Chapter 3: Harm to Economic and Dignitary Interests (PDF)

# Chapter 3: Harm to Economic and Dignitary Interests ## 3.1 Defamation Torts under this chapter may be intentional, due to negligence and in certain cases based upon strict liability. ### 3.1.1 Defamation is both a tort and a crime Defamation in law is attacking another person's reputation by a...

# Chapter 3: Harm to Economic and Dignitary Interests ## 3.1 Defamation Torts under this chapter may be intentional, due to negligence and in certain cases based upon strict liability. ### 3.1.1 Defamation is both a tort and a crime Defamation in law is attacking another person's reputation by a false publication that is, communication to a third party, where such publication tends to bring the person into disrepute. The concept is an elusive one and is limited in its varieties only by human inventiveness. * Person will be subjected to civil litigation for the recovery of damages. * **Criminal Prosecution** * **Recovery Of Damages** In Pakistan, as in many other countries, defamation is both a crime and a tort (civil wrong), which means that a person accused of defamation may be prosecuted for the crime and he may be subjected to civil litigation for recovery of damages. **Statement of objects and reasons:** Defaming a person is a crime no less heinous than murder, Prophet Muhammad (PBUH) equates it to eating the flesh of one's own brother. It is, therefore, the obligation of the STATE to protect the dignity, reputation and the esteem in which a person is held, from any false and wanton accusation. Law of defamation is the part of the jurisprudence of every religion and every civilization. Further Quran says “those who love (to see) scandal broadcast among the believer, will have a grievous penalty in this life and in hereafter”. **Presently, we have the Defamation Ordinance, 2002 and the provisions of the Pakistan Penal Code dealing with defamation (sections 499 to 502).** It is observed that there is general tendency to scandalize and defame others including public figures whereby perceptible injury to their reputation is caused, either for ulterior motive or through irresponsible conduct. Therefore, it is necessary and need of the time to amend the Defamation Ordinance, 2002 and Pakistan Penal Code. This amendment is aimed at curbing this menace. The bill is designed to achieve the aforesaid objects. Defamation laws have developed over several centuries to provide recourse for people whose reputation is or is likely to be harmed by publication of information about them. ## 3.1.5 Meaning of "defamation" in the Ordinance The tort called "defamation" actually consists of two sub-torts, “libel” and “slander.” Both torts protect a person's interest in his reputation. Slander pertains to the spoken word, while libel to the written or recorded form. As the distinction gets blurred due to the development of new mediums of expression, the Australian Defamation Acts (of 2005) have abolished this distinction (for example are statements over radio libel or slander?). The Defamation Ordinance still retains the distinction. The common law tort is applied in a slightly different way in the U.S. as compared to the U.K. and jurisdictions following U.K. A major difference pertains to the “burden of proof.” Is the plaintiff required to prove that defamatory statement was false or is the defendant required to prove that it was true? In our Defamation Ordinance, the “burden of proof” lies on the defendant. ### 3. Defamation * **(1) 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.** * **(2) Defamation is of two forms, namely:—** * **(i) slander; and** * **(ii) libel.** * **(3) Any false oral statement or representation that amounts to defamation shall be actionable as slander.** * **(4) Any false written, documentary or visual statement or representation made either by ordinary form or ex-pression or by electronic or other modern means or devices that amounts to defamation shall be actionable as libel.** * **4. Defamation actionable.** The publication of defamatory matter is an actionable wrong without proof of special damage to the person defamed and where defamation is proved, damage shall be presumed. The words "any wrongful act" appear to be a little out of place, especially when the word "publication," which has been called an "actionable-wrong," is enough. Perhaps they have been used to rope in printers, publishers and Internet service providers. The impact, however, is not visible in the remaining sections of the Ordinance. The distinction between “libel” and "slander" too does not have any visible impact in the remaining sections. ## 3.1.6 Elements of the Tort of Defamation or the Prima facie case to be shown by the plaintiff The plaintiff must first show that a prima facie case (on the face of it) for either libel or slander exists. In other words, the plaintiff must show that the “elements” of defamation are found. To do so, the plaintiff must prove: ### 3.1.6.1 Defamatory statement A false and defamatory statement concerning him has been made and falls under § 3(3) or 3(4) of the Ordinance, that is, it is either slander or libel. ### 3.1.6.2 Publication A communication of that statement to a person other than the plaintiff has been made (a publication). The meaning of "publication" includes a newspaper or broadcast through the Internet or other media (see § 2(e) of the Ordinance). ### 3.1.6.3 Fault Under common law, fault on the part of the defendant, amounting to at least negligence, and in some instances a greater degree of fault has to be shown. The definition of “defamation” in the Ordinance does not spell out fault. Nevertheless, the words “wrongful act,” “wrongful publication” or “wrongful circulation” may be taken to convey the meaning of fault or negligence. ### 3.1.6.4 Special harm The common law requires that in the case of slander “special harm” of a pecuniary nature be shown. In the case of libel the actionability of the statement despite the non-existence of such special harm is sufficient. The Ordinance, in § 4 states: “The publication of defamatory matter is an actionable wrong without proof of special damage to the person defamed and where defamation is proved, damage shall be presumed.” This renders the distinction between slander and libel drawn in the Ordinance meaningless. The elements of defamation are, therefore, reduced to three: The plaintiff must show that a “wrongful" defamatory statement has been made and published by the defendant. We may now examine a few important concepts in a little more detail. ## 3.1.7 Defamatory Communication ### 3.1.7.1 Injury to reputation The Ordinance states that the defamatory communication must be such that "injures the reputation of a person.” According to the common law rule, for the statement to be defamatory, it need not have actually harmed plaintiff’s reputation; if the statement is such that it can be believed that it would have injured plaintiff’s reputation, it is sufficient. The Ordinance appears to imply this when it excludes proof of special damage or harm. In the other cases, the emphasis is on tendency and not actual occurrence. Thus, the defamatory statement is one that "tends to lower him in the estimation of others or tends to reduce him to ridicule, unjust criticism, dislike, contempt or hatred." To be defamatory, therefore, a statement must have a tendency to cause such harm to the plaintiff. ### 3.1.7.2 Meaning need not be apparent from face of the statement The defamatory nature of the statement need not be apparent. Some statements become defamatory when certain additional facts are associated with it. For example, if a news channel runs a story saying that plaintiff gave birth on June 1. This becomes defamatory if the reader knows that plaintiff’s marriage took place on January 10th the same year. Further, many statements can have more than one meaning. In such a case, the statement is defamatory if the interpretations that a reasonable person might make would tend to injure plaintiff's reputation, and plaintiff shows that at least one of the recipients did in fact make that interpretation. ### 3.1.7.3 The reference must be to plaintiff The defamatory communication must refer to the plaintiff, therefore, the plaintiff must show that the statement was reasonably interpreted by at least one recipient as referring to the plaintiff. This is the meaning to be assigned to "publication means the communication of the words to at least one person other than the person defamed." (§ 2(e)) This does not mean that the defendant "intended" to refer to the plaintiff. Even if he intended to refer to someone else and the statement is defamatory for the plaintiff, he can still sue. If the statement refers to a group, the group must be small in order to amount to defamation. For example, if the statement refers to lawyers as a whole or doctors as a whole, the plaintiff cannot sue. The reference to plaintiff, however, need not be by name; it is enough if it is by another name or characterization. ## 3.1.8 Publication The plaintiff has to show that the defamation was published. "Publication" means merely "seen or heard by someone other than the term "publisher" is also defined by the Ordinance and implies what is called “repeater’s liability," that is, one who repeats a defamatory statement made by another is held to have published it, and is liable as if he were the first person to make the statement. This is the same thing as the liability of the printer and seller in the criminal provisions. The issue, however, is not clear in the Ordinance. Technically, the repeater is one who makes the statement like, “Ashraf told me that Amjad is a thief who steals from his customers, but I doubt it." The person making this statement can be held liable. The Ordinance does not mention intention or negligence in making the publication. This means that it retains the common law rule of "strict liability." The courts in the United States have altered this rule somewhat, especially in the case of public figures. ## 3.1.9 Defences and Privileges The Ordinance considers privileges and defences together under the heading of defences. In all such cases the burden of proof is on the defendant: ### 3.1.9.1 Defences #### 3.1.9.1.1 Truth and denial of liability Defendant denies that he made the statement The defendant proves that “he was not the author (originator), editor, publisher or printer of the statement complained of.” (§ 5e) Defendant proves that statement was true A statement is not defamatory if it is true. For truth to be a barrier to recovery of damages, it is not necessary that the statement be literally true in all respects. It has to be proved that is was “substantially" true. To this the Ordinance adds that the statement, in addition to be true, must have been made "for public good." (§5(c)) The criminal offence of defamation in the Pakistan Penal Code also contains this qualification for truth. This can make it very difficult for the defendant to prove the truth of the statement, especially when it may be difficult for him to obtain the sources or evidence to prove the truth of the statement. At common law, the rule is that it is always the defendant who has had the burden of proving truth. In the United States, the rule has been changed as the result of constitutional decisions. It is the plaintiff who must bear the burden of proving “falsity,” if: (1) the defendant is a media organization; and (2) the statement involves a matter of “public interest.” For this purpose, it does not matter whether plaintiff is a public figure or a private figure. In other cases, that is, where the defendant is not a media organization nor the statement a matter of public interest, the burden of proof is still on the defendant. #### 3.1.9.1.2 The statement was pure opinion A statement of pure opinion is not considered defamatory. For example, "I think Amjad is a disgusting person," without any factual basis for this statement either expressed or implied. If a statement of opinion implies certain undisclosed facts, and a statement of those facts would be defamatory, then the statement will be itself treated as defamatory. For example, "I think Amjad must be a drug addict." ### 3.1.9.2 Privileges #### 3.1.9.2.1 Absolute privileges §§ 5(h) and 6 deal with absolute privilege. An "absolute" privilege applies even if the defendant was motivated solely by malice or other bad motives. The Ordinance recognizes the following classes of absolute privilege: **Judicial proceedings** Judges, lawyers, parties and witnesses are all absolutely privileged in what they say during the course of "judicial proceedings," regardless of the motives for their statements. For example, in a pleading in a civil lawsuit between defendant and plaintiff, defendant calls plaintiff a crook. Here even if plaintiff shows that defendant knew the statement was a lie, he cannot recover. This is the meaning of the words, “or relating to judicial proceedings ordered to be published by the court" in § 6 of the Ordinance. **Legislative proceedings** Legislators acting in furtherance of their legislative functions are absolutely privileged. § 6 of the Ordinance, dealing with absolute privilege, says: "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." **Government officials** S 6 also protects government servants and grants them absolute privilege: "any report, note or matter written or published by or under the authority of a Government.” #### 3.1.9.2.2 Privileged communications S 5(g) declares privilegedcommunications to be a valid defence: "the matter complained of was privileged communication such as between lawyer and client or between persons having fiduciary relations." Other fiduciary relations can include communication between a husband and wife, for example. Defendant proves that plaintiff had consented to the publication of the statement S 5(d) states that it is a defence where “assent was given for the publication by the plaintiff.” Any publication that occurs with the consent of the plaintiff is absolutely privileged. #### 3.1.9.2.3 Qualified privilege Qualified privileges are merely "qualified" or "conditional." The difference between a qualified privilege and an absolute privilege is that qualified privilege is lost if it is shown that defendant is acting primarily on the basis of "malice," or from some other purpose not protected by the privilege. § 7 of the Ordinance describes this privilege as follows: “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.” **Public interest** The first part of this statement in § 7 may be classified as publications that are conditionally privileged for person’s acting in the “public interest.” This is called “reporting of public proceedings.” There is a conditional privilege to report on public proceedings, such as court cases and legislative hearings. If a newspaper accurately reports that in a lawsuit, A has called B a crook and a liar, the newspaper has a qualified privilege. This is true even if the statement made by A is completely untrue and was made with malice. A private citizen who, reasonably but mistakenly, makes an accusation to the police that the plaintiff committed a crime, is covered by the privilege. A new concept called "neutral reportage" has also been developed in some countries. In such a case if a person (media organization) “correctly" and “neutrally” reports charges made by one person against another, such a person will be protected if the charges are a matter of public interest, even if the charges are false. ## 3.1.10.1.5 General damages v. special damages General damages (also called direct damages) are those damages that flow necessarily from the wrong. Special damages (also called consequential damages) are all other damages that are “caused” by the wrong. The distinction is a little tricky. For example, in a personal injury case involving bodily injury, general damages include “loss of earning capacity" and pain and suffering. Special damages from the wrong. Special damages (also called consequential damages) are all other damages that are “caused” by the wrong. The distinction is a little tricky. For example, in a personal injury case involving bodily injury, general damages include “loss of earning capacity" and pain and suffering. Special ## 3.1.10.2 Retraction and apology Retraction statutes exist in many jurisdictions. Some of these statutes hold that if the defendant publishes a retraction within a certain period, this bars the plaintiff from recovery. Statutes in some other jurisdictions merely “require” news organizations to grant a right of response to the plaintiff, without providing that this eliminates the plaintiff’s defamation action. § 5(e) of the Defamation Ordinance provides that if an "offer to tender a proper apology and publish the same was made by the defendant but was refused by the plaintiff", then this amounts to a defence. This can only mean that it bars recovery by the plaintiff, otherwise this provision fails to serve any useful purpose. The offer to retract and apologize is also offered later on. § 9 says: “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)." The language appears to tie the minimum payment of Rs. 50,000 to the apology and publication of apology. It follows that if an apology is not tendered and accepted the quantum of damages will be different. In other words, the defendant will offer apology and still pay the minimum amount as well as other damages that are dependent upon proof of damages by the plaintiff. The same applies to the originator for whom minimum damages are 3,00,000. ## 3.1.11 Limitation for Defamation Claims ### 3.1.11.1 Required notice within two months § 8 of the Ordinance provides that “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." ### 3.1.11.2 Action required within six months of knowledge § 12 of the Ordinance provides that an action against different types of persons making defamation shall be taken “within six months after the publication of the defamatory matter came to the notice or knowledge of the person defamed."