Defamation

 

DEFAMATION

Defamation is the act of communicating false statements about a person that injure the reputation of that person when observed through the eyes of ordinary man. Any false and unprivileged statement published or spoken deliberately, intentionally, knowingly with the intention to damage someone’s reputation is defamation. A man’s reputation is treated as his property and such damage are punishable by law. The person who injures the reputation is called defamer and the person whose reputation is injured by the defamer is known as defamed.

DEFINITION

According to Winfield, “Defamation is the publication of a statement which tends to lower a person in the estimation right thinking members of society generally; or which tends to make them shun or avoid that person”.

According to Section 499 of the Indian Penal Code, “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 reasons to believe that such imputation will harm, the reputation of such person, is said except in specified cases, to defame the person”.

Types of defamation

Slander – Depiction in transient form. It is basically through words spoken or gestures.

Libel – Representation in a permanent form, e.g., writing, printing, picture, effigy or statute.

There are two types of defamation, the first being oral defamation and the second being published defamation. Oral defamation, also known as slander involves the comments made verbally that could cause damage to a person‘s reputation, for example comments or stories told at a meeting or at a party. Published defamation involves written material being distributed which adversely affects someone‘s reputation. This form of defamation is also called libel.

Elements of Slander

There are two types of slander:

i.                     slander

ii.                   slander per se.

In the first kind of slander, the plaintiff must prove the defendant made a defamatory statement to at least one other person (the essential defamation elements) and that the plaintiff suffered what are referred to as “special damages” as a result of the defamation. Special damages are actual harm like loss of customers, being fired, or some other financial harm.

A slander per se claim does not require that the plaintiff prove special damages. This is because slander per se claims involve categories of defamatory statements that are presumed to be damaging to the plaintiff. While the categories may change a little from state to state, and evolve over the years, some of the most common slander per se categories are:

·         Imputing criminal conduct to the plaintiff

·         Saying that the plaintiff has certain types of communicable diseases, and

·         Any harmful statement about the plaintiff’s profession or business.

Elements of Libel

If the defamatory statement falls into the category of libel, the plaintiff only needs to prove the essential elements,

1.       The defendant published a defamatory statement about the plaintiff

2.       Other people were exposed to the statement.

 There are no additional requirements because the law presumes that once the publication of a defamatory statement has been made in written, the statement will remain in the public portal for a long time and continue to do harm.

Essentials characteristics of defamation

·         The statement must be defamatory.

·         The said statement must refer to the plaintiff.

·         The statement must be published i.e., communicated to at least one person other than the claimant.

Defamation Law in India

The IPC under chapter XXI sections 499-502 protects an individual‘s / person’s reputation.

Defamation against the state is contained in section 124A [Sedition],

Section 153 of the Code provides for defamation of a class i.e., community [Riot],

While section 295A deals with hate speech with regards to outraging religious sentiments. [Hate Speech].

Article 19 of the Constitution grants various freedoms to its citizens. However, Article 19(2) has imposed reasonable exemption to freedom of speech and expression granted under Article 19(1) (a). Contempt of court, defamation and incitement to an offence are some exceptions.

Defamation is an offence under both the civil and criminal law. In civil law, defamation is punishable under the Law of Torts by imposing punishment in the form of damages to be awarded to the claimant. Under the Criminal law, Defamation is a bailable, non-cognizable offence and compoundable offence. Hence a policeman may arrest only with an arrest warrant issued by a magistrate. The Indian Penal Code punishes the offence with a simple imprisonment up to two years, or with fine, or both.

The remedy for civil defamation is covered under the Law of Torts. In a civil defamation case, a person who is defamed can move either High Court or subordinate courts and seek damages in the form of monetary compensation from the accused. Also, under sections 499 and 500 of the IPC, a person guilty of criminal defamation can be sent to jail for two years.