Law of Defamation: A culmination of a conflict between society and the individual.

“He that fliches from me my good name,

Robs me of that, which not enriches him,

And makes me poor indeed.”

                                                            William Shakespeare

Dasho Benji must have taken a few seconds to write the comments. A prominent political party, Druk Phuensum Tshogpa (DPT) must have taken few seconds to read. Then, the issue of defamation emerged. DPT feels defamed by the comments. Contrarily, Dasho Benji feels otherwise.  The impacts of this comment for both parties are hard hitting. DPT dragged defendant in the Court. Now, it may months before, the dispute is solved. It is going to create new Bhutanese jurisprudence in the area of law of
defamation owing to so many questions being raised by both the parties.  

In a way, it was relief to many Bhutanese media to get such a great of piece of Headline for them which could upscale their issue  and sale giving some financial relief who were otherwise says are dying lack of readership. In the process, people are informed of every hearing in a plain language than legal principles and jargon which most people wouldn't like read it.

The fact that Court accepted the petition is a prima facie that there is a case whether in favour of plaintiff or defendant.  The basic issue raised here is “Whether the comment made by the defendant amounts to defamation or not.”  This case though only has a single issue but seems to generate so many other issues on rights of both the parties- the defendant’s right to free speech and expression and plaintiff’s right to be safe guarded and protected of his honour and reputation.  Since, the case is sub judice I am not here to dwell on who is right or wrong.  Rather,  I am just expressing my view on what and how I see the law of defamation in nutshell and the impacts of this case would have on Bhutanese jurisprudence on this law.  

“The law of defamation is recognition of an inherent right to every individual to the preservation of his honour and the esteem in which he is held by society.” (Divan, M.D. 2006). Every person has right to claim that his reputation be not disparaged by any defamatory statements be it slander or libel. Among, all rights, right to preserve his reputation or honour is the most important as nothing can replace man’s honour or reputation.

 Therefore, let me try to put some general idea about defamation from what I know.
 Defamation may be defined as "A defamatory statement is a false statement of fact about a living person, corporate entity, or other business unit that tends to injure his or its reputation or the esteem, respect, or goodwill in which the subject is held by a substantial and respectable group of people. (Friedman, Jessica R.)
Therefore, analyzing the definition, to constitute a defamation in general:

1.       Defamation can be towards both legal and natural persons.  
2.       There is a publication of the statement orally or in writing.
3.       The statement was false  and defamatory,
4.       The statement was referred to the plaintiff directly or indirectly 
5.             It is not necessary to know the plaintiff
6.        It must have caused actual injury to the plaintiff, means the plaintiff’s reputation was lowered in the eyes of the third party. 
7.      Talking between the defendant and plaintiff does not constitute defamation. 
8.       The statement must not be true or must be a fair criticism. 

This is the general principle that would govern defamation in any legal system across the world. However, due to domestic laws and constitutions of respective country, the definition is bound to get modified.  Further, defamation is generally of two kinds, libel or slander. It can also be a civil suit and criminal suit. Since, we have a clause in Penal Code of Bhutan, defamation is both civil and criminal in nature. In case of civil, a person aggrieved may  sue for damage by means of law of tort. 

My views on defamation in Bhutanese Scenario. 

Freedom of Speech and Expression are our fundamental rights enshrined in the Constitution under Article 7(2) which states “A Bhutanese citizen shall have the right to freedom of speech, opinion and expression.” The same sacred book also empowers the sovereign to limit all fundamental rights through reasonable restrictions under Article 7 (22) including “rights and freedom of others” which may also include right to reputation.

Section 317 of Penal Code of Bhutan defined defamation as “A defendant shall be guilty of the offence of defamation, if the defendant intentionally causes damage to the reputation of another person or a legal person by communicating false or distorted information about that person's action, motive, character, or reputation.”  Like any other law of defamation, Section 318 of Penal Code also provides the following as exception to definition of defamation.

(a)   A bonafide expression made in the public interest;

(b)   A criticism of a literary work or product;

(c)   An appeal through lawful means or in good faith for redressing a grievance;

(d)   A bonafide complaint by the defendant against one’s own superior officer or about an employee serving under the officer;

(e)   A bonafide complaint by or to an agency or authority of Bhutan to redress a grievance;

(f)    A formal report of a supervisor or superior officer concerning the work or performance of an employee; or

(g)   Instances where the Court, based on relevant facts and circumstances, considers the statement made to be reasonable.

If we look at these two provisions, neither S.317 nor S.318 are crystal clear in their meaning as they are decorated with many legal jargon and abstract meanings. These words are neither defined in Penal Code of Bhutan nor any other statute. It is left to the judiciary to interpret through basic principles of law, the equality, reasonableness and self-conscience principles validated by evidences.

Now the task here is the interpretation of these three provisions, the fundamental right to freedom of speech and expression, right not to be defamed and exceptions as to defamation.  It’s going be a herculean task for any court as Bhutan travels on path of democracy and promises to uphold the true democratic values as wished by our far-sighted wisdom of a unique Monarch in the world, where power is gifted from throne through peaceful means which is an unprecedented era in Bhutan and for the world to see us as example.

If we float these provisions among the lawyers or even judges, it would bring a lot of theories and justifications as to its clarity and inference. Proving of intention and lowering of reputation would not be an easy task for any lawyer considering the evidence as one of the most crucial elements in determining the case as to amounts to or not amounts to defamation. This would be further complicated with the exception clauses using the words such as “bonafide, public interest, good faith or reasonable statements.”

Now such a milestone case is in the court, we the citizens especially the lawyers can expect some sort of clarity upon the pronouncement of the judgement. We are quite sure that, the Hon’ble court would come up with such a judgement that would not only define what amount to or not amounts to but also a definition that would suit the Bhutanese society and bring justice to all the parties for present and future. After all, society dictates the law and law being a dynamic in nature must suit the changing times and cope with the societal norms and laws in place.

Today, thousands of Bhutanese are active on social media in this era of information bombardment and is increasingly so rapidly every day including the government which is working so hard on promoting the use of Information Technology and Communication including social media. This case would remind all of us, the social media savvy, of our rights and duties when we write or express our opinions anonymously or otherwise on any issues not only related to political parties or politicians but also of the government, our friends, families and even strangers and individuals in any forum, formal or informal. 

At the end, we all must remember that no one has absolute right including our fundamental rights guaranteed by our constitution. State has a right to impose reasonable restrictions on every right given to us. Bhutan has been recognized as one of the most peaceful nations not only in the region but also on the global list. It is therefore, imperative that we must keep in our mind to exist peacefully through peaceful co-existence in the society for whatever the reason may be.