The Thin Line: Balancing Free Speech And Reputation In Defamation Laws

Defamation Laws in India have over the years endeavoured to strike a delicate balance between safeguarding freedom of speech and protecting the privacy and dignity of others

Defamation, simply put, is a false statement, which harms the reputation of another individual. However, it often intersects with the principles of freedom of speech and the freedom of press. As such, it becomes imperative that words spoken or written with the potential to injure reputation, are bifurcated into what constitutes as defamatory publication and those that are either truthful or constitute fair comment made in public interest.

Defamation Laws in India have over the years endeavoured to strike a delicate balance between safeguarding freedom of speech and protecting the privacy and dignity of others.

Understanding Defamation under Indian Law

Defamation in India is covered under both civil and criminal law. Civil Defamation is governed by Tort law, whereas the offense of Criminal Defamation is governed by Section 356 of the Bharatiya Nyaya Sanhita (“BNS”), 2023 (Formerly Sections 499 to 502 of the Indian Penal Code, 1860).

The dual nature of defamation law ensures that individuals have multiple avenues to seek redress while maintaining the proportionality of remedies based on the nature of the harm.

According to Section 356 of the BNS, for a publication or statement to be considered defamatory, the following essential elements must be established:

i) Form of the statement: It must be made in words—either spoken, intended to be read, or through signs or visual representation;

ii) Reference to the Plaintiff: It must refer to the person claiming defamation, i.e., the Plaintiff;

iii) Damage to reputation: It must have damaged the Plaintiff’s reputation, bringing them into disrepute;

iv) Falsehood: It must be false;

v) Knowledge of falsity: The person making the defamatory statement must have known that a third party hearing the statement would believe it to be genuine;

vi) Belief by third parties: The statement must have been believed to be genuine by third parties;

vii) Lack of privilege: It must not be privileged.

As per Section 356 of the BNS, for a publication to be exempted from being considered defamatory, the following essential elements must be established:

i) Truth of the statement: The publication must be true with respect to any person.

ii) Public good: The statement must be made for the public good.

iii) Good faith opinion on a public servant’s conduct: The publication must express, in good faith, an opinion regarding the conduct of a public servant in the discharge of their public duties, and no further.

iv) Good faith opinion on any person’s conduct in a public matter: The statement must express, in good faith, an opinion about the conduct of any person concerning a public issue, and no further.

v) True report of court proceedings: The publication must be a substantially accurate report of court proceedings or the results of such proceedings.

vi) Good faith opinion on a decided case: The publication must express, in good faith, an opinion about the merits of a civil or criminal case that has been decided by a court, or about the conduct of any party, witness, or agent involved in such a case, and no further.

vii) Authority to censure conduct: The publication must come from a person with lawful authority over another (either by law or a contract) to pass, in good faith, any censure on that person’s conduct within the scope of such authority.

viii) Accusation in good faith: The statement must be made in good faith as an accusation to someone with lawful authority over the person being accused, concerning the subject of the accusation.

ix) Imputation for protection or public good: The publication must be an imputation on another person’s character, made in good faith for the protection of the interests of the person making the statement, another person, or for the public good.

x) Caution in good faith: The statement must be a cautionary notice, given in good faith, to one person regarding another, with the intention of benefiting the recipient, someone they care about, or the public.

Absolute Privilege and Free Speech in Defamation: Does It Have Limits?

The Hon’ble Supreme Court of India in the matter titled R. Rajagopal v. State of T.N.¹, addressed the issue of publications made with reckless disregard for the truth, recognizing it as a valid ground for legal action even by a public official. The Hon’ble Supreme Court of India observed that “…where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen”.

Furthermore, the Hon’ble High Court of Delhi in the matter titled Ram Jethmalani vs Subramaniam Swamy², has held that “absolute privilege is not absolute in the context of being infinite. Even when the occasion is privileged one gets no licence to utter irrelevant and scandalous things….” It was further observed that “Qualified privilege may be defeated and its protection destroyed by proof of express malice.”.

In a recent judgement titled Lakshmi Murdeshwar Puri v. Saket Gokhale³, the Hon’ble High Court of Delhi has emphasized upon the liability arising from publishing unverified per-se defamatory statements on social media platforms. The aforesaid judgment observed that per-se defamatory publications, motivated by malice and unsupported by due diligence, are not exempted from legal liability.

Defamation in the Digital Age

The rise of social media has revolutionized rapid dissemination of information introducing new challenges. Social Media Platforms allow content to reach global audiences instantaneously, amplifying the impact of defamatory publications. In the Lakshmi M. Puri⁴ case, the Hon’ble High Court of Delhi has addressed the issue of publishing defamatory statement on Social Media Platforms. Wherein, vide an earlier Interim Order dated 13.07.2021⁵, the Hon’ble High Court of Delhi had directed intermediaries to take swift action in removing defamatory content. The Hon’ble Court also reflected on a well-known human tendency: “It is an unfortunate truism of human nature... that we prefer brickbats to bouquets. Criticism always makes for better press than praise, and the more vitriolic the criticism, the better.”

Conclusion

The interplay between free speech and reputation highlights the complexities of defamation law in India. Recent cases like the Lakshmi M. Puri⁶ case underscores the judiciary’s efforts to balance the right of freedom of speech and the freedom of press while protecting the right of reputation.

Disclaimer – The views expressed in this article are the personal views of the authors and are purely informative in nature.