Disparaging words tarnish the dignity of an individual and rot his sociality. To protect the reputation of an individual, Pakistan enacted the Defamation Ordinance in 2002 (hereinafter “2002 Ordinance”) that codifies the pre-existing civil law of defamation. The 2002 Ordinance primarily deals with the nature of defamation, defences, jurisdiction, and damages. This article demonstrates that, despite the clarity of the 2002 Ordinance on these issues, there is a lack of consistency in the judicial interpretations of these provisions. This lack of clarity is particularly visible when Pakistan’s approach is compared to the approach of the English courts to defamation claims.
First, the article discusses the judicial system of Pakistan and its precedent system to introduce the Pakistani legal system and to generate a sense of the evolving nature of defamation law. In particular, the article highlights the fact that there are still two fora for defamation cases, allowing ample room for varying judicial interpretation of defamation law. Then, the article surveys the judgments of Pakistani courts rendered on the 2002 Ordinance to analyse the characterisation of defamation by the courts, demonstrating that the Pakistani courts have not adopted a consistent approach to define when the tort of defamation occurs, whether it is actionable per se or not. Next, the article evaluates Pakistani courts’ approaches to certain defenses, observing that the courts treat certain defenses as complete defenses to defamation rather than merely mechanisms for limiting damages. Finally, the last section of the article explores the Pakistani courts’ approach to the award and quantification of damages and suggests that Pakistani courts have not established a practicable method for the quantification of damages.
In each of these evaluative sections, this article provides a comparative study of Pakistani and English defamation law on defamation. This comparative study finds that Pakistani courts can learn lessons from English courts.
The legal system of Pakistan is founded on the common law system employed in England. The courts in Pakistan are classified as superior and subordinate courts. Article 175(1) of the Constitution of Pakistan from 1973 established the superior courts—constituting the Supreme Court of Pakistan, one High Court for each Province, and one High Court for the Capital Territory of Pakistan. Article 227 of the Constitution establishes the Federal Shariat Court. The subordinate judiciary is the lower judiciary including Criminal and Civil courts.
The Supreme Court of Pakistan (SCP) is the apex court of Pakistan established under Article 176 of the Constitution. SCP consists of the Chief Justice of Pakistan and sixteen judges appointed by the President of Pakistan.
SCP hears cases pursuant to its appellate, original, and advisory jurisdiction. Appeals from the decisions, orders, and sentences of the High Courts go to the SCP. SCP exercises its original jurisdiction in public interest matters suo moto and over disputes between the Federal and any provincial government or between provincial governments. Through its advisory jurisdiction, SCP also advises the President regarding any question of law, and the President can seek advice from SCP.
The Federal Shariat Court (FSC) was established for the Islamization of Pakistani Laws and to check whether or not any provision of law is repugnant to the Quran or Sunnah. FSC examines all laws except the Constitution, procedural laws, and Muslim personal laws. FSC consists of eight Muslim Judges, including a Chief Justice, who hold three-year terms. FSC may exercise suo moto powers over a petition of the citizenry FSC, and can examine the record of any criminal suit by invoking its revisional jurisdiction.
There is a High Court in every province and the Capital Territory of Pakistan. Every High Court has a Chief Justice, and its judges are appointed by the President of Pakistan. High Courts of Pakistan have both appellate and original jurisdiction. Under Article 199 of the 1973 Constitution, High Courts exercise original jurisdiction over matters of fundamental human rights.
The subordinate courts are constituted at the district level and are categorised as Civil Courts and Criminal Courts. The Criminal Courts at the district level are recognised under section 6 of the Code of Criminal Procedure and are classified as Sessions Courts and Magistrate Courts. However, Section 3 of West Pakistan Civil Courts Ordinance from 1962 establishes Civil Courts and categorises them as district courts, additional district courts, civil judges courts, small causes courts, and special courts.
SCP’s decisions on questions or principles of law are binding in Pakistan. Under Article 189 of the 1973 Constitution, final decisions of SCP, whether reported or unreported—including ratio decidendi and obiter dicta and excluding only interim orders—are binding on all superior and subordinate courts, including High Courts and the Federal Shariat Court. In addition, the judgment of the larger bench of SCP is binding on its smaller bench. For instance, the three-member bench of SCP is bound by the decision of the five-member bench. In contrast, the decisions of foreign courts are persuasive but not binding precedent, unless such decisions are contrary to Pakistani laws or decisions of its superior courts.
Although the Federal Shariat Court is bound by SCP, the Federal Shariat Court’s decisions are binding on all High Courts and lower courts of Pakistan. Similarly, the decisions of the High Courts based on questions or principles of law are binding on the lower courts. The verdict of one High Court is binding on another division’s High Court, and the smaller bench is bound by the decision of the larger bench. For example, a single-member bench is bound by the decision of a two-member bench, and a two-member bench is bound by the decision of a three-member bench. However, an equal-member bench has no power to override a prior decision of the same-number bench.
Before enacting the 2002 Ordinance, the civil court had general jurisdiction to try defamation cases under section 9 of the Code of Civil Procedure from 1908 (CPC). That section provides as follows: “The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognisance is expressly or impliedly barred.” However, section 13 of the 2002 Ordinance confers special jurisdiction on the district court to try defamation matters. Section 13 of the 2002 Ordinance provides: “The District Court shall have the jurisdiction to try the cases under this ordinance.”
Whether the conferment of special jurisdiction on the district court implies the exclusion of general jurisdiction of the civil court has generated some controversy. In2006, Shafqat-ur-Rehman v. Daud-ur-Rehman, Peshawar High Court interpreted section 13 of the 2002 Ordinance as impliedly barring the jurisdiction of any other court from hearing defamation cases and conferring exclusive jurisdiction on the district court. However, in 2008, the Sindh High Court, in Raees Ghulam Sarwar v Mansoor Sadiq Zaidi, stated that, since there is no ouster clause in the 2002 Ordinance barring the general jurisdiction of the civil court, the jurisdiction of a civil court to try defamation cases is still intact with that of the district court. Therefore, the claimant has the right to choose between civil court under CPC and district court under the 2002 Ordinance for a defamation case.
In 2015, SCP in Zulfiqar Cheema v. Farhan Arshad Mir, without explanation, resolved the jurisdictional conflict by upholding the stance of Sindh High Court and determining that the jurisdiction of civil court is concurrent with that of the district court. This decision of SCP does not seem to be in line with the doctrine of repeal, more specifically implied repeal, that when two laws stand side by side on the same subject matter and are in conflict or inconsistent with each other on a single point, causing inappropriate consequences, then the new law will be considered to have repealed the older law to the extent of the conflict, and a special law will override a general law. Express words repealing the old and general law are not required to effectuate an implied repeal. Rather, a special law that aims to deal with a particular subject, such as one that creates special liabilities, has a special procedure, or provides special remedies, is assumed to have displaced a general law on the subject. For instance, in Industrial Development Bank of Pakistan v Allied Bank, SCP affirmed that any law providing a general procedure and conferring general jurisdiction to a court on a certain subject would be displaced with an enactment providing for a special procedure and conferring special jurisdiction to any special court. In the face of a clearly established and fully followed doctrine of implied repeal, it is not clear why SCP ruled as it did in Zulfiqar Cheema and why SCP did not instead consider the general and former law of section 9 of the CPC to have been repealed by the special law of section 13 of the 2002 Ordinance, especially when maintaining concurrent jurisdictions would facilitate inappropriate forum shopping and undue confusion.
In England, the High Court has jurisdiction to try defamation cases. In Mole v. Hunter, a libel counterclaim was raised in the county court. The case was transferred to the High Court, as section 15 of the County Court Act of 1984 (hereinafter 1984 Act) provides general jurisdiction to the county court to hear all tort claims except libel and slander. However, in light of section 40 of the 1984 Act, the High Court may transfer defamation claims to the county court. Civil Procedure Rule 30.3 provides for the transfer of claims, but the transfer of defamation claims from the High Court to the county court occurs very rarely in practice. Davies v. WM Morrison is the only case in which a defamation claim was transferred to the county court from the High Court.
There is no jurisdictional conflict over defamation claims among the English courts. Usually, the High Court tries the claims of serious defamation; however, the small defamation cases are transferred to the county court.
The civil tort of defamation occurs on the publication of baseless, fabricated, and unfounded defamatory content against a person, injuring his reputation in society. Pakistani courts assume an element of malice, although it is not clear whether malice is sine qua non to prove the commission of defamation. The publication of the defamatory statement may be in either of two ways: verbal (e.g., oral, written) or visual. There are two kinds of defamation: slander and libel. Slander occurs verbally through uttering derogatory statements or using symbols, indicators, or gestures. Libel occurs through a written or visual defamatory publication by any media source, including through words, texts, images, and other printed material. For instance, in Dil Jan Khan v. Muhammad Younis, the court held that the claimant, a doctor by profession, was defamed when he was called characterless and non-professional in a newspaper without any justification.
There are three essential elements for the tort of defamation under the 2002 Ordinance. First, for a statement to qualify as defamatory, the claimant’s name must be mentioned, and the statement must directly implicate him. For instance, in Independent Media Corp. Private Ltd. v. Ali Azmat, the defendant called the anchorperson of a television channel disloyal and dishonest. The channel owner instituted a case of defamation, contending that the derogatory remarks had also lessened the reputation of the channel owner and the media house. The court rejected the channel owner’s claim, as there was no mention of his name in the statement at issue.
Second, defamation requires publication, meaning that the defamatory statement must be communicated to at least one person other than the claimant. Therefore, no defamation occurs if the defamatory comment is uttered only to the claimant, or if the claimant himself circulates the defamatory statements in public. In Trust Securities and Brokerage Limited v. Sibitual Husnain, for example, the court held that the claimant was not defamed by the notice sent by the defendant for payment of a debt balance of some amount that the claimant himself read publicly.
Third, the defendant must be the originator of the defamatory statement. Section 2(dd) of the 2002 Ordinance defines the term “originator” as an “initiator of the defamatory statement or any other defamatory act.” In Khalid v. Shakil, the defendant received an email from a journalist that was defamatory to the claimant’s character and then forwarded it to the claimant. The court held that if the journalist’s email was libelous, it was the journalist and not the defendant who had committed libel because the latter was simply a recipient and not the originator of the email containing the defamatory statement.
English law of defamation is codified as Defamation Act 2013 (hereinafter the “2013 Act”), which contains a series of modifications of common law principles and statutes that unduly shelter the integrity and reputation of an individual at the expense of others’ “freedom of expression.”
The scope of a potential fourth essential element for defamation—reputational harm—is a subject of great confusion in Pakistan. An analysis of Pakistani and English approaches to defamation demonstrates that Pakistan is not alone in experiencing uncertainty in the judicial application of defamation statutes. Although the statutory provisions of both jurisdictions dealing with this aspect of defamation are clear, and in fact take different approaches, the judicial interpretation of these provisions has created confusion and ambiguity.
Under the 2002 Ordinance, the tort of defamation becomes actionable upon the publication of the defamatory material. That is, damage to the subject’s reputation is assumed upon circulation of the defamatory statement. Section 4 of the 2002 Ordinance provides: “The publication of defamatory matter is an actionable wrong without proof of special damage to the person defamed. Where defamation is proved, damage shall be presumed.” A straightforward application of this provision can be seen in Liberty Papers Ltd. v Human Rights Commission of Pakistan. In that case, the defendant portrayed the claimant in a newspaper as an arouser of violence and hostility in the country. Without requiring any proof for special damage, the court held that the claimant was defamed.
However, despite clearly delineated law on this point, Pakistani courts have deviated from this principle in several ways. In Faqir Muhammad v. Muhammad Shakil, the Lahore High Court held that where a party has no actual reputational harm, it could not be defamed even if the material would otherwise be considered defamatory and has been circulated publicly. In that case, the court seemed to accept the defamatory nature of the defendant’s statement but did not award damages, because the defamatory statements did not lessen the claimant’s reputation. Similarly, in Ghulam Qadir v Muhammad Ali, the defendant called the claimant a blackmailer, habitual litigant, harasser, and land grabber. Still, the Baluchistan High Court held it not to be defamation because the claimant did not have a good reputation in society already. He was a lawyer who, the defendant argued, used a fake power of attorney and was involved in frivolous litigation, so he could not be defamed by such advertisement. The court held that someone without a good reputation before the otherwise defamatory statement could not be defamed.
In a 2019 decision, Independent Print Ltd. v Lachaux, SCP explained that slander is actionable per se only under certain conditions, indicating that actual harm is required for other forms of slander. Specifically, SCP held:
Defamation actionable per se comprised, in addition to all libels, four categories of slander which were assimilated to libel on account of their particular propensity to injure the claimant’s reputation. These categories were
1. words imputing criminal offences;
2. words imputing certain contagious or infectious diseases; and
3. words tending to injure a person in their office, calling, trade or profession.
4. words imputing unchastity to a woman.
Prior to this SCP precedent, at least two High Courts similarly limited the scope of actionable slander by evaluating whether the claimant suffered any actual harm from the defamatory statements, thus not recognizing a tort of slander per se. For example, in Faqir Muhammad v. Muhammad Shakil, the claimant asserted that the defendant committed libel by forwarding a derogatory application to a district police officer in which the defendant called the claimant a professional thief. The claimant further stated that the defendant committed slander when he circulated the same slanderous allegations in the locality against the claimant. After verifying the libel and holding it actionable per se, the Lahore High Court nonetheless held that slander is not actionable per se. It further held that, in cases of slander, a claimant must prove damage to his reputation through compelling evidence and witnesses. Peshawar High Court also took the same approach in Rashid Khan v. Bashir, where the defendant publicly alleged that the claimant was involved in the trafficking of women.
These decisions of the High Courts were inconsistent with Section 4 of the 2002 Ordinance, which makes defamation actionable without differentiating between slander and libel. The assessment of whether the claimant’s reputation is lessened or if the claimant had any respect in society before the defamatory statements violates this provision of law by requiring proof of actual harm. In addition, SCP’s confinement of actionable slander per se to certain situations similarly contradicts section 4 of the 2002 Ordinance by refusing to recognize slander per se as actionable.
English law has also codified a definition of defamation, but it is one quite different from that of Pakistan. The 2013 Act introduced the requirement of serious harm for considering any publication as defamatory. English law thus provides for a statutory “serious harm test” for defamation. Section 1 of the Defamation Act 2013 states: “[A] statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.” The serious harm to reputation will be reduced if a defamed person has a bad reputation or has no respect in society.
This “serious harm” test has been applied to libel and to some extent to slander. In Cooke v MGN Ltd, for example, the claimant was called a slum landlord in a newspaper, where he was described as benefitting from his tenants by leasing substandard properties to them. The court required proof of serious harm to the claimant’s reputation to satisfy the requirement of section 1 of the 2013 Act. Similarly, in 2019, Lachaux v Independent Print Ltd, the Supreme Court declared that libel is not actionable per se overall.
However, the court observed that before the enactment of the 2013 Act, slander was actionable per se in the following categories:
(i) words imputing criminal offences,
(ii) words imputing certain contagious or infectious diseases, and
(iii) words tending to injure a person in his or her office, calling, trade or profession.
The Slander of Women Act 1891 added (iv) words imputing unchastity to a woman.
The court reasoned that section 14 of the 2013 Act deals with the law of slander and that section abolished two of these four categories as slander per se, regarding unchastity of a woman and slander imputing a contagious or infectious disease, requiring proof of special damages for each of these claims. The remaining two categories survive as actionable per se and do not require proof of damages. This articulation in Lachaux of the two forms of actionable slander per se has been consistently followed by the English courts, such as in James Hodges v Christopher Naish and Dhir v Saddler.
The division of actionability of slander per se by the Supreme Court—authorizing two forms of slander per se without any proof of harm, but requiring proof of harm for all other forms of slander—contradicts section 1 of the 2013 Act, which requires proof of serious harm for both slander and libel.
Section 5 of the 2002 Ordinance provides several defences to the publisher of defamatory publication: tendering a proper apology, absolute or qualified privilege, fair comment in matters of public good or interest, and consent of claimant for publication.
In Pakistan, a proper apology is generally considered a defence to defamation such that it can eliminate liability. In England, in contrast, an apology can serve as a mitigating factor and decrease the amount of damages if it is tendered publicly.
Pakistani Courts accept an apology as the defence when all the requisites of proper apology are satisfied. In the Pakistani legal regime, an apology can take one of two forms: proper or improper. A proper apology is published voluntarily and in good faith, along with the prior defamatory content in its contradiction. Such an apology is published in the same way, prominence, and in the same place where the prior defamatory publication was made.
These characteristics differentiate a proper apology from an improper one. For instance, an apology published without the defamatory material complained of is not a proper apology. Nor is an apology not made in good faith. In Muhammad Aslam and others v. Khawaja Abdul Manaf and others, the Lahore High Court, by terming the appellant a habitual apologiser, stated that the apology from the appellant was improper because, in the past, whenever appellant had made wrong or scandalous publications, he tendered an apology. In addition, an apology published on the court’s order is not a proper apology. However, in some cases, a court may accept an apology published at its direction to lessen the amount of damages. In Rao Dil Jan Khan v. Younis, for example, the publisher defamed the claimant by calling him characterless and non-professional. The court directed the defendant to give some amount as financial damages and to publish a proper apology because the apology functions to dilute the harm to the claimant and therefore the amount of his damages.
English courts consider an apology tendered either voluntarily or at the direction of the court to be a mitigating factor that lessens the amount of damages. The apology must be tendered by making reasonable corrections in the defamatory statement and publishing it in the same manner as the defamatory statement. However, before tendering an apology, such a defence must be offered to the claimant, who must accept that offer. Once an apology has been offered and accepted, English courts evaluate whether compensation to an aggrieved party should be paid or not. An apology will reduce the amount of damages.
In the Pakistani legal regime, fair comment with an essence of serving the public interest is considered a defence when the publisher has not published it to take any personal revenge on the claimant. The defendant has to establish the fairness of his publication by demonstrating that such publication is an opinion and not a mere assertion of facts; is not an unverified publication; is not based on malice but rather is published in good faith; and contains no malicious facts. The defendant invoking this defence must fulfill all these conditions. In Aziz v. Pakistan Television, the court did not accept the defendant’s defense of fair comment where the defendant averred that the statement was made based on the claimant’s conviction before the National Accountability Bureau. The court held that the publication was unverified and was based on a conviction; the stance of the defendant was that the publication was an opinion and fair criticism to expose the corrupt and criminal essentials of society.
In English law, while determining whether the publication circulated is in the public interest, the courts consider the publication’s subject matter, context, circumstance, tone, timing, effectiveness, and seriousness. Media is not the only sector that can enjoy the defence of public interest, but every defendant can use such a defence. The courts are obliged to consider and grant the defence to every defendant who satisfies the criteria.
Pakistani courts have not established a practicable method for the quantification of damages for defamation claims. In contrast, the English courts have described several reasonable methods for quantification of general damages.
Damages in defamation are compensatory and are not punitive. They are classified as “general” or “special” and are awarded according to the facts and nature of the case. General damages need not be specifically pleaded. They accrue from the injury or wrong complained of and are awarded to compensate for mental teasing, pain, or agony of the claimant. In Mudasser Iqbal Butt v. Shauqat Wahab and others, the court awarded general damages of one million PKR to the claimant as the defendant called him a corrupt health inspector in three newspapers. Special damages, in contrast, are awarded to compensate for the actual financial loss suffered by the claimant. The claimant must plead them specifically and must prove every loss incurred due to the defamation. For instance, any inconvenience from the defamation that the claimant suffered and proven during the court proceedings will entitle him to general damages. In contrast, out-of-pocket expenses, which the claimant sustained as a result of the defamatory statement, are special damages. In this way, special damages aim to restore the claimant’s pre-defamation financial status. In Ali v. Network Television Marketing Pvt. Ltd., the defendant circulated a documentary material saying that the claimant sells poison in the name of edibles. The claimant sought ten million PKR as special damages, contending such publication caused the loss of his clients. The court stated that special damages are awarded for monetary losses, such as loss of income, profession, and trade, and that the loss of clients is not considered a financial loss.
With respect to determining the amount of general damages, Pakistani courts have not taken consistent approaches, and instead have noted that these damages are not measurable with accuracy because there are no methods or yardsticks to measure the value of human reputation and the quantum of damage afflicted thereto. Prior to the 2002 Ordinance, SCP held that the quantification of general damages is within the court’s discretion and depends on the facts of each case. The 2002 Ordinance did not provide any way to quantify general damages. As a result, Pakistani courts have resorted to different methods to quantify general damages.
Some courts have simply reasoned that it is within their sole discretion to determine general damages, and decide an award amount without explanation. As one example, in Abbasi v. Hajano, the claimant claimed damages of 6.06 million PKR and the mark-up at the rate of fourteen percent per annum from the date of the institution of the suit until the ruling. The court awarded compensatory damages of 1.5 million PKR and simple interest at the rate of ten percent from the date of the decree until the realisation of the decretal amount. The court stated that the exact value of damages is always unknown to the court; hence, the court assumes losses according to its discretion. The court did not explain what parameters it used in exercising its discretion, and it is not clear what parameters are available to regulate a court’s exercise of discretion.
Some Pakistani courts have stated that they employ the same method to quantify both general and special damages, such that general damages correspond to the quantum of damage suffered by the claimant. It is not clear how the value of reputation and the amount of damage conveyed to such reputational harm would be ascertained by the court for the accurate quantification of general damages when using this approach. However, in 2021, in Munawar Ahmed v Muhammad Ashraf, SCP signaled that determination of the damage suffered by the claimant may be the appropriate measure for general damages. In Munawar Ahmed, SCP stated that the quantum of damages must be equal to the magnitude of suffering faced by the claimant, and the claimant has to prove the magnitude of suffering. SCP further held that a court must not allow the claimant to make a profit on his reputation by getting an excessive amount of general damages.
In the absence of more concrete guidance, other Pakistani courts rely on decisional case law, binding or otherwise, to determine general damages amounts. Applying this method, courts compare the facts of the case in hand with the facts and imputations of prior cases. If the defendant has pleaded no defence, then a significant amount is awarded. Courts taking this approach tend to rely only on factual comparisons, rather than comparisons of methodology.
Finally, some Pakistani courts quantify general damages based on the defendant’s financial strength or the claimant’s social status. Determining the financial stability of the defendant seems irrelevant, but, in the absence of further guidance, it is one potential measure upon which courts determine the amount of general damages.
In contrast to general damages, special damages are precisely measurable and are awarded rationally and reasonably. To obtain special damages, the aggrieved party must prove actual financial loss. In Liberty Papers Ltd. and others v. Human Rights Commission of Pakistan, the claimant asserted compensation of one hundred million PKR as damages when the defendant portrayed the claimant as arouser of ferocity and hostility in the country. The court awarded 5 million PKR as special damages to the claimant on the ground that defamation affected the income of the claimant.
The 2013 Act has not provided any method for quantification of damages, but the English Courts have evolved the method for awarding damages by introducing several modified methods for assessment of general damages to provide the best framework of defamation law.
In Barron MP v. Vines, the High Court identified several considerations to guide the quantification of general damages. Barron provides a clear roadmap to lower courts on how to approach damages. First, courts consider the gravity of the defamation, that is, the extent to which it affects the claimant’s personal integrity, professional status, honor, courage, and loyalty. Second, courts consider the extent of publication of the defamatory statement; for instance, circulation of the publication to millions has much more potential to cause reputational harm than the circulation to just a handful of people. Third, courts consider the conduct of the publisher, that is, whether the publisher was apologetic, has regretted the circulation of such defamatory publication, or refuses any retraction. On this factor, courts take into account any unapologetic conduct of the defendant-publisher, such as insulting the claimant during cross-examination and causing further injury to the claimant. Fourth, courts consider evidence of the scale of the claimant’s reputational harm, such as how significantly he was shunned, avoided, criticized, or taunted. Fifth, courts consider the impact of the publication: what is standing of the claimant before and after publication; the extent of the publication’s impact depending on whether the publisher is well-known as having authority and credibility; how much the defamatory publication has exposed the claimant’s identities; and the propensity of derogatory publications to networking sites or in the eyes of society. Finally, courts consider the contextual background of the claimant. For example, if the defendant proves that the defamed person had a bad reputation, such that the defamatory statement would not materially reduce his reputation, he may be awarded a more moderate amount of damages.
Through this framework, the English courts tie general damages to the mental suffering of the claimant and the intentions of the defendant, relying on evidence of the extent of the mental intrusion, severity, and gravity of the defamatory statement, the breadth of circulation of the defamatory material, and the amount of malice. This approach is comparatively more objective than that taken by Pakistani courts, which operate with little to no guidance on what factors to consider in quantifying damages.
The 2002 Ordinance sought to bring clarity to Pakistan’s defamation laws. But two decades after its promulgation, it has not borne its expected fruits. This uncertainty is due to the inconsistent and sometimes ambiguous judicial interpretations of the provisions of the 2002 Ordinance. There is much that Pakistani courts can learn from the English approach to defamation, which could create greater certainty and predictability in defamation claims.
As a threshold matter, the retention of the civil court’s jurisdiction to hear defamation claims does not serve any significant societal need; instead, it has sometimes led to confusion and uncertainty. To eradicate this concern, applying the doctrine of implied repeal by conferring exclusive jurisdiction would bring certainty to the legal landscape on defamation.
Substantively, the Pakistani courts’ interpretation of the 2002 Ordinance could benefit from some of the uniformity seen in the English courts’ interpretation of its statutory defamation law. For example, Pakistani courts have not consistently recognized slander and libel per se as actionable claims, as they are under the 2002 Ordinance. Instead, Pakistani courts have rendered inconsistent and confusing decisions about when reputational harm is required for a defamation claim. English law, in contrast, consistently imposes the “serious harm” test to determine if a defamation claim is actionable. To bring certainty, Pakistani courts may either follow section 4 of the 2002 Ordinance and treat both libel and slander actionable per se or may apply some test like the English courts’ “serious harm” test.
With respect to defenses, Pakistani courts recognise public interest and good faith as valid defences, but the English courts’ attitude is more objective in discouraging defamation at the cost of such defences. In the eyes of Pakistani courts, the proper apology can set a defendant free from liability for defamation, while English courts merely lessen the amount of damages on tendering of a proper apology, with the remaining liability still imposed on the defendant. The approach of the English courts may be better when a mere apology is insufficient for redressal of grievances of the defamed party. Along with an apology, some monetary compensation is an appropriate remedy for reputational damage.
The issue of quantification of damages is a complex and evolving concept. Currently, Pakistani courts utilise passive approaches to quantify the damages from defamation. In contrast, English courts often employ judicious and sound methods for assessment of general damages. Under English law, the mental suffering of the claimant, among other considerations, provides a more objective determinant for the quantification of damages.
