Wednesday 9 June 2021


Gajalakshmi Paramasivam

09 June 2021





When is a medium Sovereign and hence is entitled to freedom of expression?


As per article 14(1)(a) of the Sri Lankan Constitution,


[14. (1) Every citizen is entitled to – (a) the freedom of speech and expression including publication;]


Media Freedom is an extension of this. But to qualify for this freedom, one has to satisfy the following criteria:


(1) The Medium needs to be sovereign

(2) Its expressions need to be not in breach of the laws of the sovereign body about which such expressions are being published.


Here in Australia, former Special Forces soldier, Mr Roberts-Smith is suing leading media institutions for Defamation. The case is presented as follows by Wikipedia:


[Benjamin Roberts-SmithVC is an Australian businessman, former Australian Army soldier and a recipient of the Victoria Cross for Australia (VC), the highest award in the Australian honours system. The VC in 2011, together with his Medal for Gallantry (MG) awarded in 2006, made Roberts-Smith the most highly decorated serving member of the Australian Defence Force He was also awarded a Commendation for Distinguished Service for his leadership as a patrol commander in 2012.

Roberts-Smith left the full-time army in 2013 and studied business at the University of Queensland. In 2015, he was appointed deputy general manager of the regional television network Seven Queensland. He was subsequently promoted to general manager of the regional network and of metropolitan station Seven Brisbane.

In 2017, Roberts-Smith's actions in Afghanistan came under scrutiny in light of an inquiry into breaches of the laws of armed conflict by Australia's Special Operations Task Group in Afghanistan. Since June 2018, Roberts-Smith has been the subject of a war crimes investigation by the Australian Federal Police.[3] In August 2018, Roberts-Smith, with assistance from a legal team hired by Seven Network owner Kerry Stokes, commenced defamation proceedings against Nine Entertainment publications The AgeThe Sydney Morning Herald and The Canberra Times, and also named each of the three journalists involved in reporting alleged incidents. ]


The trial is currently underway. According to latest news:

[Mr Roberts-Smith’s barrister, Arthur Moses, SC, told the Federal Court last Friday that the proceedings against Ms Roberts related to an allegation she had access to an email account her former husband used to correspond with his lawyers about the defamation case and a separate inquiry into the conduct of Australian soldiers in Afghanistan.

Mr Moses said that if legally privileged or confidential material from the email account had been communicated to the media outlets for the defamation case, “either verbally or otherwise, it raises all sorts of problems in terms of illegality of material in their possession and potential unlawful conduct”.] Sydney Morning Herald.

In this instance, the family is taken as a sovereign unit and anything found freely within that unit by one member about another needed the authority of the latter to go beyond the borders of the family. In this instance – three different sovereign entities are involved – the family, the media and the Australian Defence Force. The produce of one can be used by another only as per Australian rules.

At around the same time, The Morning newspaper of Sri Lanka poses the question - Must ‘3rd class journalists’ die? . Some relevant details are:

[A video widely circulated via the electronic media recently showed the Health Ministry’s Communications Director and the Public Health Services Deputy Director General Dr. Hemantha Herath, saying that a majority of journalists who got killed were ‘third class journalists’. Even though he subsequently elaborated that this is not to say that certain journalists whom he termed as ‘respectable’ do not face harassment, the statement caused controversy, and many feel that it was uncalled for. 

However, following the statement in question, Dr. Herath told The Morning on 7 June that he had already expressed his apologies in this connection, and conveyed regret. 

It must also be noted that what triggered his statement in the first place, however, has not been revealed. However, what the concerned citizens feel, despite Dr. Herath’s apology, is that regardless of the circumstances under which the said statement was made, such statements are unjustifiable. Also, it would not be an overstatement to say that such sentiments are quite capable of reminding all of several dark chapters in Sri Lanka’s history where a number of journalists were abducted, censored and even murdered. ]

Most of the above deaths, as per my knowledge were directly related to the Sri Lankan war. The Sri Lankan media may therefore learn some lessons from the above mentioned Australian matter.

I am interested in the defamation case by Mr Roberts-Smith because I myself brought such a case against members of my family by law. Following paragraphs are excerpts from the judgment:

[17. Leaving aside any issue as to whether the words said by the lawyer were published under absolute privilege (under the law of the place of the tort), the principal difficulty is that the statement of claim does not plead any cause of action in defamation against any defendant. The un-stated premise of the claim appears to be that the defendants are liable as publishers for statements made in court (in Sri Lanka) by their lawyer. However, no facts are pleaded to support that contention. As currently pleaded, no reasonable cause of action in defamation is disclosed against any defendant.

18. Upon close consideration ………………………………

19. I am satisfied that the statement of claim discloses no reasonable cause of action against any of the defendants, Further, I do not think there is any point in granting leave to replead, particularly in light of the plaintiff’s concession that the claim relates to words said in Sri Lanka. If the matter complained of is the words said in court by the lawyer in Sri Lanka (on the basis, not presently pleaded, that the defendants are liable as publishers of those words), the place of the tort is Sri Lanka. If it was intended to rely upon the instructions given to the lawyer in Sri Lanka by means of a telephone call initiated in Australia but received in Sri Lanka, that would also be a publication in Sri Lanka in accordance with the principles stated by the High Court in Dow Jones & Company Inc. v Gutnick [2002] HCA 56; 210 CLR 575 especially at [26]. The plaintiff does not appear to seek to vindicate her reputation in New South Wales.

20. The defendants submitted that any publication in Sri Lanka “does not give rise to a cause of action in New South Wales”………………………………………………………………..

21. For those reasons, I am satisfied that the plaintiff’s claim in defamation enjoys no reasonable prospect of success and must be dismissed.]


I represented myself in the above case because

(1)I could not afford a lawyer even though the migrants who came to Australia under our sponsorship hired lawyers to represent them.

(2) if the lawyer misrepresented the ‘facts’ to ‘win’ I would have lost the support of Natural Justice.


If, our courts uphold Mr Roberts-Smith’s barrister is awarded a win in terms of legal privilege, I would set aside the above dismissal of my complaint and uphold my own judgment as the right one. That would then come around to me through various avenues – including as heightened intelligence in the issue.

I strongly recommend this to many social groups so we would be self-regulated by our truth. One such session went as follows:


Member of the Tamil Diaspora:         Ms.Gajalakshmi, Don't  send  unsolicited emails.

Gaja:           When you come into public area – you have to protect yourself. Don’t expect others to protect you. Let me ask you . Under what law have you ‘instructed me’ not to send you emails? If you cannot answer that question – keep your opinions to yourself.


Second Member of the Tamil Diaspora:     Isn’t there any law against guys who send out unsolicited emails in a private platform.

Gaja:                                                           Define private. There is also risk of accusations of bullying if you make it private

Second Member of the Tamil Diaspora: No wonder why you lost all your cases in SL and Australia. You are making this litigation as a big joke. You remind me of that out of turn guy Supramaniya Swamy. I won’t continue as I don’t want to harass 99.9% of the unsolicited recipients. But there is a move to deal with you under computer crime for bullying.


The elevation of intelligence is confirmed by the comparison with Supramaniya Swamy who is presented by Wikipedia as follows:

[Subramanian Swamy is an Indian politicianeconomist and statistician, who serves as a nominated Member of Parliament in Rajya Sabha, the upper house of the Indian Parliament. Before joining politics, he was a professor of Mathematical Economics at the Indian Institute of Technology, Delhi.[1] He is known for his Hindu nationalist views.[2] Swamy was a member of the Planning Commission of India and was a Cabinet Minister in the Chandra Shekhar government. Between 1994 and 1996, Swamy was Chairman of the Commission on Labour Standards and International Trade under former Prime Minister P. V. Narasimha Rao. Swamy was a long-time member of the Janata Party, serving as its president until 2013 when he joined the Bharatiya Janata Party (BJP).[3]

He has written on foreign affairs of India dealing largely with ChinaPakistan and Israel. He was nominated to Rajya Sabha on 26 April 2016.]


That is how Truth manifests Itself including through our apparent opposition. Any medium that brings our truth is First Class – not as per others’ certification but its own.


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