“Just because something isn’t a lie does not mean that it isn’t deceptive. A liar knows that he is a liar, but one who speaks mere portions of truth in order to deceive is a craftsman of destruction” Criss Jami writes in Killosophy. This is one of the accurate observation of slander that I have read.
Grundnorm for Defamation in India could be found in Article 19(1)(a)r/w Article 19(2). Article 19(1)(a) provides for the freedom of speech but it not absolute. It is restricted by article 19(2) which imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
Defamation
Defamation is the act of communicating false statements about a person that injure the reputation of that person when observed through the eyes of ordinary man. Any false and unprivileged statement published or spoken deliberately, intentionally, knowingly with the intention to damage someone’s reputation is defamation. A man’s reputation is treated as his property and such damage are punishable by law. It could be written or verbal. Written defamation, printed or typed material or images is called as libel and spoken defamation is called slander.
In India, Defamation can be viewed as a civil offence as well as criminal offence and may be defined as the writing, publication and speaking of a false statement which causes injury to reputation and good name for private interest.
The remedy for civil offences covered under the Law of Torts. According to the law, an offended person can approach the district or high courts to get the recovery in the form of monetary compensation for the damages from the accused person.
What causes Civil Defamation:
The statements made need to be false and it 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 successful defamation suit. They are:
1. 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 whether it damages reputation has to be calculated from the eyes of a common man and his comprehension of the matter.
2. Secondly, the statements must purport to a person or a class of persons. General statements like all politicians are corrupt is too broad and no specific politician can gain compensation for the same.
3. 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.
Criminal Defamation:
Section 499 and 500 of the Indian Penal Code provides an opportunity to the victim to file a criminal case for defamation against the accused.
Exceptions:
Section 499 also cites exceptions. These include “imputation of truth” which is required for the “public good” and thus has to be published, on the public conduct of government officials, the conduct of any person touching any public question and merits of the public performance. Persons who make defamatory statements are exempted from punishments if they fall in one of the ten exceptions provided in Section 499. They are:
1. Attribution of any truth made for public good. Truth is seldom defense unless made for a public good.
2. Any opinion made in good faith regarding the conduct of a public servant in the discharge of his public functions.
3. Any opinion made in good faith respecting the conduct of any person which relates to a public question.
4. Publication of true reports of the proceedings of the Courts or the result of the proceedings is not defamation.
5. 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.
6. Opinions made about the merits of any performance which its author has submitted to the judgement of the public, or about the author is not defamation if made in good faith.
7. Censures passed by persons neither having authority over another either conferred by a law or from a lawful contract in good faith is nor defamation. Censure is formal statement of severe disapproval.
8.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.
9. Statements made about the character of character is not defamation if it is made in order to protect the interests of the person making it, or any other person, or for the public good.
10. 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 for public good.
Punishment for the guilty person for criminal defamation is simple imprisonment which may extend to two years or fine or both. Under the criminal law, it is bailable, non-cognizable and compoundable offence.
Constitutionality of Criminal Defamation
Supreme Court upheld criminal defamation (u/s 499/500) and its constitutional validity. The judgment delivered on May 13, 2016, by the Supreme Court in Subramanian Swamy V. The Union of India (“Judgement“) was delivered by Justice Dipak Misra, with Justice Prafulla C. Pant.
Subramanian Swamy V. The Union of India [AIR 2016 SC 2728]
A person is bound to allow the existence of something that one may dislike or disagrees within other words -criticism, dissent, and discordance, but not expected to tolerate a rush which may tarnish the reputation of that person.
JD's Law Blog 