Defamation law and Judicial Intervention

By | May 23, 2018

ABSTRACT

Politicians or celebrities are understood to take some risk in being in the public eye and many of them profit by their public persona. Defamation is the communication of a false statement that harms the reputation of an individual.  In a democracy, free speech and expression are considered to be a fundamental right which is not absolute but subject to certain reasonable restrictions; defamation being one of them. The law of defamation protects a person’s reputation and good name against communications that are false and derogatory. This paper explores the term defamation in detail.

INTRODUCTION

Reputation and honor are very precious to men than bodily safety and freedom. It may be dearer than life itself. So it is needful for the peace and well-being of a civilized commonwealth that the law should protect the reputation as well as the person of the citizen. In our law defamation is subjected to criminal proceedings, as endangering public order, or being offensive to public decency or morality.

DEFINITION

A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society. Black’s Law dictionary defines defamation as The taking from one’s reputation. The offense of injuring a person’s character, fame, or reputation by false and malicious statements. The term seems to be comprehensive of both libel and slander.[1]

Defamatory statement in permanent form is libel. Libel is a written defamation. ‘libel’ includes written statement, typed or lithographed material, raised letters, pictures, photograph, cinema film[2], caricature, statue, effigy, wax model[3] etc. It is an offence as well as wrong.[4]

Defamatory statement in transitory form is slander. It may be exemplified by verbal speech, nod, wink, shake of head, smile, hissing and finger language of the deaf and the dumb etc.

Libel is actionable per se whereas damage must be proved for slander, except in four instances: Where there is an allegation that the claimant has committed an imprisonable offence;Where there is an imputation that the claimant is suffering from a contagious disease, such as venereal disease, leprosy, plague and, arguably, HIV/AIDS; Where there is an imputation that a woman has committed adultery or otherwise behaved in an ‘unchaste’ fashion  or Where there is an imputation that the claimant is unfit to carry on his trade, profession or calling.

Libel may be prosecuted as a crime as well as a tort, whereas slander is only a tort.

ESSENTIAL OF DEFAMATION

A person is liable for the defamation of another if the plaintiff is able to prove the following:

  • that a statement was made about the plaintiff’s reputation, honesty or integrity that is not true;
  • there was a publication to a third party (i.e., another person hears or reads the statement); and
  • the plaintiff suffers damage as a result of the statement.

The statement must be defamatory and must tend to lower the claimant in the estimation of right-thinking members of society generally, and in particular cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem. mere general abuse spoken no action lies.[5] spoken words which are prima facie defamatory are not actionable if it is clear that they were uttered merely as general vituperation and were so understood by those who heard them.[6] Sometimes a statement may not be defamatory on the face of it but contain an innuendo, which has a defamatory meaning and this statement may be actionable.[7]

the statement must refer to the claimant either directly or indirectly.

The statement must be published, ie communicated, to a person other than the claimant.[8]

Consent of the claimant to the publication of a statement, by showing other people defamatory material which the defendant meant for the claimant only, will create a situation in which technically there has been no publication.[9]

DEFENCES

Truth

If the statement is true is a complete defence.[10] But it must be true as a whole as well as in parts. The burden of proof is on the defendant to prove that the statement made is true, rather than on the claimant to prove that it was false.

Fair comment on a matter of public interest

The defence of fair comment is designed to protect statements of opinion on matters of public concern.[11] The defence only applies to comments made on matters of public interest. Where there are imputations partly based on fact and partly expressions of opinion, the defence of fair comment will not fail merely because the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.

Privilege

absolute

In certain cases  law regards freedom of speech as essential, and provides a defence of absolute privilege which can never be defeated, no matter how false or malicious the statements may be. They are ‘absolutely privileged’ and protected from defamation proceedings.

Example of such privileges are,

  • Statements made in either House of Parliament.
  • Parliamentary papers of an official nature, ie, papers, reports and proceedings which Parliament orders to be published
  • Statements made in the course of judicial proceedings or quasi-judicial proceedings
  • Communications between lawyers and their clients
  • Statements made by officers of state to one another in the course of their official duty[12]

Qualified

Qualified privilege operates only to protect statements which are made without malice ie, spitefully, or with ill-will or recklessness as to whether it was true or false

Examples of such privileges that are protected are:

Statements made in pursuance of a legal, moral or social duty

Statements made in protection of an interest either public or private interest.

DEFAMATION UNDER INDIAN LAW

chapter XXI sections 499-502 of Indian Penal Code protects an individual’s / person’s reputation. Defamation against the state is contained in section 124A [Sedition], Section 153 of the Code provides for defamation of a class i.e., community, while section 295A deals with hate speech with regards to outraging religious sentiments.

Article 19(1) (a) of the Constitution guarantees to citizens right to freedom of speech and expression. However, Article 19(2) limits this right in allowing the state the power to impose by law reasonable restrictions in the interests, among other things, of the sovereignty and integrity of India, the security of the state, public order, decency or morality, defamation, or incitement to an offence.

Shreya Singhal v. Union of India[13] is a landmark judgment in the field of freedom of speech and expression. This epic case brings forth various dimensions which are important facets of article 19(a). Section 66A of Information Technology Act which was widely criticised for its overbreadth, vagueness and its chilling effect on speech was struck down by the apex court as it was unconstitutional.

Defamation can be both i.e. a civil wrong and a criminal offence as well. Section 499 and Section 500 of the Indian Penal Code makes it a criminal offence (bailable and non-cognizable) whereas it can also be treated as a civil wrong under the Law of Torts which is actually not based on any statutory law.

If civil defamation is proved, the person has to pay a compensation for the damage done to his reputation or an apology on defamed person’s terms; or sometimes both. If a criminal defamation case is proved then whoever defames another person shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

EXCEPTIONS OF DEFAMATION IN INDIAN LAW

  1. Public Good — Imputation of truth which public good requires to be made or published. It is not defamation to impute anything which is true concerning any person, if it is for the public good that the imputation should be made or published. Whether it is or not for the public good is a question of fact.
  2. Public conduct of public servants — It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
  3. Conduct of any person touching any public question — It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.
  4. Publication of reports of proceedings of Courts — It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings
  5. Merits of case decided in Court or conduct of witnesses and others concerned — It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
  6. Merits of public performance — It is not defa¬mation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further. Explanation — A performance may be substituted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.
  7. Censure passed in good faith by person having lawful authority over another — It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
  8. Eighth — Accusation preferred in good faith to autho¬rised person — It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.
  9. Ninth — Imputation made in good faith by person for protection of his or other’s interests — It is not defamation to make an imputation on the character of another; provided that the imputation be made in good faith for the protection of the inter¬ests of the person making it, or of any other person, or for the public good.
  10. Tenth — Caution intended for good of person to whom conveyed or for public good — It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.

CONCLUSION

The law of defamation aims to protect individual reputation. Its major problem is how to reconcile this purpose with the competing demands of free speech. Since both these interests are highly valued in our society, the former as the most dearly prized attribute of civilized human beings while the latter the very foundation of a democratic society.[14] In a progressive economy like India, is resorting to penal provisions justified especially in an era, where reformative justice is replacing retributive justice.

The discussion brings us to the point that in cases of constitutional interpretation, the stakes become higher and it cannot be ignored that the judiciary tries its best to give a harmonious construction in such matters.

– Samriddhi Pandey

Gujarat National Law University


Citations

[1] Moore v. Francis, 121 N. Y. 199, 23 N.

[2] Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581

[3] Monson v Tussaud’s Ltd [1894] 1 QB 671

[4] Case of scandalum magnatum in 30 Ass. 177,pl. 19.

[5] Thorley v Kerry (1812) 4 Taunt 355 at 365

[6] Donoghue v Hayes (1831) Hayes R 265

[7] Lewis v Daily Telegraph [1964] AC 234

[8] Salmond and Heuston on the Law of Torts, 1996, p154

[9] Chapman v Lord Ellesmere [1932] 2 KB 431

[10] Reynolds v. Times Newspapers (1999) 4 All ER 6.

[11] Merivale v Carson (1887) 20 QBD 275

[12] Chatterton v Secretary of State for India [1895] 2 QB 189

[13] Shreya Singhal v. Union of India AIR 2015 SC 1523

[14] Krishnadas Rajagopal, “Supreme Court upholds validity of criminal defamation law” The Hindu, May 14, 2016.


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