The power of words to wrongfully lower the esteem or value of the person in public without any concrete evidence is known as defamation. Defamation is one of the most common types of cases that are filed in the courts of law around the world. Anyone who feels he or she has been wrongly accused of something by someone in public, through words or gestures, spoken, written, or by inference can file a defamation suit in a court of law claiming that the accusation leveled deals a blow to his/her reputation. The very important ingredients for defamation are-
- Publishing of words either in the written form or orally so that masses can read or understand the reference.
- The defamatory statement should be damaging to the reputation of the person against whom charges have been made or creates circumstances where the person being defamed is shunned or avoided by the people. It is also noteworthy that person can be an individual or a small group or persons, and not general groups.
- “Right-thinking” means any person with average intelligence, in other words anyone with a sound mind of the general society. It does not mean any special class of persons of any kind.
IPC Section 499 lays down the definition of defamation and Section 500 lays down the punishment for criminal defamation. Section 499: Defamation — 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, except in the cases hereinafter expected, to defame that person. In India, Section 499 of the Indian Penal Code primarily governs the law on defamation, however, it is pertinent to note that the law has been extended to “electronic documents”. Section 469 of the IPC (forgery for purpose of harming reputation) has been amended by the Information Technology Act, 2000 to include ‘electronic record forged’ and now reads as a whole as – whoever commits forgery, intending that the document or electronic record forged shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
In one of the very famous case of Swami Ramdev & Anr. v. Facebook Inc. & Ors., Justice Pratibha Singh had passed an order to remove all defamatory content posted online against yoga guru Baba Ramdev, without any territorial limit, stating that if the content is uploaded from India or such content is located in India on a computer resource, then the Courts in India should have international jurisdiction to pass worldwide injunctions. Facebook, has filed an appeal against the said order which has been admitted by the Division Bench of the Delhi High Court. The grounds of the said appeal are that in spite of the fact that the Plaintiff was aware of the persons who uploaded the content, they have not been made party to the suit. Further, it has also been contented that Baba Ramdev has not shown any strong prima facie case of irreparable loss. Among other submissions, Facebook in its appeal has also contented that global takedown order is against national sovereignty and international comity, as it interferes with defamation laws of other countries. Additionally, the said order also undermines the immunities granted to them in other jurisdictions. One of the major exceptions to defamation is if what is being alleged is the absolute truth and is for the public good. The criminality of defamation was challenged in the Supreme Court in 2015. The argument was that it was an unreasonable restriction on the constitutionally-guaranteed right to freedom of speech and expression.
Criminal defamation should not be allowed to be an instrument in the hands of the state, especially when the Code of Criminal Procedure gives public servants an unfair advantage by allowing the state’s prosecutors to stand in for them when they claim to have been defamed by the media or political opponents. The constitutional validity of Section 499 and Section 500 of the Indian Penal Code and Section 199(1) and Section 199(4) of the Code of Criminal Procedure were questioned in the case of Subramanian Swamy v. Union of India and Other. Several writ petitions were filed under Article 32 of the Constitution of India challenging the constitutional validity of Section 499 and 500 of the Indian Penal Code, 1860 and Section 199 and Section 199(4) of the Code of Criminal Procedure, 1973.