As per Black’s Law dictionary, defamation means that the offence of injuring somebody’s character, fame, or reputation by false and malicious statements. The term appears to be comprehensive of each libel and slander. Defamation has become a burning issue within the present times; courtesy the growing media fury that has been created over the liberty of speech and expression as envisaged beneath article nineteen (1) (a). There exists an apprehension within the mind of people whether or not in their individual or public capability on that statement of theirs would possibly represent a furore or land them behind bars.
Defamation in law, is attacking another’s name by a false publication (communication to a 3rd party) tending to bring the person into dishonor. The thought is an elusive one and is limited in its varieties solely by human creative thinking. though defamation may be a creation of English law, similar doctrines existed many thousand years past. In Roman law, abusive chants were capitally punishable. In early English and German law, insults were punished by operation the tongue. As late because the eighteenth century in England, solely imputation of crime or VD and casting aspersions on skilled ability deep-seated slander, and no offences were added until the Slander of women Act in1891, created imputation of unchastity illegal.
Defamation is characterized in two types as follows:
Libel – Representation in a permanent form, e.g., writing, printing, picture, effigy or statute. Slander – Depiction in transient form. It is basically through words spoken or gestures.
Essentials of defamation are:
- The statement must be defamatory.
- The said statement must refer to the complainant.
- The statement must be published i.e., communicated to at least one person other than the claimant.
Libel and slander, both forms of defamation, are creatures of English common law, but they are not treated as distinct from each other in Indian jurisprudence. India offers the defamed a remedy both in civil law for damages and in criminal law for punishment. This is highly unusual since defamation as a crime is almost nonexistent anywhere in the world. While civil law for defamation is not codified as legislation and depends on judge-made law, criminal law is in the Indian Penal Code (section 499 creates a criminal offence of defamation.)
In a civil action, the claimant needs to prove that the statements injured the person’s reputation and were published. The burden of proof then shifts to the defendant to prove that the imputations or statements were either true, or amounted to fair comment, or were uttered or stated in circumstances offering absolute or qualified privilege like Parliamentary or judicial proceedings.
In criminal law, the burden rests on the prosecution to prove beyond reasonable doubt that there was an offence of defamation committed and there was intent to do so.
Then it is up to the accused to substantiate that they are protected by one of the 10 exceptions listed under Section 499. These exceptions are extremely wide. They offer protection including: stating a true fact against a person for public good; expressing an opinion in good faith about an act of a public servant; or even making imputations on the character of another provided it’s in good faith and for the public good. The Indian Constitution protects freedom of speech as a facet of fundamental rights under Article 19, subject to reasonable restrictions, including decency and defamation.
Generally defamation requires that the publication be false and without the consent of the allegedly defamed person. Words or pictures are interpreted according to common usage and in the context of publication. Injury only to feelings is not defamation; there must be loss of reputation. The defamed person need not be named but must be ascertainable. A class of persons is considered defamed only if the publication refers to all its members particularly if the class is very small- or if particular members are specially imputed. Libel and slander are legal subcategories of defamation. The advent of electronic communications has complicated the classification somewhat. Some countries treat radio defamation as libel, others as slander. Television presents similar problems.
Defamation under Indian Law:-
The Indian Penal Code under chapter XXI sections 499-502 protects an individual’s / person’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 with regards to outraging religious sentiments. [Hate Speech]
Article 19(1) (a) of the Constitution guarantees to citizens right to freedom of speech and expression. The immediately succeeding clause, Article 19(2), however limits this right in allowing the state the power to impose by law reasonable restrictions in the interests, among other things, of the sovereignty and integrity of India, the security of the state, public order, decency or morality, defamation, or incitement to an offence. According to the petitioners in Shreya Singhal, none of these grounds contained in article 19(2) were capable of being invoked as legitimate defences to the validity of section 66A of the Information Technology Act, 2000. They also argued that the provisions of section 66A were contrary to basic tenets of a valid criminal law in that they were too vague and incapable of precise definition, amounting therefore to a most insidious form of censorship. Further, in the petitioners’ argument, Section 66A produced a chilling effect that forced people to expurgate their speech and expressions of any form of dissent, howsoever innocuous. The Supreme Court agreed with the petitioners on each of these arguments. According to the court, none of the grounds, which the state sought to invoke in defending the law, in this case, public order, defamation, incitement to an offence and decency or morality, each of which is contained in article 19(2), was capable of being justifiably applied. Nariman J stated “Any law seeking to impose a restriction on the freedom of speech can only pass muster,” he further said, “if it is proximately related to any of the eight subject matters set out in Article 19(2).”44 On the purported justification offered by the state on grounds of defamation, incitement to an offence, and decency or morality, under article 19(2), the Supreme Court, ruled it as pithily dismissive. The court pointed out that there was no nexus whatsoever between the criminalisation of “grossly offensive” or “annoying” speech and the restrictions permitted under the Constitution were self evident.
Online defamation in Shreya Singhal’s Case:
Shreya Singhal v. Union of India, In the backdrop of Shreya Singhal’s case, and in context of the contemporary age of information technology and social networking, how desirable was it to on the part of judiciary to decriminalise defamation (section 66A)?
Shreya Singhal’s case is a landmark judgement in the field of freedom of speech and expression. This epic case brings forth various dimensions which are important facets of article 19(a). Section 66A of Information Technology Act which was widely criticised for its over breadth, vagueness and its chilling effect on speech was struck down by the apex court as it was unconstitutional.
It can be said without any doubt this flurry of vulnerable libel action is nice for lawyers, however it conjointly offers an opportunity to assess however and in what measure — if at all — our public discourse and criticism ought to be curtailed or snipped by the clippers of defamation law. Defamation could be a legal wrong rising from an act of injuring a person’s identity and sullying their character without lawful justification or excuse.