Defences against Defamation
In India, defamation is punishable under section 499 to 502 of the India Penal Code, 1860 (IPC). A civil suit for defamation can also be initiated under the Law of Torts. The key difference between criminal defamation and civil defamation is that truth is not an absolute defence under criminal defamation. Under criminal defamation, the accused has to prove that the statement was, in fact, true and not that he merely believed the statement to be true[1].
Criminal defamation under the Indian Penal Code, 1860
Section 499 provides that whoever publishes any imputation concerning any person with an intention to harm or with the knowledge or with reason to believe that such imputation will harm the reputation of such person, is said to have defamed that person. The publication can be in the form of writing, speech, signs or visible representation. The third explanation to the section further clarifies that Innuendo or imputation expressed ironically may also amount to defamation. Harm to reputation means lowering the moral or intellectual character of that person or lowering character of that person or lowering credit of that person or causing to be believed that body of such person is in a loathsome or disgraceful state[2].
Further section 499 enumerates the following list of exceptions to defamatory statement.
Imputation of truth in public interest for public good
Truth is an exception when the alleged imputation is true and it is published for public good. Unlike, in Law of Tort, the truth of defamatory statement is not a complete defence under criminal prosecution[3]. Therefore, only a true statement which is published for public good is a defence against criminal defamation. Public good is a question of fact and has to be established as fact on case-to-case basis[4].
Public conduct of public servant
Under the second exception, opinion regarding character of a public servant, so far as it appeared in his conduct in discharge of his public functions, is protected. Such an opinion should be expressed in good faith. ‘Good faith’ has been defined under section 52 of IPC to mean an act done with due care and attention. It is important to note that ‘good faith’ under IPC does not imply honesty and good motive[5].To determine ‘good faith’ the court takes into account the intellectual capacity of the accused and relevant circumstances[6].
Conduct of any person touching any public question
This exception has a wider scope than the second exception as it is not limited to opinions regarding the conduct of public servants but also any person touching public questions. This would include publicists who take part in matters concerning the public like politics[7] and a person petitioning against the government on the public questions [8]. However, such an opinion must be expressed in good faith.
In PurushottamViajy v. State of Madhya Pradesh[9], the court explained that “the comments should be fair in the sense that they are inspired by a genuine desire on the part of the writer to serve the public interest and not by any intention of wrecking private spite”. Subsequently, inVishanSarup v. Nardeo Shastri and anr[10], the Court reiterated that principle underlying the doctrine of fair comment is that comment is based on a true fact that serves public interest. The court clarified that the test is that the publication must not be malicious and is made in public interest. Mere exaggeration or inaccuracy of details does not amount to defamation if the substance of publication is materially true and for public interest. This is applicable for both second and third exceptions.
Publication of reports of proceedings of courts
The fourth exception provides protections for publication of a substantially true report of the proceeding of a court or outcome of such proceeding. Good faith is not required under this defence.
- Merits of case decided in Court or conduct of witnesses and others concerned
Following opinions published in good faith are protected under the fifth exception –
- Merits of any civil or criminal case which has been decided by a court.
- Conduct of any person as a party, witness or agent in such proceeding.
- The character of such a person but limited to his conduct as appeared during the proceeding.
- Merits of public performance
Literal criticism of public performances is a valid defence provided it is expressed in good faith. The criticism can be regarding merits of a performance and character of author,only as it appeared in such performance. It is essential that public performance is submitted to judgment of the public. The submission can be expressed or implied. Criticism of published books, painting, public speeches, stage performance fall within the ambit of this defence[11].
- Censure passed in good faith by person having lawful authority over another
When one person has authority over another and he exercises such authority to render, in good faith, any censure on the conduct of that other person in matters to which he has such lawful authority, such censure does not amount to defamation. The authority can be conferred by law or may arise out of a lawful contract between the concerned persons. For instance, judge censuring the conduct of witness, banker censuring the cashier of his bank and teacher censuring a pupil in presence of other pupils, are protected under this exception.
- Accusation made to authorised person in good faith
A person who makes an accusation against any person to a person who has lawful authority over that person regarding the subject matter of the accusation, such person is not liable for defamation. The accusation must be made in good faith. However, he has to prove that he had sufficient grounds to believe the accusation and that accusation was made to a person with lawful authority[12].
- Imputation made in good faith to protect one’s own or other’s interest
The ninth exception grants protection for imputation on character made in good faith to protect one’s own interest or interest of any other person or for public good.
- Caution intended for good of person to whom conveyed or public good
Under the last exception, immunity is granted to caution conveyed by a person against another in good faith. The intention of such caution must be to do good of the person to whom it is conveyed or to do good of a person in whom the recipient is interested or public good.
Defamation under Law of Torts
Blackburn and Georgedefined defamation as ‘the tort of publishing a statement which tends to bring a person into hatred, contempt or ridicule or to lower his reputation in the eyes of right-thinking members of society generally’[13]. Sir Fredrick Pollock explained that defamation is publication of a statement, without lawful justification or excuse, which injures the reputation of a person[14]. Defamation can be in form of slander (spoken) or libel (in writing).
The defences against defamation under Law of Torts are described below.
2.1. Justification by truth
The general rule is that truth is not defamatory even if published maliciously. Such a statement should be true in substance and intact[15].
2.2. Fair and bonafide comment
The doctrine of fair and bonafide comment is same as followed under criminal defamation.
- Privileges
Privileges are justified circumstances when statements imputing another person’s reputation do not amount to defamation. Privileges are of two kinds- absolute and qualified. Absolute privileges are granted by law for public interest. The absolute privileges are-
- Articles 105 and 194 of Indian Constitution confer immunity on members of the Parliament against any defamatory statement spoken or written during proceedings of the Parliament.
- Statements made to the court in course of and in relation to judicial proceedings.[16]
- Similarly, statements made in the Navy and Military Tribunals in course of and in relation to judicial proceedings.
- State proceedings i.e. communication between public officers[17].
- Communication between spouses falls within privileged communication[18].
Qualified privilege protects the statement if it is made by a person, without malice, while discharging public or private duty or in the conduct of his own affairs. Such duty can be legal or moral[19]. Qualified privilege can be availed while answering police inquiries, communication between advocate and client, communication between teacher and parent about their child, confidential reports etc.
[1] K.D.Gaur, Textbook on Indian Penal Code (5thedn, Universal Law Publishing) 855
[2]Indian Penal Code, 1860 s 499 Explanation 4
[3]Lachmi Narayan v. Shambhu Nath (1931) ALJ 16
[4]Chamanlal v. State of Punjab (1971) 1 SCJ 112
[5](n 1) 68
[6]PurushottamViajy v. State of Madhya Pradesh (1961) 2 Cr LJ 114
[7](n 1) 863
[8](n 2) s 499 Illustration to third exception
[9](n 6)
[10] AIR 165 All 439
[11](n 1) 863
[12](n 1) 864
[13] Blackburn & George,Torts(2nd edn, 1949) 167
[14]https://oll.libertyfund.org/pages/pollock-s-model-version-of-tort-law
[15] Pandey Surendra Nath Sinha v. Bageshwari Pd. AIR 1961 Pat 164
[16]Satis Chandra Ckakrabarti v. Ram Dayal De 59 Ind Cas 143
[17] (Raja) VeniMadho Prasad Singh v. M. Wazid Ali AIR 1937 All 90
[18] T.J. Ponnen v. M.C. Varghese AIR 1967 Ker 228
[19] Ashok Kumar v. Radha KishanVij and ors. ILR 1982 Delhi 991
This article is authored by Priyanshee Mathur, LLM Commercial and Corporate Law student at Queen Mary University of London
Also Read – What Do You Mean By Defamation?
