What is Defamation?

defamation

The meaning of defamation is well known to legal professionals but to an ordinary or common person  defamation is something new even though it is something that they face in everyday in their day-to-day life either by knowing that this statement provided by another person about them or someone else is defamatory in nature or by not .The development of science and technology have turned out the meaning of the term defamation to include the digital nature of defamation. Further defamation has been divided into two varieties – slander and libel, where Slander is spoken form of defamation and libel is printed or broadcast form of defamation. ‘Defamation’, in simple term means to harm the good reputation of the other person.[i] It can be in form of abusing someone, publishing defamatory material against a person, malicious gossiping etc. Defamation in simple term refers to a false statement referring to another person without lawful justification is a wrong of ‘defamation’. In simple term defamation can be termed as causing injury to reputation or status of another person. If any person caused an injury to the reputation of another person then the aggrieved party can take action against the wrong-doer both under civil and criminal law. Both criminal and civil offences are different from each other in terms of punishments. The Standard of Proof is also different in both the cases. Publication is an important part of Defamation. When the communication containing the imputation is send by an Accused to the Complainant by post in a registered cover address to the complainant  himself there is no publication and the offence of  Defamation is not committed. Unless there is a matter of publication to the third party there can be no offence of Defamation. The word ‘publish’ in section 499 does not contemplate those communications which one is bound  to make to others in normal course of his/her legal duties.

History of Defamation in India[ii]

Defamation laws in India were conceived by First lord Macaulay in 1837 within the first draft of the Indian Penal code and subsequently codified in 1860. The offence of defamation was along the identical lines of the prevailing English law. The intention behind criminalizing the act of defamation in British India was certainly linked with protecting the interests of country Raj, the safety of the state, and public order. Consequently, Section 499 of the Indian legal code, 1860 (“IPC“), was enacted and has remained unaltered for the last 158 years.[iii] In July 1988, Rajiv Gandhi’s administration, injured by allegations of the Bofors  affair, introduced a defamation bill, which sought to make new offences of “criminal imputation” and “scurrilous writings” . The bill also widened the definition of the term ‘Defamation’ and shifted the burden of proof from the aggrieved person to the accused person . The Lok Sabha had passed the bill and therefore the bill was to be introduced within the Rajya Sabha thereafter. A highly successful nationwide strike by the newspaper industry and increasingly strident popular protests forced the govt. to withdraw the bill.

Kinds of Defamation

According to English Law defamation is divided into two species

  • Libel– If defamation takes place in written format, it is termed as Libel.
  • Slander– If defamation happens through spoken words  or gestures , it is termed as Slander.

In England laws on Libel and Slander are differ from each other. Under Criminal Law only libel is recognised as an offence whereas slander is not an offence. Under the branch of TORT LAW slander is actionable . Only on the proof of special damage, libel is actionable per se, damages need not to be proved. 

Exceptions- There are certain slanders which are actionable per se under the four exceptions.They are-

  • Imputation of Criminal Offence.
  • Imputation of unchastety.
  • Imputation of disease.
  • Imputation of incompetence and dishonesty.

Indian Law of Libel and Slander- In England while libel is both crime and tort ,slander is only a civil wrong. However in case of India, both the slander and libel are considered as criminal offences. Under section 499 of INDIAN PENAL CODE, 1860 libel is actionable per se whereas slander is actionable on proof of special damage.

Essentials of Defamation

  • There must be defamatory statement.
  • There must be publication of defamatory statement.
  • The defamatory statement must refer to plaintiff.
  • In case of slander, there must be proof of special damage.

Defamation per se

In some circumstances an announcement  or any statement will always be considered defamatory and can be assumed to harm a person’s reputation without the requirement to supply proof of harm. These forms of statements are named as being defamation “per se.”  Any Statements that qualify as being defamation intrinsically typically involve falsely statements regarding: a criminal offense, a loathsome disease, someone’s business or professional occupation or trade, or sexual infedelity/misconduct.

Criminal Law

Section 499 of  INDIAN PENAL CODE, 1860 deals with DEFAMATION–

[iv]Whoever by words either spoken or intended to be read or by signs or by any 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 persons, is said , except in the cases hereinafter expected, to defame that person.

There are ten exceptions and four explanation of defamation. They are-

Exceptions

First exception: The statement made or published for the general public good.

Second exception: Opinion expressed in honest manner respecting the conduct of a employee within the discharge of his public functions or respecting his character close to far as his character appears in this conduct.

Third exception: Opinion expressed in honest manner respecting the conduct of someone touching any public question, and respecting his character, to date as his character appears in this conduct, and no further.

Fourth exception: Publication of a substantially true report of the proceedings of a court of justice or of the results of any such proceedings. [Such publication may, however, constitute another offence under a statutory provision regulating the reporting of judicial proceedings].

Fifth exception: Opinion expressed in honest manner respecting the merits of any case decided by a court of justice or respecting the conduct of someone as a celebration, witness or agent in any such case or respecting the character of such person, to date as his character appears in this conduct, and no further.

Sixth exception: Opinion expressed in honest manner respecting the merits of any performance which the author has submitted to the judgment of the general public or respecting the character of the author, to date as his character appears in such performance .

Seventh exception: Censure passed in honest manner on the conduct o f someone by someone having authority over him (conferred by law or arising out o f a lawful contract) where the conduct is in matters to which such lawful authority relates.

Eighth exception: Accusation preferred in honest manner against someone to at least one who has lawful authority over that person with regard to the topic matter of the accusation.

Ninth exception: Imputation on the character of another made in honest manner for the protection of the interests of the person making it,  or of the other person, or for the general public good.

Tenth exception: Caution conveyed in honest manner to at least one person against another and intended for the great of the person to whom it’s conveyed.

Explanations

Explanation 1.—[v]It may amount to defamation to impute anything to a departed, if the imputation would harm the reputation of that person if living, and is supposed to be hurtful of the emotions towards his/her family or near relatives.
Explanation 2.—[vi] It may amount to defamation to form an imputation concerning a company or an association or collection of persons in and of itself.
Explanation 3.—An imputation within the kind of another or expressed ironically, may amount to defamation.
Explanation 4.—[vii]No imputation is speculated to harm a person’s reputation, unless that imputation directly or indirectly lowers the moral or intellectual character of that person or which lowers the character of that person in respect of his caste or the credit of that person which causes it to be believed that the body of that person is during a loathsome state, or during a state generally considered as disgraceful.

Case Law

Subramanian Swamy vs. Union of India; Ministry of Law & ors.

In this case it was held that SEC 499 of INDIAN PENAL CODE,1860  is valid and constitutional. Hence no more amendments will be done in this section. The issue that arose before Hon’ble Supreme Court  is does it violates the RIGHT TO FREEDOM OF SPEECH AND EXPRESSION. Later on Hon’ble Supreme court held that it does not violate Article 19(1)(a) of the INDIAN CONSTITUTION because FREEDOM OF SPEECH AND EXPRESSION is not an absolute right and has reasonable restrictions in it. Therefore is important  to maintain balance betweenFreedom of speech and expression and Right of Reputation.

“The views of the authors are personal

Reference

[i]http://www.lawjournals.org/archives/2017/vol3/issue2/3-2-26

[ii]https://www.obhanandassociates.com/blog/tag/law-of-defamation-in-india/

[iii]https://www.obhanandassociates.com/blog/criminal-defamation-a-reasonable-restriction-on-freedom-of-speech/

[iv]https://www.advocatekhoj.com/library/bareacts/indianpenalcode/499.php?Title=Indian%20Penal%20Code,%201860

[v]https://indiankanoon.org/doc/1041742/

[vi]https://books.google.de/books?id=IPASAAAAYAAJ

[vii]https://www.burgielaw.com/resources/act?act_title=Penal+Code

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I Myself, Upasana Borah, a student of NEF LAW COLLEGE, ASSAM, GUWAHATI currently pursuing BBA LL.B(Hons), 8th semester( 4th year) 2016-2021 batch. As being a law student, I strongly believe that every question arises out of a solution . For a successful outcome it is necessary to view the particular work from all side and analyse it. The depth of its root has its solution. I also believe in gaining knowledge & willing to gain more knowledge to develop my skills where i can perform efficiently.