Partner - Cornelius, Lane & Mufti (CLM)
Defamation, Privacy and Data Protection
Contributor: Salman Aslam Butt (Partner, Cornelius, Lane & Mufti (CLM))
The Ordinance defines defamation 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” . The Ordinance in Section 3(2) recognizes two major forms of defamation: (i) slander; a false ‘oral’ statement or representation that amounts to defamation; and (ii) libel; a false ‘written’, ‘visual’ or ‘documentary’ statement or representation made either by ordinary form or expression or by electronic or other modern means of devices that amounts to defamation.
In addition to the Ordinance which falls under the civil laws, defamation may also constitute a criminal offence under Section 499 of the Pakistan Penal Code of 1860 (the “PPC”). Section 499 of the PPC provides that if someone “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 to defame that person”.
The primary difference between civil and criminal law with regards to defamation is that the standard of proof is higher in terms of the latter. In addition, a remedy in terms of compensatory damages is afforded to the victim under civil jurisdiction, whereas under the PPC a term of imprisonment and/or a fine may be imposed.
In addition to the legislation set out above, a few constitutional provisions and rights guaranteed under the Constitution are also important to highlight with regards to a claim of defamation i.e., Article 14 (Inviolability of Dignity of Man), Article 19 (Freedom of Speech), and Article 19-A (Right to Information). The relevance of each of the aforesaid provisions varies with regards to the context/subject matter in which defamation has been alleged.
(Please note that following recent Constitutional Amendments, Defamation legislation is now enacted separately by each province in Pakistan. The contents of this report covers the laws as generally applicable, but specific legal advice should be obtained for any particular case/province.)
A civil suit for defamation may be initiated by way of instituting a suit before the District Court having territorial jurisdiction. All matters in the District Court are heard before a judge and there are no jury trials.
According to a recent high court judgement, the key ingredients to establishing a claim of defamation are as follows:
As per the Ordinance, a defendant may only be able to counter the claim on the following defences:
The Ordinance provides the following remedies where a plaintiff is able to establish a claim:
Awarding of damages is discretionary and the courts exercise such discretion in the light of the evidence. General damages normally pertain to mental torture and agony sustained through derogatory/defamatory statements. Since there is no exact measure of such damages in monetary terms, therefore, while assessing damages on account of such inconvenience, the courts determine general damages on a case-to-case basis. The Supreme Court of Pakistan has also noted that general damages on account of mental torture/nervous shock are purely compensatory to vindicate the honour or esteem of the sufferer, therefore such damage should not be exemplary or punitive as the sufferer should not be allowed to make a profit of his reputation.
Special damages, as opposed to general damages, are the damages that follow as an approximate consequence of the injury complained of. While awarding special damages, it is to be kept in mind that the person claiming special damages has to prove each item of loss with reference to the evidence brought on record. This may also include out-of-pocket expenses and loss of earnings incurred down to the date of trial and is generally capable of substantially exact calculation.
The Ordinance expressly provides that nothing in the Ordinance shall prejudice any action for criminal libel or slander under any other law.
In order to initiate criminal proceedings, the complainant will file a complaint before the local police station. The concerned police station should register the first information report and investigate the matter. After the investigation report is prepared by the police along with other procedural requirements, the matter will move to trial before the Sessions Court. All matters in the Sessions Court are heard before a judge and there are no jury trials.
In order to establish its claim during the trial, the complainant will have to prove that the offence as set out in Section 499 of the PPC has been committed and the harm has been caused to the complainant along with sufficient evidence (preferable documentary evidence).
Section 499 of the PPC further provides the following ten exceptions/defences to defamation:
Section 500 of PPC sets out the punishment for the offence of defamation, which is imprisonment extending up to two years and/or a fine.
In addition to Section 499 of the PPC, the Prevention of Electronic Crimes Act 2016 (“PECA”) in Section 20, provides an additional criminal offence where a person 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. The said offence is punishable with imprisonment for a term which may extend to three years and/or with a fine.
The procedure for filing a complaint is similar to the procedure mentioned above regarding section 499 of the PPC. However, for an offence under PECA, the jurisdiction for investigation lies with the Federal Investigation Agency (“FIA”). As such, in this case, a complaint may be registered with the FIA, which will investigate the matter and prepare its report. Thereafter the matter may proceed to trial.
Prior to the initiation of any legal action, the plaintiff is required to give a fourteen days’ notice to the defendant specifying the defamatory matter complained of. The failure of the plaintiff to give notice of its intention to bring a claim against the defendant, within two months of the claimed defamatory statement coming into their knowledge, may render such suit as non-maintainable. After the notice has been served a claim for defamation under the Ordinance has to be filed within six months from the publication of the defamatory matter coming into the notice or knowledge of the person defamed.
There is no period of limitation for filing a criminal complaint vis-à-vis defamation. However, delay in filing a complaint may have adverse effects.
For a civil suit, the plaintiff is required to prove that the alleged publication (either oral or written) has caused harm to his reputation and that it was published by the named Defendant. The onus then shifts upon the defendant to establish that the alleged defamatory material is not false.
In criminal proceedings for defamation, the burden of proof lies heavily on the prosecution to establish their case beyond a reasonable doubt.
Pakistan currently, lacks any data protection legislation. In April 2020, the Personal Data Protection Bill 2020 (the “Bill”) was introduced for the use, processing, and protection of data of citizens. The Bill is to prescribe standards to protect personal data from any loss, misuse, modification, unauthorized or accidental access or disclosure, alteration, or destruction.
However, the Bill to date has not been passed into law and other than a few limited situations covered under PECA, telecom regulations or various judicial precedents etc. there does not seem to be any special data protection laws applicable in Pakistan.
Additionally, the Constitution guarantees the privacy of home, as well as the dignity of every person as their fundamental right under Article 14 (1), read with Article 35. The said protections are, however, subject to the laws of Pakistan. The superior courts have expounded upon the said fundamental rights in several judgments, a notable excerpt reads “It can hardly be denied that the taking of private information without any allegation of wrongdoing of ordinary people is an extraordinary invasion of this fundamental right of privacy”.
Contributor: Salman Aslam Butt (Partner)
Cornelius, Lane & Mufti (CLM)
4 Queen’s Road
The material in this Guide is for general information only and does not constitute legal advice.
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