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Defamation is a Crime?

 


Defamation as a crime

Under a criminal suit, intention to defame is necessary. The allegation should be made with malice intent to defame another or at least the knowledge that the publication is likely to defame another is essential. It has to be proved beyond reasonable doubt that the act was being done to lower the reputation of another.

 

Exceptions to section 499:

 

i.                     Attribution of any truth made for public good. Truth is seldom defense unless made for a public good.

ii.                   Any opinion made in good faith regarding the conduct of a public servant in the discharge of his public functions.

iii.                  Any opinion made in good faith respecting the conduct of any person which relates to a public question.

iv.                 Publication of true reports of the proceedings of the Courts or the result of the proceedings is not defamation.

v.                   Any opinion made in good faith regarding the merits of any civil or criminal case decided by the Court of Justice, or the conduct of any person as a party, witness or agent to that case and no further.

vi.                 Opinions made about the merits of any performance which its author has submitted to the judgement of the public, or about the author is not defamation if made in good faith.

vii.                Censures passed by persons neither having authority over another either conferred by a law or from a lawful contract in good faith is nor defamation. Censure is formal statement of severe disapproval.

viii.              Accusation of offence to any person having lawful authority over the alleged person in good faith is an exception to defamation. Complaints about servants to masters and children to parents are examples to the exception.

ix.                 Statements made about the character of character is not defamation if it is made in order to protect the interests of the person making it, or any other person, or for the public good.

x.                   Cautions conveyed to one person against another are not defamation if it is intended for the good of the conveyed person, or any other, or for public good.

Section 500 of the Code punishes defamation if it does not fall within the above said exceptions with simple imprisonment which may extend to two years, or fine, or both.

 

Civil Defamation:

The statements made need to be false and it must be made without the consent of the alleged defamed person and it must purport to a person or a class of persons. It must be published either in oral or written form. Unless the content is made available to a third person, there can be no defamation. Where a letter is sent in a language unknown to the recipient, he needs a third person to read it to him. If any defaming statement is made in it, it will constitute defamation even if it was sent as a private letter, since the aid of a third person was needed to read it. Monetary compensation can be claimed from the defendant for civil defamation.

Defenses:

The defendant can plead defenses that:

i.                     The statement published was true,

ii.                   Fair comments made with public interest based on true incidents,

iii.                  Certain persons are vested with the privilege to make statements even if they are defamatory.

 

Sections 499 and 500 IPC 1860 versus reasonable restrictions

The pertinent question which arose before the court was whether sections 499 and 500 of the IPC go beyond the scope of the reasonable restrictions imposed under article 19(2) of the Constitution of India?

 

Sections 499-500 IPC do not constitute a “reasonable restriction” on speech, as commented by many because, to begin with, even truth is not a defense. Even if a person has spoken the truth, he can be prosecuted for defamation. Under the first exception to section 499, the truth will only be a defense if the statement was made for the public good, which is a question of fact to be assessed by the court. This is an arbitrary and overbroad rule that deters people from making statements regarding politicians or political events even which they know to be true because they run the risk of a court not finding the statement to be for the public good. A person can be prosecuted even for a statement about the dead. While Article 19(2) permits restricting speech in the interests of protecting the private interest in a reputation, restricting speech to protect the reputation of the deceased is excessive and over-broad. Even an ironical statement can amount to defamation. Also, since section 499 applies to “any imputation concerning any person,” a criminal suit can be filed even for political speech,  which is the most protected speech in a democracy.

 

Landmark Judgements in India:

D.P.Choudhary v/s. Manjulatha: A publication was made in the local newspaper, Dainik Navjyothi that the plaintiff a 17 year old college girl ran away with a boy after she went out of the house by saying she was having lectures. This false news item had adverse effects on her and ruined her marriage prospects. It was actionable per se and she was awarded damages of Rs.10000/- by way of general damages.

Mahendra Ram Vs. Harnandan Prasad: A letter written in Urdu was sent to the plaintiff. Therefore he needed another person to read it to him. It was held that since the defendant knew the plaintiff does not know Urdu and he needs assistance, the act of defendant amounted to defamation.

Ram Jethmalani Vs. Subramanian Swamy: The court held Dr.Swamy for defaming Ram Jetmalani by saying that he received money from a banned organization to protect the then Chief Minister if Tamil Nadu from the case of assassination of Rajiv Gandhi.

Cyber defamation

Any  act taking place on the cyber space leads to cyber defamation or online defamation. Cyber defamation occurs when a computer connected to the internet is used as a medium to defame a person or an entity. Defaming a person by posting unwanted statements on a social networking site such as Watsapp, Facebook, Twitter, etc., or sending of emails containing defamatory content about a person with the intention to defame him / her. Further, given the broad coverage of internet and the rate of dissemination of information on this platform, it is difficult to ascertain the extent of damage in any monetary value.

In India, Section 499 of the Indian Penal Code was the only provision governing defamation now the law has been extended to “electronic documents”. Section 469 of the IPC (forgery for purpose of harming reputation) has been amended by the Information Technology Act, 2000 to include ‘electronic record forged’ and now reads as a whole as – whoever commits forgery, intending that the document or electronic record forged shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

Section 79 of the IT Act provides a safe harbor to intermediaries against any act of defamation. Section 79 provides that an intermediary is not liable for third party information, data, links hosted on its platform. However, the safe harbor protection is limited to certain conditions viz. an intermediary shall be liable if it initiates the transmission of such defamatory content, selects the receiver of such content or modifies such content. In view of the aforesaid, it can be concluded that an intermediary‘s liability can be reduced by complying with certain obligations, such as adopting statutory due diligence, or enforcing ‘notice and take down’ procedures. Section 66A of Information & Technology Act 2000 (IT Act), was quashed by the Supreme Court of India in Shreya Singhal v. Union of India, due to ambiguity in the definition of the word ‘offensive’ in the Section. The section stated that sending any offensive message to a computer or any other communication device would be an offence.

CONCLUSION

The law of defamation seeks to protect individual reputation. Its central problem is how to reconcile this purpose with the competing demands of free speech. These interests are highly valued in our society. The defamation law is also constitutional and is reasonable restriction on the right to free speech and expression. However, it is no defamation if the acts done fall within the exceptions provided. Over the seventy one years of Independence, there are has been numerous cases of defamation and the court has interpreted each and every case with utmost care and they serve as precedents.

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