May 25, 2024
By Ahmed Saeed
LAHORE
Ever since the Punjab Assembly has passed the Punjab Defamation Bill 2023, civil society including press bodies have raised a hue and cry, terming the legislation a “black law” and “an attempt to suppress free speech.”
The Statement of Objectives and Reasons says, “The Punjab Defamation Bill, 2024, envisages legal protection from false, misleading, and defamatory claims made via print, electronic, and social media against public officials and private citizens. This Bill is necessary to contain such unwarranted criticism and dislike for a person or authority.”
But the proposed legislation has received criticism not only from the journalists’ organizations and the opposition, but also from the PML-N-led Punjab government ally, the Pakistan Peoples Party, which has publicly denounced the bill. The Governor of Punjab, Sardar Saleem Haider Khan, has even hinted at reverting the Bill to the assembly for meaningful consultation.
It is not just the content of the Bill but also the manner in which it was passed that has stirred controversy. The bill was tabled in the assembly on May 20, and was passed the same day, despite protests from opposition benches and the press gallery.
Legal experts point out many flaws and shortcomings in the bill that make it a potential danger to the freedom of the press.
Definition of Defamation and Broadcasting
The new bill, which replaces the Defamation Ordinance 2002, broadens the definition of ‘defamation’ and ‘broadcasting’ to include social media platforms within its ambit.
According to the new legislation, broadcasting means “the dissemination of writings, signs, signals, pictures, and sounds of all kinds, including any electronic device, intended to be received by the public through social media websites, applications, and platforms (including but not limited to Facebook, Instagram, X/Twitter, WhatsApp, TikTok, etc.).”
This means that even if an ordinary person forwards a message to a WhatsApp group, they are still at risk of facing a defamation suit for that single message.
Farieha Aziz, a lawyer and digital rights activist, believes that the intent of the bill seems to be to stop criticism against the state, especially on sensitive matters like enforced disappearances.
Establishment of Tribunals
Cases filed under this law will be heard by the tribunals. Judges for these tribunals will be selected from the district judiciary and the legal fraternity. The Punjab government and the Chief Justice of the Lahore High Court will appoint the judges through consultation.
But lawyers believe this procedure of appointing judges to tribunals is against the spirit of the constitution and represents a conflict of interest.
“The government has a role in the appointment of judges, and that too in a law where the government can be a complainant and can interfere in the proceedings, so it is a clear instance of conflict of interest,” says Aziz.
Special Tribunals for Constitutional Office Holders
The bill sees to a special tribunal comprising an LHC judge, to hear cases with complaints filed by a constitutional office holder (such as the President, Prime Minister, or Chief of Army Staff). Also these office holders will not be required to file or attend the case in person; instead, a designated officer or counsel can pursue the case on their behalf.
But law experts consider this special treatment “discriminatory.”
Asad Jamal, a Lahore-based lawyer and rights activist, says that since a defamation claim is filed by an individual in a personal capacity, it is hard to understand why certain individuals have been given such special treatment at the public’s expense to make the process swift and easier for them.
“The question arises whether there can be discrimination between citizens regarding access to justice. How is it possible to give privileged treatment to a section of society in a matter of the same nature?” he says.
Farieha Aziz also believes that such clauses make this law “discriminatory and of the elite, by the elite, and for the elite.”
“This is evident through fines, parallel proceedings, and exemptions proposed in the law. Ordinary people will have to follow all the procedures of the law, including in-person attendances,” she adds.
Preliminary Decree
Section 13 of the bill authorizes the tribunal to pass a Preliminary Decree against the defendant if they fail to get Leave to Defend from the court. For lawyers, this clause is of significant concern as it gives the tribunal the power to impose a fine of a minimum of Rs3million without the start of an actual trial.
“The concept of leave to defend is enshrined in some other laws as well, and it means that the defendant has to get permission, at the outset of the trial, from the tribunal to defend himself/herself against the accusations. If one does not get the Leave to Defend, then the tribunal will issue a decree against him/her,” Jamal explains.
Power to Block Websites/Social Media Platforms
For journalists and media houses, subsection 2 of section 21 of the bill is a major concern. This section empowers the tribunal “to issue a direction to the relevant regulatory authority to suspend or block the social media account of the defendant, or any other medium or platform.”
Journalists fear that this will give the tribunals unbridled power to regulate media and to put a complete ban on a website or social media platform of a news organization.
Jamal says that journalists’ fears are not unfounded, as it is a tradition that a bad law is always interpreted in the worst manner. “It is plausible that the tribunal can order to block the entire media platform besides imposing a fine of Rs. three million on a journalist for just a single story,” he adds.
Extra-Territorial Jurisdiction
Although section 1 of the law states that “It shall extend to the whole of Punjab,” however lawyers believe that subsection 7 of section 20 gives the tribunal the power to try individuals residing outside the territory of Punjab.
The clause reads, “The Tribunal shall have jurisdiction regarding any claim or actionable wrong, which has either been disseminated, circulated, received, read, or viewed within the territorial precincts of Punjab or, as a result of such material being published or broadcasted, a person who resides, works for gain, or discharges his functions/duties, either permanently or temporarily, within the territorial limits of Punjab, has been defamed.”
“If news is published on a digital or electronic platform from Karachi and it is viewed or distributed in Punjab through the internet, then it is possible for an individual to file a claim in a tribunal in Punjab as the law allows such claims. It means that Punjab’s law will extend to all other provinces,” Jamal explains.
No Safeguard for Freedom of Speech
Journalists also complain that the law does not provide any safeguards for them from defamation in cases where they file a story in the public interest.
Asad Jamal says that since journalists’ jobs are to report on the public and private lives of powerful people, they are more prone to defamation proceedings.
“If a public figure files a defamation claim against a journalist, then the public figure should have to prove actual malice even if the story is false. This standard of requirement is neither present in this law nor was it present in the Defamation Ordinance 2002. The concept of free speech allows that if a journalist files a story in the public interest without actual malice but later the story turns out to be false, then the journalist should be safeguarded against defamation proceedings,” Jamal says.