As the name suggests, defamation is any kind of activity that aims to tarnish the reputation of an individual. However, when viewed from the Indian legal perspective, there are several definitions and exceptions for this term. Familiarity with the laws governing defamation will equip you to identify an offender and uphold your integrity if you ever encounter such a situation.
Definition
There are numerous definitions of the term ‘defamation’:
- Merriam Webster: The act of communicating false statements about a person that injures the reputation of that person.
- Oxford: The act of damaging someone’s reputation by saying or writing bad or false things about them.
- Black’s Law: The offense of injuring a person’s character, fame or reputation by false and malicious statements.
- Layman: The act of communicating to a third-party false statement about a person that results in damaging that person’s reputation.
- Legal (Indian Law): As per Section 499 of the Indian Penal code, ‘whoever, by words either spoken or intended to be read, or by signs or by visible representation, 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, except in the cases hereinafter expected, to defame that person.’
Different Types of Defamation
Defamation can result in two types of liabilities in India – either civil or criminal. The liability for defamation on the criminal side is governed by Sections 499 and 500 of the Indian Penal Code (IPC), 1860.
- Section 499 of the IPC consists of the definition and explanation of defamation. It defines 10 exceptions, wherein an individual cannot be charged for defamation if they fulfill any of those 10 exceptions.
- Section 500 of the IPC states the punishment for anyone found guilty of making a defamatory statement.
| Note: There is no codified law (statue) that governs the civil liability for making a defamatory remark. |
The Indian Courts always follow common law principles and precedents to decide a dispute relating to a defamatory remark/statement which is civil in nature.. It also recognized that both the proceedings can proceed simultaneously.
However, as mentioned before, while the criminal proceedings shall be governed by Sections 499 and 500 of the IPC.
10 Exceptions to Defamation
The 10 exceptions to defamation, as discussed by the Supreme Court in Subramaniam Swamy vs. Union of India, 2016, are mentioned below.
- 1st Exception – Suggestion of truth for public good
Any suggestion that is true with respect to any person, if it is for the public good that the suggestion must be made or published, shall not fall under defamation. However, whether it is for the public good or not is a question of fact.
- 2nd Exception – Public conduct of public servants
Stating, in good faith, any opinion with respect to the conduct of a public servant in the performance of their public duties, or with respect to their character, so far as their character appears in that conduct, and no further, shall not be deemed as defamation.
- 3rd Exception – Conduct of any person touching any public question
It is not considered defamation to say, in good faith, any view related to the conduct of any individual stirring any public question, and respecting their character, so far as their character appears in that conduct, and no further.
- 4th Exception – Publishing reports of court proceedings
Publishing any substantially true report of any Court of Justice’s proceedings or the results of such proceedings shall not be considered defamation.
- 5th Exception – Stating views decided by court
It is not defamation to state, in good faith, any view with respect to any case, be it civil or criminal, that has been decided by a Court, or with respect to the conduct of any individual as a partly, witness or agent, in any case, or respecting the character of such individual, as far as their character appears in that conduct, and no further.
- 6th Exception – Merits of Public Performance
Stating, in good faith, any view regarding the merits of any performance that its author has submitted to the public’s judgement, or regarding the character of the author, as long as their character appears in such performance, and no further.
- 7th Exception – Censure passed in good faith by person having legal authority over another
It is not defamation if a person has legal authority over another, either granted by law or stemming from a legal contract made with the other, to pass in good faith any criticism on the other’s conduct with respect to matters that such legal authority relates.
- 8th Exception – Accusation placed in good faith to authorized individual
It is not defamation to place, in good faith, an accusation against any person to any of those who have legal authority over that individual with respect to the subject-matter of accusation.
- 9th Exception – Claim made in good faith by person to protect their or other’s interests
Making a claim on the character of another individual, provided that such claim in made in good faith, to protect the interests of the person making the claim or of any other individual or for the welfare of the public, shall not be deemed as defamation.
- 10th Exception – Caution intended for welfare of person to whom it is conveyed or for public welfare
Conveying a caution, in good faith, to an individual against another shall not be deemed as defamation, as long as such caution is intended for the welfare of the individual it has been conveyed to or of some individual who that person is interested in or for public welfare.
Civil Defamation
As per Law, publication of a statement that tends to lower a person in the views of the right-thinking members of society is considered as defamation. Certain conditions must be fulfilled for a statement to account for defamation under Law. These conditions are:
- The statement made must be defamatory: Defamatory statements have a tendency to harm the complainant’s reputation. Any claim that exposes an individual to disgrace and humiliation, ridicule or contempt is considered defamatory.
- The statement must be referred to the complainant: If the claimant can prove that the defamatory statement refers to them, the defendant shall be held accountable.
- The statement must be published: A defamatory statement must be known by some individual other than the individual defamed. Unless this is done, no civil defamation suit can be filed.
Criminal Defamation
Anyone, through words spoken or by signs or through visible representations makes or publishes any claim regarding any individual with the intention to harm, or knowing or having reason to believe that such a claim can cause harm to the reputation of the concerned individual, is considered to defame that individual.
The IPC gives the defamed individual the right to move to a criminal court and ask them to take notice of their complaint.
| Note: It is a bailable, non-cognizable and compoundable offense, which basically means the police cannot register a case and start investigating without the court’s permission. |
As per the provisions provided under Section 499 and 500, an individual found guilty of defamation can be sent to jail for
two years.
- In a criminal defamation case, the complainant must be able to prove that the accused intended to defame them.
- In the absence of intention, the complainant must prove that the accused had knowledge that the publication would likely defame the complainant.
- A normal stand of proof in criminal cases, which basically proves the offense beyond any reasonable doubt, must be presented before the court.
| Note: As it is a compoundable offense, if the complainant and the accused can enter a compromise, a criminal court can drop the charges. This is applicable even if they do so without the permission of the court. |
Immunity Granted under Article 19 of the Constitution
Article 19 (1) (a): All citizens shall have the right to freedom of speech and expression.
Article 19 (2): Nothing in sub-clause (a) of clause (1) shall affect the working of any existing law, or prevent the State from creating any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of 4 [the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offense.
There have been several controversies regarding how defamation laws violate the rights granted under Article 19 of the Constitution. However, the Supreme Court has stated that the criminal provisions of defamation are not in conflict with the rights under Article 19 and deemed them constitutionally valid.
It also stated that the freedom of speech and expression is completely sacrosanct and is not absolute. Furthermore, the right to life under Article 21 shall also include the right to reputation of a person and cannot be punished by the right of free speech of another individual.
- It is found quite often that the right to reputation and freedom of speech clash with each other, where one person’s right to free speech may violate the right to reputation of another individual.
- When someone purposefully states or publishes claims about an individual that can harm their reputation, it shall be considered as a violation of the right to reputation of the individual. The Supreme Court of India has over and over again addressed the conflict between the right to free speech and the right to reputation and highlighted the importance of balancing these two rights.
- The Supreme Court, in the judgement of, stated that the reputation of an individual is a basic element under Article 21 of the Constitution and that it is imperative to balance the two rights. The right to free speech does not allow any individual to defame another. The citizens are responsible to ensure they do not interfere with the liberty of others as everyone has a right to reputation and the right to live with dignity.
Libel and Slander
The key difference between libel and slander is that
libel refers to published defamation while
slander refers to verbal defamatory statements. In the court of law, both are termed as defamation – the communication of a false statement that harms the reputation of an individual, business or group.
Libel – a type of defamation or communication of false information which damages the reputation of a person, business or group. In case of libels, the offensive material is
written or
printed, involves
pictures or is basically in any form other than spoken words or gestures.
Slander – a type of defamation or communication of false information which damages an individual’s, business’s or group’s reputation. In case of slanders, the offensive material is published in some fleeting form, i.e.,
spoken words or
sounds,
sign language or gestures.
Landmark Judgements
In
D.P. Choudhary and Ors. Vs Kumari Manjulata, the court has held that everyone should be considered to know and to intend the natural and ordinary consequences of their statements. The words published by the newspaper, even though published accidentally or unintentionally, are actionable if they are false and defamatory.
In
Ram Jethmalani vs. Subramaniam Swamy, the HIgh Court deemed Subramaniam Swamy’s statements to be evidence of malice on their own. Considering that attaching anyone’s name to the prohibited LTTE would lead to damaging their reputation, the allegations would extensively damage Jethmalani’s personal life and political integrity. It awarded INR 5 lakhs in compensation in the favor of the plaintiff after considering their significant legal reputation and professional status.
The High Court of Delhi in one of its judgements has held that it needs no gainsaying that it takes years to build a reputation and therefore, right to reputation has been recognized as a fundamental right under Article 21 of the Constitution. No doubt, Article 19(1)(a) of the Constitution provides the right of freedom of speech and expression to all persons, however, it cannot be overlooked that the same is subject to restrictions under Article 19(2) which includes defamation. The right to freedom of speech and expression cannot be taken as an unfettered right so as to defame and tarnish the reputation of another person. It has been repeatedly held by Courts that fundamental right to freedom of speech has to be counterbalanced with the right of reputation of an individual.
The Supreme Court, in one of its judgements, has held that if from evidence led it is established that the authorised agent had issued defamatory statements with the consent of the principal or that the principal, without giving consent, had due knowledge of such defamatory statements, yet, did not caution/reprimand the agent for doing so or had not disowned the statements so made, there is no reason why a prosecution for defamation should be nipped in the bud on the specious ground that an authorised agent is supposed to act lawfully and not unlawfully.
The Supreme Court of India in one matter has held that Exception 8 to Section 499 clearly indicates that it is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject-matter of accusation.
Very recently, on 29 January 2024,
the Supreme Court, in the one of the matters has held that a news article in question was published in good faith and in exercise of the Fundamental Right of Freedom of Speech and Expression enshrined under Article 19(1)(a) of the Constitution of India, and did not warrant prosecution of the accused for the offence punishable under Section 500 of the Indian Penal Code, 1860.
Remedies for Defamation
As per the Civil Law, defamation is dealt with under the Law of Torts, where compensation in the form of damages may be awarded.
Such damages are granted by the Court of Law to acknowledge the fact that a certain legal right has been violated. However, as per the court, no actual damage should be caused due to such violation.
Contemptuous damages are awarded when the court has a very low opinion of the plaintiff’s claim. The court should acknowledge that even though the plaintiff has faced significant loss, they do not deserve to be compensated in full.
Unlike nominal damages, compensatory damages are awarded by the court to compensate the harmed party for some actual loss faced as a result of legal right violation. Medical costs, job loss, income loss, and similar expenses are covered under compensatory damages. The aim is to bring the aggrieved party back to the state they were before their right was violated.
Such damages are awarded by the court to compensate for intangible losses in addition to tangible losses that the aggrieved party had faced. The aim is to compensate for losses faced in terms of reputation, mental distress, humiliation, etc.
Conclusion
Varying upon the type of defamation, individuals may have to pay compensation and even face imprisonment for up to 2 years. This makes it imperative to be mindful when you speak and avoid violating the rights of others while enjoying the freedom bestowed by your own rights.
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