Understanding defamation laws

Every man is entitled to have his reputation preserved inviolately. Reputation is a fundamental component of one’s dignity and the right to reputation is an inherent right guaranteed by Article 21 of the Constitution and is absolute. Another right that directly affects Article 21 is right to freedom of speech and expression guaranteed by Article 19(1)(a) of Constitution of India. Reputation of one cannot be allowed to be crucified at the altar of the other’s right of free speech. Hence, a balance between one’s right to freedom of speech and another’s right to protect their good name should be maintained at all times.
 

Q. What is defamation?

The word defamation is driven from the Latin word ‘diffamare’ which means ‘spreading an evil report about someone’. Defamation means any intentional false publication/communication to some person other than the person defamed without lawful justification, either written, spoken, signed or other visible representation, that harms or lowers a person’s reputation; and decreases the respect, regard or confidence in which a person is held in the estimation of right thinking persons or to deter them from associating or dealing with him.
 

Q. What are the types of defamation?

Defamation may be committed in two ways –

1. Slander – Oral or spoken form of defamation. It may be committed by representations or it also includes gestures, sign language and inarticulate form of expressions such as like shake of the head, nod, winking, hissing, booing or any transient way of injuring the reputation. Slander is actionable when the aggrieved person provides proof of special damage such as loss of money or material damage that can be estimated in monetary terms.
    
2. Libel – By writing and its equivalent modes. The equivalent modes can be through physical symbols, statues, effigies, pictures, caricatures, wax models, etc. Libel is actionable per se without providing any proof of special damage as it is in written form and can be produced as evidence.
    

Q. What constitutes defamation?

There are in general five essentials of the tort of defamation under civil law namely –

1. There must be a defamatory statement.
    
2. Such a statement must have been made with the intention to harm, with knowledge or having reason to believe that it will harm the reputation of the person concerned.
    
3. The defamatory statement must be understood by right thinking or reasonable minded persons as referring to the Plaintiff.
    
4. Such a statement must be made accessible to the public in a visible manner. It should be published or communicated to some person other than the Plaintiff himself.
    
5. In the case of slander, there must either be proof of special damages or the slander must come within the serious circumstance in which it is actionable per se.
    

Q. What are the laws on defamation?

Defamation in India is both a civil as well as criminal wrong. While criminal law on the subject is codified, the civil law of defamation is mostly based on Tort. The law of defamation does not infringe the right of freedom of speech guaranteed by Article 19(1)(a) of the Constitution, it is saved by Article 19(2) of the Constitution.  

The Indian Penal Code, 1860 (IPC) under Chapter XXI, Sections 499-502 protects an individual’s/person’s reputation. Defamation in other forms are contained in the following Sections:

Q. Who can file a defamation suit and against whom?

The most obvious answer is the person against whom such statements have been made. However, the answer could get a little complicated in some scenarios. One such is when the person against whom it is made is dead. Section 199 of CrPC states that a complaint may be made by ‘some person’ aggrieved by the offence. Hence, a family member if suffers a damage due to the defamatory statement is empowered to sue in spite of the position of law that a dead person ceases to be a person in the eyes of law as held in  Raju v. Chacko, 2005 (4) KLT 197.

The most common mistake one does in a defamation suit is not adding the right or necessary parties to the suit or often adding wrong persons as parties. The common dilemma in a libel is choosing between authors, editors, publishers, and intermediaries. The simple yardstick to follow in such cases is to check ‘who has the final creative control over the statement published?’ and such a person should be made responsible for it. By the same yardstick, intermediaries, especially online ones like Facebook and Google, should not be made liable for defamation as they have no creative control over the statements made. However, they should nevertheless be made parties to the suit as they may have to provide information about anonymous authors or remove the statement if directed.
 

Q. How to institute a defamation suit?

Civil suit – A civil suit can be filed before a munsiff/Civil judge junior/senior division or District Court or a High Court, depending on the quantum of damages being sought by the Plaintiff. After perusing the Plaint, if a judge is satisfied that there is a case to seek replies from the parties from whom the damages have been demanded, notices are issued to them. Interim reliefs such as injunctions also could be granted in this stage. Later, based on documentary and oral evidence, a decision is reached on whether the Plaintiff deserves a compensation for been wronged. A person, while instituting a civil suit, may also demand a prohibition against further publication of the alleged defamatory material.

Criminal suit – The criminal trial of defamation provisions are read in conjunction with the procedural requirements laid down in the Criminal Procedure Code, 1973 (CrPC). Offence has been categorised as non-cognisable and bailable, hence, a mere filing of a police complaint by an aggrieved person does not entail arrest of the alleged offender. A complaint is more often than not filed before a Magistrate seeking prosecution of the alleged offenders and their arrest.

The Complainant needs to record his statement to convince the Magistrate that the case warrants summons to the accused and their arrest. Once summoned, the law is set into motion and at this stage, it becomes imperative for the accused to move for bail before the Magistrate. If the Complainant succeeds in establishing a prima facie case, the trial proceed, otherwise, the accused is discharged. The offence of defamation is to be tried as a ‘summons case’ and as per the mandate of Section 256 of the CrPC.

Q. What are the steps to note before filing a defamation suit?

1. Limitation: Article 75 of Schedule 1, Part VII of the Limitation Act, 1963  clearly stipulates that the period of limitation of 1 year would begin to run from the alleged defamatory statement is spoken, published or otherwise communicated to the public. When special damage to one’s reputation occurs from an alleged defamation, the suit should be filed within 1 year from that date. In case of a criminal trial then we should be weary of Section 468 of CrPC.

If defamation is committed against a public servant who, at the time of such commission, was employed in connection with the affairs of the Union or of a State, in respect of his conduct in the discharge of his public functions, the limitation period is 6 months from the date on which the offence is alleged to have been committed.

2. Court Fee: Court fee varies from State to State, and in Karnataka it is based on Section 26 and 21 of the Karnataka Court-fees and Suits Valuation Act, 1958.
    
3. Jurisdiction: A plain reading of Section 19 of Civil Procedure Code, 1908 (CPC) reveals that a suit for compensation of a wrong done, can be filed either where the wrong was committed or where the Defendant resides or carries on business. According to Section 179 of the CrPC, when an act is an offence because of something been done and for the consequence which has ensued, the offence may be inquired into or tried by a court within whose local jurisdiction such thing has been done or such consequence has ensued.

Applying these pointers to defamation as a tort and a criminal offence, if a defamatory statement is published in a newspaper, the courts where the newspaper is printed, published and sold (circulated) shall have the jurisdiction to try the suit and entertain the complaint about defamation. Further, in case of a tort, the suit can also be filed where the author of such statement resides or carries on business.

Q. What is the evidence required in a suit for defamation?

1. Statement – There must be a publication of the defamatory statement. The test for such content is the ordinary man test where the meaning of the content is considered to be what a common, ordinary man will comprehend it to be. The claimant needs to prove that the statements injured his reputation and were published. The onus then shifts to the Defendant/accused to prove that the imputations or statements were either true, or amounted to fair comment, or were uttered or stated in circumstances offering absolute or qualified privilege like Parliamentary or Judicial proceedings.
    
2. Identification – The claimant should be identified in the defamatory statement. The content must be clearly addressing a particular person or a very small group for it to be defamation. The content should be personally attributed to him and not simply general statements.
    
3. Publication – For a statement to be published, a third party must have seen, heard or read the defamatory statement. If there is no publication or communication to the public, there is no injury of reputation and no action will arise.
    
4. Injury – The above statement must have caused an injury to the claimant and an injury to his reputation.
    
5. Falsity – The defamatory statement must be false. If the statement is not false, then the statement will not be considered as a defamatory statement.
    
6. Unprivileged – For a statement to be defamatory, it must be unprivileged. Qualified privilege is usually granted to a person who has the ‘legal and moral’ authority to do it and does it without any malice. For example The Press, fair criticism, Parliamentary proceedings, statements made in self-defense etc.
    
7. Role – In a defamation suit, it is pertinent to prove the role played by the parties in aiding such a defamation. Specific roles must be pointed out i.e. intention of the parties to defame, the act of instigating or spreading false statements, publishing of it on the instance of somebody, not verifying the truth before publishing, etc.

Conclusion

While it is vital to protect an individual’s right to reputation, this must not come at the cost of the right to criticise as this is indispensable for democratic accountability. The law for defamation in India impedes free speech more than it protects reputations and it is vital for the Legislation or the Judiciary to step in and strike a balance.

DISCLAIMER: The information provided in this article is for educational purpose only. The same cannot be construed as legal advice.