The PECA Amendment: Reputation or Right to Speak?

Image Source: News Desk, Govt urged to repeal amendment to ‘draconian’ PECA Ordinance, ( The Express Tribune, Feb 28, 2022) https://tribune.com.pk/story/2345673/govt-urged-to-repeal-amendment-to-draconian-peca-ordinance?amp=1, accessed on: 06.02.2024.

Communicating false statements about a person resulting in a damage to his/her reputation^[1], is known as an act of defamation. Such an act is governed by laws which protect a person’s reputation against such potentially baseless damage. Care must be taken, however, to ensure that these laws do not attain a level that would impede the right to freedom of expression. Failure to do so leads to what is known as a “chilling effect”. The latter leads to self-censorship whereby the existence of disproportionately strict defamation laws discourage people from exercising their legal right to express themselves because they fear not only being sanctioned, but also criminalized. Striking a reasonable balance between these two facets is, thus, essential for any thriving democracy. Unfortunately, Pakistan’s recent amendment of the Prevention of Electronic Crimes Act 2016^[2] (‘2016 Act’) doesn’t quite get it right.

Procedural Changes:

The 2016 Act was introduced, amidst a flurry of concerns^[3], to govern the realm of cybercrimes. A recent amendment to the Act makes several substantial changes to the law of defamation as it stands in Pakistan. These include making ‘online defamation’ a non-bailable and cognisable offence^[4]. Essentially, this means that the grant of bail in cases of online defamation will now be granted as an exception and not as a right, and that the arrest of an alleged offender can be made without an arrest warrant. The amendment has also increased the maximum sentence to 5 years, from the previous 3 years. These measures clearly point towards a regime that seeks to closely monitor, and control dissenting voices and discourse. Doing so disregards the right to freedom of expression and leads to a civil society that, when faced with the prospect of 5 years in jail, chooses to remain silent. This is far from what a democratic society, and all the constructive criticism it entails, looks like.

The amendment also makes provisions to expedite the trial of offences under the Act within 6 months. It is interesting to note that one of the most high-profile criminal trials in Pakistan’s recent history, the trial of Noor Mukadam’s[5] murder took 7 whole months to conclude, when ideally, this should have been a matter of not more than 2-3 months.  Against this background, the PECA amendment reveals the government’s insecurity about any opposition or criticism of its policies and actions to the extent of wanting to wrap up defamation cases against it quicker than a high-profile murder case was.

Substantive Changes:

The amendment widens the definition of an “aggrieved person” to include, in addition to the natural person (i.e., a living human being), “any company, association or body of persons whether incorporated or not, institution, organization, authority, or any other body established by the Government under any law or otherwise”. [emphasis added] Plainly, this expands the scope of online defamation by allowing both government bodies and the general public to pose as victims of online defamation.

Unanimous consensus from the likes of the European Court of Human Rights (the ECtHR), legal experts, and international organizations all hold that such severity, resulting in the abovementioned “chilling effect”, is caused by criminal defamation laws that do not ensure proportionality in their responses and disregard the balance between two equal rights; the right to the freedom of expression and the right to protect one’s reputation^[6]. 

Now, several questions arise. How can the chilling effect be avoided? How can the right to freedom of expression be balanced with the right to reputation? And, how can proportionality in this case be achieved?

Pakistani jurisprudence sets forth some general principles. The Supreme Court of Pakistan, in Pakistan Broadcasters Association v PEMRA^[7]framed the balance as such: “freedom of speech goes to the very heart of a natural right of a civilized society” but that the “State has a compelling interest in regulating the right to speech when it comes in conflict with the rights of other individuals, or other societal interests.” Most importantly, the Court stressed that these “restrictions and duties (must) co-exist in order to protect and preserve the right to speech…” Some case-law, however, shows which side the scale tilts towards; Liberty Papers v HRCP^[8] stated that the offence of defamation was a serious breach of constitutional obligations that attracted serious penal consequences.

Beyond national boundaries, the ECtHR and its rulings provide an answer. Its jurisprudence is not binding on Pakistan, but does hold persuasive authority, as it constitutes amongst the most sophisticated human rights bodies whose judgements are binding on all its members, essentially allowing us to see the uniform manifestation of its jurisprudence across multiple European states. Beyond that, a case can also be made for recourse to the ECtHR on the grounds that, increasingly, all jurisdictions are being seen as relevant when guaranteeing universal human rights.^[9]

In Cumpănă and Mazăre v. Romania^[10], the ECtHR held that imprisonment should not be imposed in the circumstance of an issue of genuine public interest, since such a sanction would certainly create a chilling effect. In Chauvy and Others v. France^[11] , the ECtHR balanced “on the one hand, freedom of expression…and, on the other, the right of persons attacked … to protect their reputation”. Finally, the proportionality test was seen in MGN Limited v. the United Kingdom^[12] where the ECtHR found that the charging of high fines was disproportionate and consequently violated the freedom of expression.

Of late, there has been an international move towards decriminalizing defamation in the search for a proportional mechanism that ensures a reasonable balance between the freedom of expression and right to protect one’s reputation. Resolution 1577^[13] (2007) of the Parliamentary Assembly of the Council of Europe pressed Member States to abolish prison sentences for defamation. Today, the world has noticed a trend towards dismantling criminal defamation laws; States including Macedonia, Ireland, Montenegro, and the United Kingdom have put an end to criminal defamation.[14]

Defamation as a criminal offence is one thing but enabling a public body to complain and report defamation is another. The ECtHR’s jurisprudence is indicative of the fact that tolerance from a public body needs to be high in these matters. In Castells v Spain^[15],it held that governments are expected to exhibit a higher degree of tolerance to criticism because in a “democratic system the actions or omissions of the Government must be subject to close scrutiny…”The same principles apply to public authorities, as the court noted in Vides Aizsardzibas v Latvia^[16], “public authorities, in principle, lay themselves open to constant scrutiny by citizens, and, subject to good faith, everyone has to be able to draw the public’s attention to situations that they consider unlawful.” In some exceptional cases, the courts have put a cap on this principle. One such example is Janowski v Poland^[17], wherein an exception was made in the case of public prosecutors^[18], who may necessarily need to be protected from defamatory attacks that may affect their performance and the public confidence which they hold.

The general rule seen around different jurisdictions is that public bodies may not proceed with a charge or suit for defamation^[19] as “the dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings…”.^[20] In the UK, the House of Lords held in Derbyshire County Council v Times Newspapers^[21] that no public authority could bring an action for defamation since: “it is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech.” The UK jurisdiction is clearly laying out the principles in terms of civil actions for defamation, and yet in Pakistan, it is being criminalized.

            The law is alarming not just for its conferral of such powers on public bodies and functionary state organs. Its widened impact on the general public is adverse as well. For one, opening the law of defamation so widely is essentially unheard of across any jurisdiction (according to the best of the authors’ knowledge). Furthermore, such an inundation of complaints defeats the essence of defamation- someone’s reputation is not for someone else to defend- and is extremely impractical; allowing anyone to complain is a recipe for disaster and one that will inevitably stuff the FIA Cybercrime wing with a crippling number of cases and burden the courts the fruitless litigation of the same.

Conclusion

With all this in mind, Pakistan would have been well-served in completely decriminalizing defamation. By failing to do so, and moving in the opposite direction, the law takes an attitude unconcerned with the need to balance the two rights proportionately. Consequently, the current law of online defamation in Pakistan results in an infringement of the right to freedom of expression, as protected by Articles 19 of the Constitution of Pakistan^[22] and its international law obligations under the ICCPR^[23].

Proportionate responses to defamation law, lying solely in the realm of civil law, should be looked at. To that end, civil remedies (correction orders and apologies), and other forms of compensation (the right of reply and/or resort to press councils)^[24] should be incorporated. If decriminalization is a far reached solution, Pakistan can restrict and clearly define the scope of criminal defamation similar to Finland who made imprisonment possible only in aggravated cases “for at most two years”^[25] and Latvia who made imprisonment possible only when defamation is carried out by means of mass media^[26] that is able to reach bigger audience through a range of outlets compared to social media. But even in the case of mass media, imprisonment can be considered as disproportionate because the sole purpose of some TV programs for example, is to exercise their “unwritten” checks and balances on the government.  Additionally, Pakistan should’ve moved towards restricting the right to proceed on the grounds of defamation to a person, strictly defined: as either a human being or a corporation unrelated to the State and not letting the public-at-large to complain regarding what they see as defamatory material pertaining to a public figure/public officeholder.

Regrettably, these issues are not exclusive to Pakistan. The International Press Institute (IPI) notes a ‘countermovement’ through which defamation laws around the globe are constantly being applied for ignoble reasons. They have been employed as tools to crush critical media, hide information, and quell investigations.^[27] However, to align the law in accordance with internationally accepted progressive measures, this authoritarian tendency must be overcome, and not through democratically deficient Ordinances.

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^[1] Encyclopedia Britannica (2022)

^[2] Prevention of Electronic Crimes Act 2016

^[3] Raza Khan, ‘Controversial Cyber Crime Bill approved by NA’ (Dawn, 13 April 2016) <https://www.dawn.com/news/1251853> accessed 28 February 2022

^[4] Section 4(f), Code of Criminal Procedure 1898

[5] Tahir Naseer ‘Court sentences Zahir Jaffer to death for murder of Noor Mukadam’ (Dawn, 24 February 2022)

^[6] Tarlach McGonagle, Marie McGonagle and Ronan Ó Fathaigh, Freedom of Expression and Defamation: A Study of the Case Law of the European Court of Human Rights (Onur Andreotti ed, Council of Europe Publishing 2016) 72

^[7] 2016 PLD 692

^[8] PLD 2015 SC 42

^[9] Christopher McCrudden, “A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights.” [2000] Oxford Journal of Legal Studies 532

^[10] [2005] 41 EHRR 200

^[11] [2005] 41 EHRR 29

^[12] [2011] ECHR 66

^[13] Resolution 1577: Towards decriminalization of defamation [2007]

[14] Scott Grifen, ‘Out of Balance: Defamation Law in the European Union’ (Barbara Trionf and Steven M eds, International Press Institute (IPI) 2015) 7

^[15] [1992] 14 EHRR 445

^[16] [2010] ECHR 977

^[17] [2000] 29 EHRR 705

^[18] Lesnik v Slovakia, unreported [2003]

^[19] This does not apply to individual members of such an authority who are the subject of defamatory statements.

^[20] Castells (n 16)

^[21] [1993] 1 All ER 1011 HL.

^[22] The Constitution of the Islamic Republic of Pakistan 1973

^[23] The International Covenant on Civil and Political Rights 1996

^[24] McGonagle, McGonagle and Fathaigh (n 7)

^[25] Chapter 24 Section 9, Penal Code of Finland Penal Code of Finland 1889

^[26] Section 158, Latvia Criminal Code 1998

^[27] Scott Griffen, n 14

Bibliography

Pakistani Cases

Liberty Papers v Human Rights Commission Pakistan PLD 2015 SC 42

Pakistan Broadcasters Association v PEMRA 2016 PLD 692

UK Case

Derbyshire County Council v Times Newspapers [1993] 1 All ER 1011 HL.

European Cases

Castells v Spain [1992] 14 EHRR 445

Chauvy and Others v. France [2005] 41 EHRR 29

Cumpănă and Mazăre v. Romania [2005] 41 EHRR 200

Janowski v Poland [2000] 29 EHRR 705

Lesnik v Slovakia, unreported [2003]

MGN Limited v. the United Kingdom [2011] ECHR 66

Vides Aizsardzibas v Latvia [2010] ECHR 977

Pakistani Legislation

The Prevention of Electronic Crimes Act 2016

Treaty

The International Covenant on Civil and Political Rights 1996

Secondary Sources

Griffen S, ‘Out of Balance: Defamation Law in the European Union (Barbara Trionf and Steven M Elliseds eds, International Press Institute 2015)

Khan R, ‘Controversial Cyber Crime Bill approved by NA’ (Dawn 2016)

McCrudden C, ‘A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights’ (Oxford Journal of Legal Studies 2000)

McGonagle T, McGonagle M and Fathaigh R Ó, ‘Freedom of Expression and Defamation: A Study of the Case Law of the European Court of Human Rights’ (Onur Andreotti ed, Council of Europe Publishing 2016)

Naseer T, ‘Court sentences Zahir Jaffer to death for murder of Noor Mukadam’ (Dawn 2022)

Potaraju, S., 2020. [image] Available at: <https://www.livelaw.in/columns/right-to-free-speech-versus-right-to-reputation-151647> [Accessed 16 March 2022].

Authors