Modernising defamation law
£10,000 bill for Facebook joke. This is not a joke, it was the lead news of Metro, a daily morning Newspaper in UK, on July 28, 2010. Raymond Bryce a law student claims for defamation when his friend posted some obscene link on his Facebook wall and comment negatively. The UK law gives him a fair trial under defamation law.
In Bangladesh, a popular newspaper reported that Facebook was blocked and a man was arrested over 'cartoon' of two heads of the major two political parties. For this matter a comment of one IT scholar was the government did it because someone posted cartoons of the VIPs. "But many people including girls are being abused in Facebook every day. Would they have done the same for them or me? You cannot block an entire population for some wrongs done by one or two individuals."
As a law student and citizen of Bangladesh I always expect law will be equal for all and government should ensure rule of law. I don't know what happened to Mahbub Alam Rodin the suspected defamer of VIP. But we expected he got fair trial. We never support anyone suffer any pain through exercising so called section 54 of the Code of Criminal Procedure.
I feel refrained to write down anything about Section 54 and 167 of CrPC given the space constraint. So many scholars have written about it. Even Hon'ble Justice Hamidul Haq and Justice Salma Masud Chowdhury of the High Court Division of Bangladesh Supreme Court have given milestone judgement on point in the case of BLAST v. Bangladesh (reported in 55 DLR page-363).
In Bangladesh defamation case is a hot cake for headline of daily newspaper. Most of our prominent Editors Journalists and Politicians have had that experience. Even more evidence acknowledge that powerful authority exercise power when fail to get fair trial.
Defamation law and an analysis:
In UK, defamation is a tort which protects claimants' reputation. Simply defamation is a statement which tends to lower a person in the estimation of the right thinking member of the society. For better understanding it is defined as Slander and Libel. The old maxim was 'slander to the ear and libel to the eye'. The permanent statements are Libel. Spoken words are known as slander. Historically defamation was usually tried by Jury. Generally a Jury is a group of people from society who find the fact. As for example Mr X publicly say Mr Y is an 'insane'. Mr 'Y' claim for defamation. In this scenario the Jury (a reasonable person from UK society) will decide whether by this word Mr 'X' underestimated or not. Mr Justice considering the fact and law give judgement.
18th July BD News reveals that a defamation suit has been filed against the main opposition party BNP's senior joint Secretary General Mirza Fakhrul Islam Alamgir. The harsh reality is that the suit was filed by someone else than the victim. In UK conventionally the victim files a case for defamation. To succeed defamation suits claimant must prove the statement was defamatory, referred to him and it is published to third party.
For any defamation suit the UK law has accorded wide scope of defence. Under (S.2-4) Defamation Act 1996, the defendant may make an 'Offer of Amend'. Normally the media (Print/TV/Radio) can make correction, pay apology, damage before a writ is served on them. It is known as 'qualified offer' to stop writ in court. If the claimant gives 'consent' to publish the statement then no action will lie. This procedure if followed could have stopped the load of defamation suit in Bangladesh.
Parliamentarians enjoy absolute privilege in the proceedings of Parliament but are not exempted from defamation charge for blasphemous statements outside of the Houses. For a strong democratic base, the UK law gives the members the right to make any constructive comment but does not encourage underestimating any members. To attain a better democracy we should grasp and nurture this culture. Our opposition should continue to go parliament and criticise the government fairly in the house.
The defence of qualified privileged is a hot cake in the defamation law. The Article 10 of European Convention Human Rights has made freedom of expression a parliament topic. On the other hand, judges are giving some milestone judgements and contributing in the development of law. Lord Nicholls has given some guidelines in Reynold's Case and underlined, 'It is in the public interest that the reputation of public figures should not be debarred falsely in the political fields, in order to identify the good as well as bad'. To solve all loopholes Lord Lester proposes some reform as 'Defamation Bill 2010-11' in parliament which is now in the Committee Stage.
In Bangladesh Article 39 of the Constitution has provided freedom of thought, and conscience, and of speech. There is no statutory law concerning defamation except what is contained in Chapter 21 of the Penal Code. Regarding civil liability for defamation, any person can file a petition with a civil court for compensation. Every citizen has right to protect his/her reputation this is the ground for which courts entertain suits for damages for libel and slander in Bangladesh as well as in United Kingdom. The civil liability for defamation to pay compensation is not governed by any statutory law in Bangladesh, rather it is determined by the principles of justice, equity and good conscience, originated in England and later on these principles were imported in this sub-continent including Bangladesh. The criminal liability for defamation is codified and embodied in section 499 of the Penal Code of Bangladesh. It is to be mentioned that before the enactment of the Indian Penal Code in 1860 defamation was considered merely as a civil wrong.
As per section 499 of the Penal Code, if any person by words, spoken or written, or by signs or visible representations, makes or publishes any imputation, which will harm the reputation of another person, the former person will be liable to defame the latter person. This section provides a list of exceptions. If any situation fits with any of the prescribed exceptions that will not come within the purview of defamation.
Under the present dispensation of law, the wrong of defamation is a bailable offence. So any accused can easily get bail. But apprehension mounts when any affluent person or a person holding state apparatus files a case of defamation with any magistrate court to harass any citizen. After taking the case into cognisance if the court (not because of the merit of the case, but due to the influence of powerful state functionaries) issues any warrant of arrest and if the accused person, though innocent, is arrested before getting bail and kept in police custody and later on if that person is adjudged innocent, who will be going to compensate for the suffering of the person? This area of apprehension should be taken into consideration by the main actors of existing system and also by the lawmakers.
There are so many loopholes in defamation law. Frankly this area did not get any modern touch in Bangladesh. At the digital age and booming media culture this area demand some reform and specific statute. We expect the Law Commission of Bangladesh would come forward with suitable recommendations or the judiciary would render some specific guidelines from running cases. Even a legislator can come forward like Lord Lester introducing a Private Bill in our Parliament.
The writer is a student, University of London, UK.