Reconciling conflict of rights in defamation law discourse

AT law, the notion of 'Defamation' is defined both as a civil wrong and a criminal offence in the legal regime of various states. A person can either be sued for compensation by the affected person or be criminally prosecuted by the state. Arguably the notion of criminal defamation is viewed as legally unfounded as it stipulates a disproportionate punishment and has a ruthless effect on freedom of expression. Importing the statutory definition of defamation via the body of the Penal Code, 1860 we study in the sec.499 that whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publish any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation or such person, is said, except in the excepted cases, to defame that person.

In real-time defamation prosecutions the accuser usually argues that the contents of any report published in any given printed publication in relation to him is not only false, baseless and concocted but also scandalous, disgraceful and defamatory which lowered her social and professional status in the estimation of the people of her environs.

Hence, the persons creating defamatory statement should be charged with the offence of defamation they have committed be it actively or by way of abetment. It is alleged that along with the principal accused i.e. the writer, the publisher of the said printed publication is also responsible for defamatory matter published in such paper whether he knows the contents of such writing or not.

Moreover, in such a case generally the editor of the printed publication is bound to take due care and caution before a libelous statement goes for final publication under the supervision of his pen. Therefore, all the personnel concerned with the said publication are equally liable for publishing such imputation as contained in the alleged writing intending to harm the reputation of the person alleged to be defamed.

Criminal defamation laws are somewhat complicated from the point of view of freedom of expression and allied rights. They can lead to the imposition of harsh sanctions, such as a prison sentence, suspension of the freedom of expression or a heavy fine.

This is not to say that prosecution for defamation should not be discouraged; but in accordance with the essential test, the means used to discourage it should be carefully targeted, to prevent the dampening of legitimate criticism. In some instances it is seen that affluent or politically powerful individual and corporations have instituted defamation cases, even where they have no prospect of success, to try to prevent media criticism of their questioned dealings. For defamation claims the exacting remedy will vary between jurisdictions but possible options include the right to bring a case for abuse of civil court's process and/or the availability of a procedural mechanism to strike out the claim early on in the proceedings unless the plaintiff can exhibit some probability of success in proving his case.

It is widely recognised that the making of certain statements which the author is under duty to make, or has a specific interest in making has been protected unless it has been done maliciously. The contemporaneous international trend for defamation law discourse is to interpret the scope of this protection broadly, given the particular importance of freedom of expression on these occasions.

The law of defamation reflects the conflict of two fundamental rights: the right to freedom of expression, including freedom of the media, and the right to reputation. The rules of defamation law are intended to mediate between these two rights. The defamation law discourse flows from the analysis of the rights in issue; the value underlying the right to reputation that has most resonance is human dignity, while the value that is most pertinent to freedom of expression in this context is the argument that free speech is integral to democracy.

The argument from democracy emphasises that speech on matters of public interest should receive greater protection than private speech. In particular, the presumptions that defamatory allegations are false and have caused damage, the principle of strict liability to primary publishers and negligence liability to secondary publishers, and the availability of punitive damages, should not survive constitutional inspection.

The quantum of damages and costs rules, and the remedies available in defamation cases, should also be reformed to reflect the significance of dignity to the claimant, and the free speech interest of the public in receiving true information on matters of public interest and public policy.  

The writer is Senior Assistant Judge in Bangladesh Judicial Service.