Reforms for Defamation in Pakistan

REFORMS FOR DEFAMATION IN PAKISTAN REFORMS FOR DEFAMATION IN PAKISTAN By Muhammad Qasim Sheikh Abstract The concept of defamation has been enforced as a guarantee for upholding the dignity and reputation of individuals along with setting boundaries when it comes to freedom of speech as categorically enshrined under the Constitution1 of the Islamic Republic of Pakistan, 1973. The concept of defamation in the context of sexual harassment and abuse cases is underdeveloped with the #MeToo movement on the rise, several victims of sexual harassment and abuse have used social media to disclose their horrific stories. Unfortunately, these claims are generally met with counterclaims of defamation by the alleged perpetrator or their supporters, which creates further hindrance for these victims trying to speak up. The criminal defamation concept is also enshrined under the Pakistan Penal Code 2and it has been criminalized in the Prevention of Electronic Crimes Act. However, the recent enforcement of the Punjab Defamation Act, of 2024 brings forth the question of whether any reforms or alterations in the new law are required or if the new law challenged before the Honourable Lahore High Court is struck down then is the Defamation Ordinance, 2002 a sufficient tool to prevent slanderous and libelous actions. Keywords: Defamation, Punjab Defamation Act of 2024, Defamation Ordinance, 2002, Slanderous, Libelous, Me-Too Movement, Sexual Harassment, Criminal Defamation and Prevention of Electronic Crimes Act. Introduction The Defamation Ordinance, 2002 ("Ordinance") was enacted on the 1st of October to make the provisions for defamation and matters related therewith. Furthermore, the concept of defamation has been defined by the Ordinance as 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. This Ordinance has been in the field for 22 years until the new Punjab Defamation Act, 2024 ("2024 Act") was enacted as a provincial law on the 20th of May, 2024. However, the new provincial law has been challenged in the Honourable Lahore High Court before Mr. Justice Amjad Rafiq 3with fake circulation of digital newspapers that a status quo order has been passed on certain provisions of the 2024 Act. Moreover, a recent trend is where if a victim speaks up about their abuse or harassment, the alleged perpetrator counterclaims by using defamation laws to exert undue pressure on the alleged victim. On 2nd June 2020, the Women's Action Forum 4("WAF"), a Pakistan-based social organization, released a statement where they reported an alarming rise in the registration of defamation cases against individuals speaking about or reporting incidents of harassment, assault, and rape. Furthermore, they also discussed the sexual harassment of girls in private schools in Lahore. Given the same, the first section will elaborate upon the key provisions of the Ordinance and the potential reforms needed for the Ordinance. Moreover, the next section will elaborate upon the concept of defamation in criminal law, the emergence of the MeToo movement, the Prevention of Electronic Crimes Act ("PECA"),the counterclaim of defamation laws against innocent victims just to muzzle free speech, and the reforms needed. The last section will primarily discuss the consequences if the 2024 Act stays in the field and the potential reforms needed to prevent the powerful from using defamation laws as a sword. Section I The Defamation Ordinance, 2002 The Ordinance5 in pursuance of the Proclamation of Emergency of the fourteenth day of October 1999, and the Provisional Constitution Order No. l of 1999, read with the Provisional Constitution (Amendment) Order No.9 of 1999, and in the exercise of all powers enabling him on that behalf, the President of the Islamic Republic of Pakistan was promulgated. The agenda behind the Ordinance was to prevent slanderous and libelous actions against innocent individuals. Key Ordinance provisions Civil defamation is defined under Section 3 of the Ordinance which for ready reference is reiterated here below: 3. Defamation - (1) "Any wrongful act or publication or circulation of a false statement or representation made orally or in a 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." The case laws are very clear when defamation is actionable. The divisional bench Judgment of Peshawar High Court 6reported as (PLD 2017 Peshawar 115) categorically states that for actionable defamation five essential ingredients are required to be fulfilled which are as follows: 1) the allegations levelled against the plaintiff should be false, 2) the wording used and the allegations levelled, on the face of it, should have been defamatory and derogatory in nature, 3) such allegations should have been published in widely circulated newspapers or spoken in large gathering; 4) the said publication made or wordings used should have been with malice without any reasonable excuse and justification and 5) the allegations should have been directly attributed to the plaintiff specifically mentioning his name. However, in Pakistan in the majority of cases, these ingredients are not fulfilled but the alleged perpetrator counterclaims and uses this defamation law as a sword resulting in favorable outcomes. An interesting thing to add within the first section is Sections 6, 7, and 8 of the Ordinance which primarily pertains to absolute privilege, qualified privilege, and the concept of serving notice within 14 days for pursuing an actionable defamation. For ready reference all three provisions of the Ordinance are reproduced here below: 6. Absolute privilege.---Any publication of statements made in the Federal or Provincial legislatures, reports, papers, notes, and proceedings ordered to be published by either House of the Parliament or by the Provincial Assemblies, or relating to judicial proceedings ordered to be published by the court or any report, note or matter written or published by or under the authority of a Government, shall have the protection of absolute privilege. 7. Qualified privilege.---Any fair and accurate publication of parliamentary proceedings, or judicial proceedings which the public may attend and statements made to the proper authorities in order to procure the redress of public grievances shall have the protection of qualified privileges. 8. Notice of action.---No action lies unless the plaintiff has, within two months after the publication of the defamatory matter has come to his notice or knowledge, given to the defendant, fourteen days' notice in writing of his intention to bring an action, specifying the defamatory matter complained of. However, a fantastic judgment of the Islamabad High Court7 by Mr. Justice Miangul Hassan Aurangzeb reported as PLD 2017 Islamabad 115 is worth discussing. It has been firmly stated that 'although all pleadings delivered or affidavits sworn in the course of judicial proceedings before a Court of competent jurisdiction, were privileged, it is equally important that such a privilege must not be abused by casting unsubstantiated aspersions and insinuations against parties to the Lis --- such allegations may at times not form the foundation of a claim for damages for libel or defamation by the person against whom such allegations were levelled, but they could most definitely, be a ground for the High Court, exercising equitable jurisdiction under Article 199 of the Constitution, to penalize and deny relief to a litigant making such allegations'. Moreover, another key provision of the Ordinance is worth highlighting and is very important in terms of defamation as a whole. The remedies have been discussed under Section 9 of the Ordinance which pertains to tendering of apology in the same manner the defamatory statement passed and with a general damage of minimum PKR 50,000/- in addition to special damages incurred that is proven by the plaintiff. For ready reference all these three provisions of the Ordinance are reiterated here below: 9. Remedies.---Where defamation shall be proved to have occurred, the court may pass order directing the defendant to tender an apology, if acceptable to the plaintiff, and publish the same in similar manner and with the same prominence as the defamatory statement made and pay reasonable compensatory damages as general damages with a minimum of Rs.50,000 (Rupees fifty thousand) and in addition thereto, any special damage incurred that is proved by the plaintiff to the satisfaction of the Court. [Provided that in case of the originator the minimum compensatory damages as general damages shall be three hundred thousand rupees] Given the same, it is evident that the remedies provided under the Ordinance require amendments as the general damages aren't sufficient enough as a consequence of losing a defamation case. From my lens, the general damages should be at least PKR 500,000/-. While as far as the right of appeal is given it is absolutely correct that an appeal shall lie before the Honourable High Court rather to some other court. However, as per the 2024 Act, there have been substantial changes which are to be discussed in the second part of Section I. The need for reforms in the existing Ordinance if the 2024 Act gets struck down The recent enforcement of the Punjab Defamation Act, of 2024 8brings forth the question of whether any reforms or alterations in the new law are required or if the new law challenged before the Honourable Lahore High Court is struck down then is the Ordinance a sufficient tool to prevent slanderous and libelous actions or do require any alterations. The controversial legislation about defamation became a provincial law, the 2024 Act, on the 20th of May, 2024. In Pakistan very sadly the state often uses the pretext of curbing fake news or online abuse to weaponize defamation laws against critics to intimidate, harass, and silence them. However, the new provincial law has been challenged in the Honourable Lahore High Court in Writ Petition No. 37507/2024 before Mr. Justice Amjad Rafiq with fake circulation of digital newspapers that a status quo order has been passed on certain provisions of the 2024 Act. In view of the above, it is unambiguous that the new law is in the field at the moment. However, there is no doubt that the new law in place also adopts this same backsliding approach and that is why it can be said as a draconian law. Key provisions of the Punjab Defamation Act, 2024 One of the shocking aspects that can be seen in the new 2024 Act is the exclusion of Qanun-e-Shahadat9 (law of evidence). How can a trial be executed fairly if the evidence law is not in place subject to Defamation law? Moreover, the concept of obtaining leave to defend has been introduced within the 2024 Act and it is upon the court's discretion whether they believe a grant is worth granting subject to evidence and proof. If the court refuses to grant leave to defend then a preliminary decree will be passed up to PKR 3 million. Lastly, the definition of journalist and Newspaper has been extremely broadly defined which looks like a strategy to muzzle the voices of top-level journalists. For ready reference different Sections of the 2024 Act are reiterated here below: 23. Qanun-e-Shahadat not to apply.---The Qanun-e-Shahadat, 1984 (P.O. No.10 of 1984) shall not apply to the proceedings under the Act. 13. Leave to defend.---(1) In any case in which the summons have been served on the Defendant as provided for in sub- section (7) of section 11, the Defendant shall not be entitled to defend the claim unless he obtains leave to defend from the Tribunal as hereinafter provided; and, in default of his doing so, the allegations of fact in the claim shall be deemed to be admitted and the Tribunal shall forthwith pass a preliminary decree of General Damages in favor of the Claimant on the basis thereof or such other material as the Tribunal may require in the interest of justice. 15. Preliminary Decree.---(1) In case of failure of the Defendant to obtain leave to defend, the Tribunal shall forthwith pass the preliminary decree for General Damages. 2. Definitions.---In this Act: (m) "Journalist" means any person who is professionally or regularly engaged by a newspaper, magazine, news website, or other news broadcast medium (whether online or offline), and includes any person who creates and uploads social media news or current affairs content or otherwise has a substantial track record of freelancing for any newspaper, magazine, news website or other news broadcast medium; (o) "newspaper" means a newspaper and includes a website, application, or other social media platform containing public news, intelligence or occurrences or remarks, or observations or containing only, or principally, advertisements, printed or electronically or digitally issued for distribution to the public and published or issued periodically or in parts or numbers, and includes such other periodical works as the Government may, by notification in the official Gazette, declare to be a newspaper; Given the above, if the 2024 Act is struck down by the Honourable Lahore High Court, then it means that automatically the Ordinance will be in the field. However, there are a few problems in the Ordinance as well which require reforms. Firstly, as per my understanding and analysis, the requirement for a mandatory legal notice provided under Section 8 of the Ordinance shouldn't be mandatory. Although, it is good if a legal notice is served, however, unfortunately in Pakistan when an attorney sends a legal notice on behalf of their clients the response to a legal notice is very rare. If for example the requirement of legal notice is waived then the first fourteen days are automatically gained and an immediate lawsuit can be initiated against the person who has to prove that there were no defamatory remarks passed by him or her. The next alteration that should be done if the Ordinance stays in the field is that the value of general damages shall be increased from PKR 50,000/- to PKR 500,000/-. The rationale behind it is very simple if people know that the consequences are not just to tender an apology but to pay a reasonable amount of money then the fear and cautiousness amongst those individuals will be higher and automatically there will be a reduction in defamation lawsuits. Lastly, any defamatory remarks during judicial proceedings shall not be protected. Section II Concept of Defamation in Criminal Law Pakistan Penal Code 1860 The offenses of defamation are not only categorized into civil law but as well as in criminal law. The defamation has been categorically defined under Section 499 of the P.P.C. which for ready reference is reiterated here below: 499 - Whoever by words either spoken or intended to be read, or by sign 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. In the case reported as 1976 PLD 31410, the Honourable Lahore High Court emphasized the three exceptions under Section 499 of the P.P.C. which are as follows: 1. It is not defamation to impute anything which is true concerning any person if it be for the public good that the imputation should be made or published. Whether or not it is for the public is a question of fact. The second exception that highlights that 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, so far as his character appears in that conduct, and no further. Lastly, it is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct and no further. Lord Denning's speech in a reported case [1961] AC 1090, [1961]11 is worth noting here. It was established that in a civil litigation case, a defendant may mitigate damages by proving through evidence that the plaintiff is generally someone of a bad reputation and the alleged offense does not harm their reputation in society. However, on the other hand, the Plaintiff does enjoy a good reputation in society. If we refer back to criminal law it is evident that all benefit of the doubt is to be granted to an accused and the prosecution must establish its case beyond a reasonable doubt as also penned in a reported case 2007 CLC 941, Karachi High Court12. Prevention of Electronic Crimes Act, 2016 In view of the above, it can be said that the concept of defamation emerges not only under the head of civil law but simultaneously criminal defamation proceedings can be initiated and the same has been proved under the case laws discussed above. However, in terms of electronic crimes, the PECA 13is extremely important to be taken into consideration which is a federal legislation enacted to combat cyber crime in Pakistan. The primary purpose of the PECA is to criminalize harassment, hate speech, unauthorized access to information, and data transmission on the Internet. However, the PECA has been evidently criticized due to the blanket immunity it provides to regulatory agencies including the Federal Investigation Authority (FIA) and Pakistan Telecommunication Agency (PTA). Defamation categorically has not been mentioned within the PECA however, there are certain sections that still can refer to criminalizing defamation which for ready reference is reiterated here below: 20 (1) - Offences against dignity of a natural person-(1) Whoever intentionally and publicly exhibits or displays or transmits any information through any information system, which he knows to be false, and intimidates or harms the reputation or privacy of a natural person, shall be punished with imprisonment for a term which may extend to three years or with fine which may extend one million rupees or with both. 20 (1) - Whoever intentionally and publicly exhibits any information which, (c) intimidates a natural person with any sexual act, or any sexually explicit image or video of a natural person; or (d) cultivate, entices or induces a natural person to engage in a sexually explicit act, through an information system to harm a natural person or his reputation, or to take revenge or to create hatred or blackmail, shall be punished with imprisonment for a term which may extend to five years or with fine. As per the case laws it is unambiguous that where Section 20 of the PECA is attracted then Section 21 is automatically invoked as both pertain to criminalizing defamation. Unfortunately, in Pakistan, PECA has been used throughout by the harassers by pressurizing and threatening via filing complaints before the FIA. Examples of Harassment and the #MeToo Movement The leading example of harassment and defamation can be seen in a recent reported case 2022 PLD 77314,where singer Meesha Shafi posted a tweet where she claimed that singer Ali Zafar had sexually harassed her. As a result, a legal notice under Section 14 of the Ordinance was sent by Ali Zafar to Meesha Shafi and later a Suit for damages worth one billion rupees in the District Court for accusing him of sexual harassment. Another example that can be used here is the rape allegations by Jami Moor15. In 2019, a filmmaker, Jami Moor disclosed on Twitter that he had been raped thirteen years ago by a powerful and influential media personality, Mr. Hameed Haroon, CEO of Dawn News. The result of these allegations was a defamation suit filed by the CEO. What I am trying to establish here is that generally those innocents that are harassed - their freedom of speech is muzzled by the filing of defamation suits. However, now the concept of 'women's card' is very common in society which means that women do based on a personal vendetta make false allegations against innocent individuals, causing nothing but massive damage to those innocent's reputations. With the #MeToo movement rising, many women have rightly spoken up about the harassment they have faced by various predators however, using this as a sword based on a nefarious agenda is strictly condemnable. Section III The controversial legislation about defamation which curbs press freedom became a provincial law, the 2024 Act on 20th May 2024. Is this a strategic move to punish those as per law who misuse social media platforms such as XTwitter, TikTok, etc, or to punish those who have been fairly and squarely using these platforms as their bread and butter, or an aim to muzzle free speech and inhibit dissenting voices? Critics believe that these questions are based on a much more nefarious agenda. In Pakistan very sadly the state often uses the pretext of curbing fake news or online abuse to weaponize defamation laws against critics to intimidate, harass, and silence them. There is no doubt that the new law in place also adopts this same backsliding approach and that is why it can be said as a draconian law. However, if the 2024 Act stays in the field, it will have serious constitutional fundamental rights effects. Various other constitutional provisions16 of the Constitution of the Islamic Republic of Pakistan 1973 clearly guards the reputation and dignity of individuals. While Article 19 of the Constitution guarantees freedom of speech subject to any reasonable restrictions. There has been a plethora of case laws on the interpretation of the Constitution to be done as per literal rule. Even Justice Marshall17 famously quoted that "We must never forget that it is a constitution we are expounding". The way the new 2024 Act has been drafted makes it clear that it tends to target dissent and free speech. It is also unambiguous from the statement of object and reasons of it which states 'legal protection from false, misleading and defamatory claims made via print, electronic, and social media against 'public officials. Furthermore, if we look deeply into this law various other inadequacies need to be addressed. The following inadequacies are reiterated here below: Inadequacies in the 2024 Act 1. As per the case laws it is evident that three essential ingredients are required to prove defamation such as 1) imputation must be defamatory 2) it must identify or refer to the claimant 3) it must be published or communicated to at least one person other than the claimant. However, if we look into Section 11(1) of the new Defamation Law the tribunal is to adopt the summary procedure provided in Order XXXVII of the C.P.C. hence, not desirable to prove malicious intent. 2. Under Section 23 of the new Defamation Law, they have excluded the Qanun-e-Shahadat (law of evidence). How can a trial be executed fairly if the evidence law is not in place subject to Defamation Law? This is just to conclude cases in a favorable manner for the powerful people at the expense of fundamental rights. 3. Section 13(1) of the new Defamation Law a leave to defend has to be obtained from the Court subject to the Court's opinion to grant or not. If the Court refuses to grant leave, then a preliminary decree will be passed under Section 15 (1) up to Rs. 3 million. 4. Section 2 (m) and (o) of the new Defamation Law have defined 'Journalist' and 'Newspaper' very broadly which looks like there are ulterior motives to it. Solutions and amendments required in the 2024 Act There are momentous concerns that require redressal otherwise it is completely against the fundamental rights enshrined in the Constitution. However, this Law has been challenged before the Honourable Lahore High Court before Mr. Justice Amjad Rafiq in W.P. No. 37507/2024. Although as also discussed above no status quo order has been passed by the Honourable Judge against the new 2024 Act hence, possible solutions are addressing how to alter the new 2024 Act. Firstly, if the aim behind the enforcement of the 2024 Act is genuine and without wicked intent then there needs to be further amendments to be done within this 2024 Act such as the law of evidence needs to be applicable mutatis mutandis to the law. Otherwise, it is a serious compromise over the fundamental rights of citizens of the country enshrined under the Constitution. On the other hand, it is consistently voiced that it is the Constitution that needs to be respected, and violation of it would result in serious consequences. Secondly, the independence of professional journalists needs to be respected. However, this doesn't mean that there should be a misuse of media powers if that is so then strict actions should be taken. Thirdly, the damages of 3 million on preliminary decree I believe is an enormous amount. The damages should be reduced to a reasonable level for example may be 1.5 million. Fourthly, if the remedy of appeal against the final decree is before the Honourable High Court within 30 days then it should not be necessary to deposit the amount of decree in order to further process the appeal. If someone is not able to deposit the decree amount of general/punitive damages within 30 days for whatever reason then his right of appeal gets time barred hence, it will be a blatant miscarriage of justice. Lastly, the political leaders (of any political party) need to stop their consistent movement over the concept of fake news. This spreads hate and introduces anti-speech legislation. Reform for Criminal Defamation Criminal defamation has been used by the accused as a sword, as witnessed in the Jami Moor and various other high-profile matters just to threaten to pressure the victims of abuse or harassment from speaking up, but it also stands in violation of the fundamental right to free speech guaranteed under the Constitution. It is evident that the trial can only proceed when the innocent/victim speaks up but unfortunately, this is not the case in Pakistan. However, in any society change is the only constant if the people of the country desire and act upon it. 1. Several States have repealed general criminal defamation 18laws which are as follows: The United States New Zealand (1992) Ghana (2001) Sri Lanka (2002) Bosnia and Herzegovina (2002) Georgia (2004) Ireland (2009) The United Kingdom (2009) Argentina (2009) Armenia (2010) Montenegro (2011) Macedonia (2012) Tajikistan (2012) Jamaica (2013) Ukraine (2014) Norway (2015) Sierra Leone (2020) However, in addition to these states, various other states have amended their criminal defamation laws to remove imprisonment as a possible punishment for defamation. These are as follows: Bulgaria (2000) France (2000) Ivory Coast (2004) Moldova (2004) Croatia (2006) On a federal level, Mexico (2007) El Salvador (2011) To reform the criminal defamation in Pakistan I believe simply abolishing criminal defamation wouldn't be a good idea however, there needs to be amendment in the existing law. The approach followed by countries removing imprisonment is a solid one. If the possible punishment of imprisonment is removed then those innocent voices will speak up more knowing the consequences aren't too stringent. 2. In various National Courts in different jurisdictions, it has been categorically held that the criminal defamation provisions do result in unconstitutional effects such as the restriction of freedom of expression as guaranteed under Article 19 of the Constitution 1973. As a result, it is necessary to have a strict civil remedy in terms of defamation so that the criminal remedy needs not to be availed. 3. Lastly, the provisions of Sections 499, 500, 501 and 502 of the P.P.C. need to be declared null and void as being contrary to the Constitution 1973. The reasoning is very simple because these defamatory contents are printed, engraved, and sold automatically the accused becomes at an advantage and the innocent suffer and as a result step background in raising their voices. Conclusion The most important aspect that is necessary to uphold the Constitution 1973 is free speech. However, unfortunately in Pakistan, this has not been the case and has been established from the discussion above. Construing free speech as a fundamental right indeed ensures a fair democratic society. In Pakistan, this can only be achieved if changes are made in the new 2024 Act or if struck down then in the existing Ordinance. As far as criminal defamation is concerned the punishment of imprisonment needs to be eliminated from the P.P.C. as I believe this is the only fear that innocent individuals fear as a consequence of criminal defamation and that is something the accused/harassers use as their tool to muzzle free speech. References Yasif, R. Tribune. (2024, June 12). LHC puts provisions of the Defamation Act on hold https://tribune.com.pk/story/2471133/lhc-puts-provisions-of-defamation-act-on-hold Pakistan Code. (2002). The Defamation Ordinance, 2002 https://pakistancode.gov.pk/pdffiles/administrator741de22e0685408278606962079d12b2.pdf Women Action Forum. (2020, July 2). Statement on Reports of Sexual Harassment in Schools https://womensactionforumlahore.org/wp-content/uploads/2024/09/2.-WAF-Statement-on-Reports-of-Sexual-Harassment-in-Schools-2-July-2020.pdf Pakistan Law Site. (PLD 2017 Peshawar 115). Khalid Aziz v. Pakistan Television https://www.pakistanlawsite.com/Login/Check Pakistan Law Site. 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