Defamation is the general term for a legal action involving reputational harm caused by a false statement of fact and involves both libel (written or set form) and slander (spoken defamation). The crux of a defamation claim is falsity. True statements that damage 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).
In general, defamation requires that the publication be false and without the permission of the individual supposedly defamed. Words or pictures are interpreted and in the context of the publication and according to common usage. Injury to emotions is not defamation; there must be loss of reputation. The defamed person does not need to be identified but must be ascertainable. A class of persons is considered defamed only if the publication refers to all its members particularly if the class is very small- or if explicitly imputed to particular members.
Defamation in India
There is no such distinction, in India between libel and slander. Both libel and slander constitute criminal offence. It can be divided into two categories for better understanding: i. Criminal ii. Civil Defamation as a crime
Section 499: Defamation — 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.
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.
Defamation VS. 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 includes 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.
A petition seeking the decriminalization of defamation has been filed In the case of Subramanian Swamy v. Union of India. The petition questioned the constitutional validity of the Indian Penal Code Section 499 and 500, 1860 is an unreasonable limitation on the freedom of speech and expression. The Supreme court held that criminal defamation pursuant to Section 499 and 500 did not infringe Article 19(1)(a) as it is a reasonable restriction under Article 19(2). The term ‘defamation’ in Art. 19(2) covers both civil and criminal defamation. Sections 499 and 500 IPC were considered non-discriminatory and non-arbitrary and did not violate the right to equality guaranteed under Art. 14 of the Constitution. While a person has a right to criticize and disagree in a democracy, his right under Art.19(1)(a) is not absolute and he cannot defame another person because this would violate the victim reputation which is an integral part of Art. 21 of the Constitution.
In Shreya Singhal v. Union of India, the petitioners challenged the validity of Section 66A of the Information Technology Act (ITA) claiming that the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution was not a reasonable restriction. They argued that the challenged provision was unconstitutional in that it offered protection against annoyance, discomfort, threat, injury, or criminal coercion which is not covered in Article 19(2). The court found section 66A of (ITA) to be vague and invalidated it on the ground of Defamation as an Offence being violate of the right to freedom of speech and expression.
Similarly, any such act occurring place on the cyber space leads to cyber defamation. It occurs when an internet computer connected is used as a tool, or a medium for defaming a person or an entity. For example: making of a defamatory comment against a person on a social networking site such as Facebook, Twitter, etc., or sending of emails that contain defamatory material about a person intending to defame him / her. Moreover, despite the wide coverage of internet and the pace at which information is disseminated on this platform, it is difficult to assess the extent of damage in any monetary value.
Although, the medium used to of commit this act is different in the physical and digital world, the law of defamation applies the same. The liability in India regarding cyber defamation can be:
- On the author of the defamatory material online;
- On the service providers or an intermediaries. However, it is relevant to note that as per Section 79 of the Information Technology Act, 2000, an intermediary shall not be liable unless it initiates or modifies such defamatory content but merely acts as a facilitator. Furthermore, is also subject to the condition that the intermediary complies with the requirement of due diligence and Intermediate guidelines issued by the Central Government and also remove such unlawful content upon notification by the appropriate government or its agency or upon receiving of such actual knowledge.
Defamation as an Offence
There are some basic requirements for a successful defamation suit: First, it involves the existence of defamatory material. Defamatory content is characterised as one calculated to harm another’s reputation by exposing him to hatred, contempt or ridicule. The test for such content, however, is the ordinary man test where meaning of the content is assumed to be what a common, ordinary man understands it to be. Second, the complaint must be listed in the defamatory statement. The material must be specifically directed to a particular person or a very small group for it to be defamation. General statements such as “All lawyers are criminals or all politicians are corrupt” are too wide a description and thus no single lawyer or politician should find it attributed to them personally. Such statements therefore aren’t defamation. Thirdly, the defamatory statement must be published either orally or written form. There can no defamation unless the content is published – made available to someone other than the claimant. In a civil suit, a defamation suit subsists until any of these requirements have been met, and the defendant must plead a privilege or take up a defense. The defamation suit is effective if the defendant fails to do so satisfactorily. Intention to defame is an important element under a criminal suit. In the absence of intention, it becomes essential to know that the publication is likely to defame or is defamatory. In criminal cases all of this is further subject to the normal standard of proof: beyond reasonable doubt.
Author: Kunal Gupta,
Jagran lakecity University