What constitutes defamation in the media and social media in Bhutan

Defamation generally means the protection of an individual’s reputation or feelings from unwarranted attacks or against false statements of fact which cause damage to a reputation.

It may be libel, slander, calumny, insult, desacato or lese majeste.

The defamation may be civil tort or criminal offence and  it is a criminal offence, according to Section 317 of Penal Code of Bhutan, 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’.

Thus, the prosecutor must prove these elements beyond reasonable doubt.  However, in case of civil tort, it is often a civil suit filed by the person who feels, he is defamed and seek damages as in case of recent defamation cases between DPT vs Dasho Benji or Sonam Phuntsho vs Dr. Shacha and Namgay Zam.

Often in case of civil suits, to protect free, vibrant and warranted debate or prevent harassment of each other, it may be more appropriate to create proportionate remedies rather than seeking unreasonable amount of damages while filing the suit.

Generally, whether it is a criminal or civil suit, it is considered defamation when someone makes a statement which is false, cause’s injury (his or her reputation is affected), the statement is published (whether in written or spoken) and it is not an honest mistake.  But then it is left to the judiciary to interpret these through basic principles of law, equality, reasonableness and self-conscience validated by evidences.

Every individual has right to freedom of speech, opinion and expression as provided under Article 7(2) and freedom of press, radio, television and others including electronic under Article 7(5) of the  Constitution but they must also exercise these rights and freedoms responsibly as there exists a very thin line between freedom of expression and violation of some one’s privacy and  protection of his reputation which are equally important as freedom of expression or media.

In such regards publishing a true statement is never defamation and media should never take that as an excuse to refrain from reporting against someone because they are powerful or well connected.

It is, therefore, imperative that the media must perform its duties with caution to avoid any false or untrue facts and figures which could affect someone’s reputation otherwise; we would expect more and more allegations of defamation from both natural and legal persons.

On Social Media, now with the availability of numerous forms of social media including Facebook, Twitter, WeChat, Watsapp or YouTube, it is even easier to make defamatory statements and these social media tools often reaches thousands or millions of users instantly.

By law, whether such statements are made through an update or uploading of Facebook status or Twitter or uploads on YouTube, WeChat, Watsapp or other social media platforms, would all equally constitute defamation under the law of defamation like any other medium. Therefore, people should be mindful of what they post or publish on their social networks or else face the consequences under the relevant laws of the country.

I would also caution people to understand that people with higher posts or reputation in the society such as high ranking or well known public figures are more protected by the law of defamation. This also includes people who make a living off their reputation like politicians, journalists, etc.

This means such pubic figure can sue for higher damages for defamation than other ordinary people in the country.

To cite an example a senior retired justice in India filed a defamation suit after his photo was displayed for about fifteen seconds in place of another judge in a report of alleged corruption among some judges and he sought damages of Rs.100 crore (Nu 1 billion) and an Indian  Court granted him Rs. 100 crore considering his impeccable reputation as one the justices of the Supreme Court of India before his retirement.

by Sonam Tshering

The writer is a lawyer based in Bhutan

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