Territorial Jurisdiction On Cyber Defamation In Pakistan’s Perspective

305 TERRITORIAL JURISDICTION ON CYBER DEFAMATION IN PAKISTAN S PERSPECTIVE Muhammad Zaheer Advocate High Court Lahore Published in: Corporate Law Decisions Year of Publication: 2011 Suggested Citation: 2011 CLD Journal Section p.7 The rapid evolution of information technology (IT) is transforming our society and its institutions. Where originally only some specific sectors of society had rationalized their working procedures with the help of information and communication technology, now hardly any sector of society has remained unaffected. These developments have given rise to exceptional economic and social changes, but they also have a dark side, the emergence of new types of crime as well as the commission of traditional crimes by means of new technologies. Moreover, the consequences of criminal behavior can be more far-reaching than before because they are not restricted by geographical limitations or national boundaries. Cyber Defamation is the most complicated problem in the cyber world. It is a crime committed in cyberspace, normally through the Internet, with the aim of defaming others. Cyber defamation is not different from conventional defamation except the involvement of a virtual medium: A defamatory article can be published in a newspaper or on a website. Publishing through a website would amount to cyber defamation. In recent years, defamation on the Internet has become one of the blistering topics of Internet law. Within a short span of time, a number of social networking sites and Internet blogs have been developed and are continuously increasing in both popularity and use. People share a good deal of information, good and bad, amongst themselves, which may amplify the chances of defamation and libel against a certain group or individual. Once the defamatory content/article is circulated on the Internet, its recovery and damage control is not easy to handle; besides, the process is time-consuming. The damage caused to the victim is huge, especially if the act of libel is intended to harm the reputation of an individual or a business. (Cit. p.8) Nevertheless, this article is not an attempt to discuss cyber defamation and its seriousness. Rather, I will just analyze a critical question of territorial Jurisdiction of Pakistani Courts in a matter, where a person puts some offensive contents on internet, from any other place with a motive to spread it worldwide and the same contents would become comprehensible to third party in Pakistan. In Pakistan s Perspective One of the major features of Cyber defamation is that it will often have been transmitted across national boundaries and where defamatory statements cross state borders, inevitable application of international law are surely invoked, wherein difficult questions are raised such as what country (or countries) shall have jurisdiction, what country's law should govern the action (the choice of law question) and if a decree is obtained, how can it be enforced if the defender lives outside the jurisdiction of the court etc. Nonetheless, the issue of Territorial Jurisdiction in Cyber Defamation is somehow a new sort of activity, which is not so familiar in the courts of this country, and such new developments require various dimensions and depths in order to resolve the issue of maintainability of such litigation at particular place or places. Even though, the procedural law of Pakistan (C.P.C) and few actions taken by the Courts of Pakistan will certainly help us to determine this issue. Code of Civil Procedure; Section 19(1) says where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the Plaintiff in either of the said Courts. Illustrations (b) A, residing in [Karachi] publishes in [Dacca] statements defamatory of B. B may sue A in [Dacca] or [Karachi]. A bare reading of section 19 C.P.C. leaves no room for doubt that the plaintiff has an option to file a suit at the place where the wrong (tort of defamation) completed (done). (Cit. p.9) The word wrong done comprises of facts starting from commission of act to its resultant effect (2). For instance, a newspaper is published in United Kingdom or United State of America but it also circulates in Pakistan and if it contains some defamatory statements regarding a person who resides in Pakistan and who has good reputation in Pakistan, the said person can sue in Pakistan because when the newspaper reaches in Pakistan, and the said defamatory statements become comprehensible to the people of Pakistan, the wrong will be done in Pakistan to the person defamed and he has an option to institute the suit either at UK/USA or in Pakistan on both scores i.e. The same situation applies on internet defamation as the act of wrong (tort of defamation) starts when an author puts some defamatory contents on internet from any place but completed on other place where the person against whom the defamatory contents was published, defamed because he has good market reputation on that place and due to the acts of the Author, his reputation suffered. Recently, the Honorable High Court, Lahore has directed to impose a ban on Facebook alleging a competition created by a Facebook user who set up a page called Draw Mohammed Day, inviting people to send in caricatures of the Prophet Muhammad (PBUH) on May 20. It is worthwhile to mention here that in this matter, the Facebook, is based on United States, the facebook user who set up a blasphemy page was a foreigner, the blasphemous page to be uploaded on this website from abroad with the intention to spread it worldwide. However, the honourable Lahore High Court has assumed its Jurisdiction and took an action against this Shetani Harkat because the wrong done was completed (done) in Pakistan for the people of Pakistan where the page was displayed through Facebook which immense cause to hit the sentiment of the People of Pakistan. (3) Besides above, the learned District and Session Judge Lahore has passed the order on an Application under sections 22-A and 22-B of the Criminal Procedure Code, 1898 filed by Mr. Muhammad Azhar Siddiqui for registration of criminal case against the owners of Facebook (Mr. Mark Elliot Zuckerberg and Mr. Dustin Moskovitz), the writers, the artiest (Mr. Andy) and the management of Facebook who committed the heinous and serious crime under section 295-C of the Pakistan Penal Code, 1860. The learned Additional District and Session Judge Lahore has (Cit. p.10) directed the SHO P.S. Civil Lines, Lahore to record the statement of the Petitioner and proceed further according to law.(4) In 2006, the Supreme Court of Pakistan assumed jurisdiction over a matter of blasphemy on internet. In pursuant to a Petition filed by Dr. Mohammed Imram Uppal under Article 184(3) of the Constitution of Pakistan, the Supreme Court on March 1, 2006 directed the government to keep tabs on Internet sites displaying the Prophet Muhammad cartoons. Besides above, the Supreme Court has directed the Police to register against a Danish cartoonists and editors and publishers of Danish, Irish, Norwegian, French and Italian newspapers for reproducing the said cartoons. (5) Position in Other Countries Bare reading of section 19, C.P.C as well as the decisions taken by Pakistani Courts as mentioned above, gives no space for any doubt that the Pakistani Courts shall have Jurisdiction on the above subject-matter. However, it would be more appropriate to see as to how the Courts in developed countries look into such similar cases. And what are their views about jurisdiction, maintainability and tort of defamation? In Dow Jones and Company Inc v Gutnick [2002] HCA 56; 210 CLR 575; 194 ALR 433; 77 ALJR 255 (10 December, 2002) (6) The facts of the cited case are that Dow Jones & Company Inc. ( Dow Jones ) had operated WSJ.com subscription news site on the World Wide Web. The information at WSJ.com includes Barron s Online in which the text and pictures published in the current printed edition of Barron s magazine used to be produced. The edition of Barron's Online for 28th October 2000 (and the equivalent edition of the magazine which bore the date 30th October, 2000) contained an article entitled "Unholy Gains" in which several references were made to the respondent, Mr. Joseph Gutnick. Mr. Gutnick contended that part of the article defamed him. He brought an action in the Court of Victoria against Dow Jones claiming damages for defamation as Mr. Gutnick lived in Victoria and had his business headquarters over there. The primary judge recorded in his reasons that Mr. Gutnick "seeks to have his Victorian reputation vindicated by the courts of the State in (Cit. p.11) which he lived and that he was indifferent to the other substantial parts of the article and desired only that the attack on his reputation in Victoria as a money-launderer should be repelled and his reputation re-established". The Trial Court at Victoria concluded that the statements of which Mr. Gutnick sought to complain were "published in the State of Victoria when downloaded by Dow Jones subscribers who had met Dow Jones's payment and performance conditions and by the use of their passwords" and therefore the contention of Dow Jones's that the publication of the article in Barron's Online occurred at the servers maintained by Dow Jones in New Jersey in the United States, was rejected. Dow Jones sought Leave to Appeal to the Court of Appeal of Victoria but that Court (Buchanan JA and O'Bryan AJA) refused Leave to Appeal, holding that the decision at first instance was plainly correct. By special leave, Dow Jones preferred Appeal before the High Court of Australia to impugn the concurrent finding. But the appeal of Dow Jones by High Court of Australia was also dismissed with cost whereby maintaining jurisdiction of the Court within which place the publication of the offending material was presented in comprehensible form i.e. Victoria where the respondent Mr. Gutnick who was victim of defamation was subjected to loss of reputation and where the offending material was downloaded and communicated to the other to the manifest detriment of his esteem. It is necessary that a publisher in a cyberspace would be bound to take account of the law of every country on earth, for there were no boundaries which a publisher could effectively draw to prevent anyone, anywhere, downloading the information, it put on its web server. The para-151 of the judgment Dow Jones of the High Court of Australia in support of said contention which, inter alia, holds as under:-- 151. In a cause of action framed in defamation, the publication of the material which damages the reputation of the plaintiff is essential. Merely creating and making the material available is insufficient. The material has to be accessed or communicated in a jurisdiction where the plaintiff has a reputation. That will usually be the place where the plaintiff is resident. Unlike product liability or some other (Cit. p.12) negligence claims, damage to reputation cannot occur "fortuitously" in a place outside of the defendant's contemplation [187]. Where a person or corporation publishes material which is potentially defamatory to another, to ask the publisher to be cognisant of the defamation laws of the place where the person resides and has a reputation is not to impose on the publisher an excessive burden. At least it is not to do so where the potential damage to reputation is substantial and the risks of being sued are commensurately real. Publishers in the United States are well aware that few, if any, other jurisdictions in the world observe the approach to the vindication of reputation adopted by the law in that country. The reference can be made to paras 199, 200, 201 from the portion of the judgment authored by the Justice Callinan which may be reproduced for appreciating the wisdom laid thereon with reference to issue under consideration:-- 199. The appellant's submission that publication occurs, or should henceforth be held to occur relevantly at one place, the place where the matter is provided, or first published, cannot withstand any reasonable test of certainty and fairness. If it were accepted, publishers would be free to manipulate the uploading and location of data so as to insulate themselves from liability in Australia [235], or elsewhere: for example, by using a web server in a "defamation free jurisdiction" or, one in which the defamation laws are tilted decidedly towards defendants. Why would publishers, owing duties to their shareholders, to maximise profits, do otherwise? The place of "uploading" to a web server may have little or no relationship with the place where the matter is investigated, compiled or edited. Here, the State where the matter was uploaded was different from the State in which the article was edited. Matter may be stored on more than one web server, and with different web servers at different times. Different parts of a single web page may be stored on different web servers in different jurisdictions. Many publications in this country, whether by television, radio, newspaper or magazine originate in New South Wales. The result of the adoption of a rule of a single point of (Cit. p.13) publication as submitted by the appellant, is that many publications in Victoria, South Australia, Tasmania, Western Australia and Queensland would be governed by the Defamation Act 1974 (NSW) which provides, in its present form, for a regime by no means commanding general acceptance throughout this country. Choice of law in defamation proceedings in this country raises a relatively simple question of identifying the place of publication as the place of comprehension: a readily ascertainable fact. 200. I agree with the respondent's submission that what the appellant seeks to do, is to impose upon Australian residents for the purposes of this and many other cases, an American legal hegemony in relation to Internet publications. The consequence, if the appellant's submission were to be accepted would be to confer upon one country, and one notably more benevolent to the commercial and other media than this one, an effective domain over the law of defamation, to the financial advantage of publishers in the United States, and the serious disadvantage of those unfortunate enough to be reputationally damaged outside the United States. A further consequence might be to place commercial publishers in this country at a disadvantage to commercial publishers in the United States. 202. Finally, Victoria is a clearly appropriate forum for the litigation of the respondent's claim to vindicate his reputation which has been attacked in Victoria, as well, plainly as elsewhere. For myself I would see no immediate reason why, if a person has been defamed in more than one jurisdiction, he or she, if so advised might not litigate the case in each of those jurisdictions. However, that issue does not arise here as the respondent has offered an undertaking to proceed in Victoria only. The proceedings should be neither stayed nor set aside. In [1996] 3 All ER 929 Shevill and others v. Presse Alliance SA) (7) A French newspaper with only a limited circulation in England published an article claiming that the first plaintiff, an English national domiciled in England, and the bureau de change in Paris at which she worked, had been involved in laundering drug money. The plaintiffs (including the French company which operated the bureau de change) (Cit. p.14) brought proceedings in England against the newspaper, alleging that they had been defamed by the article. The defendant newspaper applied to the court to have the proceedings struck out on the ground that the court had no jurisdiction to hear the action because the plaintiffs were not suing in 'the place where the harmful event occurred. The newspaper contended that the place where the harmful event occurred was France and that no harmful event had occurred in England. The Judge dismissed the application to strike out, and on appeal his decision was affirmed by the Court of Appeal. The newspaper appealed to the House of Lords, which referred a number of questions to the Court of Justice of the European Communities, which ruled that, on a proper construction of the expression 'place where the harmful event occurred' in Art. 5(3), the victim of a libel by a newspaper article distributed in several contracting states could bring an action for damages against the publisher either in the courts of the contracting state of the publisher, in which case the courts had jurisdiction to award damages for all the harm caused by the defamation, or in the courts of each contracting state in which the publication had been distributed, in which case the courts had jurisdiction to rule solely in respect of the harm caused in the state of the court seised of jurisdiction. In [1999] EMLR 735, Schapira v. Ahronson and others) (8) The plaintiff was an Israeli citizen who since 1985 had been resident in London and had become a citizen of the UK. He complained of two articles in an Israeli newspaper written in Hebrew and printed in Israel. The writs were served in England (so the burden of proof was the opposite to that in the present case), and the claim was limited to publication of the two articles in England, where the circulation totalled 141 and 19 respectively, compared with a circulation of nearly 60,000 in Israel. Most important of factors in favour of a trial in England to be as follows: (1) There was publication in England so that if the plaintiff's case is well-founded the tort of libel was committed in England. (2) The plaintiff has sued in respect of publication in England, not on publication in Israel or anywhere else. (Cit. p.15) (3) The plaintiff and his family have lived in England for 14 years and he has been a UK citizen for 10 years. His wife is English by birth and his children go to English schools. He is a businessman in England and wants to be vindicated here. (4) The defendants chose to include the words complained of in newspapers which they knew would be sent to subscribers in England, whereas, I have said, the plaintiff lived. (5) The plaintiff will be the principal witness on his side of the case. (6) The plaintiff would like speedy trial by jury, both of which are available in London but probably not in Israel. The same applies to a statement in open court if such becomes appropriate, which statement would appear in the press, and it is not suggested that such facilities exist in Israel. The important factors in favour of a trial in Israel were said by the judge to be: (1) The total circulation of the newspaper is 58,900. The first article was circulated to 141 subscribers in the United Kingdom, the second to only 19, plus one copy to the Israeli Embassy. All those copies would inevitably be read only by those who know Hebrew. The vast majority of the circulation of the newspaper was in Israel. (2) All background facts occurred in Israel. This is, it is urged, 'an Israeli case'. There has been a massive liquidation process, which is said to be highly relevant, going on in Israel giving rise to a vast quantity of documentation, and revealing many important potential witnesses, some of whom might not travel willingly to London and who could not be compelled to do so. (3) The whole case would have to be conducted here with great problems of translation. (4) It would not be fair to individual defendants to require them to fight this case in the United Kingdom; particularly if malice is eventually pleaded by the plaintiff their credibility will be at stake. (Cit. p.16) (5) If there is to be a jury trial it will be difficult, if not impossible, for an English jury to do justice where so many complexities in a foreign language have to be investigated and mastered. (6) There might be inconsistent verdicts in Israeli and English litigation. Having identified the issues which were likely to arise, Peter Gibson LJ concluded as follows at page 19:-- Where the tort of libel is allegedly committed in England against a person resident and carrying on business in England by foreigners who were aware that their publication would be sent to subscribers in England, that English resident is entitled to bring proceedings here against those foreigners and to limit his claim to publication in England, even though the circulation of that article alleged to be defamatory was extremely limited in England and there was a much larger publication elsewhere. That was recognised by the European Court of Justice and the House of Lords in Shevill v. Presse Alliance [1992] 2 AC 18 and [1986] AC 959. In the light of the issues, I am wholly unconvinced that Israel is the forum with which these libel actions, limited as they are to publication of the offending articles here, have the most real and substantial connection. On the contrary, like the judge, I am of the view that England, where the plaintiff lives and carries on business and where he wishes his reputation to be vindicated is the appropriate forum for the actions. The points made on behalf of the plaintiff, which listed above, considered to be strongest by the Court of Appeal who ordered to continue the proceeding in England. In [1998] All ER (D) 611 Berezovsky v. Forbes Inc and others Glouchkov v. Forbes Inc and others (9) the plaintiffs were respectively a member of the Russian government and a senior official of Aeroflot while an American company, was the publisher of a well-known business magazine. In 1996 the defendant's magazine published an article accusing the plaintiffs of various criminal acts in Russia. The magazine had a circulation of around 2000 in England compared to almost 800,000 (Cit. p.17) in America and just 13 in Russia. The plaintiffs brought separate proceedings for defamation in England and served writs on the defendant outside the jurisdiction under RSC Ord. 11. The defendant applied to have the writs set aside and the proceedings stayed on the grounds that England was not the appropriate forum for the action. At the hearing, the plaintiffs claimed that they had strong business and personal connections with England, but the judge concluded that the plaintiffs' connections with England were tenuous, and that in reality the case was a peculiarly Russian one concerning nothing but Russia. He therefore granted the defendant's application and the plaintiffs appealed. On the appeal, they adduced further evidence of their connections to England and of the damage inflicted on their reputations in England. They argued that the English publication of the magazine gave rise to a substantial complaint, and that England was the proper forum in respect of a tort committed in England. The defendant contended, inter alia, that the court should treat multi-jurisdiction cases as giving rise to a single cause of action and then ascertain where the global cause of action arose. The court should concentrate on identifying the place which was the real focus of the dispute, and not treat different publications of the same tort in several countries as constituting separate segments. For all these reasons, the Court of Appeal has satisfied that both plaintiffs have established that England is the natural forum where these actions have their most real and substantial connection, and where consequently the cases can most suitably be tried for the interests of all the parties and for the ends of justice. Therefore allowed both these appeals, lift the stay which the judge imposed, and reinstate the service of both writs under order 11, so that the plaintiffs will be at liberty to proceed with their actions in the High Court of Justice. In India's first case of cyber defamation, a Court of Delhi assumed jurisdiction over a matter where a corporates reputation was being defamed through emails and passed an important ex parte injunction. The Delhi High Court has passed an ex parte ad interim injunction in the case entitled "SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra" being Suit No. 1279 of 2001. (10) In this case, the defendant Jogesh Kwatra being an employee of the plaintiff company started sending (Cit. p.18) derogatory, defamatory, obscene, vulgar, filthy and abusive emails to his employers as also to different subsidiaries of the said company all over the world with the aim to defame the company and its Managing Director Mr. R.K. Malhotra. The plaintiff file a suit for permanent injunction restraining the defendant from doing his illegal acts of sending derogatory emails to the plaintiff. Arguing on behalf of the plaintiffs Mr. Pavan Duggal contended that the emails sent by the defendant were distinctly obscene, vulgar, abusive, intimidating, humiliating and defamatory in nature. Mr. Duggal further argued that the aim of sending the said emails was to malign the impacable reputation of the plaintiffs all over India and the world. Mr. Duggal further contended that the acts of the defendant in sending the emails had resulted in invasion of legal rights of the plaintiffs. Further the defendant is under a duty not to send the aforesaid emails. It is pertinent to note that after the plaintiff company discovered the said employ could be indulging in the matter of sending abusive emails, the plaintiff terminated the services of the defendant. Mr. Duggal added. After hearing detailed arguments of Mr. Duggal, Hon'ble Mr. Justice J D Kapoor of the Delhi High Court passed an ex parte ad interim injunction observing that a prima facie case had been made out by the plaintiff. Consequently, the Delhi High Court restrained the defendant from sending derogatory, defamatory, obscene, vulgar, humiliating and abusive emails either to the plaintiffs or to its sister subsidiaries all over the world including their Managing Directors and their Sales and Marketing departments. Further, Hon'ble Justice J.D. Kapoor also restrained the defendant from publishing, transmitting or causing to be published any information in the actual world as also in cyberspace which is derogatory or defamatory or abusive of the plaintiffs. This order of Delhi High Court assumes tremendous significance as this is for the first time that an Indian Court assumes jurisdiction in a matter concerning cyber defamation and grants an ex parte injunction restraining the defendant from defaming the plaintiffs by sending derogatory, defamatory, abusive and obscene emails either to the plaintiffs or their subsidiaries. After this discussion, It has been observed that under (Cit. p.19) Canadian, Australian, Indian, and English common law, a transnational defamation dispute is generally heard within the territory or location of the defamation, or where the defamed person suffered damages to his or her personal and/or business reputation or the law of the place of the wrong. However, the United State libel law is biased towards the defendant. Decisions of US courts have been at odds with judgments in the UK and Australia. In Young v. New Haven Advocate, No. 01-2340 (4th Cir. 2002) (11). On 19 May, 2003, the Supreme Court of the United States rejected an application for leave to appeal against a decision of a United States Court of Appeal, Young v. New Haven Advocate,3 which had held that defamation proceedings relating to material published online by newspapers in Connecticut could not be commenced in Virginia. Two Connecticut newspapers, the New Haven Advocate and the Hartford Courant, had published a story about the State of Connecticut's policy of housing prisoners in Virginian institutions and allegedly defamed the warden of a Virginian prison (a Mr. Young) by implying that he was a racist who encouraged the abuse of inmates by guards. The articles were published in the newspapers and were circulated in print and online. Several subscribers read the article online in Virginia and Mr. Young issued defamation proceedings in Virginia against the Connecticut newspapers. The newspapers filed motions to dismiss the actions on the basis that the Virginian courts lacked jurisdiction. The United States Court of Appeal held that the Virginian courts did not have jurisdiction over the Connecticut-based newspapers because the newspapers did not 'manifest an intent to aim their websites or the posted articles at a Virginian audience'. The Court of Appeal followed its previous decisions which had stated that a plaintiff would need to prove that an out of state defendant's Internet activity was expressly targeted at, or directed to, the forum state in order to establish jurisdiction in the courts of that state. In this case, even though the warden had allegedly suffered damage to his reputation in Virginia as a result of the articles, the evidence showed that the newspapers had intended to direct the publication at a Connecticut audience, despite the article being accessible online in other jurisdictions. (Cit. p.20) Conclusion The law regarding jurisdiction in Internet defamation disputes is still evolving. However, after this discussion, I have no doubt that the Pakistani courts will have jurisdiction to hear defamation cases where online material, which has been published, circulated, uploaded from outside the jurisdiction and the said defamatory contents become comprehensible to the people of Pakistan. In Australia, India and the UK it is clear that the courts will have jurisdiction to hear defamation cases where online material, which has emanated from outside jurisdictions, has been downloaded and read in Australia or the UK or India. In contrast, US courts clearly favour declining jurisdiction in online defamation cases relating to material loaded onto the Internet outside the jurisdiction, except where there is a clear and manifest intention to publish the material online in the local forum. How the law develops in other jurisdictions remains to be seen. Suggestion For the time being, a new mechanism of dispute resolution for online defamation cases with online procedures could be implemented at once when such disputes arise. For future consideration, an international treaty on Internet defamation could be a better solution to disputes that arise over the issue of jurisdiction. I forecast that there will be an increase in legislation, such as international treaties etc, which would regulate the issue of jurisdiction on Internet defamation in a very well manner. This, in turn, would result in these types of cases being resolved with less uncertainty and doubt regarding the issue related the law jurisdiction. Bibliography (1) Civil Procedure Code (2) 2004YLR 2525 (3) Dawn News (4) Petition No. Nil of 2010 filed by M. Azhar Siddique (5) Dawn News (6) Dow Jones and Company Inc. v. Gutnick [2002] HCA 56; 210 CLR 575; 194 ALR 433; 77 ALJR 255 (10 December 2002) (Cit. p.21) (7) [1996] 3 All ER 929 Shevill and others v. Presse Alliance SA) (8) [1999] EMLR 735, Schapira v. Ahronson and others) (9) [1998] All ER (D) 611 Berezovsky v. Forbes Inc. and others Glouchkov v. Forbes Inc. and others) (10) Suit No. 1279 of 2001. (India) Pvt. Ltd. v. Jogesh Kwatra" (11) Young v. New Haven Advocate, no. 01-2340 (4th Cir. 2002) ---------