Defamation under Criminal Law

By Shubhi Shukla

Introduction

 Imagine a scenario when you are mistreated by people only because someone has spread a rumor about you which everybody around you believes to be true. Would you not want to get that person punished who was the reason for your misery and has spread misinformation about you which is not at all true. So now this case is defamation. When someone destroys your reputation it is termed defamation. It refers to an injury to the reputation of an individual.

Essentials of Defamation

• The statement must injure the reputation of the plaintiff and be defamatory.
• The statement should refer to the plaintiff and a  reasonable person must understand that the statement said referring to the plaintiff
• The statement of defamation must be communicated to a third party other than the plaintiff

(I) The statement must injure the reputation of the plaintiff and be defamatory

 When a person has a bad reputation in society people start ignoring and mistreating that person and one of the reasons behind a bad reputation might be defamation. It lowers down the position of a person in society; it is an act that causes disgrace and humiliation to one person. defamation doesn’t need to be oral; it can be in any format whether it be written, oral, via a picture, statute, or by any other means.

Ram Jethmalani v. Subramaniam Swamy [AIR 2006]

 In the following case, the defendant during a press conference claimed that the chief minister of Tamil Nadu was aware of the LTTE plan to assassinate the then Prime Minister late Shri Rajiv Gandhi. He also alleged that the plaintiff also received some money from LTTE a baned organization all these statements were made by the defendant while a commission inquiry was going on in the case of the late Prime Minister’s assassination. The Delhi High Court observed that the statement made by the defendant was malice and unconnected to the situation. it held that the defendant was guilty and awarded damages of rupees five Lac.

South Indian Railway v. Ramakrishna (1890)

In the following case, a railway guard who was the employee of the defendant went to check the tickets. he asked the plaintiff to provide his ticket in presence of some other passenger. the railway guard misunderstood and said that the plaintiff is traveling with the wrong ticket the plaintiff claimed that the statement made by the railway guard where defaming in nature as they were said in front of some other person and sued the railway company for the same. the court held that the railway company will not be held liable as this was no defamation.

(II) The statement should refer to the plaintiff and a  reasonable person must understand that the statement said referring to the plaintiff

In order to claim the action for defamation, it is must for the plaintiff to prove that the statement made by the defendant was defamatory and also that it referred to the plaintiff. it doesn’t matter if the defendant was intending to defame the plaintiff or not if a person with reasonable thought process can infer that the statement refers to the plaintiff in such a case the defendant will be held liable

TV. Ramasubha Iyer v. AMA Mohindeen [1971]

In the following case, the defendant published a statement against the plaintiff which was defaming in nature although the defendant did not have any such intention. This statement of the defendant damaged the reputation of the plaintiff in the society and therefore the court held him liable.

(III) The Statement of defamation must be communicated to a third party other than the plaintiff

 If the statement that is made to defame is said to the plaintiff only it will not be defamation the statement must be made in front of some third party if this condition is not satisfied there lies no civil action for defamation. making a defaming statement in front of the plaintiff is not at all enough because reputation is something that society holds for somebody it is not about one’s own opinion about himself

Mahendra Ram v.  Harnandan Prasad [1958]

In the following case, the plaintiff received a letter written in the Urdu language which was sent by the defendant. Now because the plaintiff did not know Urdu he approached a third party to read it and explain it. The defendant was not held liable by the court saying that it is no defamation.

Illustration: Aman, who runs a newspaper agency publishes an article stating that a girl Neela who lives in the neighborhood has eloped with a boy. Now because newspapers are read by a lot number of people this news lead to defamation of Neela when she was not gone anywhere with anybody.

Illustration: Sanjana while fighting with Ria, her friend in a room says that Ria is a thief who has stolen her mobile phone only Sanjana And Ria were present in the room so now if Ria files a suit against Sanjana claiming that she has defamed her this is not possible because while the time statement was made only Sanjana And Ria were present in the room and there was no third party in front of whom Ria was defamed.

Defenses

In order to get rid of charges of defamation, there are three defenses available with the defendant to prove his innocence:- 

(i) Justification of truth 

(ii) Fair comment 

(iii) Privileges (which can be absolute or qualified.)

(i) Justification of Truth

Proving that the statement made was true does not make the defendant eligible to take the defense of justification of truth. this defense to be accessible needs to satisfy the condition that the statement is made for the public good. but if we compare it with civil law merely proving that the statement was true can be a good defense no matter whether the statement was made maliciously or not.

Radheshyam Tiwari v. Eknath [1984]

In the following case, the defendant was the editor and publisher of a newspaper agency; he alleged that the plaintiff had issued some wrong certificates, accepted bribes, and had acted illegally. The plaintiff sued the defendant after the same. and the defendant was not able to prove that the statement made was true and was unable to justify the same therefore the defendant was held liable by the court.

Illustration: Nisha spread the misinformation that Sanchit has secretly married and has a child when Sanchit came to know about it he sued Nisha for defamation. If Nisha can justify the statement made by her she will not be held liable but if she is unable to prove the same she will be held liable.

Fair Comment

If a fair comment is made by the defendant keeping in mind the matters of public interest then it can be a defense for an action of defamation. In order to avail of this defense, there are some essentials to be fulfilled.

• It must be an opinion should not be the assertion of fact
• The comment made should be fair
• The topic on which the opinion is expressed should be of public interest

Illustration: Shivam alleged Rishabh of bribery and corruption in a newspaper later on Shivam was unable to prove the fairness of his allegations and hence his comment was not considered fair. the comment made by the defendant must be of public interest. matters of courts, textbooks, administration of government departments are also considered as matters of public interest.

Privileges

Privilege in a literal sense means the situation of some special circumstances or providing some special status. In circumstances when the freedom of speech and expression of an individual outweighs the plaintiff’s right to defamation. Then the law recognizes the statements then made are not actionable.

The privilege is divided into two types 

(i) Absolute privilege and the 

(ii) Qualified privilege

(i) Absolute privilege

 absolute in the literal sense means complete without any condition so the privilege that provides complete immunity to the person who makes this statement. no matter whether the statement is false or made with a mala fide intention for such statement no action lies under this privilege it is identified in the following cases:-

(A) Parliamentary Proceedings

For a democratic nation, it is important that the parliamentarians can speak and stand against the government in power without any restriction. Article 105 (2) provides the member of either House of parliament with the immunity to speak anything regarding the due course of the parliament and any of the statements which would fall under this category would be not actionable.

(B) Judicial Proceedings

If the words spoken by a judge, a council, or witness are of mala fide intention no action lies against them when it is done during a judicial proceeding because they have been given immunity under the judicial officer’s protection act 1850.

 V. Narayan v. E Subbanna [1974]

In the following case, it was held by the court that the statements made in a complaint to the police were absolute privileged, and therefore the defendant-respondent who filed a false complaint to the police imputing an offense of robbery against the plaintiff-appellant could not be made liable for defamation of the plaintiff

(C) State Commission

In order to maintain public policy officers on official duty are provided with absolute privilege. they are exempted when one officer makes any statement to the other officer. it also covers the report made by the military and naval officers

(ii) Qualified Privilege

As the word suggests there exists a condition to be qualified to fall under the qualified privilege. For the defense of qualified privilege, the statement is made without any malice in mind with bona fide intention.

Illustration: Sia who was making a report to her superior officer cast an imputation on the character of Zain and raises a question on his honesty now Sia will fall under exception as it was made with bona fide intention in the public good.

Forms of Defamation

 As per English law, the actions for defamation are divided into 2 forms (i) Libel and (ii) Slander

Whenever the defamatory statement is made in some permanent form, for example, writing, printing, picture, or statute there are known as libel and when the defamatory statements are made in some transient form such as by spoken words or gestures, etc these are termed as slander.

Under English law, the difference between libel and slander is significant for two reasons:-

In English criminal law, libel falls under an offense while slander is exempted from being an offense.

In English the law of tort action lies for slander only in some exceptional situations otherwise there is no action for slander but libel is always backed with actions.

To prove the damage caused is no compulsion under libel. Under English law libel and slander are like an apple and an orange that are very different from one another.

If we have a look in the Indian criminal law there is no such difference made between libel and slander both of them fall under Section 499 of IPC as criminal offenses 

Hirabai Jahangir v. Dinshaw Edulji [1926]

 In the following case, the Bombay High Court held that when there was the imputation of unchastity to a woman by spoken words or the wrong was actionable without proof of special damage.

The Innuendo

Innuendo in literal terms means an indirect way of talking about somebody, usually suggesting something bad or rude. There are times when a statement is made innocently but can be counted as defamatory if seen from its secondary meaning. when the originally said statement is not found defamatory the plaintiff needs to prove the secondary meaning of the statement to bring an action of defamation against the defendant

Illustration: Ram’s friend Sobhit doesn’t have a very good reputation but he is always there in need.  One day Ram said that Savar is just like Sobhit. With this Ram meant that Savar is always there for Ram whenever he needs him. But Savar took it in a second sense and filed a suit against Ram so this is the case of Innuendo.

Example:  Rishabh’s father is a characterless man and if somebody makes a statement that Rishabh is just like his father no matter whether the statement is said in regards to physical appearance. Rishabh proves the secondary meaning of the statement that raises doubt about his character stands actionable.

Defamatory Matter: Repetition

A person who repeats a defamatory matter his liability arises in the same way as that of the originator because every reputation is a fresh publication that gives rise to a fresh cause of action. It not only holds the author of the defamatory matter but also its editor, printer, or publisher liable. In the same way in another class of persons, the liability is strict for those who proclaim the matter without knowing its content, for example, librarians, windows, booksellers, etc. The law performs a forbearing attitude towards them. they are not liable if they did not know or despite reasonable diligence could not have known that what they were circulating was defamatory

Emmens v. Pottle

In the above-mentioned case, the defendants who were large-scale news windows sold copies of the publication containing libelous matters concerning the plaintiff. It was found that they didn’t know and were negligent towards the matter and hence there was no publication on their part holding they were not liable.

Intention to defame is not Obligatory

If the person for whom the statement is published, considers it defamatory there is defamation even if the person who published the statement finds it decent. it is not at all important that the defendants were not aware of the facts because of which a statement is said to be defamatory.

Morrison v. Ritchie & Co

 In the following case, the defendants in right-mindedness issued an incorrect statement, stating that the plaintiff had given birth to twins. The plaintiff had been married only two months back. notwithstanding the defendants were ignorant of this fact were held liable.

Defamation of a Class of Person

Whether defamatory words are spoken and it referred to a group of people then no single individual who belongs to the group can come forward and file a suit unless he proves that the statement said particularly referred to him.

Illustration: Rea says all doctors are thief Sia who is a doctor comes forward and files suit against Rea here Sia cannot claim any action towards Rea unless she proves that the sad statement particularly represented Sia.

Illustration: Ashish in an event says all teachers are business-minded people they don’t provide the education they just sell it, all they care about is of making a profit not providing knowledge then Suman a teacher files a suit against Ashish and claims that Ashish was defaming Suman who is a teacher. Here Suman will not be able to claim any action as the statement did not refer particularly to Suman.

Dhirendra Nath Sen v. Rajat Kanti Bhadra [1969]

In the above-mentioned case, it has been stated that when a newspaper editorial is defamatory of a spiritual head of a community then the members of that committee do not have a right of action.

Fanu v. Malcolmson

In the above case, an article issued by the defendants stated that in some of the Irish factories employees were subject to cruelty. From the article, it was considered that the Waterford factory of the plaintiff was aimed at in the article and therefore defendants were held liable for defamation.

Defamation in Partnership

Partners are collectively known as firms and a partnership firm is not a legal entity. Defamation of a partnership firm is considered as the defamation of partners of the firm. A firm cannot maintain a suit for defamation as it is not a legal person but in such a case, an individual partner can file a suit.

Defamation in Case of a Deceased

Under criminal law, it may amount to defamation if any false imputation is made against a deceased person. if the reputation of the person is harmed due to the wrong imputation or it hurts the feelings of his family or other near relatives, it is defamation.

Defamation and Freedom of the Press

It is expected by the journalists to be careful and cautious while reporting or making a statement that can be defamatory for any individual. In cases related to grievances ventilated by individuals on the ground that certain defamatory statements are made by publication in the newspaper’s reputation of the concerned aggrieved parties on one hand and freedom of the press on the other will have to be equally balanced.

Salena Dandasi v. Gajjala Malla Reddy [2007]

In the following case, a compensation of 10000 was awarded to the plaintiff and the Andhra Pradesh high court commented about the journalist’s taking proper care and caution while making publications of the fact as presented by the court. It should not be a new version of the facts as reflected by the court. If journalists report cases as per their convenience after adding some salt and exaggerating the matter the public will fail to distinguish between the true and the false portion of the case. This will not make such journalists fall under the umbrella of protective journalism. Such a defamatory statement made in publication the court said could not be voted off under the guise of freedom of the press. 

Communication between Husband And Wife

Matter of defamation will never be a publication in case of a husband to a wife or from wife to a husband. It also does not fall under the criteria of section 499of the Indian Penal Code.

Conclusion

After comparing and contrasting each and every concept of defamation as per laid by the Indian penal code we can easily conclude that any Injury to the reputation of an individual can be death efficiently. Indian penal code provides several provisions and covers almost all the aspects to protect one’s reputation and punish the person who injures it.