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CONCEPT OF DEFAMATION (By- Neeru Thakur & Prof.(Dr.) Simranjeetkaur gill )
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CONCEPT OF
DEFAMATION
Authored By- Neeru Thakur
research scholar, CT University
, Ludhiana , Punjab
Prof.(Dr.) Simranjeetkaur gill
Principal, School of Law , CT
University , Ludhiana, Punjab
Abstract
In a democratic
set up, free
speech and expression
is considered to
be a fundamental
right which is
not absolute but
subject to certain reasonable
restrictions , defamation being
one of them . A
man cares most
their reputation . so, defamation
means the offence
of injuring a
person’s character or
reputation by false
and malicious statements . The legal
arena have brought
to the fore- the
defamation debate. This paper
explores the term
defamation , defenses
available to defendant
and legal provisions
under criminal laws.
Defamation has become
a burning issue
in the present
time.
Key Words: Defamation
, Defamation defenses , harm reputation
, legal provisions.
Introduction
Defamation
means attacking another’s
reputation by a
false publication or
communication to third
party tending to
bring the person
into disrepute. Defamation is
a creation of
English law and
existed several thousand
years ago. In
Roman law, abusive chants
were punishable. In
early English and German
law insults were punished
by cutting out
the tongue. French defamation
law, required conspicuous retraction
of libelous material
in newspaper and
allowed with truth
as a defense only
when publications concerned
public figures. Modern
German Defamation is
similar but generally
allows truth as
a defense. In Italy,
truth seldom excuses
defamation, which is criminally
punishable there. Injury only
to feeling is
not defamation, there
must be loss
of reputation. The
defamed person need
not be named
but must be
ascertainable.1
Importance Of
Study
1. The
main purpose of defamation
law is to eliminate
false statements .
2. Defamation is
considered to be a
civil wrong or
tort.
3. If
this false statements
lead to damage
to the reputation
of one about
whom it is
made , there shall be
legal consequences against
the person making
such false statements.2
4. The
law of defamation
protects individuals and
certain corporation’s reputation.
Defamation: Meaning &
Definitions
Reputation
is an inherent
personal right enforceable
against all other persons
and every person
has a right to
maintain and preserve
his reputation. Any injury
to or violation
of this right
is called defamation.
Defamation involves making
false statements about
an individual with
the objective of
creating a bad
image in the society of
that person.
According
to Winfield, “ defamation
is publication of
a statement which
tends to lower
a person in
the estimate of
right thinking members
of the society
generally or which
makes them shown
or avoid that
person.” 3
According
to Black’s Law
Dictionary, “ defamation means
the offence of
injuring a person’s
character , fame , or
reputation by false
and malicious statements.”4
Classification Of
Defamation
Defamation
is traditionally classified
into:
1. LIBAL
(Written)
2. SLANDER (Oral)
Libel : The
word Libel comes
from Latin word “ libellus.” It
is a representation made
in some permanent
form e.g. writing , printing , pictures or
effigies etc.
Slander : The
word Slander comes
from French word “ esclandre” means
scandalous statement . Esclandre
, in turn , is
derived from Latin scandalum meaning
cause of offense.
It is the
representation of defamatory
statement in a transient
form e.g. in
spoken words , or gestures .5
Requisites Of
Defamation
In an action
for defamation, following
constituents are essentials :
·
The statement
must be defamatory .
·
The defamatory
statement must , directly or
indirectly , refer to the
person defamed.
·
The statement
must be published
through some medium
i.e. communicated at
least one person
other than the claimant .
·
Fault amounting
to at least
negligence .
·
False
statement purporting
to be facts .
·
Damages or
some harm caused
to the reputation
of the person
or entity who
is the subject .
Distinction Between Libel
And Slander :
|
LIBEL
1. Defamatory statement
is made in
some permanent and
visible form .
2. Defamation
is addressed to
the eye .
3. Libel is
not merely a
tort , it can be
a criminal offence .
4.
Libel is actionable
in itself . it does
not need any
proof of actual
damage .
|
|
SLANDER
Defamatory statement
is usually made
in
some transient form .
Defamation is
addressed to the
ears .
Slander is
a criminal offence
only in
exceptional circumstances .
Slander is
not actionable in
absence
of
proof of actual
damage .
|
|
|
Defenses
In an action
for tort of
defamation , defendant has following
defences available to
him:
1. Justification of
truth
2. Fair
comment
3. Privilege --- Absolute
or Qualified
Justification
of truth - Law will not
permit a man to recover
damages in respect
of an inquiry
to a character
which he either
does not or
ought not posses . Thus , even though
the statement is
malicious , yet if it
was true or
justified , there cannot be
a better defence
than that of the
truth if the
statement is substantially
correct .6
Fair
comment - No comment
can be fair
which is on untrue
facts . If facts are
substantially correct though
untrue in some minor details , the
comments made on
basis of those
facts will be
fair . if facts are
true and the
defamer honestly held
the opinion expressed
by him , comment is
fair but the
distorted comment based
on malice cannot
be fair .
Privilege
- In certain circumstances
owing to their
iportances , freedom of speech
is protected even
if its exercise
is defamatory . Such privilege
override the individuals
right to reputation . The privilege
can be :
I.
Absolute or
II.
Qualified
Absolute
privilege – A speech
made during parliamentary
proceeding or in
State
Legislature
and publication of
the same , has
the constitutional protection
as the constitution
grants privilege to
such speech .
No action for
defamation lies against
judges , counsels , witnesses
or parties for
words spoken or
written , in any judicial
proceeding . similarly , military
and naval proceedings
or State commutation
are also privileged .
Qualified
privilege - A statement
is said to have
a qualified privilege
in spite of
it being false
and defamatory if
there is no
proof of malice .
Three conditions must
co-exist for the
defence of qualified
privilege ---
a) A
fit occasion to
make the statement
b) The
statement must have
reference to such
occasions
c) It
must not be
maliciously but with
proper motive
Defamation Under Criminal
Law
Provisions
under Indian penal
code : Section 499
- Defamation
Whoever
,
I.
By words
either spoken or
intended to be
read , or by signs or
by visible representations ,
II.
Makes or
publishes any imputation
concerning any person
intending to harm , or
III.
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 .7
Explanation 1
- It
may amount to
defamation to impute
anything to a
deceased person
Explanation 2-
It may
amount to defamation
to make an
imputation concerning a
company or an
association or collection
pf 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 , lowers the moral
or intellectual character
of that person.
Exceptions Of
The Rule
1. Imputation of
truth which public
good requires to
be made or
published.
2. Public conduct
in good faith
of the public
servants in discharging
of his public
functions .
3. Conduct of
any person touching
any public question
in good faith .
4. Publication of
true reports of
court of justice .
5. Merits of
cases civil or
criminal , decided by court
or conduct of
witnesses and other
concerned .
6. Merits of
public performance which
its author has
submitted to the
judgment of the
public.
7. Censure passed
in good faith
by person having
lawful authority over
another .
8. Accusation preferred
in good faith
to authorized person .
9. Imputation made
in good faith
by person for
protection of his
or other’s interests .
10. Caution intended
for good of
person to whom
conveyed or for
public good .
In section 499, the
words “ makes
or imputation” should
be interpreted as
words supplementing to
each other . A
maker of imputation
without publication is
not liable to
be punished under
that section .8
Section 500 –
Punishment for defamation
:
Whoever
defames another shall
be punished with
simple imprisonment for a term
which may extend
to two years
or with fine
or with both .
In a case
it was held
that a person
cannot be said
to have committed
an offence under
section 500 of
the code merely
because some news
item or article
is published attributing
certain utterance to that
person .9
Provisions Under
The Code Of Criminal
Procedure
Section 199
- Prosecution for defamation :
This
section provides for
a special procedure
with regard to
initiation of a
prosecution for offence
of defamation committed
against the constitutional functionaries
and public servants
mentioned therein . However the
offence alleged to
have been committed
must be in
respect of acts / conduct in
the discharge of
public servant , as may be
.
Court of
Session shall take
the cognizance of an
offence if the
complaint is made
within six months
from the date on
which the offence
is alleged to
have been committed .
Case Laws :
K.K. Mishra v.
State of
Madhya Pradesh & ors. 10
In this case
the defamation was
confined to the
three statements made
in a press conference by the defendant
and the public
prosecutor filed the
case against defendant
after the government
granted permission to
file complaint considering
the three statements
as defaming against
chief minister of
MP the appeal
was allowed and
the defendant were
punished under section
500 of IPC,1860 .
But in
an another case
government use wrongly
this section , In
this case the
petition was quashed
because the appellant, who was
a minister in
State , thought that the
news directly defaming
him and so
there was a
misconception and the
govt. used their
excessive power and
granted the permission
to file complaint .11
Shamurailatpam
Gopal Sharma v. Public
prosecutor , Manipur & Ors12
In this case
a newspaper wrote
something defaming about
the minister of the
State in
regard to his
personal function . The court
held that the
allegations relatable to
personal life of
a public functionary
like that of
a private citizen
which does not
revolve around his
public function this section
won’t be operative
and the cases
are to be decided on
the factual matrix
of case .
Subramaniam
swamy v. union
of India13
In this case
court held that
criminal defamation under
section 199 is
not violation of
Article 19(1) as the
Article involved public
interest and not
that of individual
so the provision
invoked in this
case .
Thiru N Ram , Editor-In- Chief , “The Hindu” v. Union of India and
connected cases14
The
complaints were lodged
in 2012 which
alleged criminal defamation
against state over
few reports against
by AIADMK party
headed by Jayalalitha at that
time . Writ petitions were
filed challenging the
validity of govt.
orders granting sanctions
to public prosecutor
to file complaints
under section 199(2)
of CrPC regarding
the reports and
articles .
In this landmark
judgment court quashed
the complaints against
a group of
journalists and editors . The
court observed that
the criminal defamation
law is not
meant for misuse
by State . It should
be used in
real cases of necessity . A public
servant and constitutional machinery
must be able
to face criticism . Court also
observed that section
199(2) CrPC should
only be invoked
when there are
foolproof materials , evidences and
when launching of
prosecution is inevitable .
Provision Under
Information Technology Act,2000
Internet
Defamation - Internet/cyber
defamation has been
a serious crime
due to its
emerging cases in
the recent times
due to the overall
business through online
mode . The immense growth
of internet all
across the globe
has given one top medium
to every technology
friendly individual a
platform to express
their opinions and
thoughts by writing
away from their end which
are easily accessible
to everyone on
the same platform
as a publication . This has
led to the
increase in cyber
defamation which causes
injury to the
reputation of a
person in front
of third party
which is done
by verbal or
written communication or
through verbal representations .15
It includes :
i.
Widespread coverage
ii.
Instantaneous communication
iii.
Anonymity
iv.
Impersonation
Section 2(1)
(ha) of Information Technology
Act , 2000- Defamation
created through “ any
cell phones , personal digital
assistance or combination
of both or
any other device
used to communicate , send or
transit any text ,
video , audio or image.”
Admissibility Of
Electronic Records
As per sections
65A and 65B
of the Evidence
Act :
I.
Any electronic
record recorded , printed , copied on a paper
or media in
the form of
a document shall be
admissible by court .
II.
Mails and
online chats , screenshots are
also admissible in
court .16
A case
of D. K. Malhotra , SMC
Pneumatics (India) pvt.ltd. v. Jogesh
kwatra17 this was
the first case
on cyber defamation
where an employee
sent defamatory , vulgar and
abusive mails to
the company’s fellow
employers all over
the world with
the motive to
defame company’s name
which also including managing
Director . Delhi high
court
passed an interim
injunction and granted
ex-parte thus restraining
the defendant for
defaming the plaintiff
in both the
physical and cyber
space .
Kalandi
Charan Lenka v.
State of Odisha (2017)18 In this
case the
petitioner was the
victim of online
stalking from a
fake account which
led to spoofed identity . the case
involved forwarding of
obscene messages were set
to the friends under
the definition of
cyber defamation . high court
of Odisha held
that the act
of accused falls
under the offence
of cyber crime
and is liable
for the fake
messages and obscene
images and texts.
Shreya
Singhal v. Union
of India19 this case
is a landmark
judgment in the
field of freedom
of speech and
expression . This case
brings various dimensions
which are important
facts of Article
19(1) . Section 66A which
was widely criticized
for its over
breadth , vagueness and
its chilling effect
on speech was
struck down by
the Apex Court
as it was
unconstitutional . But the
case of defamation considered
under section 499
of IPC.
Suggestions
1. There
is a need
to reform the
law of defamation
to include its
applicability in cyberspace .
2. Laws
related to internet
service provider are
too vague and
should be amended
to make it
more comprehensive and
exhaustive .
3. Change in
technology over the world changed
the way people
communication .
4. There
are no separate
cyber defamation laws
in India. So , judges interpret
various other laws
to rule on
cases related to
cyber defamation .
5. An
approach is needed
that balances the
Right to freedom
of speech and
defamation in cyberspace . 20
Conclusion
The new era
of technology changed
the usage of
the internet from
just information providers
to running the
business online . The sheer
volume of information
available and the
ease with which
it can be
transferred make the
internet a vital
source of defamation.
People through the
internet trying to
communicate their views , ideas , opinions and
even criticism which
sometimes lead to
character assassination .21 so, a
proper balance is
need of the
hour between freedom
of speech and
expression and Right
to Reputation .
End Notes
1. “Defamation laws and judicial
intervention : a critical study” available at https://ili.ac.in>pdf
2. Universal’s law publishing guide, 11th
Ed. ,2017
3. ibid Note 2
4. “Defamation :Analysis of the blend
under civil & criminal laws available at https://blog.ipleaders.in
6. DR.Jyoti Rattan and Dr. Vijay Rattan
, “ cyber laws & Information Technology” 8th Ed. ,
Bharat publication
7. Section 499, “ The Indian Penal
Code,1860” 8th Ed. , 2016
8. Bilal Ahmed Kaloo v. State of Andra Pradesh ,(1997)7 Supreme
today 127
9. Laloo Prasad v.
State of Bihar , AIR(1997)2 crimes 498
10. AIR 2017 Crn 515
12. AIR 1985 CRM 12
13. AIR 2014 SC 184
14. AIR 2012 W. P. No. 5129
15. “Cyber Defamation : Challenges and
judicial intervention” available at https://lexlife.in>2021/10/16
16. Section 65A &65B “The Indian
Evidence Act,1872”
19. AIR 2015 SC 1523
20. “A critical analysis of cyber
defamation law in India” available at http://ijirt.org>volume 8 issue 1> ISSN : 2349-6002
21. ibid
Article Information
CONCEPT OF DEFAMATION (By- Neeru Thakur & Prof.(Dr.) Simranjeetkaur gill )
Authors: Neeru Thakur, Prof.(Dr.) Simranjeetkaur gill
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/29
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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