New defamation law
Despite protests from the opposition, the media and the legal profession, the ruling party has pushed through the National Assembly a defamation law that serves to curb freedom of the press.
The aim behind the amendments to the Defamation Ordinance of October 2002 seems to be to unduly restrict the scope of the watchdog functions of the press in relation to the acts, omissions and irregularities by officials and institutions in dealing with matters of public interest.
The party that stands to benefit the most from the bill is the bureaucracy, for it can invoke the law at will to subdue the press. The implications of the bill are indeed press-specific.
The words ‘defamation’ and ‘actionable defamation’ have not been clearly defined, and the bill seems to be tilted unduly in favour of shielding an erring official or institution.
What is missing in the present case is a balance between the requirements of a free press and a citizen’s right to protect himself against libel and defamation. That newspapers will suffer the most from the law is indicated by the absence of the word ‘author’ in the bill, for it is the ‘publication’ which in the ultimate analysis will bear the brunt of the amended law.
Certain ugly features of the Defamation (Amendment) Bill deserve to be noted. The penalty for defamatory utterances and publication of these has been increased from Rs50,000 to Rs300,000, and publication of an apology or retraction does not diminish the aggrieved party’s right to demand compensation.
Which means that, even if an apology has been published, the plaintiff reserves the right to demand damages. Worse still, no limit has been placed on the compensatory damage that a party may demand, even after a retraction or apology has been published or aired.
The aggrieved party can also proceed against the defamer both under the civil and criminal law. Mercifully, a most draconian clause was dropped from the bill. This clause provided that “in the case of libel, the publisher, editor, reporter and the distributor shall be severally and jointly liable for action for defamation.” If included, that provision would have virtually ousted the press from the area of critical comment and reporting.
The bill accepts the truth of the matter as a legitimate ground for defence, if criticism is made in the public interest. The defendant can take the position that what was published was a fair comment in public interest and not to defame anyone or cast aspersion on any institution.
The plaintiff, however, retains wide options, for the law enables him to harass the defamer no end, and he can demand compensatory damage even after the defendant has made adequate amends for the unintended offence.
One fails to see how these provisions can serve the cause of democracy and a free press. In fact, as pointed out by the opposition, organizations representing the newspaper industry, and bar associations, the existing law, despite some flaws, was quite adequate and a new law was not needed.
The amendments have merely served to make the task of the press unduly difficult and opened newspapers to persecution both by the government and by those willing to act at the instance of the government. One hopes that when the bill goes to the Senate, it will revise it in the light of the amendments suggested by the press and bar bodies.