Libel and free press
By: A.G. Noorani
IN South Asia the law of defamation hangs over the press like the sword of Damocles. It is of colonial origin, understandably. What is inexcusable is that while the country of its origin Britain has improved the law, South Asia continues to hug its colonial legacy.
Every civilised society needs a law to punish defamation. Every free society established a balance between the claims to protection of reputation and those of the public interest in exposure of wrongdoing.
Defamation which is verbal is slander; in writing it constitutes libel. It is a criminal offence as well as a civil wrong punishable in damages; in short, a tort. The criminal law is constitutionally void. It is embodied in Macaulay’s Penal Code enacted in 1860, (Sections 499 and 500). The civil law is not codified in a statute but, like much of the law on torts, it is based on case law, domestic and English.
Article 19 of the Pakistani constitution says that every citizen shall have the fundamental right “to freedom of speech and expression and there shall be freedom of the press, subject to any reasonable restrictions imposed by law” on any of the grounds it specifies.
Article 19 of the Indian constitution is in the same vein. The supreme courts in both countries draw liberally on English and American case law. Lord Diplock gave a landmark ruling 30 years ago questioning fundamentally the validity of a law that makes defamation a criminal offence (Gleaves vs. Deakin [1980] A.C. 447 at 483).
His logic is incontestable. It would violate Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which embodies “the right to freedom of expression” subject to restrictions prescribed by law which are “necessary in a democratic society” or any of the specified grounds. One of them is “the protection of the reputation or rights of others”. Lord Diplock’s ruling will be highly relevant to an interpretation of Article 19 of the constitutions of Pakistan and of India.
In Britain, there have been only two modern instances in which criminal law was invoked by private individuals. One was in 1977 by Sir James Goldsmith against the editor of Private Eye. Another was in 1982. Goldsmith wisely settled up. The other failed dismally.
In Britain the Libel Amendment Act 1888 provides a safeguard (Section 8) which was absent in India’s Criminal Procedure Code 1898 — leave from a high court judge prior to a prosecution. He must be satisfied that there is an exceptionally strong prima facie case, that the libel is extremely serious, and that the public interest requires the institution of criminal proceedings. No such safeguard exists in the CrPC 1898. This robs the law of the quality of a “reasonable restriction”.
As for civil law Britain enacted two statutes to relax the severity of the law, the defamation acts of 1952 and 1996. The latter enables the media to offer to publish a correction and an apology together with legal costs as agreed or fixed by the court. If the plaintiff refuses, the defendant can cite it in defence.
A plaintiff who fails to prove malice in justification of his refusal gets nothing. It also extended the defence of “innocent dissemination” from printers and distributors of journals to broadcasters of “live” programmes such as radio talk-backs and TV chat-shows where the station has no control over the off-the-cuff remarks uttered by the studio guest.
American rulings are far more liberal, most notably the celebrated case of The New York Times Company vs Sullivan, decided by the US Supreme Court in 1964. On March 29, 1960, as the civil rights movement began to gather momentum in the south, a full-page advertisement appeared in The New York Times signed by 64 people.
It charged that thousands of black southern students, then engaging in non-violent demonstrations to obtain their constitutional rights, had to face “an unprecedented wave of terror by those who would deny and negate that document [the constitution] which the whole world looks upon as setting the pattern for modern freedom”.
There were some grave factual errors in the advertisement. The commissioner of public affairs, sued NYT. Justice William J. Brennan spoke for the court.
He said: “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertion — and to do so on pain of libel judgments virtually unlimited in amount — leads to … ‘self-censorship’. …Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.”
Justice Brennan stated the rule of libel law thus: “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
On Oct 7, 1994, in the Nakkheeran case, the Supreme Court of India approved the rule in the NYT case as good law in India.
Justice B.P. Jeevan Reddy said that a public official has no right to privacy “or for that matter, the remedy of action for damages” in respect of conduct in his official capacity.
“This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made … with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true.”
The Internet, which knows no boundaries, raises issues such as where does the publication take place? Can the defendant be sued anywhere in the world? Who is liable, the service provider or the website provider or both? All in all, an uncertain state of the law poses a threat to press freedom. Its reform is overdue.
By: Dawn
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