IPI Special Report: Criminal defamation laws remain widespread in the Caribbean
IPI Caribbean campaign starts 2013 with comprehensive legal review
By: Scott Griffen, Press Freedom Adviser for Latin America and the Caribbean
VIENNA, Feb 4, 2013 – Where in the Caribbean can journalists be sent to prison for doing their job? The answer: Everywhere.
A comprehensive legal review conducted by the International Press Institute (IPI) confirmed that every independent state considered geographically or culturally part of the Caribbean maintains some form of criminal defamation that could result in imprisonment.
Of those 16 countries, six — Antigua and Barbuda, Cuba, the Dominican Republic, Grenada, Haiti, and Suriname — have seen journalists criminally prosecuted for defamation within the last 15 years. In the Dominican Republic in 2012 alone, two journalists were sentenced to prison and a third threatened with criminal charges.
IPI conducted the independent review as part of its campaign to repeal all criminal defamation and insult laws in the Caribbean, which kicked off last year with advocacy visits to Barbados, the Dominican Republic, Jamaica, and Trinidad and Tobago.
“IPI’s review provides the most complete picture yet of criminal defamation and insult laws in the Caribbean,” IPI Executive Director Alison Bethel McKenzie said. “International consensus holds that such laws are incompatible with freedom of expression and that the venue for the resolution of defamation claims should be a civil courtroom. Unfortunately, the results of our research reveal a sizeable gap between the constitutional guarantees for freedom of expression found in virtually every Caribbean country and the legal reality on the ground.”
She continued: “While prosecutions for defamation have occurred in just a handful of Caribbean nations in recent times, so long as these laws remain on the books in any country, there exists the potential for their misuse to punish journalism critical of those in power.”
In a statement provided to IPI, Catalina Botero, the Organisation of American States (OAS) Special Rapporteur for Freedom of Expression, reiterated the OAS’s concern over criminal defamation laws, particularly when they punish offensive speech directed at public officials.
Specifically, she recalled the Declaration of Principles on Freedom of Expression of the Inter-American Commission on Human Rights (IACHR), which establishes that when relating to matters of public interest “[t]he protection of a person’s reputation should only be guaranteed through civil sanctions”, and that laws punishing insult or contempt of public officials “restrict freedom of expression and the right to information.”
Botero concluded: “These principles are key to facilitating open and uninhibited debate about matters of public concern, which is an indispensable condition for the functioning of a democratic society.”
Defamation may be understood as a communication (usually an allegation or accusation), either written or spoken, containing a statement that harms the reputation or honour of the subject of the communication, generally by identifying a negative character trait or course of action that exposes the subject to hatred, contempt, or ridicule. Libel refers to defamation expressed through the written word, while slander indicates oral defamation.
According to IPI research, every state in the English-speaking Caribbean but one — Grenada — has specific criminal libel laws on the books, with offenders facing a minimum of six months to one year in prison. St. Lucia’s laws provide the harshest penalties: intentional libel there can result in up to five years behind bars.
Overall, defamation laws in the English-speaking Caribbean differentiated among three categories, each dependant upon the intent of the speaker: intentional libel, reckless libel, and negligent libel. Intentional libel, the most serious of the three, implies malice on the part of the speaker. Reckless libel and negligent libel both indicate an inadequate regard for accuracy, but not necessarily malice. Significantly, for all of the above three categories, the truth of the statement in question is generally a limited defence.
Separately from criminal libel, seditious libel laws, which also carry criminal penalties, remain in force in every English-speaking Caribbean country except Jamaica and Barbados. IPI found that these laws were often vaguely defined: in Dominica, St. Kitts and Nevis, and Antigua and Barbuda, seditious speech can refer to that which “raises discontent or disaffection” among inhabitants. Importing “any seditious publication” and “promot[ing] feelings of ill-will” between different classes of the population are also included.
Particularly troubling were the laws of St. Lucia, St. Vincent and the Grenadines, and Trinidad and Tobago, which contemplate prison terms of up to five years for “seditious libel” and “libel with a seditious intent.”
Nearly all Caribbean countries that have retained the British monarch as head of state specifically outlaw speech that “bring[s] into hatred or contempt” the person of the sovereign. Punishments for insulting the Queen range from up to two years in prison in Grenada and Belize (classified as a misdemeanor in both) to five years in St. Lucia.
Laws in Cuba and the Dominican Republic address, in general, three forms of defamation offences that are also common in other Spanish-speaking countries: difamación (defamation), injuria (insults or invective not accompanied by a specific accusation) and desacato (contempt of authority).
The statutes of the Dominican Republic related to defamation, found in the Penal Code and the press law (Law No. 6132), are among the most extensive in the Caribbean, with separate provisions and escalating penalties for insulting private individuals, lower-ranking public officials, high ranking officials, and the head of state, respectively. According to the Penal Code, defaming or insulting the head of state can lead to one year in prison plus the loss of certain basic civil right, such as voting and serving as a witness.
While the Cuban Penal Code contains a host of provisions that criminalise various forms of speech, Article 144, which punishes contempt, defamation, insult, “or any other mode of scornful or offensive expression” against high-ranking public officials with up to three years in prison, is among the most troubling for press freedom due to its vagueness and seemingly limitless application.
In addition to standard criminal libel, Cuba also maintains prohibitions against defaming any “heroes or martyrs of the Republic” and disseminationg “false news” with the aim to “disturb international peace” or “endanger the prestige of the Cuban state”.
Haiti’s defamation laws contain a particularity not seen elsewhere in the Caribbean. Namely, those accused of defamatory statements that impute to an individual criminal acts that could result in the death penalty face up to three years in prison; in all other cases of defamation, the accused faces up to one year. In another notable provision, those convicted of “slanderous accusation” against law-enforcement or judicial authorities can lead up to one year in prison and the loss of certain civil rights. Haiti, while French-speaking, also maintains the distinction between defamation (diffamation) and insult (injure).
Of particular concern to IPI in Cuba, the Dominican Republic, and Haiti is that defamation of high-ranking public officials is punished more harshly than that of private citizens. In the Dominican Republic’s press law, defaming private individuals can lead to six months in prison; defaming public officials can lead to one year. In Haiti, insulting the honour of “major” public officials or legislators can result in up to three years in prison, while insulting lower-level public officials only up to one.
IPI, referencing international standards, has repeatedly insisted that public authorities be subject to more scrutiny, not less. Criminal defamation, insult, and desacato laws offer authorities a convenient method of silencing criticism — one that has proven successful across Latin America. IPI believes that such laws, in which reputation and obedience are prioritised over opinion, violate fundamental democratic tenets.
At least on paper, however, the most stringent defamation laws were found in Dutch-speaking Suriname. Perhaps most alarmingly, Section 171 of Suriname’s penal code punishes “public expression of enmity, hatred, or contempt” toward the government of Suriname with up to seven years in prison. Insulting Suriname’s head of state or flag can land one behind bars for five years and six months, respectively. Journalists convicted of defamation or “slanderous insinuation” face six months and three years in prison, respectively.
IPI’s review also examined laws that punished “obscene libel” or “offending public morality”, which were found in nine of the 16 countries surveyed. In the English-speaking Caribbean, such provisions were usually phrased as banning the publication of obscene content. In the Bahamas, Belize, Grenada, Guyana, and Trinidad and Tobago, for example, offenders risk up to two years in prison. St. Lucia elevates the punishment to five years.
In the Spanish-speaking Caribbean, Haiti, and St. Vincent and the Grenadines, such laws were worded to punish “offending good morals” or “publishing public morality” and set forth maximum prison terms of nine months to one year.
In IPI’s view, the extent of criminal defamation and insult laws clashes with the freedom of expression guarantees found in every Caribbean country. All 16 nations surveyed provided constitutional guarantees for freedom of expression, though most included caveats for the protection of public order or reputation.
The Dominican Republic’s constitution guarantee appeared among the most significantly tempered, with explicit protection for one’s “honour, good name, and image.” In Cuba, the constitution affirms freedom of expression “in conformity with the principles of socialist society.”
The OAS has repeatedly urged its member states to consider the abolition of desacato laws and ensure that defamation allegations are handled solely by civil courts. In a 2002 report, the office of Special Rapporteur stated: “Despite the near-universal condemnation of [desacato] laws, they continue to exist in one form or another in the majority of states in the Americas. In addition, many of these states continue to have criminal libel, slander and defamation laws, which are frequently used in the same manner as desacato laws to silence governmental critics.”
That sentiment has been repeatedly echoed by the United Nations Special Rapporteurship for Freedom of Expression, the African Commission on Human and People’s Rights, and the Organisation for Security and Cooperation in Europe (OSCE). In a 2010 joint declaration, representatives of those bodies, together with the OAS, identified criminal defamation as one of the 10 key challenges to freedom of expression in the decade to come.
In July 2012, Grenada became the first Caribbean country to repeal criminal libel laws, following lobbying by IPI. However, references to seditious libel remain in the Criminal Code, though Prime Minister Tillman Thomas announced in Dec. 2012 that these, too, would be removed soon, though he did not provide specifics. Parliamentary elections are now scheduled to take place on Feb. 19, 2013.
Trinidad and Tobago Prime Minister Kamla Persad-Bissessar officially announced defamation reform during a speech in Nov. 2012. Her comments followed commitments made by the Trinidadian government during IPI’s World Congress held in Port of Spain.
A bill to repeal criminal defamation in Jamaica, introduced in 2011, awaits a final series of negotiations on content. During its visit to Kingston and following the publication of its mission report in Oct. 2012, IPI received confirmation from government officials that defamation reform was of a high priority.
In Nov. 2012, IPI welcomed a commitment from legislators in the Dominican Republic to reconsider changes to the Penal Code that would have strengthened punishments for defamation. At a public hearing that month of the Justice Committee of the Chamber of Deputies, during which a letter from IPI was presented, deputies indicated their intention to modify the bill to completely remove criminal penalties for defamation and insult.
IPI is currently working together with legislators and media representatives to help modernise the Penal Code and the country’s press law, Law No. 6132
“We are encouraged by indications that Jamaica, Trinidad and Tobago, and the Dominican Republic are working to repeal criminal defamation and that Grenada plans to take the next step and remove seditious libel from its laws,” Bethel McKenzie said. “We also hope that Barbados Prime Minister Freundel Stuart will use the final months of his present term to ensure that no Bajan journalist will ever face the threat of prison for doing his or her job.”
She added: “IPI looks forward to continuing its work with our partner, the Association of Caribbean MediaWorkers (ACM), in ensuring that Caribbean journalists are able to investigate government officials without fear of legal retribution.
IPI will return to the Caribbean in April 2013 for a second advocacy mission to the Dominican Republic, Suriname, Guyana, and Antigua and Barbuda. Bethel McKenzie emphasised that IPI will also be engaging the governments of Cuba and St. Lucia in the near future.
Note: This article was updated on March 27, 2013 to note that criminal defamation cases have also been brought recently in Suriname.