DEFAMATION: AN EMERGING OFFENCE

Introduction:

The Constitution of India grants various fundamental rights to the citizens of India and Right to freedom of speech and expression is one of the rights under which every citizen has a right of free speech and expression but this right is not absolute as it is subject to certain reasonable restrictions and defamation being one of them which puts a restriction upon this guaranteed freedom.



Reputation is that Asset which a man wants to earn and maintain in society. As stated by Publilius Syrus that “A Good reputation is more valuable than money '’. The only real Asset one has is one’s reputation which a man earns during his whole life journey so no one has any authority to harm anyone’s reputation. This right to reputation is an inherent right under Article 21 of Constitution of India which is an indispensable part of our lives. And in order to protect this right legislation has enacted various legal provisions.



The act of defamation is considered both civil and criminal wrong. It is considered as civil wrong if wrong affects a single individual but if whole society is affected then it is considered as a criminal wrong. Defamation as a civil wrong is provided under law of Torts which provides for penalizing the accused by making him liable to pay damages to the victim in the form of monetary compensation. On the other hand, defamation as a criminal wrong is codified as a penal provision under section 499 and 500 of Indian penal code 1860[1]. This article focuses on defamation, its essential elements and forms and it also discusses the defenses which a person can use while making statements about someone.



Defamation:

Defamation as the meaning of word suggest is an injury to the reputation, character and fame of a person resulting from a statement which is false and malicious. On other words it is the publication of statement which has tendency to lower a person in the estimation of right-thinking members of the society or which makes person shun or avoid [2]. A sentence is considered as defamatory when it causes any one to be regarded with the feelings of hatred, contempt, ridicule, fear, dislike or destem. So, it is right to say that the essence of defamation is to injure a person’s character or reputation. As in a case it was held that the imputation by the defendant that the plaintiff, a widow of 45 years, is a keep of the maternal uncle of the plaintiff’s daughter -in – law, is a definite imputation upon her chastity and thus constitutes defamation.[3]


Essential Elements:

The main point on which we should focus is that what constitutes an offense of defamation i.e., it’s essential elements because mere criticism or opinions does not form defamation. So, the very first essential of the offence of defamation is that the statement must be defamatory. It should be such which tends to lower the reputation of the plaintiff and this test to check whether a statement is defamatory or not will depend upon how the right-thinking members of the society are likely to take it. As in a case Arun Jaitley filed a defamation suit claiming Rs 10 crore as damages and a criminal defamation case against Arvind Kejriwal and 5 other AAP leaders for their alleged “scandalous” remarks against him in connection with purported financial irregularities in the Delhi and District Cricket Association (DDCA). [4]The court held remarks as defamatory but the matter was finally disclosed after all the defendants apologized for their actions.



Secondly the defamatory statement must be about the plaintiff. Even if the statement does not mention the plaintiff by his/ her name, it can be actionable on the ground of Defamation if a reasonable person would understand the communication as referring to the plaintiff.[5] As in the case of T.V Ramasubha Iyer versus A.M.A Mojindeen ,[6] The court held the defendants liable for publishing a statement that a particular person carrying the business of Agarbathis to Ceylon had been arrested for the offence of smuggling. And the plaintiff was also one of the people carrying on a similar business and as a result of this statement his reputation was damaged.



Thirdly, the statement must be published. It must be communicated to a third person other than the person defamed. If there is no publication there is no injury of reputation and no action will arise. In Theaker versus Richardson [7], it was held that communication of a matter defamatory of one spouse to the other is sufficient publication.

Any statement which contains the above-mentioned elements is to be considered as a defamatory statement but the form of defamation may be different i.e., it may be in the slander form (non-written form) or in the libel form (written form). Both these forms of defamation are criminal offence under section 499 of Indian penal code 1860.



Defamation as a Criminal wrong:

Defamation is one of the restrictions on the fundamental right of freedom of speech and expression as provided by Article 19 of the constitution. It is a process to ensure that nobody harms the reputation or creates a false image of any person in the public eye. The criminal law on defamation is contained in section 499 and 500 of Indian penal code. Section 499 provides that “Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person is said to defame that person.’’ And section 500 provides for the punishment of simple imprisonment for a term which may extend to two years or with fine or both [8]. In a recent case Bihar Deputy Chief Minister Sushil Kumar Modi filed a defamation case against Congress President Rahul Gandhi for his reported statement that “all thieves have Modi in their surname '’ by alleging that it defames and hurts the sentiments of everyone who has Modi surname.



Defenses available under Defamation:

There are certain defenses available to an action for defamation by which a person can be prevented from being liable for the action of defamation and they are as follows:

● Justification or Truth: Justification or truth is a complete defense in civil action for defamation but under criminal law it is not sufficient to prove that statement is true as it is also mandatory to prove that imputation made is in the interest of public good.


● Fair comment: It is also a defense in an action for defamation and but there are few essentials of fair comment which are as follows

1. Firstly, it must be a comment i.e., an expression of opinion rather than assertion of facts

2. Secondly, that comment must be fair.

3. Thirdly the matter commented upon must be of public interest. [9]



● Privileges: There are certain occasions where lawmakers have decided that one cannot sue for defamation in certain instances when a statement is considered as privileged. And this privilege is of two kinds:

1. Absolute privilege

2. Qualified privilege


Conclusion:

A man’s reputation is his most valuable asset than any other property but this asset is damaged by an act of defamation. If anyone damages someone’s reputation, one can sue for defamation under torts of law or under section 499 of Indian penal code 1860. As India has become a digital world due to which a new crime has emerged in the society which is known as cyber defamation. It’s a new concept but it virtually defames a person through a new medium[10] . So, this act of defamation needs to be properly regulated by laws because people in the name of freedom of speech and expression use social media platforms to abuse someone.


[1] Sujata Dahiya, Defamation: In Indian Context, Volume 4 IJIM, 14-17 (2019) [2] Winfield, Tort 293(12th edition) [3] Ramdhara v. Phulwatibai (1969) Jab.L.J 582 [4] Arun Jaitley v. Arvind Kejriwal, 2017 [5] Advocate Chirag Shah, Defamation Law in India Criminal defamation, Chirag Shah & co. Blog ( last visited 24 June 2022 ) https://www.advocateshah.com/blog/defamation-law-in-india-criminal-defamation/ [6] T.V Ramasubha Iyer versus A.M.A Mohindeen , A.I.R. 1972 [7] Theaker versus Richardson, (1962) [8] Indian penal code, 1860, sec. 500, No. 45, Acts of Parliament, 1860 [9] Dr. R.K Bangia, Law of Torts 167(25th ed. 2020) [10] Mamta Kumari, Today’s Memes culture and online defamation, Lex Articles, (last accessed 25th June) https://lawlex.org/lex-pedia/todays-memes-culture-and-online-defamation/24494/amp



This article is written by Monika Bidiyasar of Manipal University Jaipur.

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