DEFAMATION, CLAIM, ACTIONABILITY AND DAMAGES

An Indian female journalist, Priya Ramani, who took part in the Me Too movement, has publicly referred to a political figure’s predatory behaviour. The politician filed a case of defamation against Priya but Priya was cleared of all charges after it has been proved that she was a sexual abuse survivor and that she was thus entitled to raise her voice against her abuser even after decades[1]. The Court held that the reputation of a sexual abuser is not to be protected by the law of defamation[2]. The law of defamation was asserted to exist for the protection of someone’s reputation in Mr. Umar Abid Khan and others versus Vincy Gonsalves alias Vincent Gonsalves and others 2010 and for that to happen, freedom of speech must be distinguished from defamation or be limited so as to exclude defamatory speech. The balance struck between freedom of speech and defamation were constitutional issues at the core of decisions made by the Supreme Court of India. These will be dealt with in this article after a discussion about defamation law, its claim, actionability and damages.



Satish Kumar V/s Inderjeet Singh 2006 provided an elaborate definition of the wrong of defamation. Defamation is caused by a defamatory statement which is a statement that seeks to negatively impact on someone’s reputation, in other words to damage it among people. Its aim is to lower the esteem of someone in society and to cause people to be repelled by him. Such an act can cause the victim to lose his profession or to be unable to do certain things such as to marry as in the case of D.P. Choudhary And Ors. vs Kumari Manjulata on 4 April, 1997. To succeed in establishing a defamatory statement claim, the statement has to be assessed in relation to how much adversity it would generate against the plaintiff. The defamatory statement further has to be a false one and made without lawful reason (Satish Kumar vs Inderjeet Singh 2010). There are two forms of defamation: libel and slander. The first one consists of a defamatory statement in a written, permanent one, whereas the other one is “transitory” in its being orally made or made in a way equivalent such as through gestures language. A claim of defamatory statement will fail where the defendant can prove the statement was true. There is no punishment to a true statement that injures someone’s reputation. A negative complaint of the reality of a malfunctioning of the office of a Society did not constitute the basis of a successful action for defamation in the case Punjabi Bagh Co-operative Housing Society Limited V/s K.L Kishwar & Anr. 2002. Similarly, a complaint based on truth was not found defamatory in Satish Kumar vs Inderjeet Singh 2010.



There further exists a statutory definition of defamation laid down by section 499 of the Indian Penal Code. The section provides that defamation is making an accusation in whichever form with the intention to harm. Such an intention includes having knowledge that the imputation will cause harm to the person in question. The section further provides details as to the different forms that defamation can take. For example, a defamatory statement about a deceased person is considered as defamation if it would cause harm to the deceased were he alive and if it is made to attack the feelings of his family members. Defamation can also take the form of an ironic statement. Finally, the section stipulates that the imputation must have the effect of discrediting the person in question or of lowering his worth among the people.



Damages for defamation are to be awarded in a way to compensate the damage that has been caused by the defamation. The damages according to the case Mr. Umar Abid Khan and others versus Vincy Gonsalves alias Vincent Gonsalves and others 2010 must also vindicate the name of the plaintiff and include any psychological harm that has been suffered such as humiliation and distress. A number of factors will then need to be taken into account[3] such as the extent of the circulation of the imputation and its gravity, the importance and character of the plaintiff’s reputation and the effect of the imputation to it.

The law of defamation does not seek to prevent the free expression of defamation or of what the State considers as defamation whenever an attack is done against it following the Supreme Court decision in R. Rajagopal vs State Of T.N 1994. The Court decided that the State was not allowed to restrict free speech of the press. Defamation is no basis to restriction of press criticism of government actions or public figures’ issues in public events as long as their right to privacy is not violated. The Court held that the Government cannot restrict defamatory statement in advance by restricting freedom of speech altogether.



Rather, whatever defamatory statement is made will be judged according to the law of defamation, as explained above, after publication and not before through freedom of speech restraint. The State is entitled to remedy after the defamation is committed and is not entitled to the restraint of free speech for the purpose of preventing defamation. Such a decision comes as a balancing of freedom of speech and defamation in spite of Article 19 of the Constitution allowing “reasonable” restriction of freedom of speech by the State in the case of defamation. It is the “prior restraint” system that was deemed not to fall within the reasonable restrictions of defamation under Article 19. It was further held that in respect of the right to privacy, it is not all matters that are published that can be in breach of such right. For example, public records are not subject to privacy except where in the case of decency interests, the name of victims of offences should be protected and not publicised. The right of privacy also covers the actions of public officials in so far as those actions are not done during the exercise of their public functions.



It can thus be concluded that despite the Court holding in Mr. Umar Abid Khan and others versus Vincy Gonsalves alias Vincent Gonsalves and others 2010 that freedom of speech excludes defamatory statements, the Supreme Court held in R. Rajagopal vs State Of T.N 1994 that freedom of speech cannot be restricted to prevent defamation. However, the first case decision was meant to highlight the fact that freedom of speech cannot be used as an excuse to defaming someone. After application of the relevant law on defamation, one cannot claim that he was free to speak false accusations on someone thereby destroying his reputation. On the other hand, the Supreme Court case of R. Rajagopal vs State Of T.N 1994 concerned the restriction of the Government’s attempt to restrict free speech for what it would consider defamation before publication. The Court asserted the fact that the law of defamation will apply whenever defamation occurs but that the restraint of freedom of speech to prevent an act of defamation that has not occurred yet is not a reasonable restriction and not within the constitutional scope of restriction. It is arguable whether such a decision struck a perfect balance between freedom of speech and defamation because apart from its concluding positivist legal statement “There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media”, the Court did not explain why such restraint should not happen through a natural law perspective.



The reason for this criticism is that why should we wait for the publication of defamatory statements and have it cause damage to different unpredictable extents for an action to be made against it? It would cause a waste of litigation resources, as well as the resources of the plaintiff in vain, and a waste of time. Why would it not be the case that where the government has valid grounds to restrict defamation from happening, yet maintaining the option to appeal or judicially review such a restriction, then such restriction would amount to a fair restriction of freedom of speech? It is here suggested that this might be a closer interpretation to the words of Article 19 of the Constitution.

[1] Boost for India’s #MeToo as journalist cleared of defamation, Kazmin, Amy . FT.com ; London (Feb 17, 2021) [2] idem [3] Paragraph 38 of Summary Of Papers of Judicial Officers on Defamation: its civil and criminal liability, http://mja.gov.in/Site/Upload/GR/Title%20NO.43(As%20Per%20Workshop%20List%20title%20no43%20pdf).pdf


This article is written by Zina Balkis Abdelkarim, of University of London Worldwide.

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