“Sticks and stones may break my bones but words will never hurt me”
The above saying suggests that you cannot be hurt by the bad things that others say or write about you. While it may be true that words cannot hurt you in the physical sense, words can certainly break your reputation; especially in small nations such as ours and with the ever greater penetration of traditional and social media.
Defamation may be defined as a statement made by one person to another which tends to bring the reputation of a third person into disrepute, or to expose that person to personal embarrassment in the minds of ordinary, well-thinking members of the society.
The legal framework for defamation in Jamaica used to consist of the Libel and Slander Act, 1851 and the Defamation Act, 1961. However, a committee chaired by Justice Hugh Small was tasked to review the law of defamation and to make recommendations for “changes that will ensure transparency and accountability in the context of a new framework of good governance”. The committee published a report entitled the Review of Jamaica’s Defamation Laws in 2008 which led to the passing of a new Defamation Act in late 2013. This new Defamation Act along with the common law, and of course the supreme law of Jamaica—the Jamaican Constitution—now form the framework for the protection of reputations in Jamaica.
While not all of the committee’s recommendations were made into law the Act brings our laws closer in line with other common law jurisdictions where the trend has been to liberalize defamation law. Some of the changes include;
- To abolish the distinction between libel and slander, establishing a single cause of action known as defamation.
- To abolish the common law offence of criminal libel.
- To introduce non-litigious methods of resolving disputes, including a procedure for making amends or an apology to the aggrieved person.
- To reduce the limitation period from six years to two years from the publication of the defamatory statement, while providing for extensions of that period by the court when the interests of justice so require up to a period of four years from the date of the publication.
- To make available a defence of “innocent dissemination” to a defendant whose capacity was merely a distributor, or an employee or agent of a secondary publisher, and when the defendant neither knew, nor ought to have known, that the statement was defamatory and the said lack of knowledge was not due to negligence.
- To limit the role of the jury to the finding of fact as to whether the defamatory statement was published and to whether the defence has been proven; but to leave it to the judge alone to assess the amount of compensation that may be awarded.
- To introduce new remedies such as a declaratory order in which the Court may pronounce that the defendant is liable to the claimant in defamation, and a correction order in which the Court will order that the defendant publish a correction of the matter that is the subject of the proceedings.
The elimination of criminal libel offences, the provision for an innocent dissemination or “wire service” defence, and entrusting the amount to be awarded in damages to a Judge rather than a Jury have been heralded as positive changes and have no doubt liberalized the defamation laws in Jamaica. However, with the new shorter limitation on actions of two years persons who believe they have been defamed must take action much more quickly to protect their reputation.