Lawwatch

Defamation Law & how to approach it

What is meant by defamation?

Defamation essentially is making or publishing any Imputation to harm the reputation of a person or body. It is a dishonest false statement to discredit or put disrepute a person or body.

In examining the issue of defamation, a person’s character is considered quite different from his reputation. Character is what a man is, but reputation is what he is supposed to be in the eyes of the people or what people say he is. The former depends on the actual attributes he possesses but the latter rests on the attributes which others believe him to be in possession of. In short, a man’s opinion of himself cannot be called his reputation.

Defamation, according to IPC, is making or publishing any imputation concerning any person to harm the reputation of such [person. It can be in written, oral, sign, or graphical form. It must be made knowingly and believing that it will harm the reputation of the person against whom it is made.

Essential ingredients of defamation

The essential ingredients of defamation are:

  • the words must be defamatory

  • the words must refer to the aggrieved party

  • the words must be maliciously made or published

Defamation is a civil wrong & a criminal offence

In Indian law, defamation is both a civil wrong and a criminal offence.

In civil side one can claim damages for defamation. On the other hand the aggrieved person can file a criminal complaint against defamation in a Magistrate Court. Police cannot suo moto take criminal case in the matter of defamation. An aggrieved party should file a criminal complaint. The term aggrieved person has a wider connotation than the person defamed.

Defamation in Criminal Law

The Sections 499 and 502 of the Indian Penal Code, 1860 (IPC), deal with the offence of defamation. The Section 499 is the definition and the Section 500 provides for punishment.

The Section 199 of the Code of Criminal Procedure, 1973 (CrPC) prescribes the procedure of prosecution for defamation.

What others amount to defamation?

Defamation of a deceased person would amount to the offence of defamation if it would harm if he were alive, and if it hurts his living family and relatives.

Defamation of a company, association or collection of persons is also an offence.

Ironic or alternative comments indicating a particular meaning though not direct will also come under defamation.

An imputation will harm a person’s reputation if it in the estimation of others lowers the moral or intellectual character of that person, caste character of him, or his credit, or belief regarding the disgraceful state of his body.

What do not constitute defamation?

Indian Penal code provides ten exceptions which do not constitute defamation. They are as follows:

  1. Making or publishes anything that is true for the public good is not defamation. But it is made for public good is to be proved as a fact by its maker himself.
  2. Making or publishing an opinion about the conduct of a public servant in his public functioning is not defamation.
  3. Expressing an opinion concerning a public issue in good faith is not defamation.
  4. Publishing a true court proceeding is not defamation.
  5. Expressing any opinion of the merit of a decided case or the conduct of the parties or witnesses to the case is not defamation when it is made in good faith.
  6. Expressing any opinion of merits of any performance submitted to the public judgment is not defamation, if it is confined to the performance.
  7. Passing a censure on the conduct of anyone by a lawful authority in regard to his lawful conduct is not defamation.
  8. Accusing anyone in good faith to his authority is not defamation.
  9. Making an imputation in good faith for protecting his or other’s interest in good faith is not defamation.
  10. Conveying a caution in good faith to a person about another person for the good of the former or some other or public good, is not defamation.

Who can file a case against defamation?

The Section 199 of the CrPC says no court can take cognizance of an offence of defamation except by a complaint made by some person aggrieved by the offence. That means only an aggrieved person can sustain a complaint on defamation in a criminal court.

Supreme Court says a person aggrieved means a person who is injured or one who is adversely affected in a legal sense. An aggrieved person need not be a person defamed. The term has a wider connotation than the person defamed.

Court of Session can take cognizance in some cases

If defamation is against a person functioning as the President of India, Vice President of India, Governor of a State, Administrator of a Union Territory, a Minister of the Union or the State, or a public servant in respect of his conduct in the discharge of his public functions, a Court of Session can take cognizance of a case of defamation against them without being committed to it by a Magistrate but on a complaint in writing by the Public Prosecutor.

The complaint shall set forth the facts which constitute the alleged offence, the nature of the offence and other particulars of the persons committed the offence including the address for sending the notice.

The Public Prosecutor should take the previous sanction of the State or Central government, as the case may be, before filing the complaint. The complaint should be filed within six months from the date of offence.

Punishment for defamation

Punishment for defamation is simple imprisonment for a term extendable up to two years, or with fine, or both.

The person printing or selling a matter knowing to be defamatory is also punishable for a term extendable up to 2 years or with a fine or with both.

Defamation in civil law

In civil law, the legal wrong of defamation falls under the law of torts.

A tort is a civil wrong in which the civil court can impose punishment in the form of damages to the claimant when a suit is filed. The right to enjoyment of good reputation is an indispensable privilege necessary to every person.

In civil suit for defamation, the plaintiff can seek general damages for loss of reputation and special damages for specific economic loss if some economic loss caused on account of such defamation. The person, whose reputation has been harmed by any imputation of someone, can file a suit against the person for claiming both the damages suffered on account of the defamation. The court will try the suit and when the court is convinced that the person deserves reputation and the imputation lowered his reputation, then the court will allow damages.

The civil law considers that defamation lowers a person’s reputation, which is his inalienable asset, in the eyes of others. Reputation means what a person is thought of by others. It is an element of public opinion in regard to that person. Such reputation refers to the external estimation of him in the eyes of others and not his internal character. Every person has a right to remain in reputation or high esteem in the opinion of others. Anyone making any false statement to discredit his reputation is defamation.

In civil law defamation has two forms: one is libel and the other is slander. When anything is printed or recorded in visual form such defamation is called libel. If defamation is in oral or vocal form it is called slander. Both libel and slander are means to defamation. Both in libel and in slander, the statement should be communicated to a person other than the person defamed.

Defamation of a class is not generally actionable. When the words complained of reflect on a body or class of person such as lawyers, clergymen etc then no particular member of the body can take any action.

Practical examples to clarify what is defamation

Sending defamatory matter to the person by registered post is not defamatory so long as the contents are not revealed to a third person by the maker. But sending the words on a post card is therefore publication.

Advocates as a class are in capable of being defamed when it is not a small determinate class. When somebody speaks against advocates in general, one advocate cannot file a defamation case against the maker of the statement because the general statement does not defame the individual advocate. The defamation should be “concerning any person” whose identity can be established. When a man writes that all lawyers are thieves then no individual lawyer can sue the person for defamation unless there was something to point to that individual.

Accusing a person in front of the public gathering of having illicit relation with a lady is not a mere scurrilous abuse but a punishable crime.

An innuendo showing interferences of two kinds cannot be an offence for punishment for defamation as it does not defame any particular person. If an innuendo is distinct from its ordinary meaning due to facts known to the recipients then it can be treated as defamatory.

A malignant slander addressed to a single hearer deserves severe punishment than a satire runs into several editions. A person who infuses into the mind of a husband any suspicion of the fidelity of a virtuous wife is a defamer and he deserves punishment.

In publishing any work, the compositor or owner of the press does not make or publishes the imputation and therefore the editor responsible for the content alone is guilty of the defamatory statement. But if the editor has no ill will and he publishes anything without knowledge that it was defamatory then on apology he may escape from the guilt of defamation. But the Editor of a Tele Vision Channel is not responsible for what an anchor says on the spot unless it is shown that there is mens rea on the part of the Editor.

If a person acts on a gossip by another against a person without proper care he cannot escape from the consequence of such defamation. The person saying that he was acting on the information given by another is also no justification unless he shows that he acted with proper care and circumspection with the source.

Describing a woman that she has a paramour wherever she goes is defamatory. Making an allegation that a lady was not a virgin at the time of her marriage is defamatory.

Filing of a false case in a court with the intent to injure someone under Section 211 IPC cannot be punished for a distinct offence of defamation under Section 500 IPC but only for violation of the sanctity of the process or committing fraud on the court. Both Sections do not go together.