Defamation in simple words is damage caused to one’s reputation. It is a false unprivileged statement which is said with the purpose of attacking someone’s reputation to bring that person into disrepute. It can be defined by state laws in specific ways. If in writing or in pictures or any other visual symbols (online or internet based) it is recognized as libel, and if in spoken it is slander.
Although defamation have great history it’s a creation of English law, taking some examples like in Roman law abusive words and language were capitally punishable, in Germanic law insults were punished by cutting out one’s tongue and many more.
Defamation as torts:
It is a civil wrong and based on torts law (which do not have any statutes to define and it completely based on case laws to define wrongs). It provides remedy to plaintiff by awarding damages on bases of probabilities. It is a slow process to seek relief.
Elements of defamation:
To claim for defamation one must prove these essentials-
- There must be a false statement of facts.
- Or any false publication
- Without consent of defamed person
- The statement or publication must concern the plaintiff
- Act done must be with the intention to harm the reputation of plaintiff.
Defamation v. Freedom of speech:
Article 19(1)(a) of the Constitution of India states that all the citizens shall have the right to freedom of speech and expression. However, that freedom is subject to reasonable restrictions and the protection of someone’s reputation falls within the ambit of it. Therefore, any comment, statement, or remark that harms one’s reputation (unless its true) brings liability under the law of defamation.
It may be a civil charge or a criminal charge under section 499 and 500 of IPC.
Section 499 of IPC: 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 to defame that person.
Section 500 of IPC: Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years or with fine or both.
Defense available under defamation:
The following are the defenses provided for defamation:
- Justification of truth- if the defendant proves that the statement either spoken or published is of true nature, then there will be no liability.
- Fair and bonafide comment: if the defendant proves that the comment is fair and of honest nature and in public intrest, then no action will lie.
- Privileged statement: the lawmakers have provided that one cannot be sue for defamation when the statement is considered as privileged.
- 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 is 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.
- In Shreya Singhal v. Union of India, the petitioners challenged the validity of Section 66A of the Information Technology Act (ITA) contending that it was not a reasonable restriction on the freedom of speech and expression guaranteed under Art. 19(1)(a) of the Constitution. They argued that the impugned section was unconstitutional because it provided protection against annoyance, inconvenience, insult, injury, or criminal intimidation which is not covered in Art. 19(2). The court found section 66A of (ITA) to be vague and invalidated it on the ground of being violative of the right to freedom of speech and expression.
In my opinion it avoids the misuse of article 19(1)(A) that is freedom of speech, one should not suffer on the name of other people’s freedom of speech. It is also said that under article 21 which gives right to life it also includes right to reputation or right to live with dignity and it cannot be violated at any cost.