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.

Role of the jury

Recommendation #10 in the Small Committee report which reviewed the libel and defamation laws speaks to the abolition of the assessment of damages by juries in defamation cases. At present, the law provides for trial by jury at the option of either party to the suit. It is to be noted that the right to trial by jury is available at the option of both claimant and defendant.

The members of the Small Committee agreed that the role of the jury in the assessment of damages should be abolished. However, the MAJ and PAJ were of the view that the role of jury in defamation matters should be abolished altogether for the reasons set out below:

1. Jury trials have been abandoned in other areas of civil law. Today, only defamation suits are tried by the jury in civil matters such as fatal accident claims.

2. Jury trials are far more costly than proceedings before a single judge in chambers as several steps are added to the process, and for that reason it is also more costly.

3. Unlike criminal law, there is no risk of loss of the constitutional right to liberty of the subject which trial by jury aims to protect.

Whereas there is a constitutional right to liberty and freedom of expression, the right to reputation is not a fundamental human right enshrined in our constitution and, therefore, by removing trial by jury from defamation suits, is not infringing any fundamental rights. That is not to say a person's reputation is not important, it is.

However, in seeking to balance the right to reputation and freedom of expression, greater credence must be given to that which is a constitutional right.

4. Libel is an extremely technical area of law. Issues such as aggravated, exemplary and punitive damages can be a challenge even for trained lawyers furthermore the average juror who has no legal training and must learn and appreciate the ramification of each principle generally within a matter of only a few days. Juries are expected to understand and apply multiple areas of law to the facts of the case.

5. Juries are required to assess damages in circumstances where judges are not permitted in law to guide them in terms of an appropriate range for the award of damages. Consequently, our juries have repeatedly returned exorbitant awards of damages which the Court of Appeal has always reduced significantly.

Guidelines for assessment of damages

The suggestion under this recommendation is that guidelines be included in the libel laws for the benefit of the judge (and in the case of a jury, the judge would have to direct the jury) on the criteria to be considered in assessing damages.

The MAJ and PAJ support the Australian approach which is to set out guidelines which must be followed.

It is, ultimately, the judge who will decide how much weight is to be given to a particular guideline, but codified guidelines take away the elements of uncertainty and arbitrariness.

Publication by various means

In the existing legislation enacted in 1961, there is reference to such dated technology as redif-fusion and wireless telegraphy, the members of the Small Committee thought it prudent to recommend that the existing legislation be so amended that publication can take place by other means.

The recommendation, therefore, was simply to broaden the scope by which publication can take place in including in the revised legislation, a few identified media.

Wire service defence

This refers to the provision of a defence where the publisher is reprinting or distributing verbatim or near verbatim text from a reputable wire service. Where it exists, it generally operates if:

1. You republish a news item from a reputable news agency.

2. You did not know the information was false.

3. The news item on its face does not indicate any reason to doubt its veracity.

4. You do not substantially alter the news items when republishing it.

There was majority agreement within the Libel Review Committee that such a defence should be introduced into Jamaican law although the matter was inadvertently omitted from the Small Committee report.

The thinking behind this defence is that the established wire services such as the Associated Press and United Press International have been proven to be so reputable and accurate in their reporting that other publishers should reasonably be able to depend upon the accuracy of their reporting.

Today, the public clamours to get global information as soon as the information is available and media houses are "pelted" with complaints when news is "stale". Where information is picked up from a reputable source, the law should provide protection for the secondary publisher.