Defamation and related laws in India – A Study

What is The Meaning Of Defamation In India?

Generally, defamation refers to destroying the reputation of a person or organization by means of slander (speech), libel (written), or by any means.

The history of defamation can be traced in Roman law and German law. Abusive chants were capital punishable in Roman. In early English and German law, insults were punished by cutting out the tongue. In the late 18th century, only imputation of crime or social disease or casting aspersions on professional competence constitutes slander in England. In Italy, defamation is criminally punishable and truth seldom excuses defamation.

In India, defamation can both be a civil wrong and a criminal offense.

Section 499 And 500 of IPC

• According to section 499 of IPC, whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation 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 the cases hereinafter expected, to defame that person.
• 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.
• Section 500, which is on punishment for defamation, reads: “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”
• In a civil defamation case, a person who is defamed can move either High Court or subordinate courts and seek damages in the form of monetary compensation from the accused. Also, under sections 499 and 500 of the IPC, a person guilty of criminal defamation can be sent to jail for two years.

Pre-colonial situation 

The criminal provisions have often been used to pursue political personalities. In the colonial era, the law was used, along with sedition, to jail freedom fighters. So-called SLAPP (or strategic lawsuit against public participation) suits have been used in the recent past to muzzle investigative journalists and prevent critical analysis of the financial information of listed companies.

A further brief difference between Criminal and Civil defamation.

Criminal Defamation

It is specifically defined as an offence under section 499 of the Indian Penal Code (IPC)

Objective: It aims to punish a wrongdoer and also send a strong message to others not to commit such acts.

The defamation has to be established beyond a reasonable doubt to punish him/her under Section 499.

Civil Defamation

It is not defined specifically, and it is based on tort law (A wrongful act, that can be remedied in civil court, usually through compensation)

Objective: It aims to provide compensation to redress the wrong-doing.

Defamation can be awarded based on probabilities (the preponderance of the evidence).

Recent developments in defamation laws

Law on Cyber Defamation in India

In India, Section 499 of the Indian Penal Code primarily governs the law on defamation, however, it is pertinent to note that the law has been extended to "electronic documents". Section 469 of the IPC (forgery for purpose of harming reputation) has been amended by the Information Technology Act, 2000 to include 'electronic record forged' and now reads as a whole as – whoever commits forgery, intending that the document or electronic record forged shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

Section 66A of Information & Technology Act 2000 (IT Act), was quashed by the Supreme Court of India in Shreya Singhal v. Union of India, due to ambiguity in the definition of the word 'offensive' in the Section. The section stated that sending any offensive message to a computer or any other communication device would be an offence. Such unfettered power, under section 66A, was misused by the Government in curtailing and suppressing people's freedom of speech and expression and hence repealed.

Intermediary Liability and Cyber Defamation

Section 79 of the IT Act provides a safe harbor to intermediaries against any act of defamation. Section 79 provides that an intermediary is not liable for third-party information, data, links hosted on its platform. However, the safe harbor protection is limited to certain conditions viz. an intermediary shall be liable if it initiates the transmission of such defamatory content, selects the receiver of such content, or modifies such content.

In view of the aforesaid, it can be concluded that an intermediary's liability can be reduced by complying with certain obligations, such as adopting statutory due diligence or enforcing 'notice and takedown procedures.

Defamation Of Public Figures

It is common for criminal defamation cases to involve public figures such as politicians, celebrities, and athletes. Since these people are in the public spotlight, they are likely targets of defamatory statements. At the same time, the law recognizes that it is critically important for the media and the public at large to discuss issues of public concern without fear of litigation. This often involves criticizing the people who have placed themselves in the public spotlight, sometimes in harsh and personal terms.

Right To Freedom Of Speech And Expression:

• Article 19(1)(a) confers the right to freedom of speech and expression on all citizens.
• Article 19(2) allows the state to make laws that impose reasonable restrictions on this right 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.

Violative of Right to Free Speech:

It is an ideal weapon for powerful individuals to silence critical or inconvenient speech. It is a colonial-era law introduced by the British regime to suppress political criticism. Thus Sec 499-500 are violative of the right to freedom of speech and expression provided under Article 19 of the constitution.

Landmark Judgements Related to Defamation Laws In India

Let's look at some landmark judgments related to defamation laws in India.

Subramanian Swamy vs. Union Of India

• The Supreme Court held the freedom of expression as a “highly treasured value under the Constitution” 
• In application of the concept of reasonable restrictions it held that – “Notwithstanding the expansive and sweeping ambit of freedom of speech, as all rights, the right to freedom of speech and expression is not absolute. It is subject to the imposition of reasonable restrictions.”
• The court held that the reputation of a person is an integral part of the right to life granted under Article 21 of the Indian Constitution.-“Reputation of one cannot be allowed to be crucified at the altar of the other’s right of free speech. 
• The court differentiated a defamatory attack from criticism, dissent by speaking for tolerance to criticism, dissent and discordance but professed no tolerance to defamatory attack.

Ram Jethmalani vs. Subramanian Swamy

The court held Dr. Swamy guilty for defaming Ram Jetmalani by saying that he received money from a banned organization to protect the then Chief Minister of Tamil Nadu from the case of the assassination of Rajiv Gandhi.

Chintaman Rao vs. The State of Madhya Pradesh

The Supreme Court explained the meaning of “reasonable restrictions” imposed in Article 19 (2). It implies intelligent care and deliberation and that is required in the interests of the public.

Uses of defamation laws in the society of India

• Defamation is one of the reasonable restrictions on freedom of speech & expression under Article 19(2).
• Defamation can help out in a criminal offence in India as the defamer may be too poor to compensate the victim in some cases.
• Defamation is a proper way to censor the Internet from within; online defamation could only be countered by retaining defamation as a criminal offence.
• Criminal defamation laws play a key role to protect the citizens’ right to dignity and reputation under Article 21 (Right to life) of the constitution.
• Defamation law counter strikes hate speeches during elections in India.

Misuse Of The Defamation Laws And Its Provisions:

• The criminal provisions have often been used purely as a means of harassment.
• Given the cumbersome nature of Indian legal procedures, the process itself turns into punishment, regardless of the merits of the case.
• Critics argue that defamation law impinges upon the fundamental right to freedom of speech and expression and that civil defamation is an adequate remedy against such wrongs.
• Criminal defamation has a pernicious effect on society: For instance, the state uses it as a means to coerce the media and political opponents into adopting self-censorship and unwarranted self-restraint.

The Indian government and global perspective regarding defamation law:

• The government has sought a report from the Law Commission of India (LCI) on the issue.
• A joint consultation paper published by the LCI in September 2014 notes that the respondents “overwhelmingly expressed dissatisfaction with the present state of defamation law”.
• Considering the need to repeal Section 499, it acknowledged that criminal defamation laws violated international norms and that the penalty of imprisonment up to two years was clearly disproportionate.
• International bodies such as the UN had recognized the threat posed by criminal defamation laws and have recommended that they should be abolished.
• Article 17 of the United Nations International Covenant on Civil and Political Rights states
• No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
• Everyone has the right to the protection of the law against such interference or attacks.

Conclusion

The Constitution of India has given the citizens certain rights and they should use them in limits so that they should not hamper the rights of others. Ultimately Defamation laws should no longer remain the tool of the powerful people to blackmail, harass, and silence inconvenient speech in India and at the same time to protect the right to dignity and reputation of the individuals. The wisdom of the lawmakers is reflected in treating slander and label at par with each other, by necessarily checking the misuse of weaker provisions. Similarly, malicious intent to harm and test of criminality in a statement for defamation is meant to dissuade persons to resort to such practices. Over the seventy-five years of Independence, there have been numerous cases of defamation and the court has interpreted each and every case with utmost care and they serve as precedents; Defamation laws are strengthening slowly but steadily rising in India.