Newsroom Law: A Legal Guide for Commonwealth Caribbean Journalists

By Kathy Ann Waterman Latchoo

This book is meant to guide, comfort and support journalists. While they may chafe against the many legal restrictions, they should know that there is a lot they can do and say within the law. With a better understanding of their legal rights, journalists can go about their business with greater confidence, knowing when to yield and when to stand firm.

Kathy Ann Waterman Latchoo begins by placing journalism in a constitutional context and ends with an overview on damages for defamation and a glossary of legal terms. She describes our legal systems and the hierarchy of courts, which every journalist should strive to understand, whether or not assigned to the court beat. In Newsroom Law, she seeks to demystify libel law, including the Reynolds public interest defence, which has put fresh emphasis on what constitutes “responsible journalism”. Other chapters alert journalists to the legal pitfalls in covering parliamentary affairs, elections and court cases. Cyber-libel, copyright and freedom of information are also included and the chapter on investigative journalism seeks to answer common questions such as whether photographers may use telephoto lenses to capture people in private; whether journalists may record conversations covertly; and whether it is ever permissible to break the law to expose evil.

• Language: English
• Publisher: The University of the West Indies Press
• Release date: Feb 21, 2020
• ISBN: 9789766407551

Kathy Ann Waterman Latchoo

Kathy Ann Waterman Latchoo is a High Court judge in and former Deputy Director of Public Prosecutions, Trinidad and Tobago.

Book preview

NEWSROOM LAW

The University of the West Indies Press

7A Gibraltar Hall Road, Mona

Kingston 7, Jamaica

www.uwipress.com

© 2020 by Kathy Ann Waterman Latchoo

All rights reserved. Published 2020

A catalogue record of this book is available from the National Library of Jamaica.

ISBN: 978-976-640-753-7 (paper)

978-976-640-754-5 (Kindle)

978-976-640-755-1 (ePub)

Cover photograph of the Trinidad and Tobago Hall of Justice in Port of Spain © Andrea de Silva Viarruel.

Cover design by Robert Harris

The University of the West Indies Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Printed in the United States of America

For journalists who love what they do

you and I

between us

words

—Susan Shim

CONTENTS

Table of Cases

Foreword

Acknowledgements

Introduction

1 Freedom of Expression

2 How the Courts Work

3 Defamation

4 Cyberlibel

5 Defences

6 The Reynolds Defence

7 Court Reporting

8 Contempt of Court

9 Reporting Parliament

10 Election Reporting

11 The Broadcast Journalist

12 The Investigative Journalist

13 Privacy and Confidence

14 Freedom of Information

15 Copyright

16 Damages

Appendix

Glossary

Notes

Selected Bibliography

Index

TABLE OF CASES

A

B

C

D

F

G

H

I

J

K

L

M

N

O

P

R

S

T

V

W

X

Z

FOREWORD

The tort of defamation is an ancient construct of the common law. It has accumulated, over the centuries, a number of formal rules with no analogue in other branches of the law of tort. Most of them originated well before freedom of expression acquired the prominent place in our jurisprudence that it enjoys today. Its coherence has not been improved by attempts at statutory reform.

—Lord Sumption in Lachaux v. Independent Print Ltd and Anor.¹

It is a feature of the common law of defamation that neat conceptual solutions do not always provide satisfactory answers to the endlessly varied fact-sets with which judges and (in some jurisdictions) juries have to wrestle, for the purposes of achieving an outcome which properly accords with justice and common sense.

—Lord Briggs in Simon and Ors v. Lyder and Anor.²

This is a valuable work written by Kathy Ann Waterman Latchoo, a sitting judge and a former prosecutor and journalist. Newsroom Law is a welcome and necessary addition to busy journalists’ arsenal of informed professional judgment as they go about their vital task in a world of instant deadlines and fake news.

This work will also aid those media lawyers who might otherwise miss the wood for the trees and will prove to be a readable account for media and law students alike. That Madam Justice Waterman Latchoo has found the time and energy to complete this task is impressive enough. More impressively, she has brought years of experience of both journalism and law. No serious media person will want to do without this work at the ready.

The quotations from Lord Sumption and Lord Briggs shine a spotlight on the law of libel and slander. Lest I give the impression this work is limited to the law of libel and slander – perish the thought. Although the author provides a readable account of that area, she goes further and intentionally provides a broader and deeper practical and legal context. The author tackles the challenge of stating succinctly the law that governs media professionals and newsrooms.

If, as the two quotations suggests, the law of defamation is a jumble, then what any astute reader requires is a good guide to the complete media legal landscape. The media legal landscape includes the constitution with its twin freedoms of expression and the press; the law of libel and slander (which many would be surprised to discover can impose civil and criminal liabilities); the law of contempt; the statutory law governing freedom of information and data protection as well as the special restrictions on publishing information about children and court cases. The author has filled a yawning gap with her comprehensive and thoughtful survey of this vast array of law that exists in the Caribbean countries that the author has covered.

The publication of the written word has come a long way since Gutenberg. Journalists now work across traditional media and the Internet. The most dramatic changes in the last two decades involve technology, the Internet and the media. The first Blackberry hit the market in 1999, and the first iPhone in 2007; Facebook was founded in 2003; Twitter in 2006, and WhatsApp in 2009. It is obvious that technology enables us to communicate, and its impact is far and wide and still only incompletely understood.

In 2016, the election of Donald Trump as the president of the United States led to an inquiry as to whether Russia had sought to influence the election outcome. In 2017, the United Kingdom voted to leave the European Union. The role of the media in both those events is still unfolding.

Alongside these technological and cross-border challenges are the long-term decline of print media and the emergence of differing media models. Nowadays, several respected global media voices attract the support of foundations; others have global digital footprints that dwarf traditional reach.

In other words, the world and the world of media have undergone dramatic change. The law must change in response to those transformations. Hardly anyone under the age of twenty-five reads an actual newspaper; they get their news digitally. Everyone of that age is entitled to vote and participate in the civic and democratic life of their community in myriad ways. The quality of that participation will, in part, depend on the integrity of the information the media provides to them. The law of media has had to play catch-up, and this work catalogues those legal trends and developments and explains them to readers.

I heartily commend this work and congratulate the author as I look forward to another edition updating this valuable work.

Ian L. Benjamin, SC³

ACKNOWLEDGEMENTS

This idea for this book was first sown in the 1990s by Lennox Grant when he was editor in chief of the Express, in Trinidad and Tobago, and the writer was a journalist on his team and a newly minted attorney.

Tajmool Hosein, Queen’s Counsel (QC), now deceased, approved that first copy, which was intended as an in-house guide, and recommended a separate chapter on investigative journalism. The in-house guide remained unpublished because, at the time, it seemed that the Libel and Defamation Act was going to be reviewed and amended.

Many years later, the perspicacious writer and editor Judy Raymond revived the idea and kindly edited the first drafts of some chapters and lent helpful advice. By then, I had decided that the work should be expanded to help journalists in the Commonwealth Caribbean, instead of limiting it to Trinidad and Tobago. Finally, my husband Maximus Latchoo announced, It’s time. Get it done, and he contributed not only funds but also his tireless support and faith that it would be done.

Attorney-at-law Ian Benjamin encouraged, prodded and never let me forget what needed to be accomplished. He introduced me to attorney Sadnha Lutchman, who conducted valuable research and fact-checking. Journalists Camini Marajh and Wesley Gibbings; vice president of the Trinidad and Tobago Publishers and Broadcasters Association Kiran Maharaj; attorneys-at-law Andrew Mitchell, QC, Ravi Rajcoomar and Faarees Hosein; Professor Eddy Ventose; Justice Brian Cottle of St Vincent and the Grenadines; and Chancellor Yonette Cummings-Edwards of Guyana also read chapters and offered their comments and advice.

Susan Shim, whom I have known since we were both eleven years old, blessed this work with the beautiful haiku for the dedication page. My endless thanks also go to the editorial support team at the University of the West Indies Press, the Media Association of Trinidad and Tobago, the Press Association of Jamaica, the Association of Caribbean Media Workers, Justice Kimberly Cenac-Phulgence, Justice Shiraz Aziz, Justice Colin Williams, Tishara Armstrong, Dwaymian Brissette, Zahra Burton, Parnell Campbell, QC, Jo Elliott, Francesca Hawkins, Nikola Lashley, Dr Sharon Le Gall, Linda Straker and all those, too many to mention, who offered their advice, encouragement and support.

INTRODUCTION

Journalists are busy people.

With the clock tick-tocking, they must navigate the law of libel, contempt, privilege, copyright, breach of confidence and official secrecy.

This book is meant to guide, comfort and support journalists. Although they may chafe against the many legal restrictions, they should know that they can do and say a lot within the law.

With a better understanding of their legal rights, journalists can go about their business with greater confidence, knowing when to yield and when to stand firm.

This book is no substitute for the services of a competent and experienced lawyer, but with this guide, journalists and their editors or producers should be able to hold their own in war rooms. Media lawyers can be scarier than editors.

The Commonwealth Caribbean countries whose law has been primarily described are Antigua and Barbuda; the Bahamas; Barbados; Dominica; Grenada; Guyana; Jamaica; St Kitts and Nevis; St Lucia; St Vincent and the Grenadines; and Trinidad and Tobago. Reference is made to relevant law in Belize, Bermuda, British Virgin Islands and Cayman Islands.

Some difficulty was encountered in obtaining up-to-date information on particular aspects of the law in the various jurisdictions, and any shortcomings in this regard are mine alone. The book focuses on the existing law in the region rather than policy and reform and the actual how-to of journalism, although some recommendations are made.

The book begins by placing journalism in a constitutional context and ends with an overview on damages for defamation and a glossary of legal terms. It describes our legal systems and the hierarchy of courts, which every journalist should strive to understand,