DEFAMATION LAW IN INDIA
The right of each man during his lifetime to the unimpaired possession of his reputation and good name is recognized by law. Reputation depends upon opinion. A person’s own opinion about himself is not his reputation. It means rather the opinion of others about him. All this has to be considered while applying Defamation Law in India.
The law of defamation is based upon the fundamental principle that the reputation of a member of society, the esteem which he holds, the credit and trust it reposes on his intelligence, honour and integrity, all these constitute a valuable asset for him and it deserves protection at the hands of law.
The right of every person to the reputation which his conduct deserves stands on the same footing with the right to the enjoyment of his life, liberty, health and property.
Difference between Character and Reputation
There is a slight difference between reputation on the one hand and character or disposition on the other. The character of a person signifies the reality about him whereas reputation indicates only what is reported of him by others. Reputation means what is thought of a person by others and is constituted by public opinion. it is the general credit which a man has obtained in that opinion. Reputation is external to him while character is internal. The law of defamation aims at giving protection only to the external reputation of a person and not to his internal disposition or character. Any bad imputation on his name is infringement of this right, and, therefore, a wrongful act for which civil and criminal proceedings would lie.
Definition of Defamation
According to Prof. Winfield, Defamation is the publication of a statement which tends to lower a person in the estimation of right – thinking members of society generally or which tends to make them shun or avoid that person. It is libel if the statement is in permanent form and slander if it consists in significant words or gestures.
It was thought formerly that defamation consisted in making or publishing a statement which tend to bring a person into hatred, contempt or ridicule; but now it is recognized that if the effect of the statement is to cause the defamed person to be shunned or avoided that would also amount to defamation.
Defamation Through Cyber Law
The accessibility of internet to common man has changed everyone’s lives. The platform provided by the internet has made human interaction easier than ever before. However, such increase in convenience of communication has equally increased the inconvenience caused by the abuse of the mediums of communication. Removing barriers to freedom of interaction, has given unfettered capabilities, primarily on social networking sites, to people who post unnecessary and false statements about a person or an entity and thereby harming their goodwill and reputation. Such an act, though colloquially known as “trolls”, actually amounts to cyber defamation.
Cyber defamation occurs when a computer connected to the internet is used as a tool, or a medium to defame a person or an entity. For example: Publishing of a defamatory statement against a person on a social networking site such as 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.
Although, the medium of committing this act in the physical and digital world are different, the law of defamation applies the same. The liability regarding cyber defamation in India can be:
1. On the author of the defamatory material online;
2. On the service provider or an intermediary.
However, it is important to note that as per Section 79 of the Information Technology Act, 2000, an intermediary shall not be liable if it does not initiate or modify such defamatory content but merely acts as a facilitator. Further, this protection is also subject to the condition that the intermediary shall comply with the due diligence and Intermediary Guidelines requirements issued by the Central Government and also remove such unlawful content on being notified by the appropriate Government or its agency or upon receiving actual knowledge.
In India, Section 499 of the Indian Penal Code primarily governs the law on defamation, however, it is pertinent to note that 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 66A of Information & Technology Act 2000 (IT Act), has been quashed by the Hon’ble Supreme Court 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. Such unfettered power, under section 66A, was misused by the Government in curtailing and suppressing people’s freedom of speech and expression and hence repealed.
Defamation is an offence under both under 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 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.
In Civil law of defamation the statements made need to be false and it must be made without the consent of the alleged defamed person. Monetary compensation can be claimed from the defendant for defamation. There are certain requirements for successful defamation suit. They are:
1. The presence of a defamatory statement is required. Defamatory content is one calculated to injure the reputation of a person or a class of persons by exposing them to hatred, contempt or ridicule. The test whether it damages reputation has to be calculated from the eyes of a common man and his comprehension of the matter.
2. Secondly, the statements must purport to a person or a class of persons. General statements like “all politicians are corrupt” is too broad and no specific politician can gain compensation for the same.
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 to it 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.
Once all these conditions are satisfied, a successful defamation suit subsists.
In Criminal law intention to defame is necessary. The allegation should be made with malicious intent to defame another person 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.
Section 499 of the Indian Penal Code, 1860 defines what is defamation and its exceptions. Words or signs imputed intending to harm or with the knowledge that such imputation will cause harm. It may amount to defamation if anything is imputed against a deceased person, if such imputation would harm the reputation had the person been alive. The class of persons shall include company or associations. It is no defamation unless the alleged defamatory statement either directly or indirectly lowers the moral or intellectual character or his respect of his caste or his calling in the estimation of others.
Exceptions which help to escape from case of Defamation:
Persons who make defamatory statements are exempted from punishments if they fall in one of the ten exceptions provided in Section 499 which are:
1. Attribution of any truth made for public good. Truth is seldom defense unless made for a public good.
2. Any opinion made in good faith regarding the conduct of a public servant in the discharge of his public functions.
3. Any opinion made in good faith respecting the conduct of any person which relates to a public question.
4. Publication of true reports of the proceedings of the Courts or the result of the proceedings is not defamation.
5. 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.
6.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.
7. Censures passed by persons neither having authority over another either conferred by a law or from a lawful contract in good faith is not defamation. Censure is formal statement of severe disapproval.
8. 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.
9. Statements made about the character of person 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.
10.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. Section 501 of the Indian Penal Code punishes printing or engraving matter known to be defamatory or sale of such printed or engraved substance containing defamatory matter about any person in the same manner of punishing defamation.