The restraints of free speech

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The topic of free speech is an interesting one.  When a person wants their voice heard, then any impediment to that desire is considered an infringement to their rights.  On the other side, those who prefer that negative comments, directed at them, never see the light of day, like to hold up the banner of responsible speech in an effort to deflect criticism and mitigate any damage.  Generally, the side on which people choose to stand is directly related to what they want to achieve.  This is especially true in the world of politics.
You will typically hear opposition parties complain about infringements to their right to free speech and ruling parties shrieking that they are being defamed.  Of course, this is a generality and subject to change depending on the political wind direction, which can be best described as an oscillating fan.
In the middle of all of this is the media.  Except for editorials, where we express an opinion, we report news.  We report what people say and many times that gets us in trouble.  It is a difficult tightrope to walk, especially when we are simply reporting statements made in public by persons who are in no way affiliated with our organisation.   It makes no difference that we factually reported what was said; our defamation laws hold us jointly liable for what was said, if what was said is deemed libelous.  It is a difficult concept to grasp because the law essentially makes us responsible for an all-seeing knowledge and a difficult type of censorship.
We say difficult because much of media is immediate.  That means that we must determine what may be truthful in an instant.  As supporters of free speech, the burden of this type of censorship for media practitioners is immense and unfair.  But it used to be worse.  Under the old law, defamation had a criminal component; meaning that you could be fined and confined if you disseminated any type of defamation.   Luckily, the current administration took steps to decriminalise defamation so that the media could sleep a little more soundly at night, not having to worry if they would be sent to jail for reporting something that someone else said.
Any responsible, independent media supports responsible journalism.  We rely on our reputation and there is nothing to be gained by reporting “alternative facts” or seeking to defame someone.   We are committed to honesty and transparency and it is for these reasons, censorship does not come easily – and it makes no difference if we are forced to do it, or do it voluntarily. 
The Internet and more so, social media have democratised media and as such, have given more people a voice.  The anonymity that these platforms provide has a good side and a bad side.  The good thing about anonymity is people feel free to say things and reveal facts without the fear of repercussions.  The bad thing is exactly that.  Without repercussions, people feel free to say whatever they want, no matter how truthful or how hurtful their speech may be. 
The ability to police irresponsible speech, including lies, is extremely difficult and will become more difficult over time.  For our part, we rely on a good deal of common sense and increasingly on lawyers; which come at a price.   It is, however, a price that we must pay if we are to stay out of the courts and out of harm’s way.
We raise the issue because there is increasing pressure and criticism from online posters that are under the impression that we are censoring their comments.  Nothing is further from the truth.  In fact, we wish that we could allow everyone to have their say (within the boundaries of respectful, good taste, of course).  However, that is a naive nirvana that will not materialise in our lifetime. 
And because the Internet is global, many feel as though we operate under the same rules as the Americans, but that is not so.  Defamation is something completely different in the United States and US media houses do not have the same burden as obtains in Antigua & Barbuda. 
For a better understanding of the difference, we turn to the Digital Medial Law Project (dmlp.org), which states: “Unlike other countries that hold a publisher liable for every defamatory statement regardless of what steps he or she took prior to publication, under US law a plaintiff must prove that the defendant was at fault when she published the defamatory statement. In other words, the plaintiff must prove that the publisher failed to do something she was required to do. Depending on the circumstances, the plaintiff will either need to prove that the defendant acted negligently, if the plaintiff is a private figure, or with actual malice, if the plaintiff is a public figure or official.”
To give further clarity to the issue, DMLP states, “Celebrities, politicians, high-ranking or powerful government officials, and others with power in society are generally considered public figures/officials and are required to prove actual malice. Unlike these well-known and powerful individuals, your shy neighbour is likely to be a private figure who is only required to prove negligence if you publish something defamatory about her.”
With that, we hope that you have a better understanding of the world in which we live.  While you may think that we are restraining your free speech, we are merely living within the guidelines of the law.  Of course, self-preservation is also our goal so we shall always err on the side of caution.
So the next time you feel aggrieved because your post or letter was not published, ask yourself the same first question we do, “would you like it if someone said the same thing about you?”  If you answer “yes” then go ahead and post.  If you have to think about it or the answer is “no” then it is probably defamatory in nature and you should keep it to yourself.
We invite you to visit www.antiguaobserver.com and give us your feedback on our opinions.
 

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