Every Indian citizen has the right to freedom of speech and expression under the Indian Constitution. Our freedom to communicate our ideas and opinions to others is guaranteed by Article 19(1) of the Constitution.
Since this fundamental right, like all others, cannot be exercised arbitrarily, it is subject to the limitations listed in Article 19(2) of the Constitution.
Such limitations are imposed in some circumstances where the statements made are detrimental to the nation or have a defamatory nature. Defamation laws were introduced to ensure that false remarks intended to damage the reputation of others were not made.
What Is Defamation?
According to the info provided in IPC section 499, someone is considered to be defamed if they speak, read, or intend to read something that would injure someone's reputation in public or who displays signs or other visual representations to that effect.
Defamation can be defined as a comment, whether written or spoken, that damages someone's reputation. Many Indians believe that honor slander is even worse than death. As a result, they frequently bring a criminal defamation lawsuit against someone who wants to damage their reputation.
Reputation plays a crucial role in determining an individual's dignity in the world. Article 21 guarantees an inherent right, which is the right to reputation. It is often referred to as natural rights.
Although Article 19(1)(a) of the Indian Constitution guarantees the freedom of speech and expression, these rights are not unrestricted because of other legitimate considerations such as the security of the state, morality, public order, defamation, and contempt of court. Consequently, defamation laws solely protect a person's reputation and personal interests.
How Does Defamation View In India?
Defamation is frequently considered a civil and criminal violation in India. It can also be described as the making of a false statement that harms one's reputation and is published, written, or spoken.
Tort Law often provides the strongest remedy for civil defamation. The victim of civil defamation may file a lawsuit in the high court or other subordinate courts to demand monetary damages from the accused.
The victim has the option to bring a criminal defamation case against the person who hurt them, by IPC sections 499 and 500. Two years in prison, a fine, or occasionally even both are the penalties for those who indulge in defamation. It is a non-cognizable, bailable, and compoundable violation under Indian penal law.
Types of Defamation
There are two recognized categories of defamation. Libel and slander include these:
Libel is the term for disparaging someone by persistently displaying their comments. As an illustration, consider writing, printing in a newspaper, posting false photographs, etc.
Slander is the term for verbal or physical defamation. Additionally, it encompasses nonverbal communication such as winking, booing, and other methods of causing reputational harm.
Slander differs from libel in that a defamatory statement can be made in any medium. It might be stated in a blog comment, a speech, or on television. When a statement is made in writing, it is libel (digital statements count as writing). Slanderous remarks are only spoken aloud. But in both situations, a third party—a person other than the person doing the defaming or being done to—must hear or witness the offensive statements. Because libel is in writing and can be produced as evidence, it is also actionable per se; nevertheless, slander is only actionable when the harmed party can show that they have suffered exceptional harm. This special damage consists of material harm that can be valued financially.
Defamation Under the Indian Penal Code, 1860
Defamation is a criminal offense in India that carries a prison sentence as well as a civil offense that may result in damages awards. Although defamation is a civil offense under tort law, the criminal legislation on it is codified in the Indian Penal Code, 1860 (IPC).
Defamation is defined in Section 499, while Section 500 describes the punishment in further detail. A defamatory act is any spoken, written, or visual remark made about another person with the intent to damage that person's reputation. The activities of anyone making remarks about a public performance or addressing any public issue are examples of exceptions to this rule, as well as any imputed truth required for the benefit of the general public.
Section 499 of the Indian Penal Code, 1860
Section 499 of the Indian Penal Code, 1860 reads “Whoever, by words either spoken or intended to be read, or by signs or by visible, representations make or publish any imputation concerning any other 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 the cases hereinafter excepted, to defame that person."
Defamation of a deceased person is another provision of Section 499. According to the law, "an imputation would amount to defamation of a deceased person if it would harm the reputation of the person had she been living and is made to hurt the feelings of his family or relatives."
The Supreme Court recently rejected a request for a stay on the release of the film "Gangubai Kathiawadi" made by a guy claiming to be Gangubai's adopted son in a defamation lawsuit involving a deceased person. The man complained that the movie's portrayal of his adopted mother as a brothel owner, a prostitute, and a mafia queen hurt her reputation. The authors of "Mafia Queens of Mumbai," the novel on which the movie is based, served as respondents in this lawsuit.
The Supreme Court noted that the application for interim relief would have to convince the Court that: i) the applicant was a member of the family or a close relative of the person defamed to sustain a case in tort for defamation; ii) It was inaccurate what was said about the deceased family member or relatives, and (iii) what was said would be detrimental to the deceased's reputation and character. If the individual who is being accused of being defamed is not diminished in reputation or worth in the eyes of others, then it is not defamation. However, the petitioner was unable to establish his relationship with Gangubai through family or close relatives. In addition, the Supreme Court decided that the movie is, at least on the surface, a legal form of artistic expression.
Understanding the following components of a defamation offense can help you spot statements and content that could be construed as defamatory.
Essentials of Defamation
Imputation how made: The essence of publication in the context of Section 499 is the making or communicating of the imputation to someone other than the recipient of the imputation or publication. The imputation could be expressed or conveyed through (a) spoken or written words, (b) making signs, (c) visible representations, or (d) both.
The subject of the imputation must be a specific person or persons: The imputation must be about a specific person or people whose identities can be verified.
If the imputation involves an organization, group of people, or association as a whole, it would also qualify as defamation. When a group of people is accused of being defamed, the group must be clearly defined and not an undefined and untimely entity (such as Marxists or Leftists).
Intent to hurt: The imputation must have been made knowingly or with reasonable grounds for believing that it will affect the reputation of the person of the accusation. It would be required for the accused to have planned, known, or had reason to believe that the imputation he made would damage the reputation of the other person for defamation. Furthermore, it is not required that the other person experiences any harm as a result of the imputation, either directly or indirectly.
It is important to note that Section 499's explanation 4 states that no imputation is considered to damage a person's reputation unless it directly or indirectly lowers the moral or intellectual character, credit, or character of the person's caste, or creates the impression that the person's body is in a repulsive condition or in a condition that is generally regarded as disgraceful in the eyes of others.
Exceptions To Defamation
There are ten defamation exceptions listed in Section 499, the first of which is "the defense of truth."To constitute a strong defense in a defamation case, truth must satisfy two conditions: it must be factually correct, and it must be in the public interest. In general, if the alleged defamatory statement is based on a public source, such as court documents, it loses its offensive nature.
Furthermore, the term "public good" as used in this exception refers to fact rather than speculation. The following are the additional exceptions:
- Public servant's public conduct.
- Any person's behavior when it comes to a public issue.
- Publishing accounts of court proceedings.
- Court's decision on the case's merits or the behavior of the witnesses and other parties involved.
- Merits of public performance.
- Disciplinary action was taken in good faith by someone in a position of legal authority.
- In good sincerity, an accusation is the preferred authorized person.
- A person accuses in good faith to safeguard their own or another person's interests.
Defamation And The Indian Constitution
By Article 19(1) of the Constitution, all citizens enjoy the right to freedom of speech and expression. The State shall limit the right by Article 19(2) to promote the interests of eight different categories, such as public order, morality, and decency. One of these categories is defamation. According to the Constitution, censorship of speech must be done in a "reasonable manner," not necessarily for the benefit of one of the eight categories stated in Article 19. (2). Over time, the Supreme Court's body of case law has expanded on the subject of what constitutes a fair restriction. The need that the restriction is "narrowly drawn" is one of the crucial components of reasonableness, which the Court has repeatedly decided in a variety of instances.
This Article has been extensively interpreted by the courts to include "freedom of the press." This freedom is not unfettered, however, as Article 19(2) allows the State to make laws that impose "reasonable limits" on such privileges. The restrictions apply to a variety of circumstances, including those involving defamation, judicial disobedience, national security, and maintaining public order.
Defamation cases may be challenged in India on both a civil and a criminal level because of the flexibility allowed by Article 19(2) and the criminal provisions (under Sections 499 and 500 of the Indian Penal Code, 1860). A statement about another person that is "made or published" with the aim, knowledge, or reasonable belief that doing so will harm the other person's reputation is considered defamation.
Defamation has recently grown to be a contentious and well-known topic as a result of the media frenzy around Article 19(1)(a)'s of Freedom of Speech and Expression. Defamation laws in India place restrictions on the basic right to freedom of expression provided by Article 19(1)(a) of the Indian Constitution. Whether speaking in private or public, people worry about saying something that might anger someone or get them into trouble. As a result, the State must craft its laws to restrict speech only to the extent required to achieve legitimate objectives.
If the cost of the law exceeds that, it must be ruled unconstitutional for being excessively expansive. In addition to preventing the "chilling effect" of broad and ambiguous regulations that allow people to practice self-censorship to maintain their moral integrity, this will ensure that the State is held harshly accountable if it decides to restrict individual liberty.
Procedure To File A Defamation Case
In India, defamation is illegal both under civil law and criminal law. A lawyer would advise whether to pursue a civil case, a criminal case, or both civil and criminal remedies depending on the facts and circumstances of each case. Below is a general outline of how to file a defamation case:
- Legal Notice: The victim serves the alleged libelous party with a legal notification. A legal notice includes all the circumstances that gave rise to the dispute as well as the legal claim(s) that you are making. It also contains a call to action and, if disregarded, a warning that the party who feels wronged will pursue the proper legal action, whether civil or criminal. You can go ahead and submit a complaint in the relevant court if the recipient of the legal notification disregards it.
- Filing a Complaint: A civil, criminal, or both types of cases would be brought by the lawyer's suggestions. According to Order 7 Rule 1 of the Civil Procedure Code, a petition for a civil case must be submitted in the civil court with the proper jurisdiction. If it is a criminal matter, Sections 499 and 500 of the Indian Penal Code would apply. Under Section 200 of the Criminal Procedure Code, 1973, a lawyer would submit a criminal complaint.
- Service of Notice: If the court determines that the matter has merit on the first day of the hearing, it will send a notice to the opposing party instructing him to submit his arguments on a date set by the court. The defendant is served following the filing of a lawsuit.
- Discovery (Pre-trial): The exchange of documents and court-filed responses during the discovery process will allow both parties to understand more about the advantages and disadvantages of the other side's position.
- Witnesses, if any: If either party has any witnesses, they are introduced and either cross-examined or interrogated.
- Final hearings: Following the examination of the witnesses and the presentation of new documents or evidence to the Court, either party may present their closing arguments.
- Court’s Decision: After hearing from the attorneys for the parties, the court renders its judgment. What the punishment (compensation, jail, fine, damages, etc.) will be if the accused is found guilty and, if so, whether it will be severe?
Difference Between Civil And Criminal Defamation
Civil defamation is controlled by civil law, and the person who has been defamed may seek redress in the High Court or the Trial Court and ask the accused to pay damages in the form of money.
The Indian Penal Code, on the other hand, offers the victim of defamation the chance to file a lawsuit in a criminal court, where if the charges against the accused are proven, he or she receives a punishment to serve in jail. Because it is a bailable, non-cognizable, and compoundable violation, no police officer can file a report or launch an inquiry in this case without the court's approval.
Remedies And Punishments For Defamation
Both civil and criminal courts will accept claims for defamation.
The wronged party may file a civil lawsuit in the appropriate High Court or District Court and seek compensation (financial claim) for harm done to his reputation as a result of the defamatory comment if the offense is a civil one, which is covered by tort law.
Under Sections 499 and 500 of the Indian Penal Code, libel and slander are both regarded as crimes that can result in the filing of a criminal complaint against the accused.
In criminal situations, the maximum penalty is two years in prison, but it can also be a fine or both. The crime is a non-cognizable, bailable offense that can also be compounded.
Defamation In The Digital Era
The dissemination of false information about another person through computers or the internet, in general, is known as cyberdefamation. Cyber-defamation happens when someone fabricates information about another person and uploads it online or sends fraudulent emails to other people to harm the victim. Because the content is public and available to everyone, the harm done to a person by making a defamatory statement about them on a website is severe and irreparable.
Because of accessibility, anonymity, privacy, and the isolation of one's place, internet users are far less constrained than they once were, especially when it comes to the content of their messages. Jokes and illustrations about Soniya Gandhi and Manmohan Singh are frequently posted as Facebook updates. With no consequences, spreading misleading information to a global audience is now much easier than ever thanks to the internet. Nowadays, anyone may publish anything online, allowing libelous material to target specific people.
A defamatory charge must be disclosed to one person for publishing to be proven. Due to the internet's potential to reach a virtually endless number of users, offensive content that is shared on Facebook or forwarded to additional recipients is published once more and spreads further, giving rise to new reasons for action. As a result, libel is now increasingly common on the internet. Without a doubt, there is always a John Doe order (injunction) in effect in cyberspace. The issue is made worse by the difficulties in identifying the culprit and the degree to which Internet Service Providers (ISPs) should be held accountable for encouraging defamatory conduct.
Cyber Defamation Laws
In India, libel is a crime that can result in both civil and criminal penalties. The Indian Penal Code,1860ss Section 499, which deals with defamation, is expanded to include incidents of cyberdefamation. However, a recent amendment to the Information Technology Act, of 2000 has made it clear that cyber-defamation is now illegal in India. The intriguing difference between the commonwealth countries' legal systems and the IT Act, of 2000 is that it has some legal elements in common with American laws governing cyberdefamation.
The new amendment makes it easier for defendants to prove their innocence if they acted honorably and upheld their obligations under Section 79 of the Act and Rule 3 of the IT Rules, 2011, provided that they did so. However, it does not change the burden of proof from that of the plaintiff to that of the defendant. ISPs are frequently named defendants in defamation lawsuits even though they are not legally responsible for publishing and disseminating defamatory information. This is because of their higher financial capabilities.
(i) Anyone who sends something using a computer resource or a communication device is forbidden, according to Section 66A of the Information Technology Act, 2000.
Any content that is flagrantly threatening or offensive.
Any false information that he persistently spreads via a computer resource or a communication tool to cause annoyance, discomfort, danger, obstruction, insult, cause harm, criminally intimidate, sow animosity, hatred, or ill will.
Any electronic mail or electronic mail message sent with the intent to annoy, inconvenience, or mislead the addressee or recipient regarding the origin of such messages is punishable by a fine and up to three years of imprisonment.
(ii) ISPs are immune from liability under Section 79 of the Information Technology Act of 2000 for any information, data, or communication link they make available or maintain on behalf of a third party if they comply with the following conditions:
Their only responsibility is to provide users access to the communications network.
They do not:
- Start the transmission,
- Choose the recipient for the transmission and
- Choose or modify the message's information.
They give their work their best effort and adhere to any prescribed guidelines.
(iii) However, the subsequent events result in ISP liability:
If they engaged in the crime or helped to make it happen.
They must immediately remove or disable access to any information, data, or communication links if they suspect or are informed by the relevant government agency that those linkages are being used to commit crimes without interfering with the evidence.
New cybersecurity laws in industrialized countries like China and the USA are excessively strict and place restrictions on foreign companies working there, protecting the countries and reducing the frequency of cybercrime. However, India is also making a concerted effort to increase its productivity to provide better services and protection in cyberspace.
To secure the nation's digital infrastructure, reduce its vulnerability, increase its capabilities, and protect it from cyberattacks, the Indian government launched a National Cyber Security Policy in 2013. India is currently striving to enhance the IT Act, which needs minor adjustments but could happen soon. Our country will also face competition from other industrialized nations in the area of IT and cyber security.
Defamation is a confusing and polarising notion that some people utilize and abuse while significantly negatively affecting the lives of others. Even while judicial precedent has attempted to untangle this jumble and address some issues, some fundamental constitutional issues regarding both the criminal offense and the civil offense of defamation remain unresolved.
Defamation laws and the right to free speech should coexist together. You shouldn't sacrifice the first or the second for the other. Legislators should support flexible rules in this regard rather than a strict legislative framework to facilitate progressive changes in their perception of what now constitutes defamation.
What should you do in India if someone is slandering you?
It is recommended to consult a lawyer if you are facing charges under defamation laws. In India, defamation is also regarded as a criminal offense, therefore if found guilty by the court in such circumstances, the offender may potentially go to jail. A lawyer can defend you in court and give arguments against any such allegations.
What is the penalty for defamation in India?
Anyone who defames another person faces a penalty of simple imprisonment for a term of up to two years, a fine, or both.
Can something spoken in private be considered defamation?
Situations when you and another person: argue privately, with no one else present; or communicate defamatory messages exclusively to each other; are not defamatory.
What is necessary to establish defamation?
Fundamentally, defamation must meet the following criteria:
- The declaration must be made public.
- The remark must diminish the person's estimation.
- There must have been defamation before "right-thinking" people in society.
Is defamation a bailable or non-bailable offense?
Defamation is subject to bail. The only concern is that the witness at trial needs to be biased in favor of the petitioner.
Does defamation constitute a crime?
In India, defamation is a civil offense as well as a criminal offense that carries a prison sentence (punishable through the award of damages). Defamation as a civil offense is punishable under tort law, whereas the criminal law on defamation is governed by the Indian Penal Code, of 1860.