Criminal defamation

September 21, 2019

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The writer is a lawyer based in Karachi.
The writer is a lawyer based in Karachi.

A MOVEMENT for gender justice in Pakistan is under attack because of laws that enable perpetrators to silence women who have faced harassment and abuse. A wave of defamation proceedings has recently been initiated against women and their supporters, seeking to muzzle a belated discussion on a matter of grave public concern.

A handy legal tool available to those seeking to suppress voices is in the form of criminal defamation laws. Defamation is a criminal offence in Pakistan subject to harsh penalties. Under the Pakistan Penal Code, any person who makes a statement knowing or having reason to believe that it would “harm the reputation” of a person is guilty of an offence subject to imprisonment of up to five years. The law provides for few exceptions, including true statements about a person that are also for the public good.

Online defamation is subject to a specific law that deals with cybercrimes. Under the Prevention of Electronic Crimes Act of 2016, an individual who makes an online statement that she knows is false and is likely to harm the reputation of a person is guilty of an offence that is subject to up to three years’ imprisonment.

We are witnessing criminal defamation laws being used against voices that broke the silence on sexual harassment.

So, what’s wrong with criminal laws that are meant to prevent vindictive or irresponsible people from tarnishing one’s reputation? Quite a lot actually, and more and more countries around the world are decriminalising defamation in recognition of the chilling effect of these laws on the right to freedom of speech, a right guaranteed under Pakistan’s Constitution.

Such laws are likely to be used in retaliation for raising issues of public concern, and the threat of prosecution under these laws deters open debate and expression. In spite of the fact that the laws make an exception for true statements that are in the public interest, the fact that they enable criminal proceedings to be initiated against a person is sufficient to stifle free expression.

Today, we are witnessing criminal defamation laws being used to this effect against voices that broke the silence on widespread sexual harassment, encouraged by the global #MeToo movement. Women and their supporters who took men to task for abusing their positions of power are facing the prospect of being dragged to court and prison. In response to this emerging trend, a leading organisation defending the rights of women, the Women’s Action Forum, has called for a repeal of criminal defamation laws.

While the mere existence of criminal defamation laws stifles free speech and expression, their harshness is heightened by the arbitrariness of the law enforcement authorities that investigate and prosecute these laws.

In response to complaints filed against them, some people report receiving summons to appear at the authority’s office in a different city altogether within a day’s notice. A typical summons contains no information regarding the nature of the complaint filed and in some cases demands that a person appear before the authority with relevant documents without specifying the nature of the information required.

A person on the receiving end of such summons is denied the opportunity to defend herself adequately and also faces the burden of participating in an obscure and non-transparent investigation. This kind of backlash backed by the coercive power of the state is likely to deter anyone from speaking out for fear of facing retaliation.

Recognising their suffocating effect on free speech, leading international authorities have called for the repeal of criminal defamation laws. The United Nations Special Rapporteur on the Promotion and Protection of the Right to Free Speech has declared that criminal defamation laws are an unjustifiable restriction on the freedom of expression and must be abolished and penal sanctions for defamation must never be applied.

The Organisation for Security and Cooperation in Europe, the world’s largest regional security organisation, has also condemned criminal defamation laws. The OSCE representative on the freedom of media has noted that the mere existence of these laws poses a threat to press freedom and therefore violates the right to free expression even where they are rarely used. The European Court of Human Rights has asserted on numerous occasions that states may not impose prison sentences for defamation on matters of public or political concern.

Since 2000, more than 30 states have either decriminalised defamation or taken significant steps in that direction. In the South Asia region, Sri Lanka and Maldives decriminalised defamation in 2002 and 2009 respectively in recognition of the fact that these laws are inconsistent with the state’s responsibility to respect and promote the rights to free expression and speech.

Repeal of Pakistan’s criminal defamation laws will not eliminate protection against false and malicious attacks on people’s reputations. The Defamation Ordinance 2002, a civil statute that holds a person liable to pay damages for defamatory statements may still be invoked by those seeking redress against slander or libel directed towards them. Being a civil law, the defamation ordinance does not expose persons to the harsh sanctions of criminal penalties such as imprisonment or the arbitrariness of criminal law enforcement authorities. A civil defamation law that includes adequate exceptions for good faith statements involving matters of public concern and is applied reasonably constitutes a more proportional protection against damage to a person’s reputation.

Not only do criminal defamation laws violate fundamental rights, they also stand in the way of open discussion and debate about matters that are of public and political concern. In recent months, brave women and their supporters have made sexual harassment, violence and abuse a topic of much-needed public discussion. Necessary dialogue and activism must not be stifled by unconstitutional and repressive laws.

The writer is a lawyer based in Karachi.

Published in Dawn, September 21st, 2019