The
law of defamation, as applied in
International
standards, especially those dealing with freedom of expression demand, without
exception, that defamation must be decriminalized, and should be struck off the
statute book. The main reason advanced is that criminal prosecution fails to
bring satisfaction to the person defamed, the way civil remedies and damages
do. If granted a choice, the defamed person will choose the civil process over
the criminal.[6]
The criminal provision is still on the statute book and can be used as a
pressure tactic or an arm-twisting tool to silence the opposition, or to corner
members of the media. As the earlier concerns due to which defamation was
criminalized are no longer valid, the law as it exists should be removed from
the criminal statute so that the People of Pakistan, especially the media, can
exercise their right to express themselves with full freedom, and without the
fear of being subjected to arm-twisting or being thrown in jail by the official
machinery.
This
paper will begin with a description of the law of defamation as it exists in
Pakistan today. The crime of defamation will first be taken up. This will be
followed by a description of defamation as a civil wrong. Once the law has been
explained, the common law rationale for treating defamation as a crime will be
elaborated along with the reasons for treating it as a crime in the
Sub-Continent. International standards that condemn the criminalization of
defamation and advocate its decriminalization will then be presented with the
supporting legal reasoning. Finally, the paper will recommend the
decriminalization of the law of defamation in Pakistan.
1 Defamation as a Crime in
1.1 Defamation is both a tort and a crime
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.[7] “The concept is an elusive
one and is limited in its varieties only by human inventiveness.”[8]
In
Pakistan, as in many other countries, defamation is both a crime and a tort
(civil wrong), which means that a person accused of defamation may be
prosecuted for the crime and he may be subjected to civil litigation for
recovery of damages.
Defamation
laws have developed over several centuries to provide recourse for people whose
reputation is or is likely to be harmed by publication of information about
them.[9] The objective of
defamation laws is to strike a balance between the protection accorded to
reputation and the right to freedom of expression. In reality, however,
defamation laws are used mostly as a means of “chilling speech.” The mere
threat of defamation proceedings that will require costs and the ultimate award
of damages is used to silence criticism. Woods and Vesely give the following
advice:
Editors, publishers, writers,
advertisers and all who are involved in the dissemination of information in
written or electronic form should have at least an elementary grasp of the
principles of the law of defamation. It is often said that a little information
can be a dangerous thing. But knowing enough about the law of defamation to
pause and reflect (and if appropriate, seek legal advice) before going forward
with a potentially risky project can often prevent embarrassment and the
substantial cost and inconvenience of defending a claim for defamation.[10]
1.2 The Provisions of the
499
of the Pakistan Penal Code defines defamation as follows:
Whoever by words either spoken
or intended to be read, or by signs or by visible representations, makes or
publishes 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 except in the cases hereinafter excepted, to defame that
person.
Explanation 1: It
may amount to defamation to impute anything to a deceased person, if the
imputator would harm the reputation of that person if living, and is intended
to be hurtful to the feelings of his family or other near relatives.
Explanation 2: It
may amount to defamation to make an imputation concerning a company or an
association or collection of persons as such.
Explanation 3: An
imputation in the form of an alternative or expressed ironically, may amount to
defamation.
Explanation 4: No
imputation is said to harm a person’s reputation, unless that imputation
directly or indirectly, in the estimation of others, lowers the moral or
intellectual character of that person, or lowers the character of that person
in respect of his caste or of his calling or lowers the credit of that person,
or causes it to be believed that the body of that person is in a loathsome
state, or in a state generally considered disgraceful.
The
section provides ten exceptions to the rules laid down in the main section.
These are summarised as follows:
1. It is not
defamation to impute anything which is true concerning any person, if it be for
the public good.
2. It is not
defamation to express in good faith any opinion whatever respecting the conduct
of a public servant in the discharge of his public functions, or respecting his
character.
3. It is not
defamation to express in good faith any opinion whatever respecting the conduct
of any person touching any public question.
4. It is not
defamation to make public a substantially true report of the proceedings of a
Court of Justice.
5. It is not
defamation to express in good faith any opinion whatever respecting the merits
of any case, civil or criminal (including character of witnesses).
6. It is not
defamation to express in good faith any opinion respecting the merits of any
performance which its author has submitted to the judgment of the public.
7. It is not
defamation in a person having over another any authority, either conferred by
law or arising out of a lawful contract made with that other, to pass in good
faith any censure on the conduct of that other in matters to which such lawful
authority relates.
8. It is not
defamation to prefer in good faith an accusation against any person to any of
those who have lawful authority over that person with respect to the subject
matter of accusation.
9. It is not
defamation to make an imputation on the character of another provided that the
imputation be made in good faith for the protection of the interest of the
person making it, or of any other person, or for the public good.
10. It is not
defamation to convey a caution, in good faith, to one person against another,
provided that such caution be intended for the good of the person to whom it is
conveyed, or of some person in whom that person is interested, or for the
public good.
In addition to the above section, § 500 provides simple
imprisonment for a term which may extend to two years, or fine, or both, as
punishment for defamation. § 501 deems printing or engraving defamatory
matter as defamation, while § 502 subjects the selling of defamatory
matter to the same punishment.
Taken together, the sections are a masterpiece of legal drafting.
These sections were adopted by other jurisdictions too, for example, the
province of Tasmania, Australia.
Accordingly, we have three offences here. The first offence is
that of defamation itself. The elements of the crime of defamation are:
• publication (in any
manner: words, written material, signs, visible representations, engraving);
• imputation concerning
a person; and
• the intention to harm
or knowledge that the publication will harm this person’s reputation.
As mens rea (intention) has to to be proved, the burden of proof
will be on the prosecution.
The second offence is that of printing or engraving a defamatory
publication. This makes the printing presses liable even though they have
nothing to do with the defamation itself. The third offence is that of sellers
even though they have nothing to do with the making of the defamatory
statement.
2 Defamation as a Civil
Wrong in
The tort of defamation was up until recently governed by the
principles of English common law. This law has now been codified in the form of
the Defamation Ordinance, 2002. The English common law on the issue may,
therefore, be said to have “shrunk” considerably. Nevertheless, the concepts of
the common law have not been ruled out completely. In the United Kingdom
(Defamation Act, 1996), Australia (Queensland Defamation Act, 2005 and New
South Wales Defamation Act, 2005) as well as in Canada (British Columbia), the
tort of defamation is governed jointly by statute and the common law. The
position may be said to be the same in Pakistan. This means that the common law
principles will apply unless the Ordinance has altered a common law rule.
Article 19 Global Campaign for Free Expression has published an
outstanding document called Defining Defamation (July 2000). It should
be read by all media persons. The Defamation Ordinance, 2002 appears to have
relied on this document, especially in terms of defining defamation as well as
in other provisions like absolute and qualified privilege. For example, the
words like “tending to lower the esteem in which they are held within the
community, by exposing them to public ridicule or hatred, or by causing them to
be shunned or avoided,” within the definition of defamation. The Ordinance also
appears to rely on the UK Defamation Act of 1996.[11] We will have occasion, at
the end of this topic to point out some deficiencies in the Ordinance when
compared with international standards.
3 The Tort of Defamation and the Defamation
Ordinance
3.1
Meaning of “defamation” in the Ordinance
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. As the distinction gets blurred due to the
development of new mediums of expression, the Australian Defamation Acts (of
2005) have abolished this distinction (for example are statements over radio
libel or slander? ). The Defamation Ordinance still retains the distinction.
The common law tort is applied in a slightly different way in the
U.S. as compared to the U.K. and jurisdictions following the U.K. A major
difference pertains to the “burden of proof.” Is the plaintiff required to
prove that defamatory statement was false or is the defendant required to prove
that it was true? In our Defamation Ordinance, the “burden of proof” lies on
the defendant.
Sections 3 and 4 deal with the tort of defamation:
3. Defamation.--(1)
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.
(2) Defamation is
of two forms, namely:--
(i) slander; and
(ii) libel.
(3) Any false oral statement or
representation that amounts to defamation shall be actionable as slander.
(4) Any false written, documentary
or visual statement or representation made either by ordinary form or
expression or by electronic or other modern means or devices that amounts to
defamation shall be actionable as libel.
4. Defamation
actionable.—The publication of defamatory matter is an actionable wrong
without proof of special damage to the person defamed and where defamation is
proved, damage shall be presumed.
The words “any wrongful act” appear
to be a little out of place, especially when the word “publication,” which has
been called an “actionable wrong” are enough. Perhaps they have been used to
rope in printers, publishers and internet service providers. The impact,
however, is not visible in the remaining sections of the Ordinance.
The distinction between “libel” and
“slander” too does not have any visible impact in the remaining sections.
3.2 Criticism of the
Defamation Ordinance
It is appropriate to summarise the recommendations made by Article
19 Global Campaign for Freedom of Expression. These recommendations pertain to
the decriminalisation of the offence of defamation as well as the Defamation
Ordinance, 2002. The recommendations in the language of Article 19 Global
Campaign, with our comments in parenthesis, are as follows:
1. All criminal
defamation laws should be repealed.
2. Proof of truth should
be a complete defence in a defamation action; it should not be necessary, in
addition, to prove the statements were made for the public good.
3. In cases involving
statements of public interest, the burden should rest with the plaintiff to
prove the falsity of any statements alleged to be defamatory (in the Ordinance,
the defendant is required to prove the truth of the defamatory statement).
4. No one should be
liable for the expression of an opinion, defined broadly (at present the
Ordinance links it to “public good”).
5. The Ordinance should
recognise the right of journalists not to reveal their sources in defamation
cases (this pertains to the burden of proving the truth of the defamatory
statement, and doing so will compel the journalist to reveal his sources).
6. The Ordinance should
impose a maximum ceiling for damages, not a minimum level (the award of
Rs. 50000 as minimum damages is considered heavy for a poor country).
7. No custodial sentence
should be able to be imposed for defamation (this pertains to imprisonment of
three months for non-payment of damages and retraction).
8. Public bodies should
be prohibited from bringing defamation actions and public officials should not
be able to recover damages for defamatory statements related to their public
functions (In many jurisdictions public officials are barred from recovering
damages for defamatory statements).
9. Internet Service
Providers whose sole role in relation to a statement is providing technical
access to the Internet or transporting data across the Internet should not be
held liable in defamation for that statement.
4. The Criminalisation
of Defamation and International Standards
Treating defamation as a criminal offence is rejected today by
international standards, because it can be used by governments as a threat to
curb the media or employed as an arm-twisting tactic. § 11 of the
Defamation Ordinance, 2002 provides that “Nothing in this Ordinance shall
prejudice any action for criminal libel or slander under any law for the time
being in force.” This means that the provisions of the PPC continue to apply as
law and defamation has not been decriminalised.
Article 19 Global Campaign for Free Expression has laid down the
principle that “criminal defamation laws are per se inconsistent with the
guarantee of freedom of expression.”[12]. The UNESCO sponsored
Declaration of Sana’a declared that “disputes involving the media and/or the
media professionals in the exercise of their profession …should be tried under
civil and not criminal codes and procedures.”[13] The rationale underlying
these statements is that when a state declares an act to be a crime, it shows
that the state has a clear interest in “controlling the activity.” Controlling
freedom of expression by the state is not to be approved whatever the reasons
advanced. International courts today are also inclined towards the exercise of
“restraint in applying criminal measures when restricting fundamental rights,”
and international organisations “have made similar calls.”[14]
Many countries continue to retain the crime of defamation. Of the
28 EU member states, only five have repealed criminal defamation as an offence
against private individuals.[15] The UK has recently
joined other countries which have done away with criminal defamation, including
Bosnia & Herzegovina, Estonia, Georgia and Ukraine in Europe, and Ghana,
Sri Lanka, the United States, New Zealand and Mexico worldwide.[16] It is praiseworthy
that small countries have taken initiative steps to decriminalise defamation
including Bosnia and Herzegovina, Cyprus, Estonia, Georgia, Moldova, and
Ukraine, all have decriminalised defamation within the last decade.[17] Some states have chosen
to repeal imprisonment provisions from the defamation articles of their
criminal codes. Such moves are commendable as a first step towards the complete
decriminalisation of libel and insult.[18] The United Kingdom is the
first among the Western European participating States in the OSCE to
officially decriminalize defamation through the Coroners
and Justice Bill, which was given Royal Assent and became an Act of Parliament
(law) on 12 November 2009.[19] The tort of defamation is
now regulated under the Defamation Act 2013.[20] Criminal defamation has
not been used in the UK since the 1970s, but its "chilling effect"
remains. Moreover, states around the world justify their persistent use of
criminal defamation according to the example set by the UK.
Dr Agnès Callamard, Executive
Director, ARTICLE 19[21] says, “This measure will
send a very strong and clear signal globally that democracies do not have
criminal defamation laws. No longer will repressive countries be able to
justify their criminal defamation laws on the basis that such laws exist in
established democracies such as the UK.”[22] We may, therefore,
conclude that the trend now is towards decriminalising defamation and Pakistan
should think about it too.
5. The Reasons for
Treating Defamation as a Crime
To identify the reasons for treating defamation as a crime, we
have to go back in time and see what the author of the Pakistan Penal Code,
1860, the famous Lord Macauley has to say about the issue. We will let the
great man speak for himself:
According to the theory of the
criminal law of England, the essence of the crime of private libel consists in
its tendency to provoke breach of the peace; and, though this doctrine has not,
in practice, been followed out to all the startling consequences to which it
would legitimately lead, it has not failed to produce considerable
inconvenience.
It appears to us evident that between the offence of defaming and
the offence of provoking to a breach of the peace, there is a distinction as
broad as that which separates theft and murder. Defamatory imputations of the
worst kind may have no tendency to cause acts of violence. Words which convey
no discreditable imputation whatever may have that tendency in the highest
degree. Even in cases where defamation has a tendency to cause acts or
violence, the heinousness of the defamation, considered as. defamation, is by
no means proportioned to its tendency to
cause such acts; nay, circumstances which are great aggravations of
the offence, considered as· defamation, may be great mitigations of the same
offence, considered as provocation to a breach of the peace. A scurrilous
satire against a friendless woman, published by a person who carefully conceals
his name, would be defamation in one of its most odious forms. But it would be
only by a legal fiction that the satirist could be said to provoke a breach of
the peace. On the other hand, an imputation on the courage of an officer
contained in a private letter, meant to be seen only by that officer and two or
three other persons might, considered as defamation, be a very venial offence.
But such an imputation would have an obvious tendency to cause a serious breach
of the peace.[23]
The above passage indicates that the only reason for declaring
defamation as an offence was the possibility that it might lead to a “breach of
the peace,” as the person defamed might decide to take the law into his own
hands, and might take the person defaming him to task. With due respect to this
towering personality, we feel that this reasoning is not justified. It thinks
only of that person who has the ability to manhandle the person ready to defame
him. We have to think of times when an aristocrat in Europe would challenge a
person to a duel when that person offended his noble sensibilities. Further,
this reasoning reflects the thinking of an individual, who is aristocrat, and
it is not justified for a government that has to think of the masses and has to
uphold freedom of expression.
In addition to the above, the
Penal Code disagreed somewhat with the English common law on the issue of
criminalizing defamation. Lord Macauley points out the distinction, but then
gives unconvincing arguments about why he took a different position. He says:
By the English law, defamation is a crime only when it is
committed by writing, printing, engraving, or some similar process. Spoken
words reflecting on private character, however atrocious may be the imputations
which those words convey, however numerous may be the assembly before which
such words are uttered, furnish ground only for a civil action. Herein the
English law is scarcely consistent with itself. For if defamation be punished
on account of its tendency to cause breach of the peace, spoken defan1ation
ought to be punished even more severely than written defamation, as having that
tendency in a higher degree.[24]
Thus, even the law of those days in England did not demand that
all type of defamation be crimininalized. All this shows that there is
absolutely no justification for the law to treat defamation as an offence. Even
if there is a slight chance of a breach of peace, it cannot stand as a valid
reason in the face of the state “trying to control speech” through
arm-twisting. Defamation must, therefore, be repealed and removed from the
Pakistan Penal Code.
6. Decriminalize
Defamation in Pakistan
In Western countries, defamation claims are usually brought
against the media although politicians may occasionally use this law against
each other. The international standards that seek to protect and propagate the
right to freedom of expression and the public’s right to know are noble
standards that are worthy of respect and implementation. Yet, these standards
must be applied in a balanced way in poor countries like Pakistan. It has
already been stated that the law of defamation must strike a balance between an
individual’s interest in his reputation and the right to freedom of expression.
We have also stated that in an Islamic republic that seeks to abide by the
norms of the sharī‘ah, the
right to one’s reputation has a higher priority than freedom of expression.
Having said that, we must look at the situation in
1. Hakim Ali v. Messrs Pakistan Herald
Publications (Pvt.) Ltd. through Chief Executive and 4 others.[25]
2. Sheikh Muhammad Rashid v. Majid Nizami,
Editor in Chief, The Nation and Nawa-e-Waqat,
There may be a few more cases. Most of the cases pertain to
contracts and recoveries by banks. Only one or two cases, out of these, pertain
to the crime of defamation, while the remaining deal with defamation as a tort.
A survey of the cases shows that only the rich can benefit from the law of
defamation. There are no cases by the poor against the media or anyone else. In
a country where the Press has newfound liberties, a vague or no code of ethics,
and the public is interested in sensational news, the reputation of the
ordinary people is under threat. The reasons for this are many and stretch back
to the times of the British, who had imposed heavy court-fee for all tort cases
in order to save revenue and haul it back to Britain. The poor people are not
aware of their rights, and it is difficult to imagine that a destitute person
will have the courage or the resources to file an expensive case against a
powerful and rich news channel.
The law of champerty prevents lawyer’s from providing funds and
free services to poor litigants in return for sharing damages when awarded. The
common law doctrines of champerty and maintenance should be done away with so
that lawyers can come to the help of poor litigants whose reputations have been
brutalized.[27]
The common law principles of champerty and maintenance have been rejected by
many legislatures throughout the world during the 1970’s and 80’s. This was
done to allow indigent individuals access to the justice for wrongs and
injuries suffered by them when they could not prosecute because of their poverty.
The effort should be to provide a level playing field to everyone.
It is only in such an environment that a balance can be struck between the
interest in reputation and freedom of expression.
7. CONCLUSION
Today, there are efforts to decriminalise defamation to enhance
freedom of expression, especially in the context of journalism. The main aim of
criminal law is to redress the victim but, in case of defamation this can be
done efficiently through civil law remedies. The law of criminal defamation,
seditious laws and that of seditious libel in the
[2]. See Pakistan Penal Code 1860, chapter
XXI: sections 499 to 502A.
[3]. See, Defamation Ordinance, 2002.
[4]. This was the situation in the UK, before
decriminalisation.
[5]. The United Kingdom, Bosnia &
Herzegovina, Estonia, Georgia and Ukraine in Europe, and Ghana, Sri Lanka, the
United States, New Zealand and Mexico globally.
[6]. The Former Chief Justice of Pakistan too
has chosen the civil remedy in his recent case of defamation against the Imran
Khan, Chairman of the Pakistan Tehreek-i-Insaf.
[7]. Encyclopaedia Britannica, s.v.
“Defamation”
[8]. Ibid.
[9]. “Although defamation is a creation of
English law, similar doctrines existed several thousand years ago. In Roman law
abusive chants were capitally punishable. In early English and Germanic law
insults were punished by cutting out the tongue.
As late as the 18th century in
England, only imputation of crime or social disease and casting aspersions on
professional competence constituted slander, and no offenses were added until
the Slander of Women Act in 1891 made imputation of unchastity illegal. French
defamation laws historically have been more severe. An act of 1881, which
inaugurated modern French defamation law, required conspicuous retraction of
libelous material in newspapers and allowed truth as a defense only when
publications concerned public figures. Modern German defamation is similar but
generally allows truth as a defense. In Italy truth seldom excuses defamation,
which is criminally punishable there.” Ibid.
[10]. Thomas S. Woods and Marko Vesely, The
Law of Defamation: A Primer (Lawson Lundell LLP, 2009), 2.
[11]. Now it is Defamation Act, 2013 in the
United Kingdom.
[12]. See Principle 4.
[13]. Declaration of Sana’a, 11 January 1996,
endorsed by the General Conference by Resolution 34, adopted at the 29th
session, 12 November 1997.
[14]. Article 19 Global Campaign for Free
Expression, Memorandum on the Defamation Ordinance, 2002, 18.
[15]. These states are Cyprus, Estonia, Ireland,
Romania and the UK.
[17]. Freedom from Fear, Index on Censorship,
Volume 38, Number 2, 2009.
[18]. Bulgaria, Croatia, the Former Yugoslav
Republic of Macedonia, Montenegro, Romania and Serbia decided not to sanction
libel with imprisonment, but with a fine or corrective labour.
[19]. Coroners and Justice Act, 2009.
[20]. Defamation Act, 2013 (
[21]. ARTICLE 19, Organisation on Freedom of
Speech and Expression has been campaigning for decriminalisation of defamation
in the United Kingdom and internationally for many years.
[23]. Thomas Babington Macaulay, Speeches and
Poems With the Report and Notes on the Indian Penal Code, vol. 2 (New York:
Hurd & Houghton,1867), vol. 2, p. 462.
[24]. Ibid., 463.
[25]. PLD 2007
[26]. PLD 2002 SC 514.
[27]. Today, there is a movement for doing away
with these doctrines with respect to arbitration. In the United States of
America some states have renounced these doctrines. In 1997, the Massachusetts
Supreme Court in Saladini v. Righellis ruled that the doctrines of
maintenance and champerty “no longer shall be recognised in Massachusetts.” The
court reasoned that: “The champerty doctrine is [no longer] needed to protect
against the evils once feared: speculation in lawsuits, the bringing of
frivolous lawsuits, or financial overreaching by a party of superior bargaining
position.” The court explained that new tools such as fee regulations,
sanctions rules and the doctrines of unconscionability, duress and good faith
provide sufficient safeguards to protect against the “evils” the common law
doctrines were originally intended to address. The Supreme Court of South
Carolina adopted the Saladini analysis in Osprey v. Cabana Limited
Partnership in 2000.