Imagine! It’s a fine morning, you wake up, hold your mobile phone in your hand and check your favorite social applications like Twitter, Facebook or WhatsApp. When you check the notifications and news feed, all you discover is that a serious attack that has been made on your reputation by alleging and attributing false statements about you and your character and all of your friends and relatives are inquiring you about the genuineness about such defamatory statements. This attack on your reputation is known as Defamation.
Defamation is, someone allegedly attributing false and defamatory statements about your character to degrade your repute. As every second person out there is addicted to the internet and social applications, they are more prone to get caught in a category that – in one way or another – ruin their personalities through social media which is Online Defamation. This article is purely subject to discuss defamation, its available laws & punishments, and defense in detail.
According to Defamation Ordinance 2002; any wrongful act, publication or circulation of a false statement which injures the reputation of a person, tends to lower him/her in the estimation of other or tends to reduce him/her to ridicule, unjust criticism, dislike or hatred by using computer and internet. And, it has been communicated to a third party – at least one person – other than the person defamed.
Types of Defamation
There are two main types of defamation as per Defamation Ordinance 2002:
- Slander occurs at the moment when an oral or verbal defamatory remark which is not recorded but directly heard by another person resulting degrading in reputation or character of a person.
- Libel occurs when any defamatory remark result degrading in reputation or character of a person has been published or communicated through writing, radio, audio, by any electronic means or modern means of devices like computer or internet. Online defamation also falls under the category of libel.
Elements of Online Defamation
In order to claim a person liable for defamation, the victim has to prove that defamation statement:
- is false,
- is directly attributed and linked with the name of the victim and his reputation,
- has been communicated and published to a third party – at least one person – other than the victim,
- has resulted in damages.
First and foremost, in order to prove that the said statement or publication under online defamation as per the Defamation Ordinance 2002, is false. If any statement which has been published is true based on truth, fair, in the public interest and has been published in good faith then it doesn’t constitute online defamation. Truth is always true and always protected by law no matter if that truth hurts or cause grief to the victim against whom it has been disclosed. For instance, if any comment has been made via the internet that a person has committed murder or was penalized for committing a crime like corruption or bribe then a person against whom such statement has been made cannot sue the person disclosing and publishing such statements via the internet.
Secondly, it is necessary that the defamatory statement is directly attributed and linked with the name of the victim and his/her reputation. We have seen many times in movies or documentaries that at the beginning of movies a disclaimer is given which states that ”The persons portrayed in it are not based on real people”. This disclaimer is done to reduce the possibility of legal action for defamation from a person who may believe that he has been defamed by his depiction, likeness, and resemblance in the movie.
Therefore, an action of defamation cannot be initiated by a person if any such declaimer has been given in any movies or documentaries available online and has a resemblance with any person.
Next is that defamatory statement has to be published and communicated through the internet to at least one person – other than the person defamed. If a defamatory statement has not been communicated or published to some other person then one cannot charge person liable for the online defamation.
Last but certainly not the least is most important one: in order to sue for defamation; one has to prove that the defamatory statement or publication has resulted in harm or damage to the victim and has affected his/her personal and professional life. For example, any defamatory statement has been published or communicated against an employee of an office and due to this, he/she has been terminated from the job then an employee can sue a person for defamation.
Remedies against Defamation
Here we are going to discuss the most crucial element of this article which is – available laws on online defamation.
The offense of Online Defamation can be reported under the Defamation Ordinance 2002. One can seek legal remedy against online defamation by filing a suit for damages for defamation. Prior to filing a case; as per Section 8 of this Ordinance; a victim of online defamation, within two months after getting knowledge of any publication of the defamatory statement, has to give the person (making defamatory statements or publications) fourteen days’ notice in writing of his intention of initiating legal proceedings against him.
Trial and Punishments
As per the Defamation Ordinance, the trial of defamation case falls within the jurisdiction of District Court. The Court shall decide a defamation case within a period of ninety days. If any person is aggrieved of the final order passed by District Court, he may file an appeal against the final order before the High Court within thirty days and High Court shall decide the appeal within sixty days. Further, the provisions of the Code of Civil Procedure 1908 and the Qanoon-e-Shahadat Order 1984 is applicable to the proceedings.
When the trial is concluded and the person is found guilty of defamation, the District Court may pass an order directing the person to tender an apology to the victim of the defamation. If the victim accepts and may pass an order to publish an apology in the same manner and with the same prominence as the defamatory statement was made and pay reasonable compensatory damages as well as general damages within a minimum of Rs. 50,000/- (Rupees fifty thousand). And if the victim has suffered any other damages, the court may recover the same from the guilty person and pay the victim.
Defense to Defamation
In defamation proceedings, a person has a defense if he shows that –
- He was not the author, editor, publisher or printer of the statement complained of;
- The matter commented on is fair and in the public interest and is an expression of opinion and not an assertion of fact and was published in good faith;
- It is based on truth and was made for the public good;
- Assent was given for the publication by the plaintiff;
- Offer to tender a proper apology and publish the same was made by the defendant but was refused by the plaintiff;
- An offer to print or publish a contradiction or denial in the same manner and with the same prominence was made but was refused by the plaintiff;
- The matter complained of was privileged communication such as between lawyer and client or between persons having fiduciary relations; and
- The matter is converted by absolute or qualified privilege which is as follows:
Absolute privilege: Any publication of statement 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. This should be related 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 Government shall have the protection of absolute privilege.
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 privilege.
Few Leading Defamation Cases in Pakistan History
- Ali Zafar and Meesha Shafi Case
In a statement on Twitter on April 19, Shafi wrote,
“I have been subjected, on more than one occasion, to sexual harassment of a physical nature at the hands of a colleague from my industry: Ali Zafar […] It has been an extremely traumatic experience for me and my family […] I feel betrayed by his behaviour and attitude and I know that I’m not alone.”
Shortly after, Zafar had denied the allegations in a statement and sent a legal notice to Shafi, demanding that Shafi has to delete the tweet of accusing him of harassment and issue an apology on Twitter. Zafar then filed a defamation case against Shafi for damages worth Rs. 1 billion. The court, in its last hearing, had asked Shafi to submit a reply and case is still pending before the Court.
- Journalist Awarded Rs. 30 Million in Defamation Case
The court of the additional district and session judge, in a defamation case, fined three people Rs. 1 million each for uploading objectionable material against a senior journalist on the social media. The judge of the additional district and session court, Zaiba Rashid, announced the verdict after completing hearing into the case. The court heard the defense and prosecution lawyers. After examining other evidence in the case, it found guilty a poet and Awami National Party (ANP) activist Rahim Khan and two others Bacha Khan and Gul Samar Shah in the case. They were ordered to pay damages to a former president of Nowshera Press Club, Mushtaq Paracha.
In his plea, Mushtaq Paracha accused the three persons in the question of hurting his feelings by running a malicious campaign against him and defaming him and his family. He had asked relief under the Defamation Act 2002.
No doubt, defaming someone is an indecent act no matter what the situation is. If you know anything wrong in someone then point it out before publically speaking of it. In resistance, you should go for a legal approach towards that person and warn him about your legal proceedings but throwing defaming stones on someone is certainly immoral. Just realize the rationality of such cases and always go towards the right direction with good intention.