The law of Defamation

What Is Defamation?

Defamation is the act of communicating false statements about a person that injure the reputation of that person when observed through the eyes of ordinary man. Any false and unprivileged statement published or spoken deliberately, intentionally, knowingly with the intention to damage someone’s reputation is defamation. A man’s reputation is treated as his property and such damage are punishable by law. It could be written or verbal. Written defamation, printed or typed material or images is called as libel and spoken defamation is called slander.

History of defamation can be traced in Roman law and German law. Abusive chants were capitally punishable in Roman. In early English and German law, insults were punished by cutting out the tongue. In the late 18th century, only imputation of crime or social disease or casting aspersions on professional competence constituted slander in England. The enactment of Slander of Women Act added imputation of unchastity illegal. French defamation laws were very severe. Conspicuous retraction of libelous matter in newspaper was severely punishable and only truth is allowed as defense when the publication related to public persons. In Italy, defamation is criminally punishable and truth seldom excuses defamation.

Defamation Law in India:

Article 19 of the Constitution grants various freedoms to its citizens. However, Article 19(2) has imposed reasonable exemption to freedom of speech and expression granted under Article 19(1) (a). Contempt of court, defamation and incitement to an offence are some exceptions.

Defamation is an offence under both the civil and criminal law. In civil law, defamation is punishable under the Law of Torts by imposing punishment in the form of damages to be awarded to the claimant. Under the Criminal law, Defamation is a bailable, non-cognizable offence and compoundable offence. Hence a policeman may arrest only with an arrest warrant issued by a magistrate. The Indian Penal Code punishes the offence with a simple imprisonment up to two years, or with fine, or both.

Civil Defamation:

The statements made need to be false and it must be made without the consent of the alleged defamed person. Monetary compensation can be claimed from the defendant for defamation. There are certain requirements for successful defamation suit. They are:

  • The presence of a defamatory statement is required. Defamatory content is one calculated to injure the reputation of a person or a class of persons by exposing them to hatred, contempt or ridicule. The test whether it damages reputation has to be calculated from the eyes of a common man and his comprehension of the matter.
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  • Secondly, the statements must purport to a person or a class of persons. General statements like all “politicians are corrupt” is too broad and no specific politician can gain compensation for the same.
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  • It must be published either in oral or written form. Unless the content is made available to a third person, there can be no defamation. Where a letter is sent in a language unknown to the recipient, he needs a third person to read to it him. If any defaming statement is made in it, it will constitute defamation even if it was sent as a private letter, since the aid of a third person was needed to read it.

Once all these conditions are satisfied, a successful defamation suit subsists. The defendant can plead defenses that:

  1. The statement published was true,
  2. Fair comments made with public interest based on true incidents,
  3. Certain persons are vested with the privilege to make statements even if they are defamatory,

Example judicial proceedings and members of parliament. If the defendant fails to substantiate his act, the suit is successful.

Criminal Defamation:

It is nothing but a defamation for which simple imprisonment may be awarded. Under a criminal suit, intention to defame is necessary. The allegation should be made with malice intent to defame another or at least the knowledge that the publication is likely to defame another is essential. It has to be proved beyond reasonable doubt that the act was being done to lower the reputation of another.

Section 499 of the Indian Penal Code, 1860 defines what is defamation and its exceptions. Words or signs imputed intending to harm or with the knowledge that such imputation will cause harm. It may amount to defamation if anything is imputed against a deceased person, if such imputation would harm the reputation had the person been alive. The class of persons shall include company or associations. It is no defamation unless the alleged defamatory statement either directly or indirectly lowers the moral or intellectual character or his respect of his caste or his calling in the estimation of others.

Exceptions:
Persons who make defamatory statements are exempted from punishments if they fall in one of the ten exceptions provided in Section 499. They are:

  • Attribution of any truth made for public good. Truth is seldom defense unless made for a public good.
  • Any opinion made in good faith regarding the conduct of a public servant in the discharge of his public functions.
  • Any opinion made in good faith respecting the conduct of any person which relates to a public question.
  • Publication of true reports of the proceedings of the Courts or the result of the proceedings is not defamation.
  • Any opinion made in good faith regarding the merits of any civil or criminal case decided by the Court of Justice, or the conduct of any person as a party, witness or agent to that case and no further.
  • Opinions made about the merits of any performance which its author has submitted to the judgement of the public, or about the author is not defamation if made in good faith.
  • Censures passed by persons neither having authority over another either conferred by a law or from a lawful contract in good faith is nor defamation. Censure is formal statement of severe disapproval.
  • Accusation of offence to any person having lawful authority over the alleged person in good faith is an exception to defamation. Complaints about servants to masters and children to parents are examples to the exception.
  • Statements made about the character of character is not defamation if it is made in order to protect the interests of the person making it, or any other person, or for the public good.
  • Cautions conveyed to one person against another are not defamation if it is intended for the good of the conveyed person, or any other, or for public good.

Section 500 of the Code punishes defamation if it does not fall within the above said exceptions with simple imprisonment which may extend to two years, or fine, or both. The Indian Penal Code punishes printing or engraving matter known to be defamatory or sale of such printed or engraved substance containing defamatory matter about any person in the same manner of punishing defamation.

Constitutionality of Defamation Laws:

Controversies have erupted over the fact that defamation laws are violation of fundamental right guaranteed under Article 19 of the constitution. The Supreme Court has ruled that the criminal provisions of defamation are constitutionally valid and are not in conflict with the right to free speech. The court also held that the freedom of speech and expression is “absolutely sacrosanct” and is not absolute. The right to life under Article 21 shall also include the right to reputation of a person and cannot be allowed to crucify by other’s right of free speech.

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