Defamation

Legal overview

The key legislation for bringing a claim of Defamation is the Defamation Ordinance of
2002 (the “Ordinance”).
The Ordinance defines defamation as “any wrongful act or publication or circulation of a false
statement or representation made orally or in written or visual form which injures the reputation
of a person, tends to lower him in the estimation of others or tends to reduce him to ridicule,
unjust criticism, dislike, contempt or hatred shall be actionable as defamation” [1].

The Ordinance in Section 3(2) recognizes two major forms of defamation: (i) slander; a false
‘oral’ statement or representation that amounts to defamation; and (ii) libel; a false ‘written’,
‘visual’ or ‘documentary’ statement or representation made either by ordinary form or expression
or by electronic or other modern means of devices that amounts to defamation.

In addition to the Ordinance which falls under the civil laws, defamation may also constitute a
criminal offence under Section 499 of the Pakistan Penal Code of 1860 (the “PPC”). Section
499 of the PPC provides that if someone “by words either spoken or intended to be read, or by
signs or by visible representations, makes or publishes any imputation concerning any person
intending to harm, or knowing or having reason to believe that such imputation will harm, the
reputation of such person … is said to defame that person”.

The primary difference between civil and criminal law with regards to defamation is that the
standard of proof is higher in terms of the latter. In addition, a remedy in terms of compensatory
damages is afforded to the victim under civil jurisdiction, whereas under the PPC a term of
imprisonment and/or a fine may be imposed.
In addition to the legislation set out above, a few constitutional provisions and rights
guaranteed under the Constitution are also important to highlight with regards to a claim
of defamation i.e., Article 14 (Inviolability of Dignity of Man), Article 19 (Freedom of
Speech), and Article 19-A (Right to Information). The relevance of each of the aforesaid
provisions varies with regards to the context/subject matter in which defamation has
been alleged.
(Please note that following recent Constitutional Amendments, Defamation legislation is
now enacted separately by each province in Pakistan. The contents of this report covers
the laws as generally applicable, but specific legal advice should be obtained for any
particular case/province.)

Civil Law
A civil suit for defamation may be initiated by way of instituting a suit before the District Court
having territorial jurisdiction. All matters in the District Court are heard before a judge and there
are no jury trials.
According to a recent high court judgement, the key ingredients to establishing a claim of
defamation are as follows PLD 2017 Peshawar 115

● the allegations put forward against the Plaintiff must be false, baseless, and unfounded.
● the wording and the allegation(s) levelled in the statement should have been defamatory
or derogatory in nature.
● the allegation(s) should have been published in a widely circulated newspaper or spoken
in a large gathering of people.
● the claimed statement should have been made with the intent of malice and should not
have any reasonable excuse and justification.
● the allegation should have been directly attributable to the plaintiff specifically
mentioning his name.

As per the Ordinance[3], a defendant may only be able to counter the claim on the following
defences:
● the defendant was not the author, editor, publisher, or printer of the statement
complained of.
● the matter commented on is fair and in the public interest and is an expression of opinion
and not an assertion of fact and was published in good faith.
● it is based on truth and was made for the public good.
● assent was given for publication by the plaintiff.
● an offer to tender a proper apology and publish the same was made by the defendant
but was refused by the plaintiff.
● an offer to print or publish a contradiction or denial in the same manner and with the
same prominence was made but was refused by the plaintiff.
● the matter complained of was privileged communication such as between lawyer and
client or between persons having fiduciary relations.
● the matter is covered by absolute[4] or qualified[5] privilege.
The Ordinance[6] provides the following remedies where a plaintiff is able to establish a claim:
● Direction by the Court to the defendant to tender an apology, only if acceptable to the
plaintiff and publish it in the same manner as the defamatory statement was published.
● Direction by the Court to the defendant to pay reasonable compensatory damages as
general damages with a minimum of Rs. 50,000 (or Rs. 300,000 in case of the
originator).
● If the plaintiff proves any other special damage incurred and satisfies the court, the court
may direct the defendant to pay such damages.
Awarding of damages is discretionary and the courts exercise such discretion in the light of the
evidence. General damages normally pertain to mental torture and agony sustained through
derogatory/defamatory statements. Since there is no exact measure of such damages in
monetary terms, therefore, while assessing damages on account of such inconvenience, the
courts determine general damages on a case-to-case basis. The Supreme Court of Pakistan
has also noted that general damages on account of mental torture/nervous shock are purely
compensatory to vindicate the honour or esteem of the sufferer, therefore such damage should
not be exemplary or punitive as the sufferer should not be allowed to make a profit of his
reputation[7].
Special damages, as opposed to general damages, are the damages that follow as an
approximate consequence of the injury complained of[8]. While awarding special damages, it is
to be kept in mind that the person claiming special damages has to prove each item of loss with
reference to the evidence brought on record. This may also include out-of-pocket expenses and
loss of earnings incurred down to the date of trial and is generally capable of substantially exact
calculation[9].

Criminal law
The Ordinance[10] expressly provides that nothing in the Ordinance shall prejudice any action
for criminal libel or slander under any other law.
In order to initiate criminal proceedings, the complainant will file a complaint[11] before the local
police station. The concerned police station should register the first information report and
investigate the matter. After the investigation report is prepared by the police along with other
procedural requirements, the matter will move to trial before the Sessions Court. All matters in
the Sessions Court are heard before a judge and there are no jury trials.
In order to establish its claim during the trial, the complainant will have to prove that the offence
as set out in Section 499 of the PPC has been committed and the harm has been caused to the
complainant along with sufficient evidence (preferable documentary evidence).
Section 499 of the PPC further provides the following ten exceptions/defences to defamation:
● It is not defamation to impute anything which is true concerning any person if it is for the
public good that the imputation should be made or published. Whether or not it is for the
public good is a question of fact.
● It is not defamation to express in good faith any opinion whatever respecting the conduct
of a public servant in the discharge of his public functions, or respecting his character, so
far as his character appears in that conduct, and no further.
● It is not defamation to express in good faith any opinion whatever respecting the conduct
of any person touching any public question, and. respecting his character, so far as his
character appears in that conduct, and no further.
● It is not defamation to publish a substantially true report of the proceedings of a Court of
Justice, or of the result of any such proceedings.
● It is not defamation to express in good faith any opinion whatever in respect of the merits
of any case, civil or criminal, which has been decided by a Court of Justice, or in respect
of the conduct of any person as a party, witness or agent, in any such case, or in respect
of the character of such person, as far as his character appears in that conduct, and not
further.
● It is not defamation to express in good faith any opinion in respect of the merits of any
performance which its author has submitted to the judgment of the public or in respect of
the character of the author so far as his character appears in such performance, and no
further.
 ● It is not defamation if a person having over another any authority, either conferred by law
or arising out of a lawful contract made with that other, passes in good faith any censure
on the conduct of that other in matters to which such lawful authority relates.
● It is not defamation to refer in good faith an accusation against any person to any of
those who have lawful authority over that person with respect to the subject matter of
accusation.
● It is not defamation to make an imputation on the character of another provided that the
imputation be made in good faith for the protection of the interest of the person making
it, or of any other person, or for the public good.
● It is not defamation to convey a caution, in good faith, to one person against another,
provided that such caution be intended for the good of the person to whom it is
conveyed, or of some person in whom that person is interested, or for the public good.
Section 500 of PPC sets out the punishment for the offence of defamation, which is
imprisonment extending up to two years and/or a fine.
In addition to Section 499 of the PPC, the Prevention of Electronic Crimes Act 2016 (“PECA”) in
Section 20, provides an additional criminal offence where a person intentionally and publicly
exhibits or displays or transmits any information through any information system, which he
knows to be false, and intimidates or harms the reputation or privacy of a natural person. The
said offence is punishable with imprisonment for a term which may extend to three years and/or
with a fine.
The procedure for filing a complaint is similar to the procedure mentioned above regarding
section 499 of the PPC. However, for an offence under PECA, the jurisdiction for investigation
lies with the Federal Investigation Agency (“FIA”). As such, in this case, a complaint may be
registered with the FIA, which will investigate the matter and prepare its report. Thereafter the
matter may proceed to trial.

Limitation Period

Civil
Prior to the initiation of any legal action, the plaintiff is required to give a fourteen days’ notice to
the defendant specifying the defamatory matter complained of. The failure of the plaintiff to give
notice of its intention to bring a claim against the defendant, within two months of the claimed
defamatory statement coming into their knowledge, may render such suit as non-maintainable.
After the notice has been served a claim for defamation under the Ordinance has to be filed
within six months from the publication of the defamatory matter coming into the notice or
knowledge of the person defamed[12].

Criminal
There is no period of limitation for filing a criminal complaint vis-à-vis defamation. However,
delay in filing a complaint may have adverse effects.
Burden of Proof
For a civil suit, the plaintiff is required to prove that the alleged publication (either oral or written)
has caused harm to his reputation and that it was published by the named Defendant. The onus
then shifts upon the defendant to establish that the alleged defamatory material is not false[13].
In criminal proceedings for defamation, the burden of proof lies heavily on the prosecution to
establish their case beyond a reasonable doubt.

Privacy and Data Protection

Pakistan currently, lacks any data protection legislation. In April 2020, the Personal Data
Protection Bill 2020 (the “Bill”) was introduced for the use, processing, and protection of data of
citizens. The Bill is to prescribe standards to protect personal data from any loss, misuse,
modification, unauthorized or accidental access or disclosure, alteration, or destruction.
However, the Bill to date has not been passed into law and other than a few limited situations
covered under PECA, telecom regulations or various judicial precedents etc. there does not
seem to be any special data protection laws applicable in Pakistan.
Additionally, the Constitution guarantees the privacy of home, as well as the dignity of every
person as their fundamental right under Article 14 (1), read with Article 35. The said protections
are, however, subject to the laws of Pakistan. The superior courts have expounded upon the
said fundamental rights in several judgments, a notable excerpt reads “It can hardly be denied
that the taking of private information without any allegation of wrongdoing of ordinary people is
an extraordinary invasion of this fundamental right of privacy”[14].
Contributor: Salman Aslam Butt (Partner)
Cornelius, Lane & Mufti (CLM)
4 Queen’s Road
Mozang Chungi
Lahore
Punjab 54000
Pakistan
The material in this Guide is for general information only and does not constitute legal advice.

[1] Section 3(1) of the Ordinance as applicable in the province of Punjab

[2] PLD 2017 Peshawar 115
[3] See Section 5 of the Ordinance
[4] “Any publication of statement made in the Federal or Provincial Legislatures, reports, papers,
notes and proceedings ordered to be published by either House of the Parliament or by the
Provincial Assemblies, or relating to judicial proceedings ordered to be published by the court or
any report, note or matter written or published by or under the authority of Government, shall
have the protection of absolute privilege.” Section 6 of the Ordinance
[5] “Any fair and accurate publication of parliamentary proceedings, or judicial proceedings
which the public may attend and statements made to the proper authorities in order to procure
the redress of public grievances shall have the protection of qualified privilege“. Section 7 of the
Ordinance.
[6] See Section 9 of the Ordinance
[7] PLD 2021 Supreme Court 564
[8] 2012 CLD 6
[9] PLD 2021 Supreme Court 564
[10] See section 11 of the Ordinance
[11] Leave from court or an authority maybe required in certain cases
[12] See section 12 of the Ordinance
[13] CLC 2020 Peshawar 618
[14] 2004 CLD 1680