Abstract –
The research paper has been attempted to address basic questions about the types of defamation, libel and slander, different forms of defamation; criminal and civil, and examined the position of cases falling under this.
Mainly the work has been done with three objectives of the research paper;
- To examine the essentials constituents and Defences of defamation.
- To examine, Right to freedom of speech as one’s right and duty towards others.
- To examine the different conditions and grounds, where the relationship between parties becomes the barrier of defamation.
The research paper has examined the value of the right to reputation and how, with the growing importance of human rights and freedom of speech, the balance is gradually getting more evened out between the two. It is to be kept in mind that the citation has been mentioned according to the guidelines of NTCC.
INTRODUCTION
Defamation is an act of communicating false statement to malign or lower down or to form a bad opinion of someone, which ultimately injures someone’s reputation.
It is a wrong done by a person to another by words, written or spoken, sign, or other visible representations; though our constitution provides the ‘Right to freedom of speech’, on the other hand, it protects the “Dignity and reputation” of one.
Mere hasty expression spoken in anger, or vulgar abuse to which none would attribute any set purpose to injure the character would not amount to defaming a person.
The law has imposed a general duty on all person to refrain from making false, defamatory statements of fact about others
According to Dr. Winfield, defamation can be defined as: “the publication of a statement which tends to lower a person in the estimation of right-thinking members of the society, generally or, which tends to make them shun or avoid that person.”
Examples: A posted a comment on B’s blog saying that the blog’s author had been in prison for 2 years. It certainly sounds like a defamatory statement if it is false.
DEFAMATORY STATEMENTS MADE VIA INTERNET ARE ALSO ACTIONABLE
Quoting the current case which happened in May 20, “boys locker room” in which boys were body-shaming girls and even they mentioned about rape and performing it on an Instagram group named: BOYS LOCKER ROOM, although it was wrong, this never allowed others to bring their past event and portray on social media without any proof; many did that and started posting stories, how they were body-shamed, started tagging the boys who do such things with the girls, but no one stood up and checked the reality of the facts, because of ‘few fake facts’ an innocent boy named, Manav Singh, 17 yrs. young student of Heritage School, Gurugram committed suicide.
Although social media is a great platform for generating awareness, spreading information, it does never permit someone to say such wrong words about someone that ultimately affects one’s mental health and stress forces them to take extreme action which will not only affect them but the people around them and the ‘society’ too.
It is therefore, necessary to examine the freedom of speech, limitation under certain such laws they came into existence.
FORMS
Defamation is actionable both under civil law and a criminal charge under section 499 and 500 of IPC.
CRIMINAL DEFAMATION
Section 499 of IPC: “whoever by words either spoken or intended to be read, or by sign 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 to defame that person”.
It’s a bailable, non-cognizable, and compoundable offense, which means no police can register a case and start an investigation without the court’s permission, and in a criminal case intended to defame is necessary.
Punishment for the defamation under the criminal charges has been mentioned u/s 500 of IPC.
Section 500 of IPC: “whoever defames another shall be punished with simple imprisonment for a term which may extend to two years or with fine or both”.
Case: Mr. M J Akbar filed criminal defamation case against a woman journalist, who accused him of sexual harassment.
In which, M J Akbar filed the case through his advocates Karanjawala and co. against journalist Priya Ramani, who along with 10 other women, had accused him of sexual harassment.
CIVIL DEFAMATION
In civil matters of defamation, it need not necessarily follows as criminal offense.
Civil defamation generally covered under the Law of Torts, which is actionable and attracts punishment in the form of damages.
Under civil charges defendant never goes to jail, if found guilty, matters are resolved by awarding liquidated damages, where in a civil suit, intention to defame is not necessary.
Case: In the matter of D.P. Choudhury v. Manjulata, the plaintiff-respondent, Manjulata about 17 years of age, belonged to a distinguished educated family of Jodhpur. She was a student of B.A. There was the publication of a news item in a local daily, Dainik Navjyoti, dated 18.12.77, that the last night 11 p.m. Manjulata had run away with a boy named Kamlesh after she went out of her house on the pretext of attending night classes in her college. The news item was untrue and was negligently published. It was held that all defamatory words are actionable per se and in such a case general damages will be presumed.
TYPES
There are two types of defamation: libel and slander
LIBEL
It is a representation made in a permanent form that will harm the reputation of someone, writing, movie, pictures, etc. are such examples.
For e.g., X printed some advertisement saying Y is bankrupt, whereas in fact Y was not so. Thus, such representation is a specific form.
SLANDER
If the statement is made by oral words or gestures, then the defamation falls under slander.
For e.g., A questions the chastity of B in an interview, such actions of A are slanderous.
METHODOLOGY
In accordance with the objectives of the current study, the doctrinal method of research has been adopted. The doctrinal method has been used to examine various cases and incidents regarding the defamation.
OBJECTIVES
- To examine the essentials constituents and Defences of defamation;
- To examine, Right to freedom of speech as one’s right and duty towards others;
- To examine the different conditions and grounds, where the relationship between parties becomes the barrier of defamation.
ESSENTIALS
To establish defamation, a plaintiff normally must prove the following:
STATEMENT OF FACT
- Is whether the defendant made a statement of fact or a statement of opinion?
- A statement of fact is a statement that can be proved as being true or false with some standard objective.
- A statement or expression of opinion is a statement that a person believes to be true but it cannot be measured against an objective standard and is usually not actionable.
- g., X says that I think Y is a criminal. It’s not a defamatory statement as it is X’s opinion about the Y.
PUBLICATION REQUIRED
- Publication in the case of defamation means that the defamatory statements are communicated to a third person other than the defamed party (third party).
- Anyone who publishes or repeats defamatory statements is liable, even if publisher reveals the source of the statement. Both are jointly and severally liable for action.
- g., if A publishes an advertisement in a local newspaper stating false information that the company of B has committed fraud of Rs 10 crore. Now, this statement will amount to defamation as this newspaper will be read by many readers and will surely injure the reputation of B’s company.
- In Mahender Ram Vs. Hiranandani Prasad – In this case the defendant wrote a letter to defaming the plaintiff in Urdu script. But plaintiff did not know Urdu. Therefore, he made a third person to read it. It was held that if the defendant was unaware of the fact that the plaintiff was not knowing Urdu while writing the letter, and it would necessitate reading of the letter by a third person, then he exempted for his liability.
- Any means of publication is acceptable, the necessary element is that facts need to be defamatory and need to be communicated to a person more than the defamed party[1].
DEFAMATORY AND FALSE STATEMENT
- The statement needs to be defamatory in nature, which means communication of such words needs to be there which will ultimately harm the reputation of the person
- Statement needs to be false, true facts are not considered under defamation.
- Each publication of defamatory statements will be considered as individual publication and the person will be liable according to it, and if the same person publishes the same statement again then he’ll be liable for the second communication of the same material.
- g., A publishes about B, that he was sent to jail for fraud and rape, but factually B was charged for fraud. Such statement will cover under defamation as false facts are been examined.
- P. Chaudhary vs. Kumari Manjulata – In this case, the defendant, a local newspaper publisher, published a statement that the plaintiff, a 17-year girl, ran away with her boyfriend. But literally, she went to attend her evening classes. In this case the court held that the defendant is liable for defaming the plaintiff and awarded some nominal amount to her.[2]
STATEMENT MUST REFER TO THE PLAINTIFF
- Defamatory statement needs to be specifically for the plaintiff. It need not be of generalized nature like statements made for doctors, lawyers, teachers etc.
- Newstead vs. London Express Newspapers LTD – The defendants published a defamatory article stating that Harold Newstead, a man who belongs to Camber well, had been convicted of bigamy. The story was actually true. But the action for libel is brought by another same-named person Harold Newstead, who was also a barber. As the words were considered to be understood as referring to the plaintiff, the defendants were liable. [3]
- Harsh Mendiratta vs. Maharaj Singh – In this case the Delhi high court states that the suit of defamation is only maintainable by the person who was defamed, and not by his family or his friends.[4]
STATEMENT MUST CAUSE SERIOUS HARM: EITHER ON REPUTATION OR FINANCIAL LOSS
- g., The plaintiff lost his job because of the statement made.
DEFENCE
The following are the Defences taken in an action for defamation: –
JUSTIFICATION OF TRUTH
- The truth is the most important defence or justification for defamation.
- The foremost point of the defamation was ‘false’; therefore, true statement won’t fall under defamation.
- This is because only false statements against a person constitute defamation.
- Hence, if the person making the statements proves them to be true, he can escape the charge.
- Alexander vs. North Eastern Railway – In this case, the plaintiff was travelling in a train without ticket, had been sentenced to a fine of 1 pound or 14 days’ jail as an alternative. The defendants published the notice that the plaintiff was charged the fine of 1 pound or 3 weeks’ imprisonment as an alternative. The plaintiff alleged that the defendant had committed libel by describing the penalty issued to him inaccurately. It was held that the statement was substantially true, so defendants are not liable.
FAIR AND BONAFIDE COMMENT
- A fair bonafide comment on a matter of public interest is a Defence in an action for defamation.
- Essentials of a fair comment are:
- That a comment or criticism need not a statement of fact.
- The comment is on a matter of public interest.
- The comment is fair, bonafide and honest made in good faith.
- g., Making statements against maladministration by a government’s cabinet minister may not amount to defamation.
PRIVILEGED STATEMENT
- As the word itself suggest; giving special status to some, with limitation (special occasions, particular time and place)
- Special occasions when the law recognizes that the right of free speech outweighs the plaintiff right to defamation and a defamatory statement made on such occasion is not actionable. E.g., A member of parliament has an absolute privilege for any statement he makes in parliament.
- The constitution grants complete immunity from prosecution for defamation for such statements.
- Such privileges sometimes exist in judicial proceedings as well.
APOLOGY
- In the case the person who makes the defamatory statements issues an apology, he can escape from liability.
- For the Defence, the person suffering the tort of defamation must accept the apology and pardon him.
There is a special case of INNUENDO in defamation which means, when the statement was prima facie innocent but because of some secondary meaning, it may be considered to be defamatory.
For this secondary instance plaintiff must prove the secondary meaning i.e. innuendo which makes the statement defamatory.
For example: Z makes a statement that X is an honest man and he never stole my watch. Now this statement is at first instance may be innocent, but it can be defamatory if the person to whom it was made, interprets from this that X is a dishonest man having stolen the watch.
In other words, innuendo is a sarcastic comment or carrying dwell meaning made on a person.
TYPES OF DAMAGES AVAILABLE IF ONE HAS BEEN DEFAMED
Whether you’ve experienced defamation as such or pre quoted, it’s necessary to grasp what damages are accessible to you.
Damages are an umbrella term for any kind of monetary compensation awarded to a victim during a civil case. Most defamation plaintiffs request to payment of compensatory damages within the form of special damages and general damages and punitive damages if they’re out there. It may be a token amount also’
SPECIAL DAMAGES
Special damages are comparatively easy and are mentioned as liquidated damages. As one would possibly imagine, an award of special damages is supposed to reimburse a victim for actual damages. Actual damages would possibly include loss measurable or assessable in cash values, loss of business, and expenses incurred in legal action against the defamation.
Special damages should be well-documented. the great news is that this could be accomplished with proof that may be simple to get like bank statements, tax returns, and proof of expenses within the variety of invoices and receipts. Plaintiffs has to supply testimony to claim their claims for restitution.
One may require the assistance of associate witness to assist prove damages. In defamation cases, knowledgeable supply specialised information in rhetorical accounting, business, promotion, or IT knowledgeable witnesses will enlighten the court the precise nature of the defamation and its impact on the victim. they’ll conjointly give complicated monetary analysis to calculate your economic damages. The unbiased, skilled opinion of associate witness will go an extended approach toward influencing a jury’s call to award damages.
GENERAL DAMAGES
General damages may be more durable to quantify during a defamation case. they’re conjointly brought up as non-economic damages. indemnity compensate plaintiffs for emotional distress and reputational hurt caused by the defamation.
Proving emotional distress may be a troublesome task during a defamation cause. whereas it’s intuitive that libellous statements showing emotion have an effect on a victim, proving this is often a challenge. witnesses will facilitate prove emotional distress, and their testimony will generally be weighted additional heavily than the victim’s testimony.
If one has full-fledged emotional distress as a result of defamation, keep track of however it’s compacted his lifestyle together with disruptions routine like sleeping habits, appetite, and participation in social activities.
Reputational damages are a typical consequence of defamation. A plaintiff’s testimony alone is also low to get a bequest for reputational damages. the most effective thanks to prove hurt to one’s name is to supply third-party testimony or objective proof of harm to the reputation.
PUNITIVE DAMAGES
The objectives of damages are not to compensate one because the complainant for the defendant’s actions to defame others. Courts could award damages to penalize and deter the defendant’s actus reus. The punishments in such cases are not exemplary.
DEFAMATION CLAIMS THAT SEMICONDUCTOR DIODE TO JUDGMENTS
To explore what it takes to prove damages, let’s discuss a couple of defamation cases involving on-line content that yielded judgments for plaintiffs. detain mind that damages analysis is particular to every case and once liability has been established, there are many ways to prove damages and damages awards will vary wide betting on the facts of the case.
Above, the boy’s room case was conjointly mentioned keeping the facts in mind concerning the defamation on-line.
DEFAMATORY GOOGLE REVIEWS
In Fireworks Restoration Co., LLC v. Hosto, the complainant with success brought a defamation claim against a former business partner WHO announce 3 pretend Google reviews regarding the business once their relationship sour. The jury awarded the complainant $150,000 in damages that was upheld as an exemplary damage.
The court noted that the testimony of third-parties on the plaintiff’s diminished name and also the proof bestowed of the plaintiff’s monetary losses once the negative reviews were announced was enough to prove reputational injury. Fireworks Restoration Co., LLC v. Hosto, 371 southwest 3d eighty-three – Mo: Court of Appeals, Japanese Dist., 2012.
DEFAMATORY WEBSITES
In Bouveng v. Nyg Capital LLC, the complainant was awarded $1.5 million in damages for her defamation claim against her former leader that was upheld on attractiveness.
In this case, the complainant didn’t request economic damages, however the judicature based mostly its call to uphold the decision on the injury the complainant suffered to her name. The defendants engaged in an in-depth on-line campaign to slander the complainant for nearly a year by posting libellous articles on a web magazine they closely-held. The articles defendant the complainant of being a sex slave, criminal, felon, partaking in fraud, and enclosed various different libellous statements the judicature delineate as “egregious.” The defendants conjointly used SEO techniques to govern the plaintiff’s search results that resulted within the statements reaching many thousands of individuals.
The court found that the plaintiff’s name had been grievously broken. In assessing the reputational injury suffered by the complainant, the court noted proof of the intensive reach of the libellous statements, their prominence within the plaintiff’s Google search results and their probability to hurt the plaintiff’s name within the future.
DEFAMATORY FACEBOOK POSTS
In Laugh land v. Beckett, the complainant was awarded $15,000 normally damages and $10,000 in punitive damages once the defendant created a pretend Facebook account impersonating him. The court found that the defendant was motivated by a need to win romantic favour with the plaintiff’s former girlfriend.
The account announces various statements regarding the complainant that the court found libellous like occupation himself chiseller, a bank manipulator, and a foul father. The pretend account created active makes an attempt to speak with different people on Facebook regarding the complainant and had six friends. The judicature found that the pretend Facebook account had broken the plaintiff’s name.
The court conjointly found that the defendant’s actions were intentional and malicious that supported a penitentiary injury award to penalise him and deter others from similar conduct.
There are clearly more examples of cases in which plaintiffs were awarded damages for defamation, however the foremost necessary factor to recollect is that proving damages related to defamation is not easy but troublesome however not impossible.
RELATIONSHIP BETWEEN THE FREEDOM OF SPEECH AND DEFAMATION
“Liberty is not a personal affair but a social contract”
Common law has provided protection to reputation through the law of defamation. It’s been recognized for a protracted life with that protection of reputation that will conflict with freedom of expression. This is often the most reason why the connection ‘between the protected interest in reputation and also the competing interest in freedom of expression’ has begun to vary. Freedom of expression is not any longer ‘to be thought to be a residual personal right, however is interpreted as a positive right reinforced by the general public interest. Most notable case of ‘Reynolds v Times Newspapers’ explains freedom of expression in terms of the general public interest ‘in receiving and imparting data within the context of a democratic society’.
REYNOLDS V TIMES NEWSPAPERS LTD [2001] 2 AC 127
Publication of defamatory political information not subject to general qualified privilege
Facts
The plaintiff was a former Taoiseach (Prime Minister) of Ireland. He began proceedings against a British newspaper publisher in relation to an article which alleged that he had dishonestly mislead parliamentary and cabinet colleagues whilst in office. The defendants pleaded the Defence of qualified privilege at common law. The plaintiff was successful at trial.[5]
Issue
The Court of Appeal held that the publication was not covered by qualified privilege. In the House of Lords, the defendants argued that the common law should recognize a generic qualified privilege covering the publication of political matters affecting UK citizens, except those proven to have been motivated by malice.
Held
The House of Lords declined to acknowledge such a class of general qualified privilege for political data per se a privilege would fail to provide adequate protection for reputation. it absolutely was not inappropriate to differentiate political data from different matters of great public concern. The established common law approach to misstatement of fact remains sound. Below the present common law rules, qualified privilege might apply to political data wherever there had been an obligation to publish the material to the intended recipient and that they had an interest in receiving it. the flexibility of the present common law permits courts to contemplate individual cases and provides acceptable weight to competitive factors together with the importance of freedom of expression by the media as a “watchdog” on matters of public interest. still, where the data is within the political domain, the court ought to be slow to conclude that publication isn’t within the public interest. In Sir Joshua Reynolds v Times Newspapers [2001] a pair of AC 127, a lot of stress was placed on protection of name as a matter of public interest that currently permits the interest in reputation to compete on a wider ground with freedom of expression. Lord Nicholls stated: ‘reputation is an integral and necessary a part of the dignity of the individual. It additionally forms the basis of the many selections in an exceedingly democratic society that’s elementary to its well-being.
Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if particularly no chance to vindicate one’s reputation. when this happens, society as well as the individual is that the loser. The protection of reputation is conducive to the general public good. it’s in the public interest that the reputation of public figures shouldn’t be debased incorrectly. in the political field, in order to make a wise choice, the electorate must be able to identify the great as well as the bad. consistently with these issues, human rights conventions acknowledge that freedom of expression isn’t an absolute right. Its exercise is also subject to such restrictions as are prescribed by law and are necessary in an exceedingly democratic society for the protection of the reputations of others.’ Therefore, it may be aforementioned that, one has the liberty to talk and to speak their views however, that also comes with the limitation, and people limitations are set for the general public interest. Even if the statement is denigrator regarding the actual person however, if it’s in favour of public interest it won’t be coated below defamation. There are more Defences of defamation with really offer one to perform their right to talk truth against others and on the opposite had the necessities of defamation offer one the proper to safeguard their name.
Therefore, it can be easily said that, “RIGHT TO FREEDOM OF SPEECH AND EXPRESSION IS THE RIGHT OF ONE’S AND AS WELL AS THE DUTY TO OTHER”.
CONDITIONS AND GROUNDS, WHERE THE RELATIONSHIP BETWEEN THE PARTIES IS THE BARRIER FOR DEFAMATION
COMMUNICATION BETWEEN HUSBAND AND WIFE
In the eye of law, husband and wife are one person and the communication of a defamatory matter from the husband to the wife or vice versa is no publication. In TJ. Ponnen v. M.C. Verghese, the question which had arisen was whether a letter from the husband to the wife containing defamatory matter concerning the father-in-law (wife’s father) could be proved in an action by the father-in-law against the son-in-law. In that case, one T.J. Ponnen wrote no. of letters to his wife, rathi, containing some defamatory imputations concerning Rathi’s father, M.C. Verghese, Rathi passed on those letters to her father. The father-in-law launched a prosecution against his son-in-law complaining about the defamatory matter contained in those letters. Ponnen contended that the letters addressed by him to his wife are not, except with his consent, admissible in evidence by virtue of section 122, Indian Evidence Act, and since the wife is not permitted to disclose those letters, no offense of defamation could be made out.[6] It may be relevant here to quote section 122, Indian evidence act, which reads as follows:
“No person who is or has been married shall be compelled to disclose any communication made to him during the marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consent, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other”.
The Kerala high court held that the letters meant for the wife could not be proved in the court either by her or through any relation of her to the prejudice of her husband because such communication is precluded by law to be disclosed and what cannot be or is not proved in a court has to be assumed as non-existent in the eye of law. Ponnen was, therefore, held not liable.
The Supreme Court reversed the decision of the Kerala high court, it was held –
That even though in view of section 122, Indian Evidence Act, the complainant cannot seek to support his case upon the evidence of the wife of the accused, but if the communication between the husband and wife have fallen to his hands, the same can be proved in any other way. According to Shah, J:
“The complainant claims that he has been defamed by the writing of the letters. The letters are in his possession and are available for being tendered in evidence. We see no reason why an inquiry into the complaint should, or the preliminary contentions raised, b prohibited. If the complainant seeks to support his case only upon the evidence of the wife of the accused, he may be met with the bar of section 122 of the Indian Evidence Act. Whether he will be able to prove the letters in any other is a matter which must be left to be determined at the trial and cannot be made the subject-matter of an inquiry at this stage”.
Communication of a matter defamatory of one spouse to the other is sufficient publication. In Theaker v. Richardson, the defendant wrote a letter to the plaintiff making false allegations of her being a prostitute and a brothel-keeper. The letter was sent under the circumstances that the plaintiff’s husband in all probability would have read the same. The plaintiff’s husband opened and read it. The defendant was held liable.
CONCLUSION
From the above mentioned three objectives, namely:
- To examine the essentials constituents and Defences of defamation.
- To examine, Right to freedom of speech as one’s right and duty towards others.
- To examine the different conditions and grounds, where the relationship between parties becomes the barrier of defamation.
Conclusion what can be made, freedom of speech comes with the limitation and while proving the right to one; it also creates in them the duty towards others; duty to work in accordance with the public interest. Though defamation gives one’s the right to protect their good name, but at the same time it allows the others also to portray the truth in front of the public.
“Liberty is not a personal affair but a social contract”
Therefore, while highlighting point of research paper will ultimately revolve around public interest. Even essentials, Defences, and Exceptions of defamation revolves around same objective.
REFERENCES
- RK Bangia (book)
- Principle of Tort Law (book)
- https://www.lawteacher.net
- https://indiankanoon.org
- https://lawrato.com
- net
- https://inforrm.org
- https://www.minclaw.com
- https://timesofindia.indiatimes.com
[1] https://indiankanoon.org/doc/285448/.
[2] https://www.minclaw.com.
[3] https://inforrm.org.
[4] https://indiankanoon.org/doc/285448/.
[5] https://www.lawteacher.net/cases/reynolds-v-times-newspapers.php.
[6] R.K. Bangia
Authored By:
RAKSHITA BHARGAVA
Student of Law, Amity Law School, Noida, Amity University Uttar Pradesh
Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525 , Issue 22, Vol 7
