Sunday, January 30, 2011

Press Freedom Or Press Free-For-All? Implications Of Libel Reform

Jamaica Gleaner Company

Press Freedom Or Press Free-For-All? Implications Of Libel Reform

Published: Sunday | January 30, 2011

Ian Boyne, Contributor

Libel Reform joint select committee member Horace Chang was especially poignant in Parliament last Tuesday as the House passed the long-overdue report of the committee. "Freedom of expression is not synonymous with freedom of the press, as the press in the modern world is not free but very much part of the business elite."

It was not your garden-variety statement from a representative of a party which has long been synonymous with Big Business as well as conservative ideas. Then Chang delivered himself of this elegant statement: "The press today is not the young, bright and sometimes attractive professionals gracing the media box. It is as much the grey-suited, often little-known directors and owners that can be found in any boardroom." We are grateful to The Gleaner for carrying his remarks on its front page last Wednesday.

Chang's statements were pithy, pungent and powerful. Interestingly, People's National Party Member of Parliament Peter Bunting expressed similar sentiments at an anti-corruption forum with senior journalists and opinion leaders last December. In speaking of anti-corruption efforts, Bunting made reference to "the liberalisation of our defamation laws that has been on the table for some time and which I am guardedly in favour of ... . My only caveat on this is that I believe that whatever liberalisation that takes place should apply equally to media owners and managers as to other politicians and public figures."

Media owners and journalists will, no doubt, see this as the politicians closing ranks and ganging up against the media to protect themselves and their interests. I say it's only a pity that it's the politicians who are raising these issues, for they are legitimate issues that we should long have put on the table for debate. It has always fascinated me that our press-freedom debate here is so way behind North America's and Europe's, because while we focus only on government, in North America and Europe, particularly the United States, there is a lot of focus on corporate power and its ability to threaten ordinary people's freedom of expression and right to know.

And it is not that the private sector is not powerful in Jamaica. We are a modern, liberalised economy where the corporate sector exerts enormous power. Indeed, some would say the press is the corporate sector! John Maxwell, whose journalistic bona fides and relentless passion for his profession no one would dare to question, was fond of saying freedom of the press was freedom for those who owned one.

Maxwell vehemently disagreed with his colleagues who were bawling for libel reform and complaining that they could do little investigative work because of chilling libel laws. In his frequently expressed view, truth is a defence, and if journalists did their work thoroughly and diligently, they could go after many a corrupt official or business person without fear of losing libel suits. Maxwell, as a well-read man, also knew that the press did not constitute the impartial, objective, detached, disinterested Archimedean space it passed off itself to be. The press had its own sectional interests to defend and it often did so masquerading under the cover of "defence of the people's interests" and "the right to know".

Bunting made the point to opinion leaders that "something that everyone denies officially, but everyone knows who works in the industry is a reality", is "the area of boardroom interference in newsrooms". Bunting said this was a "concern or a danger".

I think that that oft-repeated view is overdrawn. There is not nearly as much overt boardroom interference in newsrooms that some people imagine. There is some interference - as every reporter and editor knows. But the 'danger' or 'concern' is more subtle - and systemic - than that.

If board members of media houses had as much nefarious influence over newsrooms and editorial content, some of us would no longer be writing columns!

Material interests

The problem is not direct control or interference over newsrooms. The issue is that the values and interests of capital are diffused through the newsrooms; that the newsroom personnel recognise that it is in their own material interests to please the boardrooms if they want to maintain their jobs and get promotions. They know that if they are not commercially viable, if they don't please advertisers and cater to a mass audience, they won't be around. It's as simple as that.

The media bosses don't have to give direct edicts (I don't say they never). Newsrooms will go for edgy, sexy stories; will entertain the sensationalist stories because they will drive up ratings, beat the competition and excite readers/listeners and viewers. They respect the profit motive. And you are not going to be making huge profits if you don't cater to mass interest and have mass appeal.

The media's need to be commercially viable and profitable places limits on its ability to fully serve the public interest. Some of the vulgar journalism and unabashed promotion of media owners' interests you see here is not because of decrees from boardrooms. We have overzealous media workers who know how to please 'The Boss' without being told - and they do so willingly because they know it will pay off. Journalists who work in public relations please their clients, and some journalists do the same for their media bosses. And in-between, the people's interests get squeezed.

The masses don't have the financial clout and the goodies that the politicians and the corporate sector have to entice journalists. They can't give the cushy jobs and contracts to the journalists to serve their interests. Chang made an important distinction when he demarcated freedom of expression from freedom of the press. They are not necessarily the same. Indeed, Horace, you said it beautifully: The press is very much part of the business elite. The big media in this country are not owned by poor people. And even if some 'poor people' own shares, they don't get to make the important day-to-day decisions.

Catering to people

The interests of the press happen to coincide with the interests of the poor in a number of instances because the press, if it is to be a viable capitalist enterprise, has to cater to some of the people's interests. But don't you be naïve enough to believe that media can be oblivious to the drive - the intense drive - to be profitable.

We need a broader discussion on press freedom in Jamaica; one that includes a discussion on the power of the private sector. There is an issue right now with Claro and other telecommunication companies wanting to build cell sites in areas where people are protesting their presence. How many special media reports and daring focus you think we are going to get on this when these companies are spending so much money in advertising and sponsorships?

I bet you the media would have more strength for politicians in the Jamaica Labour Party and the People's National Party than for Claro, LIME and Digicel executives. Politicians don't have the money power that these executives have and they can't do as much for media as they can.

The media allow the private sector to get away with a lot in Jamaica, not just because media owners are themselves private sector and play golf, tennis and drink Johnnie Walker Black with other movers and shakers in business; but journalists themselves understand the constraints and practise self-censorship.

I believe in a vigorous, trenchant, quarrelsome, investigative and boisterous press. US Justice Brennan was right in saying, as he handed down his opinion in that landmark New York Times v Sullivan case in 1964: "We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open and that it may include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials."

Noted Stanford University philosopher and Boston Review editor Joshua Cohen, in his book Philosophy, Politics and Democracy, puts it well: "Expression sometimes has unambiguous costs. It is sometimes offensive, disgusting or outrageous; it produces reputational injury and emotional distress. But the presence of such costs does not, as a general matter, suffice to remove protection from expression." Indeed.

Easier for journalists

Jamaica's libel reform will make it easier for journalists to do their work. The common-law offence of criminal libel has been abolished and the time within which one can bring a charge for libel has been reduced from six to two years. Significantly. the assessment for damages has been removed from the discretion of juries and will only be determined by judges. Juries tend to award huge damages.

The joint select committee has rejected the demand by the Media Association Jamaica Ltd to put a cap on damages, contending that judges are reasonable people and would not make outrageous awards. I can't finally decide where I come down on this one, as I don't want to encourage recklessness in journalism, but I still want journalists to be bold and daring enough to go after corrupt politicians, public officials and business people and to even use incendiary language in doing so. I want journalists to have no fears when going after them.

Justice Brennan expressed it well: "Would-be critics of official conduct may be deterred from voicing their criticism even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so." That's one benefit of capping damages, short of adopting the Sullivan rule. I am inclined to that view. Perhaps both the Small Committee and the joint select committee erred in not making that important concession to the media fraternity. The Reynolds principle of qualified privilege to criticise public officials, which the parliamentarians have, in effect, endorsed; along with the defence of truth (over the defence of justification) and the imminent whistle-blower legislation should give us, as journalists, significant ammunition to do serious damage to the edifice of corruption in Jamaica.

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