Editorial | Free press, democracy won

Even though significant gaps remain in the justice system, the Jamaican courts are emerging as an important bulwark against actions – whether by private citizens or state officials – that would weaken constitutionally guaranteed rights and freedoms, or limit scrutiny of matters that the public has a legitimate right to know.

For instance, there have been a slew of recent cases in which appeal judges have upheld the right of accused people to fair trials within a reasonable time, rather than when the still slow and creaky wheels of the judicial process got around to their matters.

Then last week the Court of Appeal, in a case involving two local government councillors in St James and the domestic free-to-air television stations, TVJ and CVM, asserted the ability of the press to report public interest matters that are formally disclosed by credible official sources, without necessarily having first to prove the truth of the declarations.

This right has long existed under the so-called ‘Reynolds Privileges’, as part of the test of responsible journalism in defamation cases. But a sense that, at least in Jamaica in recent times, that it was being chipped away raised concerns about a potential chilling effect on how journalists report on critical issues, even when these are contained in official documents and investigative reports.

GOOD FOR DEMOCRACY

In that regard, last week’s ruling is not only a win for a free and independent press. It is good for democracy.

In 2012 the police searched the homes of Michael Troupe, who was then the deputy chairman of the St James Parish Council, and another People’s National Party member of the council, Sylvan Reid. The police said the raids were part of their investigation of lottery scamming in the parish. Both men were detained for nearly a week.

At Mr Troupe’s home the police discovered an illegal gun and ammunition in a bathroom, as well as large sums of money in a bedroom occupied by one of Mr Troupe’s sons, Jevaughn. Both were charged for firearm offences. Another of his sons, Dwight, was charged with unlawful possession of property.

At Mr Reid’s home the police seized laptop and desktop computers, mobile phones, motor vehicle documents and other documents which the police suggested with lottery scamming.

However, Jevaughn Troupe took responsibility for the illegal gun and ammunition and pleaded guilty to the offence. His father was discharged. The case against Mr Reid was dismissed at the start of the trial.

Subsequently, both Mr Troupe and Mr Reid sued then Superintendent Leon Clunis, who led the members of the police’s anti-lottery scamming task force, who conducted the raid, and the former police commissioner, Owen Ellington, for statements they made with respect to the raids and lottery scamming, which they argued were defamatory. Mr Troupe and Mr Reid also sued for false imprisonment and malicious prosecution.

Additionally, the councillors sued TVJ and CVM for their reporting on the raids and their arrests, especially their broadcast of remarks made by Superintendent Clunis, which said linked them, whether directly or indirectly, to corruption, fraud, extortion, money laundering, racketeering and other forms of criminality. The two councillors prevailed in their defamation action in the lower court and were awarded substantial damages. Mr Reid was won in the false imprisonment and malicious prosecution matter.

Unlike TVJ (which is now part of the RJRGLEANER Group) and the CVM, neither the former police officers nor the state appealed.

OBLIGATED TO INVESTIGATE

In the Supreme Court Justice Audre Lindo held that despite the public interest value of the matter, the television stations and their reporters were obligated to investigate “to ascertain whether the statements made by the police and reported by them were, in fact, true”. And neither was any evidence presented by the broadcasters, the judge said, showing that they investigated whether [Messrs. Troupe and Reid] had committed offences related to lottery scamming”.

But writing the unanimous decision for the three-member appeal panel, the court’s president, Marva McDonald Bishop, indicated that Justice Lindo had misapplied the verification element of the Reynolds check list for responsible journalism, and the circumstances when it was necessary.

The point is, Reynolds oughtn’t to be a box-ticking exercise, robotically engaged.

Wrote Justice McDonald Bishop: “As it relates to the public interest, the learned judge, at several points in her judgment, accepted that the broadcasts concerned a matter of public interest … However, in her analysis, she did not identify whether the public’s interest was in knowing that the allegations had been made or the contents and truth of the allegations.

“In my view, given the contents of the broadcasts, it is evident that the public’s interest, at that stage, was in the fact that the police were making the allegations contained in the broadcasts, and not the truth of the allegations.”

Moreover, the appeal judges argued, the media houses hadn’t adopted the statements by the police as their own, but had reported them as a public interest matter.

There was also the matter of the source of the information, which removed the burden of verification, on which the court below held that TVJ and CVM fell short.

But McDonald Bishop said: “In this case, the source was the police (including its high command), which disclosed their operations, investigations, findings, and approach to operations concerning lottery scamming. The source also included a police high command press briefing featuring government ministers responsible for information and security. The source was, therefore, the legitimate agents of the State with responsibility for national security.”

The logic of the Court of Appeal, stands with good journalism.