Define defamation and discuss the exceptions which take the act of the purview of the offence of defamation

Question: Define defamation and discuss the exceptions which take the act of the purview of the offence of defamation. [R.J.S. 1974, UPCJ 2015, MPCJ 2013, UPCJ 2015]

Or

“The law of defamation under the Indian Penal Code has been retained because criminal law alone can effectively deal with such lawbreakers. As regards the freedom of speech and expression, it is sufficiently safeguarded by the several explanations and exceptions added to the definition of defamation in Code.” Explain. [U.P.C.J. 2000]

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Answer

Law provides safeguards for a person’s reputation similar to the protection it provides to his life and property. Indian Penal Code has provisions to punish offenders for committing defamation against the state under Section 124A and defamation of class contained in Section 153. Additionally, Chapter XXI of IPC deals with defamation of a person.

Section 499 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 expected, to defame that person.

To establish the offence of defamation following ingredients must be satisfied-

1. An imputation regarding a person must be made or published.
2. Such imputation could be through writing, words, signs or visible representations.
3. The intent behind such imputation must be to harm the reputation of the concerned about whom imputation is made or published.

There are four explanations appended to section 499 which are illustrated as below:

Explanation 1- Defamation of the dead

The imputation made or published regarding the deceased must be derogatory and must hurt the feelings of his near relatives. The essence of this explanation is the cause caused and not the intent of the harm with which it was done.

Explanation 2- Defamation of a company or a collection of persons

The imputation must attack the method in which the company is conducting its affairs or must accuse it of fraud, attack its financial position or accuse it of mismanagement.

Explanation 3- Defamation by innuendo

The Oxford dictionary defines an innuendo as “an allusive or oblique remark or hint, typically a suggestive or disparaging one”. If a person can show that even though a statement might not appear prima facie defamatory, however, due to the subsisting circumstances and nature of its publication is derogatory to his reputation then the offence of defamation = may be said to have taken place.

Explanation 4- What is harming the reputation

This explanation elaborates on the ways in which a person’s reputation may be harmed. It essentially says that derogatory statements must lower the intellectual character or the morals of a person concerned, either directly or indirectly.

There are ten exceptions to section 499 state the instances in which an imputation, prima facie defamatory, may be excused. They are occasions when a man is allowed to speak out or write matters, which would ordinarily be defamatory.

The ten exceptions to defamation are listed as follow:

Exception 1 – Truth for the public good

A publication with true contents and made with an intention of the public good, howsoever derogatory will not amount to defamation. Hence, even if the veracity of a statement is unquestionable, if it serves no public good then the same act will amount to defamation.

Exception 2 – Fair criticism of Public Servant

This exception protects opinions and not assertions. Every citizen has the legal right to make fair comments on the public men in the interest of the public. Nevertheless, such statements must not be made with malice and slander under the garb of exercising freedom of speech provided by Article 19 of the Indian Constitution. Men holding public positions are not immune from fair criticism.

Likewise, authors and publishers are not any different than any other person while making a comment, thereby are not warranted any special privileges or safeguards from Section 499, IPC.

Exception 3 – Fair comment on public conduct of public men other than a public servant

Further, a fair, honest and true criticism of servants of the public other than the official public servants will succeed to be a fair comment. The rights of freedom of speech enjoyed by the media person are the same as any ordinary person. In the case of Sahib Singh v. State of Uttar Pradesh, [1965 AIR 1451] the court has opined:

“The press has great power in impressing the minds of the people and it is essential that persons responsible for publishing anything in the newspaper should take good care before publishing anything which tends to harm the reputation of a person. Reckless comments are to be avoided. When one is proved to have made defamatory comments with an ulterior motive and without the least justification motivated by self-interests, he deserves a deterrence sentence.”

Exception 4 – Report of Proceedings of Court

As the judicial proceedings are a matter of public interest, accurate reports of it have been afforded with the exception of defamation. The report must aim at representing all the information and occurrences precisely how they took place to the reader of such a report.

It is not required that the report must be verbatim of the entire proceeding and in fact, it is not necessary for it to be complete. The nature of the proceeding and whether the court was competent for the hearing or not are all immaterial for the publication of such a report if it is fair and correct.

Exception 5 – Case Comments

Protection has been attributed to case comments of the adjudicated decisions of cases when they are executed bonafide.

Exception 6 – Literary Criticism

A fair and honest discussion is essential for history to transcend and science to advance. For that, the public must be afforded the opportunity to make free criticisms of public performances that are submitted to its judgement.

Exception 7 – Censure by one in authority

There are two essential elements corresponding to this exception:

1. The critic must the authority to censure the person concerned
2. Existence of good faith in the censure

This privilege cannot be justified if the publication is done in excess of the purpose behind the emergence of such contempt.

For example – a person might have just condemnation with regards to his subordinate, however, publishing censure related to the same in a newspaper destroys the privilege under this exception.

Exception 8 – Complaint to Authority

The framers of the IPC observed with regards to this exception that: “We allow a person to prefer an accusation against another, in good faith, to any person who has lawful authority to restrain or punish the accused.”

Hereunder are two conditions that must be satisfied to avail the privilege of this exception:

1. Accusation to be made to the person in authority
2. Existence of good faith

In the case of Kanwal Lal v. State of Punjab, 1963 AIR 1317, it was decided that Exception 8 was applicable only in cases where the defamatory statement was contained in a complaint to a person who had lawful authority over the person concerned in respect of the subject matter of the accusation. Prostitution was not an offence of which cognizance could be taken under the Punjab Gram Panchayat Act, 1952.

Exception 9 – Imputation for Protection of Interests

This exception encompasses the first exception affixed to Section 499 which was laid down for the public good. This exception says that due protection must be availed to the communications of parties acting in good faith, in course of business and social intercourse. The veracity of every word published by the defendant is not necessary.

Exception 10 – Caution in Good Faith

A person needs to establish that the imputations were as a result of ‘good faith’ and meant for ‘public good’. One is not required to prove beyond reasonable doubt and only proving a preponderance of probability discharges the onus from the accused.

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