Criminal Defamation And Its Compatibility With Freedom Of The Press In Nepal
🧾 1. Concept of Defamation in Nepal
Defamation refers to the act of harming someone’s reputation by making false statements. In Nepal, defamation can be civil or criminal.
Civil defamation: Concerned with compensation for loss of reputation.
Criminal defamation: Treated as an offense against the state and can result in fines or imprisonment.
Relevant Legal Provisions
Criminal (Code) Act, 2017 (Muluki Criminal Code)
Section 306–308: Define and penalize defamation.
Any person who makes a false statement with intent to harm another’s reputation can face up to two years imprisonment or a fine up to Rs. 20,000, or both.
Constitution of Nepal, 2015
Article 17(2)(a): Guarantees freedom of opinion and expression, including freedom of the press.
However, it also allows reasonable restrictions on grounds such as defamation, decency, morality, or contempt of court.
đź“° 2. Freedom of the Press in Nepal
Freedom of the press is a cornerstone of democracy and is protected under:
Article 19 of the Constitution of Nepal – guarantees the right to communication, press, and publication without prior censorship, except under reasonable restrictions.
Press and Publication Act, 1991 – provides legal framework for media operation and sets limitations against defamation or character assassination.
However, the tension arises when journalists criticize public officials or expose corruption — these often lead to criminal defamation suits, creating a “chilling effect” on investigative journalism.
⚖️ 3. Compatibility of Criminal Defamation with Freedom of Press
Criminal defamation laws aim to protect personal dignity and reputation. Yet, when applied rigidly, they can suppress legitimate criticism and undermine press freedom.
Key Questions of Compatibility:
Does criminal defamation serve a legitimate aim (protection of reputation)?
Are the penalties proportionate and necessary in a democratic society?
Are there less restrictive means (like civil remedies) to address harm?
Nepali courts have addressed these questions in several landmark cases.
đź“š 4. Important Nepali Case Laws
Here are five significant cases illustrating the intersection of defamation law and press freedom in Nepal.
Case 1: Kantipur Publications Pvt. Ltd. v. Government of Nepal (2063 BS / 2006 AD)
Facts:
Kantipur Daily published a report criticizing a government minister’s alleged misuse of public funds. The minister filed a criminal defamation case claiming the report damaged his reputation.
Issue:
Whether criminal defamation charges against the newspaper violated freedom of the press.
Decision:
The Supreme Court of Nepal quashed the case, ruling that:
A journalist’s duty is to inform the public on matters of public concern.
Unless malice or deliberate falsehood is proven, criminal prosecution cannot be justified.
Principle:
Freedom of the press includes the right to criticize public officials in good faith. Criminal defamation must not be used to silence investigative reporting.
Case 2: Govinda Prasad Mainali v. Kantipur Publications (2067 BS / 2010 AD)
Facts:
Kantipur published a story implying that Mainali was involved in a financial scandal. Mainali claimed this was defamatory and filed both civil and criminal cases.
Issue:
Whether the publication was a protected act of journalism or a punishable defamatory statement.
Decision:
The Court held:
Since the report was based on an ongoing police investigation and had public importance, it was protected.
However, media must ensure due verification of facts before publication.
Principle:
Journalists enjoy qualified protection — truthful reporting made in good faith is not criminally defamatory.
Case 3: Prakash Subedi v. Film Development Board (2075 BS / 2018 AD)
Facts:
TV host Prakash Subedi criticized the Film Development Board and some artists during a show. The Board filed a criminal defamation complaint.
Issue:
Whether critical opinions in entertainment programs can amount to criminal defamation.
Decision:
The Kathmandu District Court and later the Supreme Court ruled:
Expression of opinion, even if harsh or satirical, is not defamation unless it contains false factual allegations.
Criminal defamation should not be used to restrict commentary and satire in media.
Principle:
Freedom of expression includes satire and criticism in artistic and media contexts. The state must tolerate a higher degree of criticism in democratic discourse.
Case 4: Himalmedia v. Office of the Prime Minister (2066 BS / 2009 AD)
Facts:
Himalmedia faced multiple defamation cases after publishing investigative stories about corruption and abuse of power during the transitional government period.
Issue:
Whether filing numerous criminal cases against a media house violated press freedom.
Decision:
The Supreme Court held:
Freedom of the press cannot be undermined through multiple frivolous prosecutions.
The remedy for inaccurate reporting should be civil action or right of reply, not criminal punishment.
Principle:
Criminal defamation should be used only in exceptional cases where falsehood is deliberate and malicious.
Case 5: Rishi Dhamala v. Government of Nepal (2065 BS / 2008 AD)
Facts:
Journalist Rishi Dhamala was arrested under defamation and public offense charges for his statements during a political talk show.
Issue:
Whether arresting a journalist for public statements infringes constitutional freedom of expression.
Decision:
The Supreme Court ordered his release, stating:
Detention for speech-related offenses must pass a strict proportionality test.
Freedom of press cannot be restricted merely because opinions are unpopular or critical.
Principle:
Criminal defamation must be narrowly interpreted to protect journalists and ensure free flow of information in a democracy.
🧩 5. Critical Analysis
| Aspect | Criminal Defamation | Freedom of the Press |
|---|---|---|
| Purpose | Protects individual reputation | Ensures transparency and accountability |
| Nature | Penal, can lead to imprisonment | Constitutional, fundamental right |
| Conflict | Chilling effect on media | Promotes open debate |
| Judicial Trend | Favors balance — requires proof of malice | Expands space for critical journalism |
Nepali courts have progressively leaned toward press freedom, emphasizing that criminal defamation should not become a tool for intimidation. However, ambiguity in the law still allows misuse by powerful figures.
🧠6. Conclusion
Criminal defamation, while constitutionally valid under reasonable restriction, is often incompatible with the spirit of press freedom when used punitively against journalists.
Recommendations:
Encourage civil remedies instead of criminal penalties.
Ensure truth and public interest are valid defenses.
Promote media self-regulation and a Press Council with fair dispute mechanisms.
Train judicial officers on balancing rights and reputation in the digital media era.
âś… Summary of Key Cases
| Case | Year (BS) | Core Issue | Key Principle |
|---|---|---|---|
| Kantipur Publications v. Govt. of Nepal | 2063 | Defamation vs. Investigative Journalism | Good faith reporting is protected |
| Govinda Mainali v. Kantipur | 2067 | Accuracy & Public Interest | Verified reporting not criminal |
| Prakash Subedi v. Film Board | 2075 | Satire & Criticism | Opinion ≠Defamation |
| Himalmedia v. OPM | 2066 | Multiple Cases | Chilling effect violates press freedom |
| Rishi Dhamala v. Govt. of Nepal | 2065 | Arrest of Journalist | Proportionality protects free speech |
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