Editorial Today – Defamation

What is meant by defamation? Action of damaging the good reputation of someone.

Defamation as civil wrong Civil wrong tends to provide for a redressal of wrongs by awarding compensation.

Defamation as criminal offence Section 499 of the IPC defines what amounts to criminal defamation.

Basic requirements for a successful defamation suit Defamatory statement, Claimant should be identified and publication of the statement.

Defences in Defamation  Truth, Privilege and Fair comment.

Is law of criminal defamation a threat to freedom to speech and expression? Supreme Court judgement.

Why Supreme Court ruling on section 499 of IPC might be flawed? Article 21 is used as a sword to cut down the fundamental right to freedom of speech and expression.

What is meant by defamation?

• Defamation is the act of saying false things in order to make people have a bad opinion of someone or something.
• How defamation is defined under Indian Law?
• Defamation can both be a civil wrong and a criminal offence in India.
• The difference between the two lies in the objects they seek to achieve.

Defamation as civil wrong

• Civil wrong tends to provide for a redressal of wrongs by awarding compensation.
• Civil defamation is not defined under any code. It is based on tort law.
• Tort law is an area of law which does not rely on statutes to define wrongs but takes from ever-increasing body of case laws to define what would constitute a wrong. It is defined as a body of rights, obligations and remedies that is applied by courts in civil proceedings to provide relief for individuals or victims who have suffered harm from the wrongful acts of others.
• In a civil defamation suit, defamation is not required to be established beyond reasonable doubt. Damages can be awarded based on probabilities.
• Here, defamation can take two forms – libel (by writings) and slander (by spoken words). In order to establish that a particular statement – written or spoken – is defamatory, it must be proved that it is false, defamatory and published and lowered the reputation of a specific person or an identifiable set of people in the eyes of the general public.

Defamation as criminal offence

• Section 499 of the IPC defines what amounts to criminal defamation.
• Section 499 states defamation could be through words – spoken or intended to be read, through signs, and also through visible representations. These can either be published or spoken about a person with the intention of damaging reputation of that person, or with the knowledge or reason to believe that the imputation will harm his reputation.
• A criminal law seeks to punish a wrongdoer and send a message to others not to commit such acts.
• In a criminal suit, the complainant should be able to prove the accused intended to defame him. In the absence of intention it must be established that the alleged offender had knowledge that the publication was likely to defame the person. In a criminal case, defamation has to be established beyond reasonable doubt. However, criminal defamation is a compoundable offence and parties can seek a closure of the case by reaching a compromise.

Basic requirements for a successful defamation suit

• First, the presence of defamatory content is required. Defamatory content is defined as one calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule. However, the test for such content is the ordinary man test where meaning of the content is considered to be what a common, ordinary man will comprehend it to be.
• Second, the claimant should be identified in the defamatory statement. The content must be clearly addressing a particular person or a very small group for it to be defamation. General statements like “All lawyers are thieves or all politicians are corrupt” are too broad a classification and hence no particular lawyer or politician can consider it to be personally attributed to them. Therefore, such statements are not defamation.
• Third, there must be a publication of the defamatory statement in either oral or written form. Unless the content is published  and made available to someone other than the claimant, there can no defamation.

Defences in Defamation

Truth

• ‘Truth’ is generally considered to be a defence to defamation as a civil offence but under criminal law, truth is a defence only in a limited number of circumstances. Besides the statement or writing being demonstrably true, it also requires to be proved that the imputation was made for public good.

Privilege

• Individual may be protected from claims of defamation under tort or even criminal defamation by a privilege conferred on them by law. Absolute privilege irrespective of intention to defame is conferred upon Government officials, Judges and other such public officials in discharge of their public functions by the law. For example under Article 105(2) of Indian Constitution, no member of parliament shall be liable to any proceedings in any court in respect of anything said by him in Parliament.

Fair comment

• In case of defamatory opinions, the exception of fair comment is allowed. The publication has to be clearly expressed as an opinion and should not mix up with facts. Also, the opinion should be one that a fair-minded person is capable of holding such opinion even if the reasoning is illogical.

Is law of criminal defamation a threat to freedom to speech and expression?

• It is generally argued that law of criminal defamation was designed by Britishers to curb free speech and expression. But after the Constitution came into effect and Fundamental Right of speech and expression under Article 19 is granted to people, this criminal defamation law has become redundant and civil defamation is an adequate remedy against such wrongs.
• But Supreme Court has upheld the validity of Section 499 of IPC. Various reasons given by SC are as follows.
• The court described freedom of expression as a “highly treasured value under the Constitution”. One is bound to tolerate criticism, dissent and discordance but not expected to tolerate defamatory attack.
• Dissent is required, but it does not grant an unfettered right to damage a reputation. Like other rights, right to freedom of speech and expression is not absolute. It is subject to imposition of reasonable restrictions.
• The court said that the reputation of a person is an integral part of the right to life granted under Article 21 of the Indian Constitution. Thus reputation of one cannot be allowed to be crucified at the altar of the other’s right of free speech.
• However Court cautioned judges handling criminal defamation cases to be extremely careful while issuing summons.

Why Supreme Court ruling on section 499 of IPC might be flawed?

• It held that the right to “reputation” was protected under Article 21 of the Constitution which guarantees “life and personal liberty”. Now, Article 21 only protects the individual’s life and liberty against interference by the state. Supreme Court declared that the right to free speech under Article 19(1)(a) had to be “balanced” against the right to “reputation” under Article 21. The court never explained how this balancing exercise was to be carried out.
• To have it prevail over free speech — have no basis in either the text or the structure of the Constitution. Instead of using Article 21 as a shield to protect the individual against State persecution or indifference, it used it as a sword to cut down the fundamental right to freedom of speech and expression.
• The judgment  holds far-reaching implications for political dissent and a free press.
• Existence of criminal defamation on the statute book leads to self-censorship, and that it is often used to stifle legitimate criticism.
• It is true that ‘defamation’ is one of the reasonable restrictions to free speech envisaged in the Constitution, but this is not enough to justify retaining its criminal component.
• In the Indian context, criminal defamation is not generally a dispute between two individuals. It is invariably a shield for public servants, political leaders, corporations and institutions against critical scrutiny as well as questions from the media and citizens.
• The protection of reputations is a reasonable goal, in practice, the law is used as a tool for harassment and intimidation.
• By criminalising defamation, the law inflicts the extreme punishment of loss of liberty.