A man’s reputation is considered valuable property. Each and every man has a right to protect his reputation. This right is indorsed as an inherent personal right and is a jus in rem i.e., a right good against all persons in the world.
The injury caused to the reputation of a person in the eyes of the third person is defined as Defamation. The injury can be done either by written or oral means. Provided that the intention of the person creating the defamatory statement must be to lower the reputation of the person against whom the statement (that harms a person’s reputation) has been made,
In the eyes of the general public. Defamation can damage a person’s emotional, physical and financial well-being.
Types of defamation
1. Libel is a defamatory statement that is made in writing by the defendants.
2. Slander is an untrue defamatory statement that is spoken orally by the defendants.
In India, there is no such distinction between libel and slander. Both libel and slander are offences. It harms a person’s reputation and can lead to a lawsuit. Defamation is both civil and criminal offence in India. The remedy for civil defamation is covered in the Law of Torts.
In a civil defamation case, a person who is defamed can move either to the High Court or to the subordinate courts and seek damages in the form of monetary compensation from the accused. Whereas in criminal defamation case, a guilty person can be sent to jail for two years as per sections 499 and 500 of the Indian Penal Code, 1860.
Section 499 of Indian Penal Code, 1860 gives the broad definition of defamation with subject to four explanations and it also cites ten exceptions. The exceptions includes “imputation of truth” These include “imputation of truth” which is required for the “public good” and thus has to be published, on any of the public conduct of government officials, the conduct of any person stirring any public question and the merits of the public performance.
Section 500 of Indian Penal Code, 1860, provides with the punishment for defamation, it reads: “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with the fine, or with both.”
INNUENDO: Sometimes the statement may prime facie be innocent but it has some hidden or secondary meaning which will be considered as defamatory. Such statements are known as innuendo.
Essential Elements of Defamation
1. The Statement should be made
A statement can be made by words either spoken or intended to be read, or by signs or by visible representations. For example, X is asked who stole Y’s diamond necklace. X points to Z, intending to cause everybody to believe that Z stole the diamond necklace. This is defamation.
2. The Statement must be defamatory
Defamation begins when somebody makes a false and unpleasant statement, and person who makes a defamatory statement can be held liable for defamation. A defamatory statement is likely to diminish the good belief that others hold about the person and it has the propensity to make the society or other persons to look at him with a feeling of ridicule, hatred, fear or dislike. Abusive language sometimes may also be defamatory, for example, to call a man hypocrite or a habitual drunkard. A few illustrations to understand what is defamatory statement and what is not a defamatory statement. To say a motorist drives negligently is a defamatory statement. To criticize goods is not a defamation. To say that a baker’s cake is always distasteful is defamatory.
3. The Statement must refer to the plaintiff
The defamatory statement must refer to the person. The reference may be implied or expressed. It is not necessary that the plaintiff’s name has to be mentioned if he can still be recognized. The person referred to in the defamatory statement can be living or deceased, however, the defamation suit on behalf of a deceased person can be filed only if the person filing the defamation suit has an interest.
4. The intention of the wrongdoer
The person making the defamatory statement knows that the third party listening to the statement will believe the statement to be true and it will result in causing injury to the reputation of the person and the person can be defamed.
5. The Statement should be false
The truth is a defence to defamation so a defamatory statement should be false. The falsity of the statement is an essential ingredient of defamation so if the statement made is true then there is no defamation. The law does not punish any person for speaking the truth, even if it is unpleasant.
6. The Statement should not be privileged
In some situations, the statements may be privileged i.e. the person who has made the statement is secure from such liability.
7. The Statement must be published
For defamation to take place, the statement should be published i.e, communicated to a third party. Any statement sent as a personal message or written in a personal diary does not amount to defamation, but if the sender knows that it is possible that a third person can read it, then it is considered as defamation. In the case Mahendra Ram v. Harnandan Prasad, the offender was held liable because he had sent a defamatory message which was written in Urdu language despite knowing the fact that the plaintiff could not read Urdu language and eventually the letter will be read by someone else.
8. The third party believes the defamatory matter to be true
The other people of the society to whom the statement has been said believe that the defamatory matter to be true about the plaintiff.
9. The Statement must cause injury
The statement made by the person should harm or injure the plaintiff in some or the other way.
Defamation and Freedom of Speech
The main objective behind the law of defamation is to protect the right of reputation. If anyone makes false and disrespecting statements about another person which can defame that person then the person who made the statement can be held guilty for defamation. The law of defamation envisages the clash of two fundamental rights that is right to freedom of speech and expression and the right to reputation.
Article 19(1)(a) of the Indian Constitution provides people freedom of speech i.e. Right to speak freely without government intervention. The value of freedom of speech is that free speech and expression are equal to democracy and infringing of this fundamental right will amount to violating democracy. So, the argument that is raised is that delivering speech on public matter should be safeguarded and distinguished from private speech. Therefore, the defamation law should be balanced with the fundamental right to freedom of speech and expression. The rules of defamation law are intended to intermediate between these two rights.
What is the interpretation of the Supreme Court on defamation?
Judges sometimes become confused about conflicts between making the defamatory statement and exercising the right of free speech.
In the case Subramanian Swamy vs Union of India, Dr. Swamy challenged the constitutionality of the criminal defamation law in India. A two-judge bench of the Supreme Court comprising Justices Dipak Misra and Justice P. C. Pant approved the Constitutional validity of sections 499 and 500 (criminal defamation) in the Indian Penal Code, highlighting that an individual’s fundamental right to live with dignity and reputation “cannot be ruined solely because another individual can enjoy his freedom”.
The presiding noted that “the right to freedom of speech and expression provided to people is not an absolute right but is absolutely sacrosanct” and has to be “balanced with the right to reputation” which is secure under Article 21 of the Indian Constitution” and it cannot be allowed to be crucified at the altar of the other’s right of free speech.
The court held that to protect individual dignity of life and reputation it is important to criminalize defamation and it comes under the “reasonable restriction” on the fundamental right of free speech and expression. Therefore, the criminal provisions of defamation are constitutionally valid and do not conflict with the right to free speech.
Supreme Court also stressed that criticism was not defamation, the bench ruled that a trial court must be “very vigilant” in inspecting a complaint before issuing the summons in a criminal defamation case.
The law of defamation serves the purpose of protecting people from having their reputation injured resultant from false statements made against them by anyone. However, it is still in peace with the right to freedom of speech and expression, as people are allowed to make true statements and give their opinions as well. This area of law seeks to protect an individual’s reputation from being injured by preventing unfair speech. The apex court has stated in several cases that the realm of freedom of speech and expression is “sacrosanct” but is not “an absolute”. It also said that the right to life under Article 21 of the Indian Constitution includes the right to reputation of a person and it cannot be violated at the cost of the freedom of speech of another person.
This article has been written by Nistari Sinha, B.A. LLB (2018-2023) student at Amity Law School, Amity University Chhattisgarh.
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