Is Defamation Criminal or Civil: A Comprehensive Analysis

Introduction

Defamation is the damage to the reputation of a person.[1] If any individual injures the reputation of another individual, he/she does so at his/her own risk, as it is in the case of an interference with the property. In contrast, Defamation occurs in words which are spoken or gestures (or another such transitory form) then it is termed as Slander and the same if in written or printed form (of a permanent nature) is Libel. In India, Defamation is a civil and as well as a criminal offence. In Civil Law, Defamation mostly falls under the Law of Torts, which punishes in the form of damages awarded to the claimant (the person filing the claim against the other).

Under Criminal Law, Defamation can be a compoundable, non-cognizable and bailable offence. Therefore, the police cannot start an investigation of Defamation without a warrant from a magistrate (a FIR can’t be filed). The accused has a right to seek bail. Later, the charges can be dropped when the victim and the accused enter into a compromise to that effect (even without the permission of the court). Defamation is a criminal offence, is stated under section 499 of the Indian Penal Code (IPC).

Difference between Libel and Slander

English Law – Mainly due to historical reasons, Defamation is divided into two by English Law as:

  1. Libel – Libel is the representation made in some permanent form, e.g., writing, printing, pictures etc.
  2. Slander – Slander is the publication of a statement in a transient form. Examples:- Spoken words or gestures.

Under English law, the distinction between libel and slander have two reasons:

  1. Under Criminal law, only Libel has been recognized as an offence and whereas Slander is not considered as an offence.
  2. Under the law of torts, Slander is actionable only on proof of special damage while Libel is considered as always actionable.

Indian Law: It’s been noted above that under English criminal law, a distinction is formed between Libel and Slander. So, Libel is a crime, but slander is not. Slander is only a civil wrong in England. Criminal law in India does not make any distinction between Libel and Slander. Both Libel and Slander are criminal offences under section 499, I.P.C. It has been noted above that though Libel and Slander both are considered as civil wrongs, there is a distinction between the two under English Law. Libel is actionable per se, but in case of slander, except in some instances, proof of special damage is required to be proved.

Defamation is both a Civil and Criminal offence

The remedy for a civil Defamation is being stated under the Law of Torts. In a civil Defamation case, the individual that is defamed can move either to the High Court or subordinate courts and seek damages within the form of monetary compensation from the accused. Also, under sections 499 and 500 of the Indian Penal Code (IPC), an individual guilty of criminal Defamation are often sent to jail for two years.

Defamation under Civil law

Under civil law, Defamation is that the publication of a statement which tends to lower an individual within the estimation of the right-thinking members of the society. To constitute Defamation under civil law, few conditions have got to be satisfied:

1. The statement made must be defamatory:

Defamatory statement tends to injure the reputation of the plaintiff. An imputation which exposes one to disgrace and humiliation, ridicule or contempt is considered as defamatory.

2. The said statement must be referred to as the plaintiff:

It is immaterial that the defendant didn’t intend to defame the plaintiff. If the person to whom the statement was made could infer that the statement referred to the plaintiff, the defendant is liable.

3. The statement must be published:

Publication means making the defamatory matter known to some person aside from the person defamed, and unless and until that’s done, no civil action for Defamation lies.

Defences

The defence to an action for Defamation are:

1. Justification of truth – In a civil action for defamation, the truth of the defamatory matter is a complete defence. Under criminal law, just proving that the statement was true is not any defence. The exception under criminal law states that the statement besides being true, the accusation must be shown to be made for the public good.

2. Fair comment– Making a fair comment on matters of public interest is a defence to an action for defamation. For this defence to be available, the subsequent essentials are required:

a. It must be a comment.

b. The comment must be fair.

c. The matter commented upon should be of public interest.

The person who is defamed can move either to the high court or trial court and seek damages in the form of pecuniary compensation from the accused. The remedy can be covered under the Law of Torts, a rare and slow course of relief witnessed in India.

The law defines defamatory content together as “one calculated to injure the reputation of another by exposing him to hatred, contempt, or ridicule.” This is often the very first condition required to be fulfilled under the civil remedy.

Second, the claimant must be identified within the defamatory statement. It must address a specific person and no as such broad-based classification is acceptable or suitable.

And lastly, there should be a publication of the defamatory statement in any of the form either oral or written form. Civil Defamation law can be applied once these conditions are being attained. The defendant will then have to plead his defence.

Civil cases under the Law of Defamation 

In D.P. Choudhury v. Manjulata[2],

The plaintiff-respondent, Manjulata of age 17 years, a student of B.A was from a distinguished educated family of Jodhpur. There was the publication of news in a local daily, Dainik Navjyoti, dated 18.12.77, that the last night 11 p.m. Manjulata ran away with a boy named Kamlesh after she went from her house.

In Khushwant Singh v. Maneka Gandhi[3]

As such, even if there’s an apprehension that content could also be defamatory, likely, the publication wouldn’t be restrained except in exceptional cases – presumably, those cases where the later payment of damages would not suffice to set correct the incorrect done to the person defamed.

In a non-exceptional situation, Indian courts have shown a tendency to support free speech. They haven’t displayed a tendency to grant injunctions which might have the effect of muzzling speech on the ground of possible defamation.

It is significant to say that a Defamation bill was proposed by the Rajiv Gandhi government to deal with the law of defamation. Defamation Bill, 1988 received widespread criticism from the media and opposition parties because of its draconian provisions; as a result, it had been withdrawn.

Conditions satisfied in a civil suit

The law defines defamatory content together as “calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule.” This is often the first condition required to be fulfilled under the civil remedy.[4]

Secondly, the claimant should be identified in the defamatory statement. It must address a specific person, and no broad-based classification is acceptable or suitable.

And lastly, there should be a publication of the defamatory statement in any form may be oral or written form. A civil Defamation law would stand as soon as these conditions are attained. The defendant then has to plead his defence.

Defamation under criminal law

Sec 499 of The Indian Penal Code, 1860

Defamation is defined as – 

Whoever, by words either spoken or by signs or by visible representations, makes or publishes any accusation concerning any individual intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is known to defame that person.[5]

On the opposite hand, the Indian Penal Code (IPC) gives a chance to the defamed individual to also move a criminal court, asking the latter to take cognizance of his complaint. It’s a bailable, non-cognizable and compoundable offence, which suggests no police can register a case and start an investigation without the court’s permission.

Under sections 499 and 500 of the Indian Penal Code, a person who is found guilty can be sent to jail for two years. The Supreme Court has modest its verdict on a clutch of petitions challenging the constitutional validity of the two penal provisions.

In a criminal suit, the complainant should be ready to prove that the accused intended to defame him. In the absence of intention, it’s to be established that the alleged offender knew that the publication was likely to defame the person. A normal stand of proof in criminal cases, which is to prove the offence beyond a reasonable doubt, should even be placed before the court.

Since the law is compoundable, a criminal court can remove the charges if the victim and the accused enter into a compromise to that effect (even without the permission of the court).

Conditions to be satisfied under criminal law

In a criminal suit, the complainant must be able to prove the accused intended to defame him. In the absence of intention, it must be established that the alleged offender knew that the publication was likely to defame the individual. The normal stand of proof in criminal cases, which is to prove the offence beyond practical doubt, should also be placed before the court.

Exceptions to Defamation

1. Truth for public good

Truth is an absolute defence in civil cases. But, in criminal proceedings, it must be proved that the imputation was made for the public good. Though the intention of an individual, no Defamation suit holds good against him if he imputes something true. Accusations censure or imputation made in good faith by a person having lawful authority is also exceptions.

2. Fair comment

The exception of fair comment is allowed just in case it’s made clear that the publication clearly expresses an opinion and doesn’t support any facts. Similarly, expression of an opinion in a good faith regarding the merits of an individual’s performance made to the public for judgment is a fair defence for a person charged with libel.

Criminal case under the law of Defamation

Subramanian Swamy v. Union of India[6]

In it the court strike down the anachronistic colonial offence of criminal defamation is wrong. It was said that the Criminalising Defamation serves no legitimate public purpose; the vehicle of criminalization – sections 499 and 500 of the Indian Penal Code, 1860 (IPC) – is unconstitutional; and therefore, the court’s reasoning is woolly at best.

Conclusion

The law of defamation seeks to guard individual reputation. Its central problem is the way to reconcile this purpose with the competing demands of free speech. Since both these interests are highly valued in our society, the former as perhaps the dearly prized attribute of civilized human beings while the latter the very foundation of a democratic society

Notwithstanding, the right to reply appears as a civilized manner to address matter instead directly jumping on conclusions, convicting and seeking damages.

Certainly, we too, can utilize this concept. The discussion brings us to the point that in cases of constitutional interpretation, the pale become higher. It is easy to criticize instead of getting into the depths of matter. Nowadays, it’s easy to possess a critical approach instead of getting into the skin of the matter. Also, it cannot be ignored that the judiciary tries its best to give a balanced construction in such matters. As citizens, we too, have a responsibility– it is time to revisit individually.

Frequently Asked Questions

  1. In what circumstance Slander will not be actionable in per se?
  2. What is the legal time to make a claim?
  3. What are the conditions to satisfy in defamation?
  4. How defamation is related to Article 19 (2) of the constitution?
  5. Can section 499 & 500 of IPC put restrictions on the right to free speech?

[1] https://www.vidhikarya.com/legal-blog/difference-between-civil-defamation-and-criminal-defamation.

[2]AIR 1997 Raj 170.

[3]AIR 2002 Delhi 58.

[4] https://www.hindustantimes.com/india/jaitly-kejriwal-war-difference-between-civil-and-criminal-defamation/story-WY1UMhDgP63goarxQyM4LI.html.

[5] https://indiankanoon.org/doc/1041742/

[6]2016 SCC Vol. 7 August 14, 2016 Part 2 

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