This article is a continuum of a series of related proposals the author has recently been advocating on how governmental policymakers and the insurance community at large in Sierra Leone, through utilization of a national insurance and risk management strategy, can engender real innovation and growth in all sectors of our nation’s socio-economic and governance infrastructure.
The overriding public policy need for introduction of a media risks coverage policy addressing liability inherent to the journalistic community, outside of the criminal law processes, cannot be understated and remains this piece’s essential focus.
The articulation and advocacy of an alternative remedy addressing “media risks liability” and the real issues of perceived defamatory libel, sometimes practiced by Sierra Leonean journalists, publishers and media houses with resultant responses by mainly politicians and governmental officials using the criminal law processes of the State is the focus of this piece.
There has in the past several years been much public debate in Sierra Leone over repeal of the Public Order Act, 1965. Specifically, Part V, Sections 26 to 37, pertaining to defamatory and seditious libel have drawn the irk of several members of the journalistic community, most of whom have and continue to be subjected to threats of and actual criminal prosecutions for merely performing their job duties.
While the focus of the debate has mainly revolved around repeal of the obnoxious and onerous defamatory and seditious libel sections of the Act, it is however essential that the tenets of accountability by publishers, journalists and media houses be enshrined in any reform proposal that is introduced to protect reputations of citizens.
The legislative history and practice of the Public Order Act, 1965 in Sierra Leone, however has been one of a convenient legal ruse utilized by successive governments to muzzle and intimidate political dissent, free speech and the free press through the criminal law processes of the State. For example, these laws have in the recent past been used by politicians to incarcerate a number of journalists and muzzle the free press.
Several recent high profile criminal libel and defamation cases brought against journalists by politicians and public figures in Sierra Leone has resulted in this search for how “media risks” can be adequately addressed within the liability insurance framework.
THE NEW WAY FORWARD
While defamation and libel in most common law jurisdictions are categorized as criminal offences, and thus cannot be covered by an insurance policy, they have also evolved as hybrid tort liability offences, where an aggrieved party can seek damages and payments from an insured’s insurance policy for harm occasioned by defamatory or libelous publications.
The balancing act of addressing the actual damages done to reputations of citizens by libelous publications and ensuring an unfettered free press, devoid of the threats of criminal prosecutions, must revolve around implementation of a market-based liability insurance policy with the following at its core:
- Repeal of the criminal provisions of the libel, seditious libel and defamation statutes and their replacement with a tort liability regime.
- The design of a media risks liability insurance policy to cover claims based on such torts as libel, slander and defamation for practitioners of journalism in Sierra Leone.
For those unfamiliar with the commercial general liability (CGL) policy, Coverage B provides that an insurer will pay those sums that an insured becomes legally liable or obligated to pay as damages for an “advertising injury”.
An “advertising injury” is defined as injury or damages arising out of one or a combination of the following offences:
- Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services.
- Oral or written publications of material that violates a person’s right of privacy.
In the Sierra Leonean context thus repeal of the criminal provisions of the Public Order Act, promulgation of a tort liability law covering journalists and a requirement for evidence of media liability coverage by members of the fourth estate should to all intents and purposes end the onerous impact that the media has for decades been subjected to by being criminally charged for merely performing their duties.
Any liability or damages accruing from the performance or publication of defamatory or libelous publications will be based on proof of damages and payment pursuant to the nature and extent thereof by the insurance policy.