'Repeal the criminal defamation legislation'
Sri Lankan attorney Suranjith R.K. Hewamanna and Sydney-based barrister James Nolan who are affiliated to the International Federation of Journalists (IFJ), were among foreign observers following the court cases related to the Tempo weekly. Muninggar Sri Saraswati of The Jakarta Post talked to them on Tuesday.
Hewamanna:
Question: Why did Sri Lanka decide to repeal its criminal defamation laws from the statute books?
Answer: Sri Lanka repealed the law of criminal defamation and related procedures from the Penal Code and Criminal Procedure Code in the year 2002. The codes were British colonial products. Politicians in power made amendments to the relevant sections of the codes to prosecute people for criminal defamation to protect themselves from criticism.
Many journalists ... were prosecuted under the law for criminal defamation. They were the lucky ones; some others were subjected to assassinations and murder attempts. But the public is aware the government used the laws of defamation to stifle the press to cover their own shortcomings.
Some journalists and others convicted for criminal defamation, for contempt of court or under parliamentary privilege laws got into power later. This was important in giving the issue a wider public debate and resulted in the repeal of the laws.
Why should the criminal defamation laws be repealed?
Because there is no actual physical damage caused. One could expect material compensation for damage to one's reputation but not to send people to jail for defamation.
Do criminal defamation laws pose a threat to press freedom?
Press freedom is ultimately the freedom of all people, not just for a few journalists ... If the media runs a story about alleged corruption in the government, it should not be considered a threat. It is for the betterment of the nation as a whole.
What do you think about the growing criminal defamation lawsuits against media in Indonesia?
Globalization means the news reaches everywhere. Everyone is watching what is happening everywhere. The international community judges you by what you do, not what you say ... Nolan:
Are criminal defamation charges against journalists and the media common in other countries?
Not in democratic countries that have the rule of law and which respect press freedom ...
What about people who think a news story has defamed them?
Wealthy businessmen and politicians will use civil defamation laws to quiet the press or counter accusations made against them ... (But in) using the criminal law, you're saying to journalists they can go to jail for something that they write. That has got to be something that any person in the modern world would find repugnant.
Can journalists be jailed if they are found guilty of defamation?
(Not) in most well-functioning democracies ... Plaintiffs have the civil right to file defamation lawsuits, but (these) generally involve the awarding of primary damages. Many journalists sometimes think the damages awarded are way out of proportion to the harm these people suffer. However, these civil defamations are not part of criminal law. How do you see the defamation cases against the media here?
The defamation lawsuits are against media personnel. The journalists here are being prosecuted under criminal defamation laws. Most modern democratic countries have implemented civil defamation laws. Civil defamation lawsuits can be filed by people who consider they have suffered damage to their reputations by, say, a news story. Basically, they expect to get compensation for this damage through the courts.
Could a civil defamation lawsuit make a media institution go bankrupt?
No. In Australia, it would be rare and unusual if a defamation lawsuit made a media institution go bankrupt because all media organizations have insurance against civil defamation claims. The main media groups are all very big and powerful ... but small publications could be threatened.
What do you think about articles or news produced by Indonesian media, are they vulnerable to defamation lawsuits?
Well, here, you don't know when somebody might decide to use your articles against you and try to persuade a judge that it constitutes a criminal defamation. If a person considers an article has defamed them, although it might have fulfilled a principal of balanced coverage, they should be able to file a civil defamation lawsuit. This civil right is critical ...
Are civil defamation lawsuits the only way to settle disputes involving news?
Not at all. There are other mechanisms to deal with complaints about the media, like (the) broadcasting authority or an ethics panel in Australia.
Is it common for government officials or politicians overseas to file defamation lawsuits against the media?
As politicians they must expect to face criticism from the public. They have opportunities to respond to media criticism on many occasions, including in parliament. They can file defamation lawsuits against media institutions but suing somebody costs a lot. They take big risks and it could affect their reputations.
Do you think criminal defamation laws threaten press freedom?
They threaten freedom of expression ... The possibility of a jail term is chilling, it means journalists or editors will think twice before writing or running certain articles. In the end, it is the people who suffer from a lack of information. Indonesia must repeal criminal defamation laws from the statute books. The International Federation of Journalists has asked them to repeal the laws, to take them off the statute books.