Barrister Naveed Malik

A quality defamation law should be well-crafted to effectively balance the protection of individuals from false and damaging statements with the preservation of the fundamental right of freedom of expression. It should include provisions that allow individuals to seek recourse for harm caused by defamatory statements while also ensuring that legitimate expression and public discourse are not unduly restricted.

A defamation law should incorporate robust safeguards to prevent its misuse, aligning with the fundamental right of freedom of expression. These safeguards could include placing the burden of proof on the claimant, ensuring a fair and transparent legal process, and providing ample opportunities for defendants to present their defence. Additionally, the law should mandate that claimants substantiate the alleged harm caused by the defamatory statements, thereby discouraging frivolous or malicious claims.

Freedom of expression stands as one of the most vital fundamental rights in a democratic society. It encompasses the right to form opinions without interference and the freedom to seek, receive, and impart information and ideas through any media, irrespective of geographical boundaries. This fundamental right is indispensable for the functioning of a democratic society, as it enables individuals to engage in public debates, criticize the government, and contribute to the exchange of ideas and information without the fear of censorship or retaliation. Therefore, any defamation law should be carefully crafted to uphold and protect this fundamental right. 

Article 19 of the Constitution guarantees the freedom of speech, expression, and press for all citizens of Pakistan. This fundamental right can only be restricted in specific circumstances, such as to uphold the glory of Islam, ensure the integrity and security of Pakistan, maintain public order, decency, and morality, or in cases related to contempt of court and incitement to an offence.

Additionally, Article 19-A of the Constitution enshrines the right to information (RTI) as a fundamental right for citizens. This right empowers individuals to access information from both government and private entities that receive public funds. It is based on the principle that information belongs to the people, and public officials are merely the custodians of this information.

The Punjab Defamation Bill 2024 has raised serious concerns due to its potential impact on freedom of speech. Although the law is intended to curb fake news, it has the potential to restrict all forms of expression. This could be due to design flaws, poor drafting, or a lack of understanding of defamation laws, and it is likely to be abused. Many argue that the Act is unconstitutional for several reasons. More importantly, laws in Pakistan are drafted differently and implemented in another sense. 

One major issue is the creation of a special tribunal to handle civil defamation claims. The judges in this tribunal are appointed by the government, albeit in consultation with the Chief Justice, but they lack security of tenure and can be removed by the government at any time without the need to prove misconduct. This raises concerns about the independence of the judiciary, as past Supreme Court verdicts have indicated that this setup infringes upon the constitutional guarantee of an independent judiciary.

Furthermore, the Act is not limited to electronic, social, or print media but applies to all forms of communication, including spoken words, written words, and visual images published by anyone, such as journalists, private citizens, and politicians. Additionally, the law has vast extra-territorial reach, applying not only to content published in Punjab but also to anything viewed or read there, even if accessed through third parties, and to content that allegedly defames anyone who is permanently or temporarily in Punjab.

The Act also sets a minimum damages threshold of 30 lakhs and does not allow individuals to defend a claim as of right; instead, it forces them to obtain leave from the court to be allowed to defend themselves. If permission is not granted, individuals are required to deposit 30 lakhs before they can even appeal. This could lead to potential abuse, as individuals could face lawsuits in Punjab for speeches made in other regions, and failure to respond to a summons or being refused leave could result in an automatic decree requiring a hefty deposit before an appeal can even be sought.

Moreover, proceedings before the government-appointed judges in the tribunal are kept secret, and no one is allowed to publish any statement about the proceedings pending before the tribunal for any reason. This lack of transparency raises concerns about the fairness of the trial process. In addition, the Act places a low burden of proof on claimants, as they are not required to prove their reputation or any loss unless they seek special damages over and above 30 lakhs. This leniency extends to constitutional office holders, such as Prime Ministers, Chief Ministers, Service Chiefs, and Judges, who do not need to appear before the tribunal to file a claim and are not subject to cross-examination. Furthermore, the tribunal has the authority to shut down the platform or medium on which the alleged defamation occurred, which could have far-reaching consequences beyond social media, potentially impacting newspapers and TV channels.

While there is a genuine need to address the abuse of free speech on social media, many believe that the Punjab Defamation Bill takes an overly restrictive and problematic approach. Therefore, there is a need to balance the misuse of media and ensure freedom of expression.