The Constitution of India provides to every citizen, the right to freedom of speech and expression. This right along with others, are subject to reasonable restrictions from time to time. Defamation is one of those restrictions. This paper seeks to bring to light the concept of defamation and how it has been in existence since centuries, how the defamation laws of India function both as a civil offence under the Law of Torts and a criminal offence under the Indian Penal Code and the Code of Criminal Procedure.

Defamation, as considered to be under the scope of Article 19 of the Indian Constitution brings serious questions in the minds of the people concerning its nature, since the freedom of speech is more of a positive right which should be properly utilised by the public at large.

The role of media has been immense in the current times, as media is the only means by which the public becomes acquainted with all the information which is fair and authentic, without putting prime focus on any particular class of people. This paper also showcases the growth of cyber defamation and how social media platforms and the internet play an important role in highlighting defamation through virtual means. This paper is concluded with a detailed analysis of the defamation laws and how decriminalising the law can be prejudicial to the public interest.

Defamation

The reputation or image which an individual possesses in the society is purely out of his own endeavours, and truth be told, besides his life, what a man actually cares about is his reputation. Black’s Law Dictionary defines defamation as the offence of injuring a person’s fame, reputation or character with the help of false and malicious statements. Defamation has become a blazing issue in current times, with the press and media playing a very influential role in creating a frenzy nationwide and putting several questions regarding the effectiveness and rightful implementation of the right to freedom of speech and expression as envisaged in Article 19(1)(a) of the Constitution of India[1]. Given the present scenario, individuals are always concerned, whether any statement they make may actually bring them to the forefront or land them straight behind bars.

In legal parlance, defamation is the making or publishing of false and malicious statements intended to tarnish the image or reputation of the concerned person. It generally involves communication of such false statements to a third party. Defamation necessarily connotes false representation of statements without the consent of the defamed person. Only injury to feelings of a person does not constitute defamation, it must essentially lead to harm and loss of reputation. The defamed person may not be named but an acknowledgment or ascertainment should be present. A person or group of persons is said to be defamed only when the publication is specially implying towards the particular person or a group of people as a whole.

Defamation dates back to centuries ago. Long before the British actually came up with the law, similar maxims existed centuries ago. In the early German and English law, defamation was punishable by cutting off the person’s tongue. The Romans considered capital punishment for the use of abusive and derogatory slogans. Among the French, the law required the offender to effectively withdraw libellous statements made in newspapers and only the truth acted as a defence in case of statements made against public figures. In Italy, defamation is a criminal offence and the truth hardly acts as a defence.

Types Of Defamation

There are mainly two categories of defamation: Libel and Slander. Libel refers to representation or publication in a permanent form which includes in writing, in printing, pictures, etc. In case of defamation through libel, the plaintiff needs to prove two main things: firstly, that the defendant has published defamatory statements against him and secondly, the statement has been viewed by other people. Since libel is defamation through written or other formal means, no other specific requirements are needed because the law is of the opinion that publication though written or printed means is bound to stay in the public domain for a considerable amount of time and continue to cause harm to the plaintiff. Slander refers to making representation in verbal form through spoken words or gestures.

Slander is mainly of two kinds namely, slander and slander per se[2]. In slander, the aggrieved party needs to prove that the defamatory statements made against him has actually caused him special damages, which means real harm caused which has affected him financially or in any other way impacting his profession or business. On the other hand, slander per se does not require the aggrieved party to prove any special damages caused, because slander per se are those kinds of defamatory statements which are presumed to be harmful for the reputation and image of the person, and might not be actually harmful.

There are three main essentials of defamation:

1. The statement should be false or malicious.
2. The statement should concern the aggrieved party.
3. The statement should be communicated to a third party either by written or printed means or through words or gestures.

Defamation Laws In India

In India, defamation is considered to be both a civil and a criminal offence. In order to understand the nature of defamation in India, one needs to understand it both from the criminal as well as the civil point of view.

Defamation as a criminal offence:
Under the Indian Penal Code, 1860, Sections 499-502 deal with defamation with respect to injury to an individual’s reputation[3]. Section 124A of the Code deals with defamation against the State or sedition, Section 295A deals with defamation hurting the sentiments of a religious community whereas Section 153 deals with defamation of a particular community or riot.

According to Section 499 IPC, defamation is defined as:
“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 cases hereinafter expected, to defame that person.”

Under Section 500, punishment for defamation is laid down which is simple imprisonment which may extend up to two years or with fine or with both. The Criminal Procedure Code, 1973 lays down that defamation is a non-cognizable and a bailable offence.

The aggrieved person, in most cases, has to file a complaint before the Magistrate and also an accused is generally not taken into police custody without a warrant. In criminal cases, truth acts as a defence in very rare circumstances, which is why an accused has maximum chances of being declared guilty for the offence of defamation even if the accusations made are truthful.

Defamation as a civil offence:

Defamation as a civil offence is determined under tort law; and in such cases, the emphasis is on libel and not on slander. A fact to note regarding defamation under tort law is that defamation is considered harmful for the reputation of a living person, since defamatory statements needs to be proved by the plaintiff. But in case of a deceased person, an action can be taken if needed; if it is found that the reputation of a deceased person is at stake, then the heirs of the deceased have full rights to file a suit and claim compensation. In general cases, if defamation is proved, the plaintiff is liable to be paid the required compensation.

A person in apprehension of getting defamed can seek the remedy of an injunction in order to prevent such a publication. However, Indian courts have not shown the tendency to grant injunctions as they feel that it would act as an impediment to the freedom of speech and as such, publication of such defamatory statements can be prevented only in exceptional cases where the damage which shall be caused to the plaintiff cannot be done right even with the payment of compensation. In order to deal with the law of defamation in India, the Defamation Bill of 1988 was but the Bill received a lot of criticisms from the opposition parties as well as the media, due to which it had to be put down.

Defamation In The Light Of Article 19 Vis-À-Vis Freedom Of Press

The dimensions of defamation and freedom of speech under the scope of Article 19 of the Indian Constitution and to understand the role and magnitude of their impacts on each other leads us to contemplate the nature of defamation in question.

The plethora of questions that arise are how can one sue for their reputation being tampered with or even intended to have been tampered when the constitutional mandate under Section 19(1)(a) speaks otherwise, having said that if one does sue for the same; exploiting the nuances of ‘reasonable restrictions’ provided under the same mandate; then as to what extent can such restrictions be crafted. Law being dynamic in nature and judicial minds considered to be supreme; an exhaustive set of guidelines to outline the scope of Article 19 is not an option and yet freedom of expression in the 21st century to be regarded as a mere residual personal right is redundant, and can be more so interpreted to be a positive right reinforced by the public interest at large.

The Media is a platform with a wide scope for communication, and it plays a vital role in reaching out to the public at large through means of news and with that comes the mantra; “With great power comes great responsibility.” It thus becomes an obligation of the media to publish or endorse or print or broadcast the information that is fair, authentic and does not gaslight a particular community or sector for reasons of their own.[4]

Now, in light of the current incidents in India, the debate over Indian journalist Arnab Goswami going all out and questioning the Congress leader’s silence over the Palghar mob lynching case and in that process calling her by the name of Antonia (as she was allegedly addressed before) became the Page 9 story all over India overnight. Numerous FIRs with same wordings, by the affiliated members of the Congress party all over the India was filed against the journalist with the vendetta to seek revenge, the journalist and his wife was attacked which he alleges to be driven with the same motif over his statements. The court however decided to stay his arrest and granted his plea for a CBI investigation; to which we can conclude the freedom of speech and expression of media evolves as the fourth pillar of our system.

Evolution Of Cyber Defamation

Within the cyber space the social media platforms offers an additional challenge in determining the distinction between speech that is defamatory and speech that is merely opinion of the preacher. Cyber defamation is a new concept and involves defamation of a person through a virtual medium; and includes publishing of defamatory substance against another with the help of technology and internet. This form of defamation is not only wide spread but irrevocable given the availability of the information.

The statutory provisions that particularly guide cyber defamation via the Penal Code are Section 469 and Section 503. Apart from these, Section 66A of the Information Technology Act, 2000 is also applicable.

In the leading case of SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra[5]; an employee sent derogatory, filthy, obscene, defamatory, vulgar and abusive emails to the company's employers and subsidiaries all over the world intending to defame the company and the managing director, the High Court of Delhi granted ex-parte ad interim injunction restraining the defendant from defaming both the physically and, or in the cyber space.

Also, in the recent case of Swami Ramdev & Anr. v. Facebook Inc. & Ors[6], Justice Pratibha Singh adjudged to remove all the defamatory content that was posted online against the yoga guru, without specifying any territorial limit, and stating that if the content was uploaded from India or was located in India on a computer resource, then the courts must have international jurisdiction to pass injunctions all around the globe.

To that Facebook, filed an appeal against which had been accepted by the Delhi High Court on the grounds that in spite of the fact that the plaintiff was well aware of the people who uploaded the derogatory content, they were not made party to the suit. It was also contended that guru did not show any prima facie case of irreparable loss and that global takedown order is against the principles of national sovereignty and international comity. It also interferes with the defamation laws in other countries. And the previous order undermines the spirit of immunities which are granted in other jurisdictions worldwide.

Constitutionality Of The Defamation Laws: A Conclusive Analysis

“Every man is entitled to have his reputation preserved inviolate”[7] in the words of J. Blackstone.

The celebrated case of Subramanian Swamy v. Union of India[8] upheld the constitutionality of the defamation laws in India. The court also held that one can be expected to get criticism, dissent and discordance for their deeds but it will not be morally or legally correct to tolerate defamatory attacks. Herein, Subramanian Swamy had filed a writ petition to decriminalise the prevailing defamation laws.

The 2 contentions that caused an uproar around the country were that to

• To declare Section 499 and 500 of the Indian Penal Code, 1860 unconstitutional; and
• To declare Sec. 199(2) of the Code of Criminal Procedure, 1973 unconstitutional.

He further contended that these provisions were unreasonable restrictions on the constitutional mandate of freedom of speech, and that it violates the fundamental right bestowed under Article 19(2)[9].

The Apex court reiterating and expanded a person’s reputation is an integral part of the right to life under Article 21 which is the heart and soul of the constitution and it cannot be disregarded at one misusing the right to freedom of speech.

The colonial era’s law in the modern times often are retrograde and out of tune and not competent to deal with the circumstances which have changed over the years without disregarding the fact that defamation can harm the interest of society at large and decriminalizing such laws can be detrimental to public interest.

In such a scenario, what also becomes an issue is that whether criminal defamation should at all be an instrument for the state, given that The Code of Criminal Procedure grants the public servants an undue advantage of the state’s prosecutors defending them when they allege to have been defamed.

End-Notes:

1. Shivi, ‘Defamation Laws And Judicial Intervention: A Critical Study’ <http://ili.ac.in/pdf/paper10.pdf > accessed 30 April, 2020
2. Coulter Boeschen, ‘Elements of Slander, Defamation Law: Legal Elements of Libel and Slander’ <https://www.alllaw.com/articles/nolo/civil-litigation/defamation-libel-slander.html > accessed 4 May, 2020
3. Shivi, ‘Defamation Laws And Judicial Intervention: A Critical Study’ <http://ili.ac.in/pdf/paper10.pdf > accessed on 30 April, 2020
4. Rutu Mistry, ‘The Blurry Line Between Defamation and Role of Media, Legal Services India’ <http://www.legalserviceindia.com/legal/article-452-the-blurry-line-between-defamation-and-role-of-media.html> accessed 12 May, 2020
5. O.S.No.1279/2001, New Suit No.65/2014
6. CS OS (27/2019)
7. Sir William Blackstone, Commentaries on the law of England, 101-04 2nd ed. 1769
8. AIR 2016 SC 2728.
9. Kartik Tyagi, ‘Criminal Defamation- Constitutional or not’
   <http://legalserviceindia.com/legal/article-358-criminal-defamation-constitutional-or-not.html> accessed on 15 May, 2020