Date: 22 Sept, 2020
by Harsh Vasu Gupta, UILS, Panjab University
WHAT IS DEFAMATION?
Defamation in simple terms means injury to the reputation of a person in the eyes of the third person.
It may be either spoken or written. In English law, defamation has been categorised as i.e. Libel and Slander.
Libel is said to have committed when some derogatory remark is made in a permanent form e.g. writing, printing or recording, whereas slander is in the transient form e.g. talking, gestures etc.
English law makes a distinction between libel and slander i.e. Under criminal law only libel is punishable, however, slander is non-punishable whereas in torts libel is actionable but slander is actionable only on proof of special damage.
Although there is no distinction between slander and libel in Indian law. Both Libel and Slander are civil wrongs as well as criminal offences under section 499, Indian Penal Code,1860.
In the case of D.P. CHOUDHARY V. MANJULATA, AIR 1997 Raj 170. The Respondent aged 17 yrs, belonged to a reputed family of Jodhpur.
She was a student of B.A. and news was published in a local daily that she ran away with a guy named Kamlesh.
The news publication was totally untrue and false, also harming her marriage prospects and reputation therefore she was awarded Rs. 10,000 as general damages.
No person can sue for defamation if in a statement an entire class or a group of individuals is defamed unless there is proof that the statement was directed towards him, e.g. if someone makes a statement that all lawyers are thieves then no particular lawyer could sue for defamation as there is no proof that the statement was directed towards one single person.
ESSENTIALS OF DEFAMATION
The state must be defamatory. Intention to defame is irrelevant.
The statement must refer to the plaintiff either expressly or impliedly i.e. it must be understood as referring to the plaintiff by a reasonable prudent man.
The statement must be published i.e. it must be communicated to a person other than the plaintiff himself. Also, the husband & wife are considered as one person in the eyes of law. Therefore, any derogatory remark made to either of them about others does not amount to publication.
There must be proof of special damage in case of Slander.
There are two defences available to a person in case of defamation
TRUTH: In a civil action the true statement is a complete defence whereas under criminal law the mere truth of the statement is no defence. Under Indian Penal Code,1860 beside a statement being true it needs to be shown to have been made for the public good.
FAIR COMMENT: Making a fair comment on matters of public interest serves as a good defence in an action for defamation. But it must be noted that the statement should be a comment, it needs to be fair and it must be on a matter of public interest.
PRIVILEGED STATEMENT: i.e. a statement which was given either in the parliamentary proceedings or judicial proceedings. Such statements though being false cannot attract an action for defamation.
UNDER INDIAN PENAL CODE, 1860
Section 499 of Indian Penal Code, 1860 states that 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 Indian Penal Code, 1860 states that whoever defames another shall be punished with simple imprisonment for a term which may extend to two years or with fine or both.
DEFAMATION AND RIGHT TO FREEDOM OF SPEECH AND EXPRESSION
There has been a lot of debate on defamation being a criminal offence puts a limitation on the fundamental right to freedom of speech and expression.
Recently this matter came before the Supreme Court in the case of Subramanian Swamy V. The Union of India [AIR2016SC2728] and it was discussed in length.
In 2015 Subramanian Swamy along with various other leaders like Arvind Kejriwal, Rahul Gandhi came together challenging the constitutionality of criminal defamation.
They alleged that the IPC,1860 sections 499 and 500 puts unreasonable restriction on the fundamental right to speech.
The SC in this particular case held that though Article 19 being a fundamental right is not absolute but subject to certain reasonable limitations, therefore, the restrictions placed by this particular section are justified as in a democracy it is the reputation of an individual that comes under the protection of one’s dignity which is duly covered under right to life.
Therefore, defamation is both a civil wrong and a criminal offence. A person can seek both these remedies.
R.K. BANGIA, Law of torts