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Publish and be damned?
February 21, 2001
By Denis Solomon
FREEDOM of the press won't mean much in this country until the media become as enterprising as the courts are restrictive.
I have been wondering not only how a court could issue a gagging order against the Sunday Express to prevent it publishing an accurately documented story about Peter and Ian Gillette, but also why the Sunday Express agreed to give the Gillettes a chance to ask for the injunction rather than publishing right away.
The story, written by investigative reporter Camini Maharaj, gave details about financial transactions between First Citizens Bank and SouthernTech, a British Virgin Islands company owned by the Gillettes.
The Sunday Express asked the Gillettes for their comments on the story, and received in return a threat to sue if the story were published. The newspaper's lawyers agreed to allow the Gillettes to see the story before it was printed. The Gillettes' response was to ask the court for an injunction, which they obtained at 11 p.m. on 13 January, the night before the story was to appear. The Sunday Express lawyers had agreed to hold the story back while the injunction was being applied for. It was granted by Justice Rajendra Narine on 15 January.
An application for an injunction is heard ex parte, which means that the party against whom it is being asked for is not represented at the hearing.
The Sunday Express applied for discharge of the injunction, and on Monday of last week Justice Sebastien Ventour, in the Port of Spain Chamber Court, discharged it, thereby giving the newspaper the green light. The first instalment of the story appeared in the Daily Express the next day. It was continued in the following issue of the Sunday Express.
This may sound like a complete victory for freedom of the press. But to my mind it is far from that. First of all, the story was decidedly in the public interest, as it seemed to confirm allegations that had emerged as part of the FCB-Soodoo scandal in 1996. The sequence of events therefore calls into question the strength of the newspaper's desire for freedom, and reveals its willingness to heed the caution of its lawyers rather than go for broke with a well-researched story. Presumably the Gillettes had to be questioned by the reporter, but in my humble opinion, to let them see a copy of the story, or even to tell them that one was going to appear, was a big mistake.
Above all, though, the episode shows the repressive nature of our colonial defamation laws, which (like the British laws they are based on) run decidedly counter to the principle of freedom of expression. In this country, besides, the effect of the emphasis the law of tort puts on personal reputation is much greater than in England. British newspapers are often happy to be sued for libel, because they have the resources to fight the cases, and libel suits increase circulation. Here, despite the fact that awards are smaller, circulation is inelastic, and newspapers are terrified of being sued. As a result, a whole lot of perfectly accurate evidence of corruption among public officials is suppressed.
A court can grant an injunction to anyone who claims he is likely to suffer damage by the action of another. In the case of libel, this damage is to the person's reputation and/or income. The courts are said to be reluctant to grant such injunctions against a newspaper as long as the newspaper states its intention to justify its allegations in any eventual libel suit. But the application is heard ex parte, which means that the newspaper's opportunity to state that intention only comes when it applies for the injunction to be discharged. Also, the newspaper may be reluctant to defend a lawsuit because the cost of litigation can be high even if the case is won.
In the United States the situation is very different. The courts consistently uphold the First Amendment principle of freedom of speech over the sanctity of reputation. In particular, "prior restraint" (preventing a story from appearing) is anathema. The basis of modern US jurisprudence in the matter of prior restraint was a 1931 decision of the US Supreme Court in a case known as Near vs Minnesota. This decision stated that attempts by government to censor the media are presumed unconstitutional. In the intervening 70 years, State and Federal courts have repeatedly recognised that courts can only attempt to restrain dissemination of information if the information to be published presents a clear and present danger, or a serious and imminent threat to the administration of justice. Personal reputation doesn't come into it.
In the Near case, in fact, only one hypothetical instance of permissible prior restraint was cited: the publication of ship movements in wartime.
Most prior restraint decisions in the United States relate to attempts by government agencies to prevent dissemination of information. In personal libel cases the question of prior restraint hardly ever arises. But where such attempts have been made, courts have come down just as hard in favour of freedom of information over personal reputation as they have come down in favour of government accountability over secrecy.
In 1995 Proctor and Gamble and Bankers Trust were involved in a lawsuit, and the attorneys for both parties agreed to keep certain documents in the case sealed. A newspaper got information about the documents from employees of one party, and copies of the documents themselves from employees of the other. The litigants got a gag order from a district court, but the order was overturned by the United States Court of Appeals.
The readiness of Trinidad courts to grant gagging orders is illustrated by Justice Ventour's words as he discharged the injunction. He ruled that it had been granted on insufficient grounds. Certain facts material to the issue had not been supplied by the Gillettes, he said, and this non-disclosure was not innocent. But Justice Ventour himself also betrayed the shortcomings of the law when he said: "The court will not fetter press freedom unless it is the clearest of cases".
This sounds suspiciously as if clarity alone, and not something more precise, such as a threat to national security or the administration of justice, is a sufficient condition under Trinidad and Tobago law for censoring the press.
Furthermore, in the pompous colonial tradition of enjoining good behaviour on all and sundry, Justice Ventour went on to remark that the decision did not give the Sunday Express licence to publish any defamatory material against individuals.
I am sure the Sunday Express is grateful for the warning.
Copyright © 2004 Denis Solomon