Suing to protect the cancer of corruption: : The politician and the media (Part II)

The judge observed that the court “cannot be blind to a growing disturbing tendency [on] the part of some local media practitioners to make reckless and very unfortunate statements without any factual foundation. In society such as ours, there is a tendency to conclude that statements made in the media are to be believed. The mass media is largely trusted and consequently wields much influence. With such great power should also come commensurate responsibility.”

In paragraph 33 of the judgment, the court stated;

“the evidence is that the first defendant (Lennox Linton) has no professional expertise to evaluate the claimant’s work and that no reports of criminal conduct were made to the authorities. The conduct of the claimant was not referred to any body with responsibility for oversight of the conduct of chartered accountants in their profession. In those circumstances can it be fairly said that there was a duty on the defendants to publish their assessment of wrongdoing by the claimant?...The case of Vickery v McLean, Court of Appeal 125/200, points the way to an answer. The court was of the view that it was demonstrably not in the public interest to have criminal allegations, even if bona fides and responsibly made ventilated through the news media. That would encourage trial by media and associated developments that would be inimical to the criminal justice process. Society has mechanisms for investigation and determination of guilt or innocence and it was not in the public interest that such mechanisms be bypassed or subverted.”

Defamation of character occurs when a person makes and/or publishes a false and harmful statement about another person or entity. It takes place when the defamatory material is published, broadcasted, and disseminated though public announcements, billboard advertisements, via radio, TV, newspapers, Internet blogs or even through the performing arts like calypso. In the absence of proof of publication of information in a comprehensible form capable of causing damage to another’s reputation and good name, a claim of defamation fails. In this series of articles, defamation refers to slander and libel, the oral and written forms of defamation respectively.

The law requires that certain conditions must be met in order to satisfy a claim of defamation. Generally, a claimant must prove that the information was published, that it was false, that the claimant was directly or indirectly identified, the statements were defamatory and damaging to his/her reputation, the publication was either reckless, negligent or motivated by malice, and the defendant is responsible for making the statement and/or for its dissemination.

In light of our increasing sensitivity and intolerance to criticism (both positive and negative) and the fear of exposing our personal weaknesses and vulnerabilities, the registry of our courts in the Caribbean continues to handle a plethora of law suits filed by politicians. The majority of these law suits are against opposing politicians, media houses and journalists, especially those who demand transparency and accountability in government or are critical of the politicians who do not wish to have their exercise of discretionary political power exposed to public scrutiny.

One ought to respect the right of every citizen, politician or government official to seek lawful protection of his good name, character and/or reputation. However, it is very clear to the ordinary John Doe that a defamation law suit has become an effective weapon of choice by some politicians to silent the more vociferous critics of government’s policies, its exercise of powers and its implementation of financial, economic, diplomatic, political, legislative mandates. Suing has become not only an effective tool by which one protects his integrity, good name and reputation but unfortunately it is used to protect the growth of the cancer of corruption in our society.

I recall the DNO headline of Wednesday, February 17th, 2010, “SVG Prime Minister threatens legal action against media house and talk show hosts”. Many readers commented on the frequency with which Prime Minister Dr. Ralph Gonsalves uses the tool of legal action as a weapon against journalists, radio stations and/or opposing politicians.

The truth is several Caribbean politicians have sought the assistance of the court for one or both of the above reasons including Dr. Kenny Anthony, Prime Minister of St Lucia and Vaughn Lewis, former Prime Minister of St Lucia; Dr Ralph Gonsalves, Prime Minister of St Vincent; Dr Kieth Mitchell, former Prime Minister of Grenada; Mr. Edison James, former Prime Minister of Dominica; Mr. Lester Bird, former Prime Minister of Antigua; Mr. Basdeo Panday, former Prime Minister of Trinidad and Tobago and of course the current Prime Minister of Dominica, Mr. Roosevelt Skerrit among others.

Some media houses, well known local and regional journalists, and internet bloggers, especially the investigative type, are the usual targets. For example, KairiFM and DBS Radio (when they opposed the government), Observer Radio, Grenville Radio, The Times Newspaper, and Investigative journalist Lennox Linton, Matt Peltier, Rick Wayne and Dr. Fontaine.

Similarly, certain lawyers in our jurisdiction are more often seen and used as the lawyer of choice in high profile cases where the interest and good name of powerful politicians are at stake or the necessity to protect the growth of the cancer of corruption becomes more important.

We recall a DNO news item of Monday, 12 December 2011 headlined, “Lawsuit looms for Lennox Linton”, based on a threat by the personal Attorney-at-law of the Prime Minister, that he would take legal action against Mr. Linton for statements reportedly made on his weekly ‘Between You and Me’ radio show. Perhaps Mr. Isidore had a genuine interest to protect his good name and reputation but others may argue that he may have been more interested in protecting the present regime and its cronies who want to see the back of Mr. Linton as a public and effective critique of the administration. Still, others may argue that the threat of a law suit may have had very little to do with concerns of alleged reckless and/or malicious statements published or caused to be published by Mr. Linton but to attempt to further silent those who seek to cut the off the head of the cancer of corruption in Dominica.

Our constitutional rights v the protection one’s reputation

One journalist/talk show host on Q95 radio has emerged as the self-appointed advocate and interpreter of the provisions of Dominica’s constitution. In the light of the deafening silence of the qualified and trained legal professionals on Island, the efforts of Mr. Angelo Allen and others are commendable. One cannot ignore the painstaking research reporting and well-informed commentaries of media personalities like Mr. Lennox Linton, Arundel Thomas, and Carlisle Jno. Baptiste, Matt Peltier and Dr. Fontaine of TDN.

However, as the ‘quiet’ legal professionals may secretly whisper to Mr. Allen and others, while our constitution provides for a number of fundamental rights and freedoms, it also subjects these rights, freedoms and protections to limitations, which the courts have the power and responsibility to interpret and apply. Subjecting the constitutional rights and freedoms to limitation recognizes the prospect of divergence between considerations of these rights.

The self-appointed advocates of our constitutional and human rights on radio should appreciate that the very constitution that proclaims our fundamental rights, protections and freedoms, grants the legislative arm of state the power to limit the exercise and/or enjoyment of certain rights, particularly where they may conflict with certain public policy objectives or when the exercise of one’s freedom may substantially infringe on the enjoyment of the rights of others. Therefore, the freedom of speech is not absolute and it is necessarily limited to the extent that everyone is entitled to the right to enjoy the protection of his good name and reputation. The limitations placed on our fundamental constitutional rights and freedoms, therefore, rest within the limits of the principle of “proportionality.”

As stated by Justice Brian Cottle in the afore-referenced case,

“The Constitution of Dominica in common with the constitutions of most Caribbean states affords protection to certain fundamental rights and freedoms. Section 10 (1) gives an individual the freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons). Subsection (2) subjects that freedom of expression to any law reasonably required for the protection of the reputation of other persons. The constitution allows for freedom of expression but that does not permit the abuse of that freedom to damage the reputation of other individuals…..the Common law does not permit the public dissemination of untrue statements defamatory of another…”

The court further observed;

“reputation is an integral and important part of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well being …once besmirched by an unfounded allegation in a national newspaper [radio talk show or over the internet], a reputation can be damaged forever, especially if there is no opportunity to vindicate one’s reputation. When this happens, the 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 others. The protection of good reputation is conducive to the public good. It is also in the public interest that the reputation of public figures should not be debased falsely.”

The courts have also recognized that within the common law there is a certain degree of elasticity that enables interference with freedom of speech to be confined to what is necessary in the circumstances of a case and through which the court is able to give appropriate weight to the importance of freedom of expression by the media on all matters of public concern.

With regard to the law of defamation, generally the trend is to consider the traditional common law rules as being too heavily biased against free communication and freedom of speech. In some jurisdictions, the courts have recognized certain privileges for political debate and discussion and have put in place certain restrictions, which have been adopted in statute to protect free speech.

The modern thinking is to allow statements on matters of “public concern” in a manner that is reasonable and balanced in all the circumstances. In effect, the focus is the recognition of our civic responsibility and obligation to protect the right of free speech and fundamentally the independent role of journalism.

Even where a statement is defamatory, there are circumstances in which such statements are permissible in law and a defendant of a law suit of defamation may not be liable. They include circumstances where;

(i) the truth was expressed, broadcasted or published without malice;

(ii) a statement/ fair comment is made on a matter of public interest;

(iii) a statement of opinion is expressed as apposed to fact;

(iv) the claimant reputation is “libel proof” or incapable of being further defamed;

(v) a statement is made in the media or the press concerning a public figures without malice or ill-will toward the individual;

(vi) a statement is innocently disseminated/published or broadcasted;

(vii) a statement is subject absolute or qualified privilege; and

(viii) other defenses including where there is no third-party communication and no actual injury suffered by the plaintiff such as the non- broadcast or publication to others.