEMOCRACY IN THE LABOR MOVEMENT (Ian Randle Publishers, Kingston, 2001).

Bolland, O. Nigel, Systems of Domination After Slavery: The Control of Land and Labor in the British West Indies After 1838, in CARIBBEAN FREEDOM: ECONOMY AND SOCIETY FROM EMANCIPATION TO THE PRESENT 107, 109 (Hilary Beckles & Verene Shepherd, eds., Markus Wiener Publishers, Princeton, NJ, 1996).

Boyne, Ian, The State of the Media, THE DAILY GLEANER, Dec. 7, 2003, http://www.jamaica-gleaner.com/gleaner/20031207/focus/focus1.html (last visited Feb 16, 2005).

BOYTE, HARRY C., EVERYDAY POLITICS: RECONNECTING CITIZENS AND PUBLIC LIFE (University of Pennsylvania Press, Pennsylvania, 2004).

824

Brewer, E. Cobham, The Dictionary of Phrase and Fable from the New and Enlarged Edition of 1894, THE FIRST HYPERTEXT EDITION OF THE DICTIONARY OF PHRASE AND FABLE, http://www.bootlegbooks.com/Reference/PhraseAndFable/data/535.html (last visited April 3, 2006).

British overseas territories, WIKIPEDIA, http://en.wikipedia.org/wiki/Crown_colony (last visited May 31, 2006).

Broadbent, Graeme, Grenada: Criminal Libel – Constitutionality Worme v Commissioner of Police of Grenada; Trinidad and Tobago: Order Postponing Publication of Details of Court Proceedings Independent Publishing Company Ltd v Attorney- General of Trinidad and Tobago and Another, JOURNAL OF CRIMINAL LAW 387, 391 (Vol. 68, Issue 5) (Oct. 2004).

BROOKS, A. A., HISTORY OF BEDWARDISM OR THE JAMAICA NATIVE BAPTIST FREE CHURCH, UNION CAMP, AUGUSTOWN, ST. ANDREW, JAMAICA, B.W.I. 8 (The Gleaner Co. Ltd. Printers, Kingston, 1917), http://www.kobek.com/bedwardism.pdf (last visited May 3, 2006).

Bryan, Patrick, Black Perspectives in Late Nineteenth-Century Jamaica: The Case of Dr. Theophilus E.S. Scholes, in RUPERT LEWIS & PATRICK BRYAN, EDS., GARVEY: HIS WORK AND IMPACT 47 (Africa World Press, Inc., Trenton, N.J., 1991).

Carey, George W., Ensuring the Independence of the Three Branches of Government, THE CREATION OF THE U.S. CONSTITUTION 78 (Greenhaven Press, 2003).

Caribbean Affairs: Seaga takes libel case to Privy Council, CARIBBEAN IMPACT, http://www.caribimpact.net/v3_29_caribbean_affairs_8.html (last visited Feb. 24, 2006).

CARIBBEAN COURT OF JUSTICE Web site, http://www.sice.oas.org/trade/ccme/ccj1.asp (last visited February 8, 2005).

CARIBBEAN ISLANDS, REGIONAL SECURITY THREATS, 1970-1981, http://www.country- data.com/cgi-bin/query/r-3376.html (last visited Feb. 24, 2006).

CARIBBEAN ISLANDS – THE WINDWARD ISLANDS AND BARBADOS, http://countrystudies.us/caribbean-islands/56.htm (last visited April 20, 2006).

Caribbean, WIKIPEDIA, http://en.wikipedia.org/wiki/West_Indies (last visited June 1, 2006).

CARICOM Web site, http://www.caricom.org/ (last visited May 3, 2006).

CARPINI, MICHAEL X. DELLI & SCOTT KEETER, WHAT AMERICANS KNOW ABOUT POLITICS AND WHY IT MATTERS, (Yale University Press, New Haven and London, 1996).

825

Chancery, WIKIPEDIA, http://en.wikipedia.org/wiki/Chancery (last visited May 25, 2006).

Charter of Liberties, WIKIPEDIA, http://en.wikipedia.org/wiki/Charter_of_Liberties (last visited May 25, 2006).

CLARK, ADRIAN JOHN, LL.B. OF THE INNER TEMPLE, SUPREME COURT OF JUDICATURE OF JAMAICA JUDGMENTS 1917-1932, p. 327, (Government Printing Office, Kingston Jamaica, 1937).

CODE OF ETHICS: ASSOCIATION OF CARIBBEAN MEDIA WORKERS, http://www.presscouncils.org/library/Caribbean.doc (last visited Nov. 3, 2005).

CODE OF ETHICS: EASTERN CARIBBEAN PRESS COUNCIL, http://www.ijnet.org/FE_Article/codeethics.asp?UILang=1&CId=158570&CIdLan g=1 (last visited Nov. 3, 2005).

CODLIN, RAPHAEL, & COMPANY, http://www.raphaelcodlin.com/raphaelprofile.html (last visited May 25, 2005).

CODLIN, RAPHAEL, HISTORICAL FOUNDATIONS OF JAMAICAN LAW (Canoe Press, Kingston, Jamaica, 2003).

Collier, Christopher and James Lincoln Collier, Protecting Commercial Interest and Sealing the Fate of Slaves, THE CREATION OF THE U.S. CONSTITUTION 109 (Greenhaven Press, 2003).

Collins, Anthony, STANFORD ENCYCLOPEDIA OF PHILOSOPHY, http://plato.stanford.edu/entries/collins/ (last visited May 26, 2006).

Commonwealth of Nations, WIKIPEDIA, http://en.wikipedia.org/wiki/British_Commonwealth (last visited May 15, 2006).

th CONCISE OXFORD ENGLISH DICTIONARY, (11 Ed., Catherine Soanes & Angus Stevenson, eds., Oxford University Press, Oxford, 2004)(1911).

Constant, Fred, Is there a new Political Culture in the Caribbean? in MODERN POLITICAL CULTURE IN THE CARIBBEAN 3 (Holger Henke & Fred Reno eds., University of the West Indies Press, Kingston, Jamaica, 2003).

Cornog, Evan, Jefferson’s Matt Drudge, COLUMBIA JOURNALISM REVIEW (January/February 2000), http://www.cjr.org/archives.asp?url=/00/1/cornog.asp (last visited November 21, 2004).

Constitutional monarchy, WIKIPEDIA, http://en.wikipedia.org/wiki/Constitutional_monarchy#Constitutional_Monarchy (last visited June 2, 2006).

826

Court of Appeal of England and Wales, WIKIPEDIA, http://en.wikipedia.org/wiki/Court_of_Appeal_of_England_and_Wales (last visited May 10, 2006).

Court of Common Pleas, ENCYCLOPEDIA BRITANNICA CONCISE, http://concise.britannica.com/ebc/article-9361249/Common-Pleas (last visited May 25, 2006).

Court of the Exchequer, ENCYCLOPEDIA.COM, http://www.encyclopedia.com/html/E/Excheque.asp (last visited May 25, 2006).

Court of King’s Bench, WIKIPEDIA, http://en.wikipedia.org/wiki/Court_of_King's_Bench (last visited May 25, 2006).

Courts of England and Wales, WIKIPEDIA, http://en.wikipedia.org/wiki/Courts_of_England_and_Wales (last visited May 10, 2006).

Crown Court, WIKIPEDIA, http://en.wikipedia.org/wiki/Crown_Court (last visited May 10, 2006).

Introduction to Kaieteur Falls, http://www.mnh.si.edu/biodiversity/bdg/kaieteur/intro1.html (last visited May 20, 2005).

Government of the Republic of Trinidad & Tobago’s Web site, http://www.gov.tt. (last visited May 20, 2005).

Dahomay, Jacky, Cultural Identity versus political identity in the French Caribbean, in MODERN POLITICAL CULTURE IN THE CARIBBEAN 90 (Holger Henke & Fred Reno eds., University of the West Indies Press, Kingston, Jamaica, 2003).

DAVILA, ANDRES, LIBEL LAW AND THE PRESS, (International Press Institute, Zurich, 1971).

Day Berry & Howard, LLP, attorneys, http://www.dbh.com/attorney.asp?key=1198 (last visited April 14, 2006).

DEMERIEUX , MARGARET, FUNDAMENTAL RIGHTS IN COMMONWEALTH CARIBBEAN CONSTITUTIONS, (Faculty of Law Library, University of the West Indies, Bridgetown, Barbados, 1992).

DICEY, ALBERT. V., INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION (MacMillan and Company, Ltd., London, 1960)(1885), http://www.constitution.org/cmt/avd/law_con.htm (last visited July 7, 2004).

Dixie Dissension: Racial Hostility Grows As Negro Drive Against Discrimination Spreads, WALL ST. J., Mar. 14, 1960.

827

ECPC: The new Caribbean ‘watchdog’ body on ethics and freedom, www.sluonestop.com/news/jan%2027b%2003.html (last visited Nov. 3, 2005).

Edward I of England, WIKIPEDIA, http://en.wikipedia.org/wiki/Edward_I_of_England (last visited May 25, 2006).

EMERSON, THOMAS I., THE SYSTEM OF FREEDOM OF EXPRESSION 3 (Random House, New York, 1970).

st Erskine, Thomas, 1 Baron Erskine, WIKIPEDIA, http://en.wikipedia.org/wiki/Thomas_Erskine,_1st_Baron_Erskine (last visited May 26, 2006).

FEDERAL COURT SYSTEM: UNITED STATES OF AMERICA, http://www.thegreenpapers.com/Hx/FederalCourtSystem.phtml (last visited June 6, 2006).

FEHRENBACHER, DON E., CONSTITUTIONS AND CONSTITUTIONALISM IN THE SLAVEHOLDING SOUTH (Mercer University Lamar Memorial Lectures No. 31, The University of Georgia Press, Athens, Georgia, 1989).

Fleming, John, Libel and Constitutional Free Speech, in ESSAYS FOR PATRICK ATIYAH, 333 (Peter Cane & Jane Stapleton, eds., Oxford University Press, N.Y., 1991).

FORDE, NORMA, THE LAW OF DEFAMATION (Cave Hill, Barbados: University of the West Indies Faculty of Law, undated).

Freedom in the World: Grenada, FREEDOM HOUSE, http://www.freedomhouse.org/research/freeworld/2004/countryratings/grenada.htm (last visited October 14, 2005).

FROMAN, CREEL, THE TWO AMERICAN POLITICAL SYSTEMS: SOCIETY ECONOMICS AND POLITICS (Prentice-Hall, Inc., Englewood Cliffs, New Jersey, 1984).

Full Court Allows Appeal of Garvey & Aikman, THE DAILY GLEANER, March 18, 1930, at 10.

Gairy, Eric, in SPARTACUS.SCHOOLNET, http://www.spartacus.schoolnet.co.uk/COLDgairy.htm (last visited November 12, 2005).

Gairy, Eric, in WIKIPEDIA, http://en.wikipedia.org/wiki/Eric_Gairy. (last visited Nov. 12, 2005).

Garvey Sentenced For Six Months, Aikman Three Months, THE DAILY GLEANER, Feb. 22, 1930, at 1.

828

th GATLEY ON LIBEL AND SLANDER (9 ed., Patrick Milmo and W.V.H. Rogers, eds.,Sweet & Maxwell, London 1998).

Glorious Revolution, WIKIPEDIA, http://en.wikipedia.org/wiki/Glorious_Revolution (last visited May 25, 2006).

Grenada 03/03, CIA, THE WORLD FACT BOOK, http://www.cia.gov/cia/publications/factbook/geos/gj.html (last visited April 30, 2006).

Grenada’s PM files lawsuits against Cable & Wireless, in THE JAMAICA OBSERVER, June 5, 2004, http://www.jamaicaobserver.com/news/html (last visited Nov. 12, 2005).

Guide to government, The Commonwealth, DIRECTGOV, http://www.direct.gov.uk/Gtg11/GuideToGovernment/InternationalBodies/Internati onalBodies (last visited May 15, 2006).

Hall, Douglas, The Flight from the Estates Reconsidered: The British West Indies, 1838- 1842, in CARIBBEAN FREEDOM: ECONOMY AND SOCIETY FROM EMANCIPATION TO THE PRESENT 55 (Hilary Beckles & Verene Shepherd, eds., Markus Wiener Publishers, 1996)(1993).

Hall, Kermit L., Lies, Lies, Lies: The Origins of New York Times v. Sullivan, 9 COMM. L. & POL’Y, 391 (Autumn 2004).

Hallen, John E., Fair Comment, 8 TEX. L. REV. 41 (1929).

HARPER COLLINS LATIN CONCISE DICTIONARY (Harper Collins Publishers, 2004).

HART, RICHARD, FROM OCCUPATION TO INDEPENDENCE: A SHORT HISTORY OF THE PEOPLE OF THE ENGLISH-SPEAKING CARIBBEAN REGION (Canoe Press, University of the West Indies, Mona, Jamaica 1998).

HART, RICHARD, TOWARDS DECOLONISATION: POLITICAL, LABOR AND ECONOMIC DEVELOPMENT IN JAMAICA, 1938-1945 (Canoe Press University of the West Indies 1999).

HARPER AND JAMES, TORTS, § 5.26, at 449-450 (1956).

Heed Their Rising Voices, N. Y. TIMES, Mar. 29, 1960.

Heldke, Lisa, Do You Mind If I Speak? Reconceptualizing Freedom of Speech, in THE ETHICS OF LIBERAL DEMOCRACY IN THEORY AND PRACTICE: STATE, LAW AND SOCIETY 112 (Robert Paul Churchill and Andrew Altman eds., Oxford University Press, 1995).

829

Henke, Holger, Freedom Ossified: Political Culture and the Public Use of History in Jamaica, in MODERN POLITICAL CULTURE IN THE CARIBBEAN 111 (Holger Henke & Fred Reno eds., University of the West Indies Press, Kingston, Jamaica, 2003).

Henry I of England, WIKIPEDIA, http://en.wikipedia.org/wiki/Henry_I_of_England (last visited May 25, 2006).

HEUMAN, GAD, THE KILLING TIME, THE MORANT BAY REBELLION IN JAMAICA (MacMillan Press Ltd., Britain: London & Basingstoke, 1994).

High Court of Justice, WIKIPEDIA, http://en.wikipedia.org/wiki/High_Court_of_Justice_of_England_and_Wales (last visited May 10, 2006).

Hinds, David, Guyana’s Dominant Political Culture: An Overview, in MODERN POLITICAL CULTURE IN THE CARIBBEAN 351 (Holger Henke & Fred Reno eds., University of the West Indies Press, 2003).

Hintzen, Percy C., Rethinking Democracy in the Post-Nationalist State: The Case of Trinidad and Tobago, in MODERN POLITICAL CULTURE IN THE CARIBBEAN 395 (Holger Henke & Fred Reno eds., University of the West Indies Press, 2003).

HOPKINS, WAT, ACTUAL MALICE: TWENTY-FIVE YEARS AFTER TIMES V. SULLIVAN (Praeger, New York, 1989).

Inter-American Commission on Human Rights Web site, http://www.cidh.oas.org/what.htm. (last visited August 22, 2005).

Inter-American Court of Human Rights Web site, http://www.corteidh.or.cr/general_ing/history.html. (last visited June 22, 2005).

Inter-American Court of Human Rights, WIKIPEDIA, http://en.wikipedia.org/wiki/Inter- American_Court_of_Human_Rights (last visited Apr. 17, 2006).

The Inter-American Court of Human Rights overturns journalist’s libel conviction, REPORTERS WITHOUT BORDERS WEB SITE, http://www.rsf.org/print.php3?id_article=11101 (last visited Aug. 19, 2005).

International Journalist’s Network Web site, http://www.ijnet.org/FE_Article/codeethics.asp? (last visited Sept. 29, 2005).

International Press Institute Web site, http://www.freemedia.at/wpfr/intro_wpfr.htm (last visited Nov. 3, 2005).

JAMAICA INFORMATION SERVICE Web site, http://www.jis.gov.jm/JA40/JIS. (last visited October 21, 2002).

830

Privy Council Web site, http://www.privy-council.org.uk/output/page5.asp (last visited May 4, 2006).JAMES I, CHARLES I AND THE DESCENT INTO CIVIL WAR, THE KING EXECUTED, CROMWELL RULES, http://www.great- britain.co.uk/history/cromwell.htm (last visited May 25, 2006).

JENNINGS, W. IVOR, THE LAW AND THE CONSTITUTION (University of London Press Ltd., London, 1948)(1933).

Judicial functions of the House of Lords, WIKIPEDIA, http://en.wikipedia.org/wiki/Law_Lords (last visited May 10, 2006).

KENT CURTIS, MICHAEL, FREE SPEECH, THE PEOPLE’S DARLING PRIVILEGE”: STRUGGLES FOR FREEDOM OF EXPRESSION IN AMERICAN HISTORY (Duke University Press, 2000).

KIRTLEY, JANE, CRIMINAL DEFAMATION: AN “INSTRUMENT OF DESTRUCTION,” (Nov. 18, 2003), http://www.silha.umn.edu/oscepapercriminaldefamation.pdf (last visited Dec. 6, 2005).

KNAPPEN, M. M., CONSTITUTIONAL AND LEGAL HISTORY OF ENGLAND (Fred B. Rothman & Co., Littleton, Colorado, 1987)(1942).

KODILYNE, GILBERT & VANESSA KODILYNE, COMMONWEALTH CARIBBEAN CIVIL PROCEDURE (Cavendish Publishing Ltd., London, 1999).

KODILYNE, GILBERT, COMMONWEALTH CARIBBEAN TORT LAW (Cavendish Publishing Ltd., 2000)(1995).

Lawyers Clash at Times’ Trial, N.Y. TIMES, November 2, 1960, at 33.

LAURENCE, KEITH O., A QUESTION OF LABOUR : INDENTURED IMMIGRATION INTO TRINIDAD AND BRITISH GUIANA, 1875-1917 (Kingston, Jamaica : Ian Randle Publishers; London : James Curry Publishers, 1994).

LAWHORNE, CLIFTON. DEFAMATION AND PUBLIC OFFICIALS: THE EVOLVING LAW OF LIBEL (Southern Illinois University Press, Carbondale and Edwardsville, 1971).

LAWHORNE, CLIFTON. NEWSPAPERMEN V. PUBLIC OFFICIALS: THE EVOLVING LAW OF LIBEL (Southern Illinois University, University Microfilms, Inc, 1969).

Leeward Islands, WIKIPEDIA, http://en.wikipedia.org/wiki/Leeward_Islands (last visited June 1, 2006).

LENT, JOHN A., MASS COMMUNICATIONS IN THE CARIBBEAN (Iowa State University Press, 1990).

LEWIS, ANTHONY. MAKE NO LAW: THE SULLIVAN CASE AND THE FIRST AMENDMENT (Vintage Books: A Division of Random House, Inc., New York, 1991).

831

Lewis, Gordon K., The Contemporary Caribbean: A General Overview, in SIDNEY W. MINTZ & SALLY PRICE, CARIBBEAN CONTOURS 219 (The Johns Hopkins University Press, Baltimore, Maryland, 1985).

Lewis, Rupert, The Question of Imperialism and Aspects of Garvey’s Political Activities in Jamaica, 1929-1930, in RUPERT LEWIS AND MAUREEN WARNER-LEWIS, EDS., GARVEY: AFRICA, EUROPE AND THE AMERICAS 79, 86 (Africa World Press, Inc., 1994).

LEVY, LEONARD, EMERGENCE OF A FREE PRESS (Oxford University Press, 1985).

List of Members of the Commonwealth of Nations by Name, WIKIPEDIA, http://en.wikipedia.org/wiki/List_of_members_of_the_Commonwealth_of_Nations _by_name (last visited May 31, 2006).

Locke, John, STANFORD ENCYCLOPEDIA OF PHILOSOPHY, http://plato.stanford.edu/entries/locke/ (last visited May 26, 2006).

Magistrates’ Court, WIKIPEDIA, http://en.wikipedia.org/wiki/Magistrates'_Court (last visited May 31, 2006).

Magna Carta, WIKIPEDIA, http://en.wikipedia.org/wiki/Magna_Carta (last visited May 25, 2006).

MANLEY, MICHAEL, JAMAICA: STRUGGLE IN THE PERIPHERY (The Third World Media Ltd. in association with Writers and Readers Publishing Cooperative Society Ltd. 1982).

MARSH, A.H., HISTORY OF THE COURT OF CHANCERY AND OF THE RISE AND DEVELOPMENT OF THE DOCTRINES OF EQUITY (Fred B. Rothman & Co., Littleton Colorado, 1985).

Marshall, Woodville K, Peasant Development in the West Indies Since 1838, in CARIBBEAN FREEDOM: ECONOMY AND SOCIETY FROM EMANCIPATION TO THE PRESENT 99 (Hilary Beckles & Verene Shepherd, eds., Markus Wiener Publishers, Princeton, 1996)(1993).

MCINTOSH, SIMEON C.R., CARIBBEAN CONSTITUTIONAL REFORM: RETHINKING THE WEST INDIAN POLITICS (The Caribbean Law Publishing Co. Ltd., Kingston, Jamaica, 2002).

MCINTOSH, SIMEON C.R., FUNDAMENTAL RIGHTS AND DEMOCRATIC GOVERNANCE (The Caribbean Law Publishing Company Ltd., Kingston, Jamaica, 2005).

MEDIEVAL SOURCEBOOK: CHARTER OF LIBERTIES OF HENRY I, 1100, http://www.fordham.edu/halsall/source/hcoronation.html (last visited June 5, 2006).

832

MEIKLEJOHN, ALEXANDER, FREE SPEECH AND ITS RELATION TO SELF GOVERNMENT (Kennikat Press, Port Washington, N.Y./London, 1948).

MERRIAM WEBSTER’S LEGAL DICTIONARY OF LAW, 1996, Find Law.com, http://dictionary.lp.findlaw.com/scripts/results.pl?co=dictionary.lp.findlaw.com&to pic=fc/fcd664e0fa9f0fdf9c3954d40f8821a1 (last visited May 7, 2006).

Methodology, FREEDOM HOUSE, http://www.freedomhouse.org/template.cfm?page=56&year=2003 (last visited April 7, 2005).

Midgett, Douglas, Icon and Myth in a Caribbean Polity: V.C. Bird and Antiguan Political Culture, in MODERN POLITICAL CULTURE IN THE CARIBBEAN 181 (Holger Henke & Fred Reno eds., University of the West Indies Press, 2003).

Midyear Meeting SIP/IAPA, Panama City, Panama, March 11-14, 2005, Country by Country Reports, INTER AMERICAN PRESS ASSOCIATION available at http://www.sipiapa.org/pulications/report_caribe2005.cfm (last visited August 22, 2005).

Milton, John, WIKIPEDIA, http://en.wikipedia.org/wiki/John_Milton (last visited May 26, 2006).

Mintz, Sidney W., From Plantations to Peasantries in the Caribbean, in CARIBBEAN CONTOURS 127 (S. Mintz & S. Price eds., The Johns Hopkins University Press, Baltimore, Maryland, 1985).

Mitchell, Keith, Prime Minister of Grenada, address at the opening ceremony of the IV Annual Caribbean Media Conference, Grenada: The Role of a Free Press in a Small Island State – Size, Politics and a Free Press (May 25, 2001), http://www.caricom.org/jsp/speeches/4mediaconf-kmitchell.htm (last visited November 12, 2005).

MOHAMED, S.Y., FUNDAMENTAL RIGHTS AND FREEDOMS OF THE COMMONWEALTH CARIBBEAN, 121, (New Guyana Co. Ltd, Ruimveldt, Georgetown, Guyana, 1993).

Montesquieu, Baron de, Charles-Louise de Secondat, STANFORD ENCYCLOPEDIA OF PHILOSOPHY, http://plato.stanford.edu/entries/montesquieu/ (last visited May 26, 2006).

Montgomery Restive After Race Incident, CHRISTIAN SCIENCE MONITOR, Mar. 5, 1960, at 7.

Montgomery Suing The Times Over Ad, N.Y. TIMES, Apr. 20, 1960.

Munroe, Trevor, WIKIPEDIA, http://en.wikipedia.org/wiki/Trevor_Munroe (last visited May 17, 2006).

833

MUNROE, TREVOR, THE POLITICS OF CONSTITUTIONAL DECOLONIZATION, JAMAICA, 1944-62 (Institute of Social and Economic Research, University of the West Indies, Jamaica, 1972).

MUNROE, TREVOR, SOCIAL CLASSES AND NATIONAL LIBERATION IN JAMAICA (Vanguard Publishers, Kingston, Jamaica, 1981).

Munroe, Trevor, Transforming Jamaican Democracy Through Transparency: A Framework for Action, in FOSTERING TRANSPARENCY AND PREVENTING CORRUPTION IN JAMAICA (Laura Neuman, ed., The Carter Center February, 2002).

MUNROE, TREVOR, AN INTRODUCTION TO POLITICS (Canoe Press, Jamaica, 2002).

st Murray, William, 1 Earl of Mansfield, WIKIPEDIA, http://en.wikipedia.org/wiki/William_Murray,_1st_Earl_of_Mansfield (last visited May 26, 2006).

Nadel, Mark S., Refining the Doctrine of New York Times v. Sullivan, in THE COST OF LIBEL: ECONOMIC AND POLICY IMPLICATIONS, P.157. (Everette E. Dennis & Eli M. Noam, eds., Columbia University Press, New York, 1989).

NATION BY NATION, http://www.nationbynation.com (last visited May 20, 2005).

NICOL, ANDREW, Q.C., GAVIN MILLAR Q.C. & ANDREW SHARLAND, MEDIA LAW & HUMAN RIGHTS (Blackstone Press Ltd., London, 2001).

Note, The Scope of First Amendment Protection for Good-Faith Defamatory Error, 75 YALE L.J. 642, 649 (1966).

Noel, Dix W., Defamation of Public Officers and Candidates, 49 COLUM. L. REV. 875 (1949).

Norman Conquest of England, WIKIPEDIA, http://en.wikipedia.org/wiki/Norman_Conquest (last visited May 25, 2006).

Organisation of Eastern Caribbean States Web site, http://www.oecs.org/about_origin.htm (last visited May 24, 2006).

1000 Dixie Negroes to Cut Classes, CHRISTIAN SCIENCE MONITOR, Mar. 3, 1960, at 5.

Patchett, K.W., Reception of Law in the West Indies, JAMAICA LAW JOURNAL, (April 1973).

PETERSEN, ROGER A., A GUIDE TO LEGAL RESEARCH IN COSTA RICA (published October 2005), http://www.nyulawglobal.org/globalex/Costa_Rica.htm (last visited Apr. 17, 2006).

834

PHELPS, ROBERT H. & E. DOUGLAS HAMILTON, LIBEL: RIGHTS, RISKS, RESPONSIBILITIES, (Dover Publications, Inc., New York, 1978).

PHILLIPS, FRED, COMMONWEALTH CARIBBEAN CONSTITUTIONAL LAW (Cavendish Publishing Ltd, 2002).

Politics in the United Kingdom, WIKIPEDIA, http://en.wikipedia.org/wiki/British_Government#Monarchy (last visited May 25, 2006).

Population Census 2001, http://www.statinja.com/census.html (last visited May 20,2005).

Poor Law, WIKIPEDIA, http://en.wikipedia.org/wiki/Workhouse (last visited June 1, 2006).

st Pratt, Charles, 1 Earl Camden, THE COLUMBIA ENCYCLOPEDIA, SIXTH EDITION 2001- 2005, http://www.bartleby.com/65/pr/Pratt-Ch.html (last visited June 2, 2006).

st Pratt, Charles, 1 Earl Camden, WIKIPEDIA, http://en.wikipedia.org/wiki/Charles_Pratt,_1st_Earl_Camden (last visited May 26, 2006).

Press Release, International Press Institute, IPI Concerned By Grenadian Government’s Deteriorating Media Relations, (Vienna, June 29, 2004), http://www.freemedia.at/Protests2004/pr_Grenada29.06.03.htm (last visited Nov. 10, 2005).

PROFILE OF JANET JAGAN, http://www.jagan.org/janet_jagan3.htm (last visited Feb. 20, 2006).

PRIVY COUNCIL Web site, http://www.privy-council.org.uk/output/page5.asp (last visited May 15, 2005).

Privy Council of the United Kingdom, WIKIPEDIA, http://en.wikipedia.org/wiki/Privy_Council_of_the_United_Kingdom (last visited May 17, 2006).

nd RADCLIFFE, G.R.Y., & GEOFFREY CROSS, THE ENGLISH LEGAL SYSTEM 116 (2 ed., Butterworth & Co., London, 1946).

Rastafari as the Pan African Spiritual and Cultural Leaders, http://rastaites.com/repatriationnews/report2.htm (last visited Oct. 3, 2004).

RAWLS, JOHN, POLITICAL LIBERALISM (Columbia University Press, New York, 1993).

Reform media laws, THE DAILY GLEANER, Wednesday, June 26,,2002.

835

REPORT OF THE STONE COMMITTEE APPOINTED TO ADVISE THE JAMAICAN GOVERNMENT ON PERFORMANCE, ACCOUNTABILITY AND RESPONSIBILITIES OF ELECTED PARLIAMENTARIANS (Bustamante Institute of Public and International Affairs, 1991).

What about the Cubans? in THE GRENADA REVOLUTION ONLINE, http://www.thegrenadarevolutiononline.com/page4.html (last visited Nov. 12, 2005).

What was the NJM? in THE GRENADA REVOLUTION ONLINE, http://www.thegrenadarevolutiononline.com/page2a.html (last visited Nov. 12, 2005).

Wildfire’s Caribbean, Jamaica, http://www.wildfireinvestments.com/Jamaica.htm (last visited May 20, 2005). Reynolds, Albert, WIKIPEDIA, http://en.wikipedia.org/wiki/Albert_Reynolds (last visited Jan. 15, 2006).

Reynolds, Albert in ENCYCLOPEDIA BRITTANICA, http://www.britannica.com/eb/article- 9063385 (last visited June 3, 2006).

Reynolds, Albert in POLITICS.IEWIKI, http://www.politics.ie/wiki/index.php?title=Albert_Reynolds (last visited June 3, 2006).RICHARDS, DAVID A.J., TOLERATION AND CONSTITUTION (Oxford University Press, Oxford,1986).

Richards, Peter, News: PM’s Lawsuit Sparks Latest Media-Government Tussle, in TTGAPERS.COM, June 15, 2004, http://www.ttgapers.com/Article616.html (last visited Nov. 12, 2005).

ROBERTSON, GEOFFREY, & ANDREW G.L. NICOL, MEDIA LAW: THE RIGHTS OF JOURNALISTS, BROADCASTERS & PUBLISHERS, (Sage Publications, London, 1985).

Robinson, Claude, The McLibel Two and the Abrahams case, THE JAMAICA OBSERVER, February 20, 2005 at p. 25.

SABATO, LARRY J. FEEDING FRENZY: HOW ATTACK JOURNALISM HAS TRANSFORMED AMERICAN POLITICS, (The Free Press, New York, 1991).

SEDITION: THE CASES, http://www.class.uh.edu/comm/comm_law/federalist_era/listofcases.html (last visited Oct. 20, 2004).

SIEBERT, FREDRICK SEATON, FREEDOM OF THE PRESS IN ENGLAND 1476-1776: THE RISE AND DECLINE OF GOVERNMENT CONTROL (University of Illinois Press, Urbana, 1965).

Sit-Ins Heighten Stress in South, CHRISTIAN SCIENCE MONITOR, Mar. 7, 1960, at 1.

836

Sitton, Claude, Negroes Dispersed In Alabama March; Attacked by Whites, N.Y. TIMES, Mar. 7, 1960, at 1.

Sitton, Claude, 1000 Negroes Join March in Alabama, N. Y. TIMES, Mar. 2, 1960, at 1.

SMITH, JAMES MORTON, FREEDOM’S FETTERS: THE ALIEN AND SEDITION LAWS AND AMERICAN CIVIL LIBERTIES (Cornell University Press, 1956).

SMOLLA, RODNEY A., FREE SPEECH IN AN OPEN SOCIETY (Alfred A. Knopf, Inc., New York, 1992).

Spinoza, Baruch (1632-1677), PHILOSOPHY PAGES, http://www.philosophypages.com/ph/spin.htm (last visited May 26, 2006).

Springer, H.W., The West Indies Federation, In THE WEST INDIES FEDERATION (David Lowenthal (ed.) Columbia University Press 1971).

STATE OF THE FIRST AMENDMENT 2005, http://www.freedomforum.org/publications (last visited Feb. 16, 2005).

STEPHENS, J.E.R. SUPREME COURT DECISIONS OF JAMAICA AND PRIVY COUNCIL DECISIONS FROM 1774-1923, VOL. II (London: Crown Agents for the Colonies, 1924).

STONE, CARL, CLASS STATE AND DEMOCRACY IN JAMAICA, (Robert Wesson, ed., Praeger PUBLISHERS, 1986).

Stone, Carl, A Political Profile of the Caribbean, in SIDNEY W. MINTZ & SALLY PRICE (EDS.,) CARIBBEAN CONTOURS, Maryland, 1985).

STONE, CARL, POLITICS VERSUS ECONOMICS IN THE 1989 ELECTION IN JAMAICA, (Heinemann Publishers, Kingston, Jamaica, 1989).

STONE, CARL, THE STONE COLUMNS, (Sangster’s Bookstores, Kingston, Jamaica, 1994).

Supreme Court of Judicature of England and Wales, WIKIPEDIA, http://en.wikipedia.org/wiki/Courts_of_England_and_Wales (last visited May 10, 2006).

Table of Global Press Freedom Rankings 2005, FREEDOM HOUSE, http://www.freedomhouse.org/template.cfm?page=204&year=2005 (last visited April 7, 2005).

The British Government: The British Media, BRITANNIA PANORAMA, http://www.britannia.com/gov/gov5/html (last visited May 27, 2006).

The British media landscape, EUROPEAN MEDIA LANDSCAPE, http://www.ejc.nl/jr/emland/uk.html (last visited May 27, 2006).

837

The Stuarts, Kings and Queens of the United Kingdom, http://www.royal.gov.uk/output/page74.asp (last visited May 19, 2006).

Testimony Ended in Trial of Times, N.Y. TIMES, Nov. 3, 1960, at 14.

The Plantagenet, Lancastrian Kings of England, http://www.british- towns.net/english/kings/lancastrian.htm (last visited May 25, 2006).

THE TUDOR MONARCHS, http://tudorhistory.org/monarchs/ (last visited May 25, 2006).

THE WAR OF THE ROSES, http://www.medievalstudies.org/WarsoftheRoses.html (last visited May 25, 2006).

Times, 4 Clerics Lose Libel Case, N.Y. TIMES, Nov. 4, 1960, at 67.

Times Loses Plea to Dismiss A Suit: Alabama Judge Rejects Bid by Paper and 4 Negroes in Montgomery Case, N.Y. TIMES, Oct. 29, 1960, at 23.

Times will seek Alabama Retrial, N.Y. TIMES, Nov. 5, 1960, at 48.

TINDAL, MATTHEW, CHRISTIAN DEIST, http://www.onr.com/user/bejo/tindal.htm (last visited May 26, 2006).

THORNTON, J. MILLS, DIVIDING LINES: MUNICIPAL POLITICS AND THE STRUGGLE FOR CIVIL RIGHTS IN MONTGOMERY, BIRMINGHAM, AND SELMA (The University of Alabama Press, Tuscaloosa, Alabama, 2002).

Threats of libel and lawsuits, GRENADA TODAY, May 7, 2005, http://www.belgrafix.com/gtoday/2005news/May/ (last visited Nov. 10, 2005).

The Tudor Monarchs, http://tudorhistory.org/monarchs/ (last visited May 19, 2006).

THOMPSON, SHERYL, THE PROTECTION OF PRIVACY II (unpublished, available at the University of the West Indies Faculty of Law Library, Cave Hill, Barbados).

TRINIDAD AND TOBAGO – THE NORTHERN ISLANDS, http://countrystudies.us/caribbean- islands/58.htm (last visited April 20, 2006).

UNESCO Institute of Statistics Web site, http://unstats.un.org/unsd/mi/mi_results.asp?crID=388&fID=r15 (last visited May 3 2006).

THE UNIVERSITY OF WEST INDIES AT CAVE HILL Web site, Codrington College, Theological College of the province of the West Indies, http://www.cavehill.uwi.edu/fhe/codrington (last visited Feb 20, 2006).

UNIVERSITY OF THE WEST INDIES, http://www.mona.uwi.edu/about/index.htm (last visited May 17, 2006).

838

VAN ALSTYNE, WILLIAM, INTERPRETATIONS OF THE FIRST AMENDMENT 21 (Duke Press Policy Studies, 1984). Virginia Resolutions of 1798, 4 Elliot’s Debates, 569-570.

th WALKER, R.J., THE ENGLISH LEGAL SYSTEM 3-4 (4 ed., London, Butterworths, 1976).

Wallace, Elizabeth, The Break-Up of the British West Indies Federation, CARIBBEAN FREEDOM: ECONOMY AND SOCIETY FROM EMANCIPATION TO THE PRESENT 455 (Hilary Beckles & Verene Shepherd, eds., Markus Wiener Publishers, 1996)(1993).

WARS OF THE ROSES.COM, http://www.warsoftheroses.com/ (last visited May 25, 2006).

th WEIR, TONY CASEBOOK ON TORT, 525 (8 ed., 1996).

WEST, ROBIN, PROGRESSIVE CONSTITUTIONALISM: RECONSTRUCTING THE FOURTEENTH AMENDMENT, 145-6. (Durham: Duke University Press, 1994).

WHARTON, FRANCIS, STATE TRIALS OF THE UNITED STATES DURING THE ADMINISTRATIONS OF WASHINGTON AND ADAMS WITH REFERENCES, HISTORICAL AND PROFESSIONAL AND PRELIMINARY NOTES ON THE POLITICS OF THE TIMES (Philadelphia: Carey & Hart, 1849).

WHEARE, K.C., THE CONSTITUTIONAL STRUCTURE OF THE COMMONWEALTH (Oxford University Press, 1960).

Williams, Lloyd, PNP wins fourth term 10-seat margin of victory, Jamaica Election 2002, DAILY GLEANER, updated June 2, 2006, http://www.jamaicaelections.com/election2002/news/20021017-1.html (last visited June 2, 2006).

Windward Islands, WIKIPEDIA, http://en.wikipedia.org/wiki/Windward_Islands (last visited June 1, 2006).

Workers Party of Jamaica, WIKIPEDIA, http://en.wikipedia.org/wiki/Workers_Party_of_Jamaica (last visited May 17, 2006).

THE WORLD FACTBOOK, http://www.cia.gov/cia/publications/factbook/geos/td.html (last visited Feb. 24, 2006).

THE WORLD FACTBOOK – Rank Order – Population, http://www.cia.gov/cia/publications/factbook/rankorder/2119rank.html (last visited Mar. 23, 2006).

World Population and Area of all countries of the World, CITY POPULATION, http://www.citypopulation.de/WorldPop.html (last visited June 3, 2006).

839

YAHOO FACTBOOK, http://yahooligans.yahoo.com/reference/factbook/td/popula.html (last visited May 20, 2005).

Zunes, Stephen, The U.S. Invasion of Grenada: A Twenty Year Retrospective, in FOREIGN POLICY IN FOCUS SPECIAL REPORT, http://www.fpif.org/papers/grenada2003_body.html (last visited Nov. 12, 2005).

BIOGRAPHICAL SKETCH

Roxanne Watson is a journalist and an attorney-at-law from Kingston, Jamaica.

After completing her Bachelor of Arts degree in history and social sciences at the

University of the West Indies (Mona, Jamaica) Roxanne joined the Gleaner, Jamaica’s oldest newspaper, as a rookie reporter. She later moved to The University of Miami where she earned a master’s degree in professional journalism. Roxanne has worked in public relations variously in the public and private sectors in Jamaica.

After completing the three-year Bachelor of Laws program at the University of the

West Indies (Cave Hill, Barbados) and the two-year Legal Education Certificate program at the Norman Manley Law School in Jamaica, Roxanne was called to the Jamaican Bar in October 1998. Roxanne practiced law at the Jamaican Bar variously as a criminal prosecutor and as a civil attorney in private practice for four years before leaving her practice to pursue her doctorate in mass communications at the University of Florida in

August 2002.

Between 1991 and 2006 Roxanne has lived at various times in Jamaica, Guyana,

Barbados, Miami and Gainesville.

840