Newsroom Law

A Legal Guide for Commonwealth Caribbean Journalists

Kathy Ann Waterman Latchoo

• Publisher: The University of the West Indies Press
• Year: 2020
• ISBN:
  9789766407551

This book is meant to guide, comfort and support journalists. While they may chafe against the many legal restrictions, they should know that there is a lot they can do and say within the law. With a better understanding of their legal rights, journalists can go about their business with greater confidence, knowing when to yield and when to stand firm.

Kathy Ann Waterman Latchoo begins by placing journalism in a constitutional context and ends with an overview on damages for defamation and a glossary of legal terms. She describes our legal systems and the hierarchy of courts, which every journalist should strive to understand, whether or not assigned to the court beat. In Newsroom Law, she seeks to demystify libel law, including the Reynolds public interest defence, which has put fresh emphasis on what constitutes "responsible journalism". Other chapters alert journalists to the legal pitfalls in covering parliamentary affairs, elections and court cases. Cyber-libel, copyright and freedom of information are also included and the chapter on investigative journalism seeks to answer common questions such as whether photographers may use telephoto lenses to capture people in private; whether journalists may record conversations covertly; and whether it is ever permissible to break the law to expose evil.

CHAPTER 1

FREEDOM OF EXPRESSION

Without effective freedom of expression, materialized in all its terms, democracy vanishes, pluralism and tolerance start to break down, the mechanisms of citizen oversight and complaint start to become inoperable, and, in short, fertile ground is created for authoritarian systems to take root in society.

—Herrera Ulloa v. Costa Rica¹

Freedom of expression is the best expression of freedom.

It is a barometer of a healthy democracy; a safety valve for social dissent; a checkpoint for independence; and a brake on government power, interference and abuse.

It guarantees the realization of all human rights. An excellent modern statement on the importance, function and scope of this freedom comes from the Supreme Court of Uruguay, which had this to say:² “In fact, without freedom of expression, full democracy does not exist, and without democracy, the sad history of the hemisphere has demonstrated that everything from the right to life to the right to private property is seriously endangered.”³

Freedom of expression is one of the fundamental rights and freedoms enshrined in the Bill of Rights in the regional constitutions, as inviolable as the right to life, the right to personal liberty and equality under the law.

Freedom of expression belongs to everyone, whether journalist, evangelist, politician or the man or woman at home in the recliner armchair. It has a dual dimension – encompassing not only the individual right of all people to express their own thoughts, ideas and information but also the collective right of society at large to seek and receive any information, to learn about the thoughts, ideas and information held by others and to be well informed.⁴

Without such freedom, you would not be able to read a newspaper or a book; listen to a broadcast; or breathe a thought, unless Big Brother said so.

And as stated by the European Court of Human Rights, that freedom extends not only to inoffensive or indifferent ideas or words but also to those that offend, shock or disturb.⁵

In the famous words of Justice Stephen Smedley in England in a case against a roadside preacher: “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”⁶

Freedom of expression includes freedom of the press, which is the right to publish factual information and opinion in a variety of forms, including newspapers, television, radio and social media. The Trinidad and Tobago Constitution, exceptionally, speaks of freedom of the press and freedom of expression separately, which acknowledges the critical role played by the press in that democracy.

The relevant sections in the constitutions of the independent Commonwealth Caribbean nations draw their origins from Article 10 of the European Convention on Human Rights,⁷ which states: “Everyone has the right to freedom of expression. The right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

But no freedom is absolute. So the article continues in this way:

The exercise of those freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The article is recognized in the respective sections of the various Commonwealth Caribbean constitutions,⁸ which typically begin: “Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of expression.”

Restrictions are placed on such freedom to protect reputations, maintain order, protect public health and national security, and so on. For example, Section 20 (2) of the Barbados Constitution states:

Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision:

1. that is reasonably required in the interests of defence, public safety, public order, public morality or public health; or received in confidence, maintaining the authority and independence of the courts or regulating the administration or technical operation of telephony, telegraphy,
2. that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts or regulating the administration or technical operation of telephony, telegraphy, posts, wireless broadcasting, television or other means of communication or regulating public exhibitions or public entertainments; or that imposes restrictions upon public officers or members of a disciplined force.

Journalists, therefore, are limited in what they can publish and when they can publish it. Although freedom of the press is guaranteed, journalists are not entitled to unfairly damage people’s reputations, interfere with the administration of justice or disrupt the fairness of general elections.

Freedom of expression is valued for its own sake but it is also instrumentally important. R v. Secretary of State for the Home Department ex p Simms⁹ Lord Steyn stated that

freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country.

Freedom of expression also means that journalists should be free from government interference. If government officials feel aggrieved by what is published about them, they have to seek redress through the courts like everybody else.

And journalists who believe the state is arbitrarily violating their free speech right can file constitutional motions in the High Court.

Constitutional clashes between the state and the media have arisen over such matters as withholding or cancellation of broadcast licences; restrictions on importation of necessary commodities such as newsprint; and laws that criminalize statements critical of public figures and bodies.

Several landmark Bill of Rights cases illustrate how the courts have sought to resolve such conflicts. The burden is always on the would-be censor to show that the restriction is reasonably required.

These cases underscore the importance of freedom of expression to the proper functioning of a democratic society and the need for our watchdogs and sentinels to remain vigilant.

NO PRINT FIT FOR NEWS

In Guyana, in 1971, President Forbes Burnham issued several trade orders prohibiting the importation of newsprint and printing equipment except by licence issued by the competent authority.¹⁰ The New Guyana Company, which published the Evening Mirror and Sunday Mirror, challenged the validity of the orders on the basis that the orders had the effect of hindering their freedom of expression without interference in accordance with Article 12 of the constitution.

The judge at first struck down the trade orders, but the Court of Appeal overturned his ruling, holding (myopically) that there was no fundamental right to import newsprint or printing equipment. In the opinion of the Court of Appeal, the government had the right to conserve scarce foreign exchange and there was no direct impact on the newspaper or intentional trespass on the constitution.

Similarly, in an Antiguan case, the Privy Council adopted the “no direct impact” reasoning when a biweekly newspaper challenged the constitutionality of the Registration of Newspapers (Amendment) Act.¹¹

The 1971 act forbade the printing or publishing of a newspaper unless there was a deposit of $10,000 with the accountant general, to satisfy any judgment of the court for libel. The relevant government minister could waive the deposit if he were provided with a bank guarantee or insurance policy.

The Antigua Times contended that the requirement was repugnant to Section 12 of the constitution. The court ruled in favour of the newspaper, holding that such a provision impeded freedom of expression. But the Privy Council saw it otherwise – the objective of the provision was to raise revenue, which was reasonably required and not excessive. The requirement of the fee was not devised to impede the press, even though such expenditure might reduce the resources of the newspaper otherwise available to improve its circulation, and so was not contrary to the constitution.

It was another decade and a half before the Privy Council abandoned this strangulating approach and sanctified the importance of the right of freedom of expression in a democracy, observing that such a right would be a “fragile thing if it could be overridden by general political or economic policy”. The Privy Council also underscored the need for the courts to adhere to a “firm performance of their proper constitutional role” in assessing limits on fundamental rights.¹²

The fresh approach was marked in 1990 by another Antiguan case involving Tim Hector, and the infamous Public Order Act, discussed later in this chapter.

In contrast, Trinidad and Tobago newspapers were successful in having restrictions on the importation of newsprint deemed unconstitutional....