In defamation’s name …. Umair Javed
LAST week, the Punjab Assembly hastily passed a defamation bill, despite grave concerns raised by journalist unions and rights bodies, as well as opposition legislators. The bill, which now only requires the governor’s assent before coming into force, proposes special tribunals to deal with cases of ‘fake news’ and purposeful ‘misinformation’, with punishments ranging from a fine of Rs3 million in general damages to 10 times that amount as punitive damages.
There are several reasons why the passage of this bill is a worrying development. It provides a pretext to the state to clamp down on speech in the name of fighting fake news; it opens up a new route to victimise opposition politics; and it empowers unaccountable, single-member platforms outside the existing legal apparatus to determine what constitutes defamation.
Before getting into these in detail, there is sufficient ground to wonder whether a defamation law of this nature helps in addressing its targeted problem in the first place. There is no denying that the widened use of social media outlets has created an oversupply of information, much of which is free from the burden of factual rigour or accuracy. It is also true that the proliferation of such information happens at a much faster rate now, with intended, or otherwise, effects taking place more rapidly and at a wider scale.
This premise makes it seem that a legal remedy of some sort is required, which defamation laws usually provide. But the government in this instance is monopolising the nature of the remedy, when it is not equipped or capable of determining the scale and nature of the problem. The task deserves careful deliberation by a much wider set of stakeholders that includes citizen media watchdogs, journalist associations, and rights bodies, especially those dealing with digital rights.
Such a punitive legal instrument in the hands of state authorities can only indicate coercive intention.
One primary reason for caution and scepticism regarding this latest piece of legislation stem from the particular track record of the Pakistani public authorities on issues related to speech, especially in the online domain. The impact of Peca’s passage under the PML-N government in 2015 and subsequent amendments in recent years has been detrimental to free expression, especially regarding rights activists and critical voices (such as those of the opposition). This point was ably demonstrated by representatives of the Lahore Press Club who pointed out the double standards of the current government, which sided with journalists against the Peca amendments while in opposition, but were quick to pass them once they stepped into power.
The end result has been that the grounds established for Peca, that it would protect the online rights of citizens, have been subverted by the act itself. Instead, it has turned out to be yet another example of the state using the law to empower itself against citizens. This is a natural consequence of a state that envisions itself primarily on grounds of (self-defined) national security, and sees segments of its population as a source of insecurity and risk. In turn, this vision flows from the imbalance between civilian and security apparatuses within the structure of the state itself.
A second reason for caution lies in the timing and the political context in which this bill has been drafted. The last two years have seen an escalation of rights violations, culminating in the suppression of the PTI through a variety of legal and extra-legal means. The opposition party’s use of social media is frequently cited as a key reason for its enduring popularity, which allowed it to wage an unprecedented, insurgent election campaign and emerge as the largest party in the country.
This defamation bill places the regulation of social media as one of its central objectives. In other words, it is reasonable to think of it as a key legal instrument that can be deployed against an already suppressed political entity, further limiting its ability to play its role as an effective opposition. While there is no doubt that social media disinformation has been a key plank of the PTI’s political strategy, such a punitive legal instrument in the hands of state authorities can only indicate coercive intention.
Finally, the procedural critique of setting up a parallel judicial structure, raised forcefully by the Human Rights Commission of Pakistan, is also worth raising here. As the rights body has stated in a recent statement, the 180-day timebound nature of proceedings, while possibly well-intentioned, undermines the quality of the legal process and may lead to large punishments being levied in relative haste. It also sidesteps the provisions of existing witness laws in the country.
Additionally, the bill authorises the government to appoint tribunal members (drawing on a pool solicited from the chief justice of the high court) and offer emoluments higher than currently being done by the judiciary. This represents a significant encroachment of executive authority on judicial functioning, leaving the door open to misuse and subversion for a wide range of political purposes.
Overall, the bill has solicited an outcry from media and rights-based civil society, along with the expected opposition from PTI-SIC members in the legislature. This alone should give the government reason to pause and evaluate the contours of this legislation.
It is an indictment of public authority in this country that punitive attempts to resolve a problem such as fake news invite significant scepticism about intentions and expected use. It reflects a deepening of mistrust between key civil society stakeholders and the state, and an erosion of democratic norms that grants rights and space for the functioning of political opposition. Simultaneously, it provides yet more proof that the undergirding logic of public authority in Pakistan is legal and extra-legal coercion rather than legitimised consent.
The writer teaches sociology at Lums.
X: @umairjav
Courtesy Dawn, May 27th, 2024