‘The task of the media is to impart information and ideas on political issues and on other matters of general interest . . .’ European Court of Human Rights
I was recently counseled that I ought to update my notions on free speech and the law. Still I remain faithful to the Privy Council’s 1990 decision in Tim Hector v Attorney-General of Antigua & Barbuda. A journalist, political activist and close friend of George Odlum (alas both dearly departed) Hector was charged with publishing false news likely to “undermine public confidence in the conduct of public affairs,” contrary to public order legislation in Antigua-Barbuda. The false news offence criminalized the making of any statement “likely to cause fear or alarm in or to the public, or to disturb the public peace, or to undermine public confidence in the conduct of public affairs.” The Antigua courts declared Tim Hector not guilty; the government turned to the Privy Council, again without success.
Reference the above, Lord Bridge of Harwich famously opined: “In a free and democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.
“At the same time it is no less obvious that the very purpose of criticism leveled at those who have the conduct of public affairs by their political opponents is to undermine public confidence in their stewardship and to persuade the electorate that the opponents would make a better job of it than those presently holding office.
“Our system of government demands, as do the systems of the United States of America and the United Kingdom, constant vigilance over exercise of governmental power by the press and the media among others. It is essential for a good government.”
Additionally: “It would on any view be a grave impediment to the freedoms of the press if those who print, or a fortiori those who distribute, matter reflecting critically on the conduct of public authorities could only do so with impunity if they could first verify the accuracy of all statements of fact on which criticism is based.”
Then there is Dareskizb Ltd v Armenia, Application No. 61737/08—a submission to the European Court of Human Rights on behalf of the Media Legal Defense Initiative, 15 March 2012:
“The dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to unjustified attacks or criticisms.”
Also: “States have at their disposal a wide variety of other effective means to protect public order without resorting to banning of false statements. Finally, while the publication of false news may be viewed as potentially detrimental to the public good, its restriction involves far greater risks to the public good because it undermines democracy itself.
“This is particularly the case in new democracies where the state institutions necessary to protect democracy, in particular the judicial system, as well as the necessary elements of civil society, and in particular a robust and independent media, remain fragile. It is essential, particularly in that environment, to ensure that any executive control of information that can be released to the public is to the greatest extent possible prohibited.”
In the cited case reference was made to an Inter-American Court of Human Rights advisory opinion: “A system that controls the right of expression in the name of a supposed guarantee of the correctness and truthfulness of the information that society receives can be the source of great abuse and, ultimately, violates the right of information that this same society has.”
The court concluded: “The right to freedom of expression extends to protect the dissemination of all information and opinions, including false information. Falsity is difficult to define and thus laws which ban false news are both inherently unjust and open to abuse by state authorities, which already have sufficient power to enable them to refute statements. Such laws also have a serious chilling effect on the work of reporters. It is also important to remember that any prohibition on the reporting of false news affects not only material which is actually banned but material which is not reported for fear of it being banned or of criminal penalty. That is why false news laws have been rejected by all true democracies . . . The relevant question for the purposes of restricting information in order to protect national security is not truth or falsity; it is whether the restriction is strictly, and the minimum necessary, to achieve that purpose, something that must be established to a high level of proof by the relevant authorities.”
Aspirants as well as holders of public office are forever accountable to the people—some of whom may be political adversaries. By all Saint Lucia’s prime minister himself has said and written on the subject of public accountability, it would seem he acknowledges public servants have next to no private lives; that they remain accountable for their actions in the enclosed dark as well as in the open sunshine. Indeed, not so long ago, in the afterglow of his last election victory, the prime minister reminded the electorate always to investigate and question the backgrounds of wannabe government ministers and seekers of other public office. Alas, judging by recent events it would seem a great divide separates what the prime minister preaches from what he practices or tacitly endorses.
Last year the government’s justice minister threatened the long-time host of Newsspin with a slander suit. Unforgettably, the public servant issued his threat over state-funded Radio Saint Lucia, presumably so that home-based journalists and others throughout the region might receive his message. And all because the news presenter had read on-air an item published online that he considered of national interest. Poleon also was required to apologize several times to two other government-connected individuals who claimed they had been unfairly referenced in the publication.
Despite his own published writings when he was a UWI constitutional law lecturer—and an apparent free-speech advocate—this country’s prime minister has served defamation suits on two former heads of government and a current opposition MP, among others who had criticized him publicly on matters relating to governance.
Evidently he remains unimpressed by Lingens v Austria (a 1986 European Court of Human Rights case that placed restrictions on libel laws because of the freedom of expression provisions of Article 10 of the European Convention on Human Rights.) Peter Michael Lingens was fined for publishing in a Vienna magazine comments about the behavior of the Austrian Chancellor, such as “basest opportunism,” “immoral” and “undignified.” Under the Austrian Criminal Code the defense was proof of the truth of these statements. Lingens could not prove the truth of these value judgments.
According to the court: “The limits of acceptable criticism are . . . wider as regards a politician than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance.”
The court further noted that “a politician must display a greater degree of tolerance with regard to criticism, especially when he himself makes public statements that are susceptible to criticism.”
Of course nothing stated above is intended to suggest politicians have no rights when it comes to their good name. In Silken v Beaverbrook Newspapers Ltd (1958) Diplock, summing up to the jury, directed them as follows: “Let us look a little more closely at the way in which the law balances the rights of the public man, on the one hand, and the rights of the public, on the other, in matters of free speech. In the first place every man, whether he is in public life or not, is entitled not to have lies told about him; and by that is meant that one is entitled not to make statements of fact about a person which are untrue and which redound to his discredit; that is to say, tend to lower him in the estimation of right thinking men.”
The judge also said: “People are entitled to hold and to express freely on matters of public interest strong views, views which some of you, or indeed all of you, may think are exaggerated, obstinate or prejudiced, provided—and this is the important thing—that they are views which they honestly hold. The basis of our public life is that the crank, the enthusiast, may say what he honestly thinks just as much as the reasonable man or woman who sits on a jury, and it would be a sad day for freedom of speech in this country if a jury were to apply the test of whether it agrees with the comment instead of applying the true test: was this an opinion, however exaggerated, obstinate or prejudiced, which was honestly held by the writer?”
The ongoing government versus the media brouhaha has its roots in a response to platform comments by the prime minister and leader of the Saint Lucia Labour Party in relation to rampant rape incidents, one involving a 90-year-old female (so far no arrests) and the presence among the populace of “serial rapists.”
The published response by a front-line member of the opposition United Workers Party included lines that have been interpreted by one law firm as barely disguised defamatory references to a government minister and a senator who is also “a well-respected and renowned insurance broker; well-respected radio and TV personality; well respected for his opinions on all matters of public interest; well respected for telling it like it is as his views have always been thoroughly researched and sound.”
He was also “press secretary for the prime minister during the period May 1997 to July 1998,” positions that he held “due to his strength of character and his good reputation.” At any rate, by the measure of his lawyer who has interpreted the UWP statement as a public declaration that his universally respected client “is guilty of rape and ought to be removed” from the senate and “is not fit to hold any high office within the government administration.”
So far related apologies have also been demanded of at least three individuals associated with different media houses, including the president of the local media association. Meanwhile the prime minister, at whom the offending UWP statement was directed, has uttered not a word, not a word, not a word.
As for the press community, the consensus at this time is that free speech is once again under attack by politicians notorious for their intolerance of “media terrorists.”
