This is apropos three letters titled ‘Goodbye to freedom of speech and expression’ the newspaper carried recently. I would be underscoring the need for moving further and asking ourselves another question: if the defendant is granted leave to defend, then what? Section 13(13) provides that if the claimant seeks to pursue the case beyond the preliminary decree of general damages, they are empowered to press the charges further.
The tribunal may impose special damages, defined in Section 2 as damages granted after the final conclusion of the proceedings. If the claimant proceeds further after the preliminary decree and establishes their claim for such damages, these will be in addition to the general damages granted by the tribunal.
Under Section 21, if defamation is established, the tribunal, in addition to general damages, may direct the defendant to tender an unconditional apology, published in the same manner and with the same prominence as the defamatory statement.
The defendant must also pay damages in terms of this Act. Furthermore, the tribunal may direct the relevant regulatory authority to suspend or block the defendant’s social media account or any other medium through which the defamatory content was disseminated.
In a scenario where the defendant chooses not to appear before the tribunal to present their defence, Section 18 of the said Act empowers the tribunal to pass an ex-parte order. This order will attain finality and will not be appealable, unless the defendant files for leave to defend within 30 days with the tribunal.
Even more interestingly, the Qanun-e-Shahadat 1984, which lays down the rules and principles for admitting and evaluating evidence in judicial proceedings, does not apply to the proceedings under this Act. This implies that the tribunal or court handling cases under this Act can adopt a more flexible and informal approach to evaluating evidence.
The tribunal will have greater discretion in deciding what evidence to consider and how to evaluate it. They can even admit evidence that might not meet the stringent criteria of the Qanun-e-Shahadat. This is fraught with risks of inconsistency in how evidence is treated in different cases, depending on the discretion of individual tribunals or judges.
The strength of this provision is that it strongly protects individuals’ reputations by allowing them to seek redress without the burden of proving actual damage, which can be challenging. Besides, the presumption of general damages serves as a deterrent against defamatory statements, encouraging individuals and entities to be more cautious about what they communicate.
The weakness could be that the lack of requirement to prove actual damage might lead to frivolous or vexatious lawsuits, potentially stifling free speech and legitimate criticism. Additionally, the imposition of general damages without clear guidelines might result in inconsistent or disproportionate awards, creating a legal uncertainty.
Qamar Bashir
Copyright Business Recorder, 2024
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