Defamation by Diksha Dubey @Lexcliq

Introduction

Every man is entitled to have his reputation. Jurist Blackstones has added to this proposition and indicted that “Every man is entitled to have his reputation preserved inviolate”. A man’s reputation is his property. Depending upon perception of that man, reputation is more valuable to him than any other property. Reputation is the state of being held in high esteem and honor or the general estimation that the public has for a person. Reputation depends on opinion, and opinion is the main basis of communication of thoughts and Information amongst humans. In simpler words, reputation is nothing but enjoyment of good opinion on the part of others. So, the right to have reputation involves right to have reputation inviolate or intact.

Defamation and its definition

The word defamation is driven from Latin word ‘Diffamare’. Semantics or Etymology of the Latin word ‘Diffamare’ provides that it means ‘Spreading evil report about someone’. Thus, defamation is nothing but causing damage to reputation of another. Thus the question of defamation is primarily linked up with one’s reputation. But the concept is nowhere defined in books of laws. Though many definitions have been attempted to circumscribe this word ‘defamation’, none has been found exhaustive.

The cause of action for defamation has been recognized from the very beginning of our civilization. People have been resorting to mutual fights to smoothen out the wrong done to their reputation.

Criminal and Civil Defamation
Criminal Defamation: Criminal defamation is the act of offending or defaming a person by committing a crime or offence. For criminal defamations, you could always get the liable person or party prosecuted. It is studied in IPC as a criminal act.

Civil Defamation: Civil defamation involves no criminal offence, but on account of this kind of defamation, you could sue the person to get a legal compensation for your defamation. It is studied under law of torts i.e. as a civil wrong.

Libel and Slander
English Law: Mainly because of historical reasons, English law divides actions for defamation into Libel and Slander.

Libel is a representation made in a permanent form like writing, movie, picture etc. For e.g., X printed some advertisement saying Y is bankrupt but Y was not thus it was representation in a specific form.

Slander, on the other hand is the publication of a defamatory statement in transient form like spoken words or gestures. For e.g., A questions the chastity of B in an interview, A is slanderous.

Essentials of Defamation

An obvious question arises about essentials of defamation under Indian Law. Because, whenever defamation is agitated before any Civil Court, the proof has to travel around certain essentials. Therefore, it becomes necessary to try to enlist those essentials or requisites constituting defamation as civil wrong. There are in general four essentials of the tort of defamation, namely

  1. There must be a defamatory statement.
  2. The defamatory statement must be understood by right thinking or reasonable minded persons as referring to the plaintiff.
  3. There must be publication of the defamatory statement, that is to say, it must be communicated to some person other than the plaintiff himself.
  4. In case of slander either there must be proof of special damages or the slander must come within the serious classes of cases in which it is actionable per se.

Defamation as a crime

The IPC under chapter XXI sections 499-502 protects an individual’s / person’s reputation. Defamation against the state is contained in section 124A [Sedition], Section 153 of the Code provides for defamation of a class i.e., community [Riot], while section 295A deals with hate speech with regards to outraging religious sentiments. [Hate Speech] Section 499 of the IPC defines ‘defamation’ as being committed:

  1. Through: (i) words (spoken or intended to be read), (ii) signs, or (iii) visible representations;
  2. Which: are a published or spoken imputation concerning any person;
  3. If the imputation is spoken or published with: (i) the intention of causing harm to the reputation of the person to whom it pertains, or (ii) knowledge or reason to believe that the imputation will harm the reputation of the person to whom it pertains will be harmed.

This broad definition is subject to four explanations and ten exceptions. If a person is found guilty of having committed defamation in terms of section 499 of the IPC, the punishment is stipulated in section 500, simple imprisonment for up to two years or fine or with both. The Cr PC, which lays down the procedural aspects of the law, states that the offence is noncognizable and bailable. Those who are accused of the offence would generally not be taken into custody without a warrant, and as such, an aggrieved person would not be able to simply file a police complaint but would, in most cases, have to file a complaint before a magistrate. As far as the ‘truth defence’ is concerned, although ‘truth’ is generally considered to be a defence to defamation as a civil offence, under criminal law, only truth is a defence to defamation as a crime (assuming, of course, that it is demonstrably true) only in a limited number of circumstances. This can make persons particularly vulnerable to being held guilty of having committed defamation under the IPC even if the imputations they made were truthful.

Defences to Defamation

  1. Justification or truth: In defamation there cannot be better defence than that of truth, as the law will not permit a man to recover damages in respect of any injury and character which he either does not or ought not to possess. The deference is still available even though the statement is made maliciously. Defence is available if the statement is substantially correct though incorrect in respect of certain minor details.
  2. Fair comment: The second defence to an action for defamation is that the statement was a fair comment in public interest. Comment means expression of an opinion.
  3. The essentials of this defence are: a. It must be a comment, i.e. expression of opinion b. Comment must be fair c. Comment must be in public interest Comment and statement of facts are different. Comment is an expression of opinion on certain facts and circumstances, and not statement of fact.
  4. Privilege This is also one of the fundamental principles that there are circumstances when freedom of speech has privilege and even if it is defamatory it is protected. The individuals right to reputation is subordinate to the privilege of freedom of speech. This privilege may be; absolute or qualified. The Constitution of India grants privilege to any speech made in parliament or state legislature and publication of the same under the authority of parliament or state legislature is privileged. Similarly, in any judicial proceeding, no action for defamation lies for words spoken or written, against judges, counsels, witnesses or parties. But the words, oral/ written must be pertaining to proceedings. State communications are also privileged. Statements made by one government officer to another in the course of official duty are privileged communications. So are the statements made by the ministers in the course of their official duty. Even in the case of qualified privilege the statement should be made without malice.

Conclusion
Defamation is tort resulting from an injury to ones reputation. It is the act of harming the reputation of another by making a false statement to third person. Defamation is an invasion of the interest in reputation. The law of defamation is supposed to protect people’s reputation from unfair attack. In practice its main effect is to hinder free speech and protect powerful people from scrutiny. Defamation law allows people to sue those who say or publish false and malicious comments.

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