Defamation and the Law

Tweets on Twitter and comments on social media sites have become second nature, thanks to the rise and accessibility of the internet to one and all. The internet has changed the manner in which we communicate and share information; as it has created new avenues for us to communicate, congregate, and share information of a social nature. It is obvious that, the internet has a massive impact on many areas of one’s personal and professional life and it will continue to change the way we live, think or express.

In the internet age, the power and/or privilege to publish (or make known to the public) one’s viewpoint has become accessible to anyone. Formerly, this medium was limited to a few, which has now become a commonplace. However, freedom of speech and expression guaranteed under the Constitution of India does come with certain restrictions, defamation being one of them.

Not taking into account defamation of the State (otherwise known as ‘Sedition’), under the Indian law,defamation is both, a criminal offence, as well as a civil wrong,which is formed within the framework of tort.The law of defamation like many other branches of tort law aims at balancing the interests of the person concerned, i.e., the right that a person has to his reputation vis-à-vis the right to freedom of speech and expression. It is said that the reputation of a person is more valuable than any other tangible asset he may possess. The right of reputation is acknowledged as an inherent personal right and is a jus in rem, i.e., a right, good against all persons in the world.

Defamation is treated as a civil wrong within the realm of tort law. The law of tort is an area of law, which does not rely on statute to define the wrong, but relies on an ever increasing body of case law to define what would be considered as a civil wrong. Various judgements have defined the term defamation. However, in the matter of Krishanlal Varma v State of Haryana 1995 CrLJ 2740; the court, defined the term defamation as: Defamation is the publication of a statement, which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him.

Although, the law of tort finds its roots in English law, it has over the course of time evolved certain fundamental principles on defamation which are still nascent in India and therefore not well defined. However, based on various judgements of the Indian courts, certain essential elements have developed for triggering a defamation action. These principles are regardless of whether an action for defamation is framed in libel (written defamation) or slander (spoken defamation):

1. that the words, pictures, gestures, etc, are defamatory. The standard to be applied to determine whether a statement is defamatory or not was specified in the case of Prof. Imtiaz Ahmad vs. Durdana Zamir (IA No.10367/2007) where the court had held, “a right-minded citizen of fair average intelligence, and not of a special class of persons whose values are not shared or approved by the fair minded members of that society further a statement causes anyone to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem, it is defamatory";
2. that a defence to say that the statement is not intended to be defamatory cannot stand; and
3. that there has to be a publication of the statement to a third party i.e. unless the statement is published, no action for defamation can lie in a court.

The main defences which are generally raised against defamation are that the statement made was the truth; the accused was bound by duty to provide the information; and that it was one’s opinion. However, under criminal law, it must also be proved that the imputation was made for the public good. Aside to the foregoing, certain privileges are given to statements (per se defamatory statements) made during parliamentary proceedings; judicial proceedings, military and naval proceedings and state legislative proceedings.

In India, the law of defamation is encapsulated in Section 499 of the Indian Penal Code, 1860 (IPC). Section 499 of IPC defines what would amount to defamation in relatively clear terms. This section also lays certain exceptions to the offence of defamation. Further, defamation is a non-cognizable and bailable offence and if an accused is convicted then it could lead to the imposition of harsh sanction of imprisonment of up to two (2) years, or a fine. Hence, criminal law on defamation acts as a strong deterrent to an erring person.

Defamation is a relatively new kind of tort. Not many defamation suits were filed in the country, until recently, and the only ones that were filed were from the upper strata of society, mainly against the media, claiming to salvage their reputation. However, after the media revolution in this country, and with people becoming more aware of their rights, the frequency of defamation suits have increased.

A notable facet of defamation actions in recent years is the quantum of damages awarded, which have not simply compensated the person defamed for their loss of reputation, but have also included a very sizeable amount of punitive damages. In this regard, we are all aware of the unprecedented Rs.100-crore defamation suit against a news channel Times Now which was filed by Justice P.B. Sawant, a former Supreme Court Judge, which was the latest example of punitive action in a season of media bashing. The news channel was carrying a story of a provident fund fraud case; inadvertently, the news channel showcased on September 10, 2008 in its news bulletin, the photograph of Justice P.B. Sawant as an accused instead of the real accused.

Further, with regards to the vicarious liability of the editor, printer and publisher the Delhi High Court in Vivek Goenka vs State (N.C.T. Of Delhi) & Anr [Crl. M.C. 4037/2005 and Crl. Rev. P. 637/2007 decided on: 04.03.2009] held that:

1. besides persons declared as Editor, Printer and Publisher of a newspaper, only such person could be prosecuted for an action of defamation against whom specific and clear allegations has been made in the complaint that either he was responsible for selection of the defamatory matter or had personal knowledge about the contents of the defamatory matter. In addition, it must also be averred in the complaint that such person had the intention to harm or knowledge or reason to believe that the imputation will harm the reputation of the complainant.
2. The Chairman or the Managing Director of the company owning a newspaper is neither the Editor, nor the Printer nor the Publisher and therefore no presumption could be drawn against holder of these offices even though they are, by reason of the offices held by them, in charge of, and responsible to, the company for the conduct of its business."

Experts had predicted that there would be a dramatic jump in online defamation cases following the birth of social networking platforms such as Facebook and Twitter. The number of libel cases brought up by people who claim to have been defamed online have more than doubled in a year, according to a new research by legal information provider Sweet and Maxwell’s Lawtel and Westlaw UK services.

If individuals are allowed to speak and publish whatever they want without substantiating it with an honest reason to believe, then there would be no harmony in society and there would be insecurity with regards to one’s reputation.The conflict of interest between an individual’s right to privacy, his reputation and media’s right of freedom of speech as guaranteed by the Indian Constitution will continue to exist, until the people exercising such rights do not understand the legal framework as envisaged by the Constitution and those who cross the boundaries of the fundamental privileges should not be let scot free. The laws as provided for and which have been defined over the period of time should try to set a balance between the freedoms guaranteed under the Constitution of India and the tort of defamation which is on an increase, be it frivolous or otherwise

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