The Law of Defamation: Kinds, Essentials and Defences

The Law of Defamation: Kinds, Essentials and Defences | Overview

• Definition
• Kinds of Defamation
• Essentials of Defamation
• Defamation as a tort and a criminal offence
• Defences
• Cyber Defamation
• Conclusion

The law of defamation in India is a relic of the British Raj. Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally; or which tends to make them shun or avoid that person.

I. Definition

Defamation may be broadly defined as a false statement of which the tendency is to disparage the good name or reputation of another person.[1] “A defamatory statement is a statement which tends to lower a person in the estimation of right-thinking members of the society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling trade or business.”[2]

Reputation is “not only salt of life but the purest treasure and the most precious perfume of life.”[3]

Personal rights of a human being include the right of reputation.[4] The right to reputation is also a “necessary element” of Article 21 of the Constitution of India. This right is also recognized by several international covenants and treaties. The Universal Declaration on Human Rights, 1948 has provisions for both, the right to free speech and right to reputation.

The International Covenant on Civil and Political Rights (ICCPR) contains similar provisions under Article 19. Similarly, Articles 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) provide the right to respect for private and family life and freedom of expression respectively. The right to the enjoyment of a good reputation is a valuable privilege of ancient origin and necessary to human society.[5]

The right to freedom of speech and expression under Article 19(1) is not absolute. It is subject to reasonable restrictions under Article 19(2) of the Constitution. One of the reasonable restrictions under Article 19(2) is defamation. The constitutionality of Section 499 and 500 was challenged for being an unreasonable restriction on the freedom of speech and expression in the case of Subramanian Swamy v. Union of India[6].

The challenge before the court was twofold – first, whether criminalising defamation is an excessive restriction on freedom of speech, and second, whether the criminal defamation law under Sections 499 and 500 is vaguely phrased and hence arbitrary.[7]The Apex Court upheld the validity of the law of defamation and decided it was not an excessive restriction. Additionally, it was also decided that the language used in Section 499 was not vague or ambiguous.

II. Kinds of Defamation

Essentially, there are two kinds of defamation: Libel and Slander. Libel refers to defamation made in some permanent form, i.e. in written, printed or similar manner. Slander refers to the form of defamation that is transient in nature, i.e. oral defamation.

English Law, in the first place, draws a clear distinction between slander or spoken words on the one hand, and libel or written words on the other hand.[8] Slander is a civil wrong, and “special damage” has to be proved in cases of slander. Libel is always actionable per se, but slander is actionable is only exceptional circumstances, which are:

1. Imputation of criminal offence to the plaintiff.
2. Imputation of a contagious (disease) or infectious disease to the plaintiff (which has the effect of preventing others from associating with the plaintiff).
3. Imputation that a person is incompetent, dishonest or unfit in regard to the office, profession, calling or trade or business carried by him.
4. Imputation of unchastity or adultery to any woman or girl is also actionable per se.

Under Indian law, there is no distinction between libel and slander. Both are treated as criminal offences under Section 499 of the Indian Penal Code. India offers the defamed a remedy both in civil law for damages and in criminal law for punishment.[9]

III. Essentials of Defamation

Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally; or which tends to make them shun or avoid that person.^[10] According to Carter-Ruck on Libel and Slander^[11], some of the tests to adjudge a defamatory statement are:-

1. a statement concerning any person which exposes him to hatred, ridicule, or contempt, or which causes him to be shunned or avoided, or which has a tendency to injure him in his office, professional or trade.
2. a false statement about a man to his discredit.
3. would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?”

Therefore, defamation must essentially fulfil the following requirements:

The statement must be defamatory

Defamation is a public communication which tends to injure the reputation of another. What statements are defamatory and the span of defenses varies from jurisdiction to jurisdiction but there is common agreement in all jurisdictions that statements that are unflattering, annoying, irksome, embarrassing or hurt one’s feelings are not actionable.^[12] The first essential of defamation is that the nature of the statement must be defamatory, i.e., it should lower or injure the reputation of the person in society.

The statement must refer to the plaintiff

It should be proved by the plaintiff that the statement was aimed at him. The m, intention of the defendant is immaterial. The question whether the defamatory words referred to the plaintiff is determined by an objectives test and the liability arises if the words are in fact defamatory of the plaintiff, whether or not there has been an intention to refer to the plaintiff or negligence in relation to the reference to the plaintiff.^[13]

The statement must be published

The most important essential of defamation is the publication of the defamatory content to a third party. Unless there is a publication of the statement, no action lies. In the case of Mahendra Ram v. Harnandan Prasad[14], the defendant had sent a letter in Urdu despite knowing the fact that the plaintiff could not read Urdu and the letter would have to be eventually read by someone else or a third party. The defendant was held liable for the offence of defamation.

IV. Defamation as a tort and a criminal offence

Under Indian law, both civil and criminal defamation is recognized. Defamation is a civil wrong or tort and the damages for the same can be availed under the law of torts.

The Indian Penal Code, 1860, under Section 499 defines criminal defamation. According to the Section, “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.” The offence under Section 499 is a bailable, non-cognizable and compoundable offence. The broad definition given under Section 499 is subject to four explanations and ten exceptions.

Explanation 1 to the Section provides for defamation of a dead person. According to this explanation, “it may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.”

Explanation 2 to Section 499 provides that “it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.” What Explanation 2 to S. 499, IPC speaks is an association or collection of people as such capable of being defamed. Such persons must be a definite and determinable body. Then only the imputations could be said to relate to its individual members or components. If only there is some definite body of persons capable of being identified, it could be said that the defamatory matter applies to all of them.[15]

Explanation 3 to the Section deals with defamation by innuendo. According to this explanation, “an imputation in the form of an alternative or expressed ironically, may amount to defamation.”

According to Explanation 4 to Section 499, “no imputation is said to harm a person’ reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.”

The punishment of the offence of criminal defamation is laid down under Section 500. A person charged with the offence of defamation is penalized with simple imprisonment which may extend for 2 years or fine or both. Section 199 of the Criminal Procedure Code, 1973 provides for prosecution for defamation.

V. Defences

Truth is the absolute defense to defamation. If the statement made is truthful in nature, it does not constitute defamation. The burden is on the defendant to prove the authenticity of the statement made. According to the Exception 1 given under Section 499, “It is not defamation to impute anything which is true concerning any person if it is for the public good that the imputation should be made or published.”

If a statement is made in the interest of public good, it is not defamatory in nature. The defendant has to prove that the statement was made keeping public interest in mind. The second exception to Section 499 deals with the fair criticism of public servants. The statement should be made in good faith and should criticize “the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.” The third exception deals with a fair comment on the conduct of “any person touching any public question”.

The fourth exception deals with publication of reports on proceedings of Court of Justice. Such publication of reports would not be defamation if they are substantially true in nature. According to the fifth exception, “it is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice.”

The sixth exception deals with literary criticism while the seventh deals with censure passed in good faith by a person having lawful authority over another. The eight exception deals with a complaint to the authority. According to the eighth exception, “it is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.”

According to the ninth exception, imputation made in “good faith by a person for the protection of his or other’ interests” is not considered defamation. The tenth exception deals with cautionary statements made in good faith. If the statement made is “intended for good of person to whom conveyed or for the public good”, it is not defamation.

VI. Cyber Defamation

With the invention of the internet, people have been provided with a new medium to interact. The use of internet has also led to the commission of crimes on the internet. Cyber Defamation is a crime that involves publishing defamatory content against another person with the use of computer or internet.

The damage caused to the victim of such defamation is irreparable as the information is widespread and easily accessible by internet users. Depending on the type of content published, internet defamation can not only injure the individual’s reputation but also put the welfare of the community at stake. Over the years, the medium to defame on the internet have increased substantially. The offence can be committed using social media platforms, mailing lists, emails etc., and can be in the form of audio, video, graphics or text.

The Delhi High Court in the case of Dharambir v. Central Bureau of Investigation[16] observed that “Given the wide definition of the words ‘document’ and ‘evidence’ in the amended Section 3 the EA, read with Sections 2(o) and (t) IT Act, there can be no doubt that an electronic record is a document.”

Under Indian law, a number of statutory provisions deal with the offence of cyber defamation. Some the Acts and rules that deal with cyber defamation are The Indian Penal Code, 1960, The Information Technology Act, 2000, The Code of Criminal Procedure, 1973 and The Indian Evidence Act, 1872.

The principal provision dealing with the offence of online defamation is Section 499 of The Indian Penal Code, 1860. The punishment for the same is given under Section 500

Cyber defamation was made a criminal and cognizable offence under Section 66A of the Information Technology Act, 2000. The widely worded section dealt with “punishment for sending offensive messages through communication service, etc.” According to Section 66A, “Any person who sends, by means of a computer resource or a communication device,

• any information that is grossly offensive or has menacing character; or
• any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device;
• any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,

shall be punishable with imprisonment for a term which may extend to three years and with fine.”

Section 66A was read by the Hon’ble Supreme Court in the landmark judgment of Shreya Singhal v. Union of India[17], wherein it was observed by the Apex Court that “for something to be defamatory, injury to reputation is a basic ingredient.” It was held that “Section 66A does not concern itself with injury to reputation. Something may be grossly offensive and may annoy or be inconvenient to somebody without at all affecting his reputation.”[18]

The first case of cyber defamation in India was SMC Pneumatics India Pvt. Ltd. v. Jogesh Kwatra[19], wherein the defendant, Jogesh Kwatra, started sending defamatory emails to his employer and the subsidiaries of the company all over the world. The plaintiff sought a permanent injunction to restrain the defendant from posting defamatory content. The Hon’ble Delhi Court passed an ex-parte ad interim injunction order restraining the defendant from posting such remarks.

• Liability of ISPS & Intermediary in India

According to Section 79 of the Information Technology Act, 2000, ISPs are not liable for any third party information, data, or communication link made available or hosted by them so long as

1. their function is limited to only providing access to the communication system;
2. they do not- (a) initiate transmission; (b) select the receiver of the transmission, and (c) select or modify the information contained in the transmission
3. they exercise due diligence in their duties and adhere to any guidelines which may be prescribed.

However, ISPs can be held liable in the following cases:

1. if the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act
2. if the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act.

The Hon’ble Delhi High Court in its first case of Vyakti Vikas Kendra, India Public v. Jitender Bagga[20] held Google to be an “intermediary” within the definition of Section 2(1)(w) and Section 79 of the Information Technology Act, 2000. It was pointed out by the Court the Google was “under an obligation to remove unlawful content if it receives actual notice from the affected party of any illegal content being circulated/published through its service.”

According to the Court, Google was also “bound comply with Information Technology (Intermediaries Guidelines) Rules 2011. Rule 3(3) of the said Rules read with Rule 3(2) requires an intermediary to observe due diligence or publish any information that is grossly harmful, defamatory, libellous, disparaging or otherwise unlawful.” The court also heavily relied on the 36-hour takedown timeline given under Rule 3(4).

VII. Conclusion

The law of defamation in India is a relic of the British Raj. Firstly, it imposes unreasonable restrictions on free speech and expression and has emerged as a means to censor journalists, writers, social activists etc. Large corporations use SLAAPs (Strategic Lawsuits against Public Participation) to intimidate and censor the critics. SLAPPs are used to silence and harass critics by forcing them to spend money to defend these baseless suits.

SLAPP filers don’t go to court to seek justice. Rather, SLAPPS are intended to intimidate those who disagree with them or their activities by draining the target’s financial resources.[21] Recently, during the #MeToo movement, MJ Akbar had filed defamation against journalist Priya Ramani as his name cropped up on the social media.

Secondly, defamation law is open to misuse. Since speech that is published on the Internet or mass-printed and distributed can be read almost anywhere, the venue of criminal defamation proceedings can be chosen to inconvenience and exhaust a speaker into surrender.[22]

Thirdly, there is no defence to protect speech that is neither true nor of public interest. The law, therefore, fails to protect speech in the form of parody, caricatures, sarcastic remarks/innuendos etc. Cartoonist Aseem Trivedi was arrested for sedition for a cartoon castigating Indian politicians for corruption during the Anna Hazare’s anti-corruption movement in 2012.

In 2017, Tamil cartoonist G Bala was arrested after drawing a cartoon criticising government inaction in the face of loan sharks that had recently driven borrowers to suicide in Tamil Nadu. The district collector called the cartoon “derogatory, demeaning and malicious”.[23] In 2018, the Madras High Court in 2018 ruled in favour of Tamil cartoonist Karna, who was charged with criminal defamation for portraying Dravida Munnetra Kazhagam (DMK) chief M Karunanidhi in a not so favourable light.[24] Justice GR Swaminathan upheld the right to speech and expression of the cartoonist and held:

“The present cartoon is seen by a normal newspaper reader; s/he would just laugh. In fact, the very object of cartooning is to produce such an effect in the reader.

No doubt, the party workers have been lampooned. But, they would definitely not come down in the esteem of the general public on this account. If the moral of the story is borne in mind, the cartoon would be seen as complementing the party president for his sagacity.

No doubt, the law has to come to the rescue of a person who feels defamed. But then, the law envisages a reasonable person and not a touchy and hyper-sensitive individual like the respondent.”

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[1] Richard O’ Sullivan, QC and Roland Brown, The Law of Defamation, (16^th edition, Sweet & Maxwell Ltd, 1958).

[2] Halsbury’s Laws of England, (4th edition, ‎LexisNexis, 2006).

[3] Vishwanath Agrawal v. Saral Vishwanath Agrawal, (2012) 7 SCC 288.

[4] Umesh Kumar v. State of Andhra Pradesh, (2013) 10 SCC 591.

[5] Nilgiris Bar Association v. T.K. Mahalingam, (1998) 1 SCC 550.

[6] WP (C) 184/2014.

[7] Defamation as a Criminal Offence, Supreme Court Observer, (May 29, 2020), Available Here

[8] Hirabai Jehangir Mistry v. Dinshaw Edulji Karkaria, AIR 1927 Bom 22.

[9] Anish Dayal, Inside Law: How Defamation Works in India, The Wall Street Journal, (May 29, 2020), Available Here

[10]R.L. McEwen and P.S.C. Lewis, Gatley’s Libel and Slander, (6th edition, 1960).

[11] Manish’a Koirala v. Shashi Lal Nair, 2003 (2) Bom CR 136.

[12] Ram Jethmalani v. Subramanian Swamy, AIR 2006 Delhi 300.

[13] T.V., Ramasubha Iyer v. A.M.A Mohindeen, AIR 1972 Mad 398.

[14] AIR 1958 Pat 445.

[15] Vishwa Nath v. Shambhu Nath Pandeya, 1995 CriLJ 277.

[16] 148 (2008) DLT 289

[17] AIR 2015 SC 1523.

[18] Id.

[19]

[20] CS(OS) No.1340/2012

[21] WHAT IS A SLAPP?, Public Participation Project, (May 30, 2020), Available Here

[22] Bhairav Acharya, A Public Discussion on Criminal Defamation in India, The Centre for Internet and Society, (May 30, 2020), Available Here

[23] It’s time we have Right to Ridicule as basic freedom, The Times of India, (May 30, 2020), Available Here

[24] The Better India, (May 30, 2020), Available Here

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