Stand Athwart Censorship in Sri Lanka
In Tom Stoppard’s superlative play, Rosencrantz and Guildenstern Are Dead, Ros shouts “Fire!” and when questioned by Guil, Ros reassuringly responds, “It’s all right – I’m demonstrating the misuse of free speech. To prove that it exists.” After surveying the audience with “contempt”, Ros says, “Not a move. They should all burn to death in their shoes.” Now consider the next example, which is as famous as it is hackneyed in free speech/expression debates. In 1919, Charles Schenck was convicted (under the Espionage Act of 1917) for writing and distributing literature that called for opposition to the draft in the First World War. (If one were to provide a précis of Schenck’s material, it would reveal a passionate request for draftees to exercise their rights and oppose involuntary servitude.) The most notable outcome of the case was Justice Oliver Wendell Holmes’s attempt to define the limits of free speech: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.”
Holmes felt that certain words when expressed could create a “clear and present danger…and substantive evils”. I disagree with him (as did many free speech activists at that time), and I consider his analogy – “falsely shouting fire in a theatre” – to misusing free speech grossly inadequate, if not downright absurd. The emphasis placed on the immediacy of danger is nothing but a flawed opinion. More disturbingly, it is an opinion that values the protection of national interests – because of the emphasis on “circumstance” – at the expense of the right of the public to question policies and motives that ultimately affect them. Why should we not be allowed to hear or read an individual who claims to speak or write on our behalf? Was the authority exercised here in the public interest? If not, who really should decide what is permissible or impermissible in free expression, or, rather, should anyone decide at all what the public should or should not read and express? What if, not immediately, but eventually, there is a fire? Why are we denied the ability and right to decide for ourselves what is right or wrong or overblown in free expression? After all, there must be a reason why the audience never moved when Ros shouted “Fire!”
To put these examples and questions into context, think about what might have been produced by the press, and the resulting pressure on the government to adhere to jus in bello, if Mr. J.S. Tissainayagam had not been so outrageously arrested under the Prevention of Terrorism Act, convicted and thrown in gaol for intent to incite racial or communal violence. And what really was his crime? Two articles. The first asserted that state security forces were responsible for extrajudicial killings, and the second criticised the military campaign for its excesses. Given what we know now, perhaps Mr. Tissainayagam and others like him should have been allowed to caterwaul “Fire!” from the rooftops of every district in this country. Instead, between 2007 and 2009, the journalists who wanted to report stories far removed from the uncritical and patriotic reports published found it increasingly difficult and hazardous.
But vital news still made its way out to the hands and screens of eager readers. It may not be too much to claim that it did so because new and social media – the news websites, blogs and tweets you possibly read, share and respond to everyday – managed to fill a critical gap in reportage. The idea of online media enabling participation, deliberation and the ability to “bear witness” transforms the way news is consumed and produced. An opinion by an academic or an environmental activist could be dissected and debated by 200 commentators. A civil servant living in Galle would be able to have a debate with a student at the University of Jaffna about the contours of a political solution. The tragedies of abductions, disappearances and torture, and more substantive critiques of the government’s decision and policy making, are reported, discussed and debated. The option of anonymity and pseudonymity provides the apprehensive and cautious individual a sense of security when expressing an opinion. More importantly, as Internet penetration in this country rises, the level of “shared awareness” about the issues mentioned above increases along with greater access to diverse sources of information. This is, quite obviously, detrimental to any despotic government that practises censorship.
Keep this in mind and then read with care what Mr. Keheliya Rambukwella and his fellow ministers propose:
The government has put in place several steps to amend the Press Council Act of Sri Lanka to monitor and mitigate issues created by certain websites, Mass Media and Information Minister Keheliya Rambukwella said.
“It is an exception since those monitoring regulations don’t cover websites. Considering these issues, the government decided that laws with regard to the media will be amended making registration of news websites compulsory by law,” he said.
And at another press conference:
The government has decided to levy a registration fee of Rs 100,000 and an annual renewal fee of Rs 50,000 from each news website.
He (Rambukwella) said that government has a responsibility to make sure that a regular pattern and a certain amount of dignity and decorum is maintained in the field of the media.
The government proffers much, but reveals very little when it comes to what matters most. Forget for a moment the infeasible requirement of registration, the hypocrisy of the demand for “dignity and decorum” and the utter idiocy of the government’s intention to actually define “news”. Instead, focus on the most critical issue that deserves scrutiny, condemnation and protest: the law that the government intends to amend.
It was with good reason that concern was expressed when the government reintroduced the Press Council Law (No.5 of 1973) in June 2009. This draconian law prohibits the publication of obscenity, profanity, information about government decision-making that is “false”, fiscal policy and official secrets. It not only allows for the council – appointed by the President himself – to impose punitive measures on the violators of its fatuous provisions, but also enjoys uncontested authority – an individual who might wish to challenge a prejudiced decision by the council in a court of law is unable to do so. The council’s decisions are irrevocable, supreme and definite – an “Ayatollah” who presides over the impermissible and permissible in free expression. And if all of this is not ridiculous and intimidating enough, you may risk conviction and imprisonment if you disobey an “order of the council”.
I can only ask you to imagine how much of an insult this is to the heinous injuries suffered by the press in this country (the brutal murder, abduction, disappearance, intimidation and assault of journalists), how much it exacerbates the insuperable disease that is self-censorship, and what consequences it will have for online media. It goes without saying that this is an outdated law and one that sounds like it belongs to Iran or China. But this is precisely the point: why is the government emulating its infamous allies, who are held up globally as the most contemptible violators of free expression, if it is actually dedicated to free expression?
A quotidian battle will be the result of all this nonsense. I have no hesitation in excoriating the government’s intentions and accusing the officials responsible of setting in place a most insidious plan for restricting dissenting content online and criminalising subjects that should be protected under the sacred liberty of free expression. I condemn this move precisely because of the government’s accomplishments since 2007 in arbitrarily and extra-legally blocking news websites – all of which provide dissenting views. At the same time, it is clear to me that the luddites, charlatans and self-styled advisers behind this policy have a unique inability to understand that it is simply impossible to successfully regulate news on a medium that can be used to evade restrictions. (Unless editors, writers and bloggers are arrested en masse.) The act of blocking a website is not the same as shutting down the printing press of a newspaper. The most committed activists and journalists will continue to report – albeit in a remarkably distorted media environment.
(And if defamation is really a concern, there are simpler and less dramatic laws that allow an individual to seek redress for the infringement of his/her rights. I fail to understand why those who claim to be affronted are unable to take legal action or why they do not respond. In any case, I do feel that defamation is a worm-eaten chestnut. I welcome the most abusive expression and accusations against me, but that is because I will exercise my right to reply. If it does, however, spark anxiety, outrage and mental anguish for others, who feel their reputations have been destroyed with severe consequences for their personal and professional life, then they most certainly deserve redress. But what the government proposes goes beyond the issue of defamation and puts a muzzle on online media.)
What exactly is so menacing about an opposing view, a critic self-satisfactorily dismembering your performance, a human rights activist accusing you of being a war criminal, a mad man calling you a “pig who eats shit” and a government official accusing you of being an apologist for the LTTE? As a free expression “absolutist” and classical liberal, it is important to me that racists, bigots, tyrants, fabulists, socialists, misogynists, monotheists, holocaust deniers and defenders of the indefensible are allowed to express themselves. (Please forgive me if I have left anyone out.) We are then afforded the opportunity to respond to these individuals. In doing so, we may hope to persuade them to the contrary, to ridicule them and to simply point out the lack of reason, integrity, justice and morality in their arguments. I would rather have these individuals produce their thoughts than have them restrained and cloistered in our society. The tolerance of opposing views is the quintessence of a mature democracy. Deny this space and right to us and we will be poorer for it.