As the definition of the word says, defamation is hurt to a person’s reputation caused by a false statement. A man’s reputation is recognized as his property, and anyone who causes property damage is liable under the law; similarly, anyone who harms a person’s reputation is equally liable under the law. According to Black’s Law Dictionary, defamation means the offence of injuring a person’s character, fame, or reputation by false and malicious statements. The term includes both libel and slander. Defamation is a statement published that negatively affects a person’s reputation and tends to reduce his reputation among generally right-thinking members of society or to cause people to avoid or shun him.[1]
In English law, there is a distinction between the forms under the categories of criminal defamation and civil defamation. Under criminal law, libel is an offence. Slander is not an offence under criminal law. Slander is a crime when supported by evidence, unlike libel, which is a crime under civil law but not under criminal law.
In Indian law, both slander and libel are recognized as criminal offences under Section 499 of IPC and no distinction is maintained between them[2]. In the law of torts, libel is actionable per se and slander is actionable. It implies that there must be evidence of defamation in a suit for slander.
In the case of D.P. Choudhary v Kumari Manjulata, defamatory news about Manjulata, a 17-year-old girl from a prominent family, eloping with a neighbour was published in the daily newspaper “Dainik Navjyoti”. As a result, her reputation was damaged and she experienced great humiliation because this information was recklessly and falsely reported. The Court held that the words published were defamatory and actionable per se and thus she was entitled to damages of Rs. 10000 [3].
ESSENTIAL CHARACTERISTICS OF DEFAMATION
- The argument made or published must be defamatory.
The statement made or published must be defamatory i.e. which tends to lower the plaintiff’s reputation. Whether or whether a comment is defamatory will rely on how the general public, who are right-thinking people, are likely to interpret it.
In Arun Jaitley v Arvind Kejriwal,[4] the court held the statement by Arvind Kejriwal and his 5 other leaders to be defamatory.
In Ram Jethmalani v Subramanian Swamy,[5]the court determined that Dr Swamy was responsible for defaming Mr Jethmalani by alleging that Mr Jethmalani had accepted money from a prohibited organisation to defend the then-chief minister of Tamil Nadu in the Rajiv Gandhi assassination case.
- It must refer to the plaintiff.
In a defamation lawsuit, the plaintiff must show that the comment in question referred to him; whether or not the defendant intended to defame the plaintiff is irrelevant. The defendant shall be held accountable if the person to whom the statement was published may reasonably infer that the statement was addressed to him.
In the case of T V Ramasubha Iyer v A.M.A Mohindeen,[6] The court found the defendants guilty of publishing a statement that was not intended to disparage them. According to the statement, a specific person transporting Agarbattis goods to Ceylon was detained for smuggling. The plaintiff was also one of the people carrying on a similar business, and due to this statement, his reputation was also severely damaged.
- The imputation must have been made with the intent to injure and with understanding or reason to believe it would harm the person’s credibility.
The essence of the offence of defamation is the harm caused to a person’s reputation. In Sunilakhya v H M Jadwet,[7] the Court stated that the intention to cause harm to the reputation of a person is the sine qua non of the offence of defamation.
In Wahid Ullah Ahrari v Emperor,[8] the appellant was responsible for publishing two articles in a paper called the “University Punch”, Aligarh which contained scandalous accusations against the girls of the Girls’ Intermediate College of Aligarh. For solace and enjoyment, it was claimed that the college’s female students frequented the broad Marris Road, green meadows, and canal banks. It was also claimed that the Meena Bazar Exhibition was held within the college’s grounds and that university students, professors, Muslim and non-Muslim members of the local gentry, as well as gay officers, visited the location after purchasing tickets to go shopping with the female students. The essence of the offence of defamation is the publication of imputation with the knowledge that it will harm the reputation of the person defamed, and as these articles do beyond question imply that the girls of the college are habitually guilty of the misbehaviour described in the articles, the inevitable effect on the reader must be to make him believe that it is habitual with the girls of college to behave in this way. Thus, the Appellate Court upheld the order of the Lower Court and held the appellant guilty of defamation.
- The statement must be made public, meaning it must be shared with at least one person other than the applicant.
The publication of defamatory statements to someone other than the individual who has been defamed is crucial in holding someone accountable. Without it, no defamation case will be possible. If a third party reads a letter intended for the plaintiff incorrectly, the defendant will likely be held accountable. However, there will be a legal publication if the defamatory letter written to the plaintiff is likely to be read by others.
In the case of Mahendra Ram v Harnandan Prasad,[9] the plaintiff filed a suit for the realization of Rs. 500/- as damages for defamation of the plaintiff by the defendant. The plaintiff’s case is that he is a respectable man and a man of substantial means and is held in esteem and regard by the public. He lived in a rented house belonging to the defendant who mainly resided in Sultanpur. The defendant sent a registered notice in Urdu from Sultanpur to the plaintiff at Siwan. The plaintiff was not conversant with Urdu and, therefore, got the notice read over by one Kurban Ali in the presence of several other persons. The notice contained defamatory and false allegations against him. The defamatory statement lowered the plaintiff’s estimation of the public and harmed his reputation. The plaintiff’s inability to read Urdu, which required that he have the letter read to him by someone else, was not enough to hold the defendant directly or constructively liable for publishing. Because it was unproven that the defendant intended to harm the plaintiff’s reputation and that he was aware that the plaintiff did not speak Urdu, the court determined that the defendant was not responsible for any damages.
When a passage appears to be innocent prima facie, the complaint can demonstrate that it disparages him by pointing to the context and nature of the publication. Innuendo is the justification given for why a statement is considered defamatory.[10]
Innuendo is a way to speak negative sentences in a very sarcastic or ironic way, which may appear to be positive but is not.
Illustration: X asks Z, “Do you know who stole B’s watch?
Z in return pointed at C and said, “well you know, who can”. This is innuendo as it was sarcastically said by Z while pointing at C. Under Section 499, defaming any person by innuendo is a form of criminal defamation.
Intention to defame is not necessary- Though the person about whom the statement is made thinks it is defamatory, even if the person making the statement thinks it is not, there has been defamation. The fact that the defendants were unaware of the circumstances giving rise to the accusations of defamation despite the statements’ innocence is irrelevant.
In Morrison v. Rithie & Co.,[11] in good faith, the defendants falsely reported that the plaintiff had given birth to twins. The plaintiff had only recently been married. The defendants were held liable even though they were unaware of this fact.
In another case,[12] the plaintiff filed a suit seeking a declaration that the resolution passed by the defendants with regard to the management of the affairs of a school was illegal. The statement also insulated that there was a doubtful relationship between ‘K’ and the plaintiff. According to the Karnataka High Court, the plaintiff’s moral character was attacked by the statements because they implied that she had engaged in dishonourable conduct by engaging in dubious relationships and activities with another person.
REMEDIES TO DEFAMATION
Every infringement of rights gives rise to a remedy. The Latin maxim ubi jus ibi remedium enunciates this. There are three defences available to defamation. These are as follows:
- Justification or Truth
Simply demonstrating the veracity of a claim is not a valid defence in criminal law, but it is so in civil law. In Alexander v. N.E. Rly,[13] the plaintiff had been found guilty of boarding a train out of Leeds without possessing a valid ticket. If he did not pay the fine, he was subject to a fine and a fourteen-day jail sentence. However, after the verdict, the defendant published a notice stating that the plaintiff had been found guilty and given a fine or three weeks in imprisonment in the event of default. The plaintiff claimed that the defendant had lied by falsely reporting the punishment given to him.
In Radheshyam Tiwari v. Eknath,[14] the plaintiff, a block development officer, was the subject of several articles written by the defendant, a newspaper publisher, editor, and printer, alleging that the plaintiff had used unethical and corrupt tactics in a range of cases, including issuing false certificates, taking bribes, and accepting bribes. The defendant was found responsible for defamation because he could not prove that the information he published was truthful.
- Fair Comment
The comment must be an opinion rather than an assertion of fact. The comment must be fair i.e., without malice. The matter commented upon must be of public interest. It is also essential that the facts commented upon must be either known to the audience addressed or the commentator should make it known along with his comment.
In R.K. Karnajia v. Thackersey,[15] the court held that if the defendant cannot establish the accuracy of a statement of facts published in a newspaper and makes significant accusations of dishonesty and corruption against the plaintiff, the defence of fair comment is predicated on those inaccurate facts, will also fail.
- Privilege
Privilege confers exceptional status. When the law accepts that the plaintiff’s right to free expression surpasses his or her right against defamation, a defamatory statement uttered on such an occasion is not actionable. There are two categories of privileges.
1. Absolute privilege: In some instances, the individual speaking is given immunity, and no defamation action can be brought against him. It has three components.
- Parliamentary proceedings: Article 105(2) of the Indian Constitution grants parliamentarians immunity from prosecution if they talk freely during the parliamentary business.
- Judicial proceedings: Judges are protected under the Judicial Officers Protection Act of 1850. It also applies to attorneys, witnesses, and defendants in a lawsuit.
In T.G. Nair v. Melepurath Sankunni,[16] Whether a petition to the Executive Magistrate for the purpose of initiating legal proceedings under section 107 of the Criminal Procedure Code and simultaneously sending a copy to the Sub-Inspector of Police for the purpose of taking executive action fell under the purview of the defence of absolute privilege arose. The plaintiff sued the defendant for defamation. The court held that the statements made by the defendant in the petition presented to the magistrate and in the copy thereof which he presented to the Sub-Inspector of Police are both privileged.
2. Qualified privilege: This privilege is also available, but it requires that the statement be made without malice, i.e., without a wrongful intention. It is further necessary that there must be an occasion for making the statement.
ANALYSIS OF ARTICLE 19: FREEDOM OF SPEECH AND EXPRESSION
Freedom of Speech and Expression is one of the most fundamental aspects of a democratic democracy because it allows citizens to participate fully and effectively in the country’s social and political activities. People can share their thoughts and political perspectives due to freedom of speech and expression. It eventually leads to societal and economic well-being.
In the State of West Bengal v Subodh Gopal Bose, the court determined that the State has a responsibility to protect itself against unlawful activities and, as a result, can enact laws to that end. Article 19(1)(a) establishes a limited privilege. There cannot be any liberty that is unrestricted in nature and unregulated in practice to confer an unrestricted right.[17]
In the case of S Rangarajan v Jagjivan Ram,[18] it was held that the Court should bear in mind that restriction should be founded on the principle of least invasiveness, i.e. the restriction should be imposed in a manner and that an individual has the right to a good reputation and should not be subjected to a defamatory circumstance.
Subramanian Swamy v Union of India[19]
Justice Dipak Mishra and Justice P.C. Pant of the Supreme Court upheld the constitutional validity of the country’s criminal defamation laws enshrined under Sections 499 and 500 of the Indian Penal Code, saying that they do not interfere with the right to free expression. Several leaders and media houses suggested that it would limit freedom of expression. There is enough evidence to believe that the ruling is a blatant violation of free expression. Article 19 (2) of the Indian Constitution set reasonable limits on freedom of expression to prevent defamation. However, whether the provision covers criminal and civil defamation is unclear.
R Rajagopal v. State of Tamil Nadu[20]
This case dealt with the constitutionality of civil defamation. The Supreme Court of India cited a historic US Supreme Court ruling in New York Times v. Sullivan [21]in this case, which stated that a government official on duty can only recover damages if the truth argument is false and there is a willful disregard for the truth. The court considered the relationship between free speech and civil defamation in this decision. In view of the court, Article 19(1) of the Constitution imposes an unfair restriction on common law defamation.
CONCLUSION
After evaluating all of the significant features of defamation, we observe that the essence of defamation is the injury to a person’s reputation, and he has a good argument against the defendants for this injury. Libel and slander are the two types of defamation. Under Indian law, both are considered criminal offences. Certain privilege exceptions to this rule can protect the defendant from criminal liability.
It signifies that the Indian Constitution has given citizens certain rights, which they should exercise in moderation so as not to infringe on the rights of others. Defamation provisions operate as a check on Article 19 of the Constitution to protect people’s reputations.
References
[1] Peel W.E. & Goudkamp J., Winfield & Jolowicz on Tort 360 (Sweet & Maxwell, 19th edn., 2014).
[2] Parvathi v. Mannar, (1884) ILR 8 Mad 175.
[3] AIR 1997 Raj 170.
[4] CS(OS) 236/2017.
[5] A.I.R. 2006 Delhi 300.
[6] A.I.R. 1972 Mad 398.
[7] A.I.R. 1968 Cal 266.
[8] A.I.R. 1935 All 743.
[9] A.I.R. 1958 Pat 445.
[10] PILLAI PSA & VIBHUTE K I, CRIMINAL LAW 1050 (LexisNexis, 14th ed. 2019).
[11] (1902) 4 F. 654.
[12] B.M. Thimmaiah v. T.M. Rukimini, A.I.R. 2013 Kar. 81.
[13] (1865) 6 B&S 340.
[14] A.I.R. 1985 Bom. 285.
[15] A.I.R. 1970 Bom. 424.
[16] A.I.R. 1971 Ker. 280.
[17] A.I.R. 1954 S.C. 92.
[18] (1989) S.C.C. 2 574.
[19] WRIT PETITION (CRIMINAL) NO. 184 OF 2014.
[20] A.I.R.1995 S.C. 264.
[21] 376 U.S. 254 (1964).
This article has been written by Nashrah Fatma, a third-year law student at the Faculty of Law, Jamia Millia Islamia.