‘The task of the me­dia is to im­part in­for­ma­tion and ideas on po­lit­i­cal is­sues and on other mat­ters of gen­eral in­ter­est . . .’ Euro­pean Court of Hu­man Rights

The Star (St. Lucia) - - LOCAL - By Rick Wayne

Iwas re­cently coun­seled that I ought to up­date my no­tions on free speech and the law. Still I re­main faith­ful to the Privy Coun­cil’s 1990 de­ci­sion in Tim Hector v At­tor­ney-Gen­eral of An­tigua & Bar­buda.

A jour­nal­ist, po­lit­i­cal ac­tivist and close friend of Ge­orge Od­lum (alas both dearly de­parted) Hector was charged with pub­lish­ing false news likely to “un­der­mine pub­lic con­fi­dence in the con­duct of pub­lic af­fairs,” con­trary to pub­lic or­der leg­is­la­tion in An­tigua-Bar­buda. The false news of­fence crim­i­nal­ized the mak­ing of any state­ment “likely to cause fear or alarm in or to the pub­lic, or to dis­turb the pub­lic peace, or to un­der­mine pub­lic con­fi­dence in the con­duct of pub­lic af­fairs.” The An­tigua courts de­clared Tim Hector not guilty; the govern­ment turned to the Privy Coun­cil, again with­out suc­cess.

Ref­er­ence the above, Lord Bridge of Har­wich fa­mously opined: “In a free and demo­cratic so­ci­ety it is al­most too ob­vi­ous to need stat­ing that those who hold of­fice in govern­ment and who are re­spon­si­ble for pub­lic ad­min­is­tra­tion must al­ways be open to crit­i­cism. Any at­tempt to sti­fle or fet­ter such crit­i­cism amounts to po­lit­i­cal cen­sor­ship of the most in­sid­i­ous and ob­jec­tion­able kind.

“At the same time it is no less ob­vi­ous that the very pur­pose of crit­i­cism lev­eled at those who have the con­duct of pub­lic af­fairs by their po­lit­i­cal op­po­nents is to un­der­mine pub­lic con­fi­dence in their stew­ard­ship and to per­suade the elec­torate that the op­po­nents would make a bet­ter job of it than those presently hold­ing of­fice.

“Our sys­tem of govern­ment de­mands, as do the sys­tems of the United States of Amer­ica and the United King­dom, con­stant vig­i­lance over ex­er­cise of gov­ern­men­tal power by the press and the me­dia among oth­ers. It is es­sen­tial for a good govern­ment.”

Ad­di­tion­ally: “It would on any view be a grave im­ped­i­ment to the free­doms of the press if those who print, or a for­tiori those who dis­trib­ute, mat­ter re­flect­ing crit­i­cally on the con­duct of pub­lic au­thor­i­ties could only do so with im­punity if they could first ver­ify the ac­cu­racy of all state­ments of fact on which crit­i­cism is based.”

Then there is Dareskizb Ltd v Ar­me­nia, Ap­pli­ca­tion No. 61737/08—a sub­mis­sion to the Euro­pean Court of Hu­man Rights on be­half of the Me­dia Le­gal De­fense Ini­tia­tive, 15 March 2012:

“The dom­i­nant po­si­tion which the govern­ment oc­cu­pies makes it nec­es­sary for it to dis­play re­straint in re­sort­ing to crim­i­nal pro­ceed­ings, par­tic­u­larly where other means are avail­able for re­ply­ing to un­jus­ti­fied at­tacks or crit­i­cisms.”

Also: “States have at their dis­posal a wide va­ri­ety of other

ef­fec­tive means to pro­tect pub­lic or­der with­out re­sort­ing to ban­ning of false state­ments. Fi­nally, while the pub­li­ca­tion of false news may be viewed as po­ten­tially detri­men­tal to the pub­lic good, its re­stric­tion in­volves far greater risks to the pub­lic good be­cause it un­der­mines democ­racy it­self.

“This is par­tic­u­larly the case in new democ­ra­cies where the state in­sti­tu­tions nec­es­sary to pro­tect democ­racy, in par­tic­u­lar the ju­di­cial sys­tem, as well as the nec­es­sary el­e­ments of civil so­ci­ety, and in par­tic­u­lar a ro­bust and in­de­pen­dent me­dia, re­main frag­ile. It is es­sen­tial, par­tic­u­larly in that en­vi­ron­ment, to en­sure that any ex­ec­u­tive con­trol of in­for­ma­tion that can be re­leased to the pub­lic is to the great­est ex­tent pos­si­ble pro­hib­ited.”

In the cited case ref­er­ence was made to an In­ter-Amer­i­can Court of Hu­man Rights ad­vi­sory opin­ion: “A sys­tem that con­trols the right of ex­pres­sion in the name of a sup­posed guar­an­tee of the cor­rect­ness and truth­ful­ness of the in­for­ma­tion that so­ci­ety re­ceives can be the source of great abuse and, ul­ti­mately, vi­o­lates the right of in­for­ma­tion that this same so­ci­ety has.”

The court con­cluded: “The right to free­dom of ex­pres­sion ex­tends to pro­tect the dis­sem­i­na­tion of all in­for­ma­tion and opinions, in­clud­ing false in­for­ma­tion. Fal­sity is dif­fi­cult to de­fine and thus laws which ban false news are both inherently un­just and open to abuse by state au­thor­i­ties, which al­ready have suf­fi­cient power to en­able them to re­fute state­ments. Such laws also have a se­ri­ous chill­ing ef­fect on the work of re­porters. It is also im­por­tant to re­mem­ber that any pro­hi­bi­tion on the re­port­ing of false news af­fects not only ma­te­rial which is ac­tu­ally banned but ma­te­rial which is not re­ported for fear of it be­ing banned or of crim­i­nal penalty. That is why false news laws have been re­jected by all true democ­ra­cies . . . The rel­e­vant ques­tion for the pur­poses of restrict­ing in­for­ma­tion in or­der to pro­tect na­tional se­cu­rity is not truth or fal­sity; it is whether the re­stric­tion is strictly, and the min­i­mum nec­es­sary, to achieve that pur­pose, some­thing that must be es­tab­lished to a high level of proof by the rel­e­vant au­thor­i­ties.”

As­pi­rants as well as hold­ers of pub­lic of­fice are for­ever ac­count­able to the peo­ple—some of whom may be po­lit­i­cal ad­ver­saries. By all Saint Lucia’s prime min­is­ter him­self has said and writ­ten on the sub­ject of pub­lic ac­count­abil­ity, it would seem he ac­knowl­edges pub­lic ser­vants have next to no pri­vate lives; that they re­main ac­count­able for their ac­tions in the en­closed dark as well as in the open sun­shine. In­deed, not so long ago, in the af­ter­glow of his last elec­tion vic­tory, the prime min­is­ter re­minded the elec­torate al­ways to in­ves­ti­gate and ques­tion the back­grounds of wannabe govern­ment min­is­ters and seek­ers of other pub­lic of­fice. Alas, judg­ing by re­cent events it would seem a great di­vide sep­a­rates what the prime min­is­ter preaches from what he prac­tices or tac­itly en­dorses.

Last year the govern­ment’s jus­tice min­is­ter threat­ened the long-time host of Newsspin with a slan­der suit. Un­for­get­tably, the pub­lic ser­vant is­sued his threat over state-funded Ra­dio Saint Lucia, pre­sum­ably so that home-based jour­nal­ists and oth­ers through­out the re­gion might re­ceive his mes­sage. And all be­cause the news pre­sen­ter had read on-air an item pub­lished on­line that he con­sid­ered of na­tional in­ter­est. Poleon also was re­quired to apol­o­gize sev­eral times to two other govern­ment-con­nected in­di­vid­u­als who claimed they had been un­fairly ref­er­enced in the pub­li­ca­tion.

De­spite his own pub­lished writ­ings when he was a UWI con­sti­tu­tional law lec­turer— and an ap­par­ent free-speech ad­vo­cate—this country’s prime min­is­ter has served defama­tion suits on two for­mer heads of govern­ment and a cur­rent op­po­si­tion MP, among oth­ers who had crit­i­cized him pub­licly on mat­ters re­lat­ing to gov­er­nance.

Ev­i­dently he re­mains unim­pressed by Lin­gens v

Aus­tria (a 1986 Euro­pean Court of Hu­man Rights case that placed re­stric­tions on li­bel laws be­cause of the free­dom of ex­pres­sion pro­vi­sions of Ar­ti­cle 10 of the Euro­pean Con­ven­tion on Hu­man Rights.) Peter Michael Lin­gens was fined for pub­lish­ing in a Vi­enna mag­a­zine com­ments about the be­hav­ior of the Aus­trian Chan­cel­lor, such as “basest op­por­tunism,” “im­moral” and “undig­ni­fied.” Un­der the Aus­trian Crim­i­nal Code the de­fense was proof of the truth of th­ese state­ments. Lin­gens could not prove the truth of th­ese value judg­ments.

Ac­cord­ing to the court: “The lim­its of ac­cept­able crit­i­cism are . . . wider as re­gards a politi­cian than as re­gards a pri­vate in­di­vid­ual. Un­like the lat­ter, the for­mer in­evitably and know­ingly lays him­self open to close scru­tiny of his ev­ery word and deed by both jour­nal­ists and the pub­lic at large, and he must con­se­quently dis­play a greater de­gree of tol­er­ance.”

The court fur­ther noted that “a politi­cian must dis­play a greater de­gree of tol­er­ance with re­gard to crit­i­cism, es­pe­cially when he him­self makes pub­lic state­ments that are sus­cep­ti­ble to crit­i­cism.”

Of course noth­ing stated above is in­tended to sug­gest politi­cians have no rights when it comes to their good name. In Silken v Beaver­brook News­pa­pers Ltd (1958) Di­plock, sum­ming up to the jury, di­rected them as fol­lows: “Let us look a lit­tle more closely at the way in which the law bal­ances the rights of the pub­lic man, on the one hand, and the rights of the pub­lic, on the other, in mat­ters of free speech. In the first place ev­ery man, whether he is in pub­lic life or not, is en­ti­tled not to have lies told about him; and by that is meant that one is en­ti­tled not to make state­ments of fact about a per­son which are un­true and which re­dound to his dis­credit; that is to say, tend to lower him in the es­ti­ma­tion of right think­ing men.”

The judge also said: “Peo­ple are en­ti­tled to hold and to ex­press freely on mat­ters of pub­lic in­ter­est strong views, views which some of you, or in­deed all of you, may think are ex­ag­ger­ated, ob­sti­nate or prej­u­diced, pro­vided—and this is the im­por­tant thing—that they are views which they hon­estly hold. The ba­sis of our pub­lic life is that the crank, the en­thu­si­ast, may say what he hon­estly thinks just as much as the rea­son­able man or woman who sits on a jury, and it would be a sad day for free­dom of speech in this country if a jury were to ap­ply the test of whether it agrees with the com­ment in­stead of ap­ply­ing the true test: was this an opin­ion, how­ever ex­ag­ger­ated, ob­sti­nate or prej­u­diced, which was hon­estly held by the writer?”

The on­go­ing govern­ment ver­sus the me­dia brouhaha has its roots in a re­sponse to plat­form com­ments by the prime min­is­ter and leader of the Saint Lucia Labour Party in re­la­tion to ram­pant rape in­ci­dents, one in­volv­ing a 90-year-old fe­male (so far no ar­rests) and the pres­ence among the pop­u­lace of “se­rial rapists.”

The pub­lished re­sponse by a front-line mem­ber of the op­po­si­tion United Work­ers Party in­cluded lines that have been in­ter­preted by one law firm as barely dis­guised defam­a­tory ref­er­ences to a govern­ment min­is­ter and a senator who is also “a well-re­spected and renowned in­surance bro­ker; well-re­spected ra­dio and TV per­son­al­ity; well re­spected for his opinions on all mat­ters of pub­lic in­ter­est; well re­spected for telling it like it is as his views have al­ways been thor­oughly re­searched and sound.”

He was also “press sec­re­tary for the prime min­is­ter dur­ing the pe­riod May 1997 to July 1998,” po­si­tions that he held “due to his strength of char­ac­ter and his good rep­u­ta­tion.” At any rate, by the mea­sure of his lawyer who has in­ter­preted the UWP state­ment as a pub­lic dec­la­ra­tion that his uni­ver­sally re­spected client “is guilty of rape and ought to be re­moved” from the se­nate and “is not fit to hold any high of­fice within the govern­ment ad­min­is­tra­tion.”

So far re­lated apolo­gies have also been de­manded of at least three in­di­vid­u­als as­so­ci­ated with dif­fer­ent me­dia houses, in­clud­ing the pres­i­dent of the lo­cal me­dia as­so­ci­a­tion. Mean­while the prime min­is­ter, at whom the of­fend­ing UWP state­ment was di­rected, has ut­tered not a word, not a word, not a word.

As for the press com­mu­nity, the con­sen­sus at this time is that free speech is once again un­der at­tack by politi­cians notorious for their in­tol­er­ance of “me­dia ter­ror­ists.”

Ti­mothy Poleon: The long-time news pre­sen­ter and show host is once again mak­ing news lo­cally and on the In­ter­net. He re­cently re­signed his po­si­tion at Choice News.

Clin­ton Reynolds: The Me­dia As­so­ci­a­tion prez and MBC pre­sen­ter is cur­rently in the eye of a le­gal hur­ri­cane brought about by his re­cent read­ing of a news item.

Nancy Charles: Her pub­lished re­ac­tion to a state­ment by the prime min­is­ter on “se­rial rapists in our midst” has gen­er­ated de­mands for apolo­gies from one law firm and a spate of re­lated ar­ti­cles on­line!

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