DETAILED SCRUTINY OF INDIA'S DEFAMATION LAWS: ADEQUACY OF THE EXISTING PROVISIONS
Updated: Jun 7, 2021
Author: Snegapriya V S, II year of B.A.,LL.B.(Hons.) from Vellore Institute of Technology (VIT School of Law), Chennai.
In layman’s terms, defamation is the act of causing injury to a person’s reputation with a vexatious quo animo. Section 499 of the code has been enacted to protect the dignity, honour, reputation, and integrity of the citizens with it endorses a person’s right to reputation. Since the reputation qua the property of a person is a fundamental right dealt with under Article 21 of the Indian Constitution, such damage to the property alias reputation are both a crime and a civil wrong. By penalizing the offence of defamation, the law has fortified the Constitutional right of an individual to lead a dignified life by holding his reputation.
The classical definition of defamation was propounded by Justice Cave in the case of Scott v. sumpsonas 'defamation is a discredit to a man by the means of making a false statement'. Comprehensively, defamation is the act of publishing unjustified ascription about a person, which might be an injury to his reputation or tend to make him an object of ridicule or hatred. In the light of the maxim ‘Ubi jus ibi remedium,’ the law has empowered the aggrieved person to file a civil suit for damages and criminal prosecution for punishment and fine.
Section 499 of the code elucidates the offence of defamation. The code per se prescribes the punishments of defamation under Section 500. Besides, the civil actions are codified as like the common law. The aggrieved person can seek damages by filing a civil suit under tort law. Concerning the civil suit, the burden of proof is comparatively less, as the truthfulness of the defamatory remarks alone can be a defence. Per contra in criminal prosecutions, the onus lies on the defender to prove that he intended (mens rea) for public good with the publication depicting the matter of truth.
Defamation in Indian: An overview
Forms of defamation
Slander- oral defamatory utterance or any other transient mean.
Libel- written defamatory statement (permanent mean of publications).
However, criminal law treats both the same. Indeed, in the Hirabai Jahangir v. Dinshaw Edulji case,the slander suit filed by a married woman against the defendant in addition to the criminal proceeding, where the court has lucidly provided that the distinction between slander and libel is not requisite, and both are defamations.
Thus, according to the code, whatever may be the mode of disseminating misinformation about a person with the intent of damaging his reputation and dignity, it will be considered defamation. The importance of the right to live a dignified life was succinctly delivered in the case of Deepak Balraj Bajaj v. the State of Maharashtra, by the mean of interpreting the sanctity of Article 21 (Right to life) as it endorses every Indian citizen to live with their reputation. The court uttered that the reputation of a person was part and parcel of his right to life.
The constitutional right of free speech and expression has enshrined in Article 19(1) (a). Despite being the cornerstone of a democratic country, Article 19 perplexes the implication of this trite law. However, there are certain restrictions, which have been imposed under its subsequent clause (2). It is pertinent to note that defamation is one among those reasonable restrictions provided under Article 19(2). The Apex court expounded the same in the case of Chintaman Rao vs. the State of Madhya Pradesh by quoting the word interest of public order in the context of Article 19(2).
The criminal defamation suit may end up with the award of imprisonment. Similar to any other crimes, this trite law necessitates the presence of requisite mens rea, and the general principle “proof beyond a reasonable doubt” governs the defamation law. Section 499 connotes that the false imputation leads to defamation with mens rea is a criminal offence.
Imputation: in general parlance, imputation is suspecting and claiming with an accusation on someone. The attribution per se is not defamation but connotes defamation. For example, imputation against a deceased person tends to harm their kith and kin, branding someone as a drunkard, goonda, statements questioning the character of the women, and so on were held defamation via catena of judgments.
Ingredients prescribed by Section 499 of the code
Publication of imputations or defamatory statements has to be made.
Such imputation shall be made by words either spoken or written, or by signs, or by any other visible representations.
Again mens rea is necessary. That is, the alleged imputation should be made with the intent to defame the concerned person.
The three elements of the Section
His reputation, and
Defamatory imputations with requisite mens rea
In the case titled Mahendra Ram vs. Harnandan Prasad, a defamatory letter was sent to the plaintiff in Urdu by the defendant, who knows that the plaintiff is not adept at language Urdu and seeks someone's assistance to read the same. In this case, the defendant held liable for his deed of sending a defamatory letter to the plaintiff with the intent of defaming him.
The Hon’ble High Court of Delhi in the case of Ram Jethmalani vs. Subramanian Swamy held Swamy liable for alleging a false accusation on Jethmalani that he received a bulk of the money from a banned organization for the sake of preventing the former Tamil Nadu Chief Minister in the Rajiv Gandhi assassination case.
The T.V., Rama Subba Iyer v. A.M.A Mohideen is the case, where the defendant held liable by the Hon’ble Madras High Court for publishing a general statement about a specific person doing the business of transporting Agarbathis to Ceylon, who got arrested for the offence of smuggling. Even though the defendant lacks the mens rea to defame, he had damaged the plaintiff’s reputation unknowingly.
In civil law, the offence of defamation falls under the Law of Tort, and it requires all the ingredients prescribed by Section 499 of the code. But, by filling the civil suit, the aggrieved party can claim monetary compensations that are not available at criminal proceedings. In the matter of defamation, both criminal and civil suits shall take place simultaneously.
Conditions to constitute defamation under civil law
The Defamatory statement should be made
Such imputation should be in specific refers to the plaintiff
It should be published, which means besides the aggrieved person, the third party should know it.
Reiteratively, the burden of proof that rests on the defender is comparatively lesser than the criminal proceedings. Since the truthfulness of the defamatory imputation is the complete defence.
In the case of D.P.Choudhary vs. Manjulata, wherein the court looked after the plaintiff's concerns, who had his marriage cancelled because of false news published in a local newspaper. Consequently, the defendant was held liable, and the plaintiff was awarded 10,000INR as compensation.
As mentioned earlier, the catchall concept of defamation can be categorized into libel and slender. Concerning digital defamation, online libels are more prevalent than the latter since a broad set of defamatory statements are made online in the form of texts, posts, blogs, or emails. The cyber defamations are not vague, amorphous or undefined yet it is divergent.
The crimes that are committed through computers, by the means of using them as a tool or target or a perpetual medium to engage in a series of crimes are called cyber crimes. This notion has an expanded meaning and shall not be limited only to the computer beside it includes the internet, software, data, computer network and more. Therefore, the precise definition of cyber defamation could be construed as, the defamation that occurs in cyberspace by the instrumentality of computers. Although the dimensions where this act performed baptized the defamation viz. physical defamation and cyber defamation, the law applies shall not dissimilar. Generally, liabilities of cyber defamation fall on,
The author, and
The publisher, But it is noteworthy that Section 79(1) of IT Act, 2000 provides that the intermediary shall not be made liable for the act committed by any third party, where he just acted as a facilitator and abides by the subsequent clause 79(2) of IT Act.
Can the IPC provisions be applied to cyber defamation?
Section 499 of IPC has not confined its ambit only to non-digital defamation. Similarly, Section 469 of IPC can be invoked in matters of forgery committed with the intent of discredit someone’s reputation. It is appropriate to note that Section 469 of the code penalizes the creation of fake accounts and fake documents to harm other reputations. Section 503 of IPC dealt with criminal intimidation to alarms a person’s reputation. Furthermore, the aggrieved person, who felt defamed in cyberspace, can file a complaint before cyber crime investigation cell at the national cybercrime reporting portal
SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, the first-ever cyber defamation case, wherein the court issued an interim order to restrain the defendant from defaming the plaintiff in both the cyber and physical world following the defendant act of sending offensive and defaming emails to the companies employers and subsidiaries. In the case of Kalandi Charan Lenka v. the State of Odisha, the accused was held liable by the High court of Orissa for creating a fake account and sending obscene texts.
The Shreya Singhal v. Union of India is the judgment concerning the constitutionality of Section 66A of the IT Act, 2000. Though this Section was included by the 2008 IT (Amendment) Act, the whole Section was revoked by the Apex court as it had been the suppressor of free speech granted by Article 19(a) of the Indian constitution.
The advent of the internet is the breakthrough in the voyage-in-progress of techno advancement. The cyber society is quite different from physical society as the former does not necessitate the face-to-face participation of the community, which makes it heterogeneous unlike the latter. As being the facilitator of the digital medium of communication, the internet never failed to bring the world closer to people who have access to it. Doubtlessly, one cannot overlook the contributions of cyberspace as it enlightens people with enormous information, given a new dimension to trade and businesses. Even social media qua one of its outgrowth aids in e-shopping, online job hunting, social networking, and everything possible through the internet. But then, who is its gatekeeper? Too much of anything is always good for nothing, apropos, the complexities of this intangible media are also there. For instance, social media has led to the emergence of cyber defamation; this complex obscure term connotes trolls, abusive public comment, and chat rooms on social media. The commission of defamation in a medium like non-physical cyberspace by cyber society is challenging the efficacy and efficiency of existing legislations.
The alleged defamer always relies on the fundamental right to free speech under Article 19(1) (a) and defends himself by lambasting that defamation laws are the suppressor of said right. Regardless, the Apex has addressed and balanced this issue regarding the conflict of right to free speech and right to reputation. Judiciary always elucidates the ambiguities of the legal provisions, thus, concerning the adequacy of the existing defamation laws in resolving the arisen issue, it is competent. But then, it is noteworthy that the completeness of law always depends on its mastery in dealing the future contingencies. However, defamation laws in India are complete but have minor weaknesses in addressing cyber defamation. Therefore, it desires amendments.
· Shourya Shubham, Defamation law in India, LEXLIFE INDIA, https://lexlife.in/2020/05/03/defamation-law-in-india/
· Meril Mathew Joy and Shubham Raj, Defamation on Social Media- What can you do about it? LEXOLOGY, https://www.lexology.com/library/detail.aspx?g=d3075f4d-afb5-4920-bf59-26cf5d054ab8
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