Defamation: A Civil and Criminal Remedy (Law of Torts)

Jivesh Jha 

Dehradun 

Abstract:

Amid round sarcasm being cornered in a fresh bid to debase someone’s reputation, the defamation laws get attracted. The word ‘Defamation’ is an injury to someone’s reputation. In a snub with recklessness attitude-- while making a statement either in slander or libel form—constitutes defamation. To succeed a defamation case, the words must be defamatory and untrue targeted to the plaintiff and the said words must be published. The either laws—civil as well as criminal—have envisaged provisions to deal with defamatory offenses. Moreover, under civil suit, the defendant needs to reimburse damages in monetary terms while in criminal case the defendant might be sentenced to jail imprisonment. Subsequently, one’s property has nothing to with right to reputation—the law provisions that the elite and non-elite both carry equal weight in terms of right to reputation. Further, one’s might has also nothing to do with right to reputation—a powerful and non-powerful both person would have to face legal slap when proven guilty of defamatory offense. Similarly, rapid growth of social media outlets have posed a serious concern before the concerned sections—how to deal with defamatory words that is easily being published on social sites. In fact, it has become easier than ever to pass negative sarcasm against anyone via social sites just to devastate someone’s reputation at large scale. The double-edged sword rains further when the educated people also not hesitate to pass sarcasm against second party while they go crazy. So, to limit defamation, people from all walks of life show serious concern over it. However, though to envisage a society having no defamatory offenses is a day dream.

Acknowledgement:

I would like to express my profound gratitude to my respected Teacher and Supervisor of this mini-project Mrs Pallavi   Gusain, for her scholarly and insightful supervision, without which the accomplishment of the present mini-research work would have been impossible. I would like to thank my respected teacher for her intuitive suggestions, and regular lectures.

It would be a gross-injustice if I fail to remember my four-year Bachelors’ study in Nepal and the very teachers who made me capable to join this LLB program here in Dehradun. I pay a strong appreciation to my teachers who taught in my graduation study—without their blessings my entire life would go in vain.

Similarly, my best friend Naveen Chaudhary, and other counterparts like Nitee Rawat, Preeti Rawat, Priyanka, Pooja, Preeti and among others have always stood by my side and helped me in many grounds. So, I am equally thankful to them.   

My deep thanks go to entire teachers—especially Dr Jageshwor singh, Dr Mohit Negi, Mrs Pallavi  Gusain, Dr sharafat Ali—of Siddhartha Law College whose standing ovation lectures mean a lot to me when it comes to attain some legal insights and think for the would-be legitimate-course that would shape my life in near future.

Subsequently, I would also like to pay gratitude to the –google guru and Dr RK Bangia’s book on Law of Torts—for helping to collect the data. Without google’s help, I would not be capable to draft this project.

Once again I would like to thank my teacher—who never came down heavily notwithstanding I put some nonsense questions during lecture period--for her motivational lectures and regular classes. It would be an uphill task for me to complete this project had I not attended the classes regularly. Secondly, I firmly assert that I love literature and philosophy-type subjects.  I feel ecstasy in reading the novels as they offer moving stories. For me, the cases in Law of Torts are similar to novels as it also provided me lots of moving stories. So, tons of thanks go to my respected teacher for motivating me and holding the classes in a regular animation. 

Finally, I would like to remember my Parents and almighty without whose blessings nothing would have been possible.   

Introduction:

The scholars and legal pundits are not at odds while defining the term defamation. According acclaimed commentator Dr RK Bangia, defamation is injury to the reputation of a person. However, the veteran scholars Winfield, Salmond, and among others also seem championing the same notion.

Notwithstanding the different authors put effort to herald new dimensions in defamation, they sang a similar tune that defamation harms one’s reputation at large. Some of scholars like Salmond advocates that the defamatory statements not only injure the reputation of the plaintiff but also pose a serious concern over lowering his reputation among right thinking members of his society. So, an attack on reputation harms the aggrieved at large.   

  

“Defamation—also calumny, vilification, and traducement—is the communication of a false statement that harms the reputation of an individual, business, product, group, government, religion, or nation. Most jurisdictions allow legal action to deter various kinds of defamation and retaliate against groundless criticism. It is usually regarded as irrational unprovoked criticism which has little or no factual basis and can be compared to hate speech, which can also be taken to encompass discrimination against a particular organization, individual, nation, corporation or other political, social, cultural or commercial entity which has often but not always been entrenched in the practitioner by old prejudices and xenophobia.[1]

The attempt to defame one could be capitalized through two mediums—‘Slander and Libel.’ The veteran scholar Dr R.K Bangia observes that slander is the publication of defamatory statements in a transient form. Furthermore, it may be spoken by words or gestures. However, “Libel is representation made in some permanent form, e.g. writing, printing, picture, effigy or statue.” (Bangia 2013).

On the other hand, under English law, only libel has been recognized as a criminal offense, slander is no offense there. However, the draftsmanship of Indian law has forwarded a contrary view. The Indian Criminal law does not make any distinction between libel and slander. Both libel and slander are criminal offenses under section 499 of Indian Penal Code (IPC). 

Bangia further adds that in a cinema films or visual media productions, not only the photographic part of it is considered to be libel but also the speech which synchronizes with it is also a libel. In a similar tune, the Defamation Act 1952, section 1 provides that broadcasting of words by means of wireless telegraphy shall be treated as equivalent to publication in permanent form. Similarly, in yet another significant gesture, Bangia went on to add that libel is addressed to eye while slander is to the ears (ibid).

While discussing about the nature of offence—in case of slander and libel—there comes two noteworthy distinctions between English law and Indian law. “Under Criminal law, only libel has been recognized as an offence. Slander is no offence,” (ibid). However, the position is different in Indian law. “Both libel and slander is criminal offences under section 499 of Indian Penal Code (IPC).”

On a separate context, the legal system ensures an environment to every person a right not to be debased of reputation unwarrantedly at the hands of other. “Thus, it protects a person’s reputation by making defamation an offence both under civil and criminal law. Civil Defamation is dealt with under the Law of Torts (which is comprised of judicial precedent) whereas Criminal Defamation is an offence under Section 499 of the Indian Penal Code.[2]” 

The scholars and legal Pundits are of the view that terming defamation an offence offers right to a member of the society to protect his reputation. “Under Civil law, the remedy is generally damages for the harm caused whereas under Criminal Law the offence could lead to imprisonment of the offender.” (ibid).

In the meantime, the project author firmly believes that defamation is an offence at large that could ruin one from down to the last hair of head.

The project is mainly divided in to three sections. First part would deal with introduction , subsequent part would deal with defamation and the leading cases carried under it and finally the paper would give a conclusion. While the defamation is considered to be an apparent attack on someone’s reputation attracting civil and criminal laws, the present paper may not provide a complete picture to such a diverse topic. However, the author has tried his best to elaborate the defamation and how the legal systems are being capable to tackle with such types of offenses.

In the interim, the project would also shed light on the differences between civil and criminal laws envisaged for defamation. Likewise, the project also tries to seek to what extent media is engaged in defamation activities and whether the property one is having has any significant impact on right to reputation or not. In general whether someone’s financial status provides him a character certificate or not. Similarly, one’s reputation has nothing to do with his financial condition—even have’s and have’s not both holds equal weight in terms of right to reputation. So, financial soundness is not definer of reality anymore—at least in the case reputation.      

Whether defamation law has something do with financial status or not:

In general, an elite and poor hold equal weight in terms of reputation. For every human being his reputation is of pride and holds much value. Moreover, “If a person injures the reputation of another, he does at his own risk, as in the case of an interference with the property. A man’s reputation is his property, and if possible, more valuable, than other property. ”[3]  However, in yet another landmark ruling by the Jammu & Kashmir High Court in the case of Mustaq Ali Mir v. Akash Amin Bhatta (AIR 2010), it was held that right to reputation is irrespective of property someone is having with. The court further clarified that someone’s right to reputation has nothing to do with his financial status.

On a different occasion, right to reputation is a paramount thing for an individual. It has nothing to do with someone’s assets. One’s richness or poorness does not signify how reputed that person is and subsequently his reputation does not get momentum with his financial status. Eventually, for every social being, reputation means a lot. In Asian society, it is often said that “ईज्जत के लिए  हम सब कुछ कर सक्ते हैं,” which means that for maintaining stature,  one could do anything till his last breath. 

Elements of a Defamation Lawsuit: 

Defamation law is attracted as soon the defendant, on whom the charges are framed, crosses the limit that one should maintain in a civilized society. However, there always leaves ground for the aggrieved party to get some sorts of remedy from defendant. Nevertheless, it has always been a hot-topic for discussion whether the remedy would untie defamatory acts or would it offer a conducive ground for the aggrieved to attain the same status, which he was supposed to have in the society earlier? No, I don’t think like that. A section of society may raise eye-brows against one who has been defamed—for no good reason-- at the hands of defendant. Nonetheless, after one gets convicted of his offence, the society at large finds him in dearly condition and the aggrieved is likely to get sympathy from various quarters.

A veteran jurist Winfield advocates that defamation is publication of statements which tends to lower a person in the estimation of the right thinking members of society, generally or which made them avoid that person. In general, alma-mater is of the view that the defamation not only causes injury to the aggrieved, it also degrades his family members as well—more or less. 

On a different note, in order constitute defamation and file a lawsuit, the scholars and legal pundits opine that one must show these items: 

1.       Someone made a false statement targeting the plaintiff;

2.       The statement was published;

3.       The statement caused injury to the plaintiff;

4.       The statement was not made at the hands of a privileged category.

Furthermore, “A ‘statement’ needs to be spoken, written, or otherwise expressed in some manner. Because the spoken word often fades more quickly from memory, slander is often considered less harmful than libel. For a statement to be published, a third party must have seen, heard or read the defamatory statement. A third party is someone apart from the person making the statement and the subject of the statement. Unlike the traditional meaning of the word ‘published,’ a defamatory statement does not need to be printed in a book. Rather, if the statement is heard over the television or seen scrawled on someone's door, it is considered to be published.[4]”

To succeed in a defamation lawsuit, the statement must be shown to have caused injury to the subject of the statement. This means that the statement must have hurt the reputation of the subject of the statement. As an example, a statement has caused injury if the subject of the statement lost work as a result of the statement (ibid).Defamation law will only consider statements defamatory if they are, in fact, false. A true statement, no matter how harmful it is, would no fall in the category of defamation. In addition, because of their nature, statements of opinion are not considered false because they are subjective to the speaker (Bangia 2013 and others).

Lastly, in order for a statement to be defamatory, it must be unprivileged. Lawmakers have decided that one is entitled to sue for defamation in certain instances when a statement is made from privilege group. “For example, when a witness testifies at trial and makes a statement that is both false and injurious, the witness will be immune to a lawsuit for defamation because the act of testifying at trial is privileged. Whether a statement is privileged or unprivileged is a policy decision that rests on the shoulders of lawmakers. The lawmakers must weigh the need to avoid defamation against the importance that the person making the statement have the free ability to say what they want. Witnesses on the stand at trial are a prime example. When a witness is giving his testimony, we, as a society, want to ensure that the witness gives a full account of everything without holding back for fear of saying something defamatory. Likewise, lawmakers themselves are immune from defamation suits resulting from statements made in legislative chamber or in official materials.[5]”  Similarly, the judicial proceedings, parliamentary discussions, government reports, honest opinion and foreign diplomats get immunity from defamation.

Defamation: A Judicial Approach:

The different cases under this head would further elaborate defamation laws and would explore some dimensions to observe how defamation actually constitutes. Moreover, some of the leading cases are incorporated here in order to shade light on defamation in judiciary’s vision.

In the case of Harold Newstead v. London Express Newspaper (1940), the defendant published a hard news story stating that ‘Harold newstead, a Camberwell man’ had been convicted for bigamy. The news story was- however- true and portrayed true information. Nevertheless, the legal action was brought against the defendant at the hands of another Newstead—who had similar name but not similar story. The second Newstead projected himself before the court that his character was massively assassinated after the publication of the news story. As the words were considered to be referring to the plaintiff, the defendant was held liable to compensate.

In a similar vein, the Delhi High Court had awarded damages of 5 Lacs to the senior advocate Ram Jeth Malani in the case of Ram Jeth Malani v. Subramanian Swamy (AIR 2006). Delhi HC. While the commission of inquiry was examining the facts and circumstances relating to the assassination of late Shri Rajiv Gandhi, the defendant, at a press conference, alleged that the then Chief Minister (CM) of Tamil Nadu had prior information that LTTE cadre would make an assassination bid on the life of late Rajiv Gandhi. The plaintiff was engaged as a senior counsel to represent the then CM of Tamil Nadu. In discharge of his professional duties, the plaintiff cross-examined the defendant. During the proceedings the defendant accused the plaintiff of receiving money from LTTE, a banned organization, just to brush the evidences under the carpet. The Delhi HC found the plaintiff unconnected with the LTTE and ruled that the defendant had made defamatory statement in a bid to defame the senior advocate Malani.

Counting the professional standard of the plaintiff and his stature in social life, the Delhi High Court awarded damages of Rs 500,000.

Defamation amid the age of Social Media & Media outlets: A Judicial View

At a time when the social media platforms are mushrooming day by day, it’s now easier than ever to make a defamatory statement. The social media outlets like Twitter, hi5, whatsapp, messanger, skype, viber, facebook, youtube and among others, allow one to instantly publish a statement that could reach thousands of people within a couple of seconds. Amid round criticism being framed against the mishandling of the social media platform, the legal system has-however-provided space for the aggrieved party to sue the second party at instant the defamatory statements is posted online.

On a different account, it has become a general trend among the youths to write unnecessary statuses and comments on facebook and among other social sites. The users of social media platforms don’t even hesitate to pass sarcasm pointing an individual and a social group in an apparent effort to debase one’s reputation. In order to defame an individual or some section of society through facebook, people leave not even single stone unturned and then by going a step further they put salvoes at each other. 

Meanwhile, the media outlets—like newspapers—have also suffered defamation cases. A defamation case was filed against a sharia court and a newspaper for allegedly issuing a public notice in connection with a marital dispute. “In his complaint before the metropolitan magistrate's court, Yakubkhan Pathan alleged that a city-based Sharia court (Darul Qaza) summoned him and his son Firozkhan Pathan by putting out a notice in a newspaper. The notice, dated June 13, 2014 warned that if they did not remain present, the court would dissolve Firozkhan's marriage with his wife Lubna Vohra. Lubna has filed a divorce petition, as also a case of domestic violence against Firoz and his family. Yakub claims in his defamation plea filed yesterday that the Sharia court had no legal right to issue such a notice, and it was published only to defame him and his family "in nexus" with Lubna. It also adds that the Sharia court passed an illegal order asking Firoz to grant his wife divorce, which was "insult of Indian legal system".  The Supreme Court said that Sharia courts have no legal sanctity and their rulings are not binding on anyone.[6]”

Similarly, venting ire against one of the eminent media houses in India, the honorable Supreme Court (SC) had slapped a fine of 10 millions to ‘Times Now’—an English news channel---after finding the same involved in defamatory offense. “In 2008, Times Now wrongly displayed Justice Sawant’s photo in relation to the Ghaziabad PF scam. In 2011, a Pune district court order Times Now and Arnab Goswami (Editor-in-chief) to pay 100 crore in damages. Times Now preferred to appeal before the Bombay High Court. The Bombay High Court, however, asked Times Now to deposit 20 crore and furnish a bank guarantee of 80 crore before it took up the appeal. Times Now petitioned the Supreme Court to stay the Bombay High Court’s order. However, the SC refused to interfere with the Bombay HC order. Bennett Coleman Co. requested the Bombay High Court to accept a corporate guarantee of 100 crores (through property etc.) instead of a bank guarantee of 80 crore. This was accepted by the court.[7]”

Further, the defamation cases would gain further momentum if some of English cases are cited here with.

In the case of Morrison v. Richieti & Co, One of the Britain court had found a media outlet indulged in defamation and slapped fine in connection with the same. The defendant’s media outlet—a newspaper—published a news story, mentioning there that Morrision gave birth to a twin baby. However, the scene was not like that in real sense. The aggrieved had got married just a couple of months ago. The aggrieved brought an action against the newspaper, arguing that she was defamed at the hands of defendant and also claimed that such an unprecedented move posed a serious concern over her character. The defendant also claimed that such misleading information was given due coverage in the media just in an apparent bid to assassinate her character at large.

Coming down heavily against the media house, the court held the defendant liable for bearing compensation.

Likewise, in the case of a PIL filed by an advocate, the Times of India—a leading newspaper—was convicted in defamation charge while the newspaper published a naked photo of Priyanka Chopra and other actress of Indian cinema. The apex court found the newspaper guilty. Later, the media outlet had to issue an editorial piece saying, it was a wrongful act and contrary to the journalistic code of conduct.

In a significant move from the legal system, the law has not envisaged any special privilege to the media persons under the law of defamation. There are plenty of cases filed against media outlets and nevertheless the courts had held them liable. Secondly, the media outlets are not entitled to publish defamatory information simply because one had already published the same. The publication of defamatory material even in the second time does not necessarily make it less defamatory. Each distinct publication forms a new offence under defamation. However, the defamation cases can be filed against media under civil nature—not necessarily criminal suit could be posed against them.

The constitution of India guarantees a full-fledged press freedom contrary to the Chinese constitution. In some of the countries, various forms of restrictions—pre-censorship, restriction on publication of stories against certain ideologies and among others—are imposed against the media. However, the position is different in Indian legal system. The draftsmanship has clarified that Indian press would enjoy freedom of speech and expression under Article 19(1) (a) of the Constitution of India. Nevertheless, the very freedom is curtailed by the reasonable restrictions stated in Article 19(2). Article 19(2) lists the various grounds on which free speech can be restricted and defamation is one of them.  

Thus, despite, there is freedom of press guaranteed in constitution, its’ not absolute in nature. On the grounds of defamation, free press is limited.[8]” In general, it could be mentioned as:

Publication of defamatory information            Cause injury to reputation                 Among right   thinking members of society                                                             Invites defamation laws

Further, the jurists are of the view that right to reputation is a right in rem, not in personam.

1.    Defamation: a civil remedy

If a person proves that the defamatory content was referring to her/him then he/she can sue the second party for defamation. “This includes a class of persons, companies, corporations, etc. (same rules as in criminal defamation insofar as these entities are concerned). Generally, the right to sue in civil law is only available to the defamed person. This defamed person can be a class of persons, a company or a corporation. In civil law, no action for defamation of a deceased person can be sustained. An exception to this rule is that if a defamatory statement negatively impacts the reputation of a deceased person’s heir, an action for defamation would be maintainable. On the other hand the rule in Criminal Law is that imputing anything to a deceased person can be defamatory 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. The scope of suit of defamation is very wide. It tends to cover any statement which harms the reputation of a person and is false. Moreover defamation can be against any person, class of persons or a company.[9]”

While discussing about the filters on which a successful case of defamation would be proven, the following ingredients should constitute with:

1.    The alleged content is-- (i) false, (ii) defamatory (iii) referred to the plaintiff and (iv) published (Bangia 2013 and others).

A much-admired jurist Salmond has advanced that a defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right thinking members of society generally and in particular cause him to face some sorts of hatred, fear, dislikes or disesteem among the society members.  

“In a civil proceeding the emphasis is on restoring the person to a position prior to the offence. In a case of defamation this is done through reimbursing the person for the harm caused to him by imposing damages on the wrongdoer. Thus, it has to be proved that the alleged defamatory content damaged the reputation of the person. Further, the defamatory statement has to be false otherwise no action arises. Proof of publication is also an important ingredient. Intention though very important in a criminal case does not hold much relevance in a civil case.” (ibid).

Further “In a civil suit for defamation, the only ingredients which need to be proved are that the statement was false, caused harm to reputation and was published. Intention or motive does not need to be attributed to the offender.” The intention or motive with which a certain material is published holds no bearing if the matter complained of, refers to, or would be deemed by reasonable people to refer to the plaintiff. A statement that is true for one person could be false and defamatory against another.” The general, rule is that even if a statement is published with no intention of defaming a person, the publisher can still be held liable for defamation in a civil suit.

“In general, malice means the intent, without just cause or reason, to commit a wrongful act that will result in harm to another. In the context of the tort of defamation, malice does not refer to your motive or internal dislike of a person but refers to the lack of just cause or excuse for the publication. If you detest the person you’re writing about but have a valid reason to be criticizing the person, the law will not deem your criticism malicious.”  It is widely believed that in the tort of defamation, malice is also an important ingredient to establish that there was no justification for the defamatory material. If there is justification for the alleged defamatory content then no malice is attributed under tort of defamation. The intention of the person is not important. If the person has just cause for publishing the defamatory statement then he is not liable for defamation.

Moreover, the legal pundits are of the view that in a civil suit for defamation if there is a just cause for the publication of the defamatory content then no question of malice arises. Malice is, by and large, immaterial to decide a charge of defamation because intention is largely ignored in civil defamation cases. In addition to that, Malice is irrelevant in civil defamation as the emphasis is only on compensation as distinct from criminal law. However, while taking a plea of a fair comment or that of unintentional defamation, the lack of malice must be proven for the defence to have any weight. Malice negates the defences of fair comment and unintentional defamation (ibid).  A person has to ensure that his publication is based on verifiable facts to avoid a case of malice. For defences of fair comment and unintentional malice, it has to be proved that there was no malice on your part.”

Meanwhile, there comes a question—whether truth is a complete defense under law of defamation or not? The legal scholars are of the view that truth is a complete defense under civil defamation proceedings. A publication based on verifiable facts can extinguish liability for defamation. However, the position is unlike in case of Criminal defamation. There truth is not a complete defense at all.

“The main purpose of an action for defamation is to protect the reputation of the defamed person. However, the law will not allow a person to claim damages for an injury to character when the person does not, or ought not, possess such character. The truth in question need not be absolute; as long as the statement is true substantially and in all the material aspects, the defence stands.” (ibid).

Similarly, in yet another significant gesture, the burden of proofs to prove the truth in the alleged defamatory publication always lies on the person whoever asserts that the statement was not made out of falsified intention or untrue facts. Here, the court of law presumes the falsity of the statement. Meantime, the defendant has to prove that the statements made were actually true.

The reasons advanced by the scholars in the civil suit for defamation is that the plaintiff has to prove that a defamatory publication took place at the hands of defendants and the very defamatory statement referred to him or her..

2.    Defamation: A Criminal Remedy

Under the criminal code, the section 499 of the IPC better defines that any person whose reputation has been damaged (or was intended to be damaged) by the material in question can sue for defamation. ‘Any person’ refers to a single individual, an association or collection of persons or a company. Secondly, any person also constitute for the non-citizens living in India. The legal system of India has stressed on the need of ensuring the right to reputation for a non-citizen as well whoever is residing within the territory of India for a temporary time period.

Further, in both civil as well as criminal law, an accusation can refer to an individual, a collection of persons or a company. The defamatory statement like—all politicians are corrupt—would not amount to defamation. Because, the content is made in general, not specific nature. Similarly, the section 499 of IPC has clearly laid down the ingredients for establishing a case of defamation.  For a defamation case to succeed, it has to be proved that the statement was addressed to the plaintiff. Subsequently, it must clarify that the statement was made in an apparent bid to harm the reputation of the plaintiff with a clear intention.

However, still there leaves bundle of proofs at the shoulder of plaintiff to prove that whether the very statement was referred to him. If he fails to establish his claim in the light of truth, then there would not arise any cases against defendant and the so called defendant would not be asked to compensate. “Further, it is necessary to prove that the person either has intention to cause harm or has knowledge that harm will be caused to your reputation. Lack of intention does not necessarily negate liability if it can be proved that it was likely that harm will be caused to you. Here actual damage to reputation is not required. Mere chance of the reputation of the person being affected is enough for a case of defamation to arise. The definition of harm is dependent on the subjective interpretation of the Court in such cases.[10]”

Likewise, the scholars further argue that defamation can take place without intention as well. Although, intention is an important ingredient in the offence of criminal defamation, a person can be held liable without intention in certain cases according to Section 499. “Intention though is essential in Criminal defamation is not the only ingredient for proving liability. To cover the cases where you did not intend to cause any harm but you knew that the statements being published are likely to cause harm the above principle is there. This is again to provide a remedy to the defamed person where there was no intention but harm was caused or was likely to be caused.” Like the civil suit, truth by itself is not a complete defence against a criminal charge of defamation. Along with truth, it also needs to be established that the publication was in public interest or for the greater public good.

The jurists have forwarded a diverse opinion in civil case and criminal case. They are of the view that in civil case, truth is a complete defence against the charge of defamation. However, under the IPC truth alone is not a complete defence. It has to be proved that along with the publication being based on truth that it was published in the interest of the public. If a true statement causes harm to a person without producing any advantage to public as a whole it could be termed defamatory. As mentioned earlier, the jurists opine that what constitutes public harm is again subject to interpretation of the Court and differs based on the facts and circumstances of the case.

In addition, the burden of proof lies on the person instituting the case for defamation. He has to prove that the published work defamed him in one way or the other. “The prosecution, as is the case in most offences, must prove that your work defamed him in some manner. However, the defence that you take (truth, fair criticism, etc.) must be proven by you against the prosecution’s case. Thus, initially the burden of proof lies on the prosecution to establish the ingredients of defamation. Subsequently, the onus of the proof shifts to the defendant to bring his case under any of the defences available.” (ibid).

In yet another significant difference with civil suit of defamation, malice is also considered an important ingredient in criminal case of defamation. “Malice is the intentional commission of a wrongful act, absent justification, with the intent to cause harm to others. The term does not necessarily imply personal hatred, a spiteful or malignant disposition or ill feelings of any nature, but rather, it focuses on the mental state which is in reckless disregard of the law in general and of the legal rights of others. Malice is essential for criminal defamation. Malice is present if the acts were done in the knowledge that the statement is invalid and with knowledge that it would cause or be likely to cause injury. Malice would also exist if the acts were done with reckless indifference or deliberate blindness to that invalidity and that likely injury. Law punishes those who are reckless in their act and by their recklessness cause harm or injury to another.”

Furthermore, the malice is presumed to exist, in law, when there is intention to bring disrepute or knowledge that the matter in question could bring disrepute to a person. The legal experts further insist that to escape the charge of defamation one must show that there was no malice on his part. In an attempt to get escaped from malice, one needs to establish before the court of law that the statement—he made—was fair, balanced assessments and facts.

On the contrary, Section 52 of the IPC defines good faith as an act that is done with ‘due care’ and ‘attention’—which is an exception in defamation.

“It denotes the degree of reasonableness or the care ought to be exercised. The enquiry must be of such depth as a reasonable and prudent man would make to know the truth. It is important here as the defences available under the Exceptions to charge of defamation under Section 499 of IPC are only available when there is good faith. Good faith is important to prove for the person being prosecuted against. There is no set requirement as to determine whether an act is done in good faith or not. It is determined on the basis of the circumstances that you find yourself in at a given point of time. The exceptions to Sec.499 highlight the various situations where criticism is warranted and charge of criminal defamation would not stand. Be it regarding the official conduct of public servants, issues of public importance, judicial proceedings, or publicly displayed art (performances, literature, etc.), the requirement is that any criticism be fair and be made in good faith. Thus it is imperative that due care be taken before the publication of any comment to ascertain its veracity. Unless good faith is established by the person, he cannot take advantage of any of the exceptions under Section 499. Where malice is present, no defences are available.”[11]

Moreover, if a defendant is convicted under defamation law, section 500 of the IPC entails a simple imprisonment for two years or fine or both. Section 509 of IPC carries a simple jail term of one year or fine or both. 

Similarly, it is of noteworthy to mention here that whether the defamation in criminal law is bailable in nature or not. The scholars firmly believe that defamation is a non-cognizable, bailable, compoundable offence. Non cognizable implies that you cannot be arrested without a warrant on a charge of defamation. A bailable offence is one where there is a right to be granted bail, if need be. In a compoundable offence, you can seek to settle the case by private arrangement under Sec.320 of the Code of Criminal Procedure. A defamation offence is compoundable by the defamed person. However, in certain cases, the permission of the court needs to be taken. These are the cases where Defamation is against the President or the Vice-President or the Governor of a State or the Administrator of a Union territory or a Minister in respect of his conduct in the discharge of his public when instituted upon a complaint made by the public prosecutor.”

Defamation under civil and criminal laws: A Comparative Study:

1.    In civil law, no action for defamation of a deceased person can be sustained. An exception to this rule is that if a defamatory statement negatively impacts the reputation of a deceased person’s heir, an action for defamation would be maintainable.

n  On the other hand the rule in Criminal Law is that imputing anything to a deceased person can be defamatory 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.The scope of suit of defamation is very wide.

2.    Proof of publication is also an important ingredient—in a civil suit. Intention though very important in a criminal case does not hold much relevance in a civil case.

3.    Malice is irrelevant in civil defamation as the emphasis is only on compensation as distinct from criminal law.

4.    The legal scholars are of the view that truth is a complete defense under civil defamation proceedings. However, the position is different in the case of criminal suit.

5.    Plaintiff initiates the procedure in civil cases, while the prosecution initiates the procedure in later cases.

6.    IPC section 499 defines about defamation under criminal procedure. It envisages punishment for two years of imprisonment with fine or both. Similarly, within one suit can be filed. IPC also clarifies that there is exception to defamation case. An exception route may be taken if the statement is made out of good faith. However, in civil cases, as well any statement—though defamatory it is—would not amount to defamation has it made out of good faith and in the light of facts.

7.    Similarly, bail can be granted under criminal law and however, in civil law—court would ask to furnish a sum of remedy in monetary terms.

8.    The law of tort is yet to be codified. Nevertheless, the criminal laws are codified.

9.    The right to reputation is right in rem—under either format of laws.

10.The either categories of law—criminal and civil—provide defences for the privileged section of society. Privileges given to parliamentary proceedings, judicial proceedings, fair and accurate report, sovereign functions, diplomats, fair comment, justifiable truth.

11.Under civil law damages is given in monetary terms and it’s not predetermined while in criminal law punishment could lead to imprisonment. In general, civil law applies a soft-corner while dealing with defamatory cases whereas criminal law advances hard-gloved tactics dealing the same.  

12.Truth is not considered to be a complete defense in criminal law while the position is different in case of civil law. Truth is considered to be a complete defense under civil law of torts. 

General Defenses under Defamation: A Judicial Approach

While the defamation laws have laid down some kinds of the punishments under either format—civil and criminal--, the legal systems have forwarded some sorts of defenses as well. Basically, there are three defenses envisaged under defamation laws:

1.    Justification or truth

2.    Fair comment

3.    Privilege which may be either absolute or qualified

In an effort to establish these defenses under the light of legal systems, citing some cases would impart relevancy to it.

In a very fresh and recent case the honorable “Madras high court on September 19 this year stayed the Tamil Nadu government's criminal defamation proceedings against The Times of India for having published the statements of senior BJP leader Subramanian Swamy.

Justice V Ramasubramanian granted the interim stay on a writ petition filed by the printer and the publisher of the newspaper's Chennai edition, S Santhanagopal and editor Sunil Nair. The judge also dispensed with their personal appearance before the principal sessions judge on October 30. "Notice, in the meanwhile, there will be an interim stay of all further proceedings. The personal appearance of the petitioners is dispensed with," he said.

The government issued a GO authorising city public prosecutor M L Jagan to file a defamation complaint on September 4, and it was filed the next day.

The matter pertains to a news item on the ownership of boats impounded by Sri Lankan authorities on charges of illegal crossing of international maritime boundary. Assailing the criminal defamation proceedings, the writ petition cited the Supreme Court rulings in earlier cases, that free speech was the foundation of a democratic society and free exchange of ideas, dissemination of information without restraint and dissemination of knowledge. As a free and independent newspaper, it is the duty of the press to report news and events in an impartial manner and the news report in question was published only in that spirit, it said.[12]”

Aforementioned case better defines about the defense of defamation if the news content is published out of justifiable or truth manner.  

Similarly, in the case of Alexender v. North Eastern Railway Co, the plaintiff was travelling on a train without acquiring ticket. As it was an offence to travel a train without ticket, he was jailed for two weeks and slapped with a sum of fine as well. However, the newspaper, published that the accused was sentenced for three weeks. One of the British courts held that defendant was not liable and no any legal action could be brought against them as they got defenses under defamation on the ground justification. Despite, there were some sorts of miscarriage of facts in the news story.

On a separate context, in what being seen as a clear defense nerve being guaranteed by the court of law, fair comment is also considered to be yet another defense under defamation law.

For example, if Animesh Pradhan said that Laxmi Prasad Devkota’s  poem—Lunatic—is indecent and the poet is not of sound mind. Mr Pradhan further added that it would have better had the poet analyzed the social status of lunatic people before drafting the piece. Here, Pradhan, being a critic, has passed comment against Devkota’s creation. So, such a fair comment would not amount to defamation.

Eventually, in yet another momentous move, privilege is given to the sovereign function and defamation laws could not be attracted there. The mentioned claim would be validated after citing a landmark case of: V Narayana v. E. Subbanna, (AIR 1975), the Karnataka High Court had held that the statements made in a complaint made to the police were absolutely privileged and therefore, the defendant-respondent who filed a false complaint to the police imputing an offence of robbery against the plaintiff-appellant could not be made liable for defamation of the plaintiff. (Bangia 2013).

Bangia observes that the statements made by the government officials during the discharge of duty or protection of an interest , or it is a fair report of parliamentary, judicial and among other public proceedings would not necessarily fall under defamation—rather it would get a route of exception. The alma mater is of the view that statement made without malice fall under defenses to defamation.    

Conclusion:

In Sanskrit philosophy, Vedas and many other religious sculptures, it is mentioned that वचनंम किं दरिद्रम (which means that an individual should adopt some sort greatness while making statements).  The religious texts advocate that if there is no certain forms of taxes imposed to deliver some kinds of opinion, and one is free to make opinion, then why people go crazy and pass sarcasm against an individual that lower down his reputation in society. The texts also draw a serious concern over the mushrooming recklessness-attitude, stating that if a man has become fiasco to do greater good to the second party, then he is not unrestricted to put salvoes at the second party.

In a similar vein, yet another English proverb rolls out a balance between defamed and un-defamed person by forwarding the conception: “A bad man is better than the bad name.” The proverb clearly signifies the meaning. The jurisprudence of proverb is that if a man, whose reputation is lowered-down among the society from down to the last hair of head, is not much better than a bad man.

So, right to reputation would get further momentum by citing this Sanskrit proverb—प्रतिष्ठानामं सर्वत्र विजयेत—which means an esteemed person gets respected from all quarters and from all the walks of life.

Amid round escalating defamation offenses, to stop or to limit such offenses have become an uphill task for the government as well the concerned authorities. Defamation laws have been formulated in either formats of Indian laws--Civil law and Criminal law. However, despite the legal system is enriched, the defamation cases are not limiting. Who should be blamed for that? No one could give a perfect answer. The society which has been changing with respect to time and space in the name of globalization—or better to say Americanization—has poured some sorts recklessness attitude among youth while they speak slangs—in an apparent bid to project themselves a modern creature. However, this is a single-side picture.

The double-edged sword downpours at a time when the well-educated sections of society passes sarcasm in a fresh effort to defame someone for a no good reason. I don’t see any logic in using empty words. However, I can’t claim that I am free from empty words. I am a youth and my age factor sometimes provokes me psychologically to speak empty words while I am in crazy situations.

On a separate pretext, the defamation-- in law—is both civil as well as criminal offense. Any attempt—either slander or libel—to devastate someone’s reputation would fall under defamation and the defamation laws would certainly be attracted there. The defamation case under criminal laws could sentence one for jail imprisonment while in civil case damages are sought in monetary terms. So, criminal laws apply hard-gloved tactics while dealing with defamation cases. However, civil laws apply soft-corner. The point still arises—whether certain kind of punishment would brush the defamed imaged image of an aggrieved and would they attain the same social status which he was supposed to enjoy before the commencement of such defamatory offense at the hands of defendant.

Meanwhile, the media persons, who are considered to be an intellectual class of society, when indulge in connection with defamation then it poses a serious apprehension. The media is there to report the fact, not construct the fact. “The media is supposed to reflect the reality, not construct the reality,” says Karl Marx. The cases against media under defamation charge would obviously lower the pride of media—in long run.

Moreover, the defamatory acts constitute when statement made is false, addressed to the plaintiff and published among the society. However, there are exceptions in defamation when statement made is true, fair comment and made by the privileged section of society.

The time has come to end the defamatory offences. The learned-people from every concerned quarter should come out in the open and launch an anti-defamatory attempt drive in both regional and national level. The defamatory offences should not take aerial root in any modernized and civilized society. The widely-acclaimed justice Blackstone was of the view that the defamatory offences pose serious concern over civilized world.  So, if we claim that the world we are blessed with is really a globalized and civilized one, then the constipated offences like defamation should come to an end. Secondly, I firmly believe that defamation is an attempt to outrage one’s modesty before the society. Eventually, the time has come acknowledge the people, not outrage the people.

References:

Bangia, RK (2013). Law of Torts. Faridabad: Allahabad Law Agency.

Pandey, JN (2014). Constitutional Law of India. Allahabad: ALA 

http://timesofindia.indiatimes.com/india/Madras-high-court-stays-TN-govts-defamation-proceedings-against-Times-of-India/articleshow/42895033.cms (Retrieved: 25th September 2014, time: 5:00 PM)

http://thehoot.org/web/Adefamationlitigationupdate/7572-1-1-5-true.html (Retrieved: 25th September 2014, time: 5:05 PM)

http://thehoot.org/web/Adefamationlitigationupdate/7572-1-1-5-true.html (Retrieved: 25th September 2014, time: 5:10 PM)

http://thehoot.org/web/Adefamationlitigationupdate/7572-1-1-5-true.html. (Retrieved: 25th September 2014, time: 5:13 PM)

http://timesofindia.indiatimes.com/city/ahmedabad/Ahmedabad-Defamation-case-filed-against-Sharia-court/articleshow/38028591.cms (Retrieved: 25th September 2014, time: 5:14 PM)

http://thehoot.org/web/Adefamationlitigationupdate/7572-1-1-5-true.html (Retrieved: 28th September 2014, time: 4:00 PM)

http://injury.findlaw.com/torts-and-personal-injuries/defamation-law-the-basics.html (Retrieved: 28th September 2014, time: 4:00 PM)

http://injury.findlaw.com/torts-and-personal-injuries/defamation-law-the-basics.html (Retrieved: 29th September 2014, time: 4:00 PM)

http://www.thehoot.org/web/home/cyber2.php?cid=51&sid=6268 (Retrieved: 29th September 2014, time: 5:00 PM)

http://en.wikipedia.org/wiki/Defamation (Retrieved: 29th September 2014, time: 5:05 PM)

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[1] http://en.wikipedia.org/wiki/Defamation

[2] http://www.thehoot.org/web/home/cyber2.php?cid=51&sid=6268

[3] Dixon v. Holden, (1869) 7 Eq. 488.

[4] http://injury.findlaw.com/torts-and-personal-injuries/defamation-law-the-basics.html

[5] http://injury.findlaw.com/torts-and-personal-injuries/defamation-law-the-basics.html

[6] http://timesofindia.indiatimes.com/city/ahmedabad/Ahmedabad-Defamation-case-filed-against-Sharia-court/articleshow/38028591.cms

[7] http://thehoot.org/web/Adefamationlitigationupdate/7572-1-1-5-true.html

[8] Constitution of India, a commentary by JN Pandey (2014), 51^st edition.

[9] http://thehoot.org/web/Adefamationlitigationupdate/7572-1-1-5-true.html

[10] http://thehoot.org/web/Adefamationlitigationupdate/7572-1-1-5-true.html

[11] http://thehoot.org/web/Adefamationlitigationupdate/7572-1-1-5-true.html

[12] http://timesofindia.indiatimes.com/india/Madras-high-court-stays-TN-govts-defamation-proceedings-against-Times-of-India/articleshow/42895033.cms

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