DEFAMATION AND ITS DEFENSES BY- TEJASWINI SINGH

DEFAMATION

Defamation is the act of communicating false statements about a person that harms the reputation of that person.

“History of defamation can be traced in Roman law and German law. Abusive chants were capitally punishable in Roman. In early English and German law, insults were punished by cutting out the tongue. In the late 18th century, the only imputation of crime or social disease or casting aspersions on professional competence constituted slander in England. The enactment of the Slander of Women Act added imputation of unchastely illegal. French defamation laws were very severe. Conspicuous retraction of libellous matter in the newspaper was severely punishable and only truth is allowed as a defence when the publication is related to public persons. In Italy, defamation is criminally punishable and truth seldom excuses defamation.^[1]”

TYPES OF DEFAMATION

Defamation is an injury to a person’s reputation using a false statement projected as facts. There are two categorize of defamation:

LIBEL – A defamation that is in written form, it is addressed to the eyes. The defamatory statement is made in some permanent and visible form, such as writing, printing, pictures, and effigies. It is an actionable tort as well as a criminal offence. It is actionable per se (in itself) i.e., without proof of actual damage.

SLANDER–A defamation through a spoken form, it is addressed to the ears. The defamatory statement is made by spoken words or some other transitory form, whether visible or audible, such as gestures, hissing, or other things. It is a civil injury only and not a criminal offence except in certain cases. It is actionable only on proof of actual damage.

 

ELEMENTS OF DEFAMATION

While defamation needs to be a false statement, the claim on the person defamed should be false. A true statement in its entirety can be never used to create a liability for defamation but, private and personal information shared or published could give rise to other liabilities under a different law.

There are certain elements of defamation-

• The statement must be made.
• The statement must refer to the plaintiff.
• The statement must be defamatory.
• The intention of the wrongdoer
• The statement must be false.
• The statement must not be privileged.
• The statement must be published.
• The third party needs to believe the defamatory matter to be true.
• The statement must cause injury.

LAWS OF DEFAMATION IN INDIA

Defamation in India could be tried under both civil and criminal law. Defamation is an offence under both civil and criminal law.

UNDER THE CIVIL LAW

“In civil law, defamation is punishable under the Law of Torts by punishing in the form of damages to be awarded to the claimant.”^[2]The statements made need to be false and they must be made without the consent of the alleged defamed person. Monetary compensation can be claimed from the defendant for defamation.

There are certain requirements for a successful defamation suit. They are-

• “The presence of a defamatory statement is required. Defamatory content is one calculated to injure the reputation of a person or a class of persons by exposing them to hatred, contempt, or ridicule. The test of whether it damages reputation has to be calculated from the eyes of a common man and his comprehension of the matter.
• The statements must purport to a person or a class of persons. General statements like all politicians are corrupt are too broad and no specific politician can gain compensation for the same.
• It must be published either in oral or written form. Unless the content is made available to a third person, there can be no defamation. Where a letter is sent in a language unknown to the recipient, he needs a third person to read to it him. If any defaming statement is made in it, it will constitute defamation even if it was sent as a private letter, since the aid of a third person was needed to read it.”^[3]

UNDER THE CRIMINAL LAW

“It is nothing but defamation for which simple imprisonment may be awarded. Under a criminal suit, the intention to defame is necessary. The allegation should be made with malice intent to defame another or at least the knowledge that the publication is likely to defame another is essential. It has to be proved beyond reasonable doubt that the act was being done to lower the reputation of another.

• Section 499 of the Indian Penal Code, 1860 defines what is defamation and its exceptions. Words or signs imputed intending to harm or with the knowledge that such imputation will cause harm. It may amount to defamation if anything is imputed against a deceased person if such imputation would harm the reputation had the person been alive. The class of persons shall include companies or associations. It is no defamation unless the alleged defamatory statement either directly or indirectly lowers the moral or intellectual character or the respect of his caste or his calling in the estimation of others.
• Section 500 of the Code punishes defamation if it does not fall within the exceptions with simple imprisonment which may extend to two years, or fine, or both. The Indian Penal Code punishes printing or engraving matter known to be defamatory or sale of such printed or engraved substance containing defamatory matter about any person in the same manner of punishing defamation.”^[4]

EXCEPTION OF DEFAMATION

• “Attribution of any truth made for the public good. Truth is seldom a defence unless made for the public good.
• Any opinion made in good faith regarding the conduct of a public servant in the discharge of his public functions.
• Any opinion made in good faith respecting the conduct of any person which relates to a public question.
• Publication of true reports of the proceedings of the Courts or the result of the proceedings is not defamation.
• Any opinion made in good faith regarding the merits of any civil or criminal case decided by the Court of Justice, or the conduct of any person as a party, witness, or agent to that case and no further.
• Opinions made about the merits of any performance which its author has submitted to the judgment of the public, or about the author is not defamation if made in good faith.
• Censures passed by persons neither having authority over another either conferred by law or from a lawful contract in good faith is nor defamation. Censure is a formal statement of severe disapproval.
• The accusation of offence to any person having lawful authority over the alleged person in good faith is an exception to defamation. Complaints about servants to masters and children to parents are examples to the exception.
• Statements made about the character of character is not defamation if it is made to protect the interests of the person making it, or any other person, or for the public good.
• Cautions conveyed to one person against another are not defamation if it is intended for the good of the conveyed person, or any other, or public good.”^[5]

DEFENSES OF DEFAMATION

Truth If a statement is true, then this will form a complete defence. It should be noted that the burden of proof for showing that a statement is true rests with the defendant. The defendant does not have to show that every single characteristic of the statement made is true, merely that it is substantially true. An honest opinion will not be considered defamation.

It is a defence to publishing defamatory material if the publisher can prove that the: the material was an expression of their own, their employee or agent, or of another person other than their own, rather than a statement of fact.

• Opinion related to a matter of public interest.
• Opinion was based on material that is substantially true or privileged.
• The person defamed can overcome this defence by proving that the opinion was dishonest.
• The publisher did not believe the employee or agent honestly held the opinion.
• The publisher had reasonable grounds to believe another person did not hold the opinion at the time of publication.

Fair Report of Proceedings of Public Concern

Publishers can also make out a defence if they can prove the material was or was a part of, and report on proceedings publicly held in a parliament, court, tribunal, government body, or before the Ombudsman.

Publication of Public Documents

Proof that defamatory material was part of a public document (or copy thereof) or a fair summary/extract from a public document is also one of the Defenses to defamation.

A public document is one of the following:

• The report, paper, or record of a parliamentary body.
• Judgment, order, or determination of a court or tribunal.
• Report or document under the law of any country which has been authorized to be published or is required by a parliamentary body.
• Document issued by the government of a country.
• Record open to inspection by the public.
• A document that is issued, kept, or published in another Australian jurisdiction and treated as a public document.
• Document relating to Special Commissions of Inquiry or Civil and Administrative Tribunal.

DEFENSE OF PRIVILEGE

Privilege is a complete defence for the publisher. The privilege may be obtained through the consent of the person who may be defamed by the material. However, there also are privileges created by law, which are based on a policy that holds that good resulting from allowing publishing of potentially defamatory material outweighs the harm that may result. Absolute privilege, also called immunity, is granted to a person because his position or status requires that he be able to act in that position without fear of civil action.

The people who hold absolute privilege are-

• Parties to judicial proceedings.
• Executive and administrative officer.
• Witnesses

CONCLUSION

The right to reputation, which is recognized as a dimension of the right to privacy, a fundamental right under Article 21 of the Constitution of India, is what is protected by the law of defamation. Reputation is how a person is perceived by others, i.e. the opinion of the community against a person. The Supreme Court in a landmark judgment held that an individual has a right to protect his reputation from being unfairly harmed and such protection of reputation needs to exist not only against falsehood but also certain truths. Intention to cause harm to the reputation of a person is sine qua non of the offence of defamation. Reputation is a cherished constituent of like and is not restricted in time. The importance of reputation can be traced back to the Bhagwat Gita, Holy Quran and Holy Bible. While the interpretation differs and is stated in different contexts, yet the importance of reputation has been stressed upon.

 

^[1]RashmiSenthilkumar, Defamation Law in India, Legal service India.

^[2]RashmiSenthilkumar, Defamation Law in India, Legal service India.

^[3]RashmiSenthilkumar, Defamation Law in India, Legal service India.

^[4]RashmiSenthilkumar, Defamation Law in India, Legal service India.

^[5]RashmiSenthilkumar, Defamation Law in India, Legal service India.