Saturday, March 26, 2011

The Bahamas, who shares Common Law with the United Kingdom, should also move to bring its libel laws into the 21st century

Time to change libel law

thenassauguardian editorial

We were very intrigued to read this week that the British government is finally moving to reform its famous libel law.

The reform proposal was presented to Parliament last week, and hailed as “essential to the health of democracy that people should be free to debate issues and challenge authority”.

Under British libel law, a defendant is guilty until proven innocent. A plaintiff does not have to show damage to his reputation. Also, under what is known as the 1849 Duke of Brunswick rule, each individual newspaper sale — or hit on a Web site — counts as a new publication and thus another libel. The law also treats opinion, however measured, just as it treats tabloid gossip until a defendant convinces a court it should be accepted as fair comment. This has the potential to encourage trivial and uncertain cases.

The bill includes a requirement that statements must cause the defendant “substantial harm” in order to be considered defamatory. The bill would allow defendants to claim “responsible publication on matters of public interest” as an argument in their favor.

The proposed reform is a welcome change. But it is far from perfect. The burden still remains on the defendant.

The Bahamas, who shares Common Law with the United Kingdom, should also move to bring its libel laws into the 21st century.

In 2009, then-Attorney General Michael Barnett said that law reform would be among the list of priorities for The Bahamas government that year. He said that every statute would be subject to review. He pointed specifically to our Libel Act, which was passed in 1843.

To say that our laws as it relates to libel are antiquated is a grave understatement.

While people and businesses have a right to use the civil law to protect their reputation from unwarranted and malicious attack, our existing libel law is open to abuse.

Government and public officials who misbehave should not be able to hide behind defamation suits, or the threat of one, that tend to have the effect of muzzling the press and preventing the truth from coming out in the open.

A fair and reasonable libel law serves as an important shield to freedom of the press.

The freedom to criticize fairly and strongly is the cornerstone of debate and progress.

Our libel law should be more in line with that of the United States. The classic case law governing the press in the U.S. is the famed 1964 New York Times vs. Sullivan case in the Supreme Court.

In that ruling the U.S. Supreme Court held that for a libel suit to be successful, the plaintiff (the person bringing the suit) has to prove not just that the statement or statements complained about were false, but that they were published with malice and recklessness.

In the U.S., the Supreme Court has actually established a federal rule prohibiting a public official from recovering damages for a defamatory falsehood relating to his official conduct, unless that they can prove the statement was made with actual malice.

The Free National Movement should be commended for opening up the airwaves. Now it is time to take its promise of enhancing transparency even further by updating the country’s libel laws.


thenassauguardian editorial