EDITORIAL: Let’s talk about defamation, shall we?

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Recently, High Court Master Fidela Corbin-Lincoln handed down a ruling that has paved the way for Prime Minister Gaston Browne to sue Damani Tabor for defamation.  The spokesperson for the opposition United Progressive Party (UPP) will now have to defend himself in the High Court against the claim that he has defamed the prime minister as it relates to comments made about the prime minister’s wife’s charity.  It is going to be an interesting one.
Defamation is an interesting thing.  In this case, even the Master did not interpret the words uttered by Damani to mean what the prime minister and his legal team were inferring.  In her nine-page ruling she stated that while, she, a legal officer, does not find that the words complained or connotate any illegality or corruption, she had to bear in mind that that was not what she was asked to consider.  If that is confusing to you then you are not alone.  
This thing called defamation is an interesting legal concept in the Caribbean.  Prior to the most recent changes to the laws, defamation was a “fine and confine” law.  Meaning that you could see some time behind bars for defaming a person.  Luckily, the criminal element has been removed and it is now a civil action, which can be an extremely effective weapon against an opponent and media once you can get the case into court.
From our point of view, we are the “pig in the middle”, as publisher and broadcaster, the OBSERVER Media Group finds itself too often before the court to defend ourselves for what other people have said.  For full disclosure, we are part of this action as the Prime Minister has included us in the lawsuit as defendants. But we are not here to talk specifically about this matter but more about the oddities of defamation, in general.  We are simply using some of the Master’s comments as reference.
 Often, when our representatives are greeted in the High Court and asked what they are doing there, it is often related to defamation.  After a quick exchange, the response is invariably a case of confusion ending in, “but I don’t understand, if you didn’t say it why are they suing you?”  We can’t say that we entirely understand it ourselves and we are in absolute agreement that we should not be held liable for the words and thoughts of other people.  
We take every precaution to protect ourselves from any type of defamation but it is particularly hard in the case of live radio.  The situation in which we are placed is near impossible to come out a winner. In a few short seconds, our operator or host must analyze what a guest has said and make a legal determination as to whether it may be considered defamatory.  All while answering phones, vetting messages, listening and preparing questions, etc. Court cases last months and even years to make that determination but we are held to the impossible standard of seconds.  Even in this case, the Master had time to determine the meaning and intent of the words over an extended period of time.
After giving careful deliberation, she wrote, “The entire tenor or thrust of the words appears to me, to relate to questioning how funds transferred from the treasury to a foundation controlled by the claimant’s wife were spent rather than the legality of the transfer of funds to the foundation.”  Adding that the court was not asked to determine what the words mean but rather what they could possibly convey to the ordinary person who would read into the words “an implication” more freely than a lawyer and may indulge in a certain amount of loose thinking.  She then elaborated that, “It is possible that some reasonable members of society may infer that the stated transfer of the funds from the treasury to a charity controlled by the claimant’s wife was irregular.”
Stop and think of it for a while.  This is an excerpt from an nine-page ruling but how long did it take for you to read and understand the previous paragraph?  Under normal conditions with relaxed reading and comprehension it would have taken you roughly twice as long as our delayed buffered allows our technician or host to react in a live situation.   
And while many will say “you have nothing to worry about if you have done nothing wrong,” there are a couple other things that must be considered.   The first is, lawyers cost money and defending ourselves in court is not a cheap exercise.  Secondly, what is the determination of wrong?  If we are part of a case where the defendant is considered wrong then we will also be considered wrong for hosting the defendant.  As we stated before, it can be a very effective weapon against the media and the politicians know that.
If our organization must become overly cautious about what everyone says, especially prominent members of the political society, then we will become button happy.  We would dump anything and everything that could remotely be considered defamation.  Anything that could possibly convey to the ordinary person who would read into the words “an implication.”  What would our programming sound like?  And if we used a marker, our paper would look like a redacted FBI memo.
Add to that is the perception that we operate under the same standards as American and British media, where everyone is allowed to say anything, and we come off looking like political censors when we cut people off or refrain from publishing comments.  In the end, it is a no-win situation.   
 We invite you to visit www.antiguaobserver.com and give us your feedback on our opinions.
 

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