Defamation: An analysis of the law

INTRODUCTION

Defamation is a common legal term which has wide definitions. It is the elaboration of Protection of one’s Right to Reputation.

Section 499 of IPC defines Defamation as 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 excepted, to defame that person.

TYPES OF DEFAMATION

Libel: Libel is publication of false and defamatory statement which tends to injure the reputation of another person without any lawful excuse or justification. Libel is always in a permanent form, for ex. Written on a paper, typed, printed, etc. In common law as well as Indian Law Libel is considered to be a criminal offence. Libel is actionable per se, i.e. without proof of damage, being in a written form, it is sufficient to proof damages, therefore it does not require any other proof for ascertaining damage.

Slander: Slander is a defamatory statement through some gestures or mere words. It is always in a temporary form. It is transient in nature. In common law Slander is a civil wrong, while Indian Law under Section 499 defines slander also as a criminal offence. Slander is actionable only when special damages are proved.

CYBER DEFAMATION

Cyber Defamation is a new term which has now become common after the vast expansion of social media. Cyber Defamation means publication of defamatory statements on Social Media. The reason I used publication is, Social Media is nothing but a virtual world wherein one sits at his place alone and is able to connect with millions of people at same time. Therefore any such  statement passed on social media automatically qualifies for a publication.  Most of the people often alleging someone end up while passing a statement which defames the other person.

Due to which, “electronic documents” was added in Section 469 of IPC, which deals with commitment of forgery with an intent to harm reputation of other shall be punished with imprisonment upto a term or extending to three years and shall even pay fine.

While Section 500 of IPC defines Punishment for Defamation as Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

ESSENTIALS OF DEFAMATION

Essentials play an important role in proving one’s liability and in order to make one liable following essentials are required;

Statement must be False and Defamtory:-

Statements can be false and defamatory in two types:

1. When the statement is defamatory in their original meaning and indicating a person directly.

Case: Anil Ambani v. Mukesh Ambani [1]wherein Anil Ambani sued Mukesh Ambani for damages upto 10,000 crore for using libelous statement while giving interview to New York Times.

2. When the statement is ordinary in natural meaning, but when studied with various facts, it tends to target another party  in an indirect manner. It is also known as “Innuendo”

Case: Gujarat Ke Gadhe statement made by Akhilesh Yadav in a rally based on an advertisement made by Gujarat Govt. to promote tourism, which seemed to be ordinary at first stance, but when matched with time and facts, his target was aimed at Gujarat’s ruling party, which can be said to be Innuendo.

 

Statement must refer to the Plaintiff

When plaintiff takes an action, he must be able to prove that the statement so mentions refers to him. Even if in particular, the name is not mentioned, yet mere reference to the plaintiff is enough to hold someone liable.

Case: In case Newstead v. London Express,[2] London Express mentioned a news regarding Harold Newstead about 30 year old was guilty of bigamy. The information was true. But there resided other person named Harold Newstead, about 30 year old, a barber, for whom the news was untrue, and did suffer some damages as well, as the people associated him with the person found guilty. He sued respondent and was able to recover damages.

Statement must be published

Publication of statement does not restrict itself to written form or permanent form, legal meaning of published statement means the defamatory statement being made in front of any third party, i.e. except the one to whom it has been referred to.

DEFENCE AVAILABLE IN DEFAMATION

Statement must be True:-

If the statement so published is a truth, then no action lies with the plaintiff. Even if the motive is malicious, but the statement is true, no action lies further.

Fair and Bonafide Comment:-

Fair and Bonafide comment is not a statement of fact, it simply means a fair comment or an opinion forwarded by a person which he believes to be true and is forwarded on a public interest. If these essentials are met, then no action lies with the plaintiff.

Privilege:-

There are certain statements which are deemed to be privileged. However, the final decision is taken by judiciary, but Privilege can be divided in two parts, i.e. Absolute Privilege and Qualified Privilege, if the statement so made lies in any of the two parts, it can act as a defense, wherein no action would lie.

Absolute Privilege means, a statement is absolutely privileged when a statement is false and defamatory and made with express malice, yet no action lies.

It can be occasioned into 4 parts:

1. Parliamentary Proceedings :- Article 105 and 194 of Indian Constitution hold provisions which make Parliamentary Proceedings absolutely privileged.

2. Judicial Proceedings:- Any statement made during Judicial Proceedings by Lawyer, Judge, etc. is absolutely privileged.

3. Military Proceedings:- Statement made during Military Proceedings are also absolutely privileged.

CONCLUSION

Defamation is a tort as well as a criminal offense under IPC (Indian Penal Code), These laws are strictly required to be followed in our modern society as many of the people defame others by passing false and pejoratively statements without knowing that this is a criminal offence and what it can lead to. This law safeguards the one’ reputation by letting him/her sue in court for the malicious intention of defaming.

It is basically a line between Right to Freedom of Speech and Expression and Right to Reputation. When any person misuses his right of freedom of speech and interferes with other right to reputation, then he commits tort of Defamation and is ought to be punished. As per Indian Constitution, Right to Reputation of one should not be sacrificed for another’s Right to Freedom of Speech and Expression.

 

[1] https://www.business-standard.com/article/companies/five-defamation-cases-that-rocked-corporate-world-116112200499_1.html

[2] https://www.lawteacher.net/cases/newstead-v-london-express.php

Author: Arunabh Srivastava,
Symbiosis Law School, NOIDA