DEFAMATION LAWS: THREAT TO FREEDOM OF SPEECH?

Himanshu Gupta,

CPJ College Of Higher Studies And School Of Law

INTRODUCTION

Defamation can be generally defined as an act done with an intention to defame/ harm the reputation of a person. In India, defamation is treated both as civil and criminal offence. The burden of proving that the statement said by the defendant is defamatory lies with the plaintiff. Reputation is considered to be a great societal asset which takes several years to build but can be destroyed easily by such false statements. To prevent such acts defamation is considered as an offence

Defamation in India is defined under section 499 of Indian penal code, 1860 as “whoever by words either spoken or 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 person, is said, except in the cases hereinafter expected, to defame that person.”

Defamation laws and Right to Freedom of Speech has been colliding with each other since a very long time. Around the world, there has been a spark to determine does defamation laws really violate the Right to Freedom of Speech of citizens. Various courts through pronouncement of judgements have tried to draw a line between free use of speech and defaming/ harming the reputation of the other person. Each case has its own circumstances which makes the role of courts in delivering justice in such cases more crucial.

TYPES OF DEFAMATION

·ON THE BASIS OF TRANSMISSION

1.LIBEL

Libel is a form of defamatory statement which is made in a written/ permanent form. It can also include various forms of media like photographs, videos, etc. libel is considered to be a more serious form of defamation as it is done in written form and can be accessed repeatedly with ease.

Examples –

1.Publication of a false and defamatory article in a newspaper, magazine, etc.

2.A defamatory video published on a social media platform.

3.Any kind of defamatory statement made in the blogs, books, etc.

2.  SLANDER

Slander is a form of defamatory statement which is made through transitory means like gestures and oral means. Slander is usually done in verbal form and if not recorded then difficult to prove in the court. Slander was considered to be less harmful in earlier times but now days due to influence of social media slander can be more harmful than libel depending upon the circumstances.

Examples –

1.      Any defamatory and false statement made during the speech in public domain.

2.      False acquisitions made against any party during meetings and conference.

·ON THE BASIS OF NATURE

Defamation is considered as both civil and criminal offence which gives the liberty to the victim to either file a civil suit or criminal suit or both against the accused.

1.CIVIL DEFAMATION

In India, civil defamation is treated as an offence and any person who feels that his reputation is harmed by an act/ statement of any person can sue that person and claim compensation for the harm caused by the person. There are no criminal charges involved in civil defamation matters rather just monetary penalties are awarded. In civil defamation, the plaintiff has to prove that the said statement against which he is suing the defendant was false and really defamatory (harmed his reputation) and also prove that the statement referred to the plaintiff specifically.  

In R. Rajagopal V. State of Tamil Nadu, The Supreme Court stated that ‘the provisions of civil defamation under the Indian legal system poses an unreasonable restriction on the right to freedom of speech and expression’.

Also stated that, ‘under the provision the burden of proving the truth of the defamatory statement is on the maker of such a statement’.

2.CRIMINAL DEFAMATION

Criminal defamation is considered as a crime in India and charges are framed against the accused. In criminal defamation the main focus is to punish the accused unlike civil defamation where the main focus lies in compensating the plaintiff. Criminal defamation has always been in light of different controversies as it is said to be used as a tool to supress the voice of the people and hampering their right to freedom of speech. Under section 499 and 500 of Indian penal code, 1860 criminal defamation is considered as an offence. There are several defences that exist with the defendant to prove that his statement was not defamatory like the statement is a TRUE fact, the statement is a personal OPINION, the statement falls under the category of PRIVILEGE, the statement was published with the CONSENT of the person, etc.

In Babuji Raujishah V. Hussain Zaidi, A film named ‘GANGUBAI KATHIWADI’ was set to be released on 25 February 2022. The petitioner claimed himself to be the adopted son of Gangubai and said that the in the film her character is being wrongly depicted and amounts to defamation of Gangubai. The petitioner demanded a stay order on the release of film and filed a criminal defamation suit against the makers of the film.

The Supreme Court stated that ‘mere hurting of sensibility is not defamation, if the person to be defamed is not lowered in character or credit in the eyes of other’ and the petitioner also failed to establish a connection between Gangubai and his adoption.

ELEMENTS OF DEFAMATION

There are certain elements that a victim needs to prove to make his suit maintainable in the court. The elements are: -

·FALSE STATEMENT

The victim should prove in the court that the statement made by the accused is a false statement. Any statement which is True in nature even if it is defamatory will not amount to defamation. In fact, truth is treated to be as a defence to defamation.

In Jawaharlal Darda v. Manoharro Ganpatrao Kapiskar, A complaint was filed under Sections 499, 500, 501 and 502 of the Indian Penal Code stating that the editor has done the offence of defamation by publishing a news regarding the Maharashtra legislative assembly. His publication contained a statement made by the minister when he was asked a question regarding the misappropriation of funds. The minister stated that the enquiry has concluded and there was a misappropriation of funds and also revealed 5 names.  

The Supreme Court very clearly stated that the publication made by the newspaper was purely true and accurate and was done in good faith. The Supreme Court also stated that, “If the accused bona fide believing the version of the Minister to be true published the report in good faith it cannot be said that they intended to harm the reputation of the complainant. It was a report in respect of public conduct of public servants who were entrusted with public funds intended to be used for public good. Thus, the facts and circumstances of the case disclose that the news items were published for public good. All these aspects have been overlooked by the High Court”.

·PUBLICATION

The defamatory statement made should be at least communicated to a person other than the person making such statement and the person about whom the statement is made. If this condition is not fulfilled then such statement will not amount to defamation because the statement has not reached the public domain so the reputation cannot be harmed.

·FAULT

The plaintiff should prove that the defendant has acted negligently and is at fault for stating such statement.

·DAMAGES

The plaintiff can claim damages from the defendant by filing a civil defamation suit but first the plaintiff has to prove that the statement made by the defendant has caused damage to the reputation of the plaintiff.

·IDENTIFICATION

There are several statements/ publications made daily in the public domain. The statement which the plaintiff is claiming is harming his reputation should prove that the statement is specifically referring to him.

DEFAMATION LAWS AROUND THE WORLD

Defamation is considered a crime around the world and each nation has its different set of rules governing it. Each nation treats defamation in a different way due to differences in culture, political contexts, etc. An overview of some nations is hereby stated:

·UNITED STATES OF AMERICA

In America, defamation laws are influenced to a great extent by the first amendment which emphasizes on freedom of press and speech. Defamation laws in America preserves freedom of speech to a large extent making it difficult for the victim to win the defamation cases as the burden of proving that the statement/ publication was defamatory lies with the victim only.

·UNITED KINGDOM

In United Kingdom, defamation laws are taken up more seriously as compared to America. Defamation laws favour the victim more as the burden of proving the statement/ publication was not defamatory lies with the defendant. The defamation act, 2013 governs the defamation laws in the United Kingdom.

·AUSTRALIA

In Australia, defamation laws mainly focus on protecting the reputation of the people rather than preserving freedom of speech. The defamation act, 2005 governs the defamation laws in Australia making them more friendly for the victim and helping him in preserving his reputation.

·JAPAN

In Japan, defamation is treated as a severe offence as the laws are more inclined towards preserving the reputation rather than preserving freedom of speech. In Japan, if anyone is found guilty of doing defamation can face both civil and criminal proceedings.

·CANADA

In Canada, defamation laws are inclined towards the victim making it a quite similar to the defamation laws of United Kingdom and America. The Supreme Court of Canada recognizes a defence that can be used by the defendant to safeguard himself by proving that his statement was a “responsible communication on matters of public interest.”

LANDMARK CASES THAT SHAPED DEFAMATION LAWS IN INDIA

·Subramaniam swamy v. Union of India, ministry of law

In 2014, corruption charges were made by Dr. Subramanian Swamy against Ms. Jayalathitha. Defamatory cases were filed by the State Government of Tamil Nadu against Dr. Subramanian Swamy in response to these allegations.

Later, the constitutional validity of the offense of criminal defamation was challenged by Dr. Subramanian Swamy. The challenges to the constitutional validity of the offense of criminal defamation under the Indian legal system were dismissed by the Supreme Court in this case. The Petitioners challenged the constitutionality of the offense of criminal defamation on the ground that it hampered their Right to Freedom of Expression guaranteed under Article 19(1)(a) of the Constitution of India.

"The restrictions that were imposed on the right to freedom of expression by the criminalisation of the offence of defamation were reasonable and just in nature."

Therefore, the constitutionality of the criminal offense of defamation under Section 499 and Section 500 of the Indian Penal Code, 1860 was upheld by the Supreme Court.

·Sanjay upadhya v. anand Dubey

This case was filed by an advocate on a newspaper named ‘Sunday blast’. This paper published an article in 2013 against the advocate with the title ‘advocate ne pan masala vyavasayi karaya jhuta mamla darj’ (advocate files false case against pan masala trader). The advocate contended that any person who will read this article will made a mind that he files only false cases which harmed his reputation.

The Supreme Court observed referring to the fundamental rights to freedom of speech and expression granted under article19(1)(a) of the constitution of India and said that the news article in question was published in good faith and in exercise of the fundamental rights of freedom of speech and expressions enshrined under article 19(1)(a) of the constitution of India.

The Supreme Court also stated that all proceedings sought to be taken against the accused appellant in pursuance of the complaint filed by the respondent-complainant under section 500 of Indian penal code, 1860 are also quashed.

CONCLUSION

Defamation is considered as an offence all over world but the strictness and provisions vary from one nation to another. There exists a very thin line of difference which determines if the words were defamatory or not. It becomes important to widen the line and determine the boundaries so as to protect the reputation of citizens of the nation.

Defamation and Right to Freedom of Speech has always been a topic of controversial discussion around the world. Some nations like America and United Kingdom recognizes freedom of speech to be superior whereas nations like Japan consider reputation to be of more relevance. In India, defamation is considered to be a serious crime and anyone guilty of the same is liable to be punished accordingly.

Anti-defamation laws should be passed by the parliament that determines strict boundaries and make precise provisions for the penalties and charges. It will help in preserving the reputation of public figures, businessman and citizens of the nation.

REFERENCES

·https://blog.ipleaders.in/defamation-law-in-india/

·https://www.britannica.com/topic/defamation

·R. Rajagopal V. State of Tamil Nadu

·Babuji Raujishah V. Hussain Zaidi

·Jawaharlal Darda v. Manoharro Ganpatrao Kapiskar

·Subramaniam swamy v. Union of India, ministry of law

·sanjay upadhya v. anand dubey