Introduction
Defamation is defined as any maliciously false statement issued in written form or verbally that damages a person's reputation, undermines public perception of them, causes them to lose favour with others, or stirs up negative emotions such as hostility or dislike.
Reporting of a matter that tries to damage or harm the plaintiff's image among right-thinking people or discourage them from associating or doing business with him shall be acknowledged as defamation. Harming of some person's image or character through their words, whether spoken or written, signs, or other visual representations is defamation.
Wrongful acts (not words) that harm any person's reputation must be distinguished from defamation. The action of being assaulted publicly or being wrongfully detained may make a person feel ashamed, but these situations may not come within the sense of defamation because the reputation has not been damaged by the words used to describe them. Defamation is a tort that safeguards everyone's interest in a person's good name. Therefore, liability is absent until the defamatory information was communicated to an external party since the viewpoint of the individual who was defamed by others is what counts.
Nature of defamation
Following are the different kinds of defamation –
1) Libel
2) Slander
1) Libel
Act of making defamatory assertions regarding a person in print or other written form is Libel.
This can involve making defamatory or malicious claims directly, on paper, on a sign, or on a public platform. Publishing false information by using the media is also regarded as libel but whether something constitutes libel or slander depends on the medium used. Slander is audible whereas libel is visible.
Libel laws differ from state to state, but in general, to establish that a remark is libellous, one must persuade the court that:
1) A fabricated statement was released.
2) That statement had the potential to harm someone's reputation or had already done so.
3) The divulgence is neither privileged nor exempt (for example if the statement was used at a trial or during an employment reference)
Libel is recognised as a breach of the harmony in several jurisdictions, which classify it into criminal defamation. In certain states, criminal defamation is entitled to punishment by penalties, restitution, community service, and sometimes even jail time. Libel and slander are by far the most common types of civil torts that lead to civil lawsuits for damages.
Examples of libel:
1) “If a journalist publishes a false story which states that the chief executive officer of a company has swindled shareholders, the false story could malign the reputation of the CEO and cause shareholders to sell their stock in the company, thus damaging the organisation. Both, the CEO and organisation, in that case are victims of libel.
2) If a cartoonist draws and circulates a cartoon depicting a lone person stealing from a business in the distance (and that person has not lifted the shop). Viewers of the cartoon can get the notion that the person is a thief.”[1]
The incorrect statement that was published determines if the action qualifies as libel. if the cartoonist in the aforementioned scenario pasted the cartoon on their table or refrigerator rather than publishing it or sharing it with masses, their reputation was not harmed, libel would not have taken place.
2) Slander
A false comment made orally about any person that tarnishes his/her reputation or status in the society is known as slander. Slander is a civil violation that can be punished through a civil lawsuit even though it is not a crime.
Slander is very often used to describe inaccurate statements generated out of rage or malice.
The following components must be proven in a slander case to succeed:
1) Knowing it was false, someone made a defamatory remark.
That person or that assertion is considered to not to be "privileged."
2)When they published the statement, the one who gave the defamatory comment acted carelessly.
3)The slanderous speech caused harm to someone.
Slander does not apply to statements that are accurate or that the person speaking believes to be truthful. Although it can be tricky, statements that reflect a person's viewpoint are also not recognised as slander. The phrase "that's just my opinion" may not necessarily satisfy a judge that the speaker's intention was not malicious while delivering a detrimental comment.
Examples of slander:
“1) Informing someone that a specific person committed tax fraud or tax evasion.
2) Asserting that a person has a relationship with a management or supervisor in order to get promoted (this might be considered a slander against two individuals).
3) Telling untrue or fabricated tales to co-workers about someone robbing the petty cash or claiming to have a sexually transmitted disease.”[2]
Position of law in India
Both libel and slander are crimes in India that are punishable without showing that any harm has been done, according to the Indian Penal Code’s section 499.
Due to the likelihood that a defamatory statement may lead to a breach of peace, slander is a more serious offence under the Indian Penal Code than libel. This tendency is quite rare in libel.
According to Section 499 of the I.P.C., "Whoever makes or publishes any imputation concerning any person with the intent to defame, or knowing or having grounds to suppose that such allegation will defame, the prestige of such human, is said, other than in the cases hereinafter expected, to defame that person..”[3]
Explanation
1) If something is said about a deceased person that would damage their reputation if they were still alive and is meant to hurt their family or other close relations, it may be considered defamation.
2) Making an imputation about a business, association, or group of people as such may constitute defamation.
3) Defamation may result from an imputation that is offered humorously or as an alternative.
4) No accusation is considered to damage a man's reputation unless that accusation in a direct or indirect manner, lowers that person's moral or intellectual character in others’ eyes, or lowers that person's character regarding to his caste or his calling, or lowers that person's credit,
or causes it to be believed that the person's body is in an abhorrent state, or in a state that is generally thought to be disgraceful.
Innvendo
A statement is prima facie false if its plain and obvious meaning results in libel. Even though a comment seems to be absolutely innocent, it may still be seen as defamatory due to a secondary connotation. In this instance, the plaintiff must prove that the innuendo-based secondary reading of the statement meets the criteria for defamation.
Illustration
“My friend arrived, and my book was missing.
This is an innuendo. The insinuation is that the friend stole the book.”[4]
The defences available against defamation in tort law are as follows
1) Justification by truth - The perfect defence is the truth. If the given assertion is true, it does not amount to defamation. The defendant asserts the defence has the burden of proof.
2) Fair and Bonafede Comment - A fair remark on a topic of public interest is not defamatory. When the responder has only made reasonable comments on an issue of public interest, he may use this defence. This defence is founded on public policy, which accords everyone the right to comment on and critically assess without malice individuals who hold public office, work as actors, writers, or sports, or whose jobs depend on gaining public attention.
Even if it is untrue, any reasonable and honest view on an issue of public interest is equally protected.
3) Absolute Privilege- It offers the speaker full permission to say whatever they want, even if it's false, and releases them from accountability in the event of a defamation lawsuit. Defamatory comments are typically waived by full privilege provided that they occur during judicial procedures by government officials by lawmakers during debates in Parliament etc.
Landmark Case Law
Ram Jethmalani v. Subramaniam swamy [5]
Introduction
Justice Pradeep Nandrajog issued the decision in this case at the High Court of Delhi.
Subramaniam Swamy, the defendant, requested that the lawsuit be dismissed because there is no basis for the lawsuit and that it is barred by Section 6 of the Commission of Inquiries Act, 1952, in this application made under Order 7, Rule 11 read with Section 151 of the Code of Civil Procedure. His request was denied.
Facts
The plaintiff sued the defendant for defamation and libel, seeking damages in the amount of Rs. 50,000,000. This incident occurred in 1993. The Commission of Inquiry, which was established by the Government of India to look into the circumstances surrounding the assassination of late Shri Rajiv Gandhi under the Act, is alleged to have written to Ms. Jayalalitha (the then Chief Minister of Tamil Nadu) on October 20, 1993,
asking if she had anything to say about the information provided by the defendant in a letter. The plaintiff served as Senior Counsel to represent Ms. Jayalalitha, to question the defendant in cross-examination, and argue that there was insufficient justification to call her before the Commission.
The plaintiff cross-examined the defendant and made arguments. The defendant then submitted "written submissions" to the Commission, which were read out in court and distributed to the media. The defendant is additionally accused of making malicious and false per se libellous accusations against the plaintiff in the written submissions to harm his reputation in the personal, political, and professional spheres.
Judgement
The defendant's statement was defamatory. It involved exceeding the privilege, which was considered evidence of malice on its own. The actual malice on the side of the defendant was well proven, and the comment had little to do with and was irrelevant to the circumstances. This damaged the plaintiff's public perception, and such accusations damaged one's political and personal character because the LTTE is a prohibited organisation, and associating one's name with it damages one's reputation. But even though such a loss cannot be recovered, As per the law, the plaintiff was given a compensation award of Rs. 5 lacs while the defendant was penalised due to the defendant's social and professional standing.
Conclusion
To intentionally damage someone else's reputation is known as defamation. Everyone is allowed to protect their reputation, which is acknowledged as a priceless possession. This privilege has been acknowledged as a basic human right. Harm to any person's reputation is the essence of defamation, according to our analysis of all the crucial elements of defamation as defined by section 499 IPC. And a person has a strong case against the defendants for this harm. Libel and slander are the two sorts of defamation. In India, both are regarded as serious violations. This is subject to several exceptions known as privilege
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[1]Study.comhttps://study.com/academy/lesson/what-is-libel-definition-laws-cases.html(Last visited July 26. 2022)
[2] Legal Dictionary, https://legaldictionary.net/ (Last visited July 26. 2022)
[3] The Indian Penal Code, 1860, 499, No. 45, Acts of parliament, 1860 ( India )
[4] Supriya Maity, Innuendo: Definition - features and examples, Literary Ocean, (July, 26, 2022, 5:28 PM) https://literaryocean.com/
[5]Ram Jethmalani v. Subramaniam swamy AIR 2006 Del. 300.
This article is written by Arinjay Mishra of Symbiosis law School NOIDA.