A man’s reputation is a property which is more valuable than any other property. Every man has the right to protect his reputation. Injury to a person’s reputation may be termed as defamation. It may be defined as a communication to some other person, other than the person defamed, of matter which tends to lower the plaintiff in the estimation of right thinking of persons or to deter them from associating or dealing with him. It is a wrong done by a person to another’s reputation by words, written or spoken, sign or other visible representation. It is not necessary that the defamatory statement must be made in words, written or spoken. One may be guilty of defamation even though one has neither spoken nor written a word.
There is, therefore, no tort unless there has been a communication of the defamatory matter to a third party for it is the opinion held by the person defamed by others that matters; insult directed to the plaintiff himself do not in themselves constitute defamation, the tort is not primarily concerned with plaintiff’s wounded feelings.
Under English law, defamation is divided under two parts, i.e., Libel and Slander. Libel is representation made in some permanent form, e.g., writing, printing, picture, effigy[1] or statute. Slander is the statement made through some spoken words or some transitory for, whether visible or audible such as gestures, hissing or such other things.
The law of civil defamation, as in English and other common law countries, is uncodified in India; it is largely based on case law. The law of criminal defamation on the other hand is codified and included as sections 499 and 502 of Indian Penal Code. In England the publication of a criminal libel is punishable to the extent of 1 year imprisonment and fine; and if the publication is with the knowledge of its untruth/ falsity then the person is punishable up to 2 years vides section 5 of the Libel Act, 1983.
There are some essentials of defamation which are as follows:
1. The statement must be defamatory.
2. The said statement must refer to the plaintiff.
3. The statement must be published, i.e., to say, it must be communicated to some other person other than the plaintiff himself. Publication means making the defamatory matter known to some other persons than the person defamed, and unless that is done, no civil action for defamation lies.
4. In case of slander, either there must be a proof of special damage or the slander must come within the serious classes of cases in which it is actionable per se.
Section 499 of Indian Penal Code dealt with criminal defamation. As per section 499 of IPC, the offence of defamation consists of the following essential ingredients:-
1. Making or publishing an imputation concerning a particular person;
2. Such imputation should have been made –
3. by words either spoken or written, or
4. by signs, or
5. by visible representation
6. The said imputation should have been made with the intent to injure or knowing or having reason to believe that it will harm the reputation of such person or defame him.[2]
Section 499 of IPC aimed at protection of the reputation, integrity, and honour of the persons. The definition of the defamation offence contains three important elements:-
i) The person
ii) His reputation, and
iii) The injury to reputation of the person with necessary mensrea (guilty mind).
In a civil action for defamation in tort, truth is the defence, but in a criminal action, the accused must prove both the truth of the matter and that its publication was for the public good. The defence of truth is not satisfied merely by proving that the publisher honestly believed the statement to be true, he must prove that the statement was in fact true. There are ten exceptions to the offence of defamation mentioned in section 499, which constitute the defences open to an accused. They constitute the privileged occasions, which exempt a person from criminal liability for defamation. Exceptions are:
1. Imputation of truth in public interest for public good.
2. Public conduct of public servant.
3. Conduct of any person touching any public question.
4. Publication of reports of the Court proceedings.
5. Merits of a case decided in court or conduct of witnesses and others.
6. Merits of public performance.
7. Censure passed in good faith by person having lawful authority over another.
8. Accusation preferred (made) in good faith to authorised person.
9. Imputation made in good faith by person for protection of his or other’s interest.
10. Caution intended for goods of person to whom the goods are conveyed or for public good.
Amount of publication
The defamatory matter should be published i.e. communicated to some person other than the one to whom it relates. Making a defamatory matter known to other person will amount to publication. Thus, dictating a letter to a clerk amounts to a publication. A man’s opinion of himself is not his ‘reputation’ and therefore communication of defamatory matters to the person defamed. In case of Boregowda and another v. C.D. Devaiah [3] the court held that for the purposes of a civil action for libel publication is the communication of defamatory matter to a third party. However, for the purpose of criminal proceedings, publication to the person defamed is sufficient. Merely, to write down defamatory words is not punishable as a libel. Even to deliver defamatory statement to another is not punishable if he is unaware of the content to be of defamatory nature. The essence of Publication lies in making the defamatory statement known to others after it has been reduced to some permanent form. If the writer of a letter locks up the defamatory content in his own desk, and a thief comes and breaks it open and takes away the letter and makes its contents known, that would not be a publication by the writer. Each communication of a libel is a separate publication in respect of which a civil action may be brought or criminal proceedings may be instituted. However, the Court has power to stay actions which are vexatious and an abuse of the process of the Court.
Subramanian Swamy v. Union of India [4]
In the instant case Supreme Court discussed the constitutionality of the criminal offence of defamation under section 499 and 500 of Indian Penal Code. Section 499 defines criminal defamation and section 500 prescribes punishment for the same. In this case Dr. Subramanian Swamy, a politician made corruption allegations on Ms. Jayalalitha, the late Chief Minister of Tamilnadu. In reaction, the Tamil Nadu government filed a defamation case against Dr. Subramanian. Dr. Subramanian and several other politicians challenged the constitutionality of criminal defamation law in India. A two judge bench of Justice Deepak Misra and P.C. Pant decided the same case.
The challenge before the court was that whether criminalising defamation is an excessive restriction on freedom of speech and expression which is mentioned under Indian Constitution and whether criminal defamation laws under Indian Penal Code are vaguely phrased and hence arbitrary.
Later court held that Section 499 of IPC is not an excessive restriction of freedom of speech and expression under Article 19 (2) of Indian Constitution. Society is a collection of individuals; if anything affects the individual it will affect whole society. It was held to treat defamation as a public wrong. Court mentioned in the judgment that criminal defamation is not a disproportionate restriction on freedom of speech because protection of human’s reputation is the fundamental right also. And court relied upon judgements where right to reputation is a part of right to life under Article 21 of Indian Constitution.
Court further held that Section 499 and 500 of IPC are not vaguely ambiguous or worded. To understand what framers of the constitution meant by term defamation in Article 19 (2), the court held that it has its own independent identity as it stands alone and defamation laws can be understood as they were when the constitution came into force.
Conclusion
Defamation is a serious offence either it is civil or criminal in nature. In civil law, if a person feels defamed, he/she can move either to the High court or trial court and seek damages in the form of monetary compensation from the accused. The remedies for civil defamation covered under Law of Torts and the person who defamed can demand a cost for damages. In case of criminal defamation person has opportunity to move to the criminal court. Defamation is a bailable, non-cognizable and compoundable offence, which means no police can register a case and start investigation without the court’s permission. If a person found guilty under section 499 and 500 of IPC, he could be sent to jail for period of 2 years. The main difference between criminal and civil defamation is that accused person can be sentenced to jail under the provisions of criminal defamation but in civil defamation provisions person can only claim damages from the accused person.
Approved & Published – Sakshi Raje
Reference
[1] Monsoon v. Tussauds ltd., (1894) 1 Q.B. 671
[2] N.C.E.R.T. v. P.D. Bhatnagar , 1980 Raj Cr 392
[3] 1999 (4) Kar LJ 496
[4] AIR 2014 SCW 4339
