Author: Shivani Udupa, V year of B.A.,LL.B. from Ramaiah College Of Law
“Right to protect one’s good name is the heart of defamation law”
- Potter Stewart
A good name is indeed the essence of defamation law. Every individual invests tremendous effort to build their name in society. In almost every profession we find the relevance of a good name attached to an individual of that field. Like a lawyer or a doctor, both have to establish their credibility and expertise in their fields through years of practice and knowledge gained. A reputation built in their respective fields contributes to a good name in society, which ultimately aids to sustain a comfortable livelihood. Hence it is imperative to protect the reputation built by an individual through years of hard work and dedication.
Amid a world full of lies and vindictiveness we find many people pulling one another down through their actions or words. The problem of defamation arises when such words and actions can harm a person’s existence to live a dignified life as guaranteed under Article 21 of our Indian constitution. It’s not just a mere rumour which spreads like a wildfire but has the power to destroy one's reputation to an extent of causing irreparable damage to the good name which is amassed brick by brick over a significant period.
Defamation Laws in India
Indian judiciary recognizes defamation of two kinds given under common law: Libel and Slander. Libel is generally written, printed or broadcast defamation while slander is through actions, words spoken or oral defamation.
An aggrieved party can seek damages or punishment for either by going through a civil or criminal suit of defamation respectively.
CIVIL DEFAMATION IN INDIA
Civil defamation doesn’t have a written codified law in India but is protected under the law of tort. In Civil defamation, Libel is actionable per se whereas slander is actionable only when some special damage can be proved.
Libel is considered to be a permanent form of defamation and it is generally addressed to the eyes. In the case of Youssoupoff v MGM Pictures Ltd (1934)[1]
The defendants made a film that falsely imputed that the plaintiff who belonged to a royal family was seduced and raped. The court held that the imputation is defamatory if it 'tends to make the plaintiff shunned or avoided.' The defamatory matter was in the pictorial part of the film and was held to be libel.
Slander is generally addressed to the ears. As mentioned above slander is not actionable per se but there are few exceptions to it when slander can amount to defamation without proof of any special damage:
When words that are spoken falsely charge a person with a criminal offence
Instituting a person to have a contagious disease
Imputation of incompetency/unfitness for Office or profession or trade
In De Stemple v. Dunkels.[2] The plaintiff's employer was a diamond merchant, and most of the customers of this business were Jewish. The alleged words, spoken by the defendant to the plaintiff's employer, were, "Victor [the plaintiff] is a Jew-hater." No special damages were proved. But the court held that these words were actionable per se, as they touch the plaintiff in his employment.
4. The imputation of unchastity or adultery to female
In Kerr vs Kennedy (1942), [3]it was held that a false statement on the sexuality of a girl is slander and actionable per se.
There are three essential elements for civil defamation under the tort law:
The statement must be false and defamatory
The statement must be referred to the plaintiff
The statement must be published.
Due to no written and existing laws in India for civil defamation, we entirely depend on Common law as a resort. Defences for defamation under tort are justification or truth, fair and bona fide comment, privileges and apology. In case of apprehension of defamation or defamation, a suit for an injunction can also be filed by the aggrieved party. Civil defamation is only for any living person whose reputation has been hampered, it gives no protection to the reputation of a diseased.
CRIMINAL DEFAMATION
Article 21 of our constitution guarantees the right to life and personal liberty. The meaning of the ‘life’ is extended to understand that it also includes the right to live a dignified life, the right to reputation flows from it. Protection for criminal defamation is guaranteed under various provisions of Chapter XXI in IPC. It includes sections 499-502, that talk about charging and punishing sections for criminal defamation as well as for printing or selling the printed substance containing defamatory matter. Section 199 of CRPC deals with Prosecution for defamation of offences mentioned under Chapter XXI of the IPC.
Dicey Position of Criminal Defamation in India
Criminal defamation was first propounded in British India with the objective in mind to protect the interests of the British Raj, ensuring the security of the state and maintaining public order. Section 499 of IPC was there in the first draft of IPC and subsequently got codified as well. To date, it has remained the same and is unaltered. The roots of criminal defamation come from flawed Victorian law. Many noblemen were dying in man-to-man fights over rumours and slanders about the chastity of women or the vigour of men therefore the English lawmakers introduced criminal penalties for defamation to discourage reprisals by private individuals. The question which arises is that when the UK presently has decriminalized defamation, why are we still following colonial rule?
There were attempts made to remove the provisions for defamation in IPC while questioning its constitutional validity.
The supreme court in Subramanian Swamy Versus Union of India, Ministry of Law and Others[4] rejected the challenge of Sec. 499 and Sec. 500 of IPC being unconstitutional and violative of Art 19 (1)(a) that protects freedom of speech and expression. Reasons established by the court for their decision were as follows:
1. The freedom of speech and expression guaranteed under Art 19(1)(a) of the constitution is not an absolute right and is subject to reasonable restrictions under Article19(2) which includes defamation
2. Section 499 of IPC also provides for extensive exceptions to criminal liability such as absolute truth for the public good, fair comment, public conduct of public servants, etc. This is enough to constitute a significant counterfactual to exclude frivolous complaints.
3. Damages paid under tort law may not be enough to discourage defamation. Especially in the modern era of electronic and social media, the good name of an individual can be tarnished easily therefore it requires remedies under criminal law.
But this verdict of the Supreme Court received many criticisms and one cannot close their eyes to such condemnations.
Firstly, it can be used as a tool of harassment to intimidate opponents. The text of Section 199 of the Code of Criminal Procedure and Section 499 of IPC can be easily invoked and enables any alleged defamed person to drag anyone to courts across the country. Criminal defamation suits are many times filed by affluent people to punish their critics. Furthermore, Section 499 can be invoked to prosecute a person in a criminal process on a mere allegation that the defendant conspired with the person who allegedly made the defamatory statement, even if the defendant hasn’t made any such statement at all. This would also waste the court’s crucial time and resources when we are aware that there are so many pending suits in criminal courts already.
Secondly, in a democratic country like India, it limits the scope of dissent and criticism thus has a chilling effect on free speech. It can be used to initiate Strategic Litigation against Public Participation suits in multiplicities across all the jurisdictions of the court, especially in online spaces. As we witnessed during the #MeToo allegations that criminal defamation charges were filed against women who gathered the courage to speak out. However to a great extent scrapping Section 66A of the Information Technology Act 2000 on the ground of being unconstitutional has removed the restrictions on online speech.
Thirdly, the extensive exceptions given under section 499 include truth for the public good. This means that truth alone can hold no defence if one cannot prove that such a statement was made for the public good. This is a question of fact that has to be assessed by the court, and if there is an absence of larger public interest in the statements spoken, it can lead to defamation regardless of whether the truth has been spoken or not. So people will refrain from making true statements against politicians or people in power because there is a risk of the court not finding the statement to be for the public good. This directly contributes to the chilling effect on free speech as mentioned in the previous point. It is also argued that since defamation is a private wrong, it should be dealt with only under civil law for damages.
Fourth, a person may be prosecuted for his statements about the dead too. Protection of the reputation of the dead under criminal defamation seems to be excessive and overbroad when the same can be protected under civil law if proper legislative actions are taken to strengthen civil defamation over criminal defamation.
So from the above reasons, it is definite that the status of criminal defamation in India has many uncertainties and loopholes that need to be addressed. The international and regional human rights bodies have also shown repeated concern towards criminal defamation and have asked the states several times to decriminalize defamation.
“The UN Human Rights Committee has made clear that States should consider decriminalising defamation and that, even in the most serious cases, imprisonment is never an appropriate penalty”.[5]
The above extract is from OHCHR guidelines where they requested the Thai government to revise their civil and criminal defamation laws to prevent defamation laws from being abused. It’s time that the Indian judiciary and legislature think in correspondence to the understanding of the UN with relation to Defamation Laws.
Conclusion
Our National Motto is “Satyameva Jayate” which means “Truth alone triumphs”. However, the truth alone is no defence for criminal defamation in some matters. We as a nation have failed to adhere to our national expression. The absence of civil defamation legislature has led to criminal defamation law overshadowing the civil defamation law. There are large numbers of people who aren’t aware of the civil resort for defamation. The two attempts: The defamation bill in 1988 and the effort in 2018 of our current government of Narendra Modi, to codify the civil defamation also failed. While we cheer as a nation to bring in a reformative justice system and tolerance, the punishments for a private wrong like defamation are undoubtedly unreasonable. It portrays that we are going back to reasons why defamation laws were introduced in IPC during colonial India. The locus of defamation law in a democratic country like India is merely to protect the reputation and good name of an individual but not at the cost of restricting a person’s right to put his opinion forward or to say something which lifts the veil of a lie.
1. Youssoupoff v MGM Pictures Ltd : (1934) 50 TLR 581
2. De Stemple v. Dunkels: [1938] 1 All E.R. 238, 246
3.Kerr vs Kennedy:[1942] 1 KB 409
4. Subramanian Swamy Versus Union of India, Ministry of Law and Others :[2016] 2 MLJ (CRL) 542
5. United Nations Human Rights Office Of High Commissioner, Thailand: UN experts condemn the use of defamation laws to silence human rights defender Andy Hall,https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23095&LangID=E