There is a need to balance the public right to free speech & expression with the private right to reputation. Legislation about defamation is an attempt to do the same.
Defamation is a Civil as well as a criminal offence. Under Criminal Law, Indian Penal Code, defines defamation as -"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 reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person." (1)
Explanations in IPC-
Explanation 1- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3- An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4- No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loath some state, or in a state generally considered as disgraceful.
Essentials:
Under Criminal Law three essentials are to be proved to establish wrong of
Defamation -
1. There should be existence / publication of an imputation made by a person.
2. Such imputation may be words spoken or written signs, or visible representation.
3. It should be made to injure or having knowledge to believe that it will injure reputation of a person.
Civil Law about Defamation is still governed by English Common Law rules, according to which 4 essentials are to be proved -
1. The statement be defamatory.
2. Reference of it to the plaintiff.
3. Publication of it by defendant.
4. Statement must be substantially untrue.
Exceptions:
There are ten exception mentioned in Indian Penal Code under which a person can escape his liability from an action of Defamation:
1. True Imputation made / published for the public good "It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact." It is also sometimes referred as plea for justification, according to which it's not only essential to prove that the imputation was substantially true but also that it, was made / published for the public good.
2. Public conduct of public servants "It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct and no further." It is essential that it should be necessarily an expression of opinion and not that statement of fact, and further expressed in good faith - ' done honestly' { Sec.3(22) of General clauses act } & 'with due care and attention' { sec.52 } whose measure can be that of a prudent man.
3. Public Question of a Person "Conduct of any person touching any public question- It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further" here also it's essential that the statement be an opinion and made in good faith.
4. Publication of reports of proceedings of Courts- "It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings." It's essential that it be just a report and no further expression of statements on conduct of persons or proceedings and further it must be substantially true.
5. Merits of case decided in Court or conduct of witnesses and others concerned- "It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further." it's essential that the statement be an opinion and made in good faith.
6. Merits of public performance- "It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further." A public performance can be work like a book, drama, movie etc, and statement made should be an opinion and that too expressed in good faith.
7.Censure passed in good faith by person having lawful authority- "It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates." Censure cannot be considered to be defamation if it's passed in course of exercising authority like the authority of a father over son, a teacher's over student.
8. Accusation preferred in good faith to authorized person- "It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation". The accusation should be made in good faith and that too within extent of lawful authority over the other person.
9. Imputation made in good faith by person for protection of his or other's interests- "It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good." Though it is a vague exception but the Imputation should be made in good faith and for interest of own or some other person concerned.
10. Caution intended for good of person to whom conveyed or for public good- "it is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good" It is generally a warning to someone for protection of his / public good about another persons character in good faith.
Under Civil Law all the general defences, which are available for an action of Torts, can be pleaded for action of defamation too but there are three additional defences for Defamation.
1. Truth / Justification Being true of a defamatory statement is a complete defence in civil action unlike criminal action the reason being that the law allows no one to claim damages for a character which one never possessed or to presume undeserved dignity, thus plea of justification; truth of the statement published is a complete defence.
2. Fair Comment It is necessary that the imputation be expression of opinion or a comment rather than being a statement of fact, it should be fair i.e. honestly expressed and without any malice further it is necessary that the statement should be made/publicised for public good; all these are matter of facts.
3. Protection of interest When the statement is made for general or public interest, without any malice no action for defamation lies.
4. Privilege There are circumstances when the Law grants Privilege to a person to express himself, in these occasions Right to speech and expression overshadows or eclipses one's right to reputation. There are two kinds of privileges which can be pleaded - Absolute and Qualified privilege. Absolute privilege can be taken by-
(a) Members of parliament of both the houses about anything stated in course of Parliamentary proceedings in side four walls of the house. {Art.105 (2) for Lok Sabha & 194(2) for Rajya Sabha}
(b) Statements made by Judges, counsels, witnesses, or parties in course of judicial proceedings before any court of Law provided that the statements are not such that have no relevance at all in the case.
(c) Communication relating to affairs of state made by one officer of state to another in course of duty. In these circumstances no civil action for defamation lies even though the statement is absolutely false and is made with malafied intentions.
Qualified Privilege can be pleaded in these cases -
(a) Statement made in performance of a duty may be legal, social, or moral duty.
(b) Statement made for protection of general or public interest.
(c) Fair report of Public proceedings like judicial, parliamentary proceedings and public meetings. In these cases privilege is only considered when the statement is made without any malice.
Kinds of Defamation
Though Indian Law does not distinguish, but defamation is of two types, as contained in English too -
Slander and Libel; when a defamatory imputation is made on a temporary source of communication like verbally defaming someone then it is classified as Slander; when defamatory imputation is made on a permanent source of communication like publication in a newspaper or on electronic source, it's called as Libel.
Liabilities of different persons
Author: of an article or book, is primarily liable for any illegality in the work like obscenity, defamation.
Contributor: would be liable if the article contributed by him have legal discrepancy.
Editor: is individually liable for any illegal matter published in his paper, magazine, etc.
News - Vendor / Bookseller: Under Civil Law a Bookseller is not liable for defamatory publication of material sold by him unless he actually knew it was defamatory, or he could have with due diligence, come to know that it was defamatory. Under Criminal Law IPC Sec 502, he shall be liable only if he knew about defamatory property of the material he sold at the time of selling it.
Printer: is individually liable for printing of objectionable matter.
Proprietor: can be made liable for any matter published in his paper, magazine, etc only if there's positive proof that he was responsible for publishing it or for its selection for publication.
Publisher: is liable for anything published in his paper, magazine, etc which is defamatory.
Reporter: is liable like printer, publisher, editor, if he sends some work which is defamatory in character.
Defamation - Recent Law
Information Technology Act, 2000 - Defamation through E-Mails will be punishable with liability for compensation. Threat may result in imprisonment up to 2 years.
