This article has been written by Shubham Jadia, a student of Indore Institute of Law.
Now-a-days, the debate on the legality of defamation is on a rise. In this paper we will explore the evolution of defamation in various legal systems and does a comparative study of the present defamation laws in various jurisdictions. The paper will also examine the laws of defamation in India and judicial intervention in this matter by analysing the cases of M.J. Akbar vs Priya Ramani and M. Nedunchezhian vs The Bar Council of Tamil Nadu. This paper will also give an insight into the debate between free speech and defamation. It is essential to examine and understand the concept of defamation in the light of the afore mentioned cases so that cloud of doubts shed away and provide a space for an informed consensus on the matter.
Key Words: Defamation, Section 499 of IPC, Indian Penal Code, Civil Wrong, Criminal Wrong
After life, a person cares his/her reputation the most. Defamation is the act of publishing an oral or written communication of a false statement which brings disrepute to an individual and usually constitute a civil offence or a criminal offence. Defamation has been in the spotlight throughout the world mainly because of the numerous cases of defamation filed by various political leaders against each other, mostly on frivolous grounds, to satisfy their political vendetta, followed by cross-defamation suits. In India, defamation as a criminal offence is codified under section 499-502 of the Indian Penal Code, but defamation as a civil offence is uncodified and covered by the torts law. Section 499 of the IPC defines defamation and sections 500, 501 and 502 stipulates punishment to an individual found guilty under section 499.
- To understand the history and theory of defamation.
- To understand the definition, types and essential elements of defamation.
- To examine the defamation laws in other jurisdictions
- To examine the defamation laws in India.
HISTORY OF THE LAW OF DEFAMATION
We don’t need Shakespeare to emphasize the inestimable value of good name. Reputation is the result of the judgement which others formulate regarding one’s character and that judgement is affected by the instrumentalities which reach the observer’s mind. Hence, the law of defamation is forced to deal with all forms of communications, like spoken and written words, signs, symbols, photographs, caricatures etc., by which ideas are transmitted. Unfortunately, the English law of defamation is not the deliberate product of any period. It has grown by aggregation, by very little intervention by the legislation, and special and peculiar circumstances shaped its varying course. The result is that perhaps no other branch of law is as open to criticism for its doubts and difficulties, its meaningless and twisted anomalies. In a nutshell, it is absurd in theory and very often mischievous in practical operation.1 In the early Middle Ages, reputation was protected in England by combined spiritual and secular authorities. However, after nationalization of justice by the King’s judges, when the jurisdiction of defamation went to the King’s court in the latter half of the sixteenth century, various political and social conditions combined to contract the actionable right, or remedy. Now, in the early seventeenth century, when the potentialities of printing press dawned upon absolute monarchy, the situation was met by directly importing the Roman law, without regarding the Roman limitations, and certain additions adapted to the purpose in hand. This special provision for printed or written defamation, first adopted in criminal law, eventually also became a principle of civil judicature. In this way, a new form of actionable defamation was developed in law.
As in most primitive legal systems, in the early Roman Law, verbal injuries were considered to be criminal or quasi-criminal offences. The Romans had two sets of provisions which dealt with defamation; the severe provisions of Libellous famous and the comparatively mild law of injuria. The first one applied to materials which were considered to be very dangerous because of their anonymous nature and extent of diffusion and the second provision applied to minor offences which consisted every form of direct and personal aggression involving insult or impertinence.
This panorama of development of defamation law in two different legal systems shows that the courts have adapted and updated their doctrines to meet the policies of the time and place.
DEFINITION & ELEMENTS OF DEFAMATION
As stated in the case of Dixon vs Holden (1869) 7 Eq. 488, “A man’s reputation is his property and, if possible, more valuable than other property”. If we try to break the statement, it simply implies that for a man, his reputation is the most important thing and if reputation is lost, he loses everything. A man loses face in the society and becomes the subject of social ridicule. As per Black’s Law Dictionary, defamation means the offence of injuring a person’s character, fame, or reputation by false and malicious statements. Thus, in simple words defamation can be defined as the act of injuring the reputation of a person by the publication of false statements, without any lawful justification, with the aim of bringing the person into disrepute. It is not only the injury to the person alone, but to each and every person who are so closely related to the person that the injury suffered by them as a direct bearing on the reputation of the man who alleges to have suffered an injury. It is important to note that a person can bring a suit of defamation against the writer or the publisher either as criminal proceeding or as a civil action for damages in torts for the suffered injury.
Essentials of defamation
- The statement must be defamatory.
- The statement must refer to the plaintiff and must be understood by the right-thinking and reasonable persons that the statement is being referred to the plaintiff.
- The statement must be published, i.e., it must be communicated to someone other than the plaintiff himself.
- In case of slander, either there must be proof of special damage or the slander mustcome with the serious classes of cases in which it is actionable per se.
Burden of proof
The burden of proof in a suit of defamation is on the plaintiff. Thus, for pleading an innuendo, the plaintiff must highlight the special circumstances which made the words actionable and must set forth in his pleading the defamatory sense, he attributes to them. When the defence to defamation is taken, the burden of proof is on the defendant. While making his arguments, the defendant must make clear his justifications he is seeking to put forward before the case and must state clearly the meaning(s) and the context which he seeks to justify. In a defence for fair comment, he must show that he has not misstated any fact. In a defence of privilege, he must prove that the circumstances under which he has made the statement is privileged. If the defendant is able to prove his points, the burden to prove malice in fact will be upon the plaintiff. Defences to an action for defamation
- Justification or truth: In a civil action for defamation, truth of the published defamatory matter is a complete defence but in case of criminal action, truth of the published defamatory matter is not a defence.
- Fair comment: Making a fair comment on matters involving public interest is a defence to an action for defamation. Essentials for using the defence;
- The statement must be an expression of opinion rather than assertion of fact,
- The comment must be fair,
- The matter commented upon must be of public interest.
- Privilege: There are certain occasions when the law recognizes that the right of free speech overweighs the plaintiff’s right to reputation, such occasions are treated as privileged and a defamatory statement is not actionable.
DEFAMATION LAWS IN INDIA
In India, defamation laws were first conceived by Lord Macaulay in 1837 in the first draft of the IPC. The main motive behind criminalizing the offence of defamation in British India was definitely to protect the interests of the British Raj. Consequently, section 499 of the IPC was enacted and has remained unchanged for the past 158 years. In India, unlike English Law, there is no distinction between libel and slander. Both libel and slander are offensive criminally under section 499 of the IPC and a civil offence under tort law. However, it is the plaintiff who decides whether he wants to file a criminal suit for punishment or a civil suit for compensatory remedy.
Defamation as a tort
Under tort law, the focus is mainly on libel rather than slander. To prove a statement to be libellous, it must be shown that the statement is;
An important aspect of defamation as a tort is that it is no wrong if the defamatory statement defames a deceased person because as per general rule, a person should be able to prove that the statements referred to him is defamatory. However, this does not imply that there can be no cause of action if a dead person is defamed- for example, a defamatory statement is impacting the reputation of a deceased person’s heir, a suit for defamation would be maintainable. Also, it is important to be noted that the intent to defame is not necessary. In the case of Morrison vs Ritihie & Co. (1902) the defendants had published a statement by mistake that the plaintiff has given birth to twins whereas the plaintiff was married two months back.
Defamation as a crime
Section 499-502 of the IPC provides provisions for the protection of an individual’s reputation. Under criminal suit for defamation, intention to defame is necessary. Publication should be made with a malice intent to defame an individual(s) or with the knowledge that such publication is likely to defame another. It must be noted that, under criminal law, it is an offence to defame a deceased person. Section 499 of the IPC 1860, states that, “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishers any imputation will harm, the reputation of such person, is said except in the cases hereinafter expected, to defame that person.
Explanation 1: It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2: It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3: An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4: No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.”
Section 500 of the IPC stipulates punishment for an individual found liable under section 499 of IPC. Section 500 states that, “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”
The Criminal Procedure Code, which lays down the procedural aspects of the law, states that defamation is a non-cognizable and bailable offence. Individual(s) who are accused of the offence are generally not taken in to custody without a warrant.
FREE SPEECH VS DEFAMATION
Defamation is the communication of a false statement that harms the reputation of another. When in written form it is often called ‘libel’. Defamation has always acted as a limit on both the freedom of speech as well as the freedom of the press. There is no such thing as a false opinion or idea – however, there can be a false fact, and these are not protected under the First Amendment. When these false facts harm the reputation of others, legal action can be taken against the speaker. Since the press reports on people and events constantly, claims of defamation are bound to occur by those who either have incorrect, negative, or unwanted facts reported about them. However, if there was no First Amendment protection for the press, the press might become too cautious – afraid to report controversial facts out of the fear of being sued by anyone who did not like the coverage. The Supreme Court has strived to balance the interests of a free press with the privacy and dignity of others. As a person becomes more well-known or takes official positions in the government, the Court has afforded them less protections. Traditionally, the press was only exempt from libel claims if it reported on a public figure or the government and met certain standards. The statements of fact had to be substantially true, and comments or opinions had to be fully justified by those true facts. Libel required that a defamatory statement had been made about a plaintiff and communicated to a third party. Additionally, the person committing the liable was “strictly liable” – they could be found guilty regardless of if they intended the libel or not.
In the case of Subramanian Swamy v. Union of India, a petition regarding the decriminalization of defamation was filed. The petition challenged the constitutional validity of Section 499 and 500 of the Indian Penal Code, 1860 as an unreasonable restriction on the freedom of speech and expression. The apex court held that criminal defamation under Section 499 and 500 did not violate Art. 19(1)(a) as it is a reasonable restriction under Art. 19(2). The term ‘defamation’ in Art. 19(2) includes both civil and criminal defamation. Section 499 and 500 IPC was held to be non-discriminatory and non-arbitrary and not violative of the right to equality guaranteed under Art. 14 of the Constitution. While in a democracy an individual has a right to criticize and dissent, but his right under Art. 19(1)(a) is not absolute and he cannot defame another person as that would offend the victim’s fundamental right to reputation which is an integral part of Art. 21 of the Constitution.
Enacting a constitutional legislation is a better way to achieve the reforms in defamation. Defamation should be decriminalised, and civil defamation should be modified to make it more equitable and straightforward, avoiding Strategic Lawsuits Against Public Participation techniques. Because this is a new law, it would be foolish not to include the Internet and new media in establishing who can be sued for defamation and how. Limits on civil defamation should also be imposed. Not only must there be a considerable loss of credibility, but also the proof must also be substantial. The defendant must establish that the claimed comment harmed their reputation materially. Facts, belief, and logical inference can all be used as defences in defamation proceedings. Finally, courts should be able to impose exceptional fines against frivolous litigation that squander their time and money. To reduce the workload, courts should hear only significant defamation suits that haven’t been settled amicably. One method to ensure this is to make the legal notices that complainants must file before initiating a lawsuit mandatory. To avoid unwarranted accusations, these notices should also explain how the allegedly erroneous statement was made.
Defamation is an act of damaging one’s reputation by making a false declaration to a third party. It is an infringement of reputational interest. The rule of defamation is intended to protect the dignity of persons from malicious attack. Its primary impact in practise is to impede free expression and shield influential individuals from scrutiny. The rule of defamation aims to preserve individual integrity. The key challenge is how this goal can be reconciled with the conflicting demands of freedom of expression. In our society, as both of these interests are highly regarded, the former is perhaps the most precious characteristic of civilised human beings, while the latter is the very basis of a democratic society. Defamation law requires people who say or post misleading and malicious statements to be sued by individuals. The main concept behind balancing rights should be to exercise one’s freedom of speech and expression in the eyes of the public without compromising the reputation of the person. In my opinion, this law also has some major drawbacks. In a country like India, defamation is ‘luxury litigation’ and hardly ever leads to any outcome.
- Dr. R.K. Bangiya, Law of Torts, 25th Ed. 2020
- Peel Edwin, Goudkamp James, Winfield and Jolowicz, 19th Ed. 2014
- Henry Campbell Black, Black’s Law Dictionary, 4th Ed. 1968
- Dr. Ashok Kumar Jain, Law of Torts, 5th Ed. 2012
- Ratanlal & Dhirajlal, The Law of Torts, 26th Ed. 2013
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