For many years the stringency of the libel laws in Guyana has been the subject of debate. The victims of libel actions have always complained that the inflexibility of the libel laws reduce their capacity to expose wrongdoing of public figures who have duties to the citizens. Our situation was always contrasted with that of the United States where it appeared that politicians could be lawfully criticized with a defamatory vehemence which was impossible in Guyana. The PPP, other opposition forces and sections of the press were victims of libel actions and complained bitterly when in opposition. But the PPP/C government did not follow up the PPP’s criticisms by reforming the law after it came to office. Prime Minister Bruce Golding of Jamaica initiated a study of the issue as promised when he was in opposition.
The source of the problem has been the application of the doctrine of malice which is an essential element in defamation. Malice exists where the maker of the statement makes a false statement knowing it to be false or with reckless indifference to its truth. The common law which we follow provides that where the impugned statement is proved to be false, malice is implied and does not have to be specifically proved. In the United States, following the case of the New York Times v Sullivan, the law was settled to mean that a defendant suing for libel had to prove the statement was false and uttered maliciously. But if the defendant honestly believed in its truth, he/she would not be liable.
The US’s position had a progressive genesis. The press could not report fully on the civil rights’ struggle in the South in the 1960s and 1970s because the newspapers were faced with innumerable libel suits restricting their capacity to do so, based on the law as we know it in Guyana. New York Times v Sullivan was the response of the US Supreme Court which unfettered the press to expose discrimination and oppression in the US South.
English courts retained the common law formula. But with the growing demand for greater transparency and accountability of public officials, the media became increasingly invasive and intensified scrutiny of public officials. English courts were slowly forced to recognize the right of the media to more rigorously examine the actions of public figures although there was no substantive developments in the law.
In the meantime the courts of Commonwealth countries began to follow the lead of the United States in allowing the press to criticize public figures and to be relieved from liability for libel if it honestly believed the truth of what it printed, even if it turned out to be false.
Albert Reynolds was the Taoiseach (Prime Minister) of Ireland. He resigned in 1994 after a political crisis. He was accused in a Sunday Times article a few days after of dishonestly misleading his cabinet colleagues and his foreign minister. The statement was false and defamatory but the newspaper honestly believed it to be true. Standard defences of justification and qualified privilege were raised. For the defence of justification to succeed the statement must be proved to be true. For that of qualified privilege to succeed, the maker of the statement must have an honest belief in its truth and the occasion must be privileged. They failed and the court found for Reynolds but awarded him only a penny in damages.
Reynolds appealed and the Sunday Times cross appealed. The Court of Appeal found for Reynolds and ordered a retrial. The Sunday Times appealed to the House of Lords which ruled in 1999. It was held that qualified privilege applied not only to the occasion but to ‘the value of the publication to the public.’
This was a major development in the law of libel and of the ability of the media to comment on the statements and actions of public officials. Qualified privilege arose in the past by statutory provisions or, at common law, mainly in relation to communication of a private nature. Complaints to the police or by employee to employer or vice versa come to mind. The expansion of the doctrine to include ‘the value of the occasion to the public’ or ‘statements fairly warranted by the occasion’ has expanded protection for false statements which involves the public’s right to know, providing that professional standards of journalism are observed in the preparation of the publication. This did not go as far as New York Times v Sullivan the adoption of which Miles Fitzpatrick suggested in the libel case of Hoyte v Catholic Standard case in the Court of Appeal in the late 1980s. The Court of Appeal declined. But the Reynolds Case has gone a far way in allowing much greater scrutiny of the actions of public officials without the excesses which New York Times v Sullivan has generated in the United States.
Canada was the only major Commonwealth country whose legal developments we follow with interest and whose cases we cite in our courts, which did not yet modernize its approach to libel in relation to public figures. Recent developments, however, which were reported in our press and renewed my interest in this matter, have placed Canada in the same position as England.
Immediately after the terrorist attack in the US on 9-11, Cusson, an Ontario police Constable, travelled to New York without permission to assist the efforts at ground zero. A newspaper report said that he had misrepresented himself as trained in K-9 operations and had in fact interfered with the rescue operation. The defendants’ claim of qualified privilege was rejected. Some of their allegations were proved to be false and Cusson was awarded damages. The Court of Appeal upheld the decision but established the defence of ‘responsible communication on matters of public interest’ in Ontario law. This was later confirmed by the Supreme Court which specifically declared that it followed the Reynolds Case.
What has changed is the common law. Guyana follows the common law. It has not been obliged to do so after 1970. But with the law of the United States having been changed since 1964, which has since been followed in India, Australia, New Zealand, South Africa, England and now Canada, it is certain that our courts will now be persuaded in an appropriate case to advance our legal position in line with other countries. There would thereafter be no reason for complaint.