Truth-telling and Harm Minimisation–A Legal Perspective

In this particular sense, harm caused by the dissemination of journalistic truth is fundamentally differentiated from harm caused by the publication or broadcasting of defamatory statements, the latter involving a breach of journalists’ duty precisely to discover and share truth.

A defamatory statement can be described as one which tends to lower a person in the estimation of right-thinking members of society generally; to expose a person to hatred, contempt or ridicule; to cause other persons to shun or avoid him; to discredit a person in his trade profession or calling; or to damage a person’s financial credit. (Kodilinye, 2003)

A defamatory statement is presumed to be untrue. The Libel and Defamation Act of Trinidad and Tobago (1979) states: “In any action for defamation or for libel, the defendant may plead the truth of the matters charged by way of justification…and the plea shall be a sufficient answer in law to any such action.” In essence, if the defendant can prove that his statement was true of the plaintiff, he will have a complete defence since the plaintiff cannot be entitled to protect a reputation he does not really possess.

Apart from pleading the truth, a second defence to an action for libel or slander is that the statement complained of was fair comment on a matter of public interest. For this defence, the comment or opinion made must represent the genuinely held opinion of the defendant, notwithstanding that his opinion may have been biased, prejudiced, exaggerated or irrational. Again, the comment must be based on true facts. The essential question is whether there is a sufficient substratum of fact indicated in the words, and whether the facts upon which the comment is made are indicated with sufficient clarity to justify comment being made.

The “freedom of the press” to comment on current affairs is a fundamental right enshrined in the Trinidad and Tobago constitution. Section 13 of the Libel and Defamation Act states: “A fair and accurate report in any newspaper of proceedings publicly heard before any Court exercising judicial authority shall, if published contemporaneously with the proceedings, be privileged, but nothing in this section shall authorise the publication of blasphemous or indecent matter.”

Section 17 of the same Act states: “A fair and accurate report published in any newspaper of the proceedings of a public meeting, or (except where neither the public nor any newspaper reporter is admitted) of any meeting of a council, board, or local authority formed or constituted under the provisions of any written law or of any committee appointed by any of the above-mentioned bodies, and the publication at the request of any Government office or department of any notice or report issued by them for the information of the public shall be privileged, unless it is proved that the report or publication was published or made maliciously.”

It is clear that freedom of the press does not confer to journalists a licence to make unfounded attacks on a person’s integrity, motives or moral character. Defamation is redressable primarily by monetary damages, the other important remedy being an injunction, which is a court order forbidding the defendant from doing or continuing to do a wrongful act. For the purposes of the law of libel, a hearsay statement has the same effect as a direct statement. Where the defendant rebroadcasts or republishes a defamatory statement originally made elsewhere, he must prove that the statement was true in substance, not merely that it was made or that he genuinely believed it to be true.

Finally, the question of whether the defendant intended his or her words to be understood in a defamatory sense may be material to the assessment of damages but is immaterial in determining the question of liability. In this light, defamation can be unintentional, although, in Trinidad and Tobago, where words are published innocently (without malice), a defendant may escape liability for damages if he is willing to publish a reasonable correction and apology.

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