अवाच्यवादांश्च बहून्वदिष्यन्ति तवाहिता: | निन्दन्तस्तव सामर्थ्यं ततो दु:खतरं नु किम् || Your enemies will defame and humiliate you with unkind words, disparaging your might. Alas, what could be more painful than that? Bhagavad Gita Chapter 2, verse 36.
The right to reputation is part of right to personal security. Losing a limb and reputation are placed on equal footing. The Right to reputation is central to right to lead a life in dignity and when someone’s reputation is tarnished or damaged the injured person is said to be defamed and a wrong/crime is committed. This article circumferences the concept of defamation, its presence in both civil wrong and crime, its remedies, exceptions and the reasonable restriction of defamation the right to free speech.
Defamation is an action by words either spoken or written by visible representation which damages the good reputation of others. In Blackstone’s commentaries of law of England, it has been stated that the right of personal security consists in a person’s legal and uninterrupted enjoyment of life, his limbs, his health and his reputation. The idea expressed is that a man’s reputation is part of himself, as his body and limbs are, and management is part of right to enjoy the good opinion of others and is capable of growth and has real existence as arms or legs. In Subramanian Swamy v. Union of India, the apex court held that the reputation of an individual is a basic element under Article 21 of the Constitution of India.
In Kiran Bedi vs Committee of Inquiry 1988 it was observed that detraction from a man’s reputation is an injury to his personality and thus injury to reputation is an personal injury, that is an injury to an absolute personal right.
Defamation vs Right to free speech
Freedom of speech flows from Freedom of speech and expression under article 19(1) which guarantees to every citizen of India the freedom of speech and expression. But sometimes one man’s right to free speech can violate other man’s right to reputation. This contradiction is been dealt with by our judiciary which at many times observed that the freedom of speech and expression under article 19(1) is not absolute and is reasonably restricted by certain grounds under article 19(2) of the Indian constitution.
In Subramanian Swamy v. Union Of India it was held that the right to free speech cannot mean that a citizen can defame other, protection of reputation is a Fundamental and a Human right. Thus, defamation is constitutional and is protected by reasonable restriction to freedom of speech and expression under article 19(2).
Defamation : Civil wrong and Crime
A crime is essentially a wrong done to public or society at large, while the civil wrong or a tort is wrong done to private individual. In case of crime, the remedy is prosecution by state, though such prosecution may be started at the stance of injured while, in civil wrong state has no concern. In India Defamation is both a crime and a civil wrong. The distinction between defamation as a crime and as a civil wrong consists in nature of sanction that is attached to each form of liability. Criminal Defamation is statutorily defined as crime under section 499 of Indian Penal Code 1860 and the sanction is punishment while, defamation as a tort or civil wrong is common law action with sanction in form of compensations. The injured person may file civil suit against the person damaging the reputation and can also initiate criminal proceedings.
Essentials of Defamation
In Subramanian Swamy v. Union of India 2016 it was observed that a defamatory statement is one which has a tendency to injure the reputation of person to whom it refers, that is to say, to lower him in estimation of right thinking persons of society generally and in particularly cause him to be regarded with feelings of hatred, contempt, ridicule, fear or dislike. The statement is to judged by standard of an ordinary right thinking member of society.
The test is an objective one, and it is no defense to say that the statement was not intended to be defamatory or uttered as joke. For an example, book or movie reviewers are subjective and statement by them about how bad a book or a movie is do not contain the essentials of defamation. Someone who already had a terrible reputation is most likely won’t collect much in defamation suit. An imputation is defamatory if it satisfies following conditions,
- The statement must be understood by right thinking or reasonable minded person,
- There must be publication of statement, that is, it must be communicated to persons other that the person making the imputation and the person the statement was about,
- The statement must be false to be a civil defamation,
- The person making imputations should have the intention, or the knowledge that such imputations may harm others reputation in criminal defamation.
- The plaintiff must prove as to how the statement was or would be injurious to him.
Let us read Section 499 of Indian Penal Code to know the ingredients defamation.
Whoever, by words either spoken or intended to be read, or sign or by visible representation, makes or publishes any imputations concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person is said, except in cases hereinafter excepted, to defame that person.
Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.—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 the character of that person in respect of his caste or of 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 considered as disgraceful.
- Imputations of truth which public good requires to be made or published. It is not defamation to impute anything which is true, if it be for the pubic good. In criminal defamation imputation of truth should be supported by public good where as in civil defamation the imputation of truth is in itself a complete exception.
- It is not defamation to express in good faith any opinion whatever respecting the conduct of public servant in discharge of public functions. Every citizen has legal right to make fair comments on the public men in the interest of public. Nevertheless, such statements must not be made with malice.
- It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.
- It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.
- It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
- It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further. For an example an actor or singer who appears on a public stage, submits his acting or singing to the judgment of the public.
- It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
- It is not defamation 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.
- It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.
- It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.
Libel and Slander
Defamation may be committed in two ways viz. by speech and by writing , the English common law describes the former as Slander and the latter as Libel.
In Rohini Singh v. State of Gujrat 2018 it was observed that a written defamation is libel and spoken defamation is Slander under common law. Slander may be result of a sudden provocation uttered in heat of moment, while libel implies greater deliberation and raises a suggestion of malice. Libel is likely to cause more harm to person that slander as there is a strong tendency everywhere, on part of most people to believe anything they see in print. Under common law distinction is made between the two types of defamation in various aspects, but India no such distinction has been made, and both are criminal and civil wrong.
Following are the possible defenses available against defamation,
- Justification by truth-
Truth of the imputations made is a complete defense in civil defamation. In criminal defamation even truth of the imputation does not permit a justification, it should be added with public good.
It cannot be stated that because the accused believes that he is publishing what is true, is only defense in point of law. Only truth in bona fide belief might, in such a case have some bearing on quantum of damages in civil action and perhaps also on question of sentence in criminal prosecution, but other wise it is irrelevant.
- Fair Comment
A fair and bona fide comment on mater of public interest is not defamation. The doctrine of fair comment is based on hypothesis that publication in question is one which is true in fact, and is not made to satisfy personal vendetta. In case of K.S.Sundaram vs S.Viswanathan , 2012 it was held that respondents are required to prove that such allegations of facts are true and it is not sufficient for him to plead that they in bona fide believed it to be true. The distinction between comment and allegation of facts must always be borne in mind in determining that plea of fair comment.
- Privilege Statements
Under some circumstances one cannot sue other for defamation even if they make a false statement. lawmakers have decided that in these and other situations, statements are privileged. Law makers enjoy Absolute Privilege in free speech made in any legislative chamber or in official matters even if it is defamatory.
In Adam v. Ward 1917, Lord Atkinson explained Qualified Privilege and stated that privileged occasion is, in reference to Qualified privilege, an occasion where the person who makes a communication has an interest or duty, legal, social, or moral, to make it to person to whom it is made, and the person to whom it so made has a corresponding interest or duty to receive it. For an example, members of board making dissent note for removal of any employee; any imputation to the employee even if is defamatory is not actionable and is protected by qualified privilege.
Some of the remedies available to the injured person, from any person against whom a civil case or a criminal proceedings initiated are :
- At common law, damages for defamation are purely compensatory. There is no reason for importing concept of exemplary or punitive damages except in case where plaintiff is injured by oppressive and unconstitutional action by executive or servant of government and where defendants conduct has been calculated by him to make profit which may well exceed the compensation payable to plaintiff.
- Where there might be a series of defamatory statement being made, court nay order for prohibitory injunction which restraints the statement from being published and Mandatory injunction where defendant is asked to take down the previous statements. Court can also order an interim injunction during the trial of an action to prevent anticipated wrong, but in doing so, courts will have to think reasonably that the the imputations are not true.
- In criminal defamation, whoever defames another shall be liable for simple imprisonment for a term which may exceed to two years, or with fine or with both under section 500 of Indian Penal Code 1860.
Reputation is an assent to every person and any damage to it shall be legally dealt with. The criminal defamation is non cognizable offence which means no F.I.R can be filed nor can any direction be issued under section 156(3) of code of criminal procedure . It is compoundable by the person defamed with the permission of court. The criminal proceedings are meant to be deterrent to offense, while the civil action is to compensate the damage suffered by the acts of defendant.