Updated: Mar 17, 2021
Author: Tanisha Gautam
Institute of Law, Nirma University
Defamation is an injury or damage to a person’s reputation resulting out of a statement that is false. Whoever by words, either spoken or intended to be deciphered in some manner, makes or publishes any imputation relating to any individual, intending to harm or degrade such individual’s reputation is said to have committed defamation. Any false, derogatory or vilifying statement published with the intention to jeopardize someone’s reputation is defamation. Article 19(2) of the Constitution puts reasonable restrictions on freedom of speech granted under Article 19(1). Criminal Defamation is the act of defaming a person by committing a crime or an offence under the Indian Penal Code, 1860. Under Criminal Law, Defamation is bailable, non-cognizable and compoundable offence. Defamation as an offence is listed under Section 499 and the punishment is listed under Section 500 of the IPC, 1860. In Civil Law, defamation falls under the Law of Torts, wherein the plaintiff gets compensated when his legal rights are violated and he sustains a legal injury arising out of defendant’s illegal acts.
TYPES OF DEFAMATION
LIBEL – Defamation in some permanent form i.e. written, pictorial, printed or published etc. Libel is actionable per se, meaning that a libel is itself an infringement to right and the plaintiff/petitioner need not prove any kind of damage that has been suffered. Libel raises a question of malice. At Common Law, a libel is both a civil and a criminal offence. It is a crime but slander is not. Under the Indian Law, both libel and slander are criminal offences.
SLANDER – Defamation in temporary or transient form, i.e., spoken words or gestures. A slander is actionable only when special damage can be proved to have been its natural consequences or when it conveys certain imputation. In case of publication of slander, if the publisher is the maker and acts consciously and voluntarily, he/she must be guilty. At common Law, a slander is only a Civil Wrong.
It is an injury to a person’s reputation. Harm made to the goodwill, character, image, and identity of an individual is defamation. In the case of Harsh Mendiratta v. Maharaj Singh, it was held that only the plaintiff, i.e., the person who has suffered injury can claim an action. No other beneficiaries such as relatives, family or friends are entitled for the same. Under the Civil Law, intention to defame is not essential. It is unnecessary that the defendant is aware or not about the facts. If the injury is made to the reputation of the plaintiff, the defendant will be held liable. In the case of Morrison v. Ritichie & Co., the defendants published a statement that the plaintiff had given birth to twins when the plaintiff got married only a couple of months back. The defendants were held liable.
ESSENTIALS OF CIVIL DEFAMATION
1. Defamatory statement – a statement that lowers and jeopardizes the reputation of a person. For example, in D.P. Choudhary v. Manjulata, a local daily published a statement regarding desertion of a girl (Manjulata) with a boy after attending night lectures. This injured the reputation of the girl’s family as well as her marriage. Thus, the defendants were held liable.
2. Statement must refer to the plaintiff– any statement even when made in good faith or unintentionally, defames the plaintiff, will make the defendant liable. In the case of, Hulton & Co. v. Jones, an article defamed a fictitious character named Artemus Jones was published. A person with the same name filed a suit as it ruined his image and reputation in the eyes of his family, friends, and relatives. The defendants were held liable despite the fact the there was no intention.
3. Statement must be published – the statement should come into the knowledge of a third party. Any individual other than the plaintiff who becomes aware about the said statement will count as publication. In the case of, Mahendra Ram v. Harnandan Prasad, the defendant wrote a defamatory letter in Urdu. The plaintiff wasn’t versed with Urdu. The plaintiff asked a third party to read over to him the letter. The court in its judgment stated that the defendant was not liable unless it was proved that at the time of writing the letter the defendant was aware that the plaintiff was unable to understand Urdu making the plaintiff require a third party.
DEFENCES AVAILABLE IN CIVIL DEFAMATION
1. Truth – any statement that negates the reputation of the plaintiff but if true and fair in nature will not hold the defendant liable. If the defendant is able to prove that the statement made is true, he will be absolutely safe from any civil suits. Such as in Alexander v. North Eastern Railway Co.
2. Fair comment – A fair comment on a matter of public interest is not libel, for example, matters related to public enterprises, companies, courts, government, public representations, administration, etc. In a recent case of Kokan Unnati Mitra Mandal and Ors.v. Bennett Coleman & Company Limited and Ors., Honourable Bombay High Court while dismissing suit for defamation filed by plaintiff has held that “defendants have shown and proved the truthfulness of the statements and fair comment made by them in public interest. The defamation of the plaintiffs alleged by them is, therefore, amply justified.”
3. Privilege – there are two kinds of privileges available, i.e., absolute privilege and qualified privilege. In the former one, even if the statement made is false and derogatory, will not raise any action against the party who makes it. For example, Parliamentary proceedings, judicial proceedings and state communications. Whereas, in the latter one, the defendant is exempted from any suits and liabilities on certain occasions. There are circumstances when speaking ill of a person or uttering or writing words defamatory is not regarded as offence or liability in law and for the reason that public interest demands it.
4. Apology – apology as a defence is available for libel against newspapers, media and other periodical publications, if the sued party sufficiently makes an apology and adheres to the limits and conditions. Although, there is no such legislation in India.
Section 499 of the Indian Penal Code, 1860 states, whoever through words or signs or visible representations, makes or publishes any denigrating statement concerning any individual, intending to harm or knowing that such a statement will harm the reputation of the concerned individual is said to commit the crime of defamation.
1. It amounts to defamation to impute anything to a deceased person if it would harm the reputation of that person in living. It will also be termed as defamation if the imputation is intended to hurt the feelings of his family or other near relatives.
2. It amounts to defamation to make an imputation towards a company or an association or collection of persons as such.
3. Any imputation made in the form of an alternative or expressed ironically, amounts to defamation.
4. It is no defamation unless the derogatory statement either directly or indirectly affects and lowers the morale or intellectual character of that person with respect to his caste or calling or makes them look as disgraceful in the society.
ESSENTIALS OF CRIMINAL DEFAMATION
1. Making or publishing of any imputation concerning any person.
2. Such imputation must have been made either by words (either spoken or intended to be deciphered), signs, visible representations.
3. Such imputation was made with the intention of harming or with knowledge or reason to believe that it will harm the reputation and dignity of the person who is targeted.
INNUENDO – When the statement does not relate to the complainant directly, the doctrine of innuendo may be pressed so as to show that the complainant was the real and the ultimate target of the attack. The complainant must bring additional facts showing how the defamatory words are related to him. Sometimes it may happen that the statement was prima facie innocent but because of some secondary and ulterior meaning, it may be considered to be defamatory. For this secondary instance plaintiff must prove the secondary meaning i.e., innuendo which makes the statement defamatory.
DEFAMATION OF CLASS OF PERSONS – When particular defamatory words spoken are referred to a group of individuals or a class of persons, then no single individual of that group or class can sue unless he/she proves that the words could reasonably be considered to referring him. For example, if a person wrote that all lawyers were liars and manipulators, then no particular lawyer could sue him unless there was something that pointed out to that one specific person actually.
COMMUNICATION BETWEEN HUSBAND AND WIFE – According to Law, both husband and wife are one. The communication of a defamatory matter or imputations from the husband to the wife or vice versa is no publication and will not come within the purview of section 499. Section 122 of the Indian Evidence Act 1872 deals with privileged communications between husband and wife and makes them out of the scope of section 499. Although there is an exception, in suits between married persons, or in a proceeding in which one married person is prosecuted for any crime committed against the other. In a case of T.J. Ponnen v. M.C Verghese, the court held that the letter from husband to his wife containing defamatory matter concerning the father-in-law will not amount to defamation. It will very much be covered within the scope of privileged communications between husband and wife as stated under section 122 of the Indian Evidence Act 1872.
NEWSPAPER LIBEL – Newspapers are subject to the same rules as other critics. They have no special right or privilege, no special right to make unfair comments, or to make imputations upon a person's character, in respect of a person's profession or calling. If a libel appears in a newspaper, the proprietor, the editor, the printer, and the publisher are liable to be sued either separately or jointly. Press and Registration of Books Act, 1867, defines ‘Editor’ as the person who has control over selection of material, which is to be published. Further, there is presumption under section 7 of the PRB Act. The presumption is regarding awareness of contents of newspaper and it can be raised only against the editor whose name appears on the copy of said newspaper. It cannot be raised against other editors like the News Editor or Resident Editor whose names do not appear in the declaration printed on the copy of said newspaper. In the case of Gambhirsinh R. Dekare v. Falgunbhai Chimanbhai Patel and ors., Supreme Court ruled that the editor whose name is published in newspaper is liable for both civil and criminal liability if the published matter is defamatory.
1. Imputation of any truth made or published for public good.
2. Any opinion expressed in good faith related to the conduct of the public official in discharge of his public duties.
3. Any opinion expressed in good faith respecting the conduct of a person which relates to a public question.
4. Publication of reports of proceedings of courts.
5. Any opinion expressed in good faith respecting the merits of a civil or a criminal case decided by a court, or respecting the conduct of the witness or the agent.
6. Any opinion expressed in good faith regarding the merits of public performance.
7. Censure that has been passed in good faith by persons having the lawful authority over another.
8. Accusation of an offence to a person having legal authority over the alleged person.
9. Imputation made by a person in good faith for the protection of his or other’s interests.
10. Conveyance of caution made to someone in good faith against another.
Section 500 of the Indian Penal Code lays down punishment for the offence of defamation. Whoever defames or humiliates or vilifies the reputation or character of another shall be punished with a simple imprisonment for a term which may extend to two years or with fine or both.
IMPORTANT CASES IN DEFAMATION
1. Ram Jethmalani v. Subramanian Swamy– the court found that Dr. Swamy defamed Mr. Jethmalani by claiming that he received money from a banned organization to protect then CM of Tamil Nadu in the case of the assassination of Rajiv Gandhi.
2. B V P Rao v. Ratan Tata and others – B V P Rao stated that Tata Tea had twisted and suppressed the essential facts depicting him in a very poor light by alleging that there was no response from him as home secretary in December 1995 for providing security after the Tata Tea received a letter from the Ulfa demanding hundred walkie-talkie sets. Rao, who was then state power commissioner, claimed damage of Rs 1 crore against the Tata Tea, its managing director R Krishna Kumar and chairman of Tata group of companies Ratan Tata.
3. S. Khushboo v. Kanniammal – it was complained that the statement of the accused published in the magazine was defamatory. It was held that the defamatory statement made by the accused was given to the news magazine to call for societal acceptance of pre-marital sex. It was not an attack on anyone in individual. It was held that the accused was not liable and the complaint was quashed.
4. Arun Jaitley v. Arvind Kejriwal – Delhi chief minister and Aam Aadmi Party (AAP) supremo Arvind Kejriwal and his four colleagues accused Union finance minister Arun Jaitley of corruption during his tenure as the head of Delhi and District Cricket Association. The court held that the statements made by Arvind Kejriwal and other five leaders were defamatory. The matter sorted out when all the defendants apologized.
5. Shreya Singhal v. Union of India – this is a landmark case of internet defamation. Police arrested two women for posting allegedly offensive and objectionable comments on Facebook about the propriety of shutting down the city of Mumbai after the death of a political leader. The police made the arrests under Section 66A of the Information Technology Act of 2000 (ITA), that penalizes any individual who sends through a computer resource or any other electronic communication device any information that is grossly offensive, or with the knowledge of its falsity, the information is transmitted for the purpose of causing annoyance, inconvenience, danger, insult, injury, hatred, or ill will.It declared Section 66A of the Information Technology Act, 2000 unconstitutional, which penalizes people for sending offensive messages through communication services.
Chintaman Rao vs. The State of Madhya Pradesh – The Supreme Court spelled out the meaning of “reasonable restrictions” imposed in Article 19(2),which states intelligent care and deliberation and that is required in the interests of the public.
7. Ramdhara v. Phulwatibai  – it was held that the imputation made by the defendant in front of the relatives, that the plaintiff, ‘a widow of 45-year age is a keep of the maternal uncle of the plaintiff’s daughter-in-law’ is not a mere vulgar abuse but a definite imputation upon her chastity and thus constitutes defamation.
T.V.RamasubhaIyer vs. A.M.A.Mohideen- Defendants published a defamatory statement without any intention and motive to defame the defendants. It related to a particular person carrying out business of Agarbathis to Ceylon who has been arrested for smuggling the same. The plaintiff was also a person carrying on similar business and since his reputation was damaged, the court awarded him damages.
Defamation has been and is a serious offence, it degrades the goodwill and the reputation of an individual that has been earned during the passage of time. Injury to reputation lowers the image of an individual in the society and once it is harmed it cannot be regained conveniently. Our law provides remedies under both civil and criminal law; however, compensation of money might not be enough to the injured party, that is when criminal defamation comes into play. Over many years of Independence, there have been plenty cases of the offence of defamation and the court has interpreted each and every case with utmost and due care on its part and they serve as precedents. Besides, it is essential to note that defamation laws in most countries are misused, but in India’s it's worse than the most. They are obscure, condescending, draconian. In India, defamation is a criminal offence which is completely illogical. Defamation laws should not be made at the cost of freedom of speech and expression. Free speech is necessary because, among other things, it enables the media to hold governments and individuals accountable and criminalizing defamation is an unwarranted restriction on free speech when the global norm is that a civil suit for damages is sufficient for protecting reputation.
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