Abstract
Libel cases often end up in a compromise, if they survive at all. This raises questions regarding whether public office-bearers can even bring defamation charges against citizens or what standards should be adopted in such cases.
While Pakistan’s existing defamation laws contain analogous provisions, a newer penal law called the Prevention of Electronic Crimes Act (PECA) 2016 has given ample leeway to the government to silence dissent or criticism. The authors of the new law reasoned that additional legislation was the need of the hour to regulate expressive and nefarious activities generated on the internet. However, PECA amassed criticism from human rights and digital rights organizations, journalists and the legal community and censured as a bad tool in the hands of politicians. The higher courts in Pakistan have also shown skepticism about the indiscriminate and selective use of PECA. This article will explore the genesis of defamation (libel) law, its application, its overall impact in Pakistan and the rationale as to why the higher judiciary should take notice.
Introduction
“I disapprove of what you say, but I will defend to the death your right to say it.”
– Voltaire.
Regrettably, with very little intervention from legislation, the law of defamation has been shaped by varying and peculiar circumstances. As a result, it is perhaps the only branch of law wide open to criticism, doubts and difficulties based on its meaningless and grotesque anomalies, absurd theories and mischievous practical operation. The existence of defamation law merely creates a false justification that it may have some utility.
Value of Freedom of Expression
The freedom of expression is a foundation for many other rights that cover freedom of speech and freedom of the press. It gives individuals and communities the right to communicate ideas, opinions, convictions, beliefs and information. International legal instruments, such as the International Covenant on Civil and Political Rights (ICCPR), recognize ‘freedom of expression’ as a right which can be exercised ‘either orally, in writing or in print, in the form of art, or through any other media of [the individual’s] choice’. Taking the freedom of expression seriously involves acknowledging it both as a ‘liberty’ and a ‘claim right’.
Virtues of freedom of speech in a democratic and free society encompass a congenial atmosphere and level playing grounds for the exchange of knowledge, new ideas[1] and information on society and institutional performance in order to bring improvements, innovate solutions and enhance confidence in self-rule or democratic governance. On the other hand, without the freedom of speech, people cannot be fully aware of what is going on around them or in their communities. When they cannot have meaningful participation in the democratic processes, the concept of self-rule remains a day dream only.[2]
The freedom of expression is connected to certain foundational values associated with forum internum i.e. the inner realm of thoughts, beliefs and convictions — a realm that is arguably inviolable, such as personal autonomy and human dignity. Media freedom is also certainly valuable to democracy as political participation, criticism of government and the very act of voting are aspects of the freedom of expression.
John Stuart Mill, in defense of the epistemic value of the freedom of expression, argues that human fallibility justifies greater tolerance of the freedom of expression, as there can be no certainty with respect to what is true and what is false. He contends that there is no inherent justification for suppressing the beliefs and opinions of others through coercive means, even if one believes that those beliefs and opinions are untrue, as they may in fact be true, and that alternative beliefs and opinions are untrue. Mill also claims that truth can only be ascertained in a ‘clearer’ and ‘livelier’ form when it is permitted to collide with error and that ‘conflicting doctrines’ often ‘share the truth between them’.
More Speech, Not Enforced Silence
For all intents and purposes, undemocratic minds and tyrants feel threatened by free speech and attempt to hide their weaknesses by enforcing silence. The US Supreme Court referenced this reasoning in 2012 when it struck down a law that prohibited false speech about military honors. This ruling continues to be relevant even today when counting concerns over false information on social media. Justice Louis D. Brandeis, in his classic concurring opinion in Whitney v. California 1927, wrote the following:
“If there be time to expose through discussion, the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence… Only an emergency can justify repression… Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting relatively trivial harm to society. The fact that speech is likely to result in some violence or in the destruction of property is not enough to justify its suppression.”[3]
The above remarks also negated the counter-speech doctrine according to which the proper response to negative speech was to counter it with positive expression as the audiences could weigh for themselves the value of competing ideas and, hopefully, follow the better approach.
Universal Declaration of Human Rights
The comity of nations has adopted Article 19 of the Universal Declaration of Human Rights (UDHR) being mindful that the disregard and contempt for human rights results in barbarous acts which can outrage the conscience of humanity. The UDHR states that everyone has the right to freedom of opinion and expression, including the freedom to hold opinions without interference, and to seek, receive and impart information and ideas through any media and regardless of frontiers. Such respect towards human rights has also been reiterated in other international treaties,[4] conventions and protocols which Pakistan has consciously decided to join as a State Party.
Freedom of Speech in Pakistan
Right Guaranteed Under the Constitution
In line with its commitments to freedom of speech and expression, Article 19 of the Constitution of the Islamic Republic of Pakistan reads as follows:
“Article 19: Every citizen shall have the right to freedom of speech and expression, and there shall be 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 relation to contempt of court, [commission of] or incitement to an offence.
Article 19(A): Every citizen shall have the right to have access to information in all matters of public importance subject to regulation.”
Limitations and Restrictions Under Article 19
The right to freedom of speech, unfortunately, is not absolute and is rather qualified. The justification for its limitation is a shared obligation for peaceful coexistence universally. While Article 19 of the Constitution guarantees the freedom of speech, it also mentions the limitations and restrictions upon its use. However, it mandates (in good faith) that such limitations and restrictions must pursue a legitimate aim and be necessary, proportionate and of a reasonable nature. Unfortunately, the reasonability of restrictions has neither been defined properly in the Constitution nor in any subsequent legislation, therefore, safeguards against possible abuse will depend on the circumstances, competing interests and urgency of the action proposed.[5]
Prevention of Electronic Crimes Act (PECA)
With the advent of social media and digitalization of information, the expediency to regulate uses of new technology cannot be denied. While expressive activities generated on the internet offer an unprecedented opportunity to exercise freedom of expression, on the flip side they also have great potential to be used for nefarious activities globally. To rein in such nefarious activities in the cyberspace, Pakistan enacted a procedural as well as penal law called the Prevention of Electronic Crimes Act (PECA) 2016.
The clauses under PECA 2016 also specify offences which duplicate previous laws such as the Defamation Act and the Pakistan Penal Code. This creates inconsistency and confusion and defeats the true spirit of the Constitution of Pakistan. It has been argued that PECA is meant to regulate nefarious activities, however, its broadly worded provisions also criminalize speech alleging breach of public tranquility or injuring the reputation of another person. Moreover, its vague and broad language is open to selective and arbitrary enforcements and harsher penalties. This goes one step further to criminalize acts not found to be unlawful in comparable nation-states, thus providing excessive leeway to our government to silence dissent and threaten opposition.
Voices were raised from all corners — including the civil society, opposing political parties and international human rights organizations — terming PECA 2016 controversial, problematic, draconian and defective and being an incoherent mix of anti-privacy, anti-speech and anti-Internet provisions and posing excessive restrictions on the freedom of speech, the access to information and the right to privacy.
Among a plethora of issues, sections 3, 4, 11, 20 and 37 of PECA 2016 are considered question marks on the online and offline freedom of speech guaranteed under Article 19 of the Constitution of Pakistan, the International Covenant on Civil and Political Rights (ICCPR) and Article 10 of the European Convention on Human Rights (ECHR).
Sections 3 and 4, PECA 2016
A cursory view of sections 3 and 4 shows that they embody vague words such as ‘dishonest’, ‘information system’, ‘unauthorized access’ and ‘transmission of information’. There is no yardstick to measure the degree of ‘dishonesty’, the ambit of ‘information system’ is too wide and there is also a question mark over what may constitute ‘unauthorized access’ or the ‘transmission of information’. For instance, what will be the court’s response if a criminal argues that he or she has accessed an information system with an honest intention, where intention is only a state of mind? These sections are open-ended and leave too much room for the regulators of information systems to make arbitrary decisions.
The vague terminologies in sections 3 and 4 also raise serious due process issues and leave space to be misused for personal benefits and grudges. Pakistan has an average literacy rate of 40% which is far below the standards required by due process crimes.
Section 11 (Hate Speech), PECA-2016
According to the UN Special Rapporteur on Free Speech, the word ‘hate’ does not qualify under the international standards for limiting free speech. In this regard, an absence of judicial oversight is equivalent to the avoidance or abrogation of due care of human rights including free speech. Pakistan has also ratified the ICCPR and is bound to follow the criteria prescribed for both regulations and restrictions of free speech under Article 19.
Section 37, PECA 2016
Clause 37(1) of the Act grants new sweeping powers, carte blanche, to the Pakistan Telecommunications Authority (PTA), without judicial checks, and falls short of establishing any yardstick to censor online content (thereby making it arbitrary and unbridled) or order the removal or blocking of access to any online information if considered necessary. Among the key concerns is the capacity issue of determination of standards for freedom of speech observed at an international level as under ICCPR. Section 11 and 37 of PECA are inconsistent with the provisions of ICCPR and deemed to be tools of exploitation against internet users.
According to the Human Rights Watch (HRW), Section 37 of PECA is the poorest piece of cybercrime legislation globally. The enactment constitutes a clear and present danger to human rights as it can be activated even over a little criticism (opposition or political dissent on the internet) against the government at the expense of fundamental rights. To put it simply, enactments such as sections 3, 4, 11, 20 and section 37 of PECA are bad tools in the hands of politicians and officials and may be misused for personal objectives and grudges.
Free Expression in Pakistan
The proponents of PECA maintain that such legislation was the need of the hour to protect the rights of individuals. On the other hand, the Digital Rights Foundation in a yearly report has commented that, “Beyond the rhetoric, a deeper analysis of PECA and its accompanying implementation structures reveals an ineptitude and unwillingness on part of the government to make online spaces safer.” In May 2017, the Human Rights Watch also raised concerns that the Pakistani government was clamping down on internet dissent at the expense of fundamental rights, thereby creating self-censorship and handicapping free speech on social media, electronic media and print media and proving to be fatal for the existence of a democratic society when the Constitution of Pakistan pledges to uphold civil liberties and fundamental rights.
An increase in the use of criminal laws has become a hallmark of silencing critics and civil society activists after the enactment of PECA 2016. In the same vein, PTA officials while reporting to the Senate Standing Committee on Information Technology and Telecom stated that during two years (January 2017 – January 2019), section 37 was used to censor and block around 800,000 webpages and websites which, according to them, contained unsuitable and inappropriate content. Complaints under Section 20 of PECA relating to online abuse, invasion of privacy and defamatory statements have landed with the Federal Investigation Agency (FIA) but the mode and procedure of FIA investigations have also been under heavy scrutiny at different judicial forums.
PECA has amassed local as well as international criticism contending that the measures to ensure the protection of digital rights have been outnumbered by the abuses offered by such enactments. Digital rights organizations, journalists as well as the legal community are all alarmed on the probable abuse of this law and its stifling nature towards the right to information, privacy and freedom of speech guaranteed under the Constitution of Pakistan 1973 and international human rights laws.
A Senator even said that a toothcomb review of the Act was imperative to eliminate and amend provisions such as section 11 and 37 of PECA which were in grave violation of Article 19 of the ICCPR. In terms of addressing crimes and not criminalizing expression and fundamental rights, it is, therefore, imperative the that the current status of the provisions under PECA 2016 must be altered, improved or repealed.
Constitutional Limits
Privilege to Defame (Insult) Public Office Holders and Malice
A cause of action by public officials for defamation against them may accrue when the media is reckless in publishing allegations about them. With regard to the media’s freedom of speech and the protection afforded to the privacy of a public figure, different jurisdictions have adopted a pragmatic approach towards defamation laws (relating to insult). The US Supreme Court’s landmark decision in the year 1964 in New York Times Co. v. Sullivan 376 U.S. 254,[6] which captured universal appeal throughout the legal world, held that the publication of a false and defamatory statement of fact about a public official was protected by the constitutional guarantee of freedom of the press unless ‘actual malice’ could be shown. The Court gave the following reasoning:
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Freedom of expression must be considered against the profound national commitment that a debate on public issues should be uninhibited, robust and wide open and may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.
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Neither factual error nor injury to an official’s reputation will remove the constitutional safeguard to free speech.
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If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate.
Actual Malice Standard for Public Officials
The ‘actual malice’ standard was elaborated on two separate occasions by Dr Linus C. Pauling (two-time Nobel laureate in Physics). While the courts expanded the application of the Sullivan ‘public official’ rule for public figures, they argued that public officials, whether elected or appointed, were scrutinized not only because they influenced public policy but because they were also servants of the people and accountable to them for their actions. Therefore, public officials assumed the risk of being unprotected from sharp attacks and accusations.
Criminal Defamation Charges as Instruments of Destruction
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Chilling effects of criminal defamation charges: In his concurring opinion in Garrison Louisiana, US Supreme Court Justice William O. Douglas warned that criminal defamation actions brought by government officials constituted an “instrument of destruction” for free expression. Even when criminal defamation charges or lawsuits were dropped or dismissed, the targeted speakers were frequently chilled from engaging in future speech.
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The US Supreme Court overturned the lower court’s decision in Curtis Pub. Co. v. Butts that advertisements published in newspapers in which public officials had been criticized were guilty of libel because some of the statements were factually incorrect. The Court maintained the Sullivan rule that such advertisements were protected under the freedom of speech.
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In his paper No Place in the Law: The Ignominy of Criminal Libel in American Jurisprudence, Gregory C. Lusby, Professor of the Department of Communication, Georgia State University and Member of the State Bar of Georgia wrote the following:
“The application of the Sullivan standard to the crime of libel was a mistake. There is no common law affiliation with or legal justification for the existence of criminal libel in a democracy. Its existence is antithetical to the First Amendment’s guarantees of equality of speech, as well as to the broader constitutional guarantees of equality of speaker. The crime has become almost completely indistinguishable from the tort of libel, both in form and function, as a result of its evolution in America—from the importance of truth as a defence to the audience’s responsibility for its own reaction to the speech, violent or not. And the American experience demonstrates clearly and ignominiously that the abuse of prosecutorial discretion, and even the mere threat of prosecution, results in the suppression of constitutionally protected speech.”
International Standards
Decriminalization of defamation law has been proposed in the recent past to afford impetus to the freedom of speech. The South Asian Free Media Association (SAFMA) has condemned the law of defamation because it is a civil offence which, under the Defamation Ordinance 2002, has become a criminal offence which can “vitiate the principles of penalty being proportionate to the harm caused.”[7] The criminalization of defamation has also received disapproval from the UN Special Rapporteur on the Freedom of Speech and Expression who has expressed that sentencing someone to a prison term for libel or defamation is not a proportionate penalty.[8]
It has also been witnessed that international courts have adopted a more protective attitude towards the freedom of speech and expression. The Economic Community of West African States (ECOWAS) Court of Justice in its judgment[9] in the case of Federation of African Journalists on 14.02.2018 held that the offences of sedition, false news and criminal defamation under the Gambia Criminal Code violated the right to freedom of expression under international law. The Court observed violations of freedom of expression and directed that criminal laws on libel, sedition and false news may be repealed and amended to ensure future compliance. Similarly, the African Court on Human and Peoples’ Rights (AfCHPR) in the celebrated case of Lomé Issa Kojate v. The Republic of Burkina Faso ruled that freedom of expression in a democratic society must be subjected to a lesser degree of interference when it occurred in the context of public debates relating to a public figure. The court further expressed its concerns on the criminal punishments imposed for violating freedom of speech by way of custodial sentences, except for exceptional cases such as racial hatred and incitement and cases involving international crimes.
According to the 2007 and 2012 reports of the UN Special Rapporteur on the Promotion and Protection of the Freedom of Expression and Opinion, defamation has been defined as an entirely untrue statement which is injurious and unprivileged and imputed with actual malice. Moreover, it must contain a willingness to harm the defamed person. In furtherance of this definition of defamation, it has been argued that public figures must be extended protection against defamatory statements and immunity from criticism. However, it is also said that public figures must be prepared to stomach the highest degree of scrutiny in comparison to an ordinary individual. The critics of defamation laws have termed criminal defamation as a harsher remedy narrowing the freedom of speech and at the same time providing enormous compensation to individuals subjected to alleged defamatory statements.
The European Court of Human Rights (ECtHR) has ruled that public figures and heads of state must prepare themselves for strongly-worded criticism which, however, must not constitute a gratuitous personal attack. Before taking cognizance of the matter, it is expected that an investigating agency must satisfy the sufficiency of material to proceed with the investigation of an accused who must be afforded the opportunity to prove the veracity of the claims made against him or her. While commenting on criminal sanctions for defamation, the ECtHR has declared that, “…the assessment of the proportionality of an interference with the rights protected thereby will in many cases depend on whether the authorities could have resorted to means other than a criminal penalty, such as civil and disciplinary remedies.”[10] The African Court of Human Rights has also found freedom of expression to have been violated by way of imposing criminal liability on an individual for falsely alleging that a public official had illegally wiretapped his private communications. In Lomé Issa Kojate v Burkina Faso the AfCHPR assessed the compatibility of AfCHPR decisions with criminal defamation law. In this case, the African Court ceded to criminal sanction, only in ‘serious and very exceptional circumstances’ including ‘incitement to international crimes, public incitement to hatred, discrimination or violence or threats against a person or a group of people, because of specific criteria such as race, color or nationality’. This judgment signifies the importance of freedom of speech and its doctrinal impact on member states, particularly Zimbabwe, Kenya and Lesotho (with Jamaica being the only country to have fully repealed its criminal defamation laws). The African Commission on Human and Peoples’ Rights adopted a resolution in 2010 calling on countries to repeal criminal defamation laws (or insult laws) and the Pan-African Parliament adopted the Midland Declaration on Press Freedom in Africa. Surely, there is no better time for criminal defamation to meet the same fate in other countries as well.
Reasonability of Restrictions
Depending on the circumstances, it may be noted that one cannot state with precision what restrictions will be applied and how, as there can be no absolute test of reasonableness applicable to all circumstances. In various cases, the courts have confirmed that, “…it is not disputed that the right to determine the reasonableness of the restriction vests in the court (Talfazat Hossain v Government of East Pakistan).”[11] On the other hand, the approach to reasonable restriction can be epitomized from an Indian Supreme Court decision in The State of Madras v V.G. Row:[12]
“…it is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the rights alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.”
On the contrary, the Supreme Court of Pakistan has held that the a reasonable restriction has made itself dependent on the fact that it should be imposed on reasonable grounds.[13] The court has also held that the legality of the restriction imposed on the use of freedom of expression itself is justiciable and can be struck down if found to be unreasonable.[14]
Conclusions and Recommendations
While concerns against criminal defamation laws have been raised, disquiets over civil laws have also been expressed, for instance in the context of requiring an individual to defend statements based on truthfulness and prove opinions which are themselves incapable of being proven. International organizations have recommended that states must decriminalize defamation or at least limit it from being used in cases of the most serious nature only, as criminalizing speech has the most chilling effect on the freedom of speech. Government officials and public figures should be required to prove “actual malice”, limits should be placed on civil awards which should be proportionate to the harm determined and legal costs must not be disproportionately expensive.
The provisions under PECA 2016 have been termed as an incoherent mix of anti-privacy, anti-speech and anti-Internet enactments restricting the freedom of speech, access to information and the right to privacy. The vague and broad language leaves room for selective and arbitrary enforcement. Harsher and severe penalties go one step further to criminalize acts that are not found to be unlawful in comparable nation-states. Furthermore, the clauses under PECA 2016 specify offences which duplicate previous laws such as the Defamation Act and the Pakistan Penal Code. This creates inconsistency and confusion and defeats the true spirit of the Constitution of Pakistan and must be made consistent. To put it simply, enactments such as sections 3, 4, 11, 20 and section 37 of PECA are bad tools in the hands of politicians and officials and may be misused for personal objectives and grudges. A Senator even said that a toothcomb review of the Act was imperative to eliminate and amend provisions such as section 11 and 37 of PECA which were in grave violation of Article 19 of the ICCPR. In terms of addressing crimes and not criminalizing expression and fundamental rights, it is, therefore, imperative the that the current status of the provisions under PECA 2016 must be altered, improved or repealed.
References
[1] PLJ 1999 SC 273= PLD 1998 SC 823
[2] 2004 SCMR 164= PLJ 2004 SC 108= 2004 SCJ 348
[3] 274 U.S. 357 (1927)
[4] Article 19 of UDHR, Article XII, of UDHR Islam, Article 19 ICCPR
[5] PLD 1976 SC 57
[6] New York Times Co. v. Sullivan 376 U.S. 254
[7] SAFMA National Conference report, amending media Laws, “Right to Know and Express” Rawalpindi, Jan 2004, p. 4.
[8] E/CN.4/2003/67, 30 December 2002, paras 35 and 36.
[9] Federation of African Journalists (FAJ) v. The Gambia
[10] Rahimov v. Bulgaria (20 April 2006, application no. 47579/99)
[11] PLD 1965 Dacca 68
[12] (1952) SCR 597 at p. 607
[13] 2004 SCMR 164=PLJ 2004 SC 108= 2004 SCJ 348
[14] PLD 1965 Dacca 68= 17 DLR 76 (DB)
The views expressed in this article are those of the authors and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which they might be associated.
