By Tania Maria Joy
Introduction
Defamation is a procedure for check and balance on the Right to freedom of speech and expression (Article 19). It is a procedure to ensure that nobody harms the reputation of any person or tends to create a wrong opinion of the person who is defamed, in the eyes of the public.
Section 499 of the Indian Penal Code talks about defamation. Any person who by spoken or written words, signs or visible gestures creates or publishes any imputation on any person with an intention to harm the reputation of that person. The person making such imputation should have the knowledge or a reason to believe that such imputation will ruin the reputation of the person.
To sue any person it is necessary to establish that real damage or harm has occurred to the reputation of the person. Only speaking or writing the words, picturing or gesturing does not amount to defamation until the reputation of the person has been harmed.
Harm to reputation is the only negative consequence that can arise from the act of defamation.
It could prove harmful to your professional career as well. For example, if someone points out to a shopkeeper that you should not buy groceries from him as he sells low-grade things at a high rate. In this case, if the statement is found to be untrue then the reputation of the shopkeeper is being harmed as this will lead to the shortage of customers coming to his shop.
For a person to be sued for defamation, it is required that the publication of the words he spoke or wrote must have happened. It means that damage to the reputation of the person happens when the defamatory words have reached any third person. Publication means that the third person has read, heard or seen the written, spoken, gestured or pictured defamatory words. If it has not happened then there is no ground to sue for defamation.
An act of defamation can occur in two forms, libel and slander.
Libel- it is a kind of defamation that is present in some permanent form such as in writing, printed or a picture.
Slander- it is a kind of defamation that is present in an unwritten form such as spoken words, gestures or representation made with hands.
In English law, there is a distinction made between both of the forms under the categories of criminal defamation and civil defamation.
Under criminal law, only libel is an offense and not slander. Whereas in civil law, libel is an offense just like in criminal law but the change here is that slander is also an offense when provided with proof.
In Indian law, both slander and libel are recognized as criminal offenses under Section 499 of IPC. Whereas, in the law of torts libel is actionable per se and slander is actionable. It means in the case of slander there has to be proof of the act of defamation.
D.P. Choudhary v. Kumari Manjulata
In this case, it was published in a newspaper that Manjulata, a 17-year-old girl belonging to a well-known family, eloped with a boy who lived closeby. After this, her reputation got tainted and she suffered a lot of disgrace, as this news was completely false and was published with irresponsibility.
Later on, the Court, in this case, ruled out the Rs. 10000, should be provided to the defendant as it amounted to defamation.
There are various forms of publication in which the act of defamation can take place, let’s look at them.
Direct communication to the Defamed
If any defamation is made directly to the defamed and is not heard by anybody else, then it is not defamation. It is necessary that any third party hears it through which the reputation of the defamed goes down.
Publication by Repetition
There is a limited period to sue for defamation. It is maintainable till one year since the act of defamation took place. For a single publication, an action for libel can arise but for repetitive or multiple publications, the action can arise every time the libel is published.
The Limitation Act, 1968 makes the limitation period of the libel on the internet to 1 year. After every publication on the internet, this period will get renewed.
Section 501 of the Indian Penal Code talks about the printing of defamatory things.
It says that any person who prints or engraves such a matter which he knows or has reason to believe that such matter is of defamatory nature and hence, will lower down the reputation of the person and bring ridicule and disgrace to his/her character.
This Section checks for the printed defamatory matters and provides the provision for the punishment to the person who printed it. The punishment of a maximum of two years in jail or fine or both is provided under this Section.
Now, let’s understand what is the provision for the people who further sells the defamatory printed content.
Section 502 of the Indian Penal Code says that any person who sells or offers to sell any printed content that he knows or has reason to believe that it contains defamatory matter will be punished.
The punishment will either be imprisonment which can be extended to a term of two years or could be fine. In some instances, both can be imposed.
Therefore, through both of these Sections, the printing or engraving, selling or offering to sell, such a matter which contains some defamatory content, is a crime and is punishable.
In Section 499 of the Indian Penal Code the ‘imputation concerning any person’, is mentioned. Imputation in general terms means accusation or claim that someone has done something wrong.
As far as the term ‘concerning any person’ is concerned, this means that defamation should be clear enough to point out the person to whom the defamation is intended to be made and if it is published to others then the third person is also able to clearly understand who is defamed by the publication.
The provisions regarding defamation are provided in Section 499 to 502. Section 501 and Section 502 has already been explained earlier in this article. Now, let’s understand the provisions contained in Section 499 and Section 500.
Section 499 provides the definition of defamation and all the cases and exceptions of the act of defamation. This is a lengthy Section with explanations and in total 10 exceptions included in it.
Section 500 provides for punishment for the act of defamation.
First Exception: Truth for Public Good
This exception provides that if any information which is true and for the good of the public at large, then that is not covered under the act of defamation.
Things to be noted here is, first, the information should compulsorily be true. Second, the information should be of a kind that it benefits the public.
Also, it is compulsory to publish that information.
Second Exception: Fair Criticism of Public Servants
This exception provides that if an act in which the public servant is criticized for discharging any of his public functions or and the act of criticizing his conduct and character when it appears to be wrong and not otherwise. Then, such an act will not amount to defamation.
Third Exception:
Fair comment on public conduct of public men other than public servants
If any person expresses his/her views and opinion on the conduct of any other person who discharges any kind of public functions, he will not be liable for the act of defamation.
The condition in regards to this is that such views and opinions should be made in good faith and with honesty. If it is made otherwise then the act will fall under the offense of defamation.
Fourth Exception:
Report of proceedings of Courts of justice
If any proceedings of the court or the result of any case given by the court are published then that will not amount to defamation.
The conditions pertaining to this are such that publication should be true and apt.
Fifth Exception: Comment on Cases
If any person publishes any information regarding the merits of the case or in regard to the conduct of any person who was a witness, in that case, it will not be defamation.
It is important to note, the element of good faith is requisite here.
Sixth Exception: Literary criticism
If any person in good faith expresses his opinion in regards to the performance or character of the author, which the author has submitted to the judgment of the public or viewers, then it does not amount to defamation.
To explain this, the author must have by acts or expressly submitted her/his performance to the judgment of the public. If that is not the case, the act will amount to defamation.
Seventh Exception: Censure by One in Authority
If any person passes censure on the conduct of any other person, then it will not amount to defamation, provided that the person applying censure should have the lawful authority or any authority arising out of a valid contract, over the person on whose matters the censure is applied.
Eighth Exception: Complaint to Authority
If any person who has lawful authority over the other person, accuses him then it will not amount to defamation.
Ninth Exception: Imputation for Protection of Interests
If any accusations or imputations are made on another person in order to protect the interests of oneself, then it is not defamation.
Tenth Exception: Caution in Good Faith
If any caution is made for the good of that person or for the good of the public then it will not amount to defamation.
This refers to the defamation of the Judge personally and the Contempt of Court. When the judge is personally defamed by any person then he can sue the person on his own personal capacity and not as a judge of the court.
On the other hand, Contempt of Court is the act that hampers the administration of justice and causes disrespect of the court. The Supreme Court and the High Court have the power to punish for contempt of itself under Article 129 and Article 215 of the Constitution, respectively.
In Perspective Publications v. the State of Maharashtra, it was noted that there has to be a distinction made between the libel and Contempt of Court. A test has to be taken to determine what the act constitutes, a disrespect of the judge or the hampering of the due process of the administration of law.
It is said that the rights of one person end where the rights of another person start to apply.
It means that the Constitution of India has given the citizens certain rights and they should use them in limit so that they should not hamper the rights of others. There is a limit to the right of freedom of speech and expression which is regulated by the provisions of defamation.
With the court holding Dr. Swamy liable to defame Mr. Jethmalani, in the case of Ram Jethmalani v. Subramanian Swamy, the court with many such cases proves that the provisions of defamations act as a check on Article 19 of the Constitution so as to protect the reputation of the people.
Many controversies regarding press freedom and the offense of defamation arose, which are still a matter of debate. There is a need to improve this law and remove the arbitrariness leading to such controversies.
