Defamation is the act of injuring a person’s reputation by making false statements. The verbal communication of a statement in a public domain that harms the reputation and good will of an individual is known as slander. The publication of such statements in print or electronic media is known as libel. In India, a person has two legal recourses against defamation:-
- Civil remedies
- Criminal Remedies.
Defamation under Civil Law
Defamation is not defined under the Indian Civil law. However, a person who suffers irreparable harm to their reputation, through publication in the public domain can file a civil suit for injunction and claim monetary damages against the author of the defamatory quote or article. A civil suit would ensure that the defamatory content is removed from the public domain. However, the person defending the suit has the following defences available:-
- Truth: If the author of the statement can lead evidence to prove their assertion, such that the statement in question is the truth, then the civil suit shall fail. Irrespective of the intention of the defendant and the injury caused to the Plaintiff truth exonerates the defendant of all liability.
- Fair Comment: In matters of public interest, and in light of Freedom of Speech and Expression, as enshrined in Article 19 of the Constitution of India, a well reasoned balanced critique is a right in the democracy. Infact, this right is prevalent in various countries practising common law and the same finds mention in the Defamation Act of 2013, in the United Kingdom. However, while adjudication of the defence of fair comment a fine balance needs to be maintained between constructive criticism and comments that instigate people and lead to a personal attack on the person in concern. It often happens that people in the public domain are criticised for their policy decisions. A statement in the nature of a personal attack on such a person would not fall within the ambit of fair comment.
- Privilege: Certain comments are exempted from the public domain on the basis of privilege. When it comes to conversation between spouses it is deemed to be a private conversation and therefore privileged and confidential. The Constitution, through Article 105 grants privilege to all parliamentarians for comments and speeches made in the Parliament. Exchanges in Court during judicial proceedings are also exempted from defamation. Section 122 of the Indian Evidence Act prevents using the conversation between spouses in Court.
Defamation and Criminal Law
A person who believes that their reputation has suffered farm can choose to initiate criminal proceedings that would commence with the lodging of a FIR with their local police station. Section 499 of the Indian Penal Code codifies the offence defamation as follows:
“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.
Explanation 1.—
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.—
It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3.—
An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4.—
No imputation is said to harm a person’s 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.”
Section 500 of the IPC provides punishment for the offence of defamation as simple imprisonment upto 2 years along with fine. It is classified as a bailable non cognizable offence under Schedule 1 of the Code of Criminal Procedure.
Defences to the offences of defamation are mentioned in Section 499 itself in the form of Exceptions as follows:-
- Imputation of truth which public good requires to be made or published.
- Public conduct of public servants
- Conduct of any person touching any public question
- Publication of reports of proceedings of Courts.
- Merits of cse decided in Court or conduct of witnesses and others concerned.
- Merits of public performance
- Censure passed in good faith by person having lawful authority over another
- Accusation preferred in good faith to authorised person
- Imputation made in good faith by person for protection of his or other’s interests.
Constitutional Validity of Sections 499 and 500 IPC
The Hon’ble Apex Court has enumerated the scope of defamation and often had to balance between the right to know, freedom of speech and expression and protection of one’s reputation. Therefore, it has been held that the right to freedom of speech and expression is a sacrosanct right but not an absolute right. While upholding the validity of Section 499 and 500 of the IPC the Hon’ble Supreme Court made the following observations with respect to Article 19(2) of the Constitution in the matter of Subramanian Swamy vs. Union of India (UOI) and Ors.MANU/SC/0621/2016:-
“The other aspect that is being highlighted in the context of Article 19(2)(a) is that defamation even is conceived of to include a criminal offence, it must have the potentiality to “incite to cause an offence”. To elaborate, the submission is the words “incite to cause an offence” should be read to give attributes and characteristics of criminality to the word “defamation”. It must have the potentiality to lead to breach of peace and public order. It has been urged that the intention of Clause (2) of Article 19 is to include a public law remedy in respect of a grievance that has a collective impact but not as an actionable claim under the common law by an individual and, therefore, the word “defamation” has to be understood in that context, as the associate words are “incitement to an offence” would so warrant. Mr. Rao, learned senior counsel, astutely canvassed that unless the word “defamation” is understood in this manner applying the principle of noscitur a sociis, the cherished and natural right of freedom of speech and expression which has been recognized Under Article 19(1)(a) would be absolutely at peril. Mr. Narsimha, learned ASG would contend that the said Rule of construction would not be applicable to understand the meaning of the term “defamation”. Be it noted, while construing the provision of Article 19(2), it is the duty of the Court to keep in view the exalted spirit, essential aspects, the value and philosophy of the Constitution. There is no doubt that the principle of noscitur a sociis can be taken recourse to in order to understand and interpret the Constitution but while applying the principle, one has to keep in mind the contours and scope of applicability of the said principle. In State of Bombay v. Hospital Mazdoor Sabha MANU/SC/0200/1960 : AIR 1960 SC 610 : (1960) 2 SCR 866, it has been held that it must be borne in mind that noscitur a sociis is merely a Rule of construction and it cannot prevail in cases where it is clear that wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the said Rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful; but, where the object of the legislature in using wider words is clear and free of ambiguity, the Rule of construction in question cannot be pressed into service.”
Defamation and Cyber law
The callous usage of social media can make one liable for defamation. However intermediaries who exercise due diligence can safeguard themselves under section 79 of the Information Technology Act, 2000. Section 79 5reads as follows:-
- INTERMEDIARIES NOT TO BE LIABLE IN CERTAIN CASES
(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hasted by him.
(2) The provisions of sub-section (1) shall apply if—
(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hasted; or
(b) the intermediary does not—
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if—
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;
(b) 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 intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
Explanation.—For the purposes of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary.