Anti-fake news or anti-free speech? The debate over Punjab’s new defamation law

On May 20, the Punjab Assembly passed the Defamation Bill, 2024, with the stated aim to provide “protection from false, misleading and defamatory claims via print, electronic and social media against public officials and private citizens”. Critics believe, however, that the law’s real purpose is much more nefarious — that it actually aims to muzzle free speech and inhibit dissenting voices.

As we attempt to pick through the law’s merits and lacunae, let us begin by underscoring this basic principle — strengthening defamation laws must not be a not a tug-of-war between censorship and unfettered free speech. The former should never feature in a democratic society, while the latter can be addressed through appropriate mechanisms.

Unfortunately, in Pakistan, the state often uses the pretext of curbing fake news or online abuse to weaponise defamation laws against critics to intimidate, harass, and silence them. The Punjab defamation law, too, exemplifies this regressive approach.

Hasty regulation

Free speech is not absolute; it operates within a framework of checks and balances. Articles 4(2)(a) and 14(1) of the Constitution of Pakistan protect the reputation and dignity of individuals, while Article 19 guarantees freedom of speech “subject to any reasonable restrictions”.

However, these restrictions must be narrowly construed to avoid undermining the fundamental rights they are supposed to protect. Civil defamation laws in Pakistan often abuse this concept, being drafted in overly expansive terms that make a wide range of statements actionable as defamation.

The hasty manner in which the Punjab defamation bill was steamrolled, and the procedure prescribed in it makes obvious that the intent was never to address the shortcomings of its predecessor law, the Defamation Ordinance 2002, but to provide the government with toothier legislation to target dissent and free speech.

This is evident in the language of the Statement of Object and Reasons of the bill, which states that it protects “public officials” from defamatory claims as they “damage the reputation and image of public figures or the government by defaming, slandering, and libelling them”.

Further, the new law prescribes preferable treatment for holders of “Constitutional Office”, which has been defined in the law as, including other prominent positions, the Prime Minister, Chief Justice of Pakistan, and the Chief of Army Staff. While a defamation tribunal has been given jurisdiction under the new law, cases against the holders of the Constitutional Office are to be filed in the Lahore High Court. This disparity indicates that the grievances of the state and its citizens are not given equal status before the law. The former has been placed above the latter.

The issue of fake news is complex and has stumped political administrations across the world. It defies reason how the Punjab government can claim to address this issue when it drafted the bill and passed it in mere days without consulting any stakeholders. This omission is particularly glaring given that the mainstream and digital journalists’ community, a group that not only has credible insight on the topic, are the ones most likely to be targeted under the new law.

We have seen in the past how the actual perpetrators of fake news and hate-mongering operate unchecked while those committed to telling the truth are targeted under defamation laws. Hence, civil society organisations labelling the new law as “draconian” and a “curb on free media” is completely justified.

More specifically, the new law falls short of bringing specificity to the concept of ‘defamation’. Case law establishes that the following five factors constitute defamation:

• allegations should be false, baseless, and unfounded;
• allegations on the face of it should be defamatory or derogatory in nature;
• allegations should have been published in widely circulated newspapers or spoken in a large gathering;
• wording used should have been made with malice without reasonable cause and justification; and
• the allegations should have been directly attributed to the plaintiff.

All five factors require evidence to be cited. Therefore, summary procedure as prescribed in Section 11(1) of the new law is not desirable, particularly to prove malicious intent. On top of that Section 23 makes the Law of Evidence inapplicable to proceedings under the new law, Section 10(6) requires the defamation tribunal to decide the case in 180 days, and Section 15(1) allows the tribunal to issue a preliminary decree of a minimum of Rs3 million. Combined, these provisions show that the government is looking for expeditious conclusion of cases in a vengeful manner at the expense of undermining the constitutional guarantees of fair trial and due process.

Reminiscent of Peca

Criminalising defamation deters victims of sexual harassment and abuse from speaking out against their perpetrators, intimidates journalists into silence, and penalises political opponents, critics, activists, and citizens for expressing dissent. In this respect, the new Punjab defamation bill is not too different from the Prevention of Electronic Crimes Act introduced by the PML-N in 2016. Peca too had the stated aim of curbing harassment and hate speech, but its intended and actual effect was to crush dissent and free speech.

The PML-N government, during its previous tenure in the centre, used Peca to harass the PTI and its party workers. The law was also used against journalists critical of the military at a time when the national media was dominated by the Dawn leaks inquiry report.

The interior minister at that time, Chaudhry Nisar, had warned that “anti-institution propaganda would not be tolerated” and that defamation laws would be used against the perpetrators. Subsequently, the Federal Investigation Agency claimed that several “anti-army campaigners” had been identified. Members of the PTI social media team were arrested, while its party offices were raided, and equipment seized.

The roles were reversed when the PTI came into power in 2018. Workers and supporters of the PML-N were charged under Peca and the Pakistan Penal Code for allegedly running a smear campaign against state institutions such as the judiciary and the military. The PML-N also claimed that its party’s social media activists were being picked up and disappeared. The roles switched once again when the coalition government was formed in 2022, and politicians, and workers associated with the PTI started getting victimised under Peca.

The case of PTI leader Azam Swati is one such example. He was arrested by the FIA under Section 20 of Peca, as well as Sections 131, 500, 501, 505, and 109 of the PPC for making controversial posts about senior military officers, including the former army chief.

Interestingly, sections 10 (cyber-terrorism), 11 (hate speech), and 20 (offences against the dignity of a natural person) of Peca, which are frequently used by the state to charge individuals, do not cover comments or speech pertaining to public officials or institutions. But this has not stopped sitting governments from using them as a weapon against opponents and journalists alike. A first information report under the aforestated sections of Peca is often paired with sections 499 (defamation) and 505 (statements conducing to public mischief) of the PPC.

Previously, the FIA also frequently used to add Section 124A (sedition) of the PPC to the charge sheet, which criminalised criticism of the federal and provincial governments. But this was struck down by the Lahore High Court last year for being inconsistent with the Constitution. This decision came in response to several petitions filed by parties on the grounds that the law was being used by the government against political opponents and had a deleterious effect on free speech and dissent.

It is also time to repeal the criminal defamation laws under both PPC and Peca for being obsolete. This issue requires the immediate attention of the government. The passing of another dangerous law, which repackages the criminal defamation laws in civil garbs, is counterproductive at best and nefarious at worst.

How to actually address fake news

If the government is genuinely serious about addressing the menace of fake news, additional legislation is not the solution. Instead, a whole-of-society approach is needed to address the declining trust in mainstream media and the over-reliance on social media.

Fake news activities are not disorganised or sporadic. Rather, they are highly organised and systemic. So, it makes no sense for our approach to addressing them to be haphazard, untargeted, or ill-informed.

A whole-of-society approach requires the government, technology companies, news and media industry, educational institutions, and individuals to work in tandem and adopt a series of standard operating procedures. Such a multilateral approach is unlike the unilateral approach of the Punjab government in passing the new law.

The government must encourage independent and professional journalism. The world is complex and rapidly changing which creates anger and anxiety amongst people, who have to try and make sense of it. A healthy network of journalists free from external interference serves to alleviate such concerns and establish trust in society.

This also requires the government not to crack down on journalists, or impose censorship, which not only makes it harder for journalists to do their job but also creates space for misinformation to spread unchecked.

Educational institutions must prioritise coaching students in news literacy, which includes the ability to analyse information and be sceptical about what they read and watch. Individuals must ensure they consume their news from a variety of sources.

Technology companies also have a huge role to play. They must identify fake news through algorithms and crowdsourcing, reduce incentives for those who profit from disinformation, and improve online accountability by ensuring bots are eradicated and all users operate under their own name. The news industry must also focus on high-quality investigative journalism and call out fake news and disinformation as an industry practice.

The political leadership must stop fooling the public by using the term ‘fake news’ as a catchphrase to introduce self-serving and anti-free speech legislation. The Punjab government would do well to pay heed to the widespread criticism it has faced over this matter.