Analysis

In endorsement of the Kortor Kamara proposal

20 October 2008 at 00:37 | 1083 views

By Lango Deen, Baltimore, USA.

Recently, one of my best picks in the local press was that Information and Communication Minister Alhaji I.B. Kargbo had suggested monthly meetings between him and media heads. From my outpost on the east coast of America, I thought: if I could have one thing on the agenda it would have to be the Kortor Kamara proposal.

In “Media Risks Coverage: Answer to Sierra Leone’s Libel Laws,” published by Patriotic Vanguard the same week Kargbo made the suggestion, Kamara argued that media risks-claims of libel and defamation, slander, invasion of privacy-could be adequately addressed within a liability insurance framework.

In introducing the subject of special media insurance policies, Kamara opened a window of opportunity for a government that has promised to do away with the controversial Public Order Act of 1965, but hasn’t quite found the will to do so.

Paul Kamara was the first Sierra Leonean journalist to be jailed under the nation’s libel laws in three decades. In 2002, under Tejan-Kabbah’s watch, Paul Kamara was found guilty on 18 counts of criminal libel under the Public Order Act. The latest journalist arrested under the same law is Jonathan Leigh, managing editor of The Independent Observer. Leigh was in court as recently as seven months ago.

In March 2008, the Sierra Leone Association of Journalists (SLAJ) filed a case seeking to overturn Sierra Leone’s criminal libel and false news laws, which, according to an accompanying press release, “allow[s] prison sentences for expression that "excite(s) disaffection" against the government or "injure(s) the reputation" of the government or individual officials.”

As I write, the lawsuit, which has been described as “the first direct challenge in West Africa to the criminal libel and false news laws common throughout much of the region” is making it’s way slowly through the highest court in Sierra Leone.

If the nation’s court of public opinion is anything to go by, most Sierra Leoneans do not support the repeal of the Public Order Act, according to a snap poll conducted by the Independent Media Commission. Journalists, however, counter that many of the cases prosecuted under the criminal libel laws are used to detain and intimidate government critics.

When the Supreme Court finally rules on whether an old law harking back to the colonial era has a place in modern-day Sierra Leone, I hope subsequent government reform looks to the future Kortor Kamara proposes:

“The balancing act of addressing the damages done to reputations of citizens by libelous publications and ensuring an unfettered free press, devoid of the threats of prosecutions, must revolve around implementation of a market-based liability insurance policy.”

In most developed countries, insuring against libel and other publishing liabilities is a lot like insuring your house against a fire, says media advisor, Michael Roth berg, in his 2004 guide to libel insurance for online publishers large and small.

Rothberg explains that in most developed countries basic insurance policy for traditional newspapers has been in use for more than fifty years. Although it wasn’t until recently that insurers have offered media liability as a specialized product -the kind that Kortor Kamara proposes.

With media houses at risk of defending litigations, more and more writers and publishers are obtaining policy that covers, at a minimum, claims of libel, slander, error, misleading statement and invasion of privacy, according to bestseller What Every Publisher Should Know About Publisher’s Liability Insurance, written by a publishing and intellectual property attorney in New York City and a media and entertainment law attorney.

US-based insurer and lawyer Kortor Kamara’s “Media Risks Coverage: Answer to Sierra Leone’s Libel Laws” may not be a bestseller yet, but it has all the hallmarks of a best practice guide for one of the most contentious issues of our time: Media Risks and Sierra Leone’s Libel Laws.

Editor’s note: We publish, below,Kortor Kamara’s article for those who did not read it and to refresh the memory of those who did when we first published it.

Media Risks Coverage: the Answer to Sierra Leone’s Libel Laws.

By Kortor Kamara, USA.

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.

MEDIA RISKS
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 politicians 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.

Legislative History
The legislative history and practice of the Public Order Act 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.

COVERAGE ‘B’ OF THE CGL POLICY
Media risks insurance coverage as provided for under Coverage B of the Commercial General Liability (CGL) Policy in the United States can be instructive in this regard.

For those unfamiliar with the 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.

CONCLUSION
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.

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