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Friday, 07 September 2012

OP-ED: Criminal defamation laws in the Caribbean are ripe for repeal

IPI's Executive Director lays out case for abolition of criminal libel 

By: Alison Bethel McKenzie, IPI Executive Director

IPI Executive Director Alison Bethel McKenzie thanks Trinidad and Tobago Prime Minister Kamla Persad-Bissessar at the closing ceremony of IPI's 2012 World Congress in Port of Spain, after Persad-Bissessar committed to reviewing her country's criminal defamation law. IPI Photo.

VIENNA - Early this year, Dominican journalist Johnny Alberto Salazar was sentenced to six months in jail for slander and libel. The charges stemmed from Salazar's on-air comments accusing Pedro Baldera, a local Human Rights Committee official, of "protecting delinquents and people linked to organised crime." Salazar, an elected council member and well-known local gadfly, said prior to his arrest that he had been receiving threats from the government for his criticism of officials.

In June, the decision was thrown out by an appeals court. But the effect of the prosecution remains. Though the Dominican Republic retains a fairly clean press record, with Salazar potentially becoming the first ever journalist jailed for professional activities, the existence of criminal defamation laws leaves the threat of retribution forever looming.

As recently as June, Dominican politicians, and diplomats across the Caribbean, expressed their belief that defamation is best dealt with in a civil courtroom. The International Press Institute (IPI) calls on these countries to take the next step and remove these latent laws from their books.

Criminal libel law was born in an Elizabethan England courtroom as a means for silencing critique of the privileged class. A law of such antiquated ethos has little place in modern society where the press plays a pivotal role in shaping public discourse.

IPI is actively campaigning for the governments of the Caribbean to redress their current criminal libel laws. At present, the law is vague and open to indiscriminate and inconsistent implementation, largely wielded to quell dissent and stifle government criticism.

In the past two years, Caribbean criminal defamation cases have included a government official charging a previous campaign opponent with the crime and another where accusations made in a town hall meeting resulted in a lawsuit. These cases exemplify the elasticity of a law largely wielded by those in positions of power.

While infrequently used in the Caribbean, criminal libel statutes remain, an unnecessary resource at the disposal of any offended official. The mere threat of prosecution chills investigation and free speech, sustains corruption, unnecessarily protects public officials, and denies one of the most basic of human rights, freedom of expression.

Criminal libel is one of the most pernicious media constraints in contemporary society. Implemented at the will of any insulted public official, it frequently leaves no recourse for the defendant. In most countries, truth is not a valid defence, leaving defence a vexing proposition.

Many countries have no clear demarcation or standard for determining the line between fair criticism and criminal offense. That most existing criminal libel laws also lack a requirement for actual malice, a higher criterion for the libel of public figures - to allow for debate and discourse of government and other instruments of power - only further underscores the capricious nature and implementation at the disposal of government figures.

IPI condemns modern use of criminal libel and advocates banishing the law, and utilising civil remedies as alternatives. Often governments argue the need for strong punitive measures as a defence against scurrilous journalism, but freedom of expression and the press require a more nuanced regulation in order to allow for public dialogue. Certainly, punishment for careless or slanderous speech is necessary, but this should take place in a civil courtroom.

IPI stands beside numerous international accords, court opinions, and governments in these beliefs. As early as 1948, the United Declaration of Human Rights declared the significance of freedom of expression, with special note to press rights, by naming it one of the basic truths of humanity. More recently, an international coalition comprised of members from the United Nations, the Organization for Security and Cooperation in Europe (OSCE), the Organization of American States (OAS), and the African Commission on Human and Peoples' Rights (AFCHP) named the criminalisation of defamation as one of the ten biggest threats to freedom of expression.

IPI has conducted press freedom missions in a number of Caribbean nations. An IPI delegation met with Trinidad and Tobago Prime Minister Kamla Persad-Bissessar, Barbados Prime Minister Freundel Stuart, and government ministers and officials in both Jamaica and the Dominican Republic. In each instance, IPI received support for its position on criminal libel, with each government reaffirming its commitment to an independent press.

In June 2012, the IPI General Assembly meeting in Port of Spain endorsed the Declaration of Port of Spain, calling for the abolition of "insult laws" and criminal defamation legislation in the Caribbean. Stating that "the Caribbean urgently needs a strong, free and independent media to act as a watchdog over public institutions," the Declaration of Port of Spain identifies "the continued implementation of ‘insult laws’ – which outlaw criticism of politicians and those in authority and have as their motive the 'locking up of information' – and criminal defamation legislation as a prime threat to media freedom in the Caribbean.

"IPI has received further endorsement for the Declaration of Port of Spain from numerous organisations throughout the Caribbean, including the Association of Caribbean Media Workers, and media and press associations in Jamaica, Trinidad and Tobago, Barbados, Grenada, Guyana, Antigua and Barbuda, Saint Lucia, Suriname, and St. Kitts and Nevis.

A free society is founded on an open exchange of opinions, popular or not. Criminal libel does little more than stifle this public discourse. We’ve evolved a great deal since the 16th century origin of criminal libel. To continue to rely on an antiquated law that acts as little more than a tool of repression would signal a society uncertain of its democratic principles. Many Caribbean countries have publicly repudiated criminal libel. IPI calls on these governments to join in the progress of freedom of expression and recognise their existing criminal libel laws as archaic and detrimental, and to remove the law from their books.

Considerable work lies ahead in achieving this goal, but IPI is encouraged by the progress thus far. With diligence and continued collaboration, IPI is confident the nations of the Caribbean will proceed in striking this relic of a bygone era from their records and take their rightful places as homes of truly free and independent press.