Defamation is an injury to the reputation of a person in front of the right-thinking members of society. In simple terms a legal action involving harm to reputation caused by a false statement of fact and involves both libel (written or set form) and slander (spoken defamation). True statements that damage the reputation of another will not create liability for defamation (although they can open you up to certain types of liability if the information you publish is of a confidential or highly private nature).
Defamation requires that the publication be false and without the permission of the individual supposedly defamed. Words or pictures are interpreted and within the context of the publication and consistent with common usage. Injury to emotions isn’t defamation; there must be a loss of reputation. The defamed person doesn’t get to be identified but must be ascertainable. a category of persons is taken into account defamed as long as the publication refers to all or any its members particularly if the category is extremely small- or if explicitly imputed to particular members.
Defamation in India
In India, there is no such distinction between libel and slander. Both libel and slander constitute a criminal offense. It can be divided into two categories for better understanding:
- Civil Defamation as a crime
According to Section 499 “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 expected, to defame that person.”
According to Section 500 “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”
The Innuendo: Defamation per se
A statement may be prima facie defamatory and that is so when its natural and obvious meaning leads to that conclusion. But, sometimes the statement may prima facie be innocent but because of some latent or secondary meaning, it may be considered to be defamatory. When the natural and ordinary meaning is not defamatory but the plaintiff wants to bring an action for defamation, he must prove ‘the latent or secondary meaning, i.e. the innuendo, which makes the statement defamatory’. Even a statement of commendation may be defamatory referring to the context in which it is said.
Defamation with Freedom of Speech
The problem emerging is whether liability arising out of defamation constitutes a breach of the right to freedom of speech and expression. Since we know that there is no clear fundamental right to privacy, it is including in the judicial interpretation as a dimension of the right to life and freedom guaranteed under Article 21 of the Constitution. Thus, the right to reputation also comes within the scope of Article 21.
- In the case of Subramanian Swamy v. Union of India, a petition seeking the decriminalization of defamation was filed. The petition questioned the constitutional validity of Section 499 and 500 of Indian Penal code, 1860, which is an unreasonable limitation on the liberty of speech and expression. The Supreme court held that criminal defamation under Section 499 and 500 didn’t infringe Article 19(1)(a) because it may be a reasonable restriction under Article 19(2). The term ‘defamation’ in Article 19(2) covers both civil and criminal defamation. Sections 499 and 500 of IPC were considered non-discriminatory and non-arbitrary and didn’t violate the proper to equality guaranteed under Article 14 of the Constitution. While an individual features a right to criticize and disagree during a democracy, his right under Article 19(1)(a) isn’t absolute and he cannot defame another person because this can violate the victim’s reputation which is an integral a part of Article 21 of the Constitution.
- In the case of Shreya Singhal v. Union of India, the petitioners challenged the validity of Section 66A of the knowledge Technology Act (ITA) claiming that the liberty of speech and expression guaranteed under Article 19(1)(a) of the Constitution wasn’t an inexpensive restriction. They argued that the challenged provision was unconstitutional therein it offered protection against annoyance, discomfort, threat, injury, or criminal coercion which isn’t covered in Article 19(2). The court found Section 66A of (ITA) to be vague and invalidated it on the bottom of Defamation is an Offence being violate of the proper to freedom of speech and expression.
- In the case of Morrison v. Ritchie & co., the defendants in a good faith published a mistaken statement that the plaintiff had given birth to the twins, the plaintiff had been married for only two months. Even though the defendants were ignorant of this fact and they were held liable by the Honorable court.
Any such action that takes place in cyberspace can result in cyber defamation. It occurs when the digital platform is employed as a tool or a medium for defaming an individual or an entity. Moreover, despite the wide coverage of the internet and therefore the pace at which information is disseminated on this platform, it’s difficult to assess the extent of the injury at any price. Although the medium accustomed to commit this act is different within the physical and digital world, the law of defamation applies an equivalent.
For example: making a defamatory comment against an individual on a social networking site like Facebook, Twitter, etc., or sending emails that contain defamatory material a few persons meaning to defame him/her.
Defenses in case of Defamation
Truth – Statements made in good faith and with reasonable beliefs that the statements are true. The defense will be available.
Privilege – The law recognizes that the right of free speech outweighs the plaintiff’s right to reputation in certain occasions, and the law treats such occasions to be privileged and therefore these statements are not actionable. Further there two types of privileges-
- Absolute privilege
- Qualified privilege
To qualify as a successful defamation suit, the statement should involve the existence of defamatory material. Defamatory content is characterized as one calculated to harm another’s reputation by exposing him to hatred, contempt, or ridicule. The defamatory statement should bring the reputation of the person to the ground in the eyes of the right-thinking members of society. The complaint must be listed in the defamatory statement. For it to be defamation, the material must be specifically directed to the plaintiff. General statements are not considered as Defamatory. For example, “All lawyers are criminals”. Such statements cannot be considered defamation. If the defamatory statement is delivered orally or in transit form than it will be considered as “SLANDER” (It is not actionable per se) and if the defamatory statement has been published in any kind or made in some permanent form i.e. writing, printing, etc, then it will be considered as “LIBEL” (It is actionable itself). In a civil suit, a defamation suit subsists until any of those requirements are met, and therefore the defendant must plead a privilege or take up a defense. The defamation suit is effective if the defendant fails to prove his defense. Intention to defame is a crucial element under a criminal suit. If the intention is absent, it becomes essential to understand that the publication is probably going to defame or is defamatory. In criminal cases, all of this is often further subject to the traditional standard of proof: beyond a reasonable doubt.
Author: AYUSH CHOUBEY,
Jagran Lakecity University, 1st Year