Reference is made to your letter in which both the Media Association of Jamaica (MAJ) and the Press Association of Jamaica (PAJ) were asked to submit written comments on the report of the Small committee.

In November 2007, the Prime Minister appointed a committee of persons from a wide cross section of society to review the defamation laws of Jamaica.

The terms of reference of the committee was to review the libel laws of Jamaica and to recommend such changes as may be necessary to ensure transparency and accountability and in particular to:

Support the principle of freedom of the press;

Provide reasonable protection against false and damaging publication;

Prevent the use of defamation laws to suppress information to which the public is reasonably entitled

Impose appropriate burden of accountability on public officials holding positions of trust, and

Evaluate the actual damages caused by slanderous or libellous publications and determine appropriate remedies.

Although the interest groups represented on the committee were varied and the terms of reference, many, it is important to note at the very outset, that the committee was nevertheless able to agree on most of the issues it looked at.

The areas of agreement were as follows:

Recommendation #1: abolition of the distinction between libel and slander

Limitation period

The limitation period in Jamaica derives from the 1623 Limitation Act of England and is six years from the date that the defamatory statement was published.

In England, the limitation period has been reduced to one year from the date of publication. Australia also has a one year limitation, while New Zealand, Canada and Barbados all have two year limitation periods.

One year represents a fair balance between the interests of plaintiffs, who need sufficient time to prepare their cases and the interests of defendants, who ought not to have the threat of legal proceedings hanging over their heads for an inordinate period of time

Journalism is a very migratory profession and with the passage of time, journalists migrate, witnesses and writers memories fade and records may be misplaced or destroyed.

Offer of Amends

If an aggrieved person alleges that he has been defamed, the publisher has an opportunity to make amends by taking some remedial action to offset the negative implications of the publication in question and address the issue directly, this could include, for instance, publishing another article apologizing for or clarifying the defamatory information. An offer of amends may include monetary compensation.

The offer of amends has to be offered within a particular time frame and in any event cannot be offered after a defence is served.

Apology

To facilitate Recommendation #5, in Australia, they have provided that where a publisher makes an apology, it is not deemed as an admission of liability or fault and indeed is irrelevant for determining the fault or liability of the publisher. This provision is similar to s. 29 of the Defamation Bill 2008 in Ireland.

Defamation law addresses damage to reputation and redress where appropriate. Where damage to reputation is alleged, the law should provide measures that are conducive to expeditious redress to contain the impact of the defamation.

The Small committee was of the view that the best way to contain the impact of an alleged defamatory statement was for a clarification/apology to be published as soon as possible thereafter. The committee, however, also recognised that under the current laws of Jamaica, a publisher would not be encouraged to publish an apology/clarification as it could be used against him in a court of law.

The Small committee felt that it would be neither fair nor practical to ask publishers to apologise/clarify expeditiously without any form of guarantee and, therefore, recommended the adoption of the Australian treatment of the "apology/clarification " as stated above.

Declaratory Order

This remedy would apply to a situation where the plaintiff feels that their primary issue is a restoration of their reputation by the said apology

Under the Irish Defamation Bill, 2008, which the Small committee considered, provision is made for an aggrieved party to apply to Court for a Declaratory Order that a statement was defamatory. This is a "speedy remedy" procedure and allows for a defamation case to be heard by a judge sitting alone who will make the Declaration if he/she sees fit. No damages can be awarded.

Criminal Libel

This still remains an offence under the Libel and Slander Act of Jamaica and essentially what that means is that a citizen of Jamaica could be imprisoned for exercising his constitutional right to freedom of expression. This is clearly untenable and should be abolished.

The offence was generated in medieval times when defamation laws were used to restrict freedom of expression and has no place in modern democracy which enshrines freedom of expression. It was the view of the Small committee that such laws are incompatible with the constitutional right to freedom of expression.