Q. What is Defamation? Explain fully various Exceptions to the charge of Defamation.
1. INTRODUCTION.
Defamation is not only an area of Tort-Law, but is also an area of Criminal Law. Basic Philosophy, which works behind doctrine of Defamation, is that reputation, status or profession of a person should be protected against unjustified insults. Due to this Philosophy, it has been decided that an action should be brought up for shouting at someone contrary to good. “The essence of the offence of Defamation consists in its tendency to cause that description of pain which is felt by a person who knows him to be the object of the unfavorable sentiments of his fellow, and those inconveniences to which a person who is the object of such unfavorable sentiments is exposed”. Defamation as an offence is defined Under Section 499 of Pakistan Penal Code 1860 and its punishment is provided Under Section 500 of Pakistan Penal Code 1860.
2. RELEVANT PROVISIONS.
Sections 499 to 502 of Pakistan Penal Code 1860.
3.MEANING OF DEFAMATION.
Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally or which tends, to make them shun or avoid that person.
4. DEFINITION OF DEFAMATION UNDER SECTION 499 OF PAKISTAN PENAL CODE 1860.
Whoever, by words either spoken or intended to be read, or by signs or by visible representation, makes or publishes any imputation concerning any person intending to harm or knowing to or having reason to believe that such imputation will harm the reputation of such person is said, to defame that person.
Explanation 1.
It may amount to defamation to impute anything to a deceased person, if the imputator would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2.
It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3.
An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4.
No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered a disgraceful.
(i). Illustrations.
(a). ‘A’ says: "’Z’ is an honest man, he never stole ‘B's watch", intending to cause it to be believed that ‘Z’ did steal ‘B's watch. This is defamation, unless it falls within one of the exceptions.
(b). ‘A’ is asked who stole ‘B's watch. ‘A’ points to ‘Z’, intending to cause it to be believed that ‘Z’ stole ‘B's watch. This is defamation unless it falls within one of the exceptions.
(c). ‘A’ draws a picture of ‘Z’ running away with ‘B's watch, intending it to be believed that ‘Z’ stole ‘B's watch. This is defamation, unless it falls within one of the exceptions.
5. INGREDIENTS OF DEFAMATION UNDER SECTION 499 OF PAKISTAN PENAL CODE 1860.
Following are the ingredients of Defamation Under Section 499 of Pakistan Penal Code 1860.
(I). Making or Publishing Any Imputation.
There must be making or publishing of any imputation concerning any person that is communicated to some person other than the person to whom it is addressed e.g. dictating a letter to a clerk is publication. It is immaterial whether the imputation is conveyed obliquely or indirectly or by way of question, exclamation or by irony.
(II). Concerning Any Person.
The words must contain an imputation concerning some particular person or persons whose identity can be established.
(III). Mode of Such Imputation.
Such imputation must have been made by either of following modes.
(i). Words.
Such imputation may be made by words either spoken or intended to be read.
(ii). By Signs or Visible Representations.
Imputation may be made by signs or visible representations. The words “visible representations” will include every possible form of Defamation which ingenuity can devise. For instance, a statute, chalk marks on a wall, signs or pictures may constitute an imputation.
(IV). Intention, Knowledge or Belief To Harm The Reputation.
It is not necessary to prove that the complainant actually suffered directly or indirectly from the scandalous imputation alleged. It is sufficient to show that the accused intended to harm, or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant.
Case Law.
PLD 2001 KAR 115.
It was held that Mensrea or intention is essential element of the offence of Defamation.
6. WHAT DOES AMOUNT TO DEFAMAITON?
(I). To Impute Anything To Deceased Person.
It may amount to Defamation to impute anything to deceased person, if the imputator would harm to reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
(II). To Make An Imputation Concerning A Company Etc.
It may amount to Defamation to make an imputation concerning a company or an association or collection of person as such.
(III). Imputation---Alteration or Expressed Ironically.
An imputation in the form of an alterative or expressed ironically, may amount to Defamation.
7. WHAT DOES NOT AMOUNT TO DEFAMATION?
No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual of that person, or lowers the character of that person in respect of his caste or of his calling or lowers he credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered a disgraceful.
8. EXCEPTIONS OF DEFAMATION UNDER SECTION 499 OF PAKISTAN PENAL CODE 1860.
Following are Exceptions of Defamation under Section 499 of Pakistan Penal Code 1860.
(I). First Exception.
Imputation of Truth Which Public Good Requires To Be Made or Published.
It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question off act.
(II). Second Exception.
On Public Conduct of Public Servants.
It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
(III). Third Exception.
Conduct of Any Person Touching Any Public Question.
It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and. respecting his character, so far as his character appears in that conduct, and no further.
(i). Illustration.
It is not defamation in ‘A’ to express in good faith any opinion whatever respecting ‘Z's conduct in petitioning Government on a public question, in signing requisition for a meeting on a public question, in presiding or attending as such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharge of the duties of which the public is interested.
(IV). Fourth Exception.
Publication of Reports of Proceedings of Courts.
It is not defamation to public a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.
Explanation.
Justice of the peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice is a Court within the meaning of the above section.
(V). Fifth Exception.
Merits of Case Decided In Court or Conduct of Witnesses And Other Concerned.
It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and not further.
(i). Illustrations.
(a). ‘A’ says: "I think ‘Z's evidence on that trial is so contradictory that he must be stupid or dishonest," ‘A’ is within this exception if he says that in good faith, inasmuch as the opinion which he expresses respects ‘Z's character as it appears in ‘Z's conduct as a witness, and no further.
(b). But if A says: "I do not believe what ‘Z’ asserted at that trial because I know him to be a man without veracity." ‘A’ is not within this exception, inasmuch as the opinion which he expresses of ‘Z's character, is an opinion not founded on ‘Z's conduct as a witness.
(VI). Sixth Exception.
Merits of Public Performance.
It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.
Explanation.
A performance may be submitted to the judgment of the public expressly or by acts on the part of the author, which imply such submission to the judgment of the public.
(i). Illustrations.
(a). A person who publishes a book, submits that book to the judgment of the public.
(b). A person who makes a speech in public, submits that speech to the judgment of the public.
(c). An actor or singer who appears on a public stage, submits his acting or singing to the judgment of the public.
(d). ‘A’ says of a book published by Z. “Z's book is foolish; ‘Z’ must be a weak man. ‘Z's book is indecent; ‘Z’ must be a man of impure mind." ‘A’ is within this exception, if he says this in good faith, Inasmuch as the opinion which he expresses of ‘Z’ respects ‘Z's character only so far as it appears in ‘Z's book and no further.
(e). But if ‘A’ says: I am not surprised that ‘Z's book is foolish and indecent, for he is a weak man and a libertine. ‘A’ is not within this exception, inasmuch as the opinion which he expresses of ‘Z's character is an opinion not founded on ‘Z's book.
(VII). Seventh Exception.
Censure Passed In Good Faith By Person Having Lawful Authority Over Another.
It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
(i). Illustration.
A Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under this orders; a parent censuring in good faith a child in the presence of other children; a schoolmaster, whose authority is derived from a parent, censuring in good faith a pupil in service;' a banker censuring in good faith, the cashier of his bank for the conduct of such cashier as such cashier are within this exception.
Eighth Exception.
Accusation Preferred In Good Faith To Authorized Person.
It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation.
(i). Illustration.
If ‘A’ in good faith accuses ‘Z’ before a Magistrate; if ‘A’ in good faith complains of the conduct of ‘Z’, a servant, to ‘Z's master; if ‘A’ in good faith complains of the conduct of ‘Z’, a child-‘Z's father ‘A’ is within this exception.
(IX). Ninth Exception.
Imputation Made In Good Faith By Person For Protection of His or Other’s Interest.
It is not defamation to make an imputation on the character of another provided that the imputation is made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.
(i). Illustrations.
(a). ‘A’, a shopkeeper, says to ‘B’, who manages his business—"Sell nothing to ‘Z’ unless he pays you ready money, for I have no opinion of his honesty." ‘A’ is within the exception, if he has made this imputation on ‘Z’ in good faith for the protection of his own interests.
(b). ‘A’, a Magistrate, in making a report of his own superior officer, casts an imputation on the character of ‘Z’. Here, if the imputation is made in good faith, and for the good, ‘A’ is within the exception.
(X). Tenth Exception.
Caution Intended For Good of Person To Whom Conveyed or For Public Goods.
It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.
9. PUNISHMENT FOR DEFAMATION UNDER SECTION 500 OF PAKISTAN PENAL CODE 1860.
Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
10. PRINTING OR ENGRAVING MATTER KNOW TO BE DEFAMATORY UNDER SECTION 501 OF PAKISTAN PENAL CODE 1860.
Whoever prints or engraves any matter, knowing or having good reason to relieve that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
11. SALE OF PRINTED OR ENGRAVED SUBSTANCE CONTAINING DEFAMATORY MATTER UNDER SECTION 502 OF PAKISTAN PENAL CODE 1860.
Whoever sells or offers for sale any printed or engraved substance containing defamatory matter knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
12. CONCLUSION.
The pith and marrow of all the previous discussion there is no iota untruth shows that every person possesses an absolute right for preservation of his/her reputation. Law never encourages anyone to damage another’s reputation. For it has been settled in law that a statement about a person should not be beyond limits of fair comment.
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