The sensational claims made by a media anchor in seven-year-old Zainab’s case have once again drawn our attention to the industry that churns out unverified and slanderous news.
While freedom of expression is a fundamental right guaranteed under the constitution, it isn’t an absolute or unconditional right. Unrestricted rights do not exist in any country and there is no such thing as uncontrolled freedom. The Supreme Court has aptly observed that in a civilised and democratic society, restrictions and duties must coexist in order to protect freedom of speech (‘Pakistan Broadcasters Associations v Pemra and others’ PLD 2016 SC 692). In this regard, Article 19 of our constitution states that the right to freedom of speech is subject to reasonable restrictions that are imposed in the interest of the law to protect and safeguard the public interest.
The public interest has been broadly interpreted to include public morality; public order; public health; national security; and, more importantly, the fundamental rights of others. The state has ample powers to regulate freedom of expression when it comes into conflict with the rights of other individuals. A key restriction on the right to freedom of expression is included within the constitution itself as the reputation and dignity of a person is constitutionally protected.
Article 4(2)(a) of the constitution affords protection to a person’s reputation whereas Article 14 states that a person’s dignity is inviolable. The Supreme Court has affirmed that defaming a person through any means lowers his/her constitutionally-guaranteed right to dignity. As a result, the state and all citizens are obliged to respect the dignity of others. Anyone who defames another person has breached a constitutional obligation and could attract serious penal consequences under the law (‘Liberty Papers Ltd versus Human Rights Commission of Pakistan’ PLD 2015 SC 42).
In order to safeguard the fundamental right to reputation and dignity, parliament has enacted criminal and civil legislations. However, their enforceability and implementation remains a serious challenge and subsequently erodes their overall efficacy. Under Chapter XXI of the Pakistan Penal Code, defaming someone is a criminal offence that attracts a fine or a prison sentence of up to two years. In cases where the accused is the originator of the defamatory imputation, his/her prison term can be extended to five years.
The higher standard of proof in criminal cases and the general inefficiency of our criminal justice system remains a barrier to the prosecution of such crimes. Similarly, a claimant can file a suit under the Defamation Ordinance, 2002 against anyone who seeks monetary compensation by making false claims. The burden then falls on the defendant to prove that the statement that he made was not false and as such does not amount to actionable defamation.
Although Section 14 of the ordinance states that the court must decide the defamation suit within 90 days, this mandatory provision is seldom followed and a civil court take years to pass a judgement. Delays may also occur when the matter reaches the high court and the Supreme Court. This makes the entire process cumbersome, expensive and frustrating. The fact that the courts are usually prone to awarding meagre damages in defamation suits and, unlike foreign courts, don’t impose costs on the losing party, brings further disappointments to a genuine litigant.
If there is no potent fear of an efficient justice system that swiftly punishes people for making false accusations, unverified, sensational and ridiculous claims will continue unabated. With the presence of an active electronic media and a powerful social media through which information is being disseminated without any verification, it is time our legal system responds to the challenge of protecting the reputation, honour and dignity of its people.
The writer is a lawyer based in Islamabad.