Defamation: A civil wrong or a criminal offence
Criminal defamation obstructs free speech and undermines public interest
Tasmiah Nuhiya Ahmed and Md. Shahnewaj
The word defamation means insult, offence, slander, libel, slur, smear, denigration, vilification, calumny, and character assassination. Generally, the act of damaging the reputation of another by means of false and injurious communications that expose that person to contempt, ridicule, hatred, or social ostracism is known as defamation. In the common law, defamation in writing is classified as libel, and oral defamation as slander. The tort of defamation consists of publishing a statement that injures the reputation of a person or organization. Publishing is defined as communicating the statement to at least one person other than the subject of the statement. An injury to reputation may result if the statement reduces the esteem or respect in which the person is held; casts the person into an improper light (for example, by suggesting that the person is a criminal); or generates derogatory or unpleasant feelings about the person. If the statement is spoken, the tort is known as slander. Defamation is known as libel when the statement is expressed visually, through words or images. Thus, a defamatory comment made at a public speech is slander and a written pamphlet containing the same information is libel. An injured party will not prevail in a claim of defamation if the statement, though derogatory, is true. For example, if a person says that another person is a murderer and that person was convicted of murder, there is no defamation. Special rules make it much harder to bring a defamation claim where the target of the statement is a public figure.
Chapter 21, Section 499 of the Penal Code 1860 of Bangladesh provides 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 the reason to believe that such imputation will harm, the former person will be liable to the latter. Therefore, the Penal Code 1860 defines defamation as, making or publishing any imputation by words either spoken or intended to be read, or by signs or by visible representations concerning any person intending to harm the reputation of such person is said to defame that person and whoever does this commits the offence of defamation which is punishable by 2 years simple imprisonment or with fine or with both (Sections 499-500).
The Penal Code 1860 of Bangladesh also provides that it may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. An imputation in the form of an alternative or expressed ironically, may amount to defamation. No imputation is said to harm a persons reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of his caste or of his calling, or lowers the credit of that person, or causes it to be believe that body of that person is in a loathsome state, or in a state generally considered as disgraceful.
Section 198 of the Code of Criminal Procedure 1898 states that no court shall take cognizance of an offence of defamation, except upon a complaint made by some person aggrieved by such offence. Some critics argue that it clearly states the term person aggrieved and avoided the term person defamed. The words person aggrieved has a wider undertone than the words person defamed. Legislators might have put the word aggrieved so that the third party in some exceptional cases can file a defamation suit on behalf of other. However, the prior leave of the court shall have to be taken. Generally before taking cognizance of the complaint the court needs to see how the complainant is aggrieved and in what manner his fame, reputation or honour has been damaged.
The legal system of Bangladesh is based on a common law system. Being a common law country, most of our principles are derived from the English law. Defamation is actually a civil wrong in English law. There they have its two aspects i.e. Slander (speaking malicious statement) and Libel (publication of malicious statement).
The Penal Code, 1860 is the main criminal code of Bangladesh. It is based on the penal code of the British Indian Empire enacted in 1860 by the Governor General-in-Council in the Bengal Presidency. It is similar to the penal codes of countries formerly part of the British Empire in South and Southeast Asia, including Singapore, India, Pakistan, Sri Lanka and Malaysia. The framers of the Penal Code 1860 of Bangladesh had not given effort wide enough to differentiate Civil and criminal wrong in every sphere of humans life. The framers might have wanted to have a codified law, indifferent to all people of Bangladesh, to address disputes in generality. The colonial masters always wanted to focus more on laws which could lead to their own exaggeration. Consequently, our laws were drafted in such a way that it in a way undermined the very core principles of different branches of law. I would say the Courts as well have not put enough effort to make such differentiation as it believes that it has to carry forward Positivist law, it is the legislature who can modify and separate laws by making amendment. But, again there is a problem; this attempt would require lots of hardships.
Here comes the need to understand the difference between criminal offence and civil wrong. The wrongs which are against the benefit of the public and the state are labeled as criminal wrongs, whereas wrongs that affect the interests of a particular individual are called civil wrongs. The criminal wrongs include acts such as murder, robbery, assault, theft etc. while the less serious wrongs like trespassing, nuisance, environmental pollution, copyright infringement etc. are recognized as civil wrongs. There are however, certain wrongs that fulfill the criterion for both civil and criminal wrong. In these situations the distinction between the two wrongs can be slightly blurred. They can be called both as a civil wrong as well as a criminal wrong. So there can be criminal as well as legal action for a single wrong. Some examples to these are assault, defamation, negligence, nuisance, reckless driving etc.
A person who has committed a criminal offence is punished in accordance with the penal code, while aside from a few common laws, there are no laws for civil wrongs, and it is solely up to the judges to decide if the defendant is liable or not, and also the compensation for the same.
Given all these, this is also true that public figures are using criminal defamation proceedings to stamp out adverse comments. Recent incidents in Bangladesh indicate that this particular form of intolerance continues to flourish. Criminal defamation obstructs free speech and undermines public interest. It gives birth to a debate on whether defamation deserves to be categorized as a crime or not. Critics also arguing that it would better to see it as a civil wrong only. This causes research to explore what are the implications of abolishing criminal defamation. In the year 2011, Human Rights Committee of the International Covenant on Civil and Political Rights called on states to expel criminal defamation on the grounds that it harasses and intimidates citizens. The process of litigation itself carries a penalty. Freedom of expression is a fundamental right under the Constitution of Bangladesh. However, it is observed that this law is being misused to punish innocent comments and opinions which citizens have the full right to express and hence, it can be said that criminal defamation goes against the very spirit of the Constitution. The law under Bangladesh Penal Code 1860 regarding defamation has failed to constitute reasonable restriction on speech and not even truth is considered as a valid defence. Persons are prosecuted for defamation under draconian laws which can even punish them for speaking the truth. Cases of public figures suing each other to settle scores or malign images are widely rampant in society today. Criminal defamation has been reduced to a game of tit-for-tat in the political arena.
Defamation is actually a Tort, and hence should be governed under tortious (civil) liability. Time has come to establish only civil liability for defamation and abolish the provision from the Penal Code of Bangladesh.
The writers are lawyers
