Published: 12:43 AM, 03 November 2026
Should Defamation Be Punished by Imprisonment or Compensated Through Damages?
MD. Noor Hamza Peash
Imagine having established a reputation for integrity, good business name, and a good social standing only to see them compromised in a moment by a fake and malicious publication. In Bangladesh, defamation law is an important tool to defend against unwarranted assaults on one's dignity. But this remedy of law is in constant conflict with Article 39 of the Constitution of the People's Republic of Bangladesh which assures freedom of speech and expression. While respecting and protecting the right of the individual to defend their honor, the legal system must at the same time exercise its constitutional duty to ensure that public discourse and investigative reporting is safe.
Article 39(2) of the Constitution does not guarantee absolute right of freedom of speech. It is subject to "reasonable restrictions imposed by law" in the interest of public order, decency, morality or to the prevention of defamation. Therefore, state laws criminalizing or civilly remedies defamatory statements do not violate the Constitution. In deciding whether or not to enforce a defamation action, courts must reconcile the need to protect the rights to reputation against the interests of a powerful group from being used as a tool to suppress uninformed, and possibly unhelpful, criticism of an act of government and the need to provide a safe and effective forum for vulnerable individuals who have been slandered or defamed by others.
Defamation is a crime in Bangladesh as provided by the Penal Code, 1860, section 499. Defamation is defined in Section 499 as making or publishing any imputation with the intention of harming or knowing or having reason to believe that such imputation might harm the reputation of any person. The section includes words spoken, meant to be read, signs or representations that can be seen.
The penalty for punishment is contained in Section 500 of the Penal Code. It is punishable by simple imprisonment up to two years, or by a fine or both. The provision is still in force on the statute books but the modern judicial approach is to now avoid giving custodial sentences for what is essentially a matter of reputation, in cases where fines will be sufficient if not for the proof of 'egregious malice'.
Ten statutory exceptions are provided under Section 499 of the Penal Code in order to safeguard the truth and public interest. The first exception is that it is not defamation to impute anything which is true about any individual, if done in the interest of public good. Other exceptions that are important are opinions expressed in good faith with respect to the conduct of public servants in their official roles, reports of court proceedings, the merits of cases before the courts, and public performances. The exceptions are designed to guarantee that legitimate criticism and accurate reporting continues to be protected under the law.
Section 198 of the Code of Criminal Procedure, 1898 (CrPC) thus lays down a tough procedural rule to avoid any frivolous or malicious prosecution. No court shall take cognizance of an offence under this chapter (sections 499 and 500 of Penal code) with the exception of when made by a complaint by any person aggrieved by the offence. This limitation prevents a third party or state official from filing a criminal complaint against an alleged victim unless the actual victim or someone authorized by the court in certain situations does so.
Bangladeshi criminal jurisprudence requires the prosecution to establish the mens rea involved (malicious intent, knowledge or reason to believe harm would occur) and publication to a third party. Statutory threshold: words spoken or written in private, which have not been communicated to a third person, do not fulfill statutory threshold, Section 499. Also, if the accused can prove that the statement falls within any of the ten statutory exceptions, there is no criminal liability attached.
Defamation is a civil wrong (tort) under common law in Bangladesh and in addition to criminal penalties, it also gives the injured party a right of action to claim damages for unliquidated losses. There are two aspects of civil defamation, "Libel" (when written or permanent defamatory statements are made) and "Slander" (when spoken or transient defamatory statements are made). Civil action damages are awarded when there is a proven actual loss of reputation and punitive or exemplary damages are awarded for willful misconduct.
In Bangladesh, the criminal defamation law has been used to harass journalists, political opponents and civil society activists has been the subject of much judicial attention. The Court has stated over and over again that multiple criminal cases, brought in different judicial districts for the same defamatory statement are an abuse of the court process. Superior courts often invoke their inherent jurisdiction in terms of Section 561A of the CrPC to set aside the duplicate proceedings and consolidate all the defamation cases in a single forum to avoid any systemic harassment.
Defamation now takes place online and on social media at an unprecedented scale, in the wake of the growth of electronic communication. Online defamation laws have been significantly altered in the past, such as from the controversial Section 57 of the ICT Act, 2006, to the recently enacted Section 29 of the Digital Security Act, 2018 (DSA). After a considerable amount of local and global human rights criticism, the replacement frameworks have begun to take steps to combat the new phenomenon of online character assassination and to limit overly severe prison sentences for the protection of freedom of the press in the digital era.
Bangladesh is a signatory of the International Covenant on Civil and Political Rights (ICCPR) and its laws are measured by international standards. The ICCPR in Article 19 requires that any restrictions on freedom of expression are strictly necessary, proportionate and subject to clear law. The UN Human Rights Committee has consistently urged states to eliminate criminalization of defamation altogether, in favor of civil remedies to avoid the "chilling effect" which such criminalization has on the right to free expression.
Comparative jurisprudence gives persuasive force as there is a historical association of the Penal Code between Bangladesh and India. In the Indian Supreme Court decision in Subramanian Swamy v. Union of India (2016), the Court confirmed that the constitutional right to reputation exists and is an integral part of the constitutional right to life under Article 21. In contrast, in common law countries such as the United Kingdom, criminal defamation was eliminated altogether by Section 73 of the Coroners and Justice Act 2009, which only provides civil remedies.
In a civil defamation action, some of the affirmative defenses that can be made are, truth (justification), fair comment, and privilege. In addition, an immediate, unqualified and public apology issued by the respondent in a prominent manner is likely to be a crucial mitigating factor. Timeliness and genuineness of apologies are considered by Bangladeshi courts in fixing the amount of civil compensation or assigning the sentence severity. The law of defamation in Bangladesh, from its 19th century codification to the governance of digital media, has been in a constant state of refinement, trying to balance individual honour and constitutional free speech.
MD. Noor Hamza Peash studies
Law in World University of
Bangladesh, Dhaka.
