Exim Bank Agricultural University

Bangladesh

An Assignment on Defamation
Date of Submission 30 June 2020

Submitted to Submitted by
Md. Anamul Haque Md. Hasanul Momin Shawon
Lecturer, Department Of Law Reg no: LLB2018000689
Exim Bank Agricultural Batch: 13th Department Of Law
University Bangladesh Exim Bank Agricultural
University Bangladesh

Exim Bank Agricultural University, Bangladesh

House no: 69-69

69 Boro Indara Moor, Chapai Nawabganj 6300

Tel: 078153525-29 Email: Info@ebaub.edu.bd

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 INDEX
CONTENTS PAGE NO

Defamation
Abstract ……...……………………………………….. 3
Definition of defamation …………...…….………….. 4
Types of defamation …………………………… …….. . 5
Elements of Defamation………………………... …….. 6
Provisions under statutory laws regarding
defamation?……………………………………….. …… 7
Exception for defamation………………………………. 10
What does other Laws say about
defamation?……………………………………….. ……. 12
Provision regarding cyber defamation..………….. ……. 14
Who can sue?............................................................... 15
Recommendations……………………………………….. 18
Conclusion…………………………………………. …… 19

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 Defamation
Abstract
Defamation is the act of publishing an untrue statement which
negatively affects someone’s reputation. Taken at face value this
definition is obviously far reaching. Luckily, both common and statute
law has developed a framework to limit the extent of the tort of
defamation.

They key authority is the Defamation Act 2013, which helps straighten
out the significant body of case law which has built up over the years.
The overall aim of the act was to rebalance the law towards protecting
freedom of speech.1

1
Available in online https://www.lawteacher.net/modules/tort-law/defamation/lecture.php 14 June 2020

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Definition of defamation
Definition by eminent jurist:

Prof. Salmond:

“The wrong of defamation consists in the publication of a false and

defamatory statement respecting another person without lawful
justification or excuse.”

Underhill:

“Defamation means publication of false and defamatory statement

about any person without any proper cause.”

Blackburn and George:

“Publication of false statement which destroys some ones reputation in

the sence of right thinking members of the society it creates
defamation.”

Prof. Winfield:

“Defamation is the publication of statement which tends to lower a

person in the estimation of right thinking members of society generally
or which tends to make them shun or avoid that person.” 2

2
Available in online https://www.assignmentpoint.com/arts/law-of-defamation.html 14 June 2020

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Types of defamation
There are two types of defamation in India: Civil and Criminal.

In civil defamation a person who is defamed can move either High

Court or subordinate courts and seek damages in the form of monetary
compensation. There is no punishment in the form of jail sentence.

In criminal defamation, the person against whom a defamation case is

filed might be sentenced to two years’ imprisonment or fined or both. 3

3
Available in online https://www.thestatesman.com/india/explained-section-499-the-defamation-law-in-india-
1502696982.html 14 june 2020

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Elements of Defamation
The elements that must be proved to establish defamation are:

1. a publication to one other than the person defamed;

2. a false statement of fact;

3. that is understood as

a. being of and concerning the plaintiff; and

b. tending to harm the reputation of plaintiff.

If the plaintiff is a public figure, he or she must also prove actual

malice.4

4
Available in online https://www.eff.org/issues/bloggers/legal/liability/defamation 14 June 2020

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Provisions under statutory laws regarding
defamation
Under Bangladesh Penal Code:
Whoever by words either spoken or intended to be read, or by signs or
by visible representations, makes or published any imputation
concerning any person intending to harm, or knowing or having reason
to believe that such imputation will harm, the reputation or such
person, is said, except in the cases hereinafter excepted, to defame
that person.

Explanation 1.-It may amount to defamation to impute any thing to a

deceased person, if the imputation would harm the reputation of that
person if living, and is intended to be hurtful to the feelings of his family
or other near relatives.

Explanation 2.-It may amount to defamation to make an imputation

concerning a company or an association or collection of persons as
such.

Explanation 3.-An imputation in the form of an alternative or

expressed ironically, may amount to defamation.

Explanation 4.-No imputation is said to harm a person's reputation,

unless that imputation directly or indirectly, in the estimation of others,
lowers the moral or intellectual character of his caste or of his calling,
or lowers the credit of that person, or causes it to be believe that body
of that person is in a loathsome state, or in a state generally considered
as disgraceful.

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Illustrations
(a) Shawon say's – “Saidy is an honest man; he never stole Mizan's
watch”; intending to cause it to be believed that Saidy did steal B's
watch. This is defamation, unless it fall within one of the exceptions.

(b) NIsha is asked who stole Trina's watch. A points to Urmi, intending
to cause it to be believed that Urmi stole Trina's watch. This is
defamation, unless it fall within one of the exceptions.

(c) Nijhu draws a picture of Abir running away with Nur's watch,
intending it to be believed that Abir stole Nur's watch. This is
defamation, unless it fall within one of the exceptions.

Under tort law:

Under tort law is concerned, as a general rule, the focus is on libel and
not on slander . In order to establish that a statement is libellous, it
must be proved that it is (i) false, (ii) written; (iii) defamatory, and (iv)
published.

An interesting aspect of defamation as a tort is that it is only a wrong if

the defamation is of a nature which harms the reputation of a person
who is alive. In most cases, this translates to saying that it is not a tort
to defame a deceased person since, as a general rule, the plaintiff
needs to be able to prove that the defamatory words referred to him.
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However, this does not mean that there can be no cause of action if a
dead person is defamed — if, for example, a defamatory statement
negatively impacts the reputation of a deceased person’s heir, an
action for defamation would be maintainable. Further, if an action for
defamation is instituted, and defamation is found to have been
committed, damages will be payable to the plaintiff (usually, the person
defamed). In addition to this, a person apprehensive of being defamed
in a publication may seek the grant of an injunction to restrain such
publication. However, prepublication injunctions are rarely granted as
Indian courts have tended to follow the principle laid down in the 1891
case of Bonnard v. Perryman which is as follows: The Court has
jurisdiction to restrain by injunction, and even by an interlocutory
injunction, the publication of a libel. But the exercise of the jurisdiction
is discretionary, and an interlocutory injunction ought not to be granted
except in the clearest cases—in cases in which, if a jury did not find the
matter complained of to be libellous, the Court would set aside the
verdict as unreasonable. An interlocutory injunction ought not to be
granted when the Defendant swears that he will be able to justify the
libel, and the Court is not satisfied that he may not be able to do so.
This principle has been followed by a division bench of the Delhi High
Court in the 2002 case of Khushwant Singh v. Maneka Gandhi.15 As
such, even if there is an apprehension that.5

5
Available in online http://ili.ac.in/pdf/paper10.pdf and http://bdlaws.minlaw.gov.bd/act-11/chapter-details-
24.html?lang=bn 15 June 2020

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Exception For Defamation

Chapter 21 Section 499 of Bangladesh’s penal code, “whoever by

words either spoken or intended to be read, or by signs or by visible
representations, makes or publish any imputation concerning any
person intending to harm, or knowing or having the reason to believe
that such imputation will harm, the former person will be liable to the
latter.”

The statue also outlines a list of exceptions. Accordingly, it is not

defamation:

(1) to impute anything which is true concerning any person, if it be for

public good;

(2) to express in good faith any opinion respecting the conduct of a

public servant in the discharge of his public functions or respecting his
character;

(3) to express in good faith any opinion respecting the conduct of any
person touching any public question;

(4) to publish a substantially true report of the proceedings of a Court

of Justice;

(5) to express in good faith any opinion respecting the merits of any
case, civil or criminal, which has been decided by a Court of Justice;

(6) to express in good faith any opinion respecting the merits of any
performance which its author has submitted to the judgment of the
public;

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(7) in a person having over another any authority, either conferred by
law or arising out of a lawful contract made with the other, to pass in
good faith any censure on the conduct of the latter in matters to which
such lawful authority relates;

(8) to prefer in good faith an accusation against any person to any of

those who have lawful authority over that person with respect to the
subject matter of accusation;

(9) to make an imputation on the character of another, provided that

the imputation be made in good faith for the protection of the interest
of the person making it, or for the public good;

(10) to convey a caution, in good faith, to one person against another,

provided that such caution be intended for the good of the person to
whom it is conveyed.

Imprisonment may not exceed two years.

Bangladesh takes a very relaxed stance when it comes to outlining

allowable damages. Instead, the fines and punishments for each case
are “determined by the principles of justice, equity and good
conscience.6

6
Available in online https://kellywarnerlaw.com/bangladesh-defamation-laws/ 15 June 2020

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What does other Laws say about
Defamation?
Defamation under ICT Act 2006 (Section 57)

(1) If any person deliberately publishes or transmits or causes to be

published or transmitted in the website or in electronic form any
material which is fake and obscene or its effect is such as to tend to
deprave and corrupt persons who are likely, having regard to all
relevant circumstances, to read, see or hear the matter contained or
embodied in it, or causes to deteriorate or creates possibility to
deteriorate law and order, prejudice the image of the State or person
or causes to hurt or may hurt religious belief or instigate against any
person or organization, then this activity of his will be regarded as an
offence.

Punishment:

(2) Whoever commits offence under sub-section (1) of this section he

shall be punishable with imprisonment for

a term which may extend to maximum 10 years and with the fine which
may extend to taka one crore.

Definition Under Digital Security Act 2018 (Section 29)

29) To publish, broadcast, etc., defamation information:-

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(1) If a person commits an offence of publication or broadcast
defamatory information as described in section 499 of the Penal Code
(Act XLV of 1860) in any website or in any other electronic format then
he will be sentenced to a term of imprisonment not exceeding 3(Three)
years or fine not exceeding Tk.5 (Five) lac or both.

(2) If any person commits the offence mentioned in sub-section (1)

second time or repeatedly, he he will be sentenced to a term of
imprisonment not exceeding 5(Five) years or fine not exceeding Tk.10
(Ten) lac or both.7

7
Available in online ICT Act 2006 and Digital Security Act 2018 16 June 2020

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Provision regarding Cyber defamation
With the expansion of social media and the public’s heavy reliance on
the Internet, the opportunity for publishing defamatory statements, or
internet defamation, has grown immensely. With outlets such as
Facebook and Twitter, people can instantly publish statements that
reach thousands of people. For this reason, the laws concerning
defamation apply to statements made online, where private individuals
or the public as a whole can view them. Other common outlets for
internet defamation include private and public blogs. Defamation in
social medial and on the internet are generally easy to track, making it
important that people carefully consider what they post concerning
other people.

According to Section 230 of the Communications Decency Act of 1996,

however, a person that creates a forum on the Internet is immune from
liability for the defamatory statements published by a third party 8

8
Available in online https://legaldictionary.net/defamation/ 16 June 2020

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Who Can Sue?
Individuals

Any living individual can sue for defamation; the dead cannot i.e. an
estate or relatives of a deceased person cannot sue for libel over
defamatory statements made about the deceased person.

Companies

Companies can sue if the defamatory statement is in connection with

its business or trading reputation and has caused or is likely to cause
serious financial loss.

Residents overseas

An individual can normally sue in the country where the defamatory

statement was read or viewed, if there is sufficient circulation, or
viewers. Foreigners can and do sue in the UK, even when they are not
allowed to enter the country. For example Roman Polanski, who was
living in Paris, successfully sued Vanity Fair, a US publication, in England
because the magazine had a limited circulation there and he was even
permitted to give evidence via video link because he could not enter
the UK without fear of arrest. Where a prospective defendant is not
domiciled in the UK, another European Member State (or in a State
which is a party to the Lugano Convention), the English Courts are not
permitted to entertain a claim for libel "… unless the court is satisfied
that, of all the places in which the statement complained has been
published, England and Wales is clearly the most appropriate place in
which to bring an action in respect of the statement." This provision
was enacted to deal with the perceived problem of 'libel tourism' i.e.

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foreigners suing other foreigners in England because of England's
perceived claimant-friendly libel laws.

A Group or Class of Individuals

A group or class of individuals, if sufficiently defined, can also sue. For

example it would be defamatory to say that all strikers of a particular
football team took performance enhancing drugs and each one could
potentially sue, even though none had been named specifically. The
larger the class of individuals defamed, the less likely unnamed
individuals would be able to sue. For example, unnamed individual
players could not sue on the generalised allegation that players in the
Premier League took performance enhancing drugs. Similarly, individual
unnamed goal keepers would not be able to sue on the generalised
allegation that all professional goal keepers take 'bungs', because the
class is too large.

Certain government bodies cannot bring libel claims. If, however,

individual members, officers or employees are the subject of the
defamatory statements, these individuals can sue personally to seek to
protect their own reputations.

'Jigsaw Identification'

Sometimes television programmes/newspapers report defamatory

allegations but, for one reason or another, for example because they
are not confident they can actually prove the allegations, they do not
identify the individual or organisation they are referring to, only giving

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certain details which they hope will be insufficient for viewers/readers
to work out who is being referred to.

This is risky not least because, at the time of publication, there may be
other information in the public domain (of which the publisher is
unaware) which could lead to viewers/readers identifying the
person/company being referred to. When this happens, the question of
where liability for defamation lies is unclear and it is likely that the
person or organisation who considers themselves defamed would
attempt to sue the original programme-makers, broadcaster or
newspaper that originally made the allegations.9

9
Available in online https://www.channel4.com/producers-handbook/media-law/defamation/who-can-sue 16
June 2020

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Recommendations
a) Make our leader to understand that the law is not their private
property which can be used as how they want.

b) Law making authority should take some steps to using the section
more significantly.

c) Punishment for cyber defamation needs to be reduced as it has been

given on the discussion on the matter of fact.

d) People should raise their voice to demolish the section 57 of ICT Act.

e) Execution of power by police should be under watch. 10

10
Available in online http://www.iosrjournals.org/iosr-jhss/papers/Vol.%2022%20Issue11/Version-
1/D2211012427.pdf 16 June 2020

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 Conclusion
Although being an independent country the application of democracy
exists but it cannot always fulfill the demand of whole nation.
Considering the urge of operation on freedom of expression should be
the first priority of any government and it cannot be throttled by the
people on self motive. Media, press, civil society plays a vital role in
democracy and that should not be curtailed through the embezzlement
of law.11

11
Available in online http://www.iosrjournals.org/iosr-jhss/papers/Vol.%2022%20Issue11/Version-
1/D2211012427.pdf 16 June 2020

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