“Every man has right to have his reputation preserved inviolate” – William Blackstone
In simple words, Defamation is an act of false communication about another person which lowers his reputation in the eyes of an ordinary man. A man’s reputation is treated as its property and an injury to it is punishable by law. Many jurist and scholars have also defined defamation as a publication of a defamatory or false statement which tends to disgrace, humiliate or ridicule a person and in turn lowering his reputation in the society.
Defamation falls into two categories:
- Libel – Defamatory statement published in a written and permanent form.
- Slander –Defamatory statement made in verbal or any other transient form( such as spoken words or gestures).
In India defamation is an offence under both civil and criminal law.
Civil defamation
Civil defamation is punishable as an offence under the law of torts in which any aggrieved person can approach a court of law for damages in form of compensation (monetary value) from the accused person who has damaged his reputation.
Criminal defamation
Under English Common law only Libel is considered as a criminal offence and Slander comes under the law of torts except in some exceptional cases. But in Indian Criminal law both Slander and Libel are considered as a criminal offence under Section 499 of Indian Penal Code. It states that “whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person is said to defame that person”[1]. Under Criminal law, the offence of defamation is a non-cognizable, bailable and compoundable offence.
Essentials of defamation
There are three essentials which are required to be proved in a court of law to seek the remedy :
- The statement must be defamatory. A defamatory statement is defined as one which exposes a person to disgrace humiliation or hatred. The essence is an injury to a person’s character. The test of whether the statement is defamatory or not depends upon how the right-thinking members of the society are likely to take it.
- The said statement must refer directly or indirectly to the plaintiff. The statement must be addressed to a particular person or a small group to constitute defamation.
- The statement must be published i.e. to say it must be communicated to some other person other than the plaintiff himself. It is the most important element of defamation because, unless the statement is not published there is no proof that any injury has been made to a person’s reputation.
All these elements play an important role in a civil defamation lawsuit and criminal defamation along with this intention is also taken into account.
Landmark judgement
Ram Jethmalani v Subramanian Swamy[2]
The defendant at a press conference alleged that the then chief minister of Tamil Nadu had prior information that LTTE Cadre would make an assassination bid on the life of late Shri Rajiv Gandhi. The plaintiff represented the senior counsel from the side of the chief minister. During the proceeding, the defendant in a written conclusive submission alleged that the plaintiff had been receiving money from LTTE, a banned organisation. The statement made by the defendant was held to be ex facie defamatory. Actual malice on the part of the defendant was well established. Counting the professional stature of the plaintiff, the Delhi High court awarded damages of Rupees 5 lacs.
Defences available in defamation
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Justification or truth
Under civil defamation merely proving the statement is true is a good defence. But under Criminal law, the first exception which does not constitute as defamation is that the imputation besides being true must also be shown to have been made for the public good. (section 499 of IPC).
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Fair Comment
It is established by the courts and laws that defamatory opinions, the exception of Fair comment is allowed. The statement must be merely a comment or an opinion. The comment must be fair in the eyes of a reasonable person.
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Privilege
There are certain occasions when the law recognises that the Right to fair speech outweighs the plaintiff’s right to reputation. It is of two kinds:
- Absolute Privilege – No action lies for the defamatory statement even when the intention to defame has been proven. Government officials, Judges and other public officials are granted this privilege.
- Qualified privilege –The statement must be made on a privileged occasion i.e. it was during discharge of duty or protection of an interest. The statement must be made without any malice. Journalists are provided with qualified privilege.
Landmark judgment
Radheshyam Tiwari v Eknath[3]
The defendant was a publisher and he published some articles on the plaintiff who was a B.D.O officer regarding his corrupt work and illegal means in making wealth. In an action for defamation, the defendant pleaded all three Defenses. Since the facts were not true the justification for truth was rejected. The allegations on the plaintiff was not an expression of opinion that the defence of fair comment was also not available. The defence for the qualified privilege was also dismissed because the publications were made to defame the plaintiff was observed by the court.
Some other statements which fall under exceptions to criminal defamation as mentioned in section 499 of IPC are:
- Any opinion made in good faith with respecting the conduct of any person which relates to a public question.
- Publication of true reports of the proceedings of the court or the judgement delivered by the court does not amount to defamation.
- The accusation of offence to any person having lawful authority over the alleged person in good faith is an exception to defamation.
- Cautions conveyed to one person against another are not defamation if it is intended for the good of the conveyed person, or any other, or public good.[4]
The constitutional validity of the defamation laws
Article 19(1)(a) of the Constitution of India gives its citizens the right to freedom of speech and expression. This has resulted in conflicts regarding the constitutional validity of the defamation laws which puts a restriction on this freedom. The Supreme Court in its various judgements has ruled that the criminal defamation laws are constitutionally valid and do not conflict with Article 19(1)(a). The apex court has observed that these rights mentioned in article 19 (1) are not absolute and are subject to restrictions mentioned in clause 2 of Article 19(1)[5]. Nevertheless, the right to freedom of speech and expression is one of the most important civil right given to citizens and the state cannot arbitrarily suppress it. Supreme Court in 2015 gave a landmark judgment in the case of Shreya Singhal v Union Of India held section 66 of the information technology act, 2000 as unconstitutional as it violated Article 19(1)(a) of the Constitution of India. The provision of Section 66 provided for the punishment for sending offensive messages through the communication system. The Supreme Court struck down this section as the term “offensive” was vague and it imposed unwanted restriction on freedom of speech and expression.
Remedy
If it is proved in a court of law that a person is accused is guilty of defaming another person then the following remedy is available :
- In the case of civil defamation, the court may impose a fine on the accused
- In the case of criminal defamation, the punishment is stated in section 500 of the Indian Penal Code. According to this section, the court can grant simple imprisonment up to 2 years or with fine or with both.
In a defamation lawsuit, the onus of proving generally lies with the aggrieved person. It is his responsibility to prove before a court of law that the defamatory statement was referred to him and has affected his reputation negatively.
Sources:
- Indian Penal Code, 1860.
- R. K. Bangia, Law of torts.
[1]Section 499, Indian Penal Code(1860).
[2]AIR 2006 Delhi (300).
[3]AIR 1985 Bom 285.
[4]Section 499, Indian Penal Code(1860).
[5] Subramanyam Swamy v Union Of India.
This blog is written by Alok Dubey, Asian Law College.
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