“I was convicted of cyber libel earlier this year, and now I have my ninth arrest warrant and could go to jail for a tweet. The legal acrobatics to harass and intimidate me continue, but these moves only convince me that we have to fight back and demand justice.” – Maria Ressa.

In late April this year, the cabinet gave its approval to formulate new laws to curb fake news, as it was referred to.

The cabinet decisions released said on the said matter that this initiative was with the objective to “protect society from harm caused by false propaganda on the internet”.

While the matter of formulating the law is currently being put together at the Legal Draftsman Department, a press release issued yesterday (June 8), by the Sri Lanka police stated that persons who share misinformation on social media that may result in the breakdown of the public peace, Conflicts between different races or religions, Sexual crimes against children and women, persecution of religious beliefs and various other scams Or any fake news that can result in the public acting in a manner to violate regulations imposed relating to quarantine, can be arrested without a warrant.

The press release goes on to explain that a person engaging in spreading “fake news” through social media platforms or a person aiding and abetting such an act shall be charged on identified laws.  

According to the said press release, the offences that have been categorised are by the sections under the Penal code, ICCPR act, section 6 of the Computer Crimes Act, under section 2 and 3 of the Prevention of Terrorism Act (PTA) and section 2 of the Obscene Publications Ordinance.

Offences recognised under the penal code are section 120 relating to exciting or attempting to excite disaffection, section 286 relating to having possession obscene books for sale or exhibition, section 286 a. obscene publication, exhibition relating to children, section 291disturbing a religious assembly, 291A uttering words with deliberate intent to wound religious feelings, 291B  deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs, section 345 sexual harassment, section 365 b grave sexual abuse, section 402 cheating by personation, 403 cheating and dishonestly inducing a delivery of property and section relating to 486 criminal intimidation.

With this statement by the Police,  it is important to consider the need to bring in the need for actual, reasonably proximate harm to be involved, and a judge to decide whether to arrest:

A senior criminal practitioner who wishes to stay anonymous shared his opinion on the matter stating that “it may be said that in a well-functioning democracy, free expression isn’t clamped down on, except where both the following conditions are met: 1) there is deliberate (intended) manipulation of facts; and 2) there is objectively establishable and reasonably proximate (occurring or probable) public harm that involves a clear offence prescribed by law.”

Speaking on the issue of arrest without a warrant he said that given that the police are necessarily controlled by and part of the “Executive” arm of government, it is imperative to effectively prevent abuses and curtail overzealous law implementation, a decision to arrest a person accused, should be taken by an independent judicial officer. The absence of such safeguards weakens free expression and thereby, democracy itself.

While it is important to clamp down on fake news and disinformation most critics of these laws are against bringing in criminal ramifications rather than civil claims. This attempt is most commonly seen as an attempt to strike down on dissent or constructive criticism rather than tackling the issue of fake news. This assumption has easily arrived as there are many examples locally and internationally where dissent has been struck down under the guise of curtailing “fake news”.

When efforts are made to curb fake news, it is important to distinguish between misinformation and disinformation, tweets senior Attorney at Law Viran Corea on the matter.

While “disinformation” can mean “deliberately misleading or biased information; manipulated narrative or facts; false propaganda,” “misinformation” means spreading of false information regardless of intent to mislead. The fact of intent is key.

He emphasises that in looking into a publication of wrong facts law enforcement should be mindful of and properly appreciate whether a real offence in law is objectively evident indicating disinformation. He highlights that in the process of tackling this issue, it should be considered whether it is an instance of the honest exercise of the freedom of expression which can sometimes involve views and statements based on wrong/erroneous facts. If so, such wrongful facts can be promptly refuted.

“It is important to appreciate that people’s freedom to express would be harmed if the mere basing of statements or views on something wrong or erroneous is treated as amounting to deliberate “disinformation” and/or involves the threat or real prospect of official harassment. Furthermore, “law enforcement would be reasonably perceived as primarily a tool of suppression of dissent, political or communal oppression and harassment, if the law is not applied equally, fairly and objectively to all”, he further said.

Freedom of expression engrossed in our constitution under Article 14 has been very gravely and thoughtfully upheld by our Supreme Court.

Senior Attorney Suren Fernando shows that in the case of Amaratunga V Srimal, famously known as the Jana Gosha case, the court said that “the right to support or to criticize Governments and political parties, policies and programmes, is fundamental to the democratic way of life, and the freedom of speech and expression is one “which cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions.”

“The Govt is supposed to protect and advance fundamental rights, not to stifle dissent under the guise of regulating “fake news” If govt communications are perceived as unreliable, that would provide fertile ground for fake news. A proper, efficient/timely govt communications strategy, sharing (truthful) info with the Sovereign People would be the best preventive against fake news,” his tweet read.

There are plenty of examples where politicians including from the top of the governance body have been engaging in making false statements, some unintentionally some intentionally. Unfounded remarks made by Minister Udaya Gammanpila saying that the use of tabs by school children can result in them being ill is an example that comes to mind. The many manipulated numbers relating to the economic performance of the country can also fall into the category of “fake news” if so. Who is to police what’s fake news and what is not?

The most recent jurisprudence on the matter comes from our neighbouring India, where just last week, the Supreme Court of India quashed a sedition case against a senior journalist; Vinod Dua.

Sedition charges were brought against the senior journalist for remarks made by him on his YouTube channel claiming that “unfounded and bizarre allegations were made against the Modi government.

When perusing the complaint made against the senior journalist Vinod Dua a clear parallel can be drawn with the above offences that have been identified in the press release issued by Sri Lanka Police yesterday.

“Mr Vinod Dua has spread false and malicious news by stating that the PM has garnered votes through acts of terrorism. This directly amounts to inciting violence amongst the citizens and will definitely disturb[AS1]  public tranquillity. This is an act of instigating violence against the government and the Prime Minister. He also creates panic amongst the public and disturbs public peace by trying to spread false information, such as, the government does not have enough testing facilities which is absolutely false. The government has sufficient facilities to curb the pandemic and have been taking all the measures to control the pandemic. By making such false statements, Mr Vinod Dua spread fear amongst the people. This video will only create a situation of unrest amongst the public which will result in panic and people not obeying the lockdown to come out and hoard essentials which are absolutely unnecessary. Mr Vinod Dua has circulated these rumours with the intent to defeat the Lockdown by creating an impression that there is a complete failure of the institution and it will become hard to survive this lockdown, if not acted upon immediately” the complaint continues.

The Bench led by Justice U.U. Lalit distinguishing between the right to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means as opposed to sedition states,

“Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.”

Earlier this month also saw the dismissal of cyber libel charges against Philippine’s Award-winning journalist and former CNN bureau chief Maria Ressa. She faces several litigations piled up on her that can end up in her looking at lifetime imprisonment. These attempts to stifle journalists under the guise of laws protecting against fake news has been universally criticised on the basis that they are used more as an instrument to cut down on dissent rather than preventing disinformation or fake news.

Senior attorney Suren Fernando reminds us of the words in the Jana Ghosha case which is aptly applicable to the current predicament.

“Stifling the peaceful expression of legitimate dissent today can only result, inexorably, in the catastrophic explosion of violence some other day.”


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