How to Avoid

Defamation
Media Managers Guide to Pakistani Broadcast Law

Media Managers Companion Series

Internews Pakistan

How to Avoid
Defamation
Media Managers Guide to Pakistani Broadcast Law

Researched by

Muhammad Aftab Alam

Matiullah Jan

This guidebook for media managers was made possible through support
provided by the Mission to Pakistan of the U.S. Agency for International
Development, under the terms of Award No. 391-A-00-03-01002-00. The
opinions expressed herein are those of the author(s) and do not necessarily
reflect the views of the U.S. Agency for International Development.

Media Managers Companion Series

Internews Pakistan

This guidebook is produced by

Internews Pakistan
2004

CONTENTS

Introduction
Chapter 1. What is defamation?
- Definition
- Any action
- False statement
- False representation
- Verbal
- In writing
- Visual
- Reputation of person
- Injury
- Publication/Broadcast
- Circulation
- Necessary parties to defamation suit

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4
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Chapter 2. The procedure

Part I: Defamation as criminal case
- Filing of complaint
- Jurisdiction of the court
- Preliminary examination of complainant and complaint
- Cognizance of offence
- Investigation or enquiry
- Issuance of pro cess
- Trial of the case
- Framing of charge
- Collection of evidence and examination of witnesses
- Arguments and pronouncement of judgment
- Appeal, reference and revision

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Part II: Defamation as civil case

- Defamation notice
- Response to the notice
- Consulting and hiring of lawyer
- Suit for defamation and jurisdiction of the court
- Registration of suit

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Appointment of pleader or advocate

Appearance of parties in the court of law
Written statement
Settlement (framing) of issues
Issues
Onus of proof
Production, impounding, return and calling for of documents
Summoning and attendance of witnesses
Adjournments
Hearing of the suit
Examination of witnesses
Arguments
Judgement and decree
Appeal

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Chapter 3. Defense against defamation charges

- Freedom of expression
- Truth or justification
- Fair comment
- Privilege
- Absolute privilege
- Qualified privilege
- Privileged communication
- Permitted statement
- Apology
- Printing of correction

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Chapter 4. Penalties
- Criminal penalties
- Imprisonment and fine
- Civil remedies/Punishments
- Apology
- Publication of truth
- Monetary fine
- Imprisonment
- Execution of decree

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Chapter 5. Contempt of court law

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What is contempt of court?

Civil contempt
Action against civil contempt
Criminal contempt
Action against criminal contempt
Judicial contempt of court
Action against judicial contempt

How the courts proceed in contempt of court cases

- Notice
- First hearing
- Right to cross-examine

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Defense against contempt charges

- Fair comment
- Fair reporting
- Innocent publication
- Protected statements
- Substantial detriment
- Apology
- What if found guilty: the right to appeal

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Chapter-6. How to avoid unnecessary litigation

- Headlining a story
- Language
- Reliable sources
- Off-the-record & on-the-record
- Recording, filming, and making notes
- Right to reply
- Documentary evidence
- Personal stakes
- Knowledge about Pakistani laws
- Legal consultants

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Chapter-7: Conclusion

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Annexure

PAKISTAN

Introduction
The book you hold is the second guidebook produced by Internews
Pakistan, as part of its Media Managers Companion Series. This fresh volume
explores the intricacies of defamation and contempt laws of Pakistan. One
may recall that the first handbook of the series focused liberalization of
electronic media and the broadcasting laws in Pakistan.
These guidebooks aim at helping build an open, diverse, and socially
responsible broadcast media. Being handy and practical, these guidebooks
make it easier for local journalists to understand their legal rights and
responsibilities. In an easy-to-understand language and format it is explained
in the following pages how media men should take recourse to justice as and
when the situation arises. Understanding your legal rights is now even more
important considering the outbreak of private broadcast sector in Pakistan.
The evolving regulatory laws will have profound impact on the countrys
media and journalists.
The present volume opens with basic definitions of defamation and
contempt laws of Pakistan, as they existed in December 2003. In Chapter 1 the
concepts of defamation has been explained. It also sheds light on the main
parties in a defamation suit, like plaintiff and defendants that may also include
the editor, reporter and the publisher.
In Chapter 2 an effort has been made to explain the procedural norms of a
defamation case in two parts. Part 1 deals with the court procedure involved in
a defamation case filed under criminal procedure . Part 2 addresses defamation
charges pressed under civil laws. Both sections explain various stages of the
case proceedings starting from receiving a notice to the stage of
decree/judgment by the court and the right to appeal.
Chapter 3 looks at defenses available to the journalists against defamation
charges. In chapter 4 penalties, punishment and amount of damages claimed
and decreed are discussed. This is followed by Chapter 5 that focuses
defamation of judges in other words the contempt of court laws of Pakistan.

The chapter sheds light on the procedure involved and defenses available to
journalists in such cases besides how to avoid contempt charges in the first
place.
In the same fashion, chapter 6 is all about prevention rather than cure as
far as the defamation laws are concerned. How to avoid defamation in the first
place is the focus of this chapterthe dos and donts of journalism.
Considering that the laws explained herein would keep incurring changes,
the guidebook must be read in conjunction wi th any change in the law that has
occurred since its publication. Internews Pakistan encourages the use of this
manual as a reference guide and not as replacement of the actual laws. The
organization will do its best to keep these manuals updated to reflec t any
changes in the law.
Internews Pakistan recognizes the efforts of the Government of Pakistan
in opening up the broadcast media sector for private ownership. In order to
strengthen this endeavor, Internews is implementing a media assistance
program in Pakistan to support the fledgling FM radio sector and other media
outlets by offering legal, technical, editorial, and management training.
Our objective is to ensure that skilled, independent, and financially viable
media outlets exist, especially in the broadcast sector, and are able to provide
the citizens of Pakistan with quality news and entertainment programming.
A strong and vibrant independent media must understand and conform to
the media laws of the country they work in. Therefore Internews Pakistan has
established a media law and advocacy department, which is offering legal
support to Pakistans burgeoning private media sector. In addition, the law
department has a resource center being established to cater to the information
needs of media lawyers, broadcasters and the regulator.

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Chapter 1

What is defamation?
Any wrongful act or publication or circulation of a false statement or
representation made orally or in written or visual form which injures the
reputation of a person, tends to lower him in the estimation of others or tends
to reduce him to ridicule, unjust criticism, dislike, contempt or hatred shall be
actionable as defamation.
Defamation Ordinance 2002
The definition above applies to person(s) either defamed or who may
have attempted to defame others. It is all encompass ing in the sense that it
generally holds for everyone residing in the country. The media commits a
defamatory act by propagating false statement(s) to a wider audience. The
offence may take any form irrespective of whether the defamatory words have
been published or broadcast. This means that even an act or unpublished
statement can prompt a defamatory suit. Only a court can then decide on its
merits.
Defamation can take two forms in legal sense, namely slander and libel.
Slander is a false oral statement or representation that may not have been
published. In case the same is published both the publisher and reporter can be
accused of libel. By definition, libel a false written statement amounting to
defamation of another person. It also includes documentary or visual
statement or representation made either by ordinary means or expression or by
electronic or other modern means or devices that amounts to defamation. The
libel therefore can be a statement printed, broadcast or telecast. The person
who made the statement may be charged for committing slander.

Explaining defamation
The defamatory words or actions have to be wrongful to be challenged in
the court of law. How to defend against defamation is explained in the
following chapters. But before that journalists should remember the basic
definition of defamation outlined as follows.

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1.

Any action
Conversation of a journalist before his colleagues, or any of his act or

actions, which have bearing on the reputation of another person all may
constitute defa mation. This may also include certain questions in a press
conference not phrased in a temperate language or any physical act or gesture
that may bring disrepute to another person. (See also No. 9
Publication/Broadcast of the same section)

2.

False statement
The condition of being wrongful is a basic one. You have to be factually

as well as legally incorrect to be wrongful. Once the defamation suit is filed

the court of law determines the truthfulness of a statement. At times false
statements published in a section of the press go unnoticed for many reasons.
Some statements cause the party in question to react with different facts and
figures and prove that the statement made or published is a false one. To cater
for such a possibility journalists must get th eir information verified through
different sources. For instance, while writing an article he should be sure
about the authenticity of the facts and figures he is producing to substantiate
his view on a subject. This can be done either by acquiring relevan t
documents or cross checking the data through other sources.
Another example illustrates a press conference where a politician levels
allegation against his political rival. Now the allegation may be a false one.
The beat reporters thus have to cross che ck and verify the claims made by the
politicians before they report the event. Mere attribution in such a case will
not work, especially if the event was aired or published for wider
consumption. Doing so would bring responsibility to the broadcaster or
publisher and even the reporter. A reporter therefore should always double
check the authenticity of his report before it goes into printing

3.

False representation
Unpublished conversation can be an example of representation. This may

include a representation by a subordinate before a higher authority against

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another of his superiors. This again is an issue of representing the facts. False
representation may also include a journalist introducing himself with false or
wrong identity, like claiming to be representing someone with intentions to in
fact bring a bad name to that someone through certain actions. Again a false
representation of facts against another person will not be reported, published
or broadcast unless the media organization accepts the partia l responsibility of
propagating the same at a wider scale

4.

Verbal
The person accused of making defamatory statement is described in law

as the author. Author means the originator of the statement, who might have
made the statement verbally or in writing through a press release or a
journalist reporting the same.
There may be times when there is no written or recorded proof of a
defamatory statement made. The defamation suit can still be filed against any
person, including journalist. Journalists norma lly think that it is just what they
publish which matters. This is not so because even the words they utter in a
private company carry legal consequences. As stated earlier the defamation
laws even though media focused are basically applicable to all citizens,
particularly those who are fond of leveling unsubstantiated allegations in
public and even in private. So a verbal statement made can also invite
defamatory suit on the basis of a witness who can tell the court that the same
statement had been made by one person against the other. Therefore,
journalists have to be very careful not just about what they write but also
about what they say in the company of others. This is important not just to
avoid legal prosecution but also to retain a degree of credibility and
impartiality in the eyes of public. The same holds good both for the print and
broadcast media people, the print as well as the broadcast journalists.

5.

In Writing
This is the most important type of defamatory communication relating to

anything in written or published form. The published form includes even the
broadcast that has gone on air, a record of which is every radio station bound

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to keep. Once again, besides the published newspaper reports written

statements, on paper or now on e -mail too, can also become primary evidence
in a defamation suit.
In newspapers or even the broadcast news the choice of words that
convey the crux of a story as a headline or introduce a story as an intro
becomes crucial and sometimes a determining factor in a defa mation case. For
example to headline a corruption arrest by saying Mr-A has been arrested for
corruption and to say, Mr -A has been arrested for alleged corruption are
two different things. The first proposition, if headlined, can invite a
defamation suit, particularly if later on it is found by a court that Mr-A was
innocent. So the second proposition of saying Mr -A has been arrested for
alleged corruption, is a safe game to play. Similar approach should be
followed in the mai body of the story as well.
In such a case, however, it is not just the reporter, who will be questioned
as a respondent but also the desk editor and even the editor who approves the
headlines. Similar care should be taken even while quoting allegations of, lets
say, one politician against the other and then the judgments of the court in
such corruption cases. The corruption cases before the court even when
decided by a lower court, are considered to be a matter pending before court
or a subjudice matter, wherein the accused sha ll be allowed to exhaust all
forums of appeal up to the supreme court, and the review options, before he
can be reported by the media as some one convicted for corruption. Before
that happens the person will remain an accused for the purpose of reporti ng
however the fact of his being convicted by the lower court and that he has the
right to appeal can be mentioned. Therefore, while reporting on such court
cases due care has to be taken to avoid a defamation suit being filed by the
persons who are accused in corruption cases.

6.

Visual
Visual medium is the most powerful of all in its impact and influence on

the minds of people and therefore, its potential of doing a greater damage to a
defamed person if due care is not taken in the choice of images. This relates to

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both television and print where visuals or still photographs form an integral
part of news reports and articles. The caricatures and cartoons of individuals
also say a thousand words, which at times, even a lengthy and most well
written article cannot do.
A camera does not lie, but at times it only shows you a part of the whole
picture, and some times just one side of the whole story. Indeed,
photographers crave for rare scenes but when such scenes are published or
telecast out of context, they may become misleading and defamatory. That is
where the words take over from images to tell the people the complete story,
the context, before they go away with a wrong impression about the people
who are subjects of the visuals. It is here that the captio n of a photograph
becomes important, as it must eliminate the possibility of a picture carrying a
misleading impression.
The reporter should also be careful about the type of activities of the
people being filmed. For instance showing a film wherein a pro testor is
carrying abusive slogans against a person or making derogatory signs with
hands for a particular person, all this will be considered defamatory and the
film producer may become a respondent in a suit. Similarly, any sound, funny
or otherwise that will quickly remind people of a person being ridiculed or
insulted and therefore defamed, is also a subject of the defamation
proceedings. These sounds may be of electronic devices, like distorting the
sound of a person to ridicule him. For instance to tu rn a male sound into a
female one or vice versa, through technical means, and the person who has
been ridiculed considers it derogatory, a suit may lie.
Similarly, the caricatures of important personalities, conveying a political
satire, should not cross the limits of decency and ensure that their physical and
personal disabilities do not become a matter of ridicule in public. This
however does not mean that prominent political personalities cannot be
portrayed in a lighter vein reflecting the existing political controversies. As a
matter of fact the cartoons and caricatures are only effective when their
subjects are prominent public faces and personalities, other than the

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caricatures of ordinary faces representing common people, which we call as

Awaam.

7.

Reputation of person
This is the most basic element of a defamation suit. Every citizen has the

right to good name that is known as reputation. In legal sense the reputation of
a person is not just about what the person is but all about how he is looked at
by the public at large. This also gives rise to the question about the extent a
defamatory statement or action has changed the views of public about that
person. Therefore, once a defamation suit is filed the court does determine
through evidence the le vel and kind of reputation the plaintiff enjoys and then
the extent of damage done to it.
All this does not however mean that journalist cannot do investigative
reporting about well-reputed people. This does however mean that extra care
should be taken and maximum evidence should be collected before reporting a
story that may damage, though rightfully, the reputation of a person. In fact in
calculating and at times awarding the damages the reputation of person
becomes an important factor. Like more famous a defamed person is greater is
the amount claimed in damages and likely to be decreed.

8.

Injury
Injury can be defined as the damage done to the reputation of a person on

the basis of which the court of law ascertains the amount of damages to be
paid by the accused, if found guilty. While even an ordinary citizen can cause
injury to somebodys reputation through private conversation or a speech
before a limited audience, it is always a journalist who has the power to cause
greater damage because he is the one who by publishing it multiplies the
damage by spreading the news to a far greater audience, though as a duty,
through his media organization.
The extent of injury caused is normally considered to be directly
proportional both to the existing level of fame the plaintiff enjoys, and the
number of people that story has the potential of reaching out to. So bigger the

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media organization and bigger the name of celebrity, bigger can be the amount
of damages decreed, once the defamation is established. However, public
figures, like politicians and actors, are also to a great extent considered being
the public property and therefore liable to face public scrutiny in their lives, a
defense argument that will be discussed in the chapter about defenses
available to journalists in defamation cases.

9.

Publication/Broadcast
This condition relates to media organizations wherein the statement

alleged to be defamatory may also have to be published in the newspaper or

broadcast before it can be produced as evidence in the court of law.
Under the law the publication means the communication of the words to
at least one person other than the person defamed. This includes a newspaper
or broadcast through the internet or other media that will be explained
subsequently.
The law defines a newspaper as a paper containing:
a. Public news or intelligence
b. Occurrences
c. Remarks or observations
d. Advertisements,
The above contents have to be printed for distribution to the public. The
newspapers have to be published periodically. This al so includes such other
periodical works as the Federal Government may, by notification in the
official Gazette, declare to be newspaper.
Under the law it is not just the reporter but also the publisher or the editor
who shares the responsibility of having caused defamation of a person, if the
court finds it to have taken place. In case of a radio station, the licensee, the
producers or the editors will share similar responsibility.
The law defines an editor as a person who has the power to allow or stop
the publication or broadcast of a statement, someone having editorial or
equivalent responsibility to take the decision to publish or circulate it.
The law mentions author, editor, proprietor or publisher of a newspaper,
the owner of a broadcasting station, an officer, servant or employee of the

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newspaper or broadcasting station as possible respondents in a defamation

suit.
The law defines a publisher as someone who is a commercial publisher
and it is his business to issue material to the public and who issue s material
containing the defamatory statement in the course of that business.
Under the law the act of broadcasting a defamatory statement will be
deemed to have been resorted to, if carried out through the following methods.
a.

Through signs

b.

Signals

c.

Pictures

d.

Sounds, including those of electronic devices

The above-mentioned actions if conveyed and received by the public

through following media can become a subject of the defamation suit.
a.

A form of wireless radio-electric communication

b.

Radiotelegraph

c.

Radiotelephone

d.

Cables

e.

Computer

f.

Wires

g.

fiber-optic linkages

h.

laser beams

A statement once published or broadcast will be considered to have

caused the damage to the person filing the suit. The publication of defamatory
matter is an actionable wrong even without proof of any special damage to the
person defamed. Defamation once proved, the damage shall be presumed to
have been caused.

10.

Circulation
If you know that the contents of a newspaper or a broadcast programme

are false and defamatory but you go ahead and distrib ute the same then you
are liable to charged with defamation. In such a situation even a hawker
distributing a newspaper with a false story can be made a respondent in a
defamation suit, but then that hawker can always prove his ignorance on the

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grounds of his being uneducated and unable to read and write. The fact that a
hawker is not supposed to read all the newspapers before distributing them is
also a valid defense.
In fact the circulation of a newspaper is also factor in determination by
the court of the extent of damage done to a defamed person. Basically, the
circulation factor comes into play if a person is privately distributing a hand written or printed pamphlet knowing fully well that it contains defamatory
material. Similarly, a printer can also be charged of defamation if he is
printing the same material, with full knowledge of its content.

Necessary parties to defamation suit

Journalist should also know as to who all are the people/players in a
defamation suit so that they ensure that all sides express their views for a just
conclusion to be reached by a court of law. The necessary parties to a
defamation suit are as follows:
1.

Plaintiff, who moves the court claiming to have been defamed

2.

Defendants, which may include following people

a.

The person who makes the disputed statement

b.

The reporter who reports the same

c.

The editor, who is alleged to have either approved or ignored it

d.

The publisher or the licensee of a radio station

Starting of with the plaintiff, a court cannot take suo moto notice of a
defamatory statement unless the person defamed moves the court against it.
Similarly, no person can file a defamation suit on behalf of the person
originally defamed, who can however authorize anyone to do so.
As regards the defendants, t hey are severally as well as jointly responsible
for the defamatory statement. For example a politician who makes a speech
filled with allegations against his political rival has a responsibility as well as
the reporter who reports the same without verifying the allegations, and the
editor who approves the story for publication and ultimately the publisher or
the radio licensee who employees them.
In the absence of the above parties the defamation case is not
maintainable. At times it is up to the plaintiff to decide if he wants to make

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one of or all of the above defendants as party but then the court can summon
anyone which it deems as a necessary party to the suit.
As per the defamation ordinance 2002 the Federal Government was
supposed to issue a notific ation in the official Gazette laying down rules and
procedures to for the enforcement of this ordinance. This however has not yet
happened and therefore the procedure explained in the following chapters is as
per the existing Civil Procedure Code (CPC) under which the defamation
cases had been heard since the British rule.

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Chapter 2

The procedure
In Pakistan the criminal law for defamation is codified and embodied in
Pakistan Penal Code (PPC) 1860. The Defamation Ordinance 2002 governs
civil liability for defamation to pay damages but the provisions of the
Ordinance do not p rejudice any action for criminal libel or slander under any
law for the time being in force including PPC. It is important that the
difference between a criminal case and civil suit founded upon libel is not
merely of form but one of substance. The purpose of this chapter is to explain
the procedure involved in a criminal case of defamation and a defamation suit.

Part I
Defamation as criminal case
Filing of complaint
A person allegedly be defamed by any statement can file a complaint in
the court. The defamation case can be initiated only on private complaints. In
some special case where the alleged defamations is against the President,
Prime Minister, a Federal Minister, Minister of State, Governor, Chief
Minister or Provincial Minister, or any public servant employed in connection
with the affairs of the Federation or Province, the Public Prosecutor shall have
power to file complaint.

Jurisdiction of the court

In ordinary cases, Judicial Magistrate 1st class has power to entertain the
complaints of alleged defamation. In special cases where alleged defamations
is against the President, Prime Minister, a Federal Minister, Minister of State,
Governor, Chief Minister or Provincial Minister, or any public servant
employed in connection with the affairs of the Federation or Province, the
court of Sessions has authority to take cognizance of the complaint. The court
of Session shall not take cognizance of the complaints if the complaint is filed

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after six months from the day of commission of alleged defama tion. On
receipt of the complaint, the court shall fix the date for recording of
statement/preliminary examination of the complainant.

Preliminary examination of complainant and complaint

The court has to be satisfied that fact(s) listed in complaint, prima facie
constitutes the alleged offence. On the day of hearing the judge examines the
complainant on oath to judge the truthfulness of complaint. The examination
of complaint is not a mere formality, as the result of this examination enables
the magistrate to determine whether he will put the machinery of the criminal
court in motion. It is of the essence that in order to constitute an offence of
defamation it must be communicated to third person because what is intended
by imputation is to arouse the ho stility of others.

Cognizance of offence
After the preliminary examination, the court will decide whether the
offence reported in the complaint is cognizable. If the court finds that there is
no sufficient ground for proceeding, it shall dismiss the comp laint. The
preliminary examination, therefore, if properly made, will frequently result in
the summary dismissal of a complaint and save an innocent person from the
trouble and annoyance of appearing at the bar of a criminal court. On other
hand, if the court considers that there is sufficient ground to proceed further, it
will proceed further.

Investigation or enquiry
The court will refer the complaint for investigation or enquiry to
concerned police station after taking its cognizance. The police shall submit
its findings in the alleged case to the court on the day fixed by the court. On
the basis of finding of police the court will decide to initiate the proceedings
of the case.

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Issuance of process
At this stage, the first and foremost function in cri minal proceedings is to
produce or cause to appear the person accused of defamation before the court
of law. The court will issue notice to the accused to appear before the court
and defend the case. If the accused fails to appear before the court on the d ay
fixed for case, it can issue warrant of arrest to bring the accused before the
trial court. The defamation is a bailable offence and the accused can apply for
bail as a matter of right to the police officer or the court. The police officer
can release t he accused on the furnishing of surety bond in such cases. If the
accused is released on bail, he shall be bound to appear in the court on the
days of hearing. Otherwise, his bail can be cancelled and he may be put
behind the bars.

Trial of the case

The trial of criminal case means the proceeding that commences when the
case is called on with the Judge on the bench, accused in the dock, and the
representatives of the prosecution and defence present in the court for hearing
of the case. It has different s tages, which include the framing of charge,
collection of evidence, examination of witnesses and, arguments and
judgment. The accused has a right to be defended by the pleader at the time
the proceedings are actually going on. Pleader is a lawyer authorised by the
accused to represent him in the case before the court to defend him. If the
accused is in the custody of the police he should have reasonable opportunity
of getting into communication with his legal advisor for the purpose of
preparing his defence. The accused should also be given access to legal advice
even while he is in police custody. Prior to the initiation of formal trial, the
accused shall be provided with all relevant documents including copy of the
complaint and statement of complainant and witnesses if any.

Framing of charge
When the accused appears or is brought before the court, the Judge
frames a charge in writing against the accused. A charge is a full notice, in a

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clear statement, to the accused of particular of the offence, which the accused
is charged with. A charge in legal language is a precise formulation of the
specific accusation made against a person who is entitled to know its nature at
the earliest stage. In response to the charge, the accused pleads guilty or not
guilty.
The court shall read and explain the charge framed to the accused and he
shall be asked whether he pleads guilty or he has any defence to make. If the
accused pleads guilty and accept the charges, the Judge can decide the case
and convict him on the basis of such guilty pleading. If the accuse pleads not
guilty the court is bound to proceed with the trial.

Collection of evidence and examination of witnesses

If the accused does not make any admission at the time of charge, the
court shall proceed further. The court shall hear the complainant and take all
such evidence as may be produced in support of the prosecution. It is the duty
of the prosecution to call all those witnesses, commonly known as
prosecution witnesses, who prove their connection with the matter related to
prosecution. The court may issue summons to any witness directing him to
attend the court or produce required documents. The court shall record the
statement(s) of witness(es) and readout the same to the accused. The court
shall also provide copies of these statements to the accused. The evidence of
prosecution will be closed with the statement of prosecution to close the
evidence of prosecution.
After the closing of prosecution evidence the court shall ask the accused
that whether he wants to give statement on oath and to produce evidence in his
defence. If the accused answers in affirmation, the court shall hear the accused
and take all such evidence as he produces in his defence. The court is bound to
examine all defence witnesses produced by the accused.
After recording of prosecution and defence evidence, the court shall
proceed further to examine the witnesses. A witness is first examined by the
party who called him; this is called Examination-in-chief or direct
examination. Next he is examined by the adverse party; this is called Cross

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examination. Lastly, he may be re -examined by the party who called him for
clearing up some ambiguity. The evidence of defence will be closed with the
statement of defence to close the evidence of defence.
Examination-in-chief is the examination of a witness by the party who
calls him. The object of this examination is to get from the witness all the
material facts within his knowledge or such of them as he can testify to
relating to the case.
Cross-examination of a witness by the adverse party i.e. the party
oppose to the one that calls him. The object of cross -examination is to sift the
examination and seek the truthfulness of the case.
Arguments and pronouncement of judgment after the examination of
witnesses and collection of the evidence, the court gives an opportunity to the
representatives of both prosecution and accused to argue on behalf of their
respective sides. After hearing the councils of both prosecution and accused,
the court can pronounce the judgment on same day. As result of the
judgement, the accused shall be freed if he was found innocent. But in case
the court found him guilty, he can be either put behind the bars or asked to pay
fine or damages.

Appeal and revision

The word appeal means the right of carrying a particular case from a
subordinate court to superior court with a view to ascertain whether the
judgment is sustainable. Appeal is a creature of statute and only exists where
expressly given. In case of defamation, t he parties can file an appeal with
court of Sessions against the decision of Judicial Magistrate. Moreover, the
parties may appeal to the High court in the case originally tried and decided
by the court of Sessions. If the trial court has imposed fine on a ccused or asks
him to pay damages, the payment of fine or damages shall be stayed till the
final decision of appellate court.
During the proceedings of the case, if accused feels that there is some
irregularity in the proceedings of the case or finding, s entence or order of the
Trial court is illegal or improper, he can move next higher court to enquire

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into the matter in order to satisfy itself as to the regularity of any such
proceedings. This move is called revision petition. Thus, even if the
petitioners are not aggrieved persons, the higher court i.e. court of Sessions in
case of Judicial Magistrates and High court in case of court of Sessions is
competent to examine the matters in exercise of its revisional power.

Part II
Defamation as civil case
Prior to 2002, the civil liability for defamation to pay damages was not
governed by any statute law but was determined with reference to the
principle of justice, equity, and good conscience. The promulgation of
Defamation Ordinance 2002 provides statutory provisions to file a defamation
suit in the court of Law. The Ordinance, in addition to Code of Civil
Procedure, also provides some procedure for filing and disposing off the suit.
Following is the details of proceedings of a suit for defamation.

Defamation notice
To invoke the provisions of Defamation Ordinance 2002, the person
allegedly defamed is required to give notice to the person who has committed
that alleged defamation. If for instance Mr. A is allegedly defamed through a
published statement of Mr. B and intends to file a suit for damages against
him, he is required to give legal notice to Mr. B in this regard. Without duly
serving the notice, Mr. A cannot file suit for damages against Mr. B. The legal
notice should be served upon Mr. B within t wo months after the publication of
the defamatory matter has come to the notice or knowledge of Mr. A. The
notice shall also mention that Mr. A is intending to bring legal action against
Mr. B due to the defamatory matter complaint of.

Response to the notice

While responding the notice, Mr. B can raise one or more of the defences
discussed in chapter 3. To avoid litigation, he can offer to apologize and
publish it in case of unintentional publication of the statement. He can also

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offer to print a correctio n in the same manner as the original defamatory

statement was. If Mr. B does not respond the notice in the manner discussed
above, Mr. A can file a suit for damages against Mr. B.

Consulting and hiring of lawyer

Prior to response the notice, journalist (Mr. B in the above case) should
discuss the matter with a competent senior lawyer. The contents of every
notice can vary from case to case and the journalist should, while responding
the notice, specifically respond to only those facts which are mentioned in the
notice. The journalist should keep the copy of the notice for future reference.
This notice may, if required, be produced before the court in this or any other
case. It is important to note that the journalist should not be panic from the
amount of damages claimed through the notice or through the civil suit. It is
for the courts to decide about the amount of damages claimed keeping in view
the circumstance of the case and nature of damage caused to other party.
It is helpful to response the notice through the lawyer. While consulting
or hiring a lawyer for response to defamation notice or appear in defamation
case, the journalist should discuss every minute details of the matter and
should not hide any thing. This will help in establishing his defen ce. In
addition, the fee of lawyer should be clearly determined and agreed upon
between the parties.

Suit for defamation and jurisdiction of the court

On failing to get mere response or satisfactory response of the notice
within fourteen days, the person allegedly defamed i.e. Mr. A in abovementioned case, can file a suit in a court of Law. An action for defamation
against the person i.e. Mr. B in above mentioned case shall be taken within six
months after the publication of the defamatory matter came to the notice or
knowledge of the person defamed. Only District Judge has jurisdiction to try
the cases of defamation under the Defamation Ordinance 2002. The court is
under statutory obligation to decide the case within a period of six months.
The suit for defamation starts with the lodging of statement of claim in
the appropriate court. The person lodging the statement is called the Plaintiff

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and statement of the plaintiffs claim is called Plaint. Plaint is a written

memorial tendered to a court in which the plaintiff sets forth the cause of
action and seek judgement and relief from the court.
Prior to the filing the suit, it is necessary to evaluate the suit for the
purpose of court fee. The amount of court fee is to be computed on the basis
of amount claimed and in manner prescribed in the Court Fee Act. For
example, in Islamabad Capital Territory there is no court fee for filing suit for
damages below Rs25000. If the amount of damages is Rs25000 or above the
amount of court fee will be calculated in the manner prescribed in Court Fee
Act. Maximum court fee in Islamabad can be Rs3000.

Registration of suit
After the suit has been instituted, the court shall cause all particulars of
the suit to be entered in the Register of Civil Suits. After the suit has been
registered the first date will be fixed. It will be the duty of the plaintiffs
counsel to take necessary steps for getting summons issued on the
defendant(s), the person against whom the suit is filed. In case of defamation
the author, editor, proprietor or publisher of a newspaper; the owner of a
broadcasting station; an officer, servant or employee of the newspaper or
broadcasting station; or any other person can be parties to defamation suit as
defendants. The court shall order the defendant(s) to produce all documents
(in his possession or power) upon which he or they intend to rely in defence.

Appointment of pleader or advocate

Both plaintiff(s) and defendant(s) have right to present their case in the
court of law without hiring any lawyer. If any of the parties wants to be
represented by a lawyer, he can also appoint a lawyer or advocate to
representing him in the court. Every appointment of pleader shall be filed in
court. Such appointment shall remain enforce till the end of proceedings o f the
case unless the client or pleader die or client decides to change him. A counsel
has implied authority to do whatever he considers best for his client.

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Appearance of parties in court of law

If the defendant or his lawyer fails to attend the court in tentionally or
without lawful excuse on the day fixed for hearing and mentioned in the
summons the court can decide the case forthwith passing the decree against
the defendant. It is important to note that the decree passed at this stage due to
non-appearance of the defendant can be appealed only and cannot be set aside
like ex-parte decree.

Written statement
Written statement is a concise statement in writing filed by the defendant
in answer to averments in the plaint. As a substantial part of the pleadin gs it
constitutes defence of the defendant(s) in the suit. It should be verified on oath
or solemn affirmation. The defendant must produce with the written statement
the documents on which he bases his defence and file a list of such documents
on which he relies.
The defendant shall submit his written statement within the period
prescribed by the court. If the court does not mention the date for filing of
written statement, the defendant can submit it before first hearing. It is
important to note that the period allowed for filling the written statement shall
not ordinarily exceed thirty days. Where the defendant fails to present the
written statement within the time fixed, the court can close the defence and
pronounce judgement against him. The decree can be appealed and cannot be
set aside.
The defendant must specifically plead all necessary facts and points of
law in his written statement ensuring that plaintiff is not taken by surprise.
The plaintiff must have an opportunity to explain his position on an y new
issue raised. Defendant will not be entitled to raise a plea in the arguments that
he has not taken in the written statement.

Examination of parties at first hearing:

After the defendant has submitted the written statement, the court may, in
some cases, to clear up the pleadings by viva voce examine the parties. The
examination is known as Better Statements of the Parties. The purpose of

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better statements is to draw out and ascertain the real points in controversy
with definiteness. It is an examination, by the court only, of any party to
answer material question at the first hearing. There can be no cross
examination by the other side. The court shall also at first hearing ascertain
from each party or his counsel whether the allegations in the pla int or written
statement as are not expressly or by necessary implication admitted or denied
are admitted or denied. If any party or his counsel fails to appear before the
court on the date of hearing without lawful excuse, the court can pronounce
judgement and pass a decree against the party. On passing of such decree, the
party at default can only file appeal to next higher forum.

Settlement (framing) of issues

After the written statement has been filed and pleading of both parties
have been cleared up by examination of the parties, it is now time to settle the
issue i.e. to determine the material points in controversy between the parties.
Framing of issues is an exercise calculated to aid the administration of justice.
The determination of issues has an important bearing on the trial and decision
of the case because it is the issues and not the pleadings, which indicate the
appropriate evidence to be given.

Issues
Issues arise when a material proposition of fact or law is affirmed by one
party and denied by the other. Each material proposition affirmed by one party
and denied by the other shall form the subject of a distinct issue. Issues are the
questions seeking answers in the judgement.
Issues of two kinds:
Issues of Fact
Issues of Law
Issues shall be framed by the court at first hearing after reading the plaint
and written statement and after such examination of the parties as may appear
necessary for determination of the real points in controversy. The other
materials for framing issues are:

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a) Allegations made on oath by parties or by person present on their
behalf, or by their pleaders;
b) Allegations in answer to interrogatories;
c) Contents of documents produced by the parties;
d) Statements made by parties or their representatives when examine d by
the court.
At any time before passing decree the court has power to amend the issue

or to frame additional issues, as also to strike out any issues, as may be

necessary for determining the real matters in controversy.
After issues have been settled a nd the points on which the parties are in
controversy have been clearly determined, the trial stage of the suit is well
within sight.

Onus of proof
On question of law, the initial presumption of correctness is in favour of
both the parties. On a question of fact or mixed question of law and fact, the
onus of proof lies on the party alleging the fact to prove. The onus to prove
whether the alleged defamatory statement has resulted in defaming the
plaintiff lies upon the plaintiff. The plaintiff does not nee d to prove that the
alleged defamatory statement is false for the law presumes that in his favour.
But the defendant, in defamation cases, will have to prove that the alleged
statement, even though defamatory, is truth.

Production, impounding, return and calling for of documents

All the documents relied upon by the parties i.e. the document to be used
as evidence in support of their cases must be produced at first hearing.
There is a distinction between documents sued upon and documents relied
upon as e vidence in support of claim. The former class of documents must be
produced and filed along with the plaint. Plaintiff is also required to file a list
of documents relied upon by him.

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Summoning and attendance of witnesses

The parties are required to submit list of witness in the court not later than
seven days after the settlement of issues. The witness can be called either to
give evidence or to produce documents. At any time after the suit, parties may
obtain summons to witnesses on application but the applications for summons
should be made at earliest opportunity.
Where the summons have been duly served and the witness fails to attend
the court intentionally or without lawful excuse the court may issue a warrant
with or without bail for the witnesss arrest at same time or afterward. In
addition the court may also order attachment of his property. Fine can also be
imposed on witness for his avoidance from appearance. These steps can be
taken in case where evidence of the witness is material for the cas e.

Adjournments
No adjournment can be granted unless sufficient cause is shown. At the
same time, the court shall not refuse any adjournment when sufficient cause is
shown. It should be remembered that adjournment of a case is entirely
discretionary matter. Court has ample discretion as to the cost occasioned by
an adjournment. Cost means the cost of the day including a reasonable fee
for the pleader of opposition party.

Hearing of the suit

The last and final stage of the case i.e. trial of the suit has now arrived.
The general rule is that the party on whom burden to prove an alleged fact lies
should begin and open his case. After the party opening the case produces his
evidence, the other party states his case and produces his evidence and then
addresses the court on the whole case. The party beginning then replies
generally on the whole case.

Examination of witnesses
After the plaintiff has opened the case, the evidence will be produced
before the court. The witnesses shall be examined and document s shall be

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exhibited. There are two kinds of examination known as examination-in-chief

and cross-examination.
Examination-in-chief is the examination of a witness by the party who calls
him. The object of this examination is to get from the witness all the material
facts within his knowledge or such of them as he can testify to relating to the
case.
Cross-examination of a witness by the adverse party i.e. the party oppose to
the one that calls him. The object of cross -examination is to sift the
examination and to seek the truthfulness of the case.
Evidence shall start with the plaintiffs evidence, which includes the
examination-in-chief and cross-examination of plaintiffs witnesses and
exhibition of relevant documents relied upon by the plaintiff. After th e
examination of plaintiff evidence, the court shall close the plaintiffs evidence
on the statement of his counsel to this effect. The right of rebuttal i.e. the right
of plaintiff to rebut the evidence of defendant shall remain intact.
The court will then proceed to examine the defence witness. This includes
the examination-in-chief and cross-examination of the defendants witness.
The defence shall also exhibit those documents in original, which are relied
upon by the defendant in his defence. The defen ce evidence shall be closed
with the statement of defence counsel of this effect. If any party fails to
produce evidence in support of his claim, the court may proceed to decide the
case forthwith and pass decree against the party at default.

Arguments
After the parties have adduced all evidence and closed their case a very
important stage comes. Now the lawyers of both the parties have to address
the court. As the plaintiff has begun the case, the defendant argues first and
the plaintiff has the right to reply. If the defendant has adduced no evidence,
the plaintiff argues first and the reply is with the defendant. The object of the
argument is to piece up the facts and circumstances brought out in the
evidence and to present a complete picture of the cas e.

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Judgement and decree

After the hearing, the judge shall pass a decree and pronounce judgment
in open court either at once or on some future day of which due notice shall be
given to the parties or their counsel. Judge may pronounce judgement written
by his predecessor. It shall be dated and signed by the judge after
pronouncement and shall not be altered or added to save as provided in the
law. The person in whose favour decree is passed is called decree -holder
whereas the person against whom decree is passed is called judgmentdebtor.

Execution of decree
Mere passing of decree does not give rise to any right of decree -holder
and incur any liability upon judgment-debtor. To invoke the liability, the
decree-holder has to file application for execution of decree. The application
shall be submitted to the court, which has passed the decree or to the court to
which the decree is sent for execution. The decree -holder can orally ask for
execution of the decree because, in most of the cases of defamation, decree
involves the payment of money to the court.
In response to the application, the court shall order the judgment debtor to
either publish apology or publish correction of wrong statement (whatever is
mentioned in the decree). If the decree involves the payment of money, the
court shall order the judgment-debtor to pay the decreed amount to the court
on the day fixed. If the judgment-debtor fails to pay the decreed amount on the
day fixed, the court can attach his property and freeze his bank account( s).
The court can also order the sale of attached property to satisfy the decreed
amount. If the judgment-debtor has no property to be attached and no bank
accounts to be frozen, the court shall declare him insolvent. The court can
also sent him to civil prison in case he defaults on payment of decreed
amount. The decree-holder is liable to pay cost of the civil prison.
It is important to note that if the judgment debtor files appeal against the
decision of Trial court, the execution shall be stayed till the final decision of
appellate court.

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Appeal
The person aggrieved from the decision of the District Judge have a right
to appeal to the High court within thirty days of the passing of such decision.
There is no right of appeal against interlocutory o rders of the court.

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Chapter 3

Defense against defamation charges

The media acts as a watchdog. It protects the public interest by stating the
truth. Professional journalism thus seeks to establish the facts. Media also has
the tendency to test its limits. Under Pakistani laws , defaming a person or a
party may trigger criminal or civil proceedings against media men. In such a
situation, the accused, in criminal case, or defendant, in civil case, may defeat
the complaint or claim against him by showing that the complainant or
plaintiff hasnt proved the defamation satisfactorily namely, a defamatory
statement about the plaintiff and publication. But assuming that the plaintiff
can establish these elements , the accused or defendant can take other pleas in
his defense. These pleas are then defenses against defamation charges. Let us
look at these defenses in detail.

Freedom of expression
The first and foremost defense against the charges of defamation is the
freedom of speech, as guaranteed in the Constitution. Article 19 of th e
Constitution of Islamic Republic of Pakistan deals with the freedom of press
and expression. The constitutional provision says the freedom of press in
Pakistan is not an absolute and unqualified right. It is in fact subject to various
restrictions, namely, the glory of Islam, the security of Pakistan, friendly
relations with foreign states, public order, decency or morality, or in relation
to contempt of court, defamation or incitement of crime. Though the right to
freedom of expression is very restrictiv e, the journalist or media can opt for
this defense against defamation charges. For instance, it can be claimed that
whatever is stated in an alleged defamatory statement is an exercise of this
right.

Truth or justification
The most usual defense agains t defamation is to prove that the statement
published is true. Truth is always an absolute defense. The journalist or writer
can prove that whatever he has written or said was established fact. This can

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only apply to statements of fact rather than of opini on. But this also has its
downside. It is because an unsuccessful plea could increase the damages
against the journalist and will add to the harm done to the complainant. The
situation would be severe if the defendant had opted for only this kind of a
defense and failed to prove it. To avoid the situation, the defendant must raise
more than one defense in his plea.
The journalist should also remember that he must be able to deal with
every libelous possibility, such as inference and innuendo. Merely assert ing
that a certain statement is true will not do. If the statement infers something
greater, it is not enough to prove that the statement is literally true. If the
statement infers something greater, it is not enough to prove that the statement
is literally true. Even if the words are true, they may carry an implication,
which may be untrue. For instance, suppose a newspaper published an article
alleging that a trader was selling goods well beyond their sell -by date. Also,
the newspaper successfully proved that the allegation itself was true. But the
court held that the article was defamatory because it implied that the trader
was knowingly selling food unfit for human consumption. The journalist now
must confront all these questions and prove that the conte nts of the statement
in fact were true by producing before the court the relevant documents or
evidence.

Fair comment
This refers to a journalistic opinion published in good faith. It is not
necessarily an assertion of facts. The journalist can always p rove that the
statement is fair and in public interest, if and when the situation arises. In case
the defamatory words are a matter of opinion, the defense of fair comment
may be open to the defendant. The defendant will be required to prove that
any underlying facts are true and that the comment published was one that a
fair-minded person would make; that the comment was the honest expression
of the opinion and was made without malice. Fair comment covers content,
mainly opinion that cannot be true or fals e by its very nature. To be properly
defensible, these comments must be:

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Based on fact

Made in good faith

On a matter of public interest

Published without malice

Citizens are entitled to make "fair comment" on matters of public interest

without fear of defamation claims. A good example of this is a letter to the
editor on a matter of public concern. The author of the remarks may even
presume motives on the part of the person whose actions are being criticized,
provided that the imputation of motives is reasonable under the circumstances.
The rule of thumb is that the fair comment must reflect an honestly held
opinion based on available fact and not motivated by malice. A comment
cannot be fair if it concerns something, which the defendant has invented o r
distorted, and if the alleged facts relied upon as the basis for comment turn out
to be untrue. A plea of fair comment in such a case avails the defendant
nothing, even though they expressed his honest view.

Privilege
The forth defense is that the sta tement complained of was privileged.
Privilege is a defense where the law recognizes that individuals should be
free to speak their minds (and others to report what they say) without fear of
being sued even if they get their facts wrong. It allows people to speak freely
in court proceedings and debates in Parliament, and allows for such
proceedings to be reported, so long as the reports are both fair and accurate.
Such privileges may either be absolute or qualified. You will not be liable for
defamation if you prove that you were entitled to make the statement because
it was subject to absolute or qualified privilege.

i) Absolute privilege
Absolute privilege covers cases in which complete freedom of
communication is regarded as of such paramount importance that action for
defamation cannot be entertained at all. These statements do not invite
defamation charges, regardless of the motive. The journalist is also protected
by an absolute privilege when the statement in question is one that the

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government ordered to be published. It means that if the journalist republishes

the statement, say in a newspaper or on a news -radio broadcast, the journalist
will not be liable for defamation. The statement is absolutely privileged if it is
a publication of matters such as judicial and parliamentary proceedings.
Absolute privilege applies to judges, lawyers and witnesses in legal
proceedings, to MPs for things they say in Parliament, and statements made
by various officials dealing with "affairs of state" in performanc e of their
official duties.

ii) Qualified privilege

Qualified privilege holds where the person making the statement has a
duty to do so and there is a corresponding interest in receiving that
information. Any fair and accurate publication of parliamentary or judicial
proceedings, which the public may attend, and statements made to the proper
authorities in order to procure the redress of public grievances shall have the
protection of qualified privilege. The privilege though protects the maker of
an alleged defamatory statement only if the statement was made honestly and
without malice. This means that, unlike absolute privilege, this defense wont
protect you if you acted out of malice or ill will towards the plaintiff. Reports
of court proceedings, statements made at public bodies meetings and in the
course of crime investigation are some examples of where qualified privilege
will arise. In order to take advantage of the defense, the author or publisher
must have no malicious intent.

Privileged communication
The defendant has a defense if he shows that the matter complained of
was privileged communication. Privileged communication includes the
communication between lawyer and client or between persons having legal
relations.

Permitted statement
It is a generally accepted that whatever was conveyed to journalists
during an interview or in an official capacity is permissible to be printed

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unless expressly mentioned otherwise. For instance, any body wanting to get
his name or statement unprinted during an interview or while making an
official statement should mention so expressly. In journalism it is called off
the record. The professional ethics require of journalist not to publish such
information. If no such tag has been attached to a statement, the journalist or
the writer has implied permission to publish every thing. To take advantage of
this defense, the journalist has to prove that there was no express off the
record intimation from the person allegedly defamed.

Apology
The journalist can o ffer apology to the party allegedly defamed through
his statement. The journalist should take this defense only where it appears
that the statement or opinion was not true and had caused serious damage to
other party. This should be done at the stage of se rvice of legal notice of
defamation to the journalist. The apology should be published in the same
manner as the defamatory statement was. The journalist should intimate in
writing directly to the person allegedly defamed in this regard as well. The
journalist should keep record of this intimation for future reference. The
person allegedly defamed shall have no right to sue the journalist for
defamation if he accepts the apology. In case he rejects this offer and decides
to go to court, the journalist can a gain offer the apology before the Court of
law. On the other hand, the court can also order a journalist to offer apology to
the defamed party where it has found him guilty of defamation.

Printing of correction
The journalist should endeavor to write tru e facts in his write-ups. In case
of unintentionally or mistakenly printing of false statement or wrong fact, the
journalist upon receiving the intimation from concerned person, is under
obligation to offer the printing of corrected version of that stateme nt. The
printing of correction should be in same manner as the original publication of
the false statement or wrong fact. If the defamed party rejects the printing of
correction and decides to go to the court, the journalist can take plea that he
offered the printing of correction. To take this defense, the journalist should

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have the intimation of the offer and its rejection in writing prior the filing of
suit. The court can also direct the journalist to print the correction.

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Chapter 4

Penalties
The journalist or writer will face various penalties as provided in the law
if it appeared to the Court that he has violated the provisions of defamation
laws. Both criminal and civil laws in Pakistan provide different penalties for
defamation. Section 500, 501, and 502 of Pakistan Penal Code (XLV 1860)
spell out criminal penalty for defamation, printing or engraving matter known
to be defamatory and sale of printed or engraved substance containing
defamatory matters. The civil remedies and penalties are provided in Section 9
of Defamation Ordinance (LVI OF 2OO2). In addition to civil remedies
Defamation Ordinance also provide criminal penalty i.e. imprisonment.

Criminal penalties
If the journalist has been tried as a result of complain t and found to be in
violation of provisions of criminal law the Court can impose different
penalties on the person guilty of the offence.

Imprisonment and fine

The Court can punish the person guilty of defamation with simple
imprisonment for a term, which may extend to two years. Court can also
impose fine on the guilty person. The law does not define any limit of the fine
and it is up to Court to prescribe it. The Court can impose both imprisonment
and fine simultaneously. If the Court imposes fine on th e journalist and he
defaults on its payment, the Court may punish him with simple imprisonment
that may extend to six months. This imprisonment is called imprisonment in
default.

Civil remedies/Punishments
Civil remedies and punishments are provided in the Defamation
Ordinance 2002. If the matter is referred to as civil case, the Court can impose
any, all, or a combination of the following penalties.

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Apology
If the journalist is found to have violated the provisions of defamation law
and nature of dama ge caused to the plaintiff is not of very high degree, the
Court can order the journalist to issue an apology. The Court, in its judgement,
can determine the manner for issuance of the apology.

Publication of truth
If the statement resulting in defamation of plaintiff has proved to be false,
the Court shall order the journalist to publish the correction of the same;
meaning publish a retraction of the story in the same manner as the
defamatory statement.

Monetary fine
The Court can ask the defendant to p ay reasonable compensatory
damages as general damages with a minimum of Rs50,000 (Rupees fifty
thousand) to the plaintiff if:
i.

The defamatory statement is proved be factually wrong;

ii.

It has caused the damage of serious nature to the defendant; and

iii. The defendant could not take benefit of the defences mentioned in
chapter 4.
The damages will be paid to the plaintiff to redress his grievance. While
imposing this penalty the court shall consider various factors including the
personality of the plaintiff, level o f damage caused, nature of the statement
and previous conduct of the defendant.

Imprisonment
The Court can also impose penalty of imprisonment if the defamatory
statement has caused damage of very serious nature to the plaintiff. The
journalist may be imprisoned for up to three months. In addition, the court
may order any other special damages as it deems fit. The provision of
Defamation Ordinance dealing with special damages leaves it for the Court
to impose any kind of penalty on the journalist.

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Chapter 5

Contempt of court law

The concept of contempt of court comes from the pre -partition times and
was duly given statutory form by the legislative assemblies and the
governments in Pakistan. The 1973 Constitution of Pakistan also made it an
offence. The most comprehensive statute on the subject came in the shape of
1976 Act, which now stands repealed as per the latest Contempt of Court
Ordinance 2003.
Understanding this law is a must for a journalist. Contempt of court can
be termed as defamation of the courts. The new law on contempt gives judges
the right to file a defamation suit in cases where they cannot move contempt
charges.
The government has introduced the law on contempt through
promulgation of a presidential ordinance in December 2003. This ordinance
took effect from Nov 9, 2003, before the first ordinance was to expire after the
four months mandatory period.
The law on contempt of court has been introduced to maintain the sanctity
of the judicial system wherein the disputes are supposed t o be resolved in
accordance with the constitution and the law. The contempt laws apply
equally to all citizens. The media though is more vulnerable to it than the
ordinary citizens.

What is contempt of court?

Whoever disobeys or disregards any order, di rection or process of a
court, which he is legally bound to obey; or commits a willful breach of a
valid undertaking given to a court; or does anything which is intended to or
tends to bring the authority of a court or the administration of law into
disrespect or disrepute, or to interfere with or obstruct or interrupt or prejudice
the process of law or the due course of any judicial proceedings, or to lower
the authority of a court or scandalize a judge in relation to his office, or to
disturb the order or decorum of a court is said to commit "contempt of court".

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Contempt of Court Ordinance2003

As per the above definition the Contempt of Court offence may hold in
the following circumstances:

Disobeying or disregarding a court order

Disobeying or disregarding direction or process of a court

Willful breach of undertaking

Causing disrespect or disrepute

Interfering or prejudicing judicial process

Scandalizing a judge

Disturbing decorum of court

The above circumstances may invoke a variety of charges as per the latest
contempt law. These are:

Civil contempt.

Criminal contempt

Judicial contempt.

Civil contempt
Civil contempt means intentionally disobeying any kind of court orders or
directions. A court order normally comes in the form of a judgment. If the
losing party does not obey the courts order the winning group can then
inform the court that its orders are not being obeyed or implemented. In turn
the court can initiate the contempt of court proceedings. Even before the final
judgment, the court can issue an interim order or direction to the government
or any of the parties involved. This interim order or direction has to be
implemented and enforced in letter and spirit.
The court can order journalists whether to publish reports carrying
allegations against a person, or about a case pending a final verdict. This
includes any portion of the court proceedings. The court may direct a
newspaper or any publication in writing or verbally to abstain from publishing
or carrying certain reports. Such a d irection is known as gag order. While
doing so the court presumes that in case a news report gets published, it will
either harm the legitimate interests of the party or prejudice the process of law

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or a matter pending before the court. Journalists are r equired under this law to
show respect to the court less they are subject to the civil contempt
proceedings.
Similarly, a court can also order a journalist to disclose his or her source
of information in relation to a particular report. International precedents show
that the journalists have often refused to obey such court orders even if they
had to spend a few months behind bars on contempt of court charges. In some
cases, the organizations, did step forward to provide some material, such as
the video of a particular riot or a violent demonstration. The situation in
Pakistan to this effect has thus far been characterized by the policy of the
state-run television or radio stations. The new private media may adopt a
different policy.
The superior courts can issue a writ (orders issued through exercise of
jurisdiction) against any person, publisher or the government. These orders or
directions have to be implemented under the law. Similarly journalists too can
invoke courts contempt jurisdiction to protect t heir rights. For example if an
order benefiting a journalist or a newspaper is not being implemented the
court can then be requested to invoke its jurisdiction under the contempt laws
against the person or organization which is defying the orders.
A journalist must make a truthful statement or a promise that he is sure of
keeping. Giving a false statement or failure to fulfill promises will also invite
civil contempt of court charges. The court process is also to be respected like a
court order. The court process means any action being taken by the court
officials as part of the hearing, like sending of summons. Refusal to receive
court commons or refusal to appear before the court after receiving them
without cogent reason can also trigger contempt of court proceedings.

Action against civil contempt of court

The court can initiate proceeding for civil contempt on its own. However,
as stated earlier, any party aggrieved by non -implementation of a court order
can inform the court through an application, the contempt of court petition,
that its orders are being avoided.

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Criminal contempt:
Criminal contempt involves physical action that insults or humiliates a
judge in his face. It includes acts that may obstruct or hinder the
administration of justice, like physically resisting the implementation of a
court order. Even an act not intended to obstruct the administration of justice
may also invoke criminal contempt. Both journalists and ordinary citizens are
vulnerable to this kind of contempt. As per the law the criminal contempt will
hold if a person or a journalist:
1.

Attempts to influence a witness, or proposed witness either by

intimidation or improper inducement, not to give evidence, or not to
tell the truth in any legal proceeding;

2.

Offers an improper inducement or attempts to intimidate a judge, in

order to secure a favorable verdict in any legal proceedings;

3.

Commits any other act with intent to divert the course of justice.
Influencing a witness means a journalist must be careful in

approaching witnesses in a case being reported. For example in a defamation

case, in which the journalist himself is a defendant, the media men should not
try to influence the plaintiffs witnesses in private. Similarly, even while
reporting a case as a journalist, he should not ask a witness, or a likely witness
of the case, to give a false statement for publication to influence the court
proceedings. This also means that a journalist must not offer any monetary
benefits to a witness or threaten to damage his reputa tion, if he did or did not
give a particular statement before the court or any court official as part of any
legal proceedings.
Similarly judges should not be approached in private about a case.
Approaching a judge in private about a case pending before h im may also
amount to criminal contempt of court. Approaching a judge means contacting
him in person or on telephone and offering him favors in cash or kind in return
for a particular outcome of a case before him. This may amount to

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intimidating a judge. A journalist may also intimidate a judge through his

stories about court proceedings of a case or the judge himself.
Committing any other act to divert the course of justice is also liable to
the criminal contempt charges. This may include creating commotio n inside
the courtroom or committing acts, which a court considers to be obstructing
the process of hearing. This may also include any violent gesture towards the
judge of that court. Giving misleading information either in person or through
newspaper to influence the investigating process in a criminal case may also
invite criminal contempt of court charges.

Action against criminal contempt

Every superior court can award punishment in case contempt is
committed in relation to it. High courts also have th e power to punish a
criminal contempt committed in relation to any court subordinate to it.
Similarly, subordinate courts are given the power to hear a case of criminal
contempt relating to the courts below them. In such a situation a high court
cannot pro ceed.
There are many ways a high court or Supreme Court can react to the
instance of a criminal contempt in a subordinate court. As opposed to the civil
contempt where the same is brought to the notice of a judge only by a
complainant, a criminal contempt can be dealt by a superior court as follows:
1.

A court taking action on its own after coming across evidence or

information through press. In legal terms this court action is called
suo moto.. For example information about a fistfight or insulting a
judge of a lower court once conveyed to the superior court by any
means can invite suo moto action. For a journalist it means that his
story might invite a suo moto action by a judge. This is especially so
if a story influences or has the potential to influenc e the court
proceedings in terms of the definition of criminal contempt. The
journalist too can then be subjected to the criminal contempt of court
charges. For example publishing statement of a witness, which is
contrary to what he had stated before the c ourt.

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2.

There are other sources of information on the basis of which a

superior court may take action. For example any person connected to
the proceedings in which the alleged contempt has been committed
can also bring it to the notice of the court.

3.

A law officer of a federal governmentAttorney General and his

deputiesor of the provincial governmentAdvocate Generals and
their deputies can also request a superior court to take action
against the person accused of the criminal contempt of court.

Judicial contempt of court

The contempt of court law defines judicial contempt as scandalizing a
court, which includes personalized criticism of a judge while holding of
office.
No one is allowed to criticize a judge with reference to his personal life
and conduct. Personalized criticism of a specific judge means imputing
improper motives to a judge while criticizing his judgment in a case. Like
alleging that the judge gained personal benefits, financial or others, through
his judgment. In case a true statement is made in good faith and in temperate
language through a complaint and which is not cognizable, the same has to be
proved before the court of law when the contempt case is initiated.
Under the law the only situation where allegations can be leveled against
a judge is when a formal complaint is being made before the competent
authorities in good faith and in temperate language.
The competent authorities in this case have been categorized as under:
1.

Provincial government

2.

Chief Justice of a High Court

3.

Supreme Court

4.

Supreme Judicial Council

5.

Federal Government for examination before hearing by Supreme

Judicial Council
The law says that in case the complainant fails to prove his allegations
before the authorities mentioned above, a judge, wh o has been complained
against, has the right to file defamation suit against the complainant.

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Therefore, nothing of the above deprives a judge of the right to file a suit for
defamation.

Action against judicial contempt

Like the criminal contempt a judicial contempt is also within the purview
of superior courts. A superior court may take action in case of a judicial
contempt on its own or on information laid before it by a person. Any person
laying false information in this regard will himself be charged with the
contempt of court.
A judge in relation to whom a judicial contempt case is initiated will not
hear the same case unless he is Chief Justice. Such proceedings shall be
referred to the Chief Justice, who may hear the same personally or refer it to
some other judge. A case in which the judge himself is the Chief Justice shall
be referred to the senior most judges (next to the chief justice), and available
for disposal.
A journalist should note that no proceedings for judicial contempt should
be initiated after the expiry of one year as per the law. This means that a judge
cannot open a case of judicial contempt one year after the same is said to have
been committed.

How courts proceed in contempt of court cases

Notice: This is the first step towards the contempt proceedings. There are
two types of notice; a simple and a show cause notice. The judge decides as to
what type of notice be served on an accused, who may happen to be a
journalist. The notice briefly explains the charge and informs about the date,
time and venue of the next hearing requiring appearance of the accused.
In case of a simple notice, the accused journalist may appear in person or
through an advocate before the court. In case of a show cause notice, the
accused journalist will only appear in person. If the court decides to proceed
after issuing the show cause notice the court may then at any time exempt the
alleged contemnor from appearing personally. In such a case the accused will
have to appear in person on every hearing.

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First hearing: On the first hearing the court listens to what the accused
have to say in his defense. If the court were not satisfied it would fix another
date for framing of charge(s) in an open court. The court can proceed to
decide the matter either on the n ext date of hearing or on a subsequent date or
dates. All depends on the affidavits and the evidence that is recorded in the
case. In case of a journalist the evidence may include witnesses, tape
recordings, notebook, pictures, or any other document that e nables the court to
either convict or acquit the journalist.
Right to cross-examine: Under the law the journalist has the right to
cross-examine or question any witness but a judge who is a complainant
against him. This cross-examination may relate to any document or an
affidavit produced against him.

Contempt in face of the court

In case of a contempt committed in the face of court, it may cause the
contemnor/offender to be detained in custody and proceeded against in a
following manner:
1.

In all cases of contempt in the face of court the judge shall pass an
order in open court

2.

Recording separately what was said or done by the accused person

3.

Judge shall immediately proceed against the offender or may refer

the matter to the Chief Justice for hearing

4.

Judge may decide the case by himself or refer the same to another
judge.

If the court was unable to decide the case the same day, it may order the
release of the accused from the custody either on bail or on his bond.

Defense against contempt charges

Although the contempt law is open to selective application and
interpretations it provides various protections to the persons accused of
contempt of court. These protections, if invoked intelligently by the journalists
or their lawyers, are good defe nses in such cases.

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Following are the protections and defenses made available to the

journalists in the contempt law:

1.

Fair comment
In an article or news report a fair and healthy comment on a point

involving judgment of public importance is no contempt of court. This

however is conditional to whether the judgment being commented on has been
decided and is no longer pending. The law defines pending proceedings as
those, which have been instituted in a court of law until finally decided. The
final decis ion means a decision taken by the final court of appeal in the case,
which is normally the Supreme Court where too the review jurisdiction is also
to be exhausted. In case of no appeal is being made by a party the period of
limitation available for filing appeals must then expire before the same is to be
commented on. This does not mean that a journalist cannot comment or write
about a judgment of the lower court. He however is required to mention that
the same might be taken to higher courts in appeal.
The fair comment on which the journalist normally relies has also to be
phrased in a temperate language and the integrity and impartiality of a judge is
not to be questioned. This means that no news report or article should be
phrased in abusive language o r carry allegations of corruption against a judge.
The right to fair comment is normally exercised by journalists who write
articles, editorials or comments on a particular judgment or report statements
of the lawyers on a judgment. For example a lawyer who has lost the case may
criticize the judgment in terms of its merits, laws and consequence but should
never attribute personal motives to the judge who authored the judgment. He
can always reiterate his right to appeal against it. A reporter should also
remember that in case the lawyer does attribute a particular judgment to
personal motives then he cannot publish this less he is ready to face contempt
charges.

2.

Fair reporting
Truth is the best defense in defamation and contempt cases. For instance

while reporting court cases a journalist will not be charged of contempt if he

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has reported a fair account of what has happened in a court of law. This
includes observations or quires of a judge during a case hearing. However
such observations ought to be pu t in a context to avoid being misleading and
therefore contemptuous.
By fair account does not mean 100% accurate. Some insignificant errors
do not invite contempt charges. The errors that do make a significant impact
again invite charges. As long as the j ournalists give a substantially accurate
account of what happened in the courtroom, they cannot be charged in
contempt. The question of intentional or unintentional mistake also comes up
as an argument here. The journalists covering court proceedings hav e to be
particularly careful to ensure that whatever they are reporting is not
misleading or false.
The court disallows at times giving an accurate account of court
proceedings. The court cannot however issue such orders verbally. The judge
has to give re asons in writing for doing so. The judge may, for reasons to be
recorded in writing, in the interest of justice prohibit the publication of
information pertaining to legal proceedings. The journalists must carefully
listen to and read such orders and even stand up in courtroom to resist such
orders at the spot. The journalist can stand up and speak out inside the
courtroom if he thinks that the said order is not in the interest of justice.
He once authorized by his newspaper or radio station should make a
written request to the judge for reconsideration of such an order. In case of
rejection of the request higher forum of appeal should be used by the media
organizations.
Similarly, the parliamentary reporters cannot report on that part of the
parliamentary proceedings which has been expunged by the speakers of the
national and provincial assemblies, or the chairman senate. The journalist
cannot produce in his defense such material, which had been expunged by the
presiding officer of the assembly. For examp le if the speaker national
assembly expunges an exchange of abuses among the parliamentarians, the
same abuses cannot be reported verbatim. Still if a journalist does report it
then he cannot later on then truth will not be a defense arguing that the

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incident did actually take place. The law explicitly bars court to accept so
happening as evidence in defense of journalist. The same is true for court
proceedings as well, which once expunged by a judge cannot be reported and
if these are reported then no matt er how factual the proceedings, these cannot
be admissible as evidence before the court. In both cases the court may
however order for admission of such evidence.
The term court proceedings extends to happenings in institutions whose
presiding officers h ave been delegated with the judicial powers. These may
include election commissioner, federal services tribunal, banking courts, and
other special courts like the administrative courts.

3.

Innocent publication
In case of the contempt charges arising out of a comment, story

published, or a programme aired about a matter pending before a court, a

journalist or broadcaster will not be charged if he proves that he or she was
unaware the matter was pending before a court. The law says no person shall
be guilty of contempt of court for making any statement, or publishing any
material, pertaining to any matter which forms the subject of pending
proceedings, if he was not aware of it.
It serves journalists the best to avoid publishing a statement or an
argument on a subject, which he knows is being debated in a court of law.
Ignorance may be an excuse, but the ignorance of law is not and therefore
ignorance of contempt law is also no excuse.

4.

Protected statements
Statements or comments regarding a court or a judge can invite contempt

of court charges. However, in some cases such statements are protected. For
instance an observation made by a judge of High Court or the Supreme Court
in his judicial order will not constitute contempt of court. The press can repo rt
such observations about a lower court judge if the court under question has not
expunged the same.

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This observation might come as part of an order disposing of an appeal

from a lower court judgment. A High Court or a Supreme Court may make
observations about the conduct of a judge in the lower court in disposing of an
appeal from that court. In a similar situation a supreme court judge can make
observations about a high court judge.
Similarly, the government officials are protected against contempt of
court charges on the basis of their comments or statements in discharge of
their official business. An official in administrative capacity can record his
comments. For example, a judicial inquirys final conclusions (not the
allegations) about conduct of a judge, an administrative inquiry about another
official, and recording of comments by competent authorities in the Annual
Confidential Reports (ACRs) of the government servants will never constitute
a contempt of court.
The law clearly states that a true statement regarding conduct of a judge
in connection with the performance of his judicial functions will not invite
contempt charges. The journalists though should know that he would be asked
to prove the correctness of the statement in case he reports an y such instance.

5.

Substantial detriment
This is a comprehensive and a basic protection provided to the citizens

and journalists against the contempt laws. A journalist cannot be subject to

contempt laws every now and then. The law clearly states that n o person shall
be tried and punished for contempt of court unless the court is satisfied that
the contempt charges are based on serious grounds. Only when the
circumstances show substantial damage done to the administration of justice
and scandalize, disrepute or ridicule the court or bring a judge into hatred, a
contempt of court case will be initiated. The journalist should always argue on
whether the circumstances have resulted into actual damage to the respect and
reputation of a court or a judge and if it was imperative for a journalist to
publish a story on the grounds of public interest. Truth will of course remain a
valid defense.
In a situation where court does not consider the circumstances
substantially detrimental to the courts reputation or re spect and has no reason

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to convict an accused, even then it can pass an order deprecating the conduct,
or actions, of the person accused of having committed contempt.

6.

Apology
This is the most important form of defense, which does provide an

opportunity to escape punishment (if the court decides to accept it). But it
leaves a deep scar on the credibility of the journalist in question and set a bad
precedent for others. A journalist must report the truth and be able to defend
it. Apologizing would mean conceding unnecessary space to the courts and
may lead to restrictions on the basic right to freedom of speech and
expression.
A journalist can at any stage of the case hearings submit an apology to the
court. The court, if satisfied that it is bona fide, may discharge him or remit
his sentence. The mere fact that a journalist has contested the charges of
contempt does not bar him from tendering an apology. The court may
however determine the bona fide of his apology on the grounds other than his
earlier refusal to accept the charges: that the journalist knowingly and
deliberately committed the contempt or has the history of similar acts and
extending apologies.
Therefore a journalist accused of contempt of court can, if he genuinely
believes that he has n ot committed the offence, contest the charges and this
will not deprive him of his right to apologize at any later stage of the case. The
court, on the ground that the accused had earlier refuted the charges, will not
reject such an apology.
In case of contempt having been committed, or alleged to have been
committed, by a media organization the responsibility shall extend to that
organizations staff. In case of a newspaper, besides the reporter, editor will
also be directly or indirectly responsible for the contempt of court and thus
liable for the damage done.

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7.

Journalistic confidentiality
Courts are empowered to order for the production of any print, visual or

broadcast evidence in a case of public importance. This evidence may include

photographs or footage of riots or violent demonstrations.
Ensuring confidentiality of a journalistic source of information is a valid
excuse, though not a powerful argument. Depending upon the circumstances
the courts may or may not buy this argument and order a jo urnalist to disclose
his source of particular information published in any case. Refusal to regard
such a court order can lead to contempt charges against a journalist. Here too a
journalist must weigh his options on the basis of a wider public interest an d
his own safety. A refusal to divulge the source of information may be based
on the possibility of damage to public interest or a possible threat to
journalists own life.
The truthfulness of information should be sufficient for a court to proceed
with rather than the source of information. In this situation divulging
information may bring a bad name to journalists at large. In case false
information is deliberately passed on by a source, it is up to the journalist to
weigh the pros and cons of divulging his or her identity. Confidentiality of a
source is an ethical right of a journalist but not the one that he can claim in the
court of law.

What if found guilty: The right to appeal

If found guilty a journalist, like any other person, can be either
imprisoned or fined or both fined and imprisoned. The jail term may extend to
six months simple imprisonment and fined up to Rs100,000.
The order passed by any court can be challenged/appealed against before
the higher judicial forum, an appellate court, which may suspend the original
order pending disposal of the appeal. The appeal has to be filed within thirty
days.
Against an order passed by a High Court judge a journalist can appeal
before a bench of two or more judges of the same court. This is called as an
intra-court appeal. If the first judgment comes from a division (two judges

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bench) or larger bench of a High Court then the journalist can go to appeal in
the Supreme Court of Pakistan.
If a judge, or a bench of two Supreme Court judges passes the orig inal
order, then an intra -court appeal shall lie before a bench of three Supreme
Court judges. In case a bench of three or more judges passed the original order
an intra-court appeal shall lie to a bench of five or more judges of the Supreme
Court.

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Chapter-6

How to avoid unnecessary litigation

Truth is an absolute defense. Yet there is no absolute truth. In third world
countries, like Pakistan, journalist rights and their judicial review are not an
established phenomenon. Thats why there is always a greater risk of
litigation. At times, however, going to the courts is the only way of
establishing journalist rights in such countries, particularly when the
defamation and contempt laws are selectively invoked and interpreted.
There are times when journalists find themselves amid a legal battle
because of their own mistakes. It normally happens when the journalists flout
professional ethics. Here are some practical ways to avoid legal
complications, and that too without compromising objectivity and trut h.

Headlining stories
At times headlines do not match the actual content of a story. A reporter
can disown such a headline, shifting the responsibility to the one who
approves the headlines. The editor is usually the approver. In such
circumstances the only way to escape punishment is to offer regret or publish
a clarification. Headlines have to be carefully drafted. These must reflect the
correct version of a story in minimum possible words. Headlines shouldnt be
catchy enough to attract lawyers and ju dges in a negative way. Being caught
for corruption and being caught for alleged corruption are two different
things.

Language
The choice of words is of crucial importance for reporter and newspaper.
In the UK the word single mother is routinely us ed to describe a woman
who gave birth to a child without formally marrying someone. In Pakistan,
however, this turns into a serious charge of adultery with religious and legal
consequences that may trigger a criminal case as well as a suit for defamation.
Therefore, the choice of words should be made in accordance with the norms
and culture of the target audience.

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Reliability of sources
A journalist should ensure that his source is reliable. There is always a
risk of earning defamation charges in case a report attributed to sources tuned
out to be untrue. A source can be deceptive and it is always better to cross
check the information. Ensuring the authenticity of information is important
so that a journalist can take the defense of truth in case of litig ation.
The unnamed sources should be tested on the criteria of reliability. A
journalist should be aware of the personal interest, if any, of the source in a
story. In fact too much reliance on unnamed sources is unethical and it might
also trigger a defamation suit against the journalist. It is always better to avoid
using unnamed sources and refuse to buy information from the source that
wants to remain anonymous. In a nutshell if a source seeks anonymity, do not
agree, without first considering the sources motives and any alternative
attributable source.

Off-the-record & on-the-record

There are times when an interviewee wants to give you information off
the record. This means they dont want to be quoted on that particular point.
It is advisable that the journalists should tell an interviewee: Everything is on
the record, and nothing you are telling me is off the record. Make sure that
you establish this at the beginning of the conversation.
Off the record conversation is a journalistic practic e wherein an unnamed
source binds the journalist to a condition that he will not publish the
information. The information is thus considered undisclosed. Otherwise, the
journalists are not supposed to attribute that piece of information to its source.
Journalists normally use such tip -off, as they call it, to put in more effort to get
the same information on-the-record, without disclosing the original source.
This again is more to do with journalistic ethics than laws. But the phrase
is the most misunderstood provision of the ethics. A journalist should know
that once published, an off -the-record conversation involving wild allegations
against another person can trigger a defamatory suit against him. And the

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journalist will then be bound by his professional ethics not to disclose the
source. He alone will have to prove the allegations in a defamatory case.
In the eyes of the law there is no such things as off -the-record statement.
One cannot conclude an hour-long statement before the press by saying that
all this was off-the record. Similarly, a statement before a large group of
people or journalists (for example over a hundred people) will earn a
defamation suit. Therefore if the same statement is published, the author (the
person who made these allegatio ns) should also be a party to the defamation
suit alongside the publisher or a journalist.
Similarly, a judge is not supposed to accept off -the-record argument(s) in
a public hearing. He is not expected to make an on -the-record judgment on the
basis of off-the-record evidence. Even if a judge decides to declare part of the
proceedings off the record, he should state reasons in writing. Journalists
should be careful in taking a decision on whether to publish the expunged
portions of the story. Reporting the order declaring court hearing as expunged
is a story in itself, even if the actual contents of expunged portions are not
published. If there is no written order by the judge then the journalist can
weigh the pros and cons of publishing the banned informat ion. Normally
reporting of an open court hearing should not be restricted whereas courts can
decide to hold in -camera sessions when state secrets are involved.

Recording, filming, and making notes

Keeping a record of interviews through tape recorder or v ideo recording
is another way of avoiding litigation. The complainant would know that his
statement was duly recorded. Recording a conversation would require specific
permission of the person being recorded, especially on telephone. Once
recorded the tapes should be kept for at least a year after the broadcast or
printing of the story or the statement; a period after which no defamation suit
can be filed on that story.
Similarly, in the parliament where video or audio recording is rarely
permitted, a journalist must take notes and keep a record of that along with the
title of the event, date and venue. A Supreme Court reporter should also resort
to the same practice. He should make notes of the court proceedings and his

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notes will be a valid defense in case of a contempt or defamation proceedings

against him in future. This particularly holds good for reporting observations
of the superior court judges.

Right to reply
This is a fundamental right of every citizen against whom a report has
been published in any publication. A newspaper or a radio/TV report should
not contain only one side of the story. A journalist should instead solicit
versions from all the players of a story. Allegations must be balanced with the
right to reply and clarifications, if any. No allegation in the story should go
unanswered by the person against whom it has been leveled. An opportunity
once provided to the person to contradict or clarify his position in a story
becomes a good defense, especially when he refuses to say anything and then
later on enters into litigation. In this case words like: when contacted he
refused to comment, should be relied upon.
If the editor finds the contradiction in any published story he may then
publish the same as compensation and even an apology . The complainant may
still approach the court but then the journalist or the newspaper or radio can
claim to have published an apology. Publishing an apology though may also
imply that the journalist or a newspaper indeed committed a wrongful act,
requiring greater compensation in the court of law. The apology should be
published as part of a proper deal wherein the person should clearly accept it
as a final settlement.

Documentary evidence
It goes without saying that a journalist, including a radio journalist,
should have proof of what he reports for the sake of his own credibility before
his readers, listeners, or viewers. The documentary evidence is the best proof
in the absence of facts not verifiable on the ground. The documentary proof
may include official documents, private contracts, letters, both official or
private, official reports, audit reports, inquiry reports, copies of official orders
and the journalists own notes. At times even the published reports, which
have been forgotten by many, bec ome an easy and handy source of

Media

LawGuide Book

information and documentary evidence. To have such documentary evidence

before doing a story is important, not just for the reputation of a journalist
before the people, but also to deter any frivolous litigation from the pe ople
who have been affected by that story.
A journalist must ensure that the documents he is relying on are genuine.
The documents may include copies or attested copies of the documents
relating to the subject of the story. If there is a story based upon information
by a reliable source then the source should be asked to provide some
documentary evidence to be on the safe side.
A statement or a news report can be attributed to an established expert of
the field or a government authority for publication. However a written
statement or press release by any one of them should be preferred. Ensuring
authenticity of the press releases is for journalist or media organizations to
care for. Similarly, to cross check the facts of a document and to make the
story rich with additional interviews and comments from the persons
concerned are advisable.
All these documents must be kept in record after the publication of a
story, at least till a year for possible defamation suit, a limitation period after
which the defamation case will not lie under the law. While relying on the
documents their evidentiary value must be kept in mind. For example, under
the law the e-mail and Internet-based information has no evidentiary value
because no such law has so far been made in th is regard.

Personal stakes
A journalist is a citizen with social relations and interests just like every
one else. The problem arises when a story reflects personal biases of a
journalist. If a journalist in two minds about a particular story, he shouldn t
take the assignment. Expressing personal dislike for a person in your write -up
harms your credibility and could be used against you in the court.
However, at times a personal interest can become a strong point only if
the journalist is bold enough to i gnore it, even at the cost of his own interest.
A stock market reporter should in no case do a report on stock market if he
runs a share business. Defamation or damages suit against a stock market

55

56

Media

LawGuide3Book

reporter, who also has shares in the stocks, can bring disr epute to him and his
colleagues as well.

Knowledge about Pakistani laws

A journalist must have knowledge about the laws that affect the media in
Pakistan. This is the only way to push the limits if it comes to that. Apart from
the defamation and contemp t laws there are other laws that affect media in
Pakistan. These include laws on blasphemy, access to information, and others
under which a journalist may be tried.

Legal consultants
Media organizations must hire legal consultants to support their workin g
journalists in case of a legal battle. They should, as and when required, go
through the contents of various stories before these are published. Basically, it
is the job of the editor to ensure that nothing is published without valid proof
and to ensure the right of reply in a particular story. However there are times
when only a lawyer can tell about the possible consequences of a story. News
reports, articles, sketches, pictures, commentaries and even cartoons can carry
legal implications and in times of doubt the lawyers should be consulted. It is
better to have a lawyer hired and pay him a certain amount than having to pay
hefty fines in a defamation or contempt case.
All this does not however mean that every second story be dropped
because the lawyer said it. As stated earlier the media organizations should
make deliberate efforts to push the limits and be ready to fight it out in the
court of law in the best interests of an open media and society.

57

Media

LawGuide Book
Chapter-7
Conclusion
In this guidebook an effort has been made to explain the defamation and

contempt laws of Pakistan from a journalistic perspective. The aim of this

book is to educate print and broadcast journalists about various media laws so
that they can do their job with greater confidence.
In fact, it is all about internationally recognized journalism ethics. If
followed in true spirit, these practices provide a clear sense of direction to
journalists, no matter which country or culture they belong to. Journalism
ethics do not disregard laws of the land but they do set a standard not all the
governments have been able to meet and maintain in terms of their legislation
and enforcement. In any case, the possibility of a legal battle should not
become a reason for self-censorship. These professional ethics do not allow
omissions at the cost of truthfulness. Ethics encourage journalists to keep
pushing the parameters of laws in the wider public interest.
The rapidly changing technologies and professiona l practices in media
have impacted the national media laws and put these in the limelight. The
growing role of media, the news media in particular, has made it imperative
for the legislatures and judiciaries across the world to acknowledge the
changes that they have to incorporate in their thinking and interpretations. The
laws and judgments about the media should be aimed at enhancing their
freedoms and not the other way around. Particularly in countries like Pakistan
where systemized access to information is not available the validity of other
laws like defamation and contempt would always be challenged. A journalist
should be punished by his editor for wrong information. He cannot be jailed
however by the court of law for an information which was the resu lt of noncooperation of the officials who refused to confirm or deny the same,
something the journalist should always mention in the story.

Contempt of court ordinance, 2003

Islamabad, the 15th of December, 2003
ORDINANCE NO.V OF 2003
AN
ORDINANCE
To regulate the exercise of the powers of courts to punish for contempt of
court.
WHEREAS clause (3) of Article 204 of the Constitution of the Isla mic
Republic of Pakistan provides that the exercise of the power conferred on
courts to punish for contempt may be regulated by law;
AND WHEREAS the National Assembly is not in session and the
President is satisfied that circumstances exist which render it necessary to take
immediate action;
NOW, THEREFORE, in exercise of the powers conferred by clause (1)
of Article 89 of the Constitution of the Islamic Republic of Pakistan, the
President is pleased to make and promulgate the following Ordinance:1. Short title, extent and commencement:- (1) This Ordinance may be called
the Contempt of Court Ordinance, 2003.
(2) It extends to the whole of Pakistan.
(3) It shall come in force at once and shall be deemed to have taken
effect from the ninth day of November, 2003.
2. Definitions:- In this Ordinance, unless there is anything repugnant in
subject or context,
(a) "civil contempt" means the willful flouting or disregard of (i) an order, whether interim or final, a judgment or decree of a court;
(ii) a writ or order issued by a court in the exercise of its constitutional
jurisdiction;
(iii) an undertaking given to, and recorded by, a court;
(iv) the process of a court;
(b) "criminal contempt" means the doing of any act with intent to, or
having the effect of, obstructing the administration of justice;

(c) "judicial contempt" means the scandalization of a court and includes

personalized criticism of a judge while holding of office;
(d) "notice" means a notice other than a show cause notice issued by a
court;
(e) "pending proceedings" means proceedings which have been
instituted in a court of law until finally decided after exhausting all
appeals, revisions or reviews provided by law or until the period of
limitation therefore has expired;
Provided that the pendency of an execution application shall not
detract from the finality of the proceedings.
(f) "personalized criticism" means a criticism of a judge or a judgment
in which improper motives are imputed; and
(g) "superior court" means the Supreme Court or a High C ourt
3. Contempt of court:- Whoever disobeys or disregards any order, direction
or process of a court, which he is legally bound to obey; or commits a willful
breach of a valid undertaking given to a court; or does anything which is
intended to or tends t o bring the authority of a court or the administration of
law into disrespect or disrepute, or to interfere with or obstruct or interrupt or
prejudice the process of law or the due course of any judicial proceedings, or
to lower the authority of a court or scandalize a judge in relation to his office,
or to disturb the order or decorum of a court is said to commit "contempt of
court". The contempt is of three types, namely, the "civil contempt", "criminal
contempt" and "judicial contempt."
4. Jurisdiction: - (1) Every superior court shall have the power to punish a
contempt committed in relation to it.
(2) Subject to sub-section (3), every High Court shall have the power to
punish a contempt committed in relation to any court subordinate to
it.
(3) No High Court shall proceed in cases in which an alleged contempt is
punishable by a subordinate court under the Pakistan Penal Code
(Act No.XLV of 1860).

61

5. Punishment: - (1) Subject to sub-section (2) any person who commits

contempt of court shall be punis hed with imprisonment which may extend to
six months simple imprisonment, or with fine which may extend to one
hundred thousand rupees, or with both.
(2) A person accused of having committed contempt of court may, at
any stage, submit an apology and the court, if satisfied that it is bona
fide, may discharge him or remit his sentence.
Explanation: - The fact that an accused person genuinely believes
that he has not committed contempt and enters a defence shall not
detract from the bona fide of an apology.
(3) In case of a contempt having been committed, or alleged to have
been committed, by a company, the responsibility therefore shall
extend to the persons in the company, directly or indirectly,
responsible for the same, who shall also be liable to be p unished
accordingly.
(4) Notwithstanding anything contained in any judgment, no court shall
have the power to pass any order of punishment for or in relation to
any act of contempt save and except in accordance with sub -section
(1).
6. Criminal contempt when committed: - (1) A criminal contempt shall be
deemed to have been committed if a person
(a) attempts to influence a witness, or proposed witness, either by
intimidation or improper inducement, not to give evidence, or not to
tell the truth in any legal proceeding;
(b) offers an improper inducement or attempts to intimidate a judge, in
order to secure a favorable verdict in any legal proceedings;
(c) commits any other act with intent to divert the course of justice.
(2) Nothing contained in sub-section (1) shall prejudice any other
criminal proceedings which may be initiated against any such person
as is mentioned therein.

62

7. Cognizance of criminal contempt: - In the case of a criminal contempt a

superior court make take action;
(i) suo moto or
(ii) on the initiative of any person connected with the proceedings in
which the alleged contempt has been committed; or
(iii) on the application of the law officer of a Provincial or the Federal
Government.
8. Fair reporting: - (1) Subject to sub-section (2), the publication of a
substantially accurate account of what has transpired in a court, or of legal
proceedings, shall not constitute contempt of court.
(2) The court may, for reasons to be recorded in writing, in the interest of
justice, prohibit the publicatio n of information pertaining to legal proceedings.
9. Personalized criticism: - (1) Subject to the provisions of this Ordinance,
personalized criticism of a specific judge, or judges, may constitute judicial
contempt save and except true averment if made in good faith and in
temperate language in a complaint made,
(a) to the administrative superior of a judge of a subordinate court;
(b) to a Provincial government;
(c) to the Chief Justice of a High Court;
(d) to the Supreme Court;
(e) to the Supreme Judicial Council; or
(f) to the Federal Government for examination and being forwarded to
the Supreme Judicial Council;
(2) Nothing contained in sub-section (1) is intended to deprive a judge of
the right to file a suit for defamation.
10. Fair comments: - The fair and healthy comments on a judgment
involving question of public importance in a case which has finally been
decided and is no longer pending shall not constitute contempt;
Provided that it is phrased in temperate language and the integrity a nd
impartiality of a Judge is not impugned.

63

11. Judicial contempt: - (1) A superior court may take action in a case of
judicial contempt on its own initiative or on information laid before it by any
person.
(2) Any person laying false information relating to the commission of an
alleged judicial contempt shall himself be liable to be proceeded
against for contempt of court.
(3) Judicial contempt proceedings initiated by a judge, or relating to a
judge, shall not be heard by the said judge, but shall (u nless he is
himself the Chief Justice) be referred to the Chief Justice, who may
hear the same personally or refer it to some other judge, and, in a
case in which the judge himself is the Chief Justice, shall be referred
to the senior most judge available for disposal similarly.
(4) No proceedings for judicial contempt shall be initiated after the
expiry of one year.
12. Civil contempt: - (1) Proceeding for civil contempt may be initiated suo
moto or at the instance of an aggrieved party.
(2) The provisions contained herein are intended to be in addition to, and
not in derogation of, the power of the court under any other law for
the time being in force to enforce compliance of its orders, judgments
or decrees.
13. Procedure in cases of contempt in the face of the court: - (1) In the case
of a contempt committed in the face of the court, the court may cause the
contemner/offender to be detained in custody and may proceed against him in
the manner provided in sub-section (2);
Provided that if the case cannot be finally disposed of on the same day,
the court may order the release of the accused from the custody either on bail
or on his own bond.
(2) In all cases of contempt in the face of the court the judge shall pass
an order in open court recording sep arately what was said or done by
the accused person and shall immediately proceed against the
offender or may refer the matter to the Chief Justice for hearing and
deciding the case by himself or by another Judge.

64

14. Expunged material: - No material which has been expunged from the
record under the orders of
(i) a court of competent jurisdiction, or
(ii) the presiding officer of the Senate, the National Assembly or a
Provincial Assembly,
Shall be admissible in evidence unless it is otherwise ordered by
the court.
15. Innocent publication: - No person shall be guilty of contempt of court for
making any statement, or publishing any material, pertaining to any matter
which forms the subject of pending proceedings, if he was not aware of the
pendency thereof.
16. Protected statements: - No proceedings for contempt of court shall lie in
relation to the following:(i) observations made by a higher or appellate court in a judicial order or
judgment;
(ii) remarks made in an administrative capacity by any authority in the
course of official business, including those in connection with a
disciplinary inquiry or in an inspection note or a character roll or
confidential report; and
(iii) a true statement regarding conduct of a judged connected with the
performance of his judicial functions.
Provided that onus of proof shall be on the person relying on the
statement.
17. Procedure: - (1) Save as expressly provided to the contrary, proceedings
in cases of contempt shall be commenced by the issuance of a notice, or a
show cause notice, at the discretion of the court.
(2) In the case of a notice the alleged contemner may enter appearance in
person or through an advocate, and, in the case of a show cause
notice, shall appear personally;
Provided that the court may at any time e xempt the alleged
contemner from appearing personally.

(3) If, after giving the alleged contemner an opportunity of a preliminary

hearing, the court is prima facie satisfied that the interest of justice so
requires, it shall fix a date for framing a charge in open court and
proceed to decide the matter either on that date, or on a subsequent
date or dates, on the basis of affidavits, or after recording evidence;
Provided that the alleged contemner shall not, if he so requests, be
denied the right of cross examination in relation to any affidavit,
other than that of a judge, used in evidence against him.
18. Substantial detriment: - (1) No person shall be found guilty of contempt
of court, or punished accordingly, unless the court is satisfied that the
contempt is one which is substantially detrimental to the administration of
justice or scandalizes the court or otherwise tends to bring the court or Judge
of the court into hatred or ridicule.
(2) In the event of a person being found not guilty of contemp t by reason
of sub-section (1) the court may pass an order deprecating the
conduct, or actions, of the person accused of having committed
contempt.
(3) Subject to the provisions of this Ordinance, truth shall be a valid
defence in cases of contempt of co urt.
19. Appeal: - (1) Notwithstanding anything contained in any other law or the
rules for the time being in force, orders passed by a superior court in contempt
cases of contempt shall be appealable in the following manner:
(i) in the case of an order passed by a single judge of a High Court an
intra-court appeal shall lie to a bench of two or more judges;
(ii) in a case in which the original order has been passed by a division or
larger bench of a High Court an appeal shall lie to the Supreme
Court; and
(iv) in the case of an original order passed by a single judge or a bench of
two judges of the Supreme Court an intra -court appeal shall lie to a
bench of three judges and in case the original order was passed by a

bench of three or more judges an intra -court appeal shall lie to a

bench of five or more judges.
(2) The appellate court may suspend the impugned order pending
disposal of the appeal.
(3) The limitation period of filing an appeal shall be thirty days.
20. Repeal: - The Contempt of Court Act, 1976 (LXIV of 1976) is hereby
repealed.

GENERAL
PERVEZ MUSHARRAF,
President.

-----------------MR. JUSTICE
MUHAMMAD NAWAZ ABBASI,
Principal Secretary

Defamation ordinance, 2002

Islamabad, the 1st of October, 2002
ORDINANCE NO. LVI OF 2OO2
AN
ORDINANCE

To make provisions in respect of defamation

WHEREAS it is expedient to make provisions in respect of defamation
and for matters connected therewith or in cidental thereto;
AND WHEREAS, the President is satisfied that circumstances exist
which render it necessary to take immediate action;
NOW, THEREFORE, in pursuance of the Proclamation of Emergency of
the fourteenth day of October, 1999, and the Provisional Constitution Order
No. 1 of 1999, read with the Provisional Constitutional (Amendment) Order
No. 9 of 1999, and in exercise of all powers enabling him in that behalf, the
President of the Islamic Republic of Pakistan is pleased to make and
promulgate the following Ordinance; 1.

Short title, extent and commencement. (1) This ordinance may

be called the Defamation Ordinance, 2002.

(2)

It extends to the whole of Pakistan.

(3)

It shall come into force at once.

a.

Definitions. In this Ordinance, unless there is anything repugnant

in the subject or context, -

(a)

author means the originator of the statement;

(b)

broadcasting means the dissemination of writing, signs, signals,

pictures and sounds of all kind, including any electronic device,
intended to be re ceived by the public either directly or through the
medium of relay stations, by means of,

(i)

a form of wireless radio-electric communication utilizing Hertzian

waves, including radiotelegraph and radiotelephone, or

(ii)

cables, computer, wires, fiber-optic linkages or laser beams, and

broadcast has a corresponding meaning;

(c)

editor means a person or operator having editorial or equivalent

responsibility for the content of the statement or the decision to
publish or circulate it;

(d)

newspaper means a paper containing public news, intelligence or

occurrences or remarks or observations or containing only, or
principally, advertisements, printed for distribution to the public and
published periodically, or in parts or members, and includes such
other periodical works as the Federal Government may, by
notification in the official Gazette, declare to be newspaper;

(e)

publication means the communication of the words to at least one

person other than the person defamed and includes a newspaper or
broadcast through the internet or other media; and

(f)

publisher means a commercial publisher, that is, a person whose

business is issuing material to the public, or a section of the public,
who issues material containing the statement in the course of that
business.

3.

Defamation. (1) Any wrongful act or publication or circulation of a

false statement or representation made orally or in written or visual
form which injures the reputation of a person, tends to lower him in
the estimation of others or tends to reduce him to ridicule, unjust
criticism, dislike, contempt or hatred shall be actionable as
defamation.

(2)

Defamation is of two forms, namely: -

(i)

Slander; and

(ii)

libel.

(3)

Any false oral statement or representation that amounts to defamation

shall be actionable as slander.

(4)

Any false written, documentary or visual statement or representation

made either by ordinary form or expression or by electronic or other
modern means or devices that amounts to defamation shall be
actionable as libel.

4.

Defamation actionable. - The publication of defamatory matter is

an actionable wrong without proof of special damage to the person
defamed and where defamation is proved, damage shall be presumed.

5.

Defences. In defamation proceedings a person has a defence if he

shows that -

(a)

he was not the author, editor, publisher or printer of the statement

complained of;

(b)

the matter commented on is fair and in the public interest and is an

expression of opinion and not an assertion of fact and was published
in good faith;

(c)

it is based o n truth and was made for public good;

(d)

assent was given for the publication by the plaintiff;

(e)

offer to tender a proper apology and publish the same was made by
the defendant but was refused by the plaintiff;

(f)

an offer to print or publish a contradiction or denial in the same

manner and with the same prominence was made but was refused by
the plaintiff;

(g)

the matter complained of was privileged communication such as

between lawyer and client or between persons having fiduciary
relations;

(h)

the mater is covered by absolute or qualified privilege.

6.

Absolute privilege. Any publication of statement made in the

Federal or Provincial legislatures, reports, papers, notes and
proceedings ordered to be published by either house of the
Parliament or by the Provincial Assemblies, or relating to judical
proceedings ordered to be published by the court or any report, note
or matter written or published by or under the authority of a
Government, shall have the protection of absolute privilege.
Explanation. In this section legislature includes a local legislature
and court includes any tribunal or body exercising the judicial
powers.

7.

Qualified privilege. Any fair and accurate publication of

parliamentary proceedings, or judicial proceedings which the public
may attend and statements made to the proper authorities in order to
procure the redress of public grievances shall have the protection of
qualified privilege.

8.

Notice of action. No Action lies unless the plaintiff has, within two
months after the publication o f the defamatory matter has come to his
notice or knowledge, given to the defendant, fourteen days notice in
writing of his intention to bring an action, specifying the defamatory
matter complained of.

9.

Remedies. Where defamation shall be proved to ha ve occurred, the

Court may pass order directing the defendant to tender an apology, if
acceptable to the plaintiff, and publish the same in similar manner
and with the same prominence as the defamatory statement made and
pay reasonable compensatory damages as general damages with a
minimum of Rs. 50,000 (Rupees fifty thousand) or shall undergo
three months imprisonment and in addition thereto, any special
damage incurred that is proved by the plaintiff to the satisfaction of
the Court.

10.

Code of civil procedure and Qanun-e-Shahadat order to apply.

The Code of Civil Procedure, 1908 (Act. No. V of 1908) and the
Qanun-e-Shahadat, 1984 (P.O. No. 10 of 1984) shall mutatis
mutandis, apply to the proceedings under this Ordinance.

11.

Ordinance not to prejudice action for criminal defamation.

Nothing in this Ordinance shall prejudice any action for criminal libel
or slander under any law for the time being in force.

12.

Limitation of actions. An action against ---

(a)

an author, editor, proprietor or publisher o f a newspaper;

(b)

the owner of a broadcasting station;

(c)

an officer, servant or employee of the newspaper or broadcasting

station; or

(d)

any other purpose,

for defamation contained in the newspaper or broadcast from the
station or its publication otherwise shall be taken within six months
after the publication of the defamatory matter came to the notice or
knowledge of the person defamed.

13.

Trial of cases. No court inferior to that of the District Judge shall

have jurisdiction to try cases under this Ordinance .

14.

Court to decide the cases expeditiously. The court shall decide a

case under this Ordinance with in a period of six months.

15.

Appeal. An appeal against the final order of the District Judge shall
lie to the High Court within thirty days of the passing of such order;
Provided that no appeal shall lie against an interlocutory order of the
court.

16.

Power to make rules. The Federal Government may, by

notification in the official Gazette, make rules to carry out the
purposes of this Ordinance.

GENERAL
PERVEZ MUSHARAF,
President.
---------------------------

MR. JUSTICE
MANSOOR AHMAD,
Secretary.

Internews Pakistan
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