• Notes threats, esp. to journos’ profession being interfered with 

The Human Rights Commission of Sri Lanka (HRCSL) recommended the Justice Ministry should declare a moratorium on the use of the Online Safety Act, No. 9 of 2024 (OSA) until its repeal and replacement with fit-for-purpose legislative provisions. Further, the HRCSL, issuing a statement on the freedom of expression and online safety, recommended the Inspector General of Police (IGP) should issue directions to all divisions and Police stations of the Police Department, reminding them that defamation is not a criminal offence, and to hence refrain from recording or investigating complaints purely relating to alleged defamation where no other offence is reasonably suspected. Also, the HRCSL, in its recommendation that the Government and the relevant authorities adopt measures to ensure the respect for and protection of the freedom of expression in full compliance with the Constitution and the relevant international human rights (HR) law, recommended that political leaders should refrain from filing complaints with law enforcement officials with regard to any statement that is allegedly false or defamatory, as such a statement does not constitute a criminal offence.

These concerns were expressed by the HRCSL in connection with emerging threats to the freedom of expression, particularly the freedom of journalists to engage in their profession without interference. 

“The trend in which law enforcement officials have launched investigations into allegedly defamatory speech, including by journalists, is particularly disturbing. In a recent egregious example, a journalist and member of the HRCSL’s Sub-Committee on the Freedom of Expression, Tharindu Jayawardhana was summoned for a Police inquiry without proper disclosure of the reasons for such summoning. The summoning was due to a complaint that Jayawardhana had made allegedly defamatory remarks in his publications about corruption in the use of public funds. Any failure of the Police to inform a person of the reasons for summoning such a person is a breach of Circular RTM 101/CRTM 61 issued by the IGP on 2 July of last year (2025) directing all investigating officers to inform persons of the reasons for summoning them”.

The freedom of expression is guaranteed by Article 14(1)(a) of the Constitution. It is a Fundamental Right that is crucial to all citizens for the purpose of expressing their thoughts and opinions, and participating in democracy. The right protects expressions in all forms made through any medium, including online platforms. According to the Supreme Court (SC), the right protects ‘not only information or ideas that are favourably received or regarded as inoffensive…but also those that offend, shock or disturb the State or any sector of the population’. The freedom of expression may be subject to certain restrictions, these must only be by law in accordance with Articles 15(2) and 15(7). The SC has clearly held that each restriction on the freedom of expression must meet the standards of necessity, proportionality, and reasonableness. One of the grounds on which the freedom of expression can be restricted under Article 15(2) is defamation. No offence with respect to defamation currently exists under the Sri Lankan criminal law. In fact, the Penal Code (Amendment) Act, No. 12 of 2002, completely repealed Chapter XIX of the Penal Code, i.e., the Chapter on Defamation.

“The societal danger in unnecessary, disproportionate, and unreasonable restrictions on the freedom of expression can lead to public frustration and even unrest. Necessary, proportionate, and reasonable restrictions may therefore, be imposed to guarantee to every person the right to their reputation and privacy, and to protect persons from defamation. Orders and judgments in this respect by civil courts are examples of such restrictions. Moreover, all persons, including journalists and editors, have ‘special duties and responsibilities’ with respect to the rights and reputations of others when exercising their freedom of expression. This norm is clearly articulated in Article 19(3) of the International Covenant on Civil and Political Rights. Therefore, journalists and editors should ensure that published content is checked for accuracy and should provide all parties an opportunity to comment on or respond to allegations made against them. Where inaccuracies are found to be published, retractions and apologies should be issued without delay. However, there is a common misconception that restrictions on the freedom of expression on the grounds of preventing defamation can be in the form of criminal sanctions. On the contrary, any restriction on a person’s speech on the grounds that it constitutes defamation remains the exclusive province of civil courts. Therefore, the Police have no jurisdiction whatsoever to investigate complaints with respect to defamation. It should neither entertain nor investigate complaints concerning defamation. Any citizen aggrieved by an alleged act of defamation can only seek a remedy before the civil courts and may not file criminal complaints in this regard. A trend where political actors and influential persons have sought to file complaints with the Criminal Investigation Department or other divisions of the Police, including the Computer Crime Investigation Division, alleging that citizens have made false or defamatory statements about them, often on online platforms, is observed. International HR standards require that public figures, such as political leaders and state officials, must tolerate more criticism than private individuals. The reliance on law enforcement officials to launch investigations into allegedly defamatory statements should be especially avoided by such public figures, as they have special responsibilities to respect the freedom of expression of the members of the public. Often, inaccurate or unfair statements may be made about such public figures. However, it is their responsibility to respond to such statements through proportionate means, such as issuing official clarifications, rather than reliance on law enforcement officials. In the past, commentary on women in political office, both on social and legacy media, has often been harmful. Addressing this egregious issue however, requires long term societal interventions, and not the abuse of the criminal law. The HRCSL has previously noted in a letter to the former Speaker of the Parliament that the OSA does not fully comply with the SC’s Determination on the Online Safety Bill, and that the OSA could have been enacted only with a special majority in the Parliament. The use of the OSA to suppress the freedom of expression of any citizen, including for the purported purpose of preventing defamation, raises serious questions of constitutionality. Online safety is a legitimate aim and the regulation of online platforms for the genuine purpose of online safety, particularly of vulnerable users, may be necessary. However, the OSA does not achieve this aim. Its provisions replicate colonial-era criminal offences found in the Penal Code and fail to appropriately deal with a number of genuine online safety issues, such as phishing, spyware, malware, denial-of-service attacks, and hacking. The OSA should be repealed. Any process of drafting new legal provisions on online safety should be consultative and draw on the relevant experience and expertise to ensure that such provisions are fit for the purpose,” the statement further read.