Defamation was - until 2002 - a criminal offense in Sri Lanka, and sentencing for it included a 2 year jail term. 17 years ago, the law in which this legislation was expressed was repealed. And since then, Sri Lanka has been unique in South Asia as the only country which offers no protection to its citizens against criminal assault on their reputation.
I have been observing the posts and comments threads on Sri Lankan social media since late 2014, and like many others I have seen the unbridled way defamatory posts go viral. My observation of the way the absence of a defamation law operates to apparently license and facilitate assault to a person’s reputation was influenced into activism by an attack launched in a defamatory post uploaded as a status update on Facebook in late December, 2017.
The perpetrator named the individual he was targeting, called his post a ‘PSA’ (‘Public Service Announcement’) to attract public attention, made provably false assertions and omitted facts to an audience who would be influenced by his assertions, and explicitly and repeatedly recommended people to ‘shun’ and ‘avoid’ the target - both professionally and personally. He expressed the opinion that the target was ‘mentally unhinged’ - a statement that on its own was derogatory, stigmatizing and defamatory in itself. He posted the rant at a time of high volume internet usage late on a Thursday night, with the weekend coming and people with plenty of time on their hands looking for entertainment. He tagged 7 people with large followings on Facebook platforms. He remained on the comments thread, actively inviting people to join in and add their two rupees’ worth.
Lawyers were interested in this incident for several reasons: most attacks in SL have been implicit rather than explicit. No personal name is mentioned, but left to innuendo and surmise, like the calumny cited as ‘open secrets’ in gossip columns.
The post was set to public setting and remained in the public domain for 24 hours, so the lawyers once notified were able to photograph the comments live, as they unfolded in real time, and observe the perpetrator’s actions as he sought to extend the reach of the post. Screen shots of the conversation thread were filed in evidence, with the police, who after due investigation charged the perpetrator with malicious harassment. As the creator of the post, he was indictable for libel. Slander is usually verbally expressed, and defamation is usually printed in a permanent form, and is characterized by malice and forethought. Given the fact that the perpetrator had internet expertise and familiarity, knowledge which he utilized in the perpetration of this assault, his malice on a number of counts was evident.
Indeed the ‘birds of a feather’ who flocked to answer his call were betrayed into exposing themselves to legal charges as well. 10 of these participants were sent legal letters of warning. The lawyers’ point of view was that damage to an individual’s reputation constitutes a form of assault on the person. Given the vast reach of the internet, unlike a one-off physical assault to the body in the real world, this damage could be perpetuated - and would increase, every time someone else responded with an emoji or a comment, in shock or amusement in relation to what they read.
Since 2002, coinciding with the rise of the internet, and the increasing usage by Sri Lankan people of social media, especially Facebook, citizens have been largely unprotected from targeted attacks on their personal and professional reputations, allowing hate speech of this very specific kind to proliferate.
The motive for the attack in that case was in fact a personal grudge. The perpetrator stated that he had been attacked by his target in an article published in the print media. On examination of the article, it was clear to all that no person had been named in the article, and that the perpetrator had acted on bias and made assertions based on that bias with the intention to cause harm to the target of his attack.
The perpetrator sought to portray the target in ways which would make people in the specific professional spheres in which she operated doubt and distrust her, based on his selective version of events. What he did was attempt to orchestrate what is called an ‘online lynching’.
Professor Rohan Samarajiva, Chairman of the ICTA, the Information and Communication Technology Agency, has noted the effect of group manipulation via online platforms himself, on his public Twitter account:
In the absence of a clear public defamation law, and strong public enforcement of that law, this kind of assault can and does happen.
FYI, if you see a professional person whose professional and personal reputation has been negatively impacted by attacks on their good name, here is a checklist:
• Were they named in the attack?
• Were any institutions or endeavors they are associated with, named?
• Was their professional competence attacked or undermined?
• Would the comments influence people not to seek their professional services?
• Would their income from the damage to their reputation as a provider of those professional services suffer loss?
• Would their status in their professional community be undermined and devalued?
• How many people were likely to have seen the attack? What was its reach?
• Were personal comments made about them: their personality, their appearance, their personal conduct, and/or their private life? How extensive and far-reaching was the attempted attack?
Assault on character is, as we can see, a serious matter. Defamation operates as a mediator between the exercise of free speech and the rights of individual citizens to conduct their lives with immunity from professional and personal harassment.
In a country like this, people exercise their freedom of speech sometimes crudely, and violently, and often without checking the facts of the matter, indulging themselves in verbal assault for the sake of entertainment. They are encouraged by the roars of the crowd, just as they are in public executions and at public lynchings. People who are experts in tribal behaviour and crowd manipulation and groupthink have researched this extensively.
Without a defamation law, although we seem unprotected, we are also unconstricted: we can be creative in our defense and in the remedies we seek. The traditional legal remedies were that the perpetrator would remove the offending words, offer an apology in the same forums in which the attack was made, and pay compensation in the form of damages - usually assessed in terms of income lost by the target as a result of the attack.
The rise of the internet has changed this scenario. Damage can be assessed at a much higher level now, and compensation demanded in step with that. If the perpetrator has no honour, no apology is forthcoming. If they have no money, compensation is not going to be payable. But their abuse of internet privileges can be stopped by their platforms being shut down. And they can be charged with harassment, if evidence is supplied and investigated and proved true.
And onlookers, bystanders, members of the crowd - on the internet, that means those commenting, and sharing the damaging posts - can be held to account as well. Getting carried away by what we see - and blurting out our shock or glee - can now involve us in a reckoning that will make us rue the day we shared our views with no consideration for the impact it would have on our fellow human beings.
