Libel judgments bring back memories of silencing the media

Mar 17, 2021 Letters

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DEAR EDITOR,

Kaieteur News – I read of a flurry of judicial rulings and filed lawsuits against the media. That is not good news for freedom of the press. Is the intent to silence the media and or prevent it from exposing unacceptable behaviour? Guyanese in the diaspora, and even those in Guyana I spoke with are not pleased with some of the judgments.
Critics of court rulings are of the view that the media must have freedom to expose wrong doings and to hold officials accountable in order to promote good governance. They say the rulings bring back memories of lawsuits against the free media, including against the Catholic Standard Newsletter and Open Word, filed between 1968 and 1992 to silence the media. The dictators, Burnham, Hoyte, and their acolytes, pursued measures to silence the media. It is noteworthy that during the term of Jagan, no lawsuit was filed against the media. Dr. Jagan was not opposed to scrutiny. And I do not think the PPP administrations are opposed to holding the government or officials accountable. Off course, the media does not have an uncensored licence to attack people or entities or publish untruths with malicious intent. The media must also be held accountable; it cannot libel people or knowingly publish false information.
Officials or politicians must demonstrate thick skin and be willing to accept a fair amount of critique of their performance even if a reporter or commentator errs in a story or commentary. An apology should suffice. The American founding fathers had long established that ‘bad press’ is better than no press. American judges have historically subscribed to that principle. Guyanese Americans subscribe to the principle of unfettered freedom of the press. There are more Guyanese and their descendants living in America than in Guyana. No Guyanese American politician or no Guyanese in the diaspora is known to sue an American media or a foreign media. They respect the right to the press to inquire and publish. The chance of winning a libel or slander in America is very slim, virtually nil.
Judgments against the media rendered in Guyana would in all likelihood be thrown out of American courts. I am not a lawyer but I studied American constitutional law, a mandatory requirement for American trained political scientists and for individuals like me who are licenced as school district administrators. It required studying dozens of Supreme Court cases, including so many cases on freedom of press. I also taught American constitutional law. And I worked at the Bronx Supreme Court and was present at several libel and tort hearings. American courts have a very strict test on libel or slander defamation – the so called ‘smell test’. A malicious intent to slander or to libel must be demonstrated. The libel must pass ‘the smell’ on (deliberate) negligence. It must show that the media knowingly or deliberately publish or utter false information. In other words, the media knew the information to be published was utterly false and proceeded to publish it—reckless disregard for truth. Libel torts find it very difficult to cross the smell or negligence test. Inquiring about fraud is not libel. American Supreme Court reversed several successful libel or slander judgments and or even the amount awarded by lower courts and or instructed lower court to reduce the amount granted in judgments. A one dollar judgment is not impossible even when a libel wins. About 25 years ago, the Privy Council reduced the amount of a slander judgment won by media tycoon Ken Gordon (Trinidad Express) against Basdeo Panday as he did not intend to libel but simply to make a political statement. Would the CCJ in any appeal to slander or libel judgments subscribe to that principle or the American smell test?
Respectable lawyers in Guyana, in private conversations, told me that some are corrupt in the legal system. Some of the names revealed to me are very shocking. I have had enormous respect for some of them.
Can you imagine two Appeal Court judges ruled that 33 is not a majority of 65? Thank God there is a CCJ! Privy Council is also needed to embarrass some of these judges! Some are not fit to be judges; they would not even be considered as court clerks in America or the UK.
Politicians or public figures must look within their hearts whether filing lawsuits is the way to correct alleged misinformation against them. Winning a libel wouldn’t necessarily change the view of the public on mis-information in a news report. Wouldn’t it be better if public officials or politicians simply correct the mis-information rather than seek humongous judgments that bankrupt media, forcing them to close shop? Several times incorrect statements were made against me. I simply responded to them with my version of truths. And whenever attention was brought to me that I erred in an article, I penned an apology and correct it. Media must permit a right to reply, a basic journalistic principle, and apologise when proven to have erred in reporting or commenting on a newsworthy event. Where the state media was used between 2016 and 2020 to deliberately libel people, it must be held accountable. The individuals who were responsible for the libel, not just the media house, must be held to account.

Yours truly,
Vishnu Bisram

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