THE LAW OF DEFAMATION IN PAKISTAN

By:
MUHAMMAD ABBAS
Advocate

Introduction:

Every man has a right to have his reputation preserved inviolate. This right of reputation is acknowledged as an inherent personal right of every person. A man’s reputation is his property,[1] more valuable than other property. The law of defamation, as applied in Pakistan, deems defamation an offence as well as a civil wrong. The criminal provisions exist in the Pakistan Penal Code, 1860[2] while the common law wrong of defamation was converted to statute in 2002.[3] The publication of defamatory matter is an actionable wrong without proof of special damage to the person defamed.[4]

Defamation is both a Tort and Crime:

Defamation is the publication of a false and defamatory statement concerning another without just cause or excuse, whereby he suffers injury to his reputation. Defame anyone is civil as well as criminal act. Defamation in law is attacking another person’s reputation by a false publication, that is, communication to a third party, where such publication tends to bring the person into disrepute.[5]

The Tort of Defamation and the Defamation Ordinance, 2002:

The tort called “defamation’ actually consists of two sub-torts, “Libel” and ‘Slander”. Both torts protect a person’s interest in his reputation. Slander pertains to the spoken word while libel to the written or recorded form.

Section 3 of the Defamation Ordinance, 2002 deals with the tort of defamation; which states “any wrongful act or publication or circulation of a false statement or representation made orally or in written or visual form which injures the reputation of a person, tends to lower him in the estimation of others or tends to reduce him to ridicule, unjust criticism, dislike, contempt or hatred shall be actionable as defamation”.

Essentials of Defamation:

(i)       Words must be Defamatory: The statement must be defamatory. According to Lord Atkin, the statement must tend to lower the claimant in the estimation of right-thinking members of society generally, and in particular cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem.[6]

          Vulgar abuse is not defamatory. Mansfield CJ stated “For mere general abuse spoken no action lies”.

(ii)      Principle of Innuendo: A statement may be defamatory by implication, even though the words are not defamatory in their ordinary sense; if it can be shown that another person’s reputation has been affected.[7]

(iii)     Reference to the Claimant: The statement must refer to the claimant, i.e. identify him or her, either directly or indirectly.

(iv)     Publication: The statement must be published, i.e. communicated, to a person other than the claimant.

Defences of Defamation:

(i)       No action will lie if the person responsible for publication of a defamatory matter is able to justify it or establish that it is true.

(ii)      Fair comments on a matter of public interest is a good defence against an action for libel.

(iii)     The general rule is that a man who defames others does so at his own peril. A privileged statement is an exception to this rule. There are occasion on which freedom of expression of views, without fear of an action for defamation, is considered more important than the protection of the reputation of person or persons. Thus no action lies for a defamatory statement made at privileged occasion.

Remedies Available to the Claimant:

As to the remedies available to the person defamed, he may either proceed by filing a criminal complaint or may file a civil suit for damages. An injunction under Sec. 38 and 39 of the Specific Relief Act, 1963 may be obtained to restrain the defamatory publication.

Conclusion: Hence for final analysis, we can say that, to constitute the tort of defamation, a defamatory statement should not only published but it should tend to lower the reputation of the person in the eye of the right thinking members of the society. Although there is the public interest of freedom of speech, the tort of defamation protects an individual’s private interest in his reputation.

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[1].       Dixon v. Helden, (1869) LR Eg 488.

[2].       See Pakistan Penal Code, 1860, Chapter XXI: Section 499 to 502A.

[3].       See Defamation Ordinance, 2002.

[4].       See Defamation Ordinance, 2002 Section 4.

[5].       Encyclopedia Britannica, s.v “Defamation”. Also see article of Warda Yasin on Decriminalizing Defamation in Pakistan.

[6].       Thorley v Kerry (1812) 4 Taunt 355 at 365.

[7].       Lewis v Daily Telegraph [1964] AC 234.