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Why defamation should not be a crime

In superbly crafted reasoning more than eighteen years back, the Canadian Law Commission, recommending the repeal of the law of criminal defamation, explained in precise terms as to why the offence was neither necessary or desirable in modern society. (Working Paper 35, Canadian Law Commission, 1984). Its thinking may well serve to soothe the fears of the faint hearted among us as the Cabinet this week, approves the proposal by the Law Minister to take out the penal provisions relating to criminal defamation in what is perhaps the most significant marker since lobbying for reform of the law commenced some five years ago.

In examining the problem, the Canadian Law Commission asked one primary question; "Are we satisfied that the criminal law can make a significant contribution in dealing with the problem?" Or, if this is put in simpler language, does having the crime of defamation in the statute books actually protect reputations of "good and honest citizens" from character assassination? Answering this question in the negative, the Law Commission used particular arguments to establish its point beyond all reasonable doubt.

Firstly, criminal prosecutions were rare in that jurisdiction and with almost no perceptible effect on the media. Secondly, the original rationale for the crime, created by the Star Chamber in seventeenth century England in order to prevent attacks on state officials and to prevent duelling, was no longer relevant in modern society. While the latter was not an issue in any sense, using the criminal law for the protection of the former had been long discredited both by domestic courts and by international tribunals. Thirdly, developed jurisdictions across the world either do not have or do not use the offence of defamatory libel. In contrast, those countries that do have frequent recourse to the law are characterised by authoritarian and abusive regimes.

Fourthly, other remedies such as civil remedies exist for those who felt that they had been maligned by vindictive journalism. Fifthly, and perhaps the most importantly, the crime of defamation was deemed by the Canadian Law Commission to be substantially defective because it was not a "full mens rea offence." In other words, a person could be accused even though that person did not intend to defame or knew or believed that the statement was defamatory. Proceeding on this reasoning, the Law Commission thought that the offence appeared to deny the fundamental freedom of expression and to be inconsistent with the principle of innocence. Conclusively therefore, the Law Commission asked yet another equally pertinent question; "If there were no previously existing crime of libel, would it be necessary to create one now? The answer, again, was obvious.

It should be observed meanwhile in passing that the law of criminal defamation has been damned in quainter terms by the British Law Commission which recommended substantial revision, describing some of its features as "awful". Importantly, the Law Commission adopted the remark of a Law Lord in 1980 that placing the burden inappropriately on the defendant not only to prove that the defamatory matter was true but that it was also in the public benefit, "turned Article 10 of the European Convention (which secures the right to freedom of expression subject only to strictly defined limitations) on its head." (Lord Diplock in Gleaves vs Deakin, 1980, AC, 477) Amusingly enough, the British Law Commission went on to deplore the attitude of the British Government that it could not justify taking up Parliamentary time to repeal an offence which in practice, is not used in the United Kingdom. (Law Commission No 232, 1994).

The British and the Canadian Law Commissions only reflected the thinking of law reform bodies across the world, including Australia and New Zealand, which after detailed analysis of the appropriateness of the offence in their jurisdictions, either recommended its wholesale abolition or suggested that it be heavily restricted. One version of such a restricted offence was the creation of a limited statutory offence which penalises the communication of the deliberately defamatory lie. This was suggested as an alternative to wholesale abolition by the British Law Commission in its 1985 Report due to fears that the civil remedy may prove to be insufficient. The civil law was pointed out to be available only to those who had the funds to invoke it and again effective only against those who have the funds to pay damages while injunctions can only prevent repetition after publication, it does not deter publication or punish it. This suggestion was however pungently criticised by British media lawyers who characterised the recommended cure as being worse than the disease it sought to treat. Instead, more commonsensical remedies were proposed, including the importation of the Swedish media ombudsman and the streamlining of civil remedies with the possibility of legal aid in deserving cases. The British version of a restricted statutory offence has, in any event, not been welcomed with much fervour in other countries. In the United States, the American Law Institute deliberately omitted including the offence of defamation in its 1961 Model Penal Code, pointing out succinctly "it goes without saying that penal sanctions cannot be justified merely by the fact that defamation is evil or damaging to a person in ways that entitle him to maintain a civil suit."

Sri Lanka can lay no claim to a background of similar informed discussion and debate. The Law Commission of Sri Lanka, which might have spearheaded a larger debate on the public interest element implicit in the question whether defamation should be a crime, has not done so, somewhat unfortunately. In the end result, the issue of criminal defamation whilst being isolated as a purely media concern, became also highly political, primarily due to the misplaced enthusiasm of the Peoples Alliance in initiating criminal defamation cases against journalists. One must not forget however that the initial safeguards provided by the law against frivolous criminal defamation prosecutions in this country, such as the sanction of the Attorney General, proper investigation by the police and preliminary inquiry by the Magistrate was interfered with in 1980 long before the Peoples Alliance came into power.

Act No. 52 of 1980 which amended the Criminal Procedure Code with such deleterious consequences was brought in by President J.R. Jayewardene consequent to a Member of Parliament, R.P. Wijesiri who had been charged with the offence of defaming President Jayewardene, successfully challenging the indictment in court. The resultant politicisation of filing indictments for criminal defamation with the sanction of the Attorney General, which was supposed to be a safeguard, being reduced to a not so amusing farce, needs no detailed mention here. It is for all these reasons that we should welcome the Cabinet decision this week approving the repeal of criminal defamation provisions. As far as the media is concerned however, the burden to defeat its critics and prove once and for all that Sri Lanka needs no crime of defamation, will be heavier in the times ahead.

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