Defamation in Pakistan:
The defamation in Pakistan or an example of defamation law in Pakistan can be very nicely explained like in a crowded meat market, a woman customer says loudly that the market sells contaminated meat. A man draws a recognizable picture of a neighbor, writes the name of a neighbor, and the word “murderer” under it, and circulates it through the neighborhood. A newspaper carries an item to the effect that a local department store is in financial straits. The three hypothetical cases provide examples of libel and slander. Together, these two offenses constitute the offense of defamation in Pakistan. In most instances, defamation law in Pakistan ranks as a civil offense or tort. The injured party can bring suit for damages. Less frequently, defamation in Pakistan may be a criminal offense, a misdemeanor, that is viewed by the law as a threat to the peace. Before the invention of the printing press, the principal means of defaming a person was through the spoken word or slander. With printed or written defamation, the legal concept of libel made its appearance. Today, libel is both a more serious and a more common offense than slander. On the one hand, each ‘person has the right to freedom of speech and the press. Those rights can interfere with another person’s good reputation, privacy, or the ability to earn a living. In trying to resolve this conflict, the laws of defamation in Pakistan are sometimes extremely complex. The reader should remember that if he commits an act of defamation in Pakistan, he may be sued. At the same time, a person who thinks he has been defamed should understand that he can bring legal action if he so chooses.
Defamation law in Pakistan:
A communication is defamatory when it has the effect of, or tends to have the effect of harming the reputation of another; lowering that person’s esteem or standing in the community; causing any persons to stop associating or dealing with him; exposing a person to scorn, ridicule, or contempt; or depriving a person of his job, or his business if he is self-employed in a business, craft, or profession. The content of a defamatory communication may take either of two forms. It may question a person’s morality or integrity or it may brand the person with a loathsome disease that could cause people to avoid him. From another point of view, defamation may be either a statement of fact that charges a person with the performance of a particular act or an expression of opinion about facts known or unknown, but which implies the commission of an act. In general, before a suit can be brought because of a defamatory statement, all three of the following conditions must be met: there must be publication, or communication, spoken or written, to a third party; that communication must identify the particular individual either by name or in words that point to the person’s identity; and the communication must have a harmful effect that need not be tangible, as in provable financial loss, but maybe merely an intangible affront to one’s good name. A defamatory publication need not have malicious intent but the proof of such intent would strengthen a lawsuit for defamation in Pakistan. A defendant in a civil defamation suit in Pakistan cannot escape responsibility for his actions by claiming mental incompetence, as he could in a criminal case. A defamed person usually tries to recover damages. In the normal case, he can then see himself as vindicated. Either of two kinds of damages may be awarded:
- General damages where the loss of reputation is presumed. In this situation, a case is called actionable per se: no special losses beyond a loss of reputation need to be shown. The loss of reputation is presumed to exist simply because the defamatory statement was published. General damages are typically token, sometimes amounting to no more than six cents. The principle does matter.
- Special damages, where the person defamed can show ‘he has suffered a particular loss, such as a loss of income or the prevention of a marriage. Special damages are awarded in addition to general damages. To receive special damages, however, a defamed person must show that special losses were incurred. He typically demands special damages in a specified amount at the time of filing suit. A judge may award special damages up to the amount specified by the plaintiff, but never more than that amount. Also, as long as the issue of defamation remains unresolved
Differences between Libel and Slander:
Libel is generally considered more serious than slander because the written or printed word has permanence while the spoken word does not. Besides, the commission of libel typically involves a more deliberate, studied attempt to defame. Slander is more subject to impulse. For these reasons, higher judgments for damages are awarded in cases of libel than in cases of slander. Slander has, of course, been defined as spoken defamation. But with the advent of radio and television, the distinction between libel and slander has become somewhat hazy. The traditional definition of libel states that it involves the publication of defamatory matter in the form of written or printed words, pictures, caricatures, statues, or other representations. These may appear in letters, circulars, petitions, newspapers, books, or other published works. The electronic and other media have led to broader definitions of libel. Today, in fact, “libel” includes spoken libel. In one form of spoken libel, the defamatory matter is broadcast or telecast—issued over radio or television. The speaker or actor must, however, read or follow a prepared script or written notes. In some cases, ad-libs can constitute spoken libel. The second form of spoken libel involves an orally transmitted defamation to a reporter. Publication may take place in a press conference, an interview, or a telephone conversation. The speaker may be liable even where the printed account differs somewhat from the spoken communication—if the substance of the communication is essentially accurate. The speaker may be liable even if he did not ask the reporter to print his remarks.
Every individual is guaranteed freedom from unwarranted and ‘untruthful attacks upon his character. An attack that is warranted or true may be another matter. The law normally labels any allegedly defamatory story as libelous even if the plaintiff does not recover damages. Likewise, a libel can be true and still be defamatory. The law makes the same point in another way. At the beginning of a court case, the court assumes that the libel is false.
Defamatory Words: The words used in a defamatory publication establish the principal criterion for determining whether such publication is actionable. Various qualifications of this criterion should be noted: the clear identification of the injured party the kinds of acts attributed to that party the social standing of the party the occupation held by the party the moral standards of the community at the time Words That Are Defamatory Regardless of Actual Damage Done.
A line may be drawn between general and special damages. A presumption that general damages are proper and deserved always exists in a case of defamation in Pakistan. Proof of harm or loss must be shown before special damages will be awarded. The distinction between libel and slander can be made more specific. In a case of libel, almost any publication is actionable—suit can be brought—for the recovery of general damages. In the case of slander, however, a publication is actionable without proof of damages under four specific circumstances: When a person falsely and unjustifiably suggests that another person is guilty of a crime that is chargeable by indictment and punishable by death or imprisonment. When a person suggests that another person has a loathsome disease, When a person accuses another of improper conduct of a business or profession, When one imputes unchastity to a woman, Unless one of these conditions is present, a slandered person must prove injury or harm meriting special damages. For example, he must prove a specific loss in terms of income or opportunity.
Words That Impute the Commission of a Crime or Status of Immorality: Crime is the most common subject matter of defamation. It can result in the most comprehensive kind of damage to a person: to his reputation, his right to enjoy social contacts, and his ability to make a living. The accusation or suggestion of a crime is clear-cut; it must refer to a criminal act that is subject to indictment and imprisonment or the death penalty. Any act that does not meet that criterion is libelous. For example, if a man kills in self-defense, he has not committed murder. If someone accuses him of murder, the accuser can be sued for libel. To say that a person has committed a crime is much more serious than to say that he has been accused of is suspected of a crime. A libelous reference can mention a crime by name, telling of pertinent facts, or it can simply describe a punishment. Thus, to say that a person is an ex-convict indicates that he was guilty of a crime. References to immoral acts may be still more ambiguous. Moral standards change from one year or decade to another. They also vary from one community to another and from one group or social stratum in a community to another. The phrase “the general public” admittedly expresses a fiction. However, it serves as a basis on which to decide what is libelous. In general, if a publication is intended to produce an unfavorable opinion in the minds of a large segment of a community’s average, fair-minded people, that may constitute libel. In 1900, describing a woman as a singer in a dance hall might have impugned her morality and would, therefore, have been libelous—if she was not such a singer. Words Tending to Injure a Person in a Profession or Business. Defamatory statements about persons in a profession or business may impute to them either criminal or immoral behavior. Such libels or slanders may injure not only individuals but partnerships and corporations as well. If a law office consisting of several partners is defamed, for example, the firm may sue. But individual partners may also bring suit. Defamation need not harm the reputation or business of a person; it may only tend, or be calculated, to do so. Business or occupational defamations may take several forms: Charging a professional man with acts that are a breach of professional ethics, charging a person with general unfitness or with inefficiency in his occupation or business, Charging a person or business with bankruptcy, insolvency, or other financial distress or embarrassment, whether past, present or future Accusing a person or firm of fraud or dishonesty in one’s line of work, in which case suspicion has the same effect as an outright charge of guilt When can a person bring suit for this kind of defamation? Generally, the right to sue faces limitation in three kinds of situation:
When the injured party has made or is accused of making a single mistake. “Anyone can make a mistake,” and while it is held to be unfair to criticize a person for such an imperfection, it is also held that such criticism does no real damage. However, an exception may be made to the general rule: the nature of the mistake may be such as to be open to criticism. If, for instance, a lawyer is accused of disclosing confidential information, an act that does not rank as a permissible mistake, that lawyer may sue for damages when the act is illegal. If a person is accused of being an incompetent criminal, he may seek damages only for the imputed criminality, not for incompetence. When a person is not legally engaged in an occupation, a person not licensed as a physician cannot sue based on a charge of incompetence. In addition to individuals and corporations, non-profit corporations and unincorporated groups can sue for defamation. Thus labor unions can sue; if they could not sue as organizations, each union member would have to sue separately. Business or occupational defamations are the hardest to defend against. Because of the financial losses that may be involved, business or professional person can seek compensatory damages from the defendant
The similarity of names may mean similarity of identifications. For instance, if one chooses a fictitious name for the person being defamed, another person with that name could sue. If one accidentally used the wrong name, and another person happened to have that name, he could sue in every state but Illinois. It may take more than one publication to connect a particular individual with defamation. A newspaper one day may describe a police raid on a house of prostitution. The next day the same paper reports that a particular woman resides at that address. The woman may be able to sue on the ground that a reader can “put two and two together.” This is an ambiguous area, however. Some courts will permit such a suit and others will not.
In defamation law, mention of a large group does not identify individuals. Under the law, defamatory talk is allowed where a professional, occupational, racial, religious, or ethnic group is concerned. One may refer to lawyers en masse in strongly negative terms, or use the traditional defamatory words for racial or ethnic groups. A rule of thumb holds that when a group numbers fewer than 100, it is best not to refer to all members of the group even if no names are named. Qualifiers such as “some,” or “many,” or “most,” or “certain” persons are preferable—and safer. The Meanings of the Words Used. A publication may have more than one meaning. One meaning may be defamatory; another may not. As noted, standards vary with the times, the geographic area, and groups within a community. The first question is: What would the majority of average, reasonable citizens think of a particular publication? If the words in a publication can have only one meaning—a defamatory one—the judge will usually be able to make the ruling on the case. If the judge decides that the meaning is not defamatory, then of course the trial ends. Some judges let juries decide whether publications are defamatory. This may happen when the words are capable of having two or more meanings, a relatively rare occurrence. The necessity for Intent and Malice. In defamation law in Pakistan, intent constitutes an essential element, and that intent must be malicious. Evidence of malice may be either expressed or implied. Where a person publishes a communication that appears defamatory on its face, malicious intent is presumed. A plaintiff does not have to prove the existence of other circumstances showing malice. Defamation thus differs from other torts—minor offenses—in that intent and malice are presumed elements. However, the person who composes defamation and the person who publishes it may be two different persons. The editor of a newspaper publishing a libel has the same liability as to the reporter who wrote it. If he knew nothing of the publication, the newspaper owner is free of liability.
Another aspect of defamation law in Pakistan involves the repetition of defamation in Pakistan. The person who repeats or republishes defamation has the same liability as to the originator of the defamation. If a defamatory newspaper article is syndicated to various newspapers, each of these newspapers may be sued for libel. Each republication of defamation constitutes a new offense even if the originator is named. An innocent mistake on the part of a publisher, committed without malice, will not excuse him. But a defendant remains liable if he publishes defamation without malice. In this case, he may have any award of damages reduced if he can prove that he acted with proper motives and with a belief in the truth of what he published. The bad reputation of the plaintiff may also mitigate damages. The necessity of Publication to Other People. The publication has some technical meanings. The sale of even one newspaper constitutes publication. Proof of distribution of that paper would be viewed as evidence of publication.
A sealed letter or other communication delivered to the plaintiff’s spouse constitutes a publication. In the case of letters, a libel becomes criminal rather than civil if it appears in a letter addressed to another. In criminal libel, a prosecutor rather than the injured party seeks damages. As in all crimes, the state has become, at law, the injured party. Civil libel may be established if: the letter was forwarded to the plaintiff during his absence; the letter was intended for the eyes of the plaintiff’s family and/or employees, or the letter was read by them. If it was not read by those persons, it cannot be considered a publication. When the person defamed is deceased, defamation may nonetheless take place on publication. This is a case of criminal libel, however, as the peace of the community is at stake. For example, if a president who died in the office is called a traitor after his death; such a publication may incite riots. In general, criminal defamation is extremely rare.
DEFENSES IN DEFAMATION CASES IN PAKISTAN: Certain defenses can be used to avoid liability for either civil or criminal defamation. One such defense, the statute of limitations, means that a plaintiff cannot bring suit after a specified period has elapsed. Among other defenses is the defense of consent, where the defamed person consented to have the statement published; the defense of husband and wife, where spouses can publish defamations about one another (by common law, husband and wife are one person); the defense of privilege; and the defense of truth.