DEFAMANTION
By:
KHALID UMAR
CHAUHDRY
Assistant Secretary/Law
Officer
Punjab Bar Council
Defamation is the
publication of a statement which tends to lower a person in the estimation of
right thinking members of society, generally, or which tends to make them shun
or avoid that person (P.H. Winfield)
According to Black’s
Law Dictionary:
(i) “The act of
harming the reputation of another by making a false statement to a third
person.”
(ii) A false written or oral statement that
damages another’s reputation.
The wrong of
defamation consists on the publication of a false and defamatory statement
concerning another person without lawful justification. That person must be in
being. Hence not only does an action of defamation not survive for or against
the estate of deceased person, but a statement about a deceased or unborn
person is not actionable at the suit of his relatives however great their pain
and distress, unless the statement is in some way defamatory of them.
(R.F.V. Heuston,
Salmond)
Historical Background:
In the later
Roman Jurisprudence, verbal defamations are dealt with the edict under two
heads:-
(i)
The
first comprehended defamatory and injurious statements made in a public manner
(convicium contra bonos mores). In such case the truth of statement was no
justification for the unnecessarily public and insulting manner in which they
had been made.
(ii) The second head
included defamatory statements made in private and in this case the offence lay
in the imputation itself, not in the manner of its publication. The truth was
therefore a sufficient defense, for no man had a right to demand legal
protection for a false reputation. Even belief in the truth was enough because
it took away the intention which was essential to the notion of injuria.
Kinds of defamation
Generally there
are two kinds of Defamation which are related to harms
that is libel and Slander. A familiar statement is that the libel is written
whereas slander is oral. This covers the idea in a general way but tends to
mislead because defamation may be published without the use of words and hence
be neither written nor oral. Thus libel may be perpetrated by hanging a person
in effigy and slander, by sign or gesture. (Rollin M. Perkins & Ronald N Boyee,
Criminal Law 489).
Defamation per quod
Defamation that
either,--
(i)
is
not appearent but is proved by extrinsic evidence showing its injurious
menaing; or
(ii) is apparent but is
not a statement that is actionable per se.
Defamation per se:
A
statement that is defamatory in and of itself and is not capable of an innocent
meaning.
Trade Defamation
The damaging of a
business by a false statement that tends to diminish the reputation of that
business. Trade defamation may be trade libel if it is recorded, or trade
slander it is not. It is also termed as commercial defamation.
So the oral
defamation is slander whereas the defamation in writing is libel Slander means
that the false and defamatory statement spoken by mouth or by sign or gesture
whereas the libel is a defamation in material four which refers to the eye.
Essential of Defamation
(i)
That
the matter complained of is defamatory.
(ii) That the matter
has been published to a person other than the plaintiff.
(iii) That it refers to
the plaintiff.
(iv) That, if it is a
slander not actionable per se that he had suffered special or actual damage.
Difference between Libel and Slander
(i)
Libel
is a defamation in writing whereas slander is oral.
(ii) Libel is
generally referred to the eye while slander is referred to ear.
(iii) Libel is a civil
wrong as well as criminal offence. Whereas slander is only a civil wrong.
(iv) Libel is
actionable perse. While slander is not actionable perse but it becomes
actionable perse in the following cases.
(a) Allegation of
unchastity:
In case of allegation of unchastity slander becomes actionable perse.
(b) Allegation of
contagious disease: If the allegation of contagious or viral disease is
made on a person he may file suit for damages on the ground of such kind of
slander.
(c)
Allegation of criminal offence: In such case
slander becomes actionable per se when a charge of criminal offence is leveled
on any person he may claim for damages as this slander is actionable per se.
(d) Allegation regarding
professional incompetence: This allegation is calculated to
disparage the party defamed in any office, profession, calling trade or
business held or carried on by him at the time of publication.
Innuendo
In this kind of
defamation the defamatory statement is not in clear word but in hidden meaning
and conveyed in dubious manner. It is referred metaphorically to the defamed
person. There is no charge or imputation, however serious on the face of it,
which may not be explained away by evidence that in the special circumstances
of the case it was not made or understood in a defamatory sense. It may be
shown to have been made in jest, or by way of irony or in same metaphorical or
secondary innocent sense, and that it was or ought to have been understood in
that sense by those to whom it was made.
The
are
two kinds of Innuendo i.e. legal innuendo and false
or common innuendo.
Section 499 PPC
Whoever, by words
either spoken or intended to be read, or by signs or by visible
representations, makes or publisher any imputation concerning any person
intending to harm or knowing or having reason to believe that such imputation
will harm the reputation of such person is said to defame the person.
Exceptions
(1) Truth:
The defamation is not an offence if that based on truth.
(2) Statement
made in good faith with reasonable belief that it was true.
(3) Absolute
privilege: Judicial proceedings and parliamentary proceedings fall in
absolute privilege and this is not the defamation actionable per se.
(4) Qualified
privilege: Defamation made during a moral or legal or social duty falls
in qualified privilege that is exception to the rule. But false and defamatory
statement by a professional should be without malice.
(5) Public
interest: Statement made in interest of public is not a defamation.
(6) Imputation
by a person who has lawful authority over the person imputed is not a
defamation.
(7) Defamation
to convey a caution in good faith to one person against another person is not
an offence.
(8) Statement
made with consent is not a defamation.
(9) Apology:
On a defamatory statement if apology is made then defamation does not
become an offence.
Punishment
Punishment
for the offence of defamation under PPC is two years imprisonment or fine or
both.
Article 19 of the Constitution of
Pakistan, 1973
It
speaks about the freedom of speech. If the statement consists of words which
are according to the law does not constitute a defamation.
No
citizen can be allowed to use his freedom of speech or expression as to injure
another’s reputation, or indulge in what may be called character assassination.
Therefore the Fundamental Right exempts from its operation the law as to
defamation, both civil and criminal. It has been made punishable under Section
499 and 500 P.C. Besides the Press Publications Laws give the
Executive the power to restrain newspapers from publishing inter alia, defamatory matter.
Defamation Ordinance, 2002
Defamation
Ordinance 2002, is formed to meet the modern changing
circumstances as to the loss of reputation of person through net, electronic
media, print media or any other modern device. In the remedies, minimum Rs.
50,000/- will be granted in case of defamation proved in terms of general
damages whereas the Court will decided the special damages keeping in view the
material damage/or loss to the person.
Qazf Law: Enforcement of Hadd
Qazf
means false accusation of fornication or adultery:
If a person accuses another of
fornication or adultery,
he is required to support his accusation by procuring four reliable
witnesses. If he is unable to do so he is guilty of qazf and his punishment is
80 lashes. He is also deprived of the right to act as witness in the future.
This is conformity with the Quranic provision:
“They who defame
virtuous women and bring not four witnesses, scourage them with four score
stripes and receive be not their testimony for even,
for, these are perverse persons”
Defamation Laws by Jurisdiction (Comparative Study)
Defamation
laws by jurisdiction as to comparative study, Pakistan and India
both follow the Common Law of U.K. so in these countries the
defamation is treated dividing into slander and libel. There is also difference
between the two kind of defamation in
Australian
Law
although tends to follow the English Law on defamation issue but
since the introduction of the uniform defamation laws in 2005, the distinction
between slander and libel has been abolished.
REFERNECE OF LAW CASES:
Sim v. Stretch 1936
A
defamatory statement is one which has a tendency to injure the reputation of a
person to whom it refers, which tends i.e. to say, to lower him in the
estimation of right thinking members of the society generally.
Youssoupoff v. Metro Goldwyn Mayer
Pictures Ltd. 1934
The
Court of appeal in this case, hold that defamation in
a “talking” film is lible. So the person whose voice is recorded would it seems,
become liable for libel on the ordinary principles of vicarious liability and
phesumably those who distribute or play the record to third party one in the
same position as the disseminators of a written libel. Such film contains an
allegation that a women has been raped. It is now
provided by the “Slander of Women Act, 1891”, that words spoken and published
which impute unchastity or adultery to any women shall not require special
damage to render them actionable.
Tahir Jehangir & another v. Don
Waters (2003 CLC 1699)
Facts:
The facts of the case were that the plaintiff carried on business of terry
towels. The defendant made an agreement with plaintiff for the supply of
plaintiff’s products to the U.S.A. markets. After some while some differences
appeared between them regarding the quality of the products. The defendant
obtained cheap imitations of the plaintiff’s product from the local market. In
the wake of this dispute defendant addressed a letter to the Chamber of
Commerce and Industry Karachi, which according to the plaintiff contained
derogatory/defaming insinuating comments against the plaintiff. Differences
arose between plaintiff and defendant regarding the quality of products the
plaintiff claimed both special and general damages in the sum of Rs. 100
million for libelous communication to Chamber of Commerce and Industry Karachi.
Held:
No libel is committed if it was addressed to the person concerned but in this
case, libelous communication was addressed to CCIK. Special damage is
disallowed for, plaintiff has failed to show any loss
of his business in terms of money, only 1000 Rs. Out of 100 million is allowed
as token general damages.
Abdullah Jan v. M. Jamil Shah (2006 CLC
1284)
Suit
for damages was filed on defamatory statement which was published in Daily
Newspapers regarding grabbed a great deal of property of widows and orphans by
Jamil Shah. Suit of claim for six crore but decreed by the trial Court to the
extent of 20 lacs. Appeal was directed in the High Court. The High Court
allowed the claim Rs. 20 thousand as token damages.
Because
the plaintiff failed to place on record any material damage/ special damage in
terms of money and showing the loss to his reputation and the impact of
defamatory statement thereon.