Defamation in 2020

Every man is authorized to his reputation.  A man’s identity is his reputation, and his respecting the society Reputation should never be decided on opinion basis. Every person has a unique character and his reputation is his property. Reputation is a certificate of one’s character by society and other individuals. In this article, we would like to explain when defamatory words, gestures or actions by an individual turns into defamation and then what it costs.

“When wealth is lost, nothing is lost;

When health is lost, nothing is lost;

When character is lost, everything is lost.”

-Billy Graham.

Introduction

According to Black’s Law, “Defamation implies that the offence of harming someone’s character, fame, or reputation by a false and malicious statement.” The term seems, to be comprehensive of each libel and slander. Defamation has become a burning issue within the current  times graciousness the developing media furry that has been made over the freedom of speech and expression as envisaged underneath Article 19(1) (a). There exists an apprehension inside the psyche of individuals whether in their individual or public ability on that statement of theirs would possibly represent a furor or land them behind the bars.

Defamation in law is attacking another’s name by a false publication (communication to 3rd party) intending to bring the individual name disrespect. The idea is a tricky one and is limited in its varieties exclusively by human inventive reasoning. Even though defamation might be a production of English law, the doctrine existed many thousand years past. In Roman law, abusive chats were capitally punishable. In early English and German law, affronts were punished by operation the tongue. As late as during the eighteenth century in England, imputation of crime or VD and throwing defamations on talented ability deep-seated slander, and no offences were included until the Slander of Women Act in1891, made an imputation of unchastely illegal.[i]

What is Defamation?

Defamation is a communication about an individual that will, hurt the individual’s reputation. One of the elements of Defamation is that the defamatory statement must be communicated to others. It very well may be spoken, which is called slander, or it can be written, which is called libel. It can likewise be a gesture, which is a kind of slander.

To defame is to attack one’s reputation, to rob him of his fair name. Defamation is the publication of a false and defamatory statement concerning another without worthwhile motivation or reason, whereby he endures injury to his reputation. The Indian Penal Code has identified this offence. In general, the wrong of defamation takes different structures and it very well may be committed by words, signs or noticeable portrayals which inflict injury on an individual in his reputation by degrading him, criticizing him or exposing him to “contempt, mocking or public hatred” and hence bringing down his reputation according to the right-thinking individual of the society.

Defamation and Insult:-

The wrong of defamation is different from insult caused by words, signs or portrayals in that in the former the defendant harms the plaintiff estimation of reputation by others or others’ opinion of him while in the last the litigant harms the nobility or confidence of the offended party or what the offended party contemplates himself. The former requires distribution while the latter the same isn’t an essential. The former is illegal while the latter isn’t legal unless accompanied by defamatory words.[ii]

Defamation laws in India

There is no such differentiation among libel and slander. Both libel and slander are a criminal offence. For better understanding, it very well may be isolated into two classes:

  1. Criminal
  2. Civil

Defamation is a crime:-

The IPC under part XXI, Sections 499-502 ensures a person’s/individual’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 concerning insulting or outraging religious sentiment. [Hate Speech]

Section 499 of the IPC defines ‘Defamation’ is being committed:

  1. Through: (I) words (spoken or intended to be read), (ii) signs, or (iii) visible representation
  1. Which: are published or spoken imputation concerning any individual;
  1. If the imputation is spoken or published with: (I) the intention of hurting the reputation of the individual to whom it relates, or (ii) knowledge or reason to believe the imputation will hurt the reputation of the individual to whom it relates will be harmed.

This expansive definition is dependent upon four clarifications and ten exemptions.

If an individual is seen as liable of having committed defamation as far as section 499 of the IPC is concerned, the punishment is specified in section 500, simple imprisonment for up to two years or fine or with both.

 The Crpc classifies the offence as non cognizable and bailable. The individuals who are accused of the offence would generally not be arrested without a warrant, and as such, an abused individual would not have the option to just file a police complaint but would, in most of the cases, need to file a complaint before the magistrate. To the extent ‘truth defense is concerned, despite the fact that ‘truth’ is commonly viewed as a defense to defamation as a civil offence, under criminal law, just truth is protection to defamation as a crime (expecting that it is demonstrably true) just in a limited number of circumstances. This can make people especially vulnerable to being held liable of having committed defamation under the IPC regardless of whether the imputation they made was truthful.[iii]

Defamation as a tort:-

 Defamation under tort law is considered, as a general rule, the focus is on libel (i.e., written Defamation) and not on slander (i.e., spoken defamation). To build up that a statement is libelous it must be proved as

  1. False,
  2. Written,
  3. Defamatory,
  4. Published.

An intriguing part of defamation as a tort is that it is only wrong if the defamation is of nature which hurts the reputation of an individual who is alive. As a rule, this means saying that it’s not a tort to defame a deceased individual. In case of a doubt, the plaintiff should have the option to prove that the defamatory words referred to him.

Notwithstanding, this doesn’t imply that there can be no cause of action if a dead individual is defamed — if, for instance, a defamatory statement adversely impacts the reputation of a deceased individual’s heir, an action for defamation would be maintainable. Further, if an activity for defamation is instituted, and defamation is found to have been committed, damages will be payable to the offended party/ plaintiff. Also, an individual feels an apprehension of being defamed in a publication may seek the grant of an injunction to control such publication. In any case, the pre-publication injunction is rarely allowed as Indian courts have tended to follow the guideline set down in 1891.

In the case of Bonnard v. Perryman[iv]

The Court has jurisdiction to restrain by injunction, and even by an interlocutory order, the publication of a libel. But the exercise of the jurisdiction is discretionary, and an interlocutory order should not be granted an exception of in the clearest cases—in cases in which, if a jury didn’t discover that the matter complained of to be libelous, the Court would put aside the decision as unreasonable. An interlocutory injunction should not be granted when the Defendant swears that he will have the option to legitimize the defamation, and the Court isn’t satisfied that he may unable to do so.

This principle has been trailed by a division bench of the Delhi High Court in the 2002 instance of Khushwant Singh v. Maneka Gandhi[v]As such, regardless of whether there is an apprehension that the content might be defamatory, it is likely that publication would not be controlled pt in exceptional cases — apparently, those situations where the later payment of damages would not suffice to set right the wrong done to the individual defamed. In non-outstanding circumstances, Indian courts have demonstrated an inclination to support free speech, and have not shown a tendency to grant an injunction which would have the impact of muzzling speech on the ground of possible defamation. It is significant to make reference to that a defamation bill was proposed by the Rajiv Gandhi government to manage the law relating to defamation. However, Defamation Bill, 1988 received widespread criticism from the media and resistance groups because of its draconian arrangements; subsequently it was withdrawn[vi].

Ingredients of defamation under Indian Penal Code

Defamation: Whoever, by words either spoken or intended to be read, or by signs or by noticeable portrayals, makes or publish any imputation concerning any individual intending to harm, or knowing or having reason to believe that such imputation will hurt, the reputation of such individual, is stated, aside from in the cases hereinafter excepted, to defame that individual.

Explanation 1 – It might add up to defame to impute anything to a deceased individual, if the imputation would hurt the reputation of that individual if living, and Is intended to be hurtful to the sentiments of his family or other close to family members.

Explanation 2 – It might add up to defamation to make an imputation concerning a company or an association or collection of a person as such

Explanation 3 – An Imputation in the form of an alternative or expressed ironically, may add up to defamation.

Explanation 4– No imputation is said to hurt an individual’s reputation, except if’s that imputation directly or indirectly way, in the estimation of others, brings down the moral or intellectual character of that individual, or brings down the character of that individual in regard of his caste or of his calling or brings down the credit of that individual, or makes it be believed that the body of that individual is in the loathsome state, or a state commonly considered as dishonorable[vii]

Land mark Defamation Cases

B V P Rao v. Ratan Tata & Ors 1997[viii]

B V P Rao contended that Tata Tea had curved and suppressed the facts projecting him in an extremely poor light by asserting that there was no reaction from him as home secretary in December 1995 for giving security after the Tata Tea got a letter from the Ulfa demanding hundred walkie-talkie sets. Rao, who was then the state power commissioner, claimed damages of Rs 1 crore against the Tata Tea, its managing director R Krishna Kumar and chairman of Tata group of companies Ratan Tata.

2010: Chris Cairns v. Lalit Modi[ix]

New Zealand cricketer Chris Cairns sued the then IPL director Lalit Modi, in the UK’s first Twitter libel case over a defamatory tweet sent in January 2010, in which Modi alluded to Cairns’ supposed involvement in match-fixing as the explanation behind banning him from the IPL sell-off. “The charge made by Lalit Modi that I have been involved in match-fixing is shocking and completely false. For him to circulate such a falsehood around the globe is outrageous,” Cairns said in an announcement. In 2012, a UK court granted harms of 90,000 pounds and expenses of 1.5 million pounds.

Veritas v. Indiabulls 2014

Canadian investment firm Veritas Investment filed a suit of the settlement of guarantee in Ontario against Indiabulls claiming $11 million (Rs 70 crore) in damages for the alleged defamatory declarations and press release put out by Indiabulls, which prompted the closure of its India Research administrations. Indiabulls won an interim order against the move in Delhi High court. A few months later, it additionally filed a suit claiming Rs 200 crore damages from Veritas and its analysts Neeraj Monga for submission made in the Ontario claim.[x]

Recent cases emerging on defamation

Law on Cyber Defamation in India

In India, Section 499 of the Indian Penal Code basically governs the law on defamation, in any case, it is relevant to take note of that the law has been stretched out to “electronic document” section 469 of the IPC (forgery for the purpose for hurting reputation) has been amended by the Information Technology Act, 2000 to incorporate ‘electronic record forged’ and now read overall as – whoever commits forgery, intending that the document or electronic document forged will hurt the reputation of any party, or realizing that it is probably going to be utilized for that reason, will be punished with imprisonment of either depiction for a term which may reach out to three years, and will likewise be liable to fine.

Section 66A of Information and Technology Act 2000 (IT Act), was quashed by the Supreme Court of India in Shreya Singhal v. Association of India[xi], because of vagueness in the meaning of the word ‘offensive’ in the Section. The section expressed that sending any offensive message to a computer or any other communication device would be an offence. Such unfettered power, under section 66A, was misused by the Government in curtailing and suppressing peoples’ right to speech and articulation and hence repealed[xii].

Judiciary on Cyber Defamation

In its first historically speaking case on Cyber Defamation

 In SMC Pneumatics (India) Pvt. Ltd. V. Jogesh Kwatra[xiii], wherein a disappointed worker sent a defamatory, vulgar, abusive and derogatory email to the company’s fellow employers and its subsidiaries everywhere throughout the world with an intent to defame the company along with its managing director, The High Court of Delhi granted ex-parte interim injunction order limiting the defendant from defaming the Plaintiff in both the physical and in the cyberspace. 

Further, in the case of Kalandi Charan Lenka v. State of Odisha[xiv] in January 2017, the Petitioner was stalked on the web and a fake account was made in her name. Furthermore, obscene messages were sent to the friends by the culprit with an intention to defame the Petitioner. The High Court of Orissa held that the said act of the accused falls under the offence for cyber defamation and the accused is liable for his offences for defamation through the means of fake obscene images and texts.

In case of, M/S Spentex Industries Ltd. And Anr.v. Pulak Chowdhary [xv], the petitioner had filed for an obligatory and prohibitory injunction along with the recovery of Rs. 50,00,000/¬ as damages for loss of reputation and business because of defamatory e-mails sent by the defendant to the International Finance Corporation, World Bank, President of Republic of Uzbekistan and UZEREPORT (a news web-based interface and publisher of monthly news reports). The case was filed in the year 2006 and was concluded in 2019 wherein the Hon’ble Delhi District Court declared that the Plaintiffs be awarded 1/10thof the cost (Rs. 5, 00,000/ -) as well as the expense of the suit to be borne by the defendant. Further, it decreed that the defendant is controlled from making false and defamatory statement, whether written or oral.

Recently, in the case of Swami Ramdev and Anr. V. Facebook Inc. And Ors [xvi], Justice Pratibha Singh had passed an order to remove all defamatory content posted online against yoga master Baba Ramdev, with no territorial limit, stating that if the content is uploaded from India or such content is located in India on a computer resource, the Courts in India ought to have international jurisdiction to pass worldwide injunctions. Facebook has filed an appeal against the said order which has been admitted by the Division Bench of the Delhi High Court.

The grounds of the said appeal are that despite the fact that the Plaintiff knew about the person who uploaded the content, they have not been made a party to the suit. Further, it has additionally been contended that Baba Ramdev has not indicated any solid prima facie case of irreparable loss. Among other submissions, facebook in its appeal has contended that worldwide takedown order is against the sovereignty and international comity, as it meddles with defamation laws of different nations. Furthermore, the said order also undermines the immunities granted to them in other jurisdictions.

Cyber Defamation is another type of defamation that has emerged with the rise of internet and social media. Notwithstanding, a specific set of limitation prevails in the cyberspace that current global laws have not risen above. The only way to curtail Cyber defamation as of now is if a complaint is filed timely and at the right forum.

Conclusion

The law of defamation seeks to ensure individual reputation. Its focal issue is how to reconcile this purpose with the competing demands for a speech. Both Reputation and freedom of speech are building block in the society. The previous as maybe the most beyond a reasonable doubt prized characteristic of civilized human beings while the latter the very foundation of a democratic society. The apex Court gave an interim time frame of about eight weeks to the petitioner within which they can challenge. Meanwhile, different cases have likewise emerged particularly in the political form, for example, defamation case filed against Mr Gogoi or the alleged arrest of comedian Kiku Sharda. The decision carries a conclusion to the case however brings up specific issues afterwards. For example, a progressive economy like India is resorting to penal provisions justified especially in an era, where reformative justice is supplanting retributive justice.

 Other than this developing narrow mindedness in the country is another issue which may get a reason due to this judgment. In such circumstances, there becomes a need to shed one’s inhibition and discuss a viable solution. One such recommendation in this area would be the right to reply. This has been discussed before. Nonetheless, owing to the chilling effect which might be incumbent on the individual /organization; the right to reply just added to the skepticism. In any case, the right to reply shows up as a civilized manner to address matter instead of jumping on the conclusion, indicting, and seeking damages. Some US states and different nations have imbibed up this idea.

Certainly, we also can use this idea. The discussion brings us to the point that in cases of Constitutional interpretation, the stakes become higher. It is easy to criticize rather than get into the profundities of the issue. Of course, a healthy criticism fosters creativity and growth. Nowadays, it is easy to have a critical approach rather than get into the skin of the matter. Also, it cannot be ignored that the judiciary tries its best to give a harmonious construction in such matters. As citizens, we too, have a responsibility– it is time to revisit ourselves[xvii].

References


[i]https://legaldesire.com/read-know-defamation-law-india/.

i[i]http://www.iiir.co.in/ijiir/vol2issue2/IJIIR-02-02-05.pdf.

[iii]http://ili.ac.in/pdf/paper10.pdf.

[iv] [1891]2 Ch 269.

[v] AIR 2002 Delhi 58.

[vi]https://www.hellocounsel.com/defamation-civil-criminal/.

[vii]http://www.iiir.co.in/ijiir/vol2issue2/IJIIR-02-02-05.pdf.

[viii] https://www.business-standard.com/article/companies/five-defamation-cases-that-rocked-corporate-world-116112200499_1.html.

[ix] Ibid.

[x] Ibid.

[xi] (2013) 12 S.C.C 73.

[xii]https://www.lexology.com/library/detail.aspx?g=d3075f4d-afb5-4920-bf59-26cf5d054ab8#_ftn7.

[xiii] CS(OS) No. 1279/2001 (Delhi High Court, 2001).

[xiv] http://indiankanoon.org/doc/73866393/.

[xv] http://inidiankanoon.org/doc/80844707/.

[xvi] http://indiankanoon.org/doc/63056689/.

[xvii]http://ili.ac.in/pdf/paper10.pdf.

Possible Questions

  • How is defamation different from insult?
  • How is defamation both a crime and a tort?
  • What are the exceptions to the rule of defamation?
  • What is the punishment prescribed in IPC, for the offence of defamation?

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