This article is written by Raj Jaiswal of 1st Semester of the Lloyd School of Law, Greater Noida, an intern under Legal Vidhiya
ABSTRACT
This article examines the concept of “Defamation” under tort law in our Indian constitution. India is a democratic nation, and in a democratic set-up free speech or freedom of speech should not only be a duty but it should be a necessity. Today, freedom of speech and expression is considered as a fundamental right under Article 19(1)(a), this right is not absolute and is subject to certain reasonable restrictions. Defamation refers to making false statement about an individual, government, group, or nation which cause an injury to the reputation of a person. Reputation of a person is considered to be his asset and any form of injury to this asset (reputation) needs to be justified.
Finally, this paper briefly explores the complexities of defamation under tort law and remedies/provisions available for the victim of defamation, such as damages for harm to reputation or apologies from the accused/defendant.
KEYWORDS
Libel, Slander, False Statement of Fact, Publication to a Third Party, Negligence or Absolute Malice, Defamation in Civil Law, Remedies, Judicial Role.
INTRODUCTION
Defamation is a legal term which refers to publication of a statement which reflects on a person’s reputation and which tends to lower a person in the estimation of right-thinking or can also be deemed as sane members of society generally, or, which tends to make him shun or avoid that person[1]. In the domain of civil law, defamation can be categorized into two primary forms libel (which refers to published or written statement) and slander (which involves spoken words). Understanding defamation is pivotal for individual and organization as it related with fundamental rights such freedom of speech and expression [(Article 19(1)(a)], Right to criticize and right to protect one’s reputation.
The conception of defamation is not only restricted to individual case but it extends beyond it, it challenges broader societal questions about the limits of free speech and the part of media in shaping perception of public. defamation law varies significantly across jurisdictions, influenced by cultural norms, morals and legal traditions. Whether a statement is defamatory or non-defamatory it generally depends upon how the right-thinking members of the society are likely to take it or interpret it. understanding these differences is essential for individuals dealing with defamation issues. Over the time, various jurisdictions have developed their own frameworks for addressing defamation claims are made in such a way that it often balances the competing interests of free expression and individual reputation. This is why in most of the cases the act of “Defamation” is treated as a tort (a wrongful act that leads to civil liability) rather than being treated as a criminal liability which is mentioned under “Section 354(1) which defines defamation” and “Section 354(2) which Describes the punishments for defamation” In the Bharatiya Nyaya Sanhita (BNS) of 2023.
DEFINATION AND ESSENTIALS FOR DEFAMATION
The definition of can be defined “Defamation” in International Journal of Information Movement[1]
“A defamatory statement is that one which has a tendency to injure the reputation of the person to whom it refers, which tends, that in so say, to lower his/her in the estimation of right-thinking or who are deemed to be sane or normal member of society generally and in particularly to cause him to be regarded with a feeling of hatred contempt ridicule fear, dislike or disesteem“.
Defamatory remark is a very subjective terminology for one-person certain remark can be defamatory, as according to him such remark could lower his reputation in society, while for one-person same remark could not be considered defamatory. It all depends on how one interprets such remark. If such cases arise in the court, then court takes decision based on how right-thinking members of the society are likely to take it.
Below are the essentials of or to constitute defamation following essentials are necessary[2]
- The statement must be false and defamatory- The words used must be false. In fact, truth is strong defense in case of defamation. It is essential that defamatory remark (made in any form either libel or slander) must be false and malicious. Also, it is necessary that the remark made to the plaintiff must be defamatory i.e. it should lower his reputation in society according to him.
- It must be published – Publication means publishing a particular item of news or information to a person, other than the person to whom it is addressed. Publication is an essential requirement because whether a published statement or remark tends to lower the reputation of public is decided by the standard of reasonable man.
- It must refer to the plaintiff – Getting the statement published is another essential ingredient in constituting defamation. Giving the publicity means to make the statement known to other persons than the person defamed. Any remark or derogatory statement which could be read by others can be claimed as publication.
One more thing to keep in mind is concept of “Innuendo”. It refers to double meaning remarks. It occasionally happens that a given statement or remark was not made in a defamatory sense and also it does not convey any defamatory remark in its original/natural meaning. But due some particular circumstance or situation plaintiff might consider them defamatory. Any reasonable man would not consider the same statement defamatory in the same situation. It is sometimes dependent upon the mental state of individual about how he/she may perceive such remarks at a particular point of time.
GENERAL DEFENCES TO DEFAMATION
It is the right of every person. The defense of defamation protects us from this defamation. Courts generally have to balance between fundamental right of free speech [Article 19(1)(a)] and freedom to live with reputation and dignity. There are many defenses in cases of defamation these defenses include-
- Truth – Truth is one the most crucial defense or justification in cases of defamation. In civil matters defense of truth is considered as an absolute defense. Hence, if the person making the derogatory remarks proves them to be true, he can escape liability. However, in case of criminal law merely proving a defamatory remark a truth is cannot be considered a valid defense under defamation.
- Fair and bona fide comment – The claim of fair and bona fide intention/comment in cases of civil defamation can be taken as a valid defense The keyword here is “Malicious intention”. Making fair and reasonable criticism without any malicious intention does not amount to defamation[2]. If any statement is made in good or bona fide intention even though such remark or commentary would lower the reputation of person in the society then also it can be considered as a valid defense under defamation.
- Matter commended upon must be of public interest– Public meetings, theaters, novels, text books, public institution and local authorities etc. can be considered as matters of public interest and any defamatory remarks or commentary made in these are not considered under defamation.
- Privileges– Sometimes law grants certain level of privileges to certain person in some particular situation. Immunity is granted by constitution from prosecution for defamation for such statements. For example, Members of parliament has an absolute privilege for any statements he/she makes during a parliamentary proceeding. Privileges can be considered of two types Absolute privilege and Qualified privilege.
REMEDISES AVAILABLE IN DEFAMATION CASES
As mentioned before Defamation is considered as both a civil and criminal wrong. Therefore, a person aggrieved by defamation can file a plaint in the civil against defamation as tort or can file a complaint under IPC. Section 500 of IPC with deals with the punishment for defamation says that-
“Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”[3]
Other remedies which are available in cases of defamation are:
- Apology – The person who makes a defamatory remark later on issues an apology to the aggrieved party then he can escape his liability of compensation. This scenario is only possible if the aggrieved accepts his apology.
- Damages– Compensatory damages are awarded to compensate the plaintiff for the harm caused by the defendant’s defamatory statements. The wrongdoer can simply pay the aggrieved the required amount in defamation cases. The amount demanded can vary depending upon the severity of the case.
- Injunction -It a judicial order restraining a person for non-performance of an action threatening, or compelling a person to carry out a certain act. The Court can issue an order that prohibits the defendant from the publication of a defamatory statement.
- Correction Order- Correction order, orders the defendant to publish the correction of the defamatory remark/statement. Correction orders are generally issued when the defendant has no defense against the plaintiff.
Civil defamation suits can lead to financial compensation, while criminal defamation can result in imprisonment or fines. Consulting a legal expert is crucial for navigating defamation claims.
KEY JUDICIAL DECISIONS
Several landmark cases have shaped defamatory laws in civil cases:
- Shreya Singhal v. Union of India– Two girls from Mumbai who had published a post on Facebook regarding demise of the Shiv Sena Leader Balasaheb Thackeray, which voiced against the shutdown in Mumbai on the demise of the Shiv Sena leader. These two girls were arrested of the charges under Section 66A of the Information Technology Act, 2000.[3] The Supreme Court ruled that Section 66A was unconstitutional as it violated the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution.
- D.P. Choudhary v. Manju Lata, (1997)- This case revolves around a defamatory news article published in the Dainik Navjyoti newspaper on December 18, 1977.The article falsely claimed that Manju Lata, a 17-year-old girl from a well-known family, had eloped with a boy named Kamlesh. This false report caused significant distress to Manju and her family. The Rajasthan High Court ruled in favor of Manju Lata, awarding her Rs. 10,000 in damages for the harm caused to her reputation.
- Rajindra Kishore Sahi vs Durga Sahi on (13 May, 1966)[4] – This case involved dispute between the two parties, leading to multiple civil proceedings. This case was between a practicing lawyer (Rajindra) and a tenant (Durga). This suite involved allegations made by Durga Sahi against Rajindra Sahi, which he claimed were false and caused damage to his reputation. The court dismissed Rajendra’s suit and gave decision in favor of Durga Sahi.
- Lachhman v. Pyarchand and Ors. (16 February, 1959)[4]– InRajasthan High Court a defamation suit was filed by Lachhman against Pyarchand. This case involved the concept of absolute privilege, it means that statement made was protected from defamation because it was made for self-protection in particular circumstances. The judgement showed the balance between freedom of speech and protecting individual reputation.
CONCLUSION
In conclusion, defamation under tort law serves as a crucial legal remedy for individuals as well as for organizations whose reputations have been unjustly harmed by false statements/remarks/comments. The essential elements of defamation—publication, falsity, harm, and fault—shows us the balance between protecting personal reputation and upholding freedom of speech mentioned under Article 19(1)(a). While the burden of proof typically lies with the plaintiff, the varying standards for public figures versus private individuals reflect the complexities of this area of law. As societal norms and communication methods evolve, particularly with the rise of social media, the legal landscape surrounding defamation continues to adapt as we can observe this in Shreya Singhal v. Union of India case. Ultimately, understanding the complexities of defamation is vital for both potential plaintiffs and defendants, as it highlights the importance of responsible communication in maintaining a just and equitable society in such a way that would not lower person’s reputation in front of others.
[1] M. S. RAMA RAO, LAW OF TORTS 35 (MS lawbooks).
[2] Manupatra, http://student.manupatra.com/Academic/Abk/Law-of-Torts/Chapter19.htm (last visited Oct.5, 2024)
[3] Devgan.in, https://devgan.in/ipc/section/500/ , (last visited Oct.6, 2024)
[4] Indian Kanoon, Lachhman vs Pyarchand And Ors. on 16 February, 1959 (indiankanoon.org) (last visited Oct.7, 2024)
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