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Freedom Of Speech And Defamation In

Sri Lanka: Where To Draw The Line

Sulakshana Senanayake-Tue 21st March 2017

Sri Lankans are not entirely unfamiliar with

the word defamation. You do hear, for instance, news of one


politician suing another for millions of rupees over something that
was said by the latter politician, which the former found offensive
or unpalatable. Most Sri Lankans are therefore aware that
defamation is some kind of limitation on the freedom of speech
of another a tool to prevent verbal diarrhoea of sorts.
This tool is also facing the ultimate test, with social media
platforms such as Facebook becoming a form of media more
powerful than any seen before. Individuals and entities are
criticised, even insulted, on a daily basis on social media, as if
there would be no repercussions. However, even without
Facebook imposing its own regulations, these individuals can be
sued, for millions, using the centuries-old law: the law of
Defamation.
The Tort Of Defamation

Defamation involves intentionally communicating a false message


that harms anothers reputation. Image courtesy
omnicidio.wordpress.com
Before moving on to the technicalities of suing your friend (or
enemy) for a comment he/she made on Facebook, it is necessary
to understand the roots and principles of this law. Defamation is a
tort which is an umbrella term used to describe the laws
governing civil responsibilities that people have to one another,
as opposed to those responsibilities laid out in contracts. If an act
committed by someone unfairly causes someone else to suffer
loss or harm, it can be said to result in legal liability for the
person who commits the tortious act.
Examples include private nuisance (leaves from a neighbours
tree clogging your drains), negligence (dropping a hammer on
someone), occupier liability (having a slippery floor in a
restaurant) and defamation. Torts are not necessarily part of
written law, like acts or statutes of parliament, but legal
constructs which are enforceable in civil courts.
The tort of defamation, put in simplest terms, is committed when
a person intentionally makes a false communication that harms
anothers reputation. It is divided into two categories:
Libel a defamatory statement expressed in a fixed medium
(usually in writing, but can also include a picture, sign, or
radio/television broadcast)
Slander defamatory statements made verbally
Defamation was also a criminal offence in Sri Lanka and provided
for a two-year jail term under the Penal Code until 2002, when it
was repealed by the then Ranil Wickremesinghe government. Sri
Lanka is the first and only country in the South Asian region to
have done away with the law of criminal defamation.
Freedom Of Speech And Defamation
While some argue that Defamation is at direct conflict with
freedom of speech of an individual, it is important to note that
freedom of speech as a fundamental right is not without limits.
The Constitution of Sri Lanka itself, while granting citizens the
right to freedom of speech, specifically states that this freedom
shall be subject to such restrictions as may be prescribed by law
in the interests of racial and religious harmony or in relation to
parliamentary privilege, contempt of court, defamation or
incitement to an offence.
The Elements Of Defamation

A well-known defamation case in recent times involved former


Defence Secretary Gotabaya Rajapaksa suing The Sunday
Leader for Rs. 2 billion in 2010. Image credit: AFP/Ishara S.
Kodikara
Although (as explained above), defamation has two categories
based on its form, in order to pursue a successful suit in
defamation, the following are considered to be essential
elements:
First, there must be a false and defamatory statement
concerning the person suing for defamation. Statements
may be written, verbal, or even graphical. It is not necessary
for the entire statement to be defamatory, as even a
newspaper headline can be deemed to be defamatory;
There must be a publication to a third party. Publication is
deemed to be the manner in which the defamatory material
was communicated to a third party [Examples: a) Person A
publishes a defamatory statement in a newspaper; b) Person
A sends person B a defamatory statement in a letter which is
opened by person C]
The publication should have been made at least negligently
(possibly maliciously);
In some cases, there must be proof of special damages, such
as loss of profits etc., as a result of the publication.
Defamation does not always have to be direct; it could even be
defamation by innuendo which basically means that even a
hint can be considered defamation as long as a fair number of
people will understand what was hinted at.
Defences Against The Suit Of Defamation
While defamation may well be a headache for reporters and
media institutions, there are also certain defences that do defend
a claim of defamation. The main such defences are:
Truth and justification: Where what was reported is the
truth and can be justified with facts and evidence. Most news
reports can be covered under this defence.
Fair comment: where a person expresses an honest opinion
without any intention to defame an individual. Reviews of
restaurants, hotels etc., are covered under this defence.
Innocent dissemination: where a person shares a
publication without knowing that the contents of the
publication are defamatory. For example, a newspaper seller
(vendor) would not be liable for defamation even if an article
in a newspaper he was selling was defamatory.
Additionally, certain individuals are immune from defamation due
to privilege granted on the basis of their circumstances and
positions. For instance, members of parliament are immune
from defamation for whatever is said inside the parliament
against any other member (which explains a great deal). Also,
witnesses in a trial may be immune from defamation which occurs
while giving evidence.
A defamation claim can be mitigated by issuing a retraction and
apology to the concerned individual. In the case of a newspaper
article, the retraction and apology should have equal prominence
as the initial defamatory article (same size, position etc.).
Practical Aspects
A claim of defamation should necessarily contain the words
spoken or written verbatim(reproduced in writing). It is also
necessary to send a letter of demand before a claim is brought to
court. The general claims for defamation in Sri Lanka usually start
at over Rs. 50 million.
Another important factor in a defamation claim is the place of
publication, which, in the typical case of a newspaper, is deemed
to be the place of printing. In case of a particular article of a
newspaper being established as defamatory, the writer of that
article, the editor of the newspaper, and the newspaper company
are generally assumed to be liable for defamation unless proven
otherwise.
A claim in defamation has to be instituted in a District Court
where the defendant resides, or where the defamatory material
was published.
Defamation And Facebook
In some cases, it may be possible to sue someone over
defamatory comments made via social media provided, of
course, you have the grounds to do so. Image credit:
thesource.com
Given the above framework of the law of defamation, it is now
possible to consider whether someone can sue another over a
comment or status published on Facebook about them.
Although still not attempted in Sri Lanka, it is technically possible
to make such a claim since the act of sharing a defamatory status
(if proven to be so) has the effect of publishing defamatory
material to an audience of thousands (depending on privacy
settings).
However, innocent sharing of defamatory material without
knowing such material to be defamatory may not bring any
liability under the above-mentioned defence of innocent
dissemination.
Comment Away
While defamation seems like a tool to curtail the right to freedom
of expression, Sri Lankan reporters and newspapers have a rich
legal history of fighting such suits to safeguard media freedom
and freedom of speech. No one should hesitate to express their
opinion or report a truthful story for genuine intentions for fear of
being sued, as doing so would lead to an ignorant society.
Featured image credit: Nazly Ahmed
Posted by Thavam