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Types and Essentials of defamation

In our society, the reputation of an individual is considered as his biggest property and his most valuable asset. Though our Constitution grants us a right of freedom of speech, it is ensured that this right doesn’t use in a manner to hamper or destroy the reputation of other members of society. So, in order to protect our reputation from the malicious conduct of other individuals, the concept of defamation is provided in our legal setup. In this article, we will explore the meaning, types of defamation and essentials of defamation. Further, we will also delve deep into its exception and the punishment prescribed for the same offense.

Our Reputation is the purest perfume that makes our identity in society. – Justice Iyyer

Defamation involves making false statements about an individual with the objective of creating a bad image in the society of that person. It can be done through written, oral or any other way of visible representation. This defamation is considered an offense and our legal provisions try to strike a balance between our right to speech and the right to protect our dignity in society.

What is defamation?

The term defamation is derived from the Latin word “Diffamare’ which means ‘spreading evil or bad information about someone. As per the Black law dictionary, defamation is an offence wherein a person’s character, fame, or reputation is injured by false and malicious statements. In simple terms, under defamation, one person publicizes or issues a statement that is derogatory or untrue in nature with the sole objective of destroying the image of that person in the society, workplace, etc.

Example: Rahul posted a comment on Vivek’s post that he had been in prison for 5 years in a murder case. Now, if any person reads this comment on the post, then he will definitely think that Vivek is a criminal and he spent 5 years in jail. This can totally tarnish the image of Vivek because no one will give him respect and start avoiding him. If this statement is untrue, then it will be called a defamatory statement and this offense is known as defamation.

In the Indian Penal Code, 1860, the offense of defamation is provided under Section 499. As per this section, if some words, signs or visible representation is published or spoken with the sole intention of causing harm to the reputation of a person or it has a reason to believe that this will destroy the reputation of that concerned individual, then the offense of defamation is committed. The punishment for defamation is provided under Section 500 of the IPC which is generally of 2 years with or without fine. The defamation comes under criminal as well as a civil wrong. A person who has been defamed can sue for damage to the person who defamed him.

Types of defamation

There are essentially two types of defamation:

  • Libel
  • Slender

Let us discuss the types of defamation briefly.

Libel

It refers to that defamation that harms the reputation of an individual, business group etc. by making false representation in the form of writing, picture, movie etc. This type of defamation is generally of permanent nature and invites more stringent punishment. This defamation occurs while publishing an article in the newspaper, making a comment on a social media platform, etc.

For example- A newspaper named “Z” publishes that Mr. X has become bankrupt but in reality, Mr. X is not. So, this is a false statement made in a written form, thereby it is called libel defamation.

Slender

It refers to that defamation wherein a falsified statement is made by spoken words or by some other transitory forms, whether visible or audible, such as a sign, gesture, hissing, etc. This type of defamation generally attracts civil punishments and it is actionable only in proof of actual damage.

For example – In an ongoing TV interview, Mr. X questioned the chastity of Z and made some alluring remarks through his eyes in front of the camera. Now, the defamatory statement is made verbally and with the help of gestures, it is called slander.

It becomes clear before the aforesaid definitions that the fundamental distinction between libel and slander lies solely in the form in which the defamatory matter is published. However, In Indian jurisprudence, unlike British law, both libel and slander are treated equally and both are considered as an offense under Section 499 of the IPC. In the case of Hirabai Jehangir v. Dinshawdulji, the Bombay high court both stated that no distinction shall be made between treating libel and slander as criminal offenses.

Concept of Innuendo

It sometimes happens that a statement may have more than one meaning or some hidden meaning is attached to the statement. A statement may prima facie appear defamatory but its natural meaning doesn’t state so or vice versa. So, in that situation, the aggrieved person needs to show the hidden meaning and the intention behind the 2nd statement for proving defamation. Thus, proving defamation from the secondary meaning of a sentence is known as Innuendo

Illustrations

Mohan makes a statement that Ram is an honest man and he never stole his cricket bat. Now this statement is at first instance may appear to be innocent, but it can be defamatory if the person to whom it was made, interprets from this that Ram is a dishonest man and there are chances that he could have stolen the cricket bat. It is an example of innuendo.

Essentials of Defamation

For constituting the offense of defamation, the plaintiff must prove or satisfy various essentials of defamation that must be included to consider the statement defamatory.  If the statement given by a person is following these essentials, the statement will be considered defamation. So, let us discuss the essentials of defamation:

There are mainly 5 essentials of defamation,

  • Statement of fact
  • Publication is required
  • The statement must be defamatory and false
  • The statement must refer to the plaintiff
  • Must cause serious harm

Statement of fact

Firstly, the statement given by the person must be a statement of fact and not a statement of opinion. If a person is giving his opinion in the statement irrespective of the fact whether it’s true or false, it will not be considered defamation. Let’s take the example to understand the difference between the statement of fact and statement of opinion.

  • Rohit says that I think Mohit is a criminal. Here, he is giving his opinion; this is a statement of opinion. It will not be considered defamation whether it is true or false.
  • Rohit says in an interview that Mohit is a criminal who had committed theft. Now, it is important to note that this statement is presented assertively, so it is a statement of fact. It will be considered defamation if the statement given by Rohit is false. But if the statement given by Rohit is true, it will not be considered defamation.

However, it must be noted that mere hasty expression spoke in anger, or vulgar abuse to which the object is not to injure the character or reputation of a person will not fall under the ambit of defamation. For example – If “A” an employer scolds his employee B for not coming on time in front of the whole staff, then B cannot claim that A has injured his reputation.

Publication is required

The second ingredient of this offense is that there must be the publication of the false statement passed by the offender. Here, the publication does not mean that it should be published in the newspaper only but it means that the defamatory statement is communicated to the parties other than the defamed one. If the person gives his statement only to the person he wanted to blame, then it will not be considered defamation.

Example

A said to B in a personal encrypted chat that you are a criminal. Now, there is no communication with other people. It will not be considered defamation. But if B passes the same statement by posting it on the WhatsApp group where there are lots of members in the group it will come under the definition of defamation.

The statement must be defamatory and false

The statement passed by the person must be in the nature of defamation and must be a false statement. The statement which is true cannot be taken as a defamatory statement. The test to check whether a particular statement is defamatory or not depends upon how a prudent member and of society is likely to comprehend it. The accused person can’t take the plea that he doesn’t want to injure his reputation thereafter.

The statement must refer to the plaintiff

Before starting the proceedings of defamation, the plaintiff needs to prove that the statement of which he complains particularly referred to him. Further, it is important to note that if the plaintiff reasonably believes that the statement is referred to him, then the defendant may be held liable.

Illustration- If a bank issues a notice to all its branches to not give the loan to any person belonging to XYZ colony as the people of that locality are more often repeated defaulters. Now due to this a resident named B of the XYZ colony didn’t get a loan anywhere in the city due to the bad reputation created by the notice and he suffered significant monetary harm. Now, this statement will be considered defamatory although it is not directly referred to him.

Must cause serious harm

Lastly, the false statement must have an effect on the reputation or financial growth of the plaintiff. If there is no harm to the reputation or financial growth, the person cannot claim the [defamation]. For example, if a person loses his job due to a false statement given by a person is considered as a financial loss to the person and that person can claim defamation.

In the case of T.V., Ramasubha Iyer v. A.M.A Mohindeen the Hon’ble Supreme Court held that the defendants are liable for publishing a statement without any intention to defame the defendants. The statement provided that some particular person carrying the business of Agarbathis to Ceylon has been arrested for the offense of smuggling and we should refrain from purchasing them. Later on, this statement proved to be false and a person who was engaged in a similar agarbatti business faced substantial harm. It was a defamatory statement.

Defamation is civil and criminal

In India, defamation is punishable under civil law as well as under criminal law. There is not much difference between both the types. The core difference lies in the intent of the accused party and the remedy reported by the aggrieved party.

Civil Defamation

The remedy in the case of civil defamation is also provided under the Law of Torts. In this type, the person who is defamed can move either high court or subordinate courts and seek damages in the form of monetary compensation. The accused person will not be subject to detention or a jail sentence.

Criminal Defamation

In criminal defamation, the person against whom a defamation case is filed might be punished for two years imprisonment or fined or both. In India, both libel and slander [defamation] is a criminal offence under section 499 and 500 of Indian penal code and thereby give the chance to the aggrieved person to file a criminal case against the person accusing him or her. In order to prove that it is a defamatory case of either libel or slander, the statement must contain the following essentials of defamation.

  • A defamatory statement must directly or indirectly be referred to the plaintiff
  • The statement has been communicated or published to a minimum of one person other than the plaintiff or victim.

In Criminal defamation, it is important that the allegation should be made with the malicious intent to defame another. Further, it has to be proved beyond reasonable doubt that the act was being done to lower the reputation of another

Defences against defamation

The offense of defamation is not absolute and certain exceptions have been carved out for the same. These include –

Justification of truth

The truth is an absolute defense of the offense of defamation. It means that if a statement is true, irrespective of the fact whether it is derogatory or cheap, the offense of defamation can never take place. In civil defamation, it is well-settled law that if the statement is proved true, then the charge of defamation automatically gets removed because the law can’t punish an individual for speaking the truth.

However, under criminal law merely proving the truth will not solve the purpose and besides this, the person needs to show that the statement was made in a bona fide manner. In the case of Radheyshyam Tiwari v. Eknath, the court held that if the defendant can’t prove the validity of the statement, then it will be presumed that the intention was malice.

Making Fair comment

The term fair comment involves making or putting one’s opinion in matters relating to our national interest. This is a valid defense against the offense of defamation. For taking this exception, one needs to prove the following things –

  1. It must be a comment. In other words, it means that it shall be an expression of opinion rather than an assertion of fact.
  2. The comment must be fair and it should not be based upon untrue facts.
  3. The matter commented upon must relate to the public interest. Matters like administration of government departments, courts, ministers, public meetings, textbooks, etc. falls under the ambit of public interest.

Privilege

The word privilege means giving a special status. This special status is generally accorded when the law feels that the right of free speech overweighs the right against defamation. These privileges are generally of 2 types.

(1). Absolute privileges – In these matters, complete immunity is given to a person speaking and no action for defamation can lie against him. It includes the occasion of

  • Parliamentary proceedings– As per Article 105(2) of the Indian constitution, the parliamentarians can speak anything during the course of business of parliament and no action of defamation would lie against them.
  • Judicial proceedings– This protection has been accorded to judges, counsels, witnesses, and parties to a suit under the Judicial Officers Protection Act of 1850.

Qualified privilege – In this type of privilege, though the immunity is given to the speaker it is not absolute in nature.  For availing this defense, the impugned person needs to prove that the statement has been made without an element of Malice.

Getting Apology from the Aggrieved Party

If the person who has passed the defamatory statement asks for an apology by the defamed person and the defamed person accepts the apology, then also it will not be considered defamation.

In the recent case of Arun Jaitley v Arvind Kejriwal, the court held that though the statement said by Arvind Kejriwal and his 5 other leaders appears to be defamatory but the matter needs to be completely disclosed as all the defendants apologized for their actions and apology is granted to them.

Communication between husband and wife

As per Section 122 of the Indian Evidence Act, 1872 it is believed that the communication between husband and the wife is considered as “privileged communication” and it is outside the purview of defamation. The law believes that husband and wife are the lifelong partners with whom we share our all sentiments thus there cannot be any publication and consequently no defamation. Thus, the communication between husband and wife will be considered as an exception of section 499 of the Indian Penal Code, 1860.

In the case of T.J. Ponnen v. M.C Verghese, the court held that a letter from the husband to his wife containing some defamatory matter in relation to his father-in-law will not amount to defamation. This letter will be covered within the ambit of privileged communication as provided under Section 122 of the Indian Evidence Act, 1872.

Punishment for defamation

The punishment for criminal defamation is provided under Section 500 of the Indian Penal Code, 1860. If it is proved that if the accused is guilty of the offense of defamation before the court, then he/she will bear the following punishment

  • Imprisonments for a period of up to 2 years
  • Or Fine
  • Or both

This offence is a non-cognizable, bailable or compoundable offence

Who bears the burden of proof to prove defamation?

The liability to prove the defamatory statement lies on the plaintiff who has filed the defamatory petition. He/she has to prove before the court that the statement referred to him or she is defamatory in nature and publicized by the defendant which severely injured his/her reputation in the society

Case laws on defamation

Mahendra Ram vs Harnandan Prasad

A letter written in Urdu was sent to the plaintiff. Therefore they needed another person to read it to him. It was held in the case that since the defendant knew the plaintiff does not know Urdu and he needs assistance so this act of the defendant amounted to the offence of defamation.

Shreya Singhal vs Union of India

It was a landmark judgement regarding the internet or cyber defamation. Under this case, the Hon’ble Supreme Court struck off section 66A of the informational technology Act, 2000 on the grounds of violating our fundamental rights. This section was used as a tool by the government to suppress the voice of dissent on social media platforms.

Conclusion

Defamation is an offense that involves injury to the reputation of an individual in society. It is provided under Section 499 of the Indian Penal Code, 1860. The essential ingredients of this offense involve that it must be a false statement with the objective of hampering the reputation. Defamation is generally of 2 types namely Libel and slander.  In India, defamation is civil as well as criminal. However, this offense is not absolute and certain exceptions have been provided and the chief defense against this offense is proving that the statement is being “true”. The judiciary has also evolved its scope in recent times.