'Exercise discretion wisely and fairly'

The occasion

All 22 students who completed the second Diploma Course in Journalism and Communication (1998-1999) conducted by the Sri Lanka Foundation Institute received their awards at a ceremony held at the SLFI auditorium on October 24.

Nine candidates passed the Diploma with Distinction and 11 with Credit.

This one-year course conducted in English consists of a six-month core curriculum including English for Communication, Media Law and Communication Ethics together with five modules - TV, Radio and Print Journalism, Public Relations and Advertising.

It is followed by eight weeks of practical training in the student's module of choice at a media institution. The course is taught by academics and senior media professionals.

The third Diploma Course began on October 26.

Extracts of the speech made by President's Counsel H.L. de Silva who was Chief Guest at the awards ceremony of the SLFI's Diploma in Journalism Course.

Most of us have come to accept the free dom of the press as being essential to the working of democratic government. But at the same time, being aware of the power and influence which newspapers wield in the modern world, many of us are wary of even friendly journalists, reporters and press photographers, even more than newspapermen who sit behind their desks and control editorial policy.

Although we tend to view with equanimity the troubles of others who are often the victims of the unwelcome attentions of the press, most of us are very sensitive to and tend to resent being subject to the glare of press publicity. We would like to avoid even coming within the range of a passing beam of that searchlight, if it is likely to cause us embarrassment or some discomfiture.

It will be seen when you think about it, that there are in fact two competing interests at stake. Firstly, the question of what is termed "newsworthiness", which is linked to the people's right to know and be informed about matters of public interest or public concern. This can be sometimes a matter of subjective judgment of those who control editorial policy. Sometimes even matters in which the public have a legitimate interest are sometimes discreetly concealed by a conspiracy of silence due to improper pressure and the public interest suffers in consequence.

Yet it is not a question which can be wholly free or independent of community values, and a flagrant disregard of community standards of fairness can be a newspaper's undoing. Secondly, there are the rights and privileges of private individuals who are fortuitously concerned or involved in these events but which by their very nature generate the attention or curiosity of the public. Not infrequently newspapermen appear to act as if the individual's rights did not exist or did not matter, or at any rate, as if they were secondary and subordinate to the news value of the story. The question is how is this contradiction to be resolved in a satisfactory manner?

There are broadly speaking two groups of issues - those which are essentially of a societal or political nature, yet having a moral dimension which concerns the whole community and those which are essentially private and personal questions, mainly affecting the individuals concerned which nevertheless have an interest value. It is obvious that a satisfactory answer to these conflicting interests and competing claims must aim at a proper balance in their selection for publication to ensure that both community needs as well as individual rights are safeguarded. Straddling both groups of issues are constitutional and legal principles which help to determine the parameters of publication.

As we all know even prior to the creation of express provisions which guaranteed freedom of speech and expression in our two recent Constitutions of 1972 and 1978, the citizen enjoyed freedom of speech and expression subject to certain legal restraints and controls that existed or which could be imposed in the future by any law passed in the ordinary way.

The essential difference was that after 1972, laws affecting freedom of speech could be enacted as ordinary laws only if they fell within the permitted categories of restrictions or controls specified in the Constitution. If they fell outside the permitted area such laws required a two-thirds majority for their enactment. But how effective is this safeguard?

The constitutional efficacy of the two-thirds majority rule is considerably eroded by reason of Article 124 which precludes any challenge to the validity of a law after enactment, especially in cases where any infraction of freedom of speech was not foreseen by anyone prior to its enactment.

In other words, the constitutional guarantee of freedom of speech could be whittled down by mere inadvertence or by a side wind so to speak. Considering that Article 4(d) makes fundamental rights a constituent element of sovereignty, Article 124 ought to have excepted contraventions of fundamental rights from the scope of its operation and made them open to challenge even after enactment.

The other weakness of the constitutional protection of freedom of speech under our Constitution, is the wide range of matters specified in Article 15(2) and 15(7) on the basis of which ordinary laws could trench upon this freedom. Furthermore, the existing law relating to defamation - both civil and criminal, considerably reduces the freedom as Article 16(1) states that all existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the Chapter on Fundamental Rights. The effect of this provision is that the principles of the law relating to privacy, as embodied in our common law (the Roman-Dutch law) are virtually given a parity value of legal efficacy alongside the constitutional right of freedom of speech. On the whole the controlling mechanism is fairly stringent.

Why are we so concerned with the right to privacy of human beings? Human beings after all are social animals not living in isolation but in community and under conditions of existence which oblige them to have interpersonal relationships.

They are compelled to conduct their affairs in the open under circumstances attendant with some degree of publicity. Yet despite these external contacts with others, there is a deep seated psychological need in human beings for privacy - for seclusion, to be free from prying eyes, to be left alone, to enjoy one's solitariness.

To appreciate the value of privacy in the life of the individual it is well to remind ourselves of the importance which our own Constitution attaches to man's autonomous nature, through the guarantees of basic human rights.

It is manifested in the general immunity from external interference without the consent of that person. It is exemplified in the absolute nature of a person's freedom of thought, conscience, religion, including the freedom to have or to adopt a religion or belief of his choice; the immunity of the human body from torture, arbitrary arrest, deprivation of personal liberty and the guarantee of freedom of movement, the right to equal treatment and the presumption of innocence - all of which rights and freedoms are aimed at securing the integrity of the individual and his moral worth.

To invade his privacy therefore is to assail his integrity as a human being, devalue his inner self and make him subject to external interference regardless of his wishes or consent - to treat him as a mere object not as a human being with human dignity.

Some have suggested self- restraint and self-regulation when it comes to the invasion of privacy, especially in regard to intrusions into the area of private grief to satisfy the morbid curiosity of others, who do not feel the pain or share the grief.

Fortunately the press in Sri Lanka has not descended to low levels although there is a recent trend in what the late Mervyn de Silva pithily termed 'key-hole journalism'.

What are the circumstances that would justify the subordination of the interest in privacy to the freedom of publication? In most legal systems in deciding this question, a distinction is drawn between public figures and private individuals.

As a general rule the area marked out for the privacy of the individual as an ordinary citizen is larger than the private space allowed to a public figure. Who is a public figure? According to Dean Prosser, a public figure has been defined as a person who, by his accomplishments, fame or mode of living, or by adopting a profession or calling has given the public a legitimate interest in his doings, his affairs and his character, has become a "public personage". Where a person has voluntarily, through his action or conduct or lifestyle sought publicity, he comes to be regarded by the community in which he lives as a celebrity. By his own voluntary conduct he ceases to be a private person for all practical purposes and the general public come to acquire a legitimate interest in his affairs and the public interest overrides his private rights.

But even a public figure is not wholly denuded of his right to privacy. Even a famous man is entitled to a reasonable measure of privacy - to be left alone while at home when not engaged in the performance of any public function, free to enjoy his hours of solitude and intimate relationships - this is a no entry zone, within which the press must not trespass.

The guiding principle for the invasion of privacy is whether or not the infringement of the right is for the public benefit or in the public interest. This is the area where the journalist has to act in good faith, exercise this discretion wisely and fairly with an awareness of the pain and injury that may be caused to the individual concerned, and evince a due sense of responsibility.

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