There has been only one cyber defamation case filed in the Sri Lankan District Courts, so far. Case reports are not accessible online and therefore it is impossible to determine the stance taken by the courts in such an action.

In years gone by, it was the Roman Law and Roman Dutch Law that was applied in defamation suits in Sri Lanka. However, recent cases show that English case law principles have seeped into the defamation jurisprudence in Sri Lanka.

It is interesting to note that although online publications targeted judges of the superior courts and senior public officials, no concrete action has been taken so far. There has been some inertia on the part of the statutory body set up to oversee and regulate telecommunication domains.

Professor Savithri Gunasekara in an erudite article observes that: ‘Civil  actions in damages in the law of delict are rarely instituted in this country, due to the fact that such proceedings involve long delays. They are also costly and the result is unpredictable. Besides, the defendant may not be a person of means who can pay the compensation awarded to the victim of a civil wrong or delict.’

The said article focuses on violations of Fundamental Rights guaranteed under the 1978 Constitution, namely, the freedom from being subject to ‘cruel and degrading treatment under Article 11 and the freedom to engage by himself or in association with others in any lawful occupation, profession or trade.’ It is vital that Judges of the superior courts play a proactive role in the evolution of the law in the field of defamation, in line with technological advances that are taking place.

The theories advanced by Kairy, Griffiths and Waldron all accept that Judges do have discretion and they do have the power to make new law. It is to be seen whether the conservative judges sitting on the benches of Sri Lankan courts will be guided by this bold theory that judges can in fact create law or will they recoil and ask hapless litigants to await the advent of statute law imposed by social planners? Since the defamatory matter was not published in a conventional publication, it is vital to look at the application of cyber defamation laws under international law and the domestic law in other jurisdictions.

The German Constitution guarantees the rule of law under Article 1. ‘The dignity of man is inviolable. To respect and protect it shall be inviolable,’ it says. No such provision is set out in our Constitution. It is silent on the right to dignity. In Canada it has been argued for a creation of a ‘Constitutional Tort’, to enable civil action for damages to be brought in respect of human rights/ constitutional rights, violations by the State.

The Supreme Court of the United States of America in the case of Stratton Oakmont v. Prodigy (1995) made online service providers remove obscene and libelous material from their databases. Subsequently, the passage of the Telecommunication Act 1996 caused this decision to be overruled.

As stated above, this is a classic example how courts should take a stand where there is no legislation available to deal with the issue. A similar case arose in the United Kingdom. Dr.  Laurence Godfrey, a History Lecturer, brought proceedings for Libel against Demon Internet Ltd which had stored and permitted transmission of a posting of a defamatory article on their news server via the internet. The defendants did not satisfy the requirement of reasonable care. What they did, caused and contributed to the publication.

Recently Australia’s apex court gave a landmark judgement concerning internet defamation and the related issue of defamation. In the case of Dow Jones v. Joseph Gutnick, Australia’s highest court ruled that the financial publishers, Dow Jones, can be sued in the Australian State of Victoria over an article that appeared in their website. The primary judge in the Australian court held that the Court had jurisdiction to try the matter although Dow Jones stated that the servers were in New Jersey in the United States of America. It went to the Court of Appeal and the High Court. It is the first time that an apex court of a country considered the question of jurisdiction over the internet.

The majority judgment further held that those who post information on the worldwide web do so knowing that the information is available to all, without geographical restrictions. The court further held that defamation is to be located at the place where the damage to the reputation occurs. That is in the place where any person downloaded the defamatory material that the damage to material can be done.

Unlike Sri Lanka, India has retained her criminal defamation laws. In fact South Asia’s very first case of internet defamation has been filed in India in the case of SMC Pneumatics Ltd v. Jogesh Kwatra where defamatory emails were sent to the top management of SMC by the defendant who has been restrained by the Delhi High Court. A new development in this sphere in Indian jurisprudence is the Information Technology Act 2000 which still has an element of mystery.

The court summarized the current status of cyber defamation succinctly in Zippo Manufacturing v. Zippo Inc. when it said there is a global revolution in the horizon in the development of the law dealing with cyber defamation.

With regard to International Treaties, the closest is the Budapest Convention on Cyber Crimes which deals with crimes committed online. This treaty is silent on the issue of cyber defamation. We became a party to the Budapest Cyber Crime Convention in September 2015. It is heartening to note that we are the first South Asian nation to subscribe to this important treaty. It is deplorable that while there are international legal standards to prosecute hackers and other cyber criminals, errant journalists who publish defamatory matter concerning others without lawful justification and excuse, go ‘scott free’.

Civil society organizations in Sri Lanka have been dabbling with a code of ethics for journalists during past two decades. This has not seen the light of day due to lack of political will and commitment. However, the esteemed Society of Professional Journalists has set out in their code of ethics: ‘that journalists should take responsibility for the accuracy of their work and verify information before releasing it. They should use original sources wherever possible.’

In the absence of international treaty law dealing with the subject of cyber defamation, provision has to be made under domestic law to deal with ghost-writers using the internet who violate human rights of innocent victims.

(The writer is an Attorney-at-Law & Senior Lecturer in Law, APIIT Law School)