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The truth and the public interest
Common SenseJohn Maxwell
Sunday, December 09, 2007
On Thursday, a veritable galaxy of media powers and stars assembled at the University of the West Indies for a seminar to discuss the liberalisation of the libel laws of Jamaica.
John Maxwell
The Media Association of Jamaica in association with the Private Sector Organisation of Jamaica and the Jamaica Chamber of Commerce sponsored the occasion. The Jamaica Press Association was also represented.
The seminar was proposed to "produce a body of relevant knowledge regarding the practical implications of the current laws and practices as they apply to local and regional media", according to a handout issued by the organisers.
Since there was no one representing the ordinary people of Jamaica I took the liberty of speaking on their behalf - a liberty which the press and the media take every day without any serious consideration of what such a presumption really entails.
Over the last few years, against the background of punitive libel damages awarded against certain elements of the media, there has been a growing concern among media owners that libel damages could actually put some of them out of business, and that such damages are a threat to freedom of the press.
The remedies proposed include a liberalising of the laws and practices governing defamation. Among these is a proposal to extend the range of privilege, to allow news organisations to publish as fact, statements made in public by almost any politician about any other politician or public servant. There are other proposals including one to extend the ability of the press to defame public officials in line with the doctrine enunciated by the US Supreme Court in the 1964 case of Sullivan v the New York Times.
This doctrine, based on the First Amendment to the US constitution, basically allows anyone to say with impunity anything about any 'public official' acting in his public capacity. The only exceptions are if the plaintiff can prove that the statements were made with express malice or with a reckless disregard for the truth of the statement.
Unless the plaintiff is a mind reader, it would seem to me impossible to prove a libel given these constraints. How does one discover a 'reckless disregard' in the mind of the journalist?
We speak grandly of the press as a public trust, but I wonder whether we understand the meaning of that claim.
For some others and me, the function of journalism is a duty undertaken in the public interest.
We assume the duty to provide the public with information, which is as accurate as we can make it.
We assume the duty to provide public Information, which is not spun, skewed, twisted, biased, or prejudicial in any way to the public interest.
As part of that public trust, we have tacitly undertaken to ensure that the people are entitled to know the source of the information we deliver and we should be able to guarantee that our sources are as clean and pure as the sources of the water we drink.
Public information is as essential as water, because people cannot make up their minds or protect their best interest if they are not aware of the opportunities as well as the pitfalls and snares in their paths.
The public interest demands that we report the truth, the whole truth and nothing but the truth. Our opinions must be labelled as opinion and not disguised as fact. We need to respect the reality that a fact is a statement that is independently verifiable.
We take it for granted that freedom of expression is a basic human right - that it means the right to speak one's mind freely, to communicate freely, to publish and share information without restraint, except the restraints necessary in the protection of the public interest.
The public interest mandates the protection of individual private rights in the context of the general public right to safety, environmental health, economic security, privacy and protection from harassment from any quarter.
In defining our rights we must understand that our human rights belong to all of us, that no one has any superior or different or sectoral rights as against anyone else and that all of us are entitled to equal protection under the law and the Jamaican constitution.
Truth is an absolute defence
We have been informed that the law as it currently stands - including the statutes and the precedents - exercises a chilling effect on freedom of speech, that it interferes with fair comment and that it restrains the practice of investigative journalism.
As a journalist of 55 years experience, I would be more impressed were I presented with any evidence that our press and media are really interested in investigative journalism or evidence of the chilling effect on such enterprises.
For instance, I have not been able to understand why it has taken more than two years for our press to become interested in the business of Cash Plus, a monstrosity that threatens to undermine the very fabric of public confidence in our financial institutions.
I cannot understand why a catastrophic appointment at the National Gallery has not attracted the interest of the press although the affair threatens to destroy the National Gallery itself.
I cannot understand why the press ignores the UDC's beach-stealing campaign or why it pays no attention to the destruction wreaked on our sea defences, our national airport and our roads and bridges by unrestrained sand mining.
I cannot understand why there has been so little attention paid to the business of drug trafficking and to the collateral damage it is wreaking in our communities.
In a more general perspective, I cannot understand why it has been impossible for our press and media to explain the real state of the poor and the communities in which they suffer and to explain why force cannot cure our crime problem.
I cannot understand why there is usually no attempt to discover the real reason some policemen are being murdered. Or why people collaterally connected to news organisations are immune from public criticism in most of the news media.
There are many other things I cannot understand, especially since the truth is an absolute defence to a charge of libel.
This is an important thing to remember: The truth is an absolute defence to a charge of libel, except in some rare and peculiar circumstances relating to criminal libel.
Since I speak as a journalist, I share the responsibility for these lapses, but how much greater is the responsibility of those who hire journalists and can direct them to look into whatever seems suspicious or inexplicable?
It is my opinion that we are failing in our duty to the public interest and that while the libel laws may need revision, the push for reform is less necessary for investigative journalism than it is to disguise the fact of our failure to perform. The cure may be worse than the disease.
It is a fact that for most people a good reputation is their only capital asset.
If their good reputation is lost or damaged, they are in danger of being smeared and disadvantaged for as long as they live. Mud sticks. The media has recently embarked on the publication of gossip and rumour to the detriment of various persons' reputations. Unfortunately for them, this gossip is couched in such terms that to challenge its veracity will only expose the plaintiff to more obloquy.
As it is, the media now gets away with major transgressions against the public interest while neglecting its primary responsibilities to that interest.
To expand the libel laws in the directions proposed will simply give the owners of the press the privilege to destroy their enemies at will, and particularly to destroy the representatives of the poor in their public functions.
If the libel laws are to be revised there must be a revision of the time needed to defend one's character. Today, the damage seeps throughout the society and reaches all parts in the years it takes to bring an action.
The other side of the equation is that some publishers and journalists are intimidated by the mere threat of a writ by people who have no real interest in pursuing a cause they themselves know is without merit. This is a serious abuse of the law, but no one seems to care. The worthless writ hangs on, like an abandoned fish-pot, catching and killing initiative and subverting courage. If these two faults were corrected we would have achieved much more than is possible by extending the Sullivan doctrine to this country.
The press needs to remember that public officials are human beings with feelings and families. Above all, they should remember the case of Richard Jewell a security guard at the Atlanta Olympics who was suspected of planting the bomb he reported finding.
After several years the FBI cleared his name, absolving him absolutely of any connection with the bomb. In the interim his life was made miserable by the press who decided that since he was a suspect, the only one for some time, he must be guilty.
After years of the most hostile attention and physical harassment he was cleared, and decided to sue his tormentors for libel.
The press' first line of defence was that since Jewell was a public official and a person in the news - (where they put him) - he could not sue because of the Sullivan doctrine. The courts dismissed this wickedness, but Jewell's mental and physical health had so deteriorated that he died soon after, a victim of press freedom as understood in the United States. The gravamen of the press' case was that since their false and malicious publicity had made Jewell a public figure, he was unable to sue by virtue of the Sullivan doctrine.
As the sans-culottes sang in 1789, Privilege for ALL or Privilege for NONE. Freedom is indivisible - a slogan we all parrot, many of us without understanding the meaning.
We cannot give the press and media rights not enjoyed by the rest of us. Nor can we impose peculiar disabilities on certain groups or classes of people. If we are going to expose politicians to the slings and arrows of outrageous talk-show hosts and other pettifoggers, shouldn't the press and media barons and practitioners by the same reasoning, be subject to the same disabilities?
I speak with some feeling, since I am the only journalist who has been successfully sued for libel by a newspaper for telling the truth, but who was compromised by a manager who knew nothing about libel. I am also the only Jamaican journalist to have been threatened in Parliament with imprisonment by a government upset by my opinions. I am also the only editor whose newspaper was officially blacklisted by order of the financial secretary of Jamaica.
And in that time I stood alone, unsupported by many of the very same people now protesting about freedom of the press.
Protecting our patrimony
Last Sunday I was among several dozen people, from Portland and from Kingston and other places, who attended a meeting at Fairy Hill, near Port Antonio, to form an organisation for the protection of Jamaica's public beaches. The casus belli, so to speak, was the threat by the Ultimate Devastation Conglomerate (UDC) to capture the Fairy Hill Beach at the Winniefred Rest Home and to convert it into an upscale resort for foreigners, destroying the environment and depriving the people of Jamaica of one of their best and last remaining public beaches.
The movement was sparked by Cynthia Miller, a vendor on the beach, and Carla Gulotta, an Italian-born woman who has owned a guesthouse at Drapers, San San, for the past 18 years. We heard testimony from the people whose livelihoods depend on the beach which they have used and husbanded for more than 50 years, and to which they have prescriptive rights.
The UDC, however, claims that it has acquired the beach from the government in a peculiar transaction which appears to have bypassed the nominal owners of the beach and the land, the Winniefred Rest Home Trust, a charity set up nearly 90 years ago.
The Winniefred Beach Defence Committee (WBDC) intends to ask for a declaration by the courts recognising their indefeasible rights to the beach and to access to the beach by virtue of the Beach Control Act and the declaration of the Beach as a public Beach 50 years ago.
This action was initiated by a number of people from the area, but people like me, who have used the beach freely for up to 50 years, are to join them in the suit.
Originally, the petitioners had asked and got the support of the Beach Control Authority (BCA) - part of NRCA/NEPA - to assert their rights and the rights of the general public. The BCA, however, withdrew from the suit without giving the petitioners any notice of their intention, apparently believing that their withdrawal would allow the UDC greater leverage in the attempt to capture the beach.
This issue is an important beachhead in the campaign to defend the public right to public property all over Jamaica against the campaign by the UDC to steal beach property and for to private entrepreneurs.
The WBDC needs help; we need volunteers for fundraising, management planning and a variety of other jobs. You can make your feelings and your presence felt in a campaign that is vital to the protection of the Jamaican public interest.
We cannot afford to lose this beach if the people of Jamaica are to retain their rights to their own country. You can make contributions to the Fighting Fund at - Winnifred Defence Fund at Scotia Bank, Port Antonio Branch Account N°807657. You can find out more at the website: free-winnifred.com
I urge you to become involved in this struggle. If you believe in Jamaica and understand the need to protect our nation, our patrimony and the welfare of the people, you need to come aboard.
CopyrightG2007 John Maxwell
jankunnu@gmail.com
Common SenseJohn Maxwell
Sunday, December 09, 2007
On Thursday, a veritable galaxy of media powers and stars assembled at the University of the West Indies for a seminar to discuss the liberalisation of the libel laws of Jamaica.
John Maxwell The Media Association of Jamaica in association with the Private Sector Organisation of Jamaica and the Jamaica Chamber of Commerce sponsored the occasion. The Jamaica Press Association was also represented.
The seminar was proposed to "produce a body of relevant knowledge regarding the practical implications of the current laws and practices as they apply to local and regional media", according to a handout issued by the organisers.
Since there was no one representing the ordinary people of Jamaica I took the liberty of speaking on their behalf - a liberty which the press and the media take every day without any serious consideration of what such a presumption really entails.
Over the last few years, against the background of punitive libel damages awarded against certain elements of the media, there has been a growing concern among media owners that libel damages could actually put some of them out of business, and that such damages are a threat to freedom of the press.
The remedies proposed include a liberalising of the laws and practices governing defamation. Among these is a proposal to extend the range of privilege, to allow news organisations to publish as fact, statements made in public by almost any politician about any other politician or public servant. There are other proposals including one to extend the ability of the press to defame public officials in line with the doctrine enunciated by the US Supreme Court in the 1964 case of Sullivan v the New York Times.
This doctrine, based on the First Amendment to the US constitution, basically allows anyone to say with impunity anything about any 'public official' acting in his public capacity. The only exceptions are if the plaintiff can prove that the statements were made with express malice or with a reckless disregard for the truth of the statement.
Unless the plaintiff is a mind reader, it would seem to me impossible to prove a libel given these constraints. How does one discover a 'reckless disregard' in the mind of the journalist?
We speak grandly of the press as a public trust, but I wonder whether we understand the meaning of that claim.
For some others and me, the function of journalism is a duty undertaken in the public interest.
We assume the duty to provide the public with information, which is as accurate as we can make it.
We assume the duty to provide public Information, which is not spun, skewed, twisted, biased, or prejudicial in any way to the public interest.
As part of that public trust, we have tacitly undertaken to ensure that the people are entitled to know the source of the information we deliver and we should be able to guarantee that our sources are as clean and pure as the sources of the water we drink.
Public information is as essential as water, because people cannot make up their minds or protect their best interest if they are not aware of the opportunities as well as the pitfalls and snares in their paths.
The public interest demands that we report the truth, the whole truth and nothing but the truth. Our opinions must be labelled as opinion and not disguised as fact. We need to respect the reality that a fact is a statement that is independently verifiable.
We take it for granted that freedom of expression is a basic human right - that it means the right to speak one's mind freely, to communicate freely, to publish and share information without restraint, except the restraints necessary in the protection of the public interest.
The public interest mandates the protection of individual private rights in the context of the general public right to safety, environmental health, economic security, privacy and protection from harassment from any quarter.
In defining our rights we must understand that our human rights belong to all of us, that no one has any superior or different or sectoral rights as against anyone else and that all of us are entitled to equal protection under the law and the Jamaican constitution.
Truth is an absolute defence
We have been informed that the law as it currently stands - including the statutes and the precedents - exercises a chilling effect on freedom of speech, that it interferes with fair comment and that it restrains the practice of investigative journalism.
As a journalist of 55 years experience, I would be more impressed were I presented with any evidence that our press and media are really interested in investigative journalism or evidence of the chilling effect on such enterprises.
For instance, I have not been able to understand why it has taken more than two years for our press to become interested in the business of Cash Plus, a monstrosity that threatens to undermine the very fabric of public confidence in our financial institutions.
I cannot understand why a catastrophic appointment at the National Gallery has not attracted the interest of the press although the affair threatens to destroy the National Gallery itself.
I cannot understand why the press ignores the UDC's beach-stealing campaign or why it pays no attention to the destruction wreaked on our sea defences, our national airport and our roads and bridges by unrestrained sand mining.
I cannot understand why there has been so little attention paid to the business of drug trafficking and to the collateral damage it is wreaking in our communities.
In a more general perspective, I cannot understand why it has been impossible for our press and media to explain the real state of the poor and the communities in which they suffer and to explain why force cannot cure our crime problem.
I cannot understand why there is usually no attempt to discover the real reason some policemen are being murdered. Or why people collaterally connected to news organisations are immune from public criticism in most of the news media.
There are many other things I cannot understand, especially since the truth is an absolute defence to a charge of libel.
This is an important thing to remember: The truth is an absolute defence to a charge of libel, except in some rare and peculiar circumstances relating to criminal libel.
Since I speak as a journalist, I share the responsibility for these lapses, but how much greater is the responsibility of those who hire journalists and can direct them to look into whatever seems suspicious or inexplicable?
It is my opinion that we are failing in our duty to the public interest and that while the libel laws may need revision, the push for reform is less necessary for investigative journalism than it is to disguise the fact of our failure to perform. The cure may be worse than the disease.
It is a fact that for most people a good reputation is their only capital asset.
If their good reputation is lost or damaged, they are in danger of being smeared and disadvantaged for as long as they live. Mud sticks. The media has recently embarked on the publication of gossip and rumour to the detriment of various persons' reputations. Unfortunately for them, this gossip is couched in such terms that to challenge its veracity will only expose the plaintiff to more obloquy.
As it is, the media now gets away with major transgressions against the public interest while neglecting its primary responsibilities to that interest.
To expand the libel laws in the directions proposed will simply give the owners of the press the privilege to destroy their enemies at will, and particularly to destroy the representatives of the poor in their public functions.
If the libel laws are to be revised there must be a revision of the time needed to defend one's character. Today, the damage seeps throughout the society and reaches all parts in the years it takes to bring an action.
The other side of the equation is that some publishers and journalists are intimidated by the mere threat of a writ by people who have no real interest in pursuing a cause they themselves know is without merit. This is a serious abuse of the law, but no one seems to care. The worthless writ hangs on, like an abandoned fish-pot, catching and killing initiative and subverting courage. If these two faults were corrected we would have achieved much more than is possible by extending the Sullivan doctrine to this country.
The press needs to remember that public officials are human beings with feelings and families. Above all, they should remember the case of Richard Jewell a security guard at the Atlanta Olympics who was suspected of planting the bomb he reported finding.
After several years the FBI cleared his name, absolving him absolutely of any connection with the bomb. In the interim his life was made miserable by the press who decided that since he was a suspect, the only one for some time, he must be guilty.
After years of the most hostile attention and physical harassment he was cleared, and decided to sue his tormentors for libel.
The press' first line of defence was that since Jewell was a public official and a person in the news - (where they put him) - he could not sue because of the Sullivan doctrine. The courts dismissed this wickedness, but Jewell's mental and physical health had so deteriorated that he died soon after, a victim of press freedom as understood in the United States. The gravamen of the press' case was that since their false and malicious publicity had made Jewell a public figure, he was unable to sue by virtue of the Sullivan doctrine.
As the sans-culottes sang in 1789, Privilege for ALL or Privilege for NONE. Freedom is indivisible - a slogan we all parrot, many of us without understanding the meaning.
We cannot give the press and media rights not enjoyed by the rest of us. Nor can we impose peculiar disabilities on certain groups or classes of people. If we are going to expose politicians to the slings and arrows of outrageous talk-show hosts and other pettifoggers, shouldn't the press and media barons and practitioners by the same reasoning, be subject to the same disabilities?
I speak with some feeling, since I am the only journalist who has been successfully sued for libel by a newspaper for telling the truth, but who was compromised by a manager who knew nothing about libel. I am also the only Jamaican journalist to have been threatened in Parliament with imprisonment by a government upset by my opinions. I am also the only editor whose newspaper was officially blacklisted by order of the financial secretary of Jamaica.
And in that time I stood alone, unsupported by many of the very same people now protesting about freedom of the press.
Protecting our patrimony
Last Sunday I was among several dozen people, from Portland and from Kingston and other places, who attended a meeting at Fairy Hill, near Port Antonio, to form an organisation for the protection of Jamaica's public beaches. The casus belli, so to speak, was the threat by the Ultimate Devastation Conglomerate (UDC) to capture the Fairy Hill Beach at the Winniefred Rest Home and to convert it into an upscale resort for foreigners, destroying the environment and depriving the people of Jamaica of one of their best and last remaining public beaches.
The movement was sparked by Cynthia Miller, a vendor on the beach, and Carla Gulotta, an Italian-born woman who has owned a guesthouse at Drapers, San San, for the past 18 years. We heard testimony from the people whose livelihoods depend on the beach which they have used and husbanded for more than 50 years, and to which they have prescriptive rights.
The UDC, however, claims that it has acquired the beach from the government in a peculiar transaction which appears to have bypassed the nominal owners of the beach and the land, the Winniefred Rest Home Trust, a charity set up nearly 90 years ago.
The Winniefred Beach Defence Committee (WBDC) intends to ask for a declaration by the courts recognising their indefeasible rights to the beach and to access to the beach by virtue of the Beach Control Act and the declaration of the Beach as a public Beach 50 years ago.
This action was initiated by a number of people from the area, but people like me, who have used the beach freely for up to 50 years, are to join them in the suit.
Originally, the petitioners had asked and got the support of the Beach Control Authority (BCA) - part of NRCA/NEPA - to assert their rights and the rights of the general public. The BCA, however, withdrew from the suit without giving the petitioners any notice of their intention, apparently believing that their withdrawal would allow the UDC greater leverage in the attempt to capture the beach.
This issue is an important beachhead in the campaign to defend the public right to public property all over Jamaica against the campaign by the UDC to steal beach property and for to private entrepreneurs.
The WBDC needs help; we need volunteers for fundraising, management planning and a variety of other jobs. You can make your feelings and your presence felt in a campaign that is vital to the protection of the Jamaican public interest.
We cannot afford to lose this beach if the people of Jamaica are to retain their rights to their own country. You can make contributions to the Fighting Fund at - Winnifred Defence Fund at Scotia Bank, Port Antonio Branch Account N°807657. You can find out more at the website: free-winnifred.com
I urge you to become involved in this struggle. If you believe in Jamaica and understand the need to protect our nation, our patrimony and the welfare of the people, you need to come aboard.
CopyrightG2007 John Maxwell
jankunnu@gmail.com