Daily News recently published an article regarding the possible introduction of a new law to control defamation in the form of slander and libel pertaining to Social Media. This law is said to have been proposed by the Law Commission to the Justice Ministry, which would treat defamation as a criminal offence.
The article presented by the author raises a few questions on the whole justification and the solution for ‘defamation’, which is in reality another form of the issue of cyberbullying in the context of Social Media. It looks at how Facebook slander had been the root cause for ‘several’ recent suicides in Sri Lanka, however failing to mention that there were in fact only a handful of such incidents in 2014 and 2015, of which only a few cases occurred due to cyberbullying.The article furthered looked at the reason why such a proposal was made by the Law Commission, being the increased number of formal complaints received by Sri Lanka Computer Emergency Readiness Team (SLCERT CC) involving Facebook and Twitter amounting to more than 2000 complaints.
The need for a more conductive online environment has lead to the introduction of many Anti Cyberbullying movements. When looking at the word ‘Cyberbullying’, it was coined by Bill Belsey, a Canadian, who was prompted into starting this movement after a shooting carried out by a bullied teen in a school in his community. This lead to the creation of the site bullying.org, which acts as a space where bullied children know that they are not alone and that it is not their fault.
Even with such an avid interest in the matter of bullying he stated that he sees no point in criminalizing the act of cyberbullying during an interview with The Huffington Post Canada, where he further said that;
“Do you think that a 15-year-old girl who was jilted by her boyfriend and is really mad at some other girl, do you think she is going to go, “Wait a minute, maybe I better not send a threatening text because there’s bill C-247 in Ottawa?” I think not. Legislation makes adults feel good”.
However, the mere passing of laws claiming such acts as a criminal offence will not help anybody, especially the bully, as many researchers have shown that, these bullies have certain emotional and psychological factors like low self-esteem, suicidal ideation, anger, frustration, that affect these actions.
“The impulse is to hold someone criminally accountable when a tragedy occurs but this reaction could have a chilling affect on freedom of speech and further clog our criminal justice system. If conduct crosses the line to invasion of privacy, harassment, or stalking those acts should be charged like any other crime but bullying should not be an exception to those existing criminal laws”.
If this law is to be introduced, this may ‘protect’ the bullied, but the retribution sought out from the bullies would have a crippling effect on them for their future, as they would be receiving a harsher fate of of imprisonment or the imposition of the death sentence.
This leads to another issue with the Law proposed by the Law Commission, which criminalizes the act of defamation. Before looking at why this criminalization is questionable, let us look at the interpretation on the Law of Defamation under Chapter 19 Section 479 of the Penal Code, which is;
“The law of defamation seeks to resolve the conflict between the freedom of speech and publication and the right of the individual to maintain his reputation against improper attack”
This states that defamation is applicable in the case where a person’s reputation is at stake, and slander refers to any verbal defamation, whereas libel would be the act of defamation that would be applicable for any written defamation.
When looking at the history of the Law of Defamation in Sri Lanka, upto to June 2003 it was tried as a criminal offence under the Penal Code of Sri Lanka. However, then ruling party United National Party (UNP), was in the forefront of the movement to repeal the relevant Section from the Penal Code, which identifies it as a Criminal offence and to identify it as a Civil Liability. This was done in order to create a better situation for the media in terms of their freedom of expression, which was previously constrained due to this control. Looking at this past, the Justice Ministry will have review this proposed ‘punishment’ with scrutiny as it would contradict a past stance of the UNP, and may even create a certain hostility towards the freedom that many have to voice their concerns.
Another question arises with the fact as to whether the use of the term ‘defamation’ is appropriate in such a situation, for if such a law is introduced to help aid those who are bullied and are bullying using the term ‘Cyberbullying’ would create a more inclusive interpretation, for sometimes they are not carried out with the intention of harming a person’s reputation, and furthermore, proving defamation under the general requirements would generally be a tedious task.
According to the Daily News article, the Justice Minister Wijeyadasa Rajapaksha had stated at a public event that they are reviewing the proposals made by the Law Commission and would soon be drafting the new law related to this. But prior to this law being drafted we believe that this too should be considered; not to classify this offence as a criminal one, and if one is proven to have committed the act of cyber-bullying, the defendant should be given a chance of improving their mental health, through a stipulated amount of state funded therapy for them to help themselves.