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Defamation And Media Law

Every person has the right to protect his/ her fame like body and property.

Actually, the right of protection of fame is more important than the right of protection of body and property.

A person can tolerate the injury of property and body but not the injury of reputation. This is the reason that injury to the reputation i.e. defamation has been treated actionable under the law of tort along with criminal act.

Different definition of defamation have been given by different jurists.
According to Underhill, defamation is false statement to blame one's reputation. Defamation can be done by words, signs, or scenes. The aim of defamation is to down plaintiff's reputation.
According to Salmond, defamatory tort is publishing false statements and the statements of defamation.
According to Winfeld, defamation is the statements relating to someone which are published to down one's reputation. So that right thinking member of society may despise him.

The word defamation is also defined under section 499 of Indian Penal Code 1860 as below:

S/499 of Indian Penal Code provides:
Whoever by words either spoken or intended to be read or by signs or by visible representation makes or publishes any imputation concerning any person intending to harm or knowing or having reasons to believe that such imputation will harm, the reputation of such person, is said except in the case here in after 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 ham 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 loath some state, or in a state generally considered aas disgraceful.

  1. A is asked who stole B's watch. A points to Z, intending to cause it to be believed that Z stole B's watch. This is defamation, unless it falls within one of the exception.
  2. A draws a picture of Z running away with B's watch, intending to be believed that Z stole B's watch, this is defamation, unless it fall within one of the exception.

Kinds of Defamation:

There are two kinds of defamation:
  1. Libel:
    a libel is a publication of false and defamatory statement in some permanent from tending to injure the reputation of another person without lawful justification or excuse. In an action for libel the statement complained of must be false, permanent in nature and published. Winfeld has also considered the libel as defamation statement in permanent form.
    In the case of S.N.M. abdi vs Prafulla Kumar Mohanta (A.I.R. 2002 Orissa 75), an article published in a newspaper allegedly defamed plaintiff has been considered as libel by the Orissa High Court and it was said that the plaintiff is entitled to get compensation from the defendant.

    In the case of libel three items are required to be proved:
    1. That the statement published by the defendant was false;
    2. That such statement was permanent , and
    3. That it was defamatory.
  2. Slander:
     a slander is false and defamatory, verbal or oral statement in transitory forms intending to injure the reputation of another without lawful jurisdiction or excuse. Slander is not per se actionable. Slander is actionable one on proof of special damage.

Difference: following differences are there in libel and slander:

  1. Libel is either written or published which is addressed to eye or that can be read and seen, whereas similar slander is spoken or oral which is addressed to ear and that can be listen.
  2. In libel the defamatory matter is in permanent form while slander is defamation in transit form. (Noor Mohammed vs ziauddin, 1991, MPL 503)
  3. Libel is both a civil wrong and criminal offence while slander is a civil wrong only, although the slander is categorized in both- civil and criminal in India.
  4. Libel shows greater deliberation and raises a suggestion of malice because it is written whereas a slander may be uttered in that heat of the moment and under sudden provocation.
  5. Libel is always actionable per e i.e. without the proof of any damage whereas, save in exceptional cases, slander is actionable only on proof of special damage whereas such special damage is not required to be proved in India.
In the case of Parwati vs Mannar [ILR(1884)8 Madras 175] it has been held that under the proceedings of slander in India proving of special damage is not required. This view has been also ratified in the case of Ramdhara vs Phoolwati (1969 MPL 483).

Essential Elements of Defamations:

Now we will discuss the essential elements of defamation. For the success of sue of defamation, following is required to be proved.
  1. Statement must be defamatory:
    The first element of defamation s that the words or statement must be defamatory. Such words or statement may be treated defamatory by which, in its natural and ordinary sense it tends to excite adverse opinion or feeling of other persons against the person and people hatred him, by which a person is injured in his profession, business or trade. Generally, the following words or statements are considered defamatory:
    1. Which tends to holding up to public hatred or excite adverse opinion;
    2. Which tends to libelous to plaintiff and degradation of his reputation;
    3. Which tends to prejudice a person's private character or credit;
    4. Which tends to injure a person in his profession, business or trade, or
    5. Which tends to cause a person to be feared, shunned, disliked or avoided by the neighbours or others.
    One more similar case is of 'Marrison vs Richi and Co.'[(1902)4 F 645]. In this case, the defendant ignorantally published this news that two twins have borne from the plaintiff whereas the plaintiff was married only two months earlier. The plaintiff filed a suit for defamation against the defendant in which the court while entertaining it said that without enquiring the truth f facts, the published news comes under purview of defamation. At all it may be held that ignorance or unknowness cannot be a base for defence of defamation and there is no importance of intention in it.
  2. The Statement must refer to the plaintiff:
    the defamatory statements are to be directed towards the plaintiff or to be made for the plaintiff, is second essential element. In such cases, the plaintiff has to prove that the statement refer to him. Such an action can done by referring whole name, brief name, false name, imaginary name, etc. it is only essential that it may be inferred from such words or statements that they are referred to plaintiff.
  3. The statement must be published:
    the third essential element of defamation is publication of such words or statements. Publication means making known the matter to some person other than the plaintiff. If a person writes a defamatory matter of plaintiff and puts it into his own pockets or locks it in his drawer, he is not responsible in action, because there has been no publication.

    It may be clarified by us by an example; A writes a defamatory note for B. B torns out it after seeing or keeps it in his box. It will not be treated as publication because that letter was only in the notice of plaintiff. But, if 'A' sends a telegram in place of letter then it will be treated as publication because it has come in to knowledge of many persons like. Telegram clerk, postman etc.

    In the case of Queens vs Adams [(1888)L.R. 22 Q.B.D. 66] the defendant exhibited indecent expression in a letter and packed in an envelope and send it to the women. Such exhibition was not considered publication because any other person was not supposed to know about this.

    In Nemchand vs khemrajn (Air 1973 raj. 200) it was held by Rajasthan High court that the publication be considered defamation only when it decreases the reputation of someone before other persons.
  4. False Statements:
    Initially the onus of proof is on the plaintiff to prove that the defendant intended to defame him. If such statement is true then it does not cover under the definition of defamation. Actually the publication of true statements is a good defence.
  5. Publication of Statement by the defendant:
    finally these statements must be published by the defendant. If these statement are published by other person by the name of defendant, it is not defamation.

    In the case of Ritnand Balved Education Foundation vs Alok Kumar Delhi, the defendant made false and malice statements against the members of board and secretly made informations about this to some persons. Where all the defamatory statements were found to be directed towards the executive board of the plaintiff society and not against plaintiff society, no damage could be found to have occurred due to injury to reputation of plaintiff society, the suit was dismissed.

In the case of Vimal Kumar vs Desh Divakar, Madhya Pradesh, the plaintiff was a minister. It was alleged that the defendant published a circular stating that the plaintiff was arrested for causes nuisance to the management of a school and he also took a share from salary of teachers, allegations were found to be correct, act of defendant was not held to be libelous.

Media Law And Defamation

It is very important that any of the published news is within the purview of the ethics of the media person or the journalists. One should see that the information communicated leads to truthfulness and leads the mass in a proper direction and doesn't create a negative impact. In a society the law endows every person with a right to maintain and preserve his reputation. The right of reputation is acknowledged as an inherent personal right of every person. A man's reputation is his property and perhaps more valuable than any property.

Constitutional Aspect
The constitutional aspect of the media law involves to certain fundamental freedoms. There is no direct freedom given in concerned with media law but indirect freedom falls under the Article 19. This article gives the freedom of speech and if seen in relation to media, Article 19(1) enumerates the freedom of speech and expression. This fundamental right plays a very vital role in relation to the freedom of media. The right given to the media person also brings some of the restrictions to it. One can't use the right to its extreme, the other laws has to be kept with it at the time of implementation.

Case Laws
In Sakal Papers ltd. V. Union of India in this case, the Daily Newspapers Order, 1960, which fixed a minimum price and number of pages, which a newspaper is entitled to publish, was challenged as unconstitutional. The state justified the law as a reasonable restriction on a business activity of a citizen. The Supreme Court struck down the order rejecting the state's argument. The court opined that, the right of freedom of speech and expression couldn't be taken away with the object of placing restrictions on the business activity of the citizens. Freedom of speech can be restricted only on the grounds mentioned in clause (2) of Article 19.

K. A. Abbas V. Union of India, the petitioner for the first time challenged the validity of censorship as violative of his fundamental right of speech and expression. The supreme court however observed that, pre- censorship of films under the Cinematography Act was justified under Article 19(2) on the grounds that films has to be treated separately from other forms of art and expression because a motion picture was able to stir up emotions more deeply and thus, classification of films between two categories A'(for adults only) and U'(for all) was brought about.

Defecne of Defamation

  1. Publication of true Statement
    Truth is greatest defence of defamation. Means if it is proved by the defendant then he will not responsible for defamation. In India law, the statement must be in the welfare of public as well as true.

    In Alexander v/s N.E Railway (1865) the defendant published a notice stating that the plaintiff had been convicted or travelling in a train without ticket and sentenced to a fine of Rs 1 with an alternative of three weeks imprisonment. The defendant was held not liable, as the statement has been substantially true.
  2. Impartial and Just Criticism
    The second defence in the case of defamation is impartial and just a criticism. If defendant proves that whatever he published was impartial and just, then he will not be held responsible for defamation. But it is necessary that the criticism must be:
    1. In the public welfare
    2. In good faith
    3. Just and balanced
    4. Merely an opinion
  3. Privilege
    Privilege is third good defence of defamation. Privilege means an excuse or immunity conferred by law on statement or communication made on certain occasions called privilege occasions.

    Privilege is of two kind:

    1. Absolute privilege
    2. Qualified privilege

    Absolute privilege statement are such statement on which no action lies for them even thought they are false, defamatory and made with express malice. In public interest, it is not desirable and necessary to inquire such privilege.

    In such privilege statements, following cases are covered:
    1. Parliamentary proceeding
    2. Judicial proceedings
    3. Proceedings of Military and Naval
    4. Proceeding of state etc.

    Whereas the statement under qualified privilege are such statement which are made in certain circumstances are not malice.

    Following statements are deemed to be included in it:
    1. Statement made in performance of a duty
    2. Statement made for safely and save interest of others.
    3. Fair and accurate report
    In the case of Tejkiran Jain v/s Sanjiv Reddy (AIR 1970 SC) it has been held by supreme court that the parliament Members cannot be held liable for the statements made in Parliament under Article 105(2) of the constitution.

    T. Gopalankutty v/s M. Sankunni (AIR 1971 Keral) it has been held that the statement made by a judge, advocate, witness or party before the court during judicial proceedings cannot be held liable for defamation whether there is not suitability of such statements.
  4. Apology
    Sometime apology is also considered in the shape of defence. The amount of compensation may be reduced by the apology.
    But it is required that the apology must be:
    1. At the earliest opportunity
    2. Absence of malice, and
    3. Free from any condition
Hence, by adopting above defences one may be saved from the tort of defamation.

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