In the past, the speech was far less protected than it is now, even for the media and publishers. The history books are replete with instances of censure, fines, and even harsher penalties for uttering false or insulting words. But now insulting words are countable even if they are verbal in written or posted online on social media.
Who Am I? I’m Ijaz Ahmad Sandhu (Author of ValidLaws) working as an advocate in the High Court, the main goal is to write this article to enhance the knowledge of law scholars/students and all other citizens to be aware with there the legal rights.
After reading this article I promise you will come to know what is defamation and how can a victim of defamation file a case of defamation and what remedies are available to the accused when a false case is registered against him.
Defamation meaning and definition:
Defamation meaning is to defame or insult a person in public.
Section 3 of the Defamation Ordinance of 2002 (the “2002 Ordinance”) defines civil defamation as follows;
Any unlawful act, publication, or dissemination of a false statement or representation made orally, in writing, or visually that damages a person’s reputation, tend to diminish his reputation in the eyes of others, or tends to subject him to sarcasm, unfair criticism, disdain, contempt, or hatred is actionable as defamation.
Defamation laws in Pakistan:
- PPC articles 499 and 500 define and describe defamation.
- Ordinance for defamation ordinance 2002 in Pakistan was passed.
- PECA ordinance was passed in 2016 in which electronic crime including electronic defamation was included.
On October 1st, 2002, the Defamation Ordinance, 2002, was put into effect. It was introduced as a result of several defamatory incidents. The Defamation Ordinance, 2002 was created to provide rules for defamation and associated issues. According to the Defamation Ordinance of 2002, defamation is defined as any unlawful act, publication, or dissemination of a false statement or representation made orally, in writing, or visually that harms a person’s reputation, tends to lower him in the eyes of others, or tends to subject him to ridicule, unfair criticism, dislike, contempt, or hatred.
In Pakistan Ordinance was passed in 2002 for defamation.
According to Section 3(2) of the Ordinance, there are two main types of defamation:
- Slander which is a false “oral” statement or representation that constitutes defamation.
- Libel is a false “written,” “visual,” or “documentary” statement or representation that constitutes defamation and is made using either the ordinary form of expression or by using electronic or other modern means of devices.
slander meaning is an oral statement and in defamation, a person speaks insulting words about others in a gathering. When we talk about the nature of defamation there are two types of Defamation;
- Criminal defamation
- Civil defamation
The difference between civil and criminal defamation:
The main distinction between criminal and civil law with respect to defamation is that the latter has a greater burden of evidence. Additionally, in civil jurisdiction, the victim is given a remedy in the form of compensatory damages, but under the PPC, a jail term and/or a fine may be imposed.
Important Constitutional Rights in Defamation:
A few constitutional clauses and rights, such as Article 14 (Inviolability of Human Dignity), Article 19 (Freedom of Speech), and Article 19-A (Right to Information, should also be highlighted in relation to a defamation lawsuit in addition to the laws mentioned above. The applicability of each of the aforementioned clauses differs depending on the situation or subject matter where defamation is claimed to have occurred.
Two components must have been fulfilled for defamation:
According to case law, defamation essentially has two components.
- First, there must be remarks meant to damage a natural person’s reputation that is uttered, written, shown as signs, or otherwise made apparent.
- Second, men’s rea, or purpose, is a need for the crime of defamation.
Ingredients to claim defamation:
The following criteria must be met to prove defamation, according to a recent high court decision :
- The claims made against Plaintiff must be untrue, unsupported, and unfounded.
- The statement’s language and the made allegations should have been of a defamatory or disparaging character.
- The accusation(s) should have been made public in a widely read publication or front of a sizable crowd.
- The alleged comment should have been made maliciously and without any justifiable defense or explanation.
- The plaintiff should have attributed the charge to him by specifying his name in the complaint.
Defense available to the defender in defamation case:
A person has a defense in defamation cases if they can demonstrate:
- He did not create, edit, publish, or print the statement that was the subject of the complaint;
- The statement was posted in good faith and was fair and in the public interest; it was an opinion, not a claim of fact.
- It is truth-based and was created with the general welfare in mind;
- The plaintiff provided consent for publishing;
- Although the defendant offered to publish and give an appropriate apology, the plaintiff rejected the offer;
- The plaintiff rejected the offer to print or publish a rebuttal or denial in the same manner and with the same prominence.
- The complaint included confidential communication, such as that which occurred between an attorney and client or between parties with a fiduciary relationship; and
- The issue is changed by an unqualified or qualified privilege.
In which court case of defamation is to be registered?
No court other than the District Judge shall have authority to consider issues under this Ordinance, according to Section 13 of Ordinance 2002. Court to decide the cases expeditiously:
According to Section 14 of 0rdinance 2002, The court shall decide a case under this Ordinance within a period of six months.
According to Section 15 of 0rdinance 2002 An appeal against the final order of the District Judge shall lie to the High Court within thirty days of the passing of such order;
Power to make rules:
According to Section 16 of 0rdinance 2002, The Federal Government may, by notification in the official Gazette, make rules to carry out the purposes of this Ordinance
Remedies in defamation case:
When a plaintiff is successful in establishing a claim, the Ordinance  offers the following remedies:
- The defendant has been given by the court instructions to provide an apology, publish it in the same way the false statement was published, and only do so if the plaintiff accepts it.
- The court has ordered the defendant to pay general damages of at least Rs—50,000 in fair compensatory damages (or Rs. 300,000 in the case of the originator).
- The court may order the defendant to pay such damages if the plaintiff establishes any additional extraordinary damages and convinces the judge.
Case law for defamation (awarding damages):
According to PLD 2021 Supreme Court 564, The courts have the ability to award damages, and they do so after considering the available evidence. General damages often refer to the mental suffering and anguish brought on by disparaging or false words. The courts decide general damages on a case-by-case basis when evaluating damages due to such discomfort since there is no precise monetary measurement of such losses. The Supreme Court of Pakistan has further noted that general damages for mental torture or nervous shock are only intended to compensate the victim in order to restore his or her honor or respect; as a result, such damages shouldn’t be exemplary or punitive in order to prevent the victim from profiting off of his or her reputation.
The Prevention of Electronic Crimes Act (PECA), which was passed by the National Assembly in 2016, establishes a comprehensive legal framework for the definition of different types of electronic crimes as well as procedures for their investigation, prosecution, and resolution.
Complain registration in PECA:
The Federal Inquiry Agency (FIA) has the authority to conduct an investigation into a PECA offense. As a result, in this situation, a complaint may be filed with the FIA, which will then look into the situation and compile a report. The case may then go to trial following that.
According to Section 18 PECA Anyone who intentionally and openly disseminates material via an information system that they know to be false with the intent to intimidate, defame, or otherwise hurt a natural person, will be punished that could have sentenced to jail for a period that might last up to three years or a fine or with both, up to one million rupees:
With the exception that nothing under this subsection applies to anything shown on television
Licensed by the Pakistan Electronic Media Regulatory Authority, a media outlet or distribution service
2002 Ordinance (XIII of2002)
Punishment for defamation under PECA:
According to Section 21, using electronic means that might endanger one’s reputation or violate one’s privacy is punished by up to 7 years in jail, a fine of up to 5 million rupees, or both.
Producing, disseminating, or sending pornographic material depicting young females engaging in sexually explicit behavior is a crime punishable by up to seven years in prison or a fine of up to 5 million rupees, or both.
Defamation case law under PECA:
In Farhan Kirmani v. the State, a lady alleged that she had experienced online sexual harassment. It was claimed that the accused created a false Facebook profile for the complainant in order to publish edited images of her. The accused attempted to exploit Sections 20 and 21 of the PECA to sue the complainant for defamation in an effort to protect himself. The accused said that the complainant set up evidence against him in an effort to blackmail him. But the Court decided that even though it was very improbable that a married mother of four would publish her own images with alterations to extort the accuser:
The plaintiff has reportedly been subjected to horrific measures by the accused, which might be harmful to her.
The effects of posting overlaid pornographic images of a woman online outweigh any guilt or shock the victim may have after learning she is the victim of this crime.
As a result, the Court decided in favor of the complainant and denied the accused’s request for relief. The accused’s activities show how section 20 of the PECA may be abused to refute harassment claims by intimidating victims into remaining silent.
Defamation under PPC:
Section 499 of the penal code also defines defamation as;
Anyone who makes or publishes any imputation about any person with the intent to injure that person’s reputation or with the knowledge that such imputation would affect that person’s reputation is said to be defaming that person, with the exception of the situations that are specifically mentioned below.
Sections deals with PPC:
Sections 499 and 500 of PPC deal with Defamation.
Exceptions in PPC:
This Ordinance has some exceptions which are not included in defamation these exceptions are as under;
Imputation of Truth:
Any imputation that is truthful about a person and is publicized for the benefit of the public is not considered defamatory. Whether it is good for humans, in general, is debatable.
Opinion About conduct of Public Servant:
The expression of any opinion on the behavior of a public servant that is compliant with common decency:
- In the performance of his official duties; or
- Respecting his character, to the extent that his character manifests in that conduct and no further, is not considered defamation.
Opinion About conduct of any person:
Acting in line with some rudimentary honesty and respecting someone’s action when it involves a public issue and their character only to the extent that it is reflected in that conduct and not beyond is not considered defamation.
Publication of Reports of Proceedings of Courts:
Distributing a substantially truthful account of a court of justice’s proceedings or publishing a substantially true account of the outcome of any such proceedings are not acts of defamation.
Opinion About the Merits of any Case:
The expression of any idea in accordance with morality is not considered defamation if;
- Respecting the merits of any matter, whether criminal or civil, that a court of justice has selected, or
- Respecting the behavior of any individual serving as a witness, party, or agent in any such case, or
- Respecting the character of that individual only to the extent that it is manifest in that action.
Merits of Public Performance:
It is not defamation to voice an opinion in accordance with common decency on the merits of any performance whose author has subjected it to public assessment or regarding the author’s character as it appears in such performance.
Any Censure on the Conduct:
It is not considered defamation to pass any criticism in good faith on another person’s behavior in matters to which such lawful authority relates when that person has authority over that other person, whether that authority is granted by law or results from a lawful contract made with that other person.
Imputation Made in Good Faith:
Making an imputation about someone else’s character is not considered defamation as long as it is done in good faith to safeguard the maker’s or another person’s or the public’s interests.
Convey a Caution:
The dissemination of a warning to one person against another in accordance with ordinary courtesy is not considered defamation. As long as the warning is meant to protect the interests of the individual receiving it, someone they are interested in, or the general public.
Punishment under PPC:
Under section 500 PPC Defamation is a crime that carries a mandatory sentence of simple imprisonment up to two years, as well as a fine or both.
Case law of defamation under PPC:
In Muhammad Ashraf v. State, a case brought under Sections 20, 21, and 24 of the PECA read with Sections 420, 500, and 109 of the PPC, the petitioner asked for post-arrest bail. The complainant claims that the accused seduced her daughter into having a close relationship with him. The accused blackmailed the girl by recording the plaintiff’s graphic exposure and then sharing it on Facebook under a false name. The Court denied the application for bail and declared:
Plaintiff cannot use his naive volitional closeness as an excuse for the most egregious wrongdoing, which was a criminal betrayal that resulted in an unrestricted invasion of a woman’s privacy. Similar to this, the petitioner cannot automatically get bail on the basis that the alleged offenses do not come within section 497 of the CPC’s prohibitory clause.
These rulings may be seen as victories because, on the surface, it seems that the courts recognize that criminal defamation claims are frivolous and intended to stymie the other case.
Cyber defamation includes online harassment and posting online fake or insulting material/photos of a person or company and this type of offense falls under the Prevention of Electronic Crime Act (PECA). Section 19,20,21 and 22 of the Prevention of Electronic Crime Act (PECA) talks about cybercrime related to cyber defamation and describe the punishment of the offenses
From the above discussion, one can conclude that defamation is illegal whether it is written, oral or cyber defamation. Defamation laws exist for online and manual defamation. We also discussed defamation case laws to clear our concept. Valid laws have a team of experienced lawyers to deal with these types of cases. You can contact me for a free consultation.