Introduction
Even though the right to freedom of expression is recognised as a fundamental human right,Footnote 1 one of the essential characteristics of this right in a democratic society is that this right is not absolute and is subject to various legal restrictions to protect the fundamental rights and legitimate interests of fellow members of society, such as a person’s reputation, national security, and public safety.Footnote 2 Defamation is one of the legal restrictions on the exercise of freedom of expression, aimed at maintaining a healthy balance between freedom of expression and a person’s reputation (fama).Footnote 3 Hylton explains that ‘defamation law governs liability for disseminating words that tend to disgrace, injure the reputation, or diminish the esteem others hold for a person'.Footnote 4 Liability and remedies for defamation vary by jurisdiction and may be based on civil law, criminal law, or both. In some jurisdictions, defamation law is governed by statutes.
In the past, defamatory statements were published in written, visible, or oral form, primarily through communication media such as conversations, speeches, books, newspapers, magazines, drawings, handbills, notices, photographs, cartoons, cinematography, radio broadcasting, and television. For example, McKerron explains that ‘the wrong may be committed not only by words, written or spoken, but also by acts; for example, by the exhibition of a picture or effigy holding up another to ridicule or contempt.’Footnote 5 The highly interactive nature of modern modes of communication can cause enormous and irreparable damage to a person’s reputation within a few minutes, at minimal cost. After decades of experience with online platforms and social media, it has become evident that the new face of defamation in the cyber age poses a serious threat to a person’s reputation, requiring lawmakers and judges to assess the adequacy of the existing legal framework. According to Weaver,
Internet communications are quick, easy, and inexpensive, and virtually anyone can gain access to the ‘net’. As a result, defamation litigation may not be as effective as it has been in repressing speech. In addition, because the Internet is much more accessible than print and broadcast technology, the Internet may cause the courts to rethink their Free Speech doctrine as applied to defamation.Footnote 6
Internet communications have gained popularity because of their speed, convenience, and affordability, enabling countless individuals to connect and share information online. Access to the internet has transformed the way people share and receive information, creating challenges in defamation lawsuits. Mills emphasises that ‘the legal problems associated with defamation on social media are made more complex by the fact that through the internet in general, and social media in particular, communications will readily cross borders.’Footnote 7 The inherently trans-border nature of ‘the internet’ presents unpredictable challenges to the conventional and longstanding legal principles of defamation law, far greater than those posed by broadcast media, thereby exacerbating the tension between freedom of expression and the interests of other members of society. The impact of cyber defamation should not be underestimated, given that its unique characteristics have raised questions among the judiciary, lawmakers, and scholars about whether existing principles of delict should apply to such cases. The main objective of this article is to evaluate the adequacy of the civil law of defamation in Sri Lanka (in the law of delict) in addressing the issues and challenges posed by online defamation.
In a legal context, there is uncertainty regarding the definition and the elements of ‘cyber defamation’Footnote 8 or ‘online defamation’ in civil law.Footnote 9 Some legal scholars prefer to consider the elements of defamation under common law and apply them to cyber defamation without requiring a new, specific definition.Footnote 10 For example, concerning South African law, McKerron states that ‘defamatory imputations are usually made through the medium of language, and the principles of liability are the same whatever the medium employed’.Footnote 11 Iyer holds the same position: ‘in South African law online defamation falls within the broad umbrella of defamation law; thus, at the outset, it is important to consider what constitutes a defamatory statement and what needs to be proved for a claim of defamation to succeed.’Footnote 12
In the law of delict, Neethling and Potgieter define defamation as ‘the wrongful, intentional publication of words or behaviour concerning another person which has the effect of injuring his status, good name or reputation’.Footnote 13 In the historical development of Roman law, ‘defamation was regarded as a type of injuria for which the remedy was the actio iniuriarum’.Footnote 14 Publication of the defamatory statement is essential to the action. McKerron states that ‘the wrong of defamation consists in the publication of defamatory matter concerning another without lawful justification or excuse.’Footnote 15 Publication means communication to at least one person other than the plaintiff.Footnote 16 The content/material should be defamatory, and Neethling, Potgieter and Visser define a publication as defamatory if it has the tendency or is calculated to undermine the status, good name or reputation of the plaintiff.Footnote 17
According to McKerron, ‘the requirement of proving animus injuriandi or the wrongful intention of the defendant to defame the plaintiff was an essential element of the action.’Footnote 18 McKerron further explains that ‘this position was the same in the Roman-Dutch law, save that where the words were in their ordinary meaning, defamatory animus injuriandi was presumed.’Footnote 19 In the South African case Economic Freedom Fighters and Others v Manuel, the Supreme Court held that ‘once the publication of defamatory matter has been proved, it is presumed that the publication was wrongful and intentional, that is, published with the intention to injure (animus injuriandi)’.Footnote 20
However, when imposing delictual liability for cyber defamation, it is also important to distinguish liability for mass media from that for social media. South African courts have adopted a flexible approach towards defamatory statements published by mass media, where the judiciary has confirmed that ‘the liability of the mass media for unjustifiable false defamatory statements is based on fault (as opposed to strict liability), and that the form of fault is negligence rather than the intention to harm.’Footnote 21 Therefore, South African law recognises negligence as sufficient to establish liability in mass media defamation cases. South African defamation law requires several elements to be fulfilled in a delictual action for defamation: publication of defamatory content concerning the plaintiff, wrongfulness, and the defendant’s fault.Footnote 22
In English tort law, Winfield and Jolowicz define ‘defamation as a publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society, generally or tends to make them shun or avoid him.’Footnote 23 As Fleming points out, ‘a defamatory statement may be defined as one which tends to lower a person in the estimation of his fellow men by making them think the less of him.’Footnote 24 Concerning the definition of defamation, Rogers puts forward an interesting argument that
words may be defamatory if they tend to cause the claimant to be shunned or avoided, for it is unquestionably defamatory to impute insanity or insolvency to a person, although, far from exciting hatred, contempt or ridicule, it would rouse only pity and sympathy in the minds of reasonable people, who may nevertheless be inclined to shun his society.Footnote 25
Liability for defamation in English law can be divided into two categories: libel (a defamatory statement in written form) and slander (a defamatory statement conveyed by spoken words or gestures).Footnote 26 In English tort law, a plaintiff must prove certain elements to succeed in a defamation action: the words must be defamatory, they must refer to the plaintiff, and they must be maliciously published.Footnote 27 Contemporary English defamation law is governed by the Defamation Act 2013.Footnote 28 In English law, ‘a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the claimant’s reputation.’Footnote 29 Concerning the requirement of serious harm, section 1(2) of the Defamation Act 2013 further describes that ‘harm to the reputation of a body that trades for profit is not serious harm unless it has caused or is likely to cause the body serious financial loss.’Footnote 30 One of the significant features of the Defamation Act 2013 is that it provides defences for website operators, as well as court orders for removal of defamatory statements from websites in cases of online defamation.Footnote 31
This article focuses on the adequacy of Sri Lankan law in providing effective legal protection against online defamation while balancing the rights to freedom of expression and a person’s right to reputation.Footnote 32 As a result of the abolition of criminal liability for defamation and the absence of a statutory remedy in Sri Lankan law, litigants must rely on defamation actions in the law of delict to seek remedies for harm caused by defamation.
It does so on the basis of doctrinal legal research. Primary and secondary sources include the relevant constitutional provisions, statutes, case law, international treaties, academic writings, reports, and dictionaries. It also examines opportunities for legal reform and development, drawing on recommendations from scholars, experts, and law commissions. Furthermore, the article has an explicitly comparative component in that it analyses recent developments in South African and English law concerning online defamation. This is because the law of delict in Sri Lanka is influenced by South African delict law and English tort law.Footnote 33 Historically, the legal systems of both South Africa and Sri Lanka have been shaped by the laws introduced during the British and Dutch colonial eras. Therefore, both Sri Lanka and South Africa have been influenced by Roman-Dutch law and English law.
Cyber Defamation: Conflicts, Challenges, and Issues
The rapid growth of internet usage has contributed to the dissemination of defamatory material to a broader audience than ever before. Due to the permanent, interactive, and global nature of online postings, online defamation can inflict extensive and irreversible harm on a person’s reputation. As pointed out by Weaver, ‘the Internet threatens to reshape many aspects of modern defamation law, especially concerning trans-jurisdictional litigation’.Footnote 34 Online communication platforms and social media facilitate the rapid dissemination of defamatory content at minimal cost to a vast global audience, compared with traditional media.
Another unique feature of online communication platforms is the ability to publish user-generated content (UGC). The risk associated with UGC is that users or readers can post defamatory statements or self-created content without the support or intervention of traditional media personnel, such as publishers, editors, printers, and producers. This allows users to exercise their freedom arbitrarily and without filtering on unmonitored online media platforms. Therefore, modern defamation law has to address the liability of internet intermediaries for defamatory content posted by third parties. Another issue is liability for defamatory statements reposted on online platforms.
From a legal standpoint, a challenge associated with online defamation is the anonymity and pseudonymity of internet users. This cloak of invisibility enables individuals to engage in defamatory behaviour with little fear of repercussions, as they can hide their identities behind digital masks. Even though pseudonymity was not an alien practice in publications during the era of traditional media, the opportunities available to web users to hide their true identities, particularly on social media, in web comment sections, and in chat rooms, create serious difficulties in identifying the defendant in online defamation cases.Footnote 35 This leads to lengthy court proceedings, including the need to obtain a court order to ascertain the defamer’s true identity, thereby incurring additional legal costs for the plaintiff.Footnote 36 Vamialis argues that ‘defamation victims are experiencing significant difficulties in their effort to uncover the anonymous tortfeasor and seek justice.’Footnote 37 In addition, offences such as cyber hacking, online impersonation,Footnote 38 and identity theft in cyberspace create an ‘identity crisis', which can complicate defamation lawsuits.
Cyber defamation may also cause considerable harm to the victims by negatively affecting their physical health and psychological well-being. It is reported that, in some cases, the victims of cyber defamation incidents have died by suicide.Footnote 39 As Standen correctly points out, in these cases, the most difficult challenge lies in taking action to control the spread of defamatory content to a vast worldwide audience. In Standen’s words:
What was said about someone in even the smallest of towns can literally have worldwide reach and can give rise to reputational injury that will never cease, following the victim around in every aspect of personal and professional life for the rest of their life, and even be attached to their name for subsequent generations.Footnote 40
Considering the impact of cyber defamation, it is essential to assess the adequacy of the contemporary legal framework for cyber defamation and to address the unique and challenging aspects of cyber defamation, including by introducing mechanisms like the ‘notice and take-down procedure’ in order to minimise and prevent harm.Footnote 41
The need to reconcile freedom of expression with a person’s right to reputation is another challenge in the digital age. Freedom of expression is the foundation of a democratic society and one of the ‘highest aspirations of common people’.Footnote 42 Nevertheless, this fundamental human right is not absolute, and certain limitations have been imposed to prevent impairment of a person’s reputation, thereby providing a legal shield against defamation.Footnote 43 It has been argued that there is a need in modern society ‘for regarding interest in fama of a natural or a juristic personFootnote 44 not only as a matter of personal honour but also as an economic asset and, therefore, as a part of his patrimonium.’Footnote 45 The Supreme Court of Canada in Hill v Church of Scientology of Toronto elucidates the rationale behind this: ‘freedom of speech, like any other freedom, is subject to the law and must be balanced against the essential need of individuals to protect their reputation.’Footnote 46
Given the importance of the debate on balancing these two rights, many of the international and regional instruments, including article 12 of the Universal Declaration of Human Rights,Footnote 47 article 19(3)(a) of the International Covenant on Civil and Political Rights,Footnote 48 article 10(2) of the European Convention on Human Rights,Footnote 49 and articles 11(1) and 11(2) of the American Convention on Human Rights,Footnote 50 have recognised that exercising freedom of expression is subject to respect for another person’s right to reputation. In an online defamation lawsuit, the rights of the defendant are also vital for balancing the conflicting rights in cyberspace.Footnote 51
Another challenge that must be highlighted in this discussion is the liability of other parties who are not the original publisher of the defamatory post. In South African law, ‘not only the person from whom the defamatory remark originated but also any other person who repeats, confirms or even draws attention to it, is in principle responsible for its publication.’Footnote 52 In Sri Lankan law, Amerasinghe explains that ‘it is no defence that the defendant merely repeated a defamatory statement, having not been the original author… and a person who repeats a defamatory statement is regarded as adopting it and, therefore, publishes it.’Footnote 53 Therefore, the common law rule on third-party republication in print media in defamation law can be used to determine the obligations of other parties that contribute to the online republication of defamatory content.
Furthermore, the complexity of online publication also poses the issue of defining and differentiating the liability of neutral entities within the internet intermediary system, including internet service providers, search engine operators, cloud storage providers, and social network operators. Dixit points out that
many legal scholars believe that though the intermediaries themselves are not the publishers, there is a need to affix some liability on them to effectively and efficiently protect the right to reputation of persons who are at the wrong end of online defamation.Footnote 54
Moreover, online defamation raises issues of choice of law and jurisdiction. Iyer points out that
the matter of selecting the appropriate court in online defamation cases may be simple where parties are from the same real-world jurisdiction, but the challenge arises where the parties to the legal suit come from different geographic locations.Footnote 55
According to Nel, ‘publication of a defamatory allegation on the Internet or other network systems raises several cross-jurisdictional issues, as a single news item or e-mail message could be published in multiple countries and, therefore, multiple jurisdictions.’Footnote 56 When the defamer’s identity and location are concealed, the litigation process may be more complex and protracted. Waldman explains that ‘the potential anonymity of the tortfeasor and the potentially wide distribution of the injury-causing material may make identification of proper jurisdiction unusually difficult.’Footnote 57 To resolve these issues, courts must be empowered by legislation to handle such cases, including laws on mutual assistance in civil matters and on the recognition and enforcement of foreign judgments in Sri Lanka.Footnote 58 Additionally, establishing collaborative agreements with other countries at regional and international levels is essential for addressing jurisdictional issues, obtaining necessary support to enhance cybersecurity, and improving cooperation in investigations.Footnote 59
Another area where the conflict of rights arises in multi-jurisdictional online defamation lawsuits is ‘libel tourism’ or ‘forum shopping.’Footnote 60 According to Robinson-Dunning, ‘this danger is especially present for online defamation actions because the parties to the action can be located in multiple jurisdictions.’Footnote 61 Forum shopping, or the opportunity to deliberately choose the most favourable jurisdiction for the plaintiff in multi-jurisdictional cyber defamation cases, is a threat to the right to freedom of expression and a challenge to ensuring equality and fairness in access to justice. The Council of Europe found a high likelihood of abuse of this opportunity in litigation:
in some cases, jurisdiction may be chosen by the claimant because the defendant will not be able to appear before a foreign court to defend his or her case or because the mere cost of the procedure or the potential amount of damages awarded may have a dissuasive effect.Footnote 62
In another example, the Law Commission of Ontario addresses issues in private international law concerning multi-jurisdictional online defamation cases as follows:
Unless jurisdiction is appropriately circumscribed, a concern for libel tourism arises; that is, plaintiffs may act strategically in choosing a plaintiff-friendly forum for bringing their action and as a result of that, libel tourism impinges on freedom of expression and creates a libel chill by subjecting defendants to a lawsuit in a jurisdiction to which they have little or no connection.Footnote 63
The report of the Council of Europe on the ‘Liability and Jurisdictional Issues in Online Defamation Cases’ reveals that
The choice of a specific forum may open to the claimant a range of advantages: (1) the chosen forum’s rules of procedure may be more ‘plaintiff-friendly’ than in other jurisdictions, (2) substantive law applicable to the merits of the case may be more advantageous for the claimant, or (3) the chosen forum’s practice may be favourable to the claimant’s case, for instance, the practice of high damages awards; therefore, various interconnected factors may influence the choice of forum, irrespective of the claimant’s personal motives.Footnote 64
Therefore, it is important to have a solution, either through intervention by the national legislature or through the principles or tests developed by the judiciary, to avoid the misuse of gaps and grey areas in private international law concerning online defamation. These are some of the issues associated with online defamation that require immediate legal responses. As illustrated in this section, the parties’ conflicting rights and the challenges posed by online defamation demonstrate the urgent need to revisit defamation law in Sri Lanka.
Law of Defamation in Sri Lanka: A Brief Analysis
The Constitutional Approach to the Right to Reputation in Sri Lanka
A person’s reputation is an integral part of the right to life and is closely interconnected with other human rights. The full development of human personality and the enjoyment of a meaningful life and freedom require adequate constitutional safeguards in Sri Lankan law against infringements of a person’s reputation. The Constitution of Sri Lanka does not guarantee the ‘right to reputation’ or the ‘right to life’ as fundamental rights. Hence, in the absence of an explicit provision guaranteeing ‘the right to life’ in the Sri Lankan Constitution, the opportunity for the judiciary to expand the boundaries of fundamental rights jurisdiction to include non-guaranteed rights, such as the right to reputation and the right to dignity, could be considered limited.Footnote 65
On the other hand, the Directive Principles of State Policy under article 27(2)(g) of the Constitution declares that ‘raising the moral and cultural standards of the People and ensuring the full development of human personality’ is included in the establishment of a democratic Sri Lankan society.Footnote 66 Without protections for a person’s reputation, the full development of human personality and moral standards in a society cannot be ensured. However, the legal enforceability of article 27 is restricted by article 29 of the Constitution, which states that
the directive principles of the state policy do not confer or impose legal rights or obligations and are not enforceable in any court or tribunal and no question of inconsistency shall be raised in any court.Footnote 67
Thus, this restrictive and inadequate approach towards a person’s reputation does not provide sufficient constitutional protection.
Furthermore, article 15(2) of the Constitution recognises defamation as a restriction on the right to freedom of speech and expression.Footnote 68 Article 15(2) stipulates that
the exercise and operation of the fundamental right recognised by Article 14(1)(a) shall be subject to such restrictions as may be prescribed by law in the interests of racial and religious harmony or concerning parliamentary privilege, contempt of court, defamation or incitement to an offence.
In Malalgoda v Attorney-General and Another, the Supreme Court of Sri Lanka held that
the language of Article 15(2) of our Constitution makes it clear that the fundamental right of freedom of speech can only be exercised subject to the limitation that there can be no transgression of the restrictions prescribed in Article 15(2).Footnote 69
The Court reaffirmed that a publisher must enjoy freedom of publication provided they stay within the limits set by article 15(2).Footnote 70
Likewise, article 15(7) of the Constitution declares that ‘the exercise and operation of the right to freedom of expression in Article 14 shall be subject to restrictions as may be prescribed by law in the interests of securing due recognition and respect for the rights and freedoms of others.’Footnote 71 The term ‘respect for the rights and freedoms of others’ can be interpreted more broadly by including the right to one’s reputation. This discussion concludes that, in the absence of adequate constitutional safeguards for the right to reputation, the judiciary plays an important role in engaging in the progressive development of the law through judicial construction.
Legal Protection for the Right to Reputation in the Penal Code and Other Statutes
The criminal liability for defamation, as incorporated in section 479 of chapter XIX of the Penal Code of Sri Lanka,Footnote 72 was repealed by the Penal Code (Amendment) Act No 12 of 2002.Footnote 73 Abolishing criminal defamation in Sri Lanka was a legislative response to recommendations from legal scholars and human rights activists to uphold freedom of expression and media freedom in the country without imposing criminal liability for defamation.Footnote 74 In Sri Lankan law, there is no specific statute governing defamation. However, some statutory enactments recognise the importance of protecting a person’s reputation.
For example, section 14 of the Assistance to and Protection of Victims of Crime and Witnesses Act No 10 of 2023 provides
legal protection for a victim or a witness of a crime against threats with any harm to his person, reputation, or property or to the person or reputation or property of any other in whom such victim of crime or witness has an interest.Footnote 75
According to section 14,
any person who commits an offence under this section shall be convicted by the High Court and shall be liable to a fine not exceeding one hundred and fifty thousand rupees, or to imprisonment of either description for a period not exceeding three years, or to both such fine and imprisonment. In addition, the person who committed the offence may also be ordered to pay compensation not exceeding five hundred thousand rupees.Footnote 76
Furthermore, section 104 of the Assistance to and Protection of Victims of Crime and Witnesses Act defines ‘injury’ as ‘any harm whatever illegally caused to the body, mind, reputation or property of any person’.Footnote 77
In a civil defamation action, it is also important to address the legal recognition of the admissibility of computer evidence. The Evidence (Special Provisions) Act No 14 of 1995 of Sri Lanka was enacted to provide for the admissibility of audio-visual recordings and of information contained in statements produced by computersFootnote 78 in civil and criminal proceedings.Footnote 79 Notably, section 5(1) of the Evidence (Special Provisions) Act provides that
In any proceeding where direct oral evidence of fact would be admissible, any information contained in any statement produced by a computer and tending to establish that fact shall be admissible as evidence of that fact if it is shown that
(a) The statement in the form that it was produced, or the form in which it is reproduced, is capable of being perceived by the senses,
(b) At all material times, the computer producing the statement was operating properly, and
(c) The information supplied to the computer was accurate, and the information contained in the statement reproduces or is derived from the information so supplied to the computer.Footnote 80
The Evidence (Special Provisions) Act was a long-awaited statute that marked a significant milestone in Sri Lankan law by recognising the admissibility of audio-visual recordings and computer-based evidence in court proceedings. However, concerning civil lawsuits, Justice Saleem Marsoof points out a lacuna in the statute:
The Evidence (Special Provisions) Act and the Electronic Transactions Act focus on admissibility and not on the discovery of evidence; as far as civil procedure is concerned, it is unfortunate that neither of these enactments contains any provisions for the discovery of electronic or computer evidence that may be in the computer or other device belonging to an adverse party.Footnote 81
The Computer Crime Act No 24 of 2007 of Sri Lanka provides for ‘the identification of computer crime and […] the procedure for the investigation and prevention of such crimes.’Footnote 82 If someone accesses another person’s computer or any information held in a computer without lawful authorityFootnote 83 for the purpose of committing defamation against the computer’s owner or any other third party, the wrongdoer who gained unauthorised access may be held liable for computer crimes under the Computer Crime Act of Sri Lanka.Footnote 84 However, this Act does not provide a legal safeguard against online defamation.
A recent legislative effort, the Online Safety Act No 9 of 2024, aims to ‘protect persons against harm caused by communication of prohibited statements by way of an online account or through an online location.’Footnote 85 Although this legislation does not contain a direct provision on online defamation, section 20 of the Act protects against the communication of statements online that cause harassment.Footnote 86 Section 20(2)(b) of the Act defines harassment as
an act or behaviour which has the effect of threatening, alarming or distressing a person or violating a person’s dignity or creating an intimidating, degrading, hostile, humiliating or offensive environment or which has all such effects.Footnote 87
Although creating a degrading or humiliating environment can constitute defamation, the absence of a legislative purpose to include an express and direct provision covering defamation indicates that the Online Safety Act does not intend to govern online defamation.
Civil Law of Defamation in Sri Lanka
According to Amerasinghe, ‘the law of defamation in South Africa and Ceylon is intended to prevent and remedy the culpable jeopardising of the right of every person to the amenity of the society of his kind.’Footnote 88 Therefore, in the absence of criminal defamation, a constitutional safeguard recognising the right to reputation as a fundamental right, and a specific statute protecting against defamation, civil liability for defamation under the law of delict has become the principal legal safeguard against intentional infringements of the right to reputation in Sri Lanka.
Chief Justice Basnayake in De Costa v The Times of Ceylon Footnote 89 states that ‘it is well settled that questions relating to defamation fall to be determined in this country according to the principles of Roman-Dutch law.’Footnote 90 However, there have been occasions when the Sri Lankan judiciary has adopted English law principles to develop defamation law.Footnote 91 In an early case, Jayawardena v Aberan, the judiciary interpreted the modes of defamation in a broader manner:
malicious publications either by word, or mouth, by writing, by printing, or by pictorial or other representation, either in his presence or his absence, publicly or secretly, anything whereby a person’s honour or good name is injured or damaged.Footnote 92
Amerasinghe explained that ‘any conduct could be defamatory since conduct to be defamatory must amount to a representation.’Footnote 93
First, the elements of a defamation action in the law of delict should be discussed. Sri Lankan courts describe the elements of a delictual action against defamation as a ‘publication of any matter with the intention (animus injuriandi)Footnote 94 of injuring another in his fair name and reputation, or bringing him into hatred, contempt, ridicule, or lowering him in the esteem of others.’Footnote 95 Sri Lankan courts have decided that, where the words used are defamatory, the burden of negativing animus injuriandi rests upon the defendant.Footnote 96
It is also important to discuss how to determine whether words are defamatory. Amerasinghe went beyond the conventional definition of what is defamatory and explained that ‘defamatory includes statements which had the effect of making others shun or avoid the person of and concerning whom the statement was made or make them reluctant to associate with the person concerned.’Footnote 97 A statement/content can be defamatory per se or by innuendo.Footnote 98 As Sri Lankan courts have held, ‘to decide whether the statement is “per se defamatory”, the test to be adopted is the test of a reasonable man.’Footnote 99 Citing the South African decisions, Amerasinghe stated that
a reasonable man is a person of normal understanding and development and having normal emotional reactionsFootnote 100 and the reactions of the reasonable man, which are considered, must normally be those of the right-thinking member of general society.Footnote 101
Concerning the element of publication, Amerasinghe argued that ‘it is highly ambiguous to use the words like “publication” and “published” as they have several meanings in ordinary usage.’Footnote 102 Athulathmudali argued that ‘publication does not appear to have been required in the Roman-Dutch law, and most Dutch authorities, including Voet, do not mention it.’Footnote 103 He further explained that ‘the definition of defamation as an injuria requiring contumelia (insult) suggests that it is sufficient if the person’s feelings are wounded'.Footnote 104 Athulathmudali concluded that ‘the modern law, both in Ceylon and South Africa, is that publication is clearly a requisite in an action for defamation.’Footnote 105 However, holding a different viewpoint, Wikramanayake has stated that ‘it is true that writers of Roman-Dutch law do not expressly state that publication is necessary, but the injuria with which Voet deals is much wider than defamation.’Footnote 106 He added that
it is obvious that a person’s reputation cannot be impaired unless the defamatory statement reaches the ears of persons other than the plaintiff himself, and publication merely means the act of making the statement known to persons other than the person defamed.Footnote 107
In addition, ‘reference to the plaintiff’ is another element of the delictual action for defamation, as it is considered a personal action for personal injury. According to Amerasinghe, ‘no person can institute an action for defamation unless the statement in question has been made of and concerning him.’Footnote 108 Therefore, in general, to constitute defamation in the law of delict in Sri Lanka, there are five elements to prove: publication of the statement/content, animus injuriandi, defamatory effect of the statement/content, reference to the plaintiff, and wrongfulness that causes harm to the good name or reputation of the plaintiff. To succeed in a defamation lawsuit, the plaintiff must show that the alleged defamatory statement/content does not fall within the scope of defences in the defamation law, including justification, fair comment, privilege and the consent of the victim/plaintiff.Footnote 109
It is also essential to discuss the remedies available to the plaintiff/claimant in a defamation action under delict law. In a successful defamation action, there is a range of remedies and relief available to the plaintiff, such as claiming damages for the impairment of their reputation,Footnote 110 claiming damages for patrimonial loss, receiving an apology from the defendant,Footnote 111 obtaining a retraction by the defendant and obtaining an interdict/injunction to restrain the defendant from continuing publication/circulation and republishing of the same or similar defamatory content.Footnote 112 According to the case law, in determining the quantum in respect of defamation,
the court may take into account various factors including the nature of the defamatory statement; the reputation, character and conduct of the plaintiff; the nature and extent of the publication; and the motives and conduct of the defendant.Footnote 113
Lessons from Comparative Law
Moving Towards a Statutory Remedy for Defamation
The unique characteristics of the internet, including its interactive nature, openness to a vast audience, greater accessibility, ease of self-publishing, long-term data storage, and high data transmission speeds, distinguish it from other modes of communication. Unless properly regulated, the risks associated with these characteristics of modern communication can convert these revolutionary technological inventions into dangerous weapons that can tarnish a person’s reputation within a few seconds. According to the Information and Cyber Security Strategy of Sri Lanka (2019-2023), ‘enactment of legislation, policies and standards to create a regulatory environment to protect individuals and organisations in cyberspace has been recognised as one of the six pillars of the government’s strategy.’Footnote 114 Given the gravity of the harm caused by online defamation, this article suggests examining recent developments in other jurisdictions to identify opportunities to address these challenges and introduce reforms to Sri Lankan law.
The Law Commission of England, in its report, ‘Defamation and the Internet’,Footnote 115 has recognised four areas of concern regarding the provision of adequate legal protection against cyber defamation: the liability of internet service providers (ISPs),Footnote 116 the application of the limitation period to online archives, the exposure of internet publishers to liability in other jurisdictions, and the risk of prosecution for contempt of court.Footnote 117 One of the most significant legal issues in this area is whether a website operator can be held liable for a defamatory post, particularly in the absence of an employer-employee relationship between the defamer and website operators.
In English law, the Defamation Act 2013 provides a statutory framework for determining ISPs’ liability in online defamation cases. The Act introduces a defence that provides immunity to website operators in certain circumstances, as provided in section 5.Footnote 118 Moreover, section 5(2) of the Act states that ‘it is a defence for the operator to show that it was not the operator who posted the statement on the website.’Footnote 119 However, to balance the parties’ rights, the statute has also introduced circumstances in which the claimant can defeat the defence.
According to section 5(3) of the statute:
The defence provided for the website operators can be defeated in a situation where the claimant can show that (a) it was not possible for the claimant to identifyFootnote 120 the person who posted the statement, (b) the claimant gave the operator a notice of complaint in relation to the statement, and (c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.Footnote 121
As provided in section 5(11) of the Act, this defence is defeated ‘if the claimant shows that the website’s operator has acted with malice in relation to the posting of the statement concerned.’Footnote 122 However, ‘the defence under this section is not defeated by reason only that the website operator moderates the statements posted on it by others.’Footnote 123 Furthermore, the UK Parliament has enacted the Defamation (Operators of Websites) Regulations of 2013 in exercising its powers conferred by section 5 of the Defamation Act 2013.Footnote 124 The Regulations of 2013 provide for the notice of complaint, the operator’s actions in response to the notice, the court’s discretion to take action after the expiry of the time limit, and the removal of statements from the website.Footnote 125
In English law, the Defamation Act 2013 introduced the ‘single publication rule’Footnote 126 to prevent defamation actions from being brought when the contested statement was published in another state and republished, sometime later, in the UK.Footnote 127 Furthermore, section 9 of the Act provides that
a court does not have jurisdiction to hear and determine an action to which this section applies [this section applies to an action for defamation against a person who is not domiciled in the United Kingdom] unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is the most appropriate place in which to bring an action in respect of the statement.Footnote 128
In Walter Tzvi Soriano v Forensic News LLC and Others, the Court of Appeal of England explained that
Over the years, libel claims brought in England by and against foreigners who had or were thought to have relatively slender connections with this jurisdiction acquired the disapproving label ‘libel tourism,’ and section 9 of the Defamation Act 2013 was aimed at this perceived problem.Footnote 129
These findings underscore the importance of regulating libel tourism to prevent abuse of the litigation process and to protect the rights of claimants and defendants in multi-jurisdictional online defamation cases.
It is crucial to take the necessary steps to prevent further dissemination of the original statement or the subsequent publication of defamatory content, thereby minimising and controlling the harm to the victim. In English law, section 13(1) of the Defamation Act 2013 provides that
where a court gives judgment for the claimant in an action for defamation, the court may order (a) the operator of a website on which the defamatory statement is posted to remove the statement, or (b) any person who was not the author, editor or publisher of the defamatory statement to stop distributing, selling or exhibiting material containing the statement.Footnote 130
Similarly, in Scottish law, section 30(1) of the Defamation and Malicious Publication (Scotland) Act 2021 provides that
In defamation proceedings, a court may order (a) the operator of a website on which the statement complained of is posted, (i) to include on the website a prominent notice that the statement is subject to the proceedings, or (ii) to remove the statement, or (b) any person who was not the author, editor or publisher of the statement to stop distributing, selling or exhibiting material containing the statement.Footnote 131
As shown, both English defamation law and Scottish defamation law have shifted from common law to statutory law. These statutes expressly address specific legal aspects and controversial issues concerning online defamation.
Developing Common Law to Address Online Defamation
As Abeyaratne correctly pointed out in his work, ‘Information and Communication Technology (ICT) is developing day by day, and legal issues relating to ICT are also developing at the same speed.’Footnote 132 To address the unique legal issues associated with online defamation such as jurisdictional matters; the possibility of introducing the ‘single publication rule’ concerning online defamation; the liability of website operators; the liability of third parties involved in online defamation cases who are not the original defamer(s); trans-boundary defamation cases; and the prevention of forum shopping in defamation lawsuits, legal reforms are required.
The question at the heart of this discussion is whether the common law of defamation in Sri Lanka can address these challenges. Regarding defamation, some jurisdictions rely on developing common law to redress victims, whereas others have moved from common law to statutory law.Footnote 133 There are cases in which courts have successfully applied the common law of defamation to remedy online defamation.Footnote 134 The Supreme Court of Appeal of South Africa in Economic Freedom Fighters and Others v Manuel explained that ‘the rise of social media will continue to focus attention on this area of the law (defamation).’Footnote 135 The Court added:
Significant in this judicial convergence is that all societies are facing similar issues, but each has found it necessary to address it in its own way in accordance with its own legal principles: some have addressed the problem by developing common law, some have resorted to statutes, and others have found the answers by blending constitutional principles and common law development.Footnote 136
In South African law, the Constitution facilitates the development of common law.Footnote 137 Section 39(2) of the Constitution states that ‘when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport, and objects of the Bill of Rights.’Footnote 138 Section 10 of the South African Constitution guarantees that ‘everyone has inherent dignity and the right to have their dignity respected and protected.’Footnote 139 On the other hand, section 39(3) declares that ‘the Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation to the extent that they are consistent with the Bill.’Footnote 140
Moreover, section 173 of the South African Constitution proclaims that
the Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has the inherent power to protect and regulate their process, and to develop the common law, taking into account the interests of justice.Footnote 141
The Constitution empowers South African courts to develop the country’s common law in accordance with the Bill of Rights, thereby ensuring justice.Footnote 142 Another important observation about South African law is that the courts tend to be mindful of the need to balance freedom of expression with developments in the common law of defamation.Footnote 143
Even though there is no such constitutional empowerment to develop the common law, the Supreme Court of Sri Lanka has followed a progressive approach in its recent decision in Karunanayake v Thushari Ranga Mannapperuma, where the judges emphasised the ability of the courts to develop the principles of the law of delict to suit modern complex situations.Footnote 144 The Court further held that
It would thus be seen that, particularly since the Roman-Dutch law remains in the domain of the ‘common law’ of Sri Lanka, it has been possible for judges of apex courts to interpret and apply it, subject at the time to suitable adaptations to suit contemporary conditions of life in Sri Lanka, complexities of modern human behaviour and social norms.Footnote 145
This judicial confidence strengthens the case that the common law of Sri Lanka can be developed to provide a remedy for online defamation, as courts can develop legal principles and new tests to address the legal issues arising from transformations, innovations, and the complexities of modern society.
However, some scholars argue that, although the judiciary can address matters within the scope of the common law, parliamentary intervention to enact new statutes would be a better solution. For example, Lord Robert Walker, in his speech, explained the role of the judiciary in developing common law in England and its limitations, concluding that ‘in the absence of legislative action, they [judges] must resolve justiciable issues brought before them, however much they may feel that parliamentary intervention would have been the better and more democratic course.’Footnote 146
With respect to South African law, Iyer suggests introducing a statute on online defamation:
For the future, the need to enter into discussions to consider codifying online defamation in a specific Act may be crucial to jettison trivial claims, prevent huge court backlogs, address and balance competing interests of freedom of expression and reputational harm, as well as address challenges of online jurisdiction and anonymity, amongst others.Footnote 147
This discussion identifies two scholarly positions on the role of the judiciary in developing the common law of defamation to address online defamation.
Practical and Technical Issues
In addition to the legal and technological issues discussed above, providing an effective legal remedy for online defamation has become one of the most challenging areas in the Sri Lankan legal system due to various practical difficulties. Major barriers to protecting the rights of victims include their reluctance to seek legal remedies for various reasons, including the social stigma attached to the litigation process, the high costs of litigation and lengthy court proceedings, and the lack of public knowledge regarding the risks associated with online communication methods.Footnote 148 The inadequacy of legal authorities, state guidelines and policies, research, and legal literature on cyber defamation law has created a legal vacuum in this area of Sri Lankan law.
On the other hand, as Justice Saleem Marsoof recommends,
investigators, computer forensic experts, lawyers, and judges must also develop the necessary skills to deal with issues arising from such evidence and provide the necessary equipment and infrastructure for the Courts to grapple with the challenges provided by this new field of evidence.Footnote 149
Raising awareness about the rights and responsibilities of both internet users and service providers regarding internet defamation is crucial.
Nel suggests the following precautions:
An online magazine should try to limit access to its forum to people whose identities it has verified independently and require them to use their real names so that the magazine can track them down if they post problematic messages; a service provider should take steps to ensure that its conditions of use are brought to the attention of its users, service providers and owners of computers on networks to ensure as far as possible that misusers can be identified, and providing proper training for the employees who are running online platforms to handle the defamatory incidents.Footnote 150
Therefore, it is vital to address these practical issues and the legal vacuum and to take the necessary steps to overcome the identified inadequacies in Sri Lankan law, combat online defamation, and redress victims.
Recommendations and Conclusion
This article has asked whether the common law of Sri Lanka can address the complex legal issues in online defamation cases through judicial interpretation or whether legislative intervention by Parliament is necessary. Developing the common law through courts to address complex online defamation cases is challenging. Justice Willis in H v W stated that:
Social media, of which Facebook is a component, has created tensions for rights in ways that could not have been foreseen by the Roman Emperor Justinian’s legal team, the learned Dutch legal writers of the seventeenth century (the ‘old authorities’), or the founders of our Constitution.Footnote 151
Similarly, Segal points out that ‘modern modes of communication are causing the Courts to question whether traditional principles ought to apply in the context of internet defamation.’Footnote 152 Although it is challenging, the findings of this article, particularly the examples from South African law, demonstrate that the common law of defamation can be developed to remedy online defamation. However, courts must be dedicated and innovative in developing common law principles. The importance of the role of the judiciary in developing the common law is emphasised in H v W as ‘the pace of the march of technological progress has quickened to the extent that the social changes that result therefrom require high levels of skill not only from the courts, which must respond appropriately, but also from the lawyers who prepare cases such as this for adjudication.’Footnote 153
Moreover, rather than waiting for a case to reach the upper courts to expand the scope of the common law of defamation, the legislature can introduce a statute to govern defamation in Sri Lanka, including online defamation. Providing a statutory remedy would help avoid protracted litigation and arguments in complex online defamation cases. A statutory enactment would also help to maintain legal certainty and raise public awareness. Iyer emphasises the need for an advanced legal solution for online defamation.
A legal system needs to be progressive rather than reactive in dealing with online defamation, as an ever-changing technological world demands an advanced legal framework that can deal with evolving barriers, inequities and injustices that will continue to grow and evolve in a virtual society.Footnote 154
The complexity of the legal-technical issues associated with online defamation underscores the need for legislative intervention in Sri Lanka for various reasons: filling the gaps in the law, providing new definitions, introducing new defences to balance freedom of expression with a person’s interest in reputation in cyberspace, and clarifying the legal uncertainties concerning multi-state jurisdiction issues and other related matters. In conclusion, this article recommends that the Sri Lankan Parliament enact legislation to address online defamation. However, in the absence of legislation, the courts are urged to develop the common law of defamation to address the unique and complex legal issues associated with online defamation.
To provide effective legal protection against defamation, other measures and precautions must accompany legal developments concerning online defamation. The dedicated role of lawyers in developing the common law was highlighted in H v W, as the pace of the march of technological progress requires high levels of skill, not only from the courts but also from the lawyers who prepare cyber defamation cases for adjudication.Footnote 155 Importantly, considering the gravity of the harm caused to victims, necessary actions should be taken to prevent victimisation in cyberspace through various means and methods, including providing proper legal education about the law of defamation to the general public, enhancing public awareness of cyber safety methods, introducing a regulatory regime and guidelines for internet service providers and internet content hosts, and educating the parties on their rights and obligations when using and facilitating online communication methods and forums.
It is also important to impose obligations on social network operators, website operators, and online content hosts to establish community standards for users and to implement complaint-receiving mechanisms for defamatory publications. In addition, providing legal aid to persons who cannot afford litigation costs is essential for access to justice. A range of legal, technical, and practical measures and safeguards is required to ensure adequate and effective protection against online defamation in Sri Lanka. It is crucial that these reforms strike a balance between the right to freedom of speech and the right to reputation in cyberspace.
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