What according to you a defamation is?
Generally, it is estimated that when someone makes any statement either orally or by written words which can harm your repute in the perception of others it falls under the ambit of defamation, but is it really a correct? The answer is a big ‘NO’.
What actually constitutes defamation:
When a false statement either written or spoken, is deliberately presented as a fact which in turn causes injury or damage to a person’s reputation or decreases his respect in the eyes of others. For example, “A accuses B in front of public by saying that he’s a murderer.” If this is untrue then it is defamation. The person whose character has been injured by the false statement can institute a defamation lawsuit.
Defamation laws in India:
Our Indian Constitution grants various freedoms to its citizens. Article 19(1)(a) gives us the freedom of speech and expression i.e. we can speak wherever and whatever we want. However, this freedom is up to some extent reasonably restricted under Article 19(2) and defamation is also a restriction upon this guaranteed freedom.
There are certain essential conditions that must be fulfilled to constitute a case of defamation;
- The statement must be published: Publication herein constitutes both oral and written forms, which makes the defamatory statement to get into the knowledge of someone other than the person being defamed. For example, if X accuses Y in private of something he has not done, and there is no one around to hear the accusation, it is not defamation.
- The statement must lower the reputation of the person: The said statement should be capable of damaging the reputation of the person in the eyes of others. It must be noted that the word ‘person’ can be an individual or a small group of persons, but not general group. For instance, In the case of Ashutosh Dubey V Netflix Inc. and Ors[i] the Delhi High Court held that a statement alleged to be defamatory which was referred to ‘lawyers’ in general cannot be titled as defamatory unless directed towards a specific individual or individuals that are a determinate body.
- Defamation must have caused before the “right-thinking” persons of society: “Right-thinking” means any person with average brainpower, in other words anyone with a sound mind living in the general society. It does not mean any exceptional class of persons.
Kinds of Defamation:
It is of two kinds and they are given below;
1. Libel: It is done through text or graphic and it is permanent in nature. In this the statement is made in writing. For example, any visible means including print (newspapers, magazines, pamphlets), pictures, signs and films.
2. Slander: It is referred to as temporary or non-permanent in nature. In this case the statement is made verbally.
Nature of this offence:
Defamation can be an offence both under Civil and Criminal law. One may book another for this kind of offence if he wants to merely claim damages, under civil law to be specific under the Law of Torts. Nevertheless, he also has the option of instituting a criminal case under section 499 of Indian Penal Code,1860 in which he can be punished according to section 500 with imprisonment upto two years, or with fine, or both.
In civil defamation a person who is defamed can go to the court seeking damages in the form of monetary compensation. There is no punishment in the form of sentence.
Libel and slander both are criminal offences under Section 499 and 500 of Indian Penal Code therefore, the aggrieved person can file a criminal case against the person who made such defamatory statement.
Section 499 of the Indian Penal Code, 1860 defines defamation and its exceptions too.
Persons who make defamatory statements are exempted from punishments if they fall under one of the ten exceptions provided in section 499.
- When any truth is stated for public good.
- When an opinion is made in good faith about the conduct of a public servant in the discharge of his public functions.
- When an opinion made in good faith respecting the conduct of any person which relates to a public question.
- When there is a publication of true report of the proceedings of the Court or the result of the proceedings.
- When an opinion is made in good faith about the merits of any civil or criminal case decided by a Court, or the conduct of any person.
- When an opinion is made about the merits of any performance which its author himself has submitted to the judgement of the general public, or about the author made in good faith.
- When censures are passed by persons neither having authority over another either conferred by a law or from a lawful contract in good faith.
- When any accusation is made to any person having lawful authority over the alleged person in good faith.
- When the statements are made about the character of a person in order to protect the interests of the person himself who is making it, or any other person, or for the public good.
- When any cautions are conveyed to one person against another intended for the good of the conveyed person, or any other, or for public good.
Landmark judgements in India:
Indian Courts have seen a wide range of defamation cases. Of which, the following are certain landmark cases;
M.K. Prabhakaran and Anr Vs T.E. Gangadharan and Anr[ii], the Kerela High Court has held that once a statement has been filed in a court of law, that statement can be taken as published and if such a statement amounts to per se defamatory, it is the duty of the accused to establish that the statement s falls under one or any of the exceptions to section 499 IPC.
Subramanian Swamy Vs Union of India[iii], the Hon’ble Supreme Court has upheld the constitutional validity of section 499 and section 500 of IPC and section 199 of CrPc.
D.P.Choudhary vs. Manjulatha[iv], In this case a publication was made in the local newspaper, that the plaintiff a 17 year old college girl eloped with a boy by making excuse of going to take lectures. This false news item had adverse effects on her and ruined her marriage. It was actionable per se and she was awarded damages of Rs.10,000/- by way of general damages.
Ram Jethmalani vs. Subramanian Swamy[v], the court held Dr. Swamy guilty for defaming Mr. Ram Jetmalani by saying that he received money from a banned organization to protect the then Chief Minister of Tamil Nadu from the case of assassination of Rajiv Gandhi.
Author: Sharmishtha Sahu, Shri Ramswaroop Memorial University.