“To sin by silence, when they should protest, makes cowards of men” — said American author and poet Ella Wheeler Wilcox.
Freedom of speech as a basic human right has received recognition over centuries and across borders. England’s Bill of Rights granted ‘freedom of speech in Parliament’ in 1689 which continues to this day. The Declaration of the Rights of Man and of the Citizen adopted during the French Revolution in 1789, affirmed freedom of speech and expression as an inalienable human right. Article 11 of the Declaration states that: “The free communication of ideas and opinions is one of the most precious of the rights of man.” Today the right to freedom of speech or expression is documented in various international and regional human rights laws including Article 19 of the Universal Declaration of Human Rights, Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights and Article 9 of the African Charter of Human and People’s Rights. Freedom of speech is thus well acknowledged as fundamental to any democracy.
“And yonder sits the Fourth Estate, the most important of them all…,”said Edmund Burke, in 1787, as he looked towards the Press Gallery in The House of Commons.
An indispensable part of the freedom of expression is press freedom. Thomas Jefferson, the third American President and a spokesperson for democracy, famously stated :“the only security of all is in a free press.”Jefferson went so far as to say that given a choice between government and newspapers he wouldn’t hesitate to choose the latter. Perhaps Jefferson went a little too far, however, no one can deny that a free and fair media is the cornerstone of any democracy. Media influences public opinion and promotes open debates on issues of public concern which are vital to democracy. It seeks to ensure an important balance of powers between the Legislature, the Executive and the Judiciary, A free press is therefore crucial in the shaping of a healthy democracy.
We are witness to a scenario in our country India, where people question the very justification for laws on defamation. The statute provides for it. Both in civil as well in criminal laws. In this election season, we find allegations being met with threats of defamation suits as a face-saving device to stave off an embarrassing situation into which the target has found itself. The target may be apersonality or a party/institution. Obviously the perpetrator making allegations is exercising his/her Fundamental Rights enshrined in Article 19 of the Constitution of India. The pertinent point is whether the Right to Freedom of Speech is exercised in a reasonable manner or not. It is implied that the target has to have a degree of fame in order to suffer stigma by defamation.
Persons or organisations which do not attain eminence are not subjected to derogatory allegations to lower the target in the esteem in the public eye. The person suffering the injury must prove that such defamatory statement was made with malice, transgressing the test of reasonableness of exercising Freedom of Speech. Journalists are protected to certain extent by privilege. But such privilege is qualified and lost on proof of malice. Defamation cases must be filed within one year of the actionable statement to be admissible by a court. But the tardy progress of such suits lead many to question the effectiveness of the law of defamation.”
No freedom is absolute. Thus, Article 19 of the International Covenant on Civil and Political Rights states that the exercise of the right to freedom of expression carries “special duties and responsibilities” and may therefore be subject to certain restrictions, including “respect of the rights or reputation of others”. Without a doubt, an appropriate balance must be drawn between the human right to freedom of expression, guaranteed in UN and regional human rights instruments as well as nearly every national constitution, and the need to protect individual reputations, also recognised by international human rights associations and the laws of sovereign countries around the world. Antidefamation laws pursue the legitimate aim of protecting the reputation of others.
The Constitution of India allows the imposition of reasonable restrictions on every fundamental right including the right to freedom of speech and expression. Thus, Clause (2) of Article 19 of the Indian constitution enables the legislature to impose certain restrictions on free speech under various heads. While the constitution of India does not specifically mention the freedom of press, courts have clarified that freedom of press is implied within the fundamental right to freedom of speech and expression under the Article 19(1)(a) of the Constitution. Thus freedom of the press is subject to reasonable restrictions under the Article 19(2) including defamation. In a dubious attempt to achieve this balance, India has criminalised defamation through Section 499 of the Indian Penal Code and online defamation through the more recent Information Technology Act, 2000. In addition civil remedies are available under the law of torts.
“Defamation is an act of impiety” — said Sir Kristian Goldmund Aumann, in his book “The Seven Deadly Sins” expressing a thought that today appears somewhat ancient. Flowing perhaps from this very thought, most countries across the world have protected an individual’s right to reputation through criminal defamation laws making the offence of libel punishable with jail terms.
Increasingly however, criminal defamation laws are being condemned by international opinion all over the world. That jailing journalists is an affront to free speech is a growing belief. While in practice, in a great majority of countries where criminal defamation laws existed, criminal penalties were rarely applied to defamation, press freedom advocates across the world believe that mere existence of these laws has a “chilling effect” on free speech and therefore a truly democratic state ought not to retain criminal defamation laws.
The United Nations Human Rights Commission cites the use of criminal penalties for defamation as a key indicator of nations that largely reject the right to freedom of expression.
The Council of Europe supports the growing international demand to decriminalise defamation and European countries are gradually doing away with their criminal libel laws. The Secretary General of the Council of Europe has denounced threats of prosecution for libel as “a particularly insidious form of intimidation”. The United Kingdom, hitherto known as the “libel capital” of the world where powerful business houses from anywhere in the world could bring libel cases on websites, recently repealed its criminal offences of libel. Press freedom advocates called them “unjust and unjustifiable laws …used to censor and persecute writers and journalists.” In Ireland, the Minister of Justice decided to decriminalise defamation in early 2008. The reform of criminal defamation provisions has been discussed in France since December 2008 following the shocking arrest of a Liberation journalist who had earlier been convicted for defamation. The President of France announced in January 2009 in Paris that defamation should be decriminalised.
After their transition to democracy, Bulgaria, Croatia, the Former Yugoslav Republic of Macedonia, Montenegro, Romania and Serbia decided not to sanction libel with imprisonment, but with a fine or corrective labour. In 2011, Montenegro did away with criminal libel altogether. In Philippines, the Senator has recently pushed for decriminalization of libel. In Bulgaria a reform process of sorts is under way. Many other European countries are actively engaging in the process of reform though at a slow pace.
In the United States, while imprisonment for press offences fell into disuse a long time back, prosecution on criminal defamation charges remained common. In 2004, a landmark ruling by the InterAmerican Court of Human Rights led a number of politicians in the region to consider reforms that would abolish criminal libel laws. In the Caribbean, an ongoing effort to do away with criminal defamation laws led to the States of Colorado, Grenada and some states in Mexico wiping off libel entirely from their criminal law books.
A bill to partially decriminalise defamation in Trinidad and Tobago has received final parliamentary approval. In Canada, following a case of two editors facing prison sentences for posting reports in which local community representatives blamed deforestation and other environmental damage in the Guerra area on a multinational’s activities, the Canadian Parliament has been urged to decriminalise media offences. In other parts of the world, many countries such as Ghana (2001), Sri Lanka (2002), Maldives (2009) and more recently Bahrain, have passed important amendments that decriminalized defamation.
In India, they say, “publish at your own peril!”
It is no secret that defamation laws in India have often been misused to harass journalists with cases slapped on them in courts in far off places in the country where they are forced to appear in person. This often leads to suppression of legitimate public interest stories. The closure of one of the most reputed weeklies “The Illustrated Weekly” at the altar of anti-defamation laws and the recent Penguin withdrawal of the book ‘The Hindus’ are cases in point.
The Los Angeles Times recently wrote: “India’s constitution enshrines free speech, but its laws against defamation and upsetting the public order are broad, leading a growing number of publishers — storied houses such as Penguin Books India included — to shy away from books that carry even a whiff of controversy.”
While many of the world’s most progressive countries have done away with their archaic defamation laws and many are actively engaging in a reformist agenda, Indian defamation laws continue to sit in the Criminal law books, relics from the country’s colonial past. Experts clearly admit to the need for abolishing these laws in India. Eminent jurist, Fali S. Nariman, referring to the vindictive onslaught of the Government on the Indian Express during the emergency, in his memoirs ‘Before Memory Fades’, says: “(Ramnath) Goenka (founder of the paper) faced the Emergency of June 1975 with grit and determination. For the entire period that it lasted he stood erect and defiant, a towering figure–the symbol of the free press in India. During the Internal Emergency, the Express group of newspapers faced criminal prosecutions all around the country.
“While the book does not mention it, in this onslaught of prosecutions, the archaic criminal defamation laws of the country that managed to survive their colonial lineage even after India attained freedom, came handy.
Nariman goes on to say “Invariably, the magistrates would not dispense with the personal appearance of the managing director, and Ramnathji spent most of his waking hours shuttling from one place in India to another, dutifully putting in his personal appearance before the courts across the country….”
Speaking in the same context during an interview to the Indian Express published in the Sunday issue of June 27, 2010, answering the author’s question as to why – despite the world sitting up and taking notice of the need to do away with criminal defamation laws – India still held on to hers, Nariman had this to say: “It [defamation] should be decriminalised because it is a great source of harassment … . Nothing is being done about it in India. You can be sure that Section 499 of the Indian Penal Code is not going away…”
Practising Counsel Nachiket B. Joshi, who has spent a lifetime defending editors and journalists against defamation charges, also called “quicksilver in the court room” by Shekhar Gupta, Editor-in-Chief, Indian Express, in his recent book “Anticipating India,” has this to say on the subject : “Certain avocations by their very nature make the persons involved such as journalists or public spirited individual sparticularly susceptible to charges of defamation. In such cases, the ‘deterrent’ effect of criminal punishment results in great loss to society.
“Secondly, defamation is essentially a wrong against an individual and does not fall in the category of serious offences against society at large. Criminal jurisprudence that has evolved in recent times has lowered the standards of proof applied to such offences from “proof beyond reasonable doubt” down almost to a “preponderance of probabilities”. Thus, seen through the prism of reality, while a defamation trial takes the form of a criminal trial, in substance it is essentially a civil trial resulting ultimately into an anomalous criminal punishment. While I am not advocating that people be permitted to defame others with impunity, all I am saying is that more reliance needs to be placed on the civil process for righting the wrong caused by defamation for more reasons than one.”
Thus, an appropriate balance between the right to freedom of expression and the need to protect individual reputations can, and indeed must, be achieved through a more liberal judicial use of civil remedies, stricter media self-regulation and increased role of the Press Council to ensure that journalists discharge their duty to act in good faith and provide accurate, trustworthy information protecting individual reputations, without having media professionals serve jail terms along with common criminals.
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