Freedom Of Press Versus Right Of Reputation – My Rights Are Better Than Yours

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Freedom Of Press Versus Right Of Reputation – My Rights Are Better Than Yours

My words are my pride – I can attack your character as a matter of entitlement in utter disregard of the constitutional provisions and defamation laws of Pakistan. I am a media house, living in a modern society where freedom of expression and press trumps everything else. Even the US Presidential candidate, Trump knows it. So what difference does it make if I bake you like a dark chocolate cake in a political talk show? I can be as vocal as the rapper Drake in breaking news. I can be as cool as the steak guy who masters the art of grilling the tender meat, or the skilled carpenter who knows drilling with the machine. The only difference is that the latter uses sharp pointed equipment and I use my electronic tongue on air, sharper than a knife and deadlier than the venom.

This is the bubble that most of the members of electronic media live in – certainly the society is adversely affected by it to a point where hatred, ridicule, exploitation and victimisation get to reign. The case of Adeeb Javedani v. Yahya Bakhtiar, 1995 CLC 1246 [Quetta], reiterated that making publications of baseless rumours and concocted stories which may have the effect of seriously injuring the reputation of others without the least probe into the truth, would not amount to healthy journalism. If I may point out, anything which is published against a person and renders him or her ridiculous or contemptible is certainly nothing but defamation. In an Indian case of Bijoyananda v. BalaKush, AIR 1953 Orissa 249, it was held that, “The responsibility of the press is greater than the responsibility of an individual because the press has a larger audience. The freedom of the press should not degenerate into a licence to attack litigants and close the door of justice nor can it include any unrestricted liberty to damage the reputation of respectable persons.”

We live in a jungle where patience, professional ethics and courtesy are all fading away. Modernisation has more to do with open-mindedness towards liberal ideas and nothing to do with flashy clothes. The Pakistani media needs to learn from the case of R. v Bolam, ex p Haigh, (1949) 93 S.J. 220, where Haigh was described as a ‘vampire’ for committing murders, while the publication revealed the names of victims. As a result, the Daily Mirror’s publisher was sent to jail, its proprietors fined, and it was criticized as “a disgrace to English journalism”.

Article 19 of the Constitution of Pakistan 1973 states that “every citizen shall have the freedom of speech and expression and there shall be the freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality, or in relations to contempt of court, commission of or incitement to an offence.”

The intention of the framers of the Constitution was not to give an unfettered right into the hands of the people, rather the element of responsibility has been closely linked to the exercise of this right. Unfortunately, media trial is being rampantly exercised. In Liberty Papers v. Human Rights Commission of Pakistan, PLD 2015 SC 42, the Supreme Court of Pakistan held that “if the publisher of defamatory material is unable to establish the factual correctness of the material published, malice on the publisher’s part will stand established through implication.”

There are various incidents that come to one’s mind where our media has broadcasted and published baseless stories that were not even remotely related with reality or factual correctness. Recently, the alleged third marriage of Imran Khan with a respectable woman was all over the news. One fails to understand why gossip is so important for ratings and revenue generation, completely ignoring the fact that that the character and good reputation of people is impinged in this manner. Is falsehood and character assimilation protected  under the freedom of press? Article 14 of the Constitution of Pakistan 1973 is amply clear that the dignity of a person shall be inviolable.

Who has given the authority to media to exercise such judicial powers through conducting its own trials and being the judge in its own cause? In Mudassar Iqbal v. Shaukat Wahab, PLJ 2006 Lahore 1209 (DB), it was held that “there was no evidence to show that any investigation or probe was undertaken by the defendants to establish the veracity of the news items in question. Only if such probe had been made diligently and in good faith, could the defendants have shown that they had acted without malice and in the publish interest. Having failed to do so they must be held liable for defaming the plaintiff.” In M.P.Lohia v. State of West Bengal, [2005] 2 SCC 686, the complainant initiated criminal proceedings against his son-in-law (appellant) on the ground that his daughter committed suicide because of the appellant. The explanation given by the son-in-law was that she was suffering from depression. An article appeared in a magazine called Saga and was titled “Doomed by Dowry” which contained only the one-sided version of the family of deceased. The appeal was allowed by the Supreme Court of India in following terms: “We have no hesitation that this type of articles appearing in the media would certainly interfere with the administration of justice. We deprecate this practice and caution the publisher, editor and the journalist who was responsible for the said article against indulging in such trial by media when the issue is sub judice. However, to prevent any further issue being raised in this regard, we treat this matter as closed and hope that the other concerned in journalism would take note of this displeasure expressed by us for interfering with the administration of justice.”

The seed of greed for power has been deeply sown into our souls – no group or body wants to let go of any opportunity that might suppress another for personal gains. We can never become a nation until national interest and collective gain is priority No. 1.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Asfandyar Khan Tareen

The writer is a Barrister from Lincoln's Inn and heads Tareen Barristers Chambers in Lahore. He can be contacted at ayk@tareen.com.pk



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