The following are excerpts from the Media Association Jamaica Ltd (MAJ) and the Press Association of Jamaica's (PAJ) submission to the Joint Select Committee of Parliament reviewing Jamaica's libel and defamation laws.

Damages

The issue of damages was included in the terms of reference given to the Small Committee, which reviewed the libel and defamation laws, however, one will note from the Small Report that this matter was not included in the recommendations. The Small Committee did, however, agree that the libel laws should be amended to include a cap on non-economic losses, but did not feel that it was competent to work out how the formula should be arrived at to account for factors such as inflation and devaluation of the dollar. The committee felt that the amount of the cap would best be left to the technocrats in government to work out.

In Australia, they have imposed a cap of $250,000.00 for non-economic losses and this sum can be exceeded if the court decides there is a good reason for aggravated damages. Of course, established economic losses would remain uncapped.

To take the uncertainty out of this area of the law, the MAJ and PAJ are further of the view that it should be mandatory for personal injury awards to be relied on in determining damages. There is no good rationale to explain why a claimant who has suffered intangible damage, i.e., damage to reputation, should recover substantially more by way of damages than a claimant who has suffered the loss of a limb or the family who has suffered the loss of a love one. The disparity among the different areas of tort just outlined is undisputable.

A cap on non-economic damages, generally, is desirable as:

1. New and emerging media (the majority of the Jamaican landscape) are very susceptible to even modest awards of damages.

2. Insurers, after the Abrahams case, largely shy away from providing defamation coverage for the media and, where available, it is prohibitively costly.

3. It is absolutely desirable in a democracy to encourage the existence of an independent press.

The NY Times vs Sullivan

On the question of the appropriate standard for public officials, the MAJ and the PAJ are firmly joined in the view that the New York Times vs Sullivan approach should attain the force of law in Jamaica. This is discussed further below.

The essence of the Sullivan Approach:

Public officials often misinterpret the Sullivan approach to mean the media and the public are free to defame public officials, that is not so. The rationale behind the decision is 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." (Sullivan Case)

Damages cannot be awarded to a public official for defamation relating to his official conduct in the absence of proof of actual malice.

The case shifts the burden of proving actual malice to the public official before the article is determined to be defamatory.

Public officials and persons who are agents of the people should be freely criticised by citizens to whom they are accountable. They must tolerate a greater degree of criticism. This is essential to the concept known as 'democracy'. In the absence of the freedom to openly criticise government bodies and officials, what is left is a breeding ground for corruption and the abrogation of other constitutional rights.

Public officials oftentimes offer themselves for the posts held thus making themselves servants. It should be understood at the time of taking office that the public interest supersedes the right to privacy.

Public officials are trustees of the power, authority over national resources and authority over the citizenry. Any abuse of those powers would have catastrophic consequences.

Advantages of the Sullivan Approach:

Promotes good governance and performance of public officials by encouraging transparency and accountability

Promotes a reduction in corruption

Aids in the preservation and advancement of democracy

Preserves freedom of expression and uninhibited public debate

Benefits the public most as it is the public's interests which will be protected

Removes the fear of defamation suits being initiated against media houses by public officials, thereby strengthening the media's role as 'watch dog' of the tenets which underpin our democracy

Just who should constitute a 'public official' is, of course, a matter that would have to be clearly defined or left to our capable Jamaican judges to determine over time. The issue of who constitutes a public official is an area that has been litigated over and over and there is much guidance in the literature. Below the MAJ and PAJ attempts to offer some guidance.

EXISTING DEFINITIONS OF 'PUBLIC OFFICIAL'

'Public official' means any person holding a legislative, executive, administrative or judicial office, whether appointed or elected; any other person who performs a public function or provides a public service; any other person defined as a public official in the domestic law." [See: United Nations Convention against Corruption - Article 2(a)]

Public official means any official or employee of the State or its agencies, including those who have been selected, appointed or elected to perform activities or functions in the name of the State or in the service of the State at any level of its hierarchy [See: African Union Convention on Preventing and Combating Corruption - Article 1]

Public official shall be understood by reference to the definition of 'official', 'public officer', 'mayor', 'minister' or 'judge' in the national law of the State in which the person in question performs that function and as applied in its criminal law. The term judge shall include prosecutors and holders of judicial offices. [See: Council of Europe Criminal Law Convention on Corruption - Article 1(a)]

'Public official', 'government official', or 'public servant' means any official or employee of the State or its agencies, including those who have been selected, appointed, or elected to perform activities or functions in the name of the State or in the service of the State, at any level of its hierarchy. [See: Inter-American Convention Against Corruption - Article 1]

The American position

The American position is attractive to the MAJ and PAJ. The American definition of the term embraces government officials, politicians, at least some entertainment celebrities, media personalities and heads of influential organisations. We believe that the definition should not be restricted merely to persons holding political power but also include those who occupy positions with the ability to influence public affairs by virtue of their positions, and who have the capacity to effectively respond to defamatory allegations via the use of the media. This would include heads of the PSOJ, MAJ, PAJ, JTA and so on.