DEFAMATION

Well, in our country there is a trend of saying that if anyone states anything ill about any individual and things go wrong then without understanding the impacts and consequences, that individual wants to file defamation suits. In this digital era, it’s kind of sad that defamation is being used as a weapon more often than we think. The term defamation is marked by continuing conflict between the need to protect the privacy of human beings, on the other side the right to freedom of expression. In recent times defamation has become a huge topic of discussion as to its extent of applicability. 

The term defamation has been defined as ‘Publications of a false statement which might harm another person’s reputation which is without any justifications.’  The statement alleged to be defamatory must refer to the accuser. It is, however, not necessary to show that the defendant intended to refer to the accuser. Without lawful justification or excuse of a defamatory statement can be made, this is also a defamation called ‘libel’. Another type of defamation is called slander which is not actionable without proof of any kind of special damage to the accuser i.e libel (malicious written defamation) and slander (verbal false statements causing special damage). There is no distinction between spoken and written words in defamation cases in Bangladesh.

As per ‘‘Section.499 of the Penal Code 1860 of Bangladesh whoever by words either spoken or intended to be read, or by signs or by visible representation, makes on publishers 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.’’

Defamation can be civil wrong (with damages) and a criminal offence in Bangladesh. To prove defamation as a criminal offence the prosecution must demonstrate beyond reasonable doubt that the defendant committed defamation. Unlike many countries, defamation in Bangladesh is considered a criminal offence and not a civil wrong, moreover spoken and written words in the criminal law defamation, provided that the requirements under Section.499 of the Penal Code 1860 of Bangladesh above are satisfied. In case of punishment for the defamation ‘‘Section. 500 of Penal Code 1860 whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.’’  The statute of limitations for defamation is just one year if anyone makes any defamatory statement then the plaintiff has only a year to file a lawsuit.

A defamatory statement has the potential to harm another person’s reputation which could diminish that person’s standing in society and lead to that person becoming despised, ridiculed, feared, or scorned. In the workplace or employment defamation can harm interpersonal connection as well, the stress and mental trauma brought on by the defamation may cause the victim to feel alone or shunned by their peers, and they may also face difficulty in their personal relationships. It could be challenging for the victim to locate new employment possibilities if their reputation has been ruined as a result of workplace or employment. Employers could be reluctant to recruit someone with a tarnished reputation for fear that the consequences of the defamation may follow them to their new position. False claims made about the victim can get out there rapidly, ruining their reputation and making coworkers, superiors, and possible employers think poorly of them.

Nowadays with the ever-increasing use of internet it is much easier to make defamatory statements and social media like Facebook a defamatory statement happens more often than we think. Here one of the most important things we should know is that not all kinds of statements are not defamatory. The defamation concept is designed to compensate for damaging someone’s reputation. Defamation is not about hurting someone’s feelings; it’s about damaging that particular person’s reputation. It’s not defamation if it is true, some untrue statement or lies may serve as the foundation, fraud, business conspiracy, or other allegations, however posting humiliating information or someone with the same name as that person, it is better be that person or it is legally defamation.

In addition to factual rather than subjective, the statement had to be untrue. Regardless of how uncomfortable it may be for you, sharing a true story cannot be considered defamatory; it has to be demonstrated that the factual assertion is untrue.

People are so incredibly ignorant about freedom of speech. It is not about Right or Wrong, it is about giving equal platform to all humankind to speak and prevent power imbalance by not letting authority block or influence speech. Because no one can censor the opinions of an authority any way. The problem is that there is no way to measure hate speech. It would probably be logical to point out that these regulations exist to safeguard any individual’s reputations, in spite of the idea of press freedom of expression because the media’s right to publish is not absolute. 

A well-known case Johnny Depp vs Amber Heard which has been spread across all the social media platforms where the verdict of the trial brought truth to light. In effect both were found culpable to a degree of defaming each other and then they awarded Depp $15 million on damages from Heard, and awarded Heard $2 million from Depp. Many people in similar circumstances, when they have been unjustly accused of crimes only because of their race or gender where this case brings hope. This serves as an example of why the present social media paradigm of ‘guilty until proven innocent’ is dangerous and unfair

There are some defenses in the case of a defamatory statement such as, when a statement made for the benefit of the community, it does not constitute defamation. Also, when a public servant’s actions while doing his official’s duties are not subject to criticism when it is done in good faith. Likewise giving someone a warning against another person in good faith is not considered as defamation. Also, if anyone expressing an opinion about the merits of a matter that has been in good faith is not considered defamation.

In order to reduce false accusations and cases of defamations, strict investigations and impartial committees need to be established to enquire initially to reduce the burden of false cases. Defamation law should be kept but there should be a fine balance to prevent any misuse. Since we are so much into social media and therefore, we as a human are very conscious about our reputation, therefore defaming someone on a false basis can destroy a person so much that he/she can even end his/her life. If the freedom of speech comes with reasonable restrictions then the defamation cases will decrease. At the same time, we find that actual defamation suits are not filed and even if filed due to lack of proper findings and investigations gets quashed when the cases comes before the Higher Courts. Hence, the law is there but everything needs to be implemented accordingly.

Senior Partner of Equity LLP,  Barrister Sabrina Zarin has penned this article on BANGLADESH LEGAL TIMES on Defamation.