Defamation is the publication of statement which reflects on a person’ 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. In simple term it means tarnishing somebody’s image by speaking or writing something damaging. There are two types of defamation:
1. Libel: written/published form of defamation
2. Slander: spoken/oral form of defamation
There are laws which deal with defamation. The basic idea of having a defamation law is to balance the private right to protect one's reputation with the public right to freedom of speech. It allows people to sue those who say or publish false and malicious comments.
Section 499 of the Indian Penal Code defines defamation as, ‘whoever, by words either spoken or intended to be read, or by signs or by visible, representations makes or publishes any imputation concerning any person intending to harm, or having reason to believe that such imputation will harm the reputation of such person, is said except in cases here in after expected, to defame that person.’
The section further explains what may amount to defamation:
1. To impute anything to a deceased person, if the imputation would harm the reputation of that person if living and is intended to be harmful to the feelings of his family or other near relatives;
2. To make an imputation concerning a company or an association or collection of persons as such;
3. To make an imputation in the form of an alternative or expressed ironically
4. But no imputation is said to harm 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 that character of that person in respect of his caste or his calling, or lowers the credit of that person or causes it to be believed that the body of that person is in a loathsome state or in a state generally consider as disgraceful’.
The section also talks about ten exceptions about what can’t be termed defamation:
First Exception: To impute anything which is true concerning any person, if it for the public good that the imputation should be made or published.
Second Exception: To express in good faith any opinion whatever regarding the conduct of a public servant in the discharge of this public functions.
Third Exception: To express in good faith any opinion regarding the conduct or character of any person who touches any public question.
Fourth Exception: To publish a substantially true report of the proceeding of a court of justice, or the result of any such proceedings.
Fifth Exception: To express in good faith any opinion whatever regarding the merits of any case, which has been decided by a court of justice or the conduct of any person as a party or witness or agent, in any such case.
Sixth Exception: To express in good faith any opinion whatever regarding the merits of any performance which an author has submitted to the judgment of the public.
Seventh Exception: If a person having any authority over another person, either conferred by law or arising out of any lawful contract to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
Eighth Exception: To prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation.
Ninth Exception: To make an imputation on the character of another person provided it is made in good faith for the protection of his or other's interests.
Tenth Exception: To convey a caution, intended for the good of a person to whom conveyed or for public good.
Chapter XXI, Section 500, 501, and 502 of the IPC deals with the punishment for defamation:
Section 500: Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years or with fine or with both.
Section 501: Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
Section 502: Whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to two years or with fine or with both.
Some famous defamation case of the immediate past:
The Gujarat government's ban of the controversial book by Mr Jaswant Singh Patel under Section 153A or 153B of IPC for an alleged attempt to defame Sardar.
In the Arushi-Hemraj murder case accused Dr Talwar’s initiated defamation proceedings against UP Police for accusing double murder without forensic evidence.
A defamation suit was filed against Forum for Saving Gandhi’s Heritage in New York by Indian National Overseas Congress for defaming Sonia and Rahul Gandhi during their visit there.
Defamation beyond IPC:
Defamation otherwise is also an offence. Section 5B, Cinematograph Act, 1952 prohibits exhibition of a film which is defamatory. Even freedom of the press does not permit to publish defamatory matter though there can’t be prior ban on publication. In R. Rajagopal vs State of Tamil Nadu the Supreme Court held that neither the Government nor the officials had any authority to impose a prior restraint upon publication of a material on the ground that such material was likely to be defamatory of them. It said that penal sanction is better than prior restraint.
Civil and Criminal Law of Defamation:
The Civil law relating to defamation is not codified in India. Civil action against defamation is based on the English Common Law subject to statuary exceptions. Criminal Law of defamation is contained in Sections 499-502 of the IPC.
The main difference between Civil & Criminal proceeding for defamation is pertaining to compensation. While the object of Civil action is to adequately compensate the person defamed for the loss of reputation by damages; the object of Criminal prosecution is to punish the offender by way of imprisonment of fine or both.
A malicious printing or writing or signs, diagrams, cartoons, pictures or visible expression (broadcast) tending to tarnish the reputation of a person so as to expose him/her to public hatred, contempt or ridicule comes under libel. This kind of a libel is usually categorized as civil defamation answerable in damages to the person against whom it is committed. If a libel published by a newspaper / media tends to incite a riot that would be a criminal defamation punishable by the State for the protection of public safety & public good. Publication of obscene, seditious or blasphemous words is punishable under the criminal law of defamation.
If defamation results in a criminal prosecution this is known as seditious libel. It is often against the Government, Constitution, Religion, etc. to promote ill-will and hostility between different classes. Seditious libel conforms to the offences of sedition under Section 124A & 153A of IPC. As it poses danger to the public peace, the truth of the statement constitutes no defence.
1. One can defend himself on the grounds that what he said is true... civil onus is on the plaintiff, criminal on the state.
2. If one has a duty to make a statement (eg. activists, social workers), you may be protected under the defence of qualified privilege. For e.g. a teacher making a comment about a student to the student’s parents about his/her bad behaviour. But the teacher won’t be protected if he comments about the student in the media. Well, if you are an MP you can speak under parliamentary privilege. In this case, the speech is protected by absolute privilege, which is a complete defence in Law.
3. You are expressing an opinion –
Note: Another way is, don’t be cowed down by intimidation, uphold truth while writing news stories and articles or while broadcasting news. Use all forms of reforms, legislature to ensure freedom of speech an expression, and also be careful not to misuse it and defame someone out of personal vendetta or prejudice. Call a spade a spade, but beware and aware of the law of defamation.
Defamation and Press:
Libel is one of the greatest dangers or threats to the publisher/broadcaster. If a publication/broadcaster violates the law of defamation, and defames a person, it may be subject to civil & criminal libel. Governments and their officials often want to make the law of defamation more stringent. They argue that even if the matter is brought before a court of law, the accused tenders an apology or escape with a nominal fine or light sentence (maximum punishment IPC 2 years).
On the other hand Press is of the view that the law of defamation often prevents fearless journalism and exposure of corrupt and scandalous officials. Their argument is that there is already too much misuse of criminal defamation by corporate houses and others to silence the critic and flog off free opinion. Most defendants in defamation law suits are newspapers or publishers or TV channels and most plaintiffs are corporations, business men, entertainers, and public figures.
The Press has been suggesting that the offenders be charged with only civil liability and not with criminal defamation. If it was of a criminal nature, a timely apology should relieve the offender. The press as whole has been demanding amendment of the law of defamation on the lines of the English Defamation Act 1952.
In UK, defamation is mainly a civil offence. The offence of defamatory libel lies in the tendency to provoke a breach of the peace unlike the IPC where defamation is a cognizable offence to the extent to which it causes pain in the person who is defamed