Overview: Defamation laws in India

A person needs to protect his reputation, honor, integrity and character as much as he needs the right of property, health, personal liberty and a number of other privileges. The Hon’ble Supreme Court in Deepak Balraj Bajaj V. State of Maharashtra went to the extent of holding that reputation of a person was part and parcel of his right to life guaranteed under Art 19 of the Constitution of India. In the judgement while citing British Judgment, Justice Katju said:-

“A man’s liberty is regarded highly by the law of England that it is not to be hindered or prevented except on surest grounds.”

The Indian Penal Code (IPC, 1860) has dealt with this matter in Chapter XXI under Sec 499 – Sec 502.

Sec 499 of the code states as to what act may amount to defamation. Sec 500 prescribes punishment in such case. Sec 501 and 502 punishes the act of printing or engraving matter known to be defamatory.

Defamation as defined under Sec 499 is injury to the reputation of a person. If a person injures the reputation of another he does so at his own risk as in the case of interference with the property. A man’s reputation is his property and if possible more valuable than other property.

Under Indian Law, there are two types of Defamation i.e. Civil and Criminal Defamation. In Civil Defamation damages are available as a remedy to the defamed person. On the contrary in Criminal Defamation, the defamed person can get a criminal case against the person who defames him.

Essentials:

1.The statement must be defamatory.

2.The said statement must refer to the plaintiff.

3.The statement must be published.

Defamatory statement is one which tends to injure the reputation of the plaintiff. Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally or which tends to make them shun or avoid that person. An imputation which exposes one to disgrace and humiliation ridicule or contempt is defamatory. It is in relation to society. It may be oral, picturisation, publication etc.

It is not necessary that the imputation be in respect of entire communication or all of his associates. The essence of defamation is injury to a person’s character or reputation.

Mere hasty expression spoken in anger or vulgar abuse to which no hearer would attribute any set purpose to injure character would not be actionable. Words which merely injure the feelings or cause annoyance but which in no way reflect on character or reputation or tend to cause one to be shunned or avoided are not libellous. If however the insulting words are also likely to cause ridicule and humiliation they are actionable

A statement may be prima facie defamatory and that is so when its natural and obvious meaning leads to that conclusion. Sometimes the statement may prima facie be innocent but because of some latent or secondary meaning it may be considered to be defamatory like the statement that a lady has given birth to a child is defamatory when the lady is unmarried.

When the words are considered to be defamatory by the persons to whom the statement is published there is defamation even though the person making the statement believed it to be innocent. It is immaterial that the defendants did not know of the facts because of which a statement otherwise innocent is considered to be defamatory.

The statement must refer to the plaintiff it is immaterial that the defendant did not intend to defame the plaintiff. If the person to whom the statement was published could reasonably infer that the statement referred to the plaintiff, the defendant is nevertheless liable.

If the libel speaks of a person by description without mentioning the name in order to establish a right of action, the plaintiff must prove to the satisfaction of the court that the ordinary readers of the paper who knew him would have understood that it referred to him.

DEFENCES

1. Justification or truth
2. Fair comment
3. Privilege which maybe either absolute or qualified

• Truth

In civil, truth of the defamatory matter is a complete defence. Under criminal law merely proving that the statement was true is no defence. Exceptions are provided in section 499 IPC besides being true it is for public good also. The reason for the defence is that the law will not permit a man to recover damages in respect of any injury to a character which he either does not or ought not to possess. The defence is available even though the publication is made maliciously if the statement is substantially true but incorrect in respect of certain minor particulars the defence will still be available.

• Fair comment

Essentials of Fair Comment:-

(1) it must be comment, an expression of opinion rather than assertion of fact

(2) the comment must be fair and

(3) the matter commented upon must be of public interest.

Comment means expression of opinion on certain facts. It should be distinguished from making a statement of fact. A fair comment is a defence by itself whereas if it is a statement of fact that can be excused only if justification or privilege is proved regarding that. Whether a statement is a fact or a comment on certain facts depends on the language used or the context in which that is stated.

The comment cannot be fair when it is based upon untrue facts. A comment based upon invented and untrue facts is not fair.

Whether the comment is fair or not depends upon whether the defendant honestly held that particular opinion. It is not the opinion of the court as to the fairness of the comment but the opinion of the commentator which is material.

• Privilege

There are certain occasions when the law recognizes that the right of free speech outweighs the plaintiff’s right to reputation: the law treats such occasions to be privileged and a defamatory statement made on such occasions is not actionable.

[Frequently Asked Questions (FAQ)]

Q. Is communication of Defamation Statement required?

A. Yes, for applying of charges of Defamation, the defamatory statement must be communicated to someone else also.

{The author, Kanav Gupta is a Third-year B.A.L.L.B(H) student at Vivekananda Institute of Professional Studies, GGSIPU, Delhi }

[1] Criminal Law Cases and Material By KD Gaur

[2] Judicial Coaching Notes of Law Curators- A paramount Judicial Coaching Institute