LAWS FOR everyday life
Defamation is a punishable offence
Jahangir Alam Sarker Sagar
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.
Ingredients of Defamation
If we analyze the definition of defamation then it is very much clear that it consist main three essential ingredients, such as-
1. Making or publishing any imputation concerning any person;
2. Such imputation must have been made by words either spoken or intendment to be read, or by sings, or by visible representation, and
3. Such imputation must have been made with the intent to harm or with knowledge, or belief that it will harm the reputation of the person concerned.
Historic case
In New York Times Co. v. Sullivan (1964) case, the Supreme Court of the United States set a new burden of proof for plaintiffs in libel cases, requiring public figures suing for libel to prove that the defendant acted against them with “actual malice”that is, reckless disregard for the truth. In 1960 the New York Times ran an advertisement signed by several African-American clergymen that criticized public officials in Montgomery, Alabama, for their handling of civil rights protests. L. B. Sullivan, a Montgomery city commissioner, filed suit against the Times and the clergymen, claiming that incorrect statements in the ad were libelous and damaged his reputation.
Bangladeshi law
Section 499 of the Penal Code deals with defamation. According to the section, Whoever, 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, except in the cases hereinafter expected, to defame that person..
Section 500 of the Penal Code deals about the punishment of defamation. According to the said section, whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. Where there is no substantial defense, an immediate apology in the widest and most unreserved terms may fairly be presumed to lessen the punishment. When the defamatory words are uttered in the heat of passion it can not be said that a serious case of defamation has arisen. A journalist is required to attach more care and caution in publishing items which are likely to harm the reputation and good name of others. Papers publishing scandalous articles sometimes get wide publicity and the circulation in such cases and consequently the income of the journalist also increases. Thus, therefore, calls for deterrent punishment and a mere sentence of fine in such cases will not at all be adequate.
Proof
The proof of defamation requires the presence of the following elements:
1. That the imputation in question consisted of words, spoken or intended to be read or of sign, etc
2. That the imputation concerned the complaint.
3. That such imputation emanated from the accused.
4. That he made or published the same.
5. That he intended thereby to harm the reputation of the compliment or that he knew or had reason to believe that it would do so.
Case Law
In Abdur Noor & Others v. State & another (50 DLR 456) it was held that a complaint made by the petitioners in good faith to the Hon'ble Chief Justice regarding the conduct of the complained judicial officer is not defamation as the same is covered by exception.
In Sigma Huda v. Ishaque Samad ( 50 DLR 129) it was established that imputation made by lawyer when protected-Imputation made by lawyer in discharge of professional duty on the character of any person in good faith and for the protection of the interest of the person making it or any other person or for the public good will not constitute offence of defamation. In the instance case, the imputation allegedly made by the petitioner as an advocate under instruction for protection of her client's interest cannot constitute the offence in view of exception 9 to section 499 PC.
In Mr. A Y Masihuzzaman v. Shah Alam (41DLR 180) the court said that English law of absolute privilege, whether applicable to the statements made by the parties or by the statements made by the parties or by the statements made by the parties or by the advocates in court proceedings in Bangladesh. Immunity having been not extended to judicial proceedings a respondent allegedly defamed would be competent to file a complaint in the court against the maker of defamatory statement. In our codified law the expression “defamation” has been defined in section 499 of the Penal code. (4 BCR 489 AD). In Khondokar Abu Taleb v. State (19 DLR 198, SC) the court observed that in the criminal prosecution, for defamation under section 499, it is sufficient; if the accused can show that the imputation was substantially true.
There is a difference between civil and criminal liability for defamation. The civil liability for defamation to pay damage, however, is not governed by any statute law but is determined with reference to the principle of justice, equity and good's conscience. It follows that if a defamatory statement does not fall within the specified exception; it is not privileged and is not protected from the mischief of section 500 of the Penal code.
The writer is an advocate & human rights activist.
