| by Ruwantissa Abeyratne

“First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And secondly, you must be a pirate for the pirate’s code to apply and you’re not. And thirdly, the code is more what you’d call “guidelines” than actual rules.”
- Captain Barbossa, Pirates of the Caribbean: the Curse of the Black Pearl.

( September 11, 2014, Montreal, Sri Lanka Guardian) In 1981, a code of ethics for press freedom was introduced in Sri Lanka by the Press Council of Sri Lanka which is a statutory institution established under the Sri Lankan Press Council Act No. 05 of 1973 coming under the purview of the Ministry of Mass Media and Information. Article 8 of the Press Council Act of 1973 stipulates that the objectives of the Press Council shall be to ensure the freedom of the press in Sri Lanka; to prevent abuses of that freedom; and to safeguard the character of the Sri Lanka press in accordance with the highest professional standards. Article 8 goes on to say that another objective of the Press Council shall be to ensure freedom of the press to publish as news true statements of facts and any comments based upon true statements of facts. It also aims at ensuring the highest standards of professionalism and journalistic ethics and to foster a due sense of both the rights and duties of citizenship.

A code of ethics for journalists was introduced by the Press Council as rules by Gazette Extraordinary No 162/5 A of 14th October 1981. The vision identified in the code is "to protect the press freedom of Sri Lanka and the vision is identified as "to popularize press freedom as a cultural element for national development". At the outset one must be permitted some levity at an unintentional boo boo in the document which gives the address of the Press Council as "Kasal" Street (which in Sinhala means something awful) in Colombo 8. One assumes the draftsman meant "Castle" Street.

A Code of Ethics for Journalists was proposed for Sri Lanka recently which was described as guidance rather than law, and which stated inter alia that "No publications should be published which (a) offends against expectations of the public, morality of the country or tend to lower the standards of public taste and morality (b) contains criticism affecting foreign relations (c) contains derogatory remarks on religious groups or communities or promoting communal or religious discord which may affect religious and communal harmony (d) contains anything obscene, defamatory, deliberate falsehood and suggestive innuendos and half truths or wilful omissions (e) contains information which could mislead the public (f) is likely to encourage or incite violence or contains anything against maintenance of law and order or which may promote anti-national attitudes (g) contains anything amounting to contempt of court (h) contains materials against the integrity of the Executive, Judiciary and Legislature (i) criticizes maligns or slanders any individual or groups of persons such as ethnic, linguistic or religious or such segments of the public (j) contains details of a person's family life, financial information, race, caste, religion, sexual orientation, physical or mental illness or disability and one's home or family and individuals in hospitals unless it has a direct relevance to the public interest (k) encourages superstitions or blind belief (l) promote atrocity, drug abuse, brutality sadism, sexual salacity and obscenity (m) denigrates the poor".

It is reported that President Rajapaksa called for the Information Ministry to drop the code.

The recent beheadings of two American journalists in the Middle East and the arbitrary imprisonment of three Al Jazeera journalists in Egypt go to show two facts, the first being that journalists are generally a hated lot, and the second being that a regime's hatred is predicated on the fact that journalists investigate and in most circumstances inform the public of the truth, particularly if they are professionals with integrity and honour who are only interested in pursuing their vocation as a cultural element for national well being and development. Journalists without Borders report that in 2013, 71 journalists were killed globally and 826 were arrested. 2160 journalists were threatened or physically attacked and 87 were kidnapped during the same year. These statistics apply across the world, whether in Gaza, Ukraine, Afghanistan, Iraq or any other place.

Freedom of speech is a fundamental right guaranteed by Clause 19 of the Universal Declaration of Human Rights which states: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers".

The text of the First Amendment of the United States Constitution is: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”.

On the flip side, one must also be mindful of abuse of press freedom which can be misused by ill-intentioned persons. In this context, there is a very sensible opinion by Jeff Jacob Lourie who says: “It [freedom of speech] is bedevilled by the evil intent, ignorance, and stupidity of literally millions of people. But it is the greatest protection against tyranny that there is. Witness the fall of the dictatorships of Serbia, Argentina, Greece, and Chile. Even in free countries freedom of speech is not something that is automatic. "Eternal vigilance is the price of liberty." That's not just a cliché. We must guard against the rich, the powerful, the crazies, the haters and the fanatics. We need to maintain everyone's right to free speech, but we cannot let lies and libel go unanswered. On the whole we have done a pretty good job here in the U.S.A. and not only in the obvious ways. I do not think it accidental that our contributions to the technology of freedom are so significant: telephones, television, railroads, automobiles, computers and the internet have all increased our ability to communicate freely”.

My take on this matter is that freedom of speech should only be used to express opinions and practice investigative journalism on politics and affairs of State and individuals that bring forth artistic creativity and criticism, and promote intellectual discourse. In the 1981 decision of Widmar v. Vincent the United States Supreme Court held that freedom of speech forbade government from prohibiting, punishing, or penalizing speech based on its content. The court was of the view that the Free Speech Clause of the First Amendment thus effectively precluded government from excluding speakers and groups from forums for free and fair expression. However, it must also be noted that courts have made judicial pronouncement that certain forms of speech are excluded from the right of free expression. They are obscenity; fighting words; defamation (includes libel, slander); child pornography; perjury; blackmail; incitement to imminent lawless action; true threats; and solicitations to commit crimes. The United States Supreme Court has ruled that government can indeed prohibit such speech.

Truth and justice are unhappily mutually exclusive. While in legal terms, legislative parameters will define acts and qualitize their reprehensibility, in truth, speech and conduct that ingratiate themselves into a society have to be addressed legislatively and ethically. This is the dilemma that legislators will face.