This article has been written by Manaswini Vakulabharanam, a student studying BA.LLB from Pendekanti law college, Hyderabad. The author is a second-year student.
Defamation is injury to the reputation of a person. A man’s reputation is his property, and is possibly more valuable than his physical property. Defamation usually involves the publication without justification of derogatory false statement against an individual or a party. Defamation may either be Libel and Slander, this division is under the English law. Libel is representation made in some permanent form, eg. Writing, printing, effigy or picture etc. Slander is the publication of a defamatory statement in a transient form, eg. Spoken by words or gestures. Before going further let’s understand the distinction between libel and slander:
- Under criminal law, only libel has been recognized as an offence. Slander is no offence.
- Under the law of torts, slander is actionable, save in exceptional cases only on proof of special damage. Libel is always actionable per se i.e., without the proof of any damage.
The history of defamation can be traced back in Roman law and German law. Extremely offensive words and insulting words were capitally punishable in Rome. According to early English and German laws, insults were punished by cutting off the tongue. In the late 18th century, only imputation of crime or social disease or casting aspersion on professional competence constituted slander in England. The enactment of Slander of Women Act added imputation of unchaste illegal. French defamation laws were very severe. Conspicuous retraction of libelous matter in newspaper was severely punishable and only truth is allowed as defense when the publication related to public persons. In Italy, defamation is criminally punishable and truth seldom excuses defamation.
The position of defamation in India
Defamation in India is an offence under both the Civil and Criminal law. In civil law defamation is punishable under the law of torts, the aggrieved party i.e. the person who has been defamed can move to the High court or to the subordinate court and can claim damages in the form of monetary compensation. Under criminal law, defamation is non-cognizable, bail able and compoundable offence. Hence, the police cannot arrest the offender without an arrest warrant issued by the magistrate. The punishment under the Indian Penal Code is simple imprisonment for 2 years or with fine or both. Both Libel and Slander are criminal offences in the Indian law. Defamation is defined under section 499 of the Indian Penal Code,
Section 499: “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, except in the cases hereinafter expected, to defame that person.”
Explanation1.— It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation2. — It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation3. — An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation4. — No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.
And the punishment for defamation is mentioned under section 500 of the Indian Penal Code
Section 500: “500. Punishment for defamation. — Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”
Essentials of Defamation:
- The statement must be defamatory.
- The said statement must refer to the plaintiff. The statement must be understood by the right-thinking or reasonable minded persons, as referring to the plaintiff.
- The statement must be published, i.e., to say, it must be communicated to some person other than the plaintiff himself.
- In case of slander, either there must be proof of special damage or the slander must come within the serious classes of cases in which it is actionable per se.
The statement must be defamatory
The very first essential of defamation is that the statement must be defamatory. Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally, or which tends to make them shun or avoid that person. The defamatory statement could be made in different ways. For instance, it may be oral, in writing, printed or by the exhibition of a picture, statue or effigy or by some conduct.
In Ram Jethmalani v. Subramaniam Swamy, while a commission of inquiry was examining the facts and circumstances relating to the assassination of late Shri Rajiv Gandhi, the defendant, at a press conference, alleged that the then Chief Minister of Tamil Nadu had prior information that LTTE cadre would make an assassination bid on the life of late Shri Rajiv Gandhi. The plaintiff was engaged as a senior counsel to represent the then Chief Minister of Tamil Nadu. In discharge of his professional duties, the plaintiff cross-examined the defendant. During the proceeding, the defendant in the written conclusive submission alleged that the plaintiff had been received money from LTTE, a banned organization. The statement made by the defendant was held to be ex facie defamatory. It was held to be a case of exceeding the privilege and that by itself was held to be evidence of malice. The statement made by the defendant against the plaintiff was held to be quite unconnected with and irrelevant to the situation, actual malice on the part of the defendant was well established. Counting the professional standing of the plaintiff and his stature in social life, the Delhi High Court awarded damages of Rs.5 lacs.
The statement must refer to the plaintiff
In an action for defamation, the plaintiff has to prove that the statement of which he complains referred to him. It is immaterial that the defendant did not intend to defame the plaintiff. If the person to whom the statement was not intend to defame the plaintiff. If the person to whom the statement was published could reasonably infer that the statement referred to the plaintiff defendant in nevertheless liable.
In T.V.Ramasubha Iyer v. A.M.A.Mohindeen, the question which came before the Madras High Court was that whether there was a liability in India for defamatory statement published without an intention to defame the plaintiff. The statement mentioned that a particular person carrying business of Agarbathis to Ceylon has been arrested for the offense of smuggling. The plaintiff was also one of the people carrying on a similar business, and as a result of this statement his reputation also severely damaged. The defendant pleaded that they were not aware of the existence of the plaintiff and the statement made was not intended. It was therefore held that in India there was no liability for the statement published innocently. The defendants in the present case were therefore not liable.
The statement must be published
Publication means making the defamatory matter known to some person other than the person defamed, and unless that is done, no civil action for defamation lies. Communication to the plaintiff himself is not enough because defamation is injury to the reputation and reputation consists in the estimation in which others hold him and not a man’s own opinion of himself.
In Mahendra Ram v. Harnandan Prasad, the defendant sent a defamatory letter written in Urdu to the plaintiff. The plaintiff did not know Urdu and therefore the same was read over to him by a third person. It was held that the defendant was not liable unless it was proved that the time of writing the letter in Urdu script the defendant know that the Urdu script was not known to the plaintiff and it would necessitate reading of the letter by a third person.
Defenses
The defenses to an action for defamation are:
- Justification or Truth;
- Fair Comment ;
- Privilege, which may be either absolute or qualified.
References:
https://www.statpearls.com/ArticleLibrary/viewarticle/34715
https://indiankanoon.org/doc/1408202/#:~:text=500.,with%20fine%2C%20or%20with%20both.
https://indiankanoon.org/doc/1041742/
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