All Along The Writing Has Been On The Wall

For three years it hung like an albatross around the necks of the people, and especially the journalists. The infamous Section 361 embedded in St. Lucia’s criminal code provided for a jail term “not exceeding two years” for anyone, including journalists, found guilty of spreading information “that he or she knows is false and causes or is likely to cause injury to a public interest.”

When the bill was first brought to the Parliament in 2003, the leader of government business Mario Michel told legislators the measure was not intended to deal with “innocent or even negligent misstatements.”

“This is about deliberately spreading a falsehood, and it is not about criticizing some public figure, but injuring the interest of the public,” Michel had said.

“Anyone, Mr. Speaker, who believes that he has a right to be protected by the law from prosecution for deliberately publishing false information which injures a public interest ought to have his head examined,” he added.

Critics of the legislation saw it as a way to suppress any criticism of the Kenny Anthony administration, which had been under increasing pressure over its handling of various development projects, particularly in the vital tourism and construction industries.

Both regional and local media organizations were unhappy with Section 361, with the umbrella Association of Caribbean Media Workers arguing that it would stifle free speech in the country and provide an excuse for other Caribbean governments to follow suit.

“For this, we were vilified, even by some of our colleagues, and categorized as being needlessly recalcitrant,” said former ACM president Wesley Gibbings, noting that repealing the legislation is “a vindication of what we had said three years ago.”

“I expect no apologies for the attacks made against me personally, but the withdrawal of these dangerous measures is a sufficient reward to me as a journalist and a believer in free speech,” he said.

Last week, St. Lucia’s parliament repealed Section 361, with Prime Minister Anthony telling legislators that it had proved too difficult for his administration to successfully prosecute anyone.

“Even those who have championed the movement of Section 361 have now come to accept that it would be next to impossible, in any event, to obtain a successful prosecution under Section 361. They all accept that the requirements for obtaining a successful conviction are rather onerous,” he said.

“The prosecution has responsibility to convince the court that there is a willful publication of the statement. They must prove that the publisher of such a statement actually knows that the publication is false and it will cause injury or mischief to a public interest,” said Anthony, a former law lecturer at the University of the West Indies. “So, the burden has always been extraordinary.”

The government’s decision to repeal the measure comes as Kenny Anthony’s St. Lucia Labour Party prepares to seek reelection in December, and now has within its ranks former prime minister and opposition leader Vaughan Lewis, who was one of the law’s harshest critics.

“We have always considered ourselves a government that listens, a government not infallible, a government always ready to correct itself in the best interest of the people it was twice elected to serve,” Anthony told parliament.

Newspaper publisher and talk-show host Rick Wayne said repealing the legislation provides an opportunity for citizens to voice their opinions.      

“I am sure the government had a long time to think of the criticisms against the law and it’s a credit to them that they have gone some way to restoring my faith where press freedom is concerned,” he said.

But prominent St. Lucian journalist and editor of the Mirror, Guy Ellis, sees other reasoning behind the move.

“I refuse to believe that our prime minister is so steeped in the politics of convenience that he would repeal a law just because a newcomer to his party had objected to it. Dr. Lewis was an early protestor of Section 361 while leading the United Workers Party and yet his position, like that of the media, fell on deaf ears,” he wrote in his newspaper column.

Ellis believes that the recent judgment by the London-based Privy Council, which ruled “for the very first time” that journalists had the right to publish allegations about public figures so long as they were responsible and what they reported was “in the public interest,” had a bearing on the St. Lucia government to repeal Section 361.

He said that the laws of defamation in England, widely used in the English-speaking Caribbean, have been so heavily stacked against the media that journalists and newspapers have been forced to drastically censor themselves for fear of being hauled before the courts.

The Privy Council, in a unanimous judgment on October 11, ruled that even if the words complained of were not true, they cannot be held to be defamatory if reported “in the public interest,” and provided that the journalist or newspaper acted fairly and responsibly.

In the case under discussion, the Wall Street Journal (Europe) was not able to prove its claim in a February 2002 article that a Saudi businessman’s bank accounts had been monitored by Saudi authorities at the request of the United States as part of its “war on terror.”

The Privy Council ruling also indicated that even if a journalist or writer cannot prove his facts, he should not be made to pay libel damages if he published responsibly.

“This is what makes the ruling so important,” Ellis wrote. “It is now almost enshrined in our culture that a public figure can engage in the worst type of behavior and still insist on maintaining that he has a character and an integrity to protect when the media calls on him to account.”

“That ruling has changed the playing field, quite dramatically too, and in favor of the media,” he said, adding: “Over the years, public figures have reveled in the fact that journalists would experience great difficulty in proving before the courts the accuracy of their allegations no matter how much they are “in the public interest.”

Ellis said that Anthony gave no indication he was aware of the Privy Council’s landmark decision, “although I doubt very much, constitutional lawyer that he is, he would be unaware of it.”

But Philip Pierre, who has acted as prime minister on a number of occasions, insists the decision to repeal the legislation showed his is a government that “understands in the cut and thrust of democracy you must give and take.”

“It (Section 361) was misinterpreted, so we just removed it. That’s very simple. I think the government should be applauded for taking that step, because this government understands,” said Pierre.

The preceding by Peter Richards was first published in November 2006 under a different headline.