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Defamation Law in Bhutan: Some Reflections Iyer, Venkat between 2008-06 and 2008-08

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 Defamation Law in Bhutan: Some Reflections
Venkat Iyer*
Introduction
The recent judgment of the Thimphu High Court in the
defamation case involving the former Director of Revenue and
Customs, Sangay Zam, the present Finance Minster, Lyonpo
Wangdi Norbu, and Lyonpo Yeshey Zimba, on the one hand,
and the former authorised agent of PlayWin online lottery,
Sangay Dorji, raises some interesting questions about the
manner in which reputational interests of individuals are
protected under Bhutanese law.
The case, which arose out of comments made by Sangay Dorji
at a workshop on "Review of Anti-Corruption Strategies"
conducted by the Anti Corruption Commission of Bhutan in
August 2007, was first filed in the Thimphu District Court by
the Office of the Attorney General (OAG) which reportedly
acted at the behest of the three complainants. The District
Court delivered a judgment in July 2008 in which it
dismissed the case and laid down certain principles to be
followed in defamation suits.
The case was then taken in appeal to the High Court by the
OAG. A FuU Bench of the High Court heard arguments from
both sides and deUvered the abovementioned judgment on 30
December 2008 which effectively affirmed the verdict of the
District Court, holding it to be "fair and reasonable enough".1
* Law Commissioner, Northern Ireland (UK), and Senior Lecturer,
School of Law, University of Ulster.
1 "Defamation suit comes unstuck", Kuensel, 31 December 2008,
p.4. The judgment of the High Court was rendered in Dzongkha and
since no English translation has been published, the author has
relied on the above newspaper report for guidance.
 Defamation Law in Bhutan
Basic principles
Before we analyse the two judgments, it would be helpful to
cast a quick glance at the basic principles of, and approaches
to, defamation law in some major jurisdictions. For the sake
of convenience and to keep this discussion within
manageable limits, reference will be made particularly to the
position prevailing in England and the United States of
America, two of the most widely respected legal jurisdictions
in the world.
The law of defamation rests on the value that people attach to
the reputation of individuals. In most countries, a person's
reputation is considered to be as important as his personal
possessions - in other words, the right to reputation is
treated as being on par with the right to property.
Shakespeare put it even higher when he said:
"Who   steals   my   purse,    steals   trash;    'tis   something,
nothing;
Twas mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name,
Robs me of that which not enriches him,
And makes me poor indeed."2
Therefore, just as the law provides for compensation to be
paid when a person is wrongfuUy deprived of his property, so
the law also requires the payment of compensation to anyone
whose reputation is damaged. Additionally, some countries
also aUow for punishment - in the form of a fine or
imprisonment - for the defamer, although this aspect of the
law is fast falling into disuse.3
There are two types of defamation: libel and slander. Libel
consists of defamation in a permanent form,  e.g.  in print,
2 Othello, Act 111, Scene 3, 167.
3 Most Western countries have either abolished, or abandoned the
use of, prosecutions for defamation. However, such prosecutions
continue in a number of Asian jurisdictions, e.g. India, Malaysia,
Singapore, and Thailand.
83
 Journal of Bhutan Studies
tape, or compact disc, whtie slander consists of defamation in
non-permanent or transient form, e.g. in spoken words.
Sometimes, the same matter may constitute both libel and
slander: for example, when a person utters defamatory words
during a live radio broadcast (slander) which is then recorded
on tape by another person (libel). Some legal systems provide
for special rules in respect of slander but, generally speaking,
the effects of both types of defamation are the same in law.
Arguably, the most important question that arises is: what
constitutes defamation? Although there are some variations
between countries, the most commonly used definition states
that defamation consists of any act which results in the
reputation of a person being lowered in the eyes of other
right-thinking members of society. Note that the lowering of
the reputation must be in the eyes of others, not the person
concerned himself. This means that, if someone were to say
something highly abusive about another person to his face,
the abused person cannot complain of being defamed,
however hurt he may be by the abuse. Note also that the
effect of a defamatory statement wiU be judged on right-
thinking members of society, viz. reasonable people of
ordinary sensibtiities, not someone who is hypersensitive or
very thick-skinned.
It is important, of course, that the statement being
complained of must be false. True accusations against
someone, even if it has the effect of lowering his reputation,
cannot amount to defamation. This means that truth can be
a defence by anyone accused of defaming another person.
The law recognises a number of other defences as well to a
charge of defamation. The most commonly used among
these, particularly by the media, is fair comment and
privtiege. Fair comment involves the defendant arguing that
the statement complained of was an honest and reasonable
opinion expressed by him without malice on a matter of
public interest and upon facts which had been clearly
established.    In order to succeed, the comment should have
84
 Defamation Law in Bhutan
been expressed in moderate language. It should not be
motivated by personal grudge or other selfish considerations.
As for privilege, the law recognises certain occasions when the
public interest requires complete freedom of speech, including
protection from proceedings for defamation, even if the speech
is subsequently shown to be false or mistaken. There are two
types of privilege: absolute privtiege and qualified privtiege.
Absolute privtiege aUows a person to say or write anything,
even maliciously, and sttil not face the possibtiity of
defamation suits. The most commonly cited example of this
type of privilege is speeches made by Members of Parliament
on the floor of the House.4 Qualified privtiege, on the other
hand, requires that those making statements which may turn
out to be defamatory do so without malice. The basis of
qualified privilege is that the speaker or writer has a duty to
say or write the words complained of to protect a legitimate
interest, and the audience to which the words are addressed
has an interest in receiving those words. An example of
qualified privilege would be job references: here, the person
writing a reference has a duty to speak frankly about the
person being written about, and the person who has sought
the reference has an interest in obtaining a frank opinion
about him.
Qualified privilege and the media
In recent years, the defense of qualified privilege has been
creatively adapted by the courts in some countries to give the
media a greater degree of freedom to comment on matters of
public interest without fear of being sued for defamation.
This has been done on the premise that journalists have a
duty to teU their readers, listeners and viewers about matters
of public interest and the readers, listeners and viewers have
an interest in receiving such information. The leading case
which   laid    down   this   principle   is   Reynolds    v.    Times
4 It needs to be remembered, however, that the extent of an MP's
freedom to speak in Parliament is limited by the control exercised by
the Speaker of the House.
85
 Journal of Bhutan Studies
Newspapers,5 which was decided by the House of Lords in
England. In this case, the court set out the foUowing 10
factors that judges should take into account when deciding
whether the duty and interest tests were met sufficiently for a
media defendant to succeed in a defamation case:
1. The seriousness of the allegation: the more serious the
charge, the more the public is misinformed and the
individual harmed, if the allegation is not true.
2. The nature ofthe information, and the extent to which
the subject-matter is a matter of public concern.
3. The source of the information. Some informants have
no direct knowledge of the events. Some have their
own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have
already been the subject of an investigation which
commands respect.
6. The urgency of the matter. News is often a perishable
commodity.
7. Whether comment was sought from the claimant. He
may have information others do not possess or have
not disclosed. An approach to the claimant will not
always be necessary.
8. Whether the article contained the gist ofthe claimant's
side of the story.
9. The tone ofthe article. A newspaper can raise queries
or caU for an investigation. It need not adopt
aUegations as statements of fact.
10. The circumstances of the publication, including the
timing.6
The Reynolds' defence, as it has come to be called, has been
seen as furthering the cause of media freedom in a significant
way, especially in countries tike England where, traditionaUy,
s [1998] 3 All ER 961.
6 The above list was prepared by Lord Nicholls, one of the Law Lords
who gave judgment in the case. The word 'claimant' used in the list
refers to the person bringing the case, i.e. the 'plaintiff.
86
 Defamation Law in Bhutan
the law of defamation has been seen as a major hurdle for
investigative journalism. It needs to be remembered,
however, that this defence can only be availed of by media
defendants and then only in matters involving the public
interest.
This defence has since been developed further, notably in the
case of Jameel v. Wall Street Journal Europe,7 where the
House of Lords ruled that, as long as the media engaged in
'responsible journalism', viz. checked its facts, behaved
reasonably and ethically, did not sensationalise the story,
offered the aUeged victim of defamation an opportunity of
'setting the record straight' in relation to any errors that may
have crept into the story, and acted in the public interest, it
could escape liability for defamation. The result is that, as
the authors of a leading textbook put it, "[t]he writer and
publisher on subjects of public interest wiU henceforth only
be liable if he has acted negligently - by putting defamations
believed to be true in the public domain without making
reasonable checks."8
The use of qualified privilege in favour of the media - albeit
not to the same extent as laid down in the Jameel case - has
precedents in other countries as well. Courts in Australia
and NZ, for example, have in the late-1990s delivered
judgments that have had a liberalising effect on the law of
defamation.9
Public figures and the law of defamation
One of the other important aspects of the law of defamation
which is worth noting is the distinction that is made between
public figures and ordinary citizens by the courts of certain
7 [2006] UKHL 44.
8 Robertson and Nicol (2008), Media Law, London: Penguin, 5th ed.,
p. 100.
9 E.g. Lange v. Australian Broadcasting Corporation (1997) 189 CLR
520 (Australia); Lange v. Atkinson No. 1 [1998] 3 NZLR 424 and No.
2 [2000} NZLR 385 (New Zealand).
87
 Journal of Bhutan Studies
countries. The most prominent of such countries is the
United States of America where, in a series of decisions going
back to at least 1964, the Supreme Court has held that
public figures should enjoy a lesser degree of protection
against defamation.10 As a result, if a public figure was to
bring a suit for defamation against, say, a journalist, the suit
would be thrown out by an American court unless the public
figure was able to show actual malice (e.g. a personal grudge
or an ulterior motive) on the part of the journalist.
This distinction has proved controversial. The media have
generally welcomed it, arguing that it affords greater
protection for investigative journalism against those in the
public eye (especiaUy politicians), but others have strongly
criticised it, arguing that it is discriminatory. One of the
problems is that there can be disputes about whether
someone is a public figure or not. This is particularly the
case with minor celebrities who may not hold any public
office or exercise any public function but who may simply be
famous by virtue of their success in a certain profession,
calling or occupation. Such persons may feel genuinely
aggrieved that the law treats them - and their desire for
privacy and dignity - less favourably than many of their less
weU-known feUow citizens.
An example of possible injustice as a result of the public
figure' rule arose in a case involving the former Prime
Minister of India, Morarji Desai. Mr Desai was the subject of
an aUegedly defamatory allegation in a book authored by the
American writer, Seymour Hersh.11 Since the book was
sought to be sold in both the United States and India, and
since Mr Desai had a reputation to defend in both countries,
he sued Mr Hersh and the publisher of the book in the courts
in both places. Unfortunately for him, his case in the US was
thrown out because American law did not aUow public figures
10 See, e.g. New YorkTimes v. Sullivan401 US 265 (1964).
n The book in question, The Price of Power, critiqued the role played
by Dr Henry Kissinger in the shaping and conduct of American
foreign policy.
88
 Defamation Law in Bhutan
to bring defamation cases unless they could show that the
aUeged defamer had acted maliciously. Indian law did not
make any such distinction, but Mr Desai was sttil unable to
obtain any redress because civti litigation in India is
notorious for its delays (such cases often take up to twenty
years or more to be heard), and Mr Desai, who was already in
his seventies at the time, died before his suit came up for
hearing, i2
The Sangay Dorji case
Bhutanese law does, like its counterparts in other South
Asian countries, allow for both civti and criminal liability to
attach to defamatory statements. Indeed, the Sangay Dorji
case involved the use of criminal law, i.e. Section 317 of the
Bhutan Penal Code which says that:
"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 the
person's action, motive, character or reputation."
What is striking about the Sangay Dorji case is that the
courts - at both District and High Court levels - have thought
fit to go beyond the standard requirements applicable in most
Anglo-Saxon countries and introduced two further elements
to be established by the prosecution before they can procure
a conviction, namely:
1. that, if the person aggrieved by the alleged defamation (the
complainant) is a public figure, the prosecutor must prove
that the person or persons responsible for the defamation (the
accused) acted with actual malice; and
2. that prosecutor must further prove that the accused knew
that the statement in question was false when he made it.
i2 In most countries, defamation suits come to an end when the
plaintiff dies.
89
 Journal of Bhutan Studies
While the first stipulation has some precedents to support it
(e.g. the law in the United States noted above - although the
Bhutanese courts do not refer to any precedents), the second
is somewhat unique, at least in the common law world. It
imposes a higher than normal burden on the part of the
prosecution and therefore makes successful prosecutions
much more difficult. However, it would be lauded by those
free speech campaigners who have, over the years, argued
that the traditional approach of requiring the defendant to
prove the truth of the aUeged defamatory statement was
unfair and out of tine with the normal rules of burden of proof
in criminal cases.
Although the judgments in the Sangay Dorji case do not
elaborate on the concept of 'public figure', they do make it
clear that this concept is "broader than celebrities and
politicians".!3 Accordingly, they have concluded that Mrs
Sangay Zam, the then Director of Revenue and Customs (who
was one ofthe complainants in this case), was - despite being
neither a celebrity nor a politician - a public figure. How the
concept of 'public figure' is developed in the future by the
Bhutanese courts wiU be important, because that wiU
determine the outcome of many defamation cases. Obviously,
some caution is required lest the law of defamation becomes
skewed against a whole class of people who, sometimes for no
fault of their own, find themselves in the public eye.
Another noteworthy aspect of the judgments is that the
District Court has attempted to signal its preference for
reduced protection for the reputation of public officials as a
group compared to other citizens. 'The jurisprudence adopted
by the Bhutanese court," it says, "is clear that public officials
enjoy lesser protection of their reputation since they are
routinely exposed to public opinion because of their public
profile."i4 This may be seen as a welcome development from
the  point  of view of freedom   of speech  in  a  democracy,
13 Unnumbered para. 10, Part II ofthe District Court judgment.
14 Unnumbered para. 17, ibid.
90
 Defamation Law in Bhutan
because it echoes the liberalising trend evident in a number
other countries in this regard. As far back as 1993 the House
of Lords in London expressed the view that if public bodies
were allowed to sue for defamation, they might misuse that
power to stifle legitimate criticism oftheir activities. 15 This,
said the court, would have a "chiUing effect" on free speech.
In the words of one of the judges, it would be "a serious
interference ... if the wealth of the State, derived from the
State's subjects, could be used to launch against those
subjects actions for defamation because they have, falsely
and unfairly it may be, criticised or condemned the
management of the country."16 In England, it is now not
possible for local authorities, government-run corporations
and political parties to sue for defamation. This principle has
also been accepted by the Supreme Court of India.
The Thimphu District Court has been equaUy vigorous in its
affirmation of this principle.   It has said that
"in a modern democratic society, constructive criticism by
any individual citizen against the government should be
accepted as a necessary evil for effective governance. It is
only the freedom of expression and thought that would
translate the true meaning of democracy [sic]."i7
The role of the Attorney General
One of the particularly controversial aspects of the Sangay
Dorji case appears to be the involvement of the Office of the
Attorney General in launching the prosecution - and the
subsequent appeal - which led to the two court judgments.
The OAG is reported to have acted on the basis of a directive
issued by the Cabinet Secretary, but this came in for some
criticism by the courts. The judges noted that, although the
Attorney-General   has   a   "special   responsibtiity   to    be   a
15 Derbyshire County Council v. Times Newspapers [1993] AC 534.
ie Ibid. At 557-59 (per Lord Keith).
17 Ibid., para. 5.2 (Note: from the copy of the judgment obtained by
the author, it is not entirely clear why some paragraphs have been
numbered and others have not.)
91
 Journal of Bhutan Studies
guardian of rule of law, which include guardian [sic] of the
public interest," his responsibtiity for individual criminal
prosecutions
"must be undertaken on strictly objective and legal criteria,
free of any political considerations and independent of the
traditional cabinet decision. Any deviation would lead to
dysfunction of the democratic process and will be
becoming more pronounce [sic] in the near future. No
prosecution of this nature may be initiated in the court at
the cost ofthe public purse."i8
The High Court reportedly endorsed this view and suggested
that "[s]uch cases should not be represented by the OAG and
left to the aggrieved individual."!9 Tne basis for this finding
was that the alleged defamatory statement did not materiaUy
affect the reputation of the Revenue and Customs
Department of which the aggrieved person, Mrs Sangay Zam,
was at the relevant time the Secretary.
Quite clearly, this is a matter which deserves serious
consideration. Where public expenditure is involved, it is
important that the highest standards of probity are adhered
to. For this reason, it would be desirable if proper norms and
guidelines are framed about the extent, and the manner of
exercise of, the Attorney-General's discretion in such matters.
These norms and guidelines should have regard not only to
the peculiar needs of Bhutanese society but also to best
practices in other democracies.
Other issues
The Sangay Dorji case raises a number of other issues as weU
which it would be beyond the scope of the present article to
elaborate on.  These include:
is Ibid., para. 5.3.
19 "Defamation suit comes unstuck", Kuensel, December 31, 2008, p.
4.
92
 Defamation Law in Bhutan
1. the manner in which the defence of 'truth' vis-a-vis
defamation has been dealt with by the courts, and its
apparent conflation with the defence of 'fair
comment';20
2. the use and evidentiary value of Parliamentary
Resolutions in defamation proceedings (and in court
proceedings generally);2!
3. the manner of coUection of evidence prior to the
launching of proceedings for defamation;22
4. the proper scope and limits of the offence of 'sedition'
and its relevance to cases involving aUeged attacks on
individual reputation;23 and
5. the proper scope and limits ofthe offence of 'spreading
false information' and its relevance to cases involving
aUeged attacks on individual reputation.24
More generally, the case points to the need for a wider and
deeper debate involving legal professionals, policy analysts,
the government's law officers, the media, and members of the
public who may have an interest in such matters, over the
place that defamation law should occupy in a new democratic
Bhutan, the relative merits of resort to prosecutions on the
one hand and civil proceedings on the other for the
vindication of individual reputations, and the strengths and
weaknesses of the present Bhutanese law on defamation.
Conclusion
The Sangay Dorji case offers both opportunities and
chaUenges for the  reform  of media law in  Bhutan.     It is
20 See unnumbered para. 15 ofthe District Court judgment.
2i See unnumbered paras. 13-15, ibid.
22 In the present case, the Office of Attorney General reportedly
prepared and put out questionnaires which those attending the ACC
workshop were asked to complete and return to the OAG. Some of
the recipients of the questionnaire were apparently unsure of the
legal status of the document and their own legal rights in relation to
it.
23 See Part III ofthe District Court judgment.
24 See Part I, ibid.
93
 Journal of Bhutan Studies
arguably the first case in which the courts have undertaken a
major assessment of the complex issues that defamation law
often throws up. The importance of engaging with such
issues is heightened by the fact that Bhutan now has a
written constitution which guarantees freedom of speech and
expression and which therefore requires policy makers,
prosecutors and the judiciary to ensure that the correct
balance is struck between that important freedom and other
competing interests such as the right to personal reputation.
As Bhutanese democracy matures, and as the country's
economic, social and cultural development gathers pace,
more and more cases of this kind are likely to emerge, calling
for creative solutions and sophisticated approaches to dispute
resolution.
For aU the limitations of Bhutan's nascent legal infrastructure
- including obvious constraints of judicial capacity - both the
Thimphu District Court and the High Court have, in the
present case, made a promising, if imperfect, start which, on
the whole, augurs well for the healthy development of
defamation law in the future. Quite clearly, a number of
crinkles need to be ironed out and a range of both conceptual
and practical issues need to be clarified fairly quickly. The
Bhutanese political and judicial leadership would do weU to
look at the experience of media law reform in comparable
jurisdictions elsewhere, and also seek expert advice from
those with an understanding of the needs and aspirations of
transitional societies. Recent years have seen remarkable
developments in defamation law and practice aU over the
world, and this branch of the law is stiU evolving.
94

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