Defamation Laws and Chilling Effect on Freedom of Speech and Expression

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This article has been written by Nimisha Mishra, a second-year student of NALSAR University of Law. In this article, the author has done the comparative study among the USA, UK and India regarding the defamation law and chilling effect.

INTRODUCTION

Other than life, the thing that man most cares about is his reputation. Men’s reputation is what defines his social position in the society. 

In recent times defamation issues are in limelight because of the active media. Media has freedom of speech and expression under Article 19(1)(a) which empowers it to publish and generate information freely.  The data broadcasted by the media must be factually correct in order to enjoy their right to freedom of speech and expression. 

Defamation

“Defamation is an offence of injuring a person’s character, reputation or fame by false or malicious statement in front of the third person”. Here injury must result in loss of reputation and mere injury to feelings is not an injury. Truth is a defence of defamation. A right-thinking member of the society may avoid him because of the defamatory statement he heard about him.

The aim of defamation law is to protect an individual’s character or feelings from unwarranted or malign attack or statement. Defamation is an internationally recognized ground to restrict freedom of speech and expression. Till the time statement is factually correct it will not be considered as defamation however harsh it may be. 

Origin of Chilling Effect

Origin of the chilling effect is dated back from the age of Stalin. In the initial days, any kind of dissent opinion of the ruling government was strictly condemned and hence the chilling effect was heavily propagated. 

The chilling effect is a legal action taken by the court or the legislature. In this effect, the court discourages the party from exercising his lawful right, say freedom of speech and expression, by threatening legal sanctions. These legal sanctions are generally of such nature which discourages or threatens people from exercising their legitimate right. 

Consequences of Chilling Effect

The chilling effect is a negative deterrence to prohibit from exercising the right to freedom of speech and expression. It is not censoring of free speech by the government, it generally has an impact of self-censorship. People are deterrent of the repercussion that the statement they are publishing may be factually incorrect. To be on the safer side, citizens generally refrain from any kind of engagement from the legal discourse. 

The chilling effect varies from the jurisdiction of different nationalities depending upon the resource and knowledge available. This is done in order to suppress the right of an individual when they are unreasonably exercising their lawful rights. Almost every country has a defamation law, it may be with different names such as slander, lese majeste, libel, insult, calumny and so on. The defamation law in the United States of America, United Kingdom and India vary significantly in some aspects. The challenge of the chilling effect is to provide evidence to prove negative consequences of the particular published content.    

Comparative Study among UK, India and US

United State of America

In the United States (US), defamation law is much less plaintiff-friendly as compared to its European counterpart due to the enforcement of the First Amendment. The concept of the ‘chilling effect’ was developed in First Amendment cases in the US, but has spread to other jurisdictions to describe an illegitimate threat to freedom of expression in defamation cases. 

Chilling effect is in direct violation of the First Amendment of the US constitution and hence rules are being made to discourage the enforcement of this effect. In America, protection from defamation is protected by Libel Law. With the passing decades, the chilling effect in the US is discouraged in order to promote the free flow of public discussion which is in the public interest. 

People in the USA are of the belief that limits on the liability of defamation will make the free flow of information possible. The constitution law of defamation in the USA is hanging between the interest in protecting the victims of defamation and interest in promoting the free flow of ideas and information. 

India

In India, defamation law is punishable under Section 499 of the Indian Penal Code. This law has been further extended to electronic items because of the growing social media; there are larger chances of defaming the public in social media platforms, where there is greater coverage to reach masses. 

Cyber defamation is recently being acknowledged by society. This cyber defamation occurs when an electronic device like a computer or mobile phone connected to the computer is used as a medium or a tool to defame a person. This is a more serious crime because of its mass coverage; there is a high probability that information could reach a large number of people in a very short span of time.

Surprisingly in India, the chilling effect has no foothold. The main reason behind that is the reasoning that the chilling effect may have negative consequences in the way that it can discourage people from entering into a healthy debate. Therefore in India, it is considered more reasonable to consider defamation under civil suits and claim heavy damages for the injury caused to reputation, rather than charging under criminal provisions and thwarting free speech.  

United Kingdom

In the United Kingdom, criminalization of libel is abolished as it was considered as anachronistic. There are reforms being made to abolish the chilling effect since most of the times it results in censorship and restriction in free speech. It is also important to abolish this effect since this process consumes a lot of money of the claimant. This disadvantage provides an edge to the rich party which results in injustice.     

The United Kingdom has decriminalized the defamation law and also set an example to the countries, where defamation is still criminalized, that criminalization of defamation is no longer necessary in the modern world. In many countries where dictatorship is in practice, the ruling party uses force and suppresses the voice of those who try to speak against them. 

The concept of absolute is very prevalent in common law countries. The absolute privilege limits the scope of common law defamation. The concept of absolute privilege applies to any courtroom statement relevant to the subject matter of the proceeding. 

Remedy to Strengthen Defamatory Laws 

Defamation is a serious issue and with the rising acknowledgement of people regarding the reputation, need to be taken into consideration. Some of the measures that could be taken to strengthen the defamation law include protection of published data in academic journals. There should also be the protection of those published reports and materials which is believed to be of public interest. 

The old laws on libel had been criticised for being outdated, costly and unfair – the new law seeks to ensure effective protection for freedom of expression and encourages open and honest public debate, whilst still protecting those whose reputation has been unjustly attacked.

Conclusion 

Greater clarity in research, policymaking and law might be achieved through specificity about what is known as the chilling effect is asserted and ideally, evidence of its existence. If this is properly implemented it will help in the formulation of better laws and legal processes relating to human rights and communication. 

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