Despite brutally repressed by the government, the unity forged by Sri Lankan media to get criminal defamation repealed by its Parliament provides a lot of lessons to learn for Indian media
In the long-held fight for freedom of press, threats and intimidation have become a norm for journalists who have tried to highlight incompetence or wrongdoings buried deep in the shackles of power. One of the most brutal tools used by the mighty in perpetuating coercion has been blackmail using the laws of defamation.
Filing cases of civil and criminal defamation has been a favorite tactic in the armory of some politicians against scribes who criticize the government of the day. Exorbitant damages or jailing journalists or even a threat of it has a chilling effect on the work, especially, of investigating journalists. Not just politicians, corporates have also started using it in the past few years in the form of Strategic Lawsuits against Public Participation (SLAPPs).
There has been a lot of criticism against this law and in 2016, a lot of hopes were on the Supreme Court when it decided petitions filed by politicians, journalists and activists to decriminalize defamation. Unfortunately, the apex court decided in favour of criminal defamation, insisting on balancing freedom of speech and individual’s right of reputation.
Although exorbitant damages can be pressed even in a civil suit of defamation, the global consensus has been to finish criminal defamation and regulate civil one. In many states of the United States and in United Kingdom, who made this law for us, it has been decriminalized for some time now. Gradually, other countries are following suit.
The least impact of this campaign to decriminalize defamation has been in Asia where only one country has done away with it. Interestingly, it is our tiny little neighbor down South- Sri Lanka. Amidst all the ethnic conflict and the challenges of emergency, which has seen large restrictions on press, the Sri Lankan Parliament unanimously decided to repeal criminal defamation in 2002. A proud democracy like us can learn a lot from the movement that led to this great achievement.
United Sri Lankan media
Similar to India, allegations of nepotism, crony capitalism and money laundering have been leveled on media in Sri Lanka as well. The June 1998 order imposing censorship on the press was a woeful time for Sri Lankan journalists. The administration had tightened restrictions further in 2000, as part of an effort to curb reporting on politically sensitive issues, including government’s handling of the war against the Liberation Tigers of Tamil Eelam (LTTE).
Almost as a rearguard action, parallel initiatives from the journalistic community arose to counter the forces curbing their freedom. A series of measures were taken to deepen media freedom in Sri Lanka which actually seemed more concerted, sustained and potentially far-reaching than any similar movement, even compared to India.
The most important event of that decade for Sri Lankan media was the ‘Colombo Declaration’ in 1998 which has become a milestone for the country’s media fraternity, as it united them like never before.
Colombo Declaration on Media Freedom and Social Responsibility was signed by The Editor’s Guild of Sri Lanka (TEGOSL) together with the Newspaper Society of Sri Lanka and the Free Media Movement after an international symposium. The symposium was held in the backdrop of a campaign launched by TEGOSL and other fraternal media organizations to have the laws of criminal defamation repealed after five TEGOSL members had been indicted under the Penal Code for criminal defamation.
Among the international organizations that supported the Colombo Declaration were the World Association of Newspapers (WAN), the International Press Institute (IPI), the Commonwealth Press Union (CPU), Article 19, and the Media Institute of Southern Africa (MISA).
The declaration also included larger issues like the need to have proper constitutional provisions for freedom of expression, reform of press laws and dilution of censorship on press during emergency. It has even been revisited a decade later to, among other things, enlarge its scope to include the “deliberative democracy” of the Internet and social media.
Case of Victor Ivan
Although there were many mainstream newspaper editors who were facing criminal defamation charges in the 1990’s, the case of Victor Ivan, editor of the Sinhala newspaper Ravaya, who had always been an anti-establishment figure, got the international community involved.
According to a 2005 report of the International Federation of Journalists, Victor was convicted of criminal defamation on several occasions. One case in particular highlighted the need for reform. Ivan was convicted of defaming the general manager of the Sri Lankan Railway Department, who was charged with bribery and corruption. An inquiry commission instituted by the Sri Lankan government found the general manager guilty as charged, yet his coverage of the commission’s finding was deemed defamatory by courts.
He appealed to the United Nations Human Rights Committee (UNHRC) in 1998 which raised the press freedom movement’s profile on the international stage and helped build pressure on the need to decriminalize defamation. In 2004, two years after the criminal defamation laws were repealed, the UNHRC ruled against the Sri Lankan High Court.
Victor was able to appeal to the UNHRC only because Sri Lanka has ratified two important conventions: the UN’s International Convention on Civil and Political Rights (ICCPR) and International Convention on Economic, Social and Cultural Rights (ICESCR), as well as the optional protocols to these conventions. This was also made possible only after a concerted struggle by various professional organisations and trade unions.
The optional protocols are the ones which make it possible even for an individual to lodge a complaint to the United Nations Human Rights Committee for violation of convention. Though India has acceded to these conventions, it has not signed these optional protocols, which makes it impossible for an Indian journalist to approach the UN if he/she gets jailed in a defamation case.
The IFJ report also noted that with changing political fortunes in Sri Lanka, sometimes the victims of criminal defamation, contempt of court, parliamentary privileges and the Press Council became the rulers themselves. This was also one reason for the subject of criminal defamation becoming an issue of wide public debate.
Reforms and that too one like decriminalizing defamation don’t happen that easy, especially in a country like Sri Lanka, where political uncertainty and ethnic conflict has been omnipresent; a country that is still grappling with the concept of constitutionalism and democracy. This, in effect, has led to a three-decade long record of press in Sri Lanka being gagged or debilitated in one manner or the other.
On the other hand, it’s also been observed that many a times, reforms come after a country has been in turmoil for long and a regime change happens after that. For example, fall of a long one-party government or one-person rule. If it results in a democratic form of government, then the period is ripe for reform.
This reform came about in Sri Lanka after regime change only. Although a long-standing democracy, Sri Lanka had been characterised by the dominance of one political party between 1994 and 2001. Although this government had originally promised significant reform in the area of freedom of expression, in practice little or no reform was delivered.
When that Sri Lankan government fell unexpectedly in late 2001, the new government and the former opposition, which had been highly critical of the control tactics of the old government, moved quickly to abolish the criminal defamation law in 2002.
(This was the government of Ranil Wickramasinghe, who is the current Sri Lankan Prime Minister as well. It was a short-lived government whose tenure ended in 2004.
In 2007, there were apprehensions raised when the then Sri Lankan Minister Maitripala Sirisena admitted to the public that the Cabinet had discussed an emergency paper on the re-introduction of criminal defamation legislation. But the government was quick to assure that there was only a general discussion on the issue and the government does not plan on re-introducing criminal defamation laws into the system. Fortunately, nothing happened.
Though defamation is said to be repealed under a progressive Sri Lankan government, it is to the credit of their democracy that the situation has been the same under other future regimes.
This is completely opposite to what happened in Maldives, the only another South Asian country where defamation was decriminalized in 2009. All seemed hunky dory in favour of democratic reforms, after the ending of a 30-year-old dictatorship.
The turmoil in the coastal country never abated. The year 2016 saw the Maldives Parliament re-criminalising defamation with severe penalties for media outlets. All this came in the wake of allegations of large-scale corruption in the highest corridors of power, which is the most disturbing part. One cannot take democracy for granted. It has to be worked upon forever.
Learning and past reflection for Indian media
The IFJ campaign resource material analyses the Sri Lankan campaign and also what other countries can learn from it. It can be learnt from the campaign experience of Sri Lanka that constant and unrelenting effort is needed especially on the part of journalists and their associations and unions.
It also points to the need to tackle the issue on a number of fronts: to intervene in current cases where journalists are threatened with jail; to get politicians to go on the record opposing criminal defamation; to draft and present legal packages for parliamentarians to implement; publicise the issue; provide a number of viable alternatives to defamation; strengthen journalists’ own ethics; and encourage newspapers and broadcasters to adopt editorial guidelines about complaints and apologies.
The Indian legislature hasn’t shown much interest in this legal reform. The Indian Supreme Court clearly doesn’t believe in it now. But as this case shows, Indian politicians, journalists and activists did show interest to fight the legal battle, at the least. There was widespread criticism of this judgement as well.
There has always been a rather intermittent demand to do away with this colonial-era law. In 2011, the Indian government did show intent but nothing happened further. “We are considering a proposal to decriminalise defamation to the extent it applies to journalists. The endeavour is to save them from malicious prosecution since there is no criminal motive involved in their professional duties,” said the then Indian law and justice minister M Veerappa Moily.
An Indian politician is also trying on his own. Lok Sabha member Tathagata Satpathy, who has been in the select few to speak on controversial issues like net neutrality, the legalisation of marijuana, and the decriminalisation of homosexuality, has launched a new effort to introduce a private member’s bill titled “The Protection of Speech and Reputation Bill” in the Indian Parliament.
The bill seeks to repeal criminal defamation and codify civil defamation. Though there have been only 14 Private Members bill that have been passed in India since its independence, this can surely be helpful to get Indian Parliament’s attention.
One can understand mature democracies like the UK and US passing this reform. Aside from them, a fledgling democracy like Sri Lanka was also able to do it. In the toughest of conditions, the Sri Lankan media united or at least a large part did come together at a platform in 1998.
And it’s not like the Indian media hasn’t united before. Intriguingly, everyone in the Indian media fraternity came together way back in 1988 to save themselves from a controversial defamation bill. The unprecedented defiance from media, also from those who were considered pro-government, made the Rajiv Gandhi government withdraw that bill.
Never before in India’s parliamentary history had a legislation passed by the Lok Sabha been withdrawn under public pressure. A vital factor in this decision was the kind of across-the-board support the anti-bill agitation had acquired.
Apart from media organisations all over India, groups of advocates, students, teachers and trade unions joined in the protest. Spontaneous demonstrations took place almost throughout the country. Over 100 public meetings addressed by leading journalists were held in districts and small towns. The opposition parties gave a call for a week-long agitation against the bill.
Probably we need a similar advocacy movement as happened then and took place to bring about the Right to Information Act. Media, civil society, activists, politicians, students or everyone concerned about the freedom of press has to build collective pressure, which is the cornerstone of a democracy.