Above: Justice Kathy Ann Waterman-Latchoo

On March 05, 2022, Justice Kathy Ann Waterman-Latchoo gave a presentation to working journalists via Zoom. Members will have access to a recording of the session on the understanding that it will be available solely for personal review and guidance, not to be circulated or posted, nor can it be cited and referenced. Availability will be announced soon via MATT’s WhatsApp group.

These notes compiled by Justice Latchoo are offered to all working journalists as a summary of key points on the same terms as cited for the video recording.

DEFAMATION

A helpful description is found in a 1970 British Columbia Court of Appeal decision Murphy v LaMarsh (1970) 73WWR, 114…

“(Defamation is where) a shameful action is attributed to a man (he stole my purse), a shameful character (he is dishonest), a shameful course of action (he lives on the avails of prostitution), or a shameful condition (smallpox). Such words are considered defamatory because they tend to bring the man named into hatred, contempt or ridicule. The more modern definition of defamation is words tending to lower the plaintiff in the estimation of right-thinking members of society generally.’’

The key points of defamation law in the Commonwealth Caribbean are…

  • It does not matter if the defamation was intentional or the result of negligence.
  • The remarks must be harmful.
  • The words must refer to the claimant
  • The remarks must be conveyed to a third person.

DEFENCES

The main defences used by media defendants are…

  • Truth or Justification: an absolute defence but you must have reasonable evidence to support truth of allegations.
  • Fair comment on a matter of public interest: fair does not mean balanced. Writer can be obnoxious but must hold an opinion, without malice, that he or she can back up by provable fact. Example: she is a disgrace to her profession because she incorrectly registered non-nationals to vote and that is a proven fact because she admitted so during inquiry.
  • Unintentional defamation: two people with same name.
  • Privilege: parliamentary debates, court proceedings; lawful public meetings on matters of public interest; public meetings of councils; government notices; media conferences; right of reply; commissions of enquiry; Ombudsman’s reports; Reynolds “public interest’’ defence. NB: if allegations are repeated outside of Parliament or court, no privilege attaches. Affidavits and pleadings in court cases are not privileged until they are actually used or heard in court.
  • Innocent dissemination: libraries, booksellers, newspaper vendors, ISPs (generally).
  • Consent: subject of interview willingly gives information of wrongdoings for publication. Consent must relate to specific allegation.
  • Apology: timely apology will mitigate damages.
  • Limitation: claimant must bring suit within four years.

PRE-PUBLICATION CHECKLIST

  1. Are you saying precisely what you mean to say? Is the article clear and unambiguous in its meaning?
  2. Is it actual “fraud” or really “financial mismanagement”? Did he really “lie” or was he making an innocent mistake? Was it actual “corruption” or an “unusual payment” possibly involving “financial irregularities”?
  3. Can you prove what you have said is true? Are the sources of the information relied upon prepared to give evidence in support of the story?
  4. Have you safeguarded your notes? Are they coherent, with dates and time recorded? Do you have documents, ledgers, letters that support your allegations?
  5. Is the publication of legitimate public interest or concern?
  6. Have you interviewed the subject of the article? Have those likely to be defamed by the publication been given a reasonable opportunity to respond to each and every allegation in the item concerned? If so, has that person’s response been properly incorporated in the article?
  7. Has every effort been made to ensure that none of the sources of information relied upon for the purposes of the item are actuated by malice?
  8. Does the publication of the item breach any duty of confidentiality?
  9. Is there a hidden or inferential meaning? Example: the reverend was seen at 101 Lovers Lane (a well-known brothel).
  10. If no one is named, is someone still identifiable and therefore able to sue? Will a number of people know the claimant is the person referred to?
  11. Is the story perishable? Can it wait another day so you can verify details?
  12. Not sure of some statement, allegation or detail? If in doubt, leave it to hell out.

Copyright: Kathy Ann Waterman Latchoo (2022). Media Association of TT.