Defamation Dr. Mrinal Chatterjee
What
is Defamation
Defamation or taking away the fame f ame from someone, is an offence punishable with imprisonment from the earliest times of civil government. Kautilya¶s Artha Artha Sastra mentions it and has prescribed punishment.
Fame
or Reputation- a property
The
modern law pundits have regarded defamation as an injury to the reputation of a person. Reputation is considered as a property and any damage to it can give rise to both criminal and civil action.
Defamation laws in India
There
is no separate law of defamation in India.
The
Indian Penal Code (IPC) has four sections (Section 499-502) which define elaborately what constitutes defamation and what the defences and punishments are.
What
constitutes an offence of Defamation?
³Whoever
by words either spoken or intended to be read, or by signs or by visible representation, makes or publishes any imputation concerning any person intending to harm, 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.´ ±
There
are four explanations and 10 exceptions
Ingredients of Defamation
An imputation concerning the person must have been made Such imputation must have harmed, or there is reason to believe that it has the tendency to harm, the reputation of the person concerning whom it is made.
Imputation means an accusation against a person and implies an allegation of fact and not merely a term of abuse or insult. To put it simply, imputation means to accuse someone for committing some irregularities with suggestion of proofs.
K inds
Two
of Defamation
kinds
±
Verbal- slander
±
Written-
±
libel
Both the offences are punishable under the same section of IPC
Civil
and Criminal action
Defamation gives rise to civil and criminal action The object of civil action is to adequately compensate the person defamed; the object of criminal action is to punish the offender. There is no civil action if defamation is of the spoken word.
Civil
and criminal liability
Intention is irrelevant in civil liability for defamation. Truth of the statement is complete defence to a civil action for defamation In criminal law intention is essential for liability. Good faith is a defence in criminal law. But truth as such is no defence in criminal proceedings except under the first exception to Sec. 499 of IPC. It is necessary to prove further that the defamatory publication is for the public good.
Not
alternative, but cumulative
The
aggrieved person can bring a civil suit and also make a complaint before a criminal court at the same time.
Journalistic
Defences
Justification
Fair comment
Privilege
Apology
Journalistic
Defences: Justification
Justification:
the statement is true. Truth of the imputation by itself is not sufficient in a criminal proceeding. Public good must have been involved. But in a civil suit truth is a complete defence.
Journalistic
Defences: Fair comment
Fair comment
1.
Fair comment on a matter of public interest does not amount to libel. In a plea of fair comment three points arise: The
comment relates to a matter of public interest
2. It is only a comment and not a statement of fact 3.
The
comment is fair.
Journalistic
Absolute Privilege
Defences: Privilege
Reports of Parliamentary proceedings and State legislature are protected by Art 361 A
Qualified Privilege
Newspaper report of court proceedings Publication of statements relating to affairs of the state and reports of public meetings are also given qualified privilege.
Journalistic
Defences: Apology
No good journalist likes to tender apology. Therefore
is the need to be careful before publishing the report.
Good
faith and Public good
Good Faith: A news story is deemed to be done in good faith if it is done honestly and due care has been taken in ascertaining facts and figures. Public Good: A news story is said to be for public good if it has rendered or sought to render some benefit to the society
Who
may file complaints?
Normally only the aggrieved person* Or somebody on behalf of as minor, idiot, infirm person or a woman observing µpurdah¶, etc. Sec. 199(1) ±
Sec 199(2) offers an exception in the case of dignitaries such as President, Vice-President, Governor, Minister, and Public servants. There is special procedure laid down in such cases and the public prosecutor is permitted to make a complaint.
Aggrieved person postulates that the person is or are identifiable.
Who
The
may be sued?
proprietor, Editor, Author, Publisher and Printer of a newspaper or journal would be jointly and separately liable for any defamatory matter published. The aggrieved person may sue any one of them singly.
Liabilities
of different persons
Reporter: is liable like printer, publisher, editor, if he sends some work which is defamatory in character. Editor: is individually liable for any illegal matter published in his paper, magazine, etc. Publisher: is liable for anything published in his paper, magazine, etc which is defamatory.
Liabilities
of different persons
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.
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.
Liabilities
of different persons
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.
Time
Complaint should be lodged within three years of the date of commission of the offence.
frame
Except where the delay has been condoned u/s 471 of the Cr.PC
In case of dignitaries, public servants, etc. the limitation for filing the complaint by the Public Prosecutor is six months.
Punishment for Defamation
Simple imprisonment for a term which may extend to two years or fine or both. Sec. 500 Printing (Sec. 501) and Sale (Sec. 502) of defamatory matter attract same punishment.
Damages in a civil suit
Damages depend on the assessment of the reputation of that person by the judge. ±
Principles laid down by case laws:
Nature of imputation
Mode of publication
Social standing of the defamed person
Mitigating circumstances
Information Technology Act, 2000 - Defamation through EMails will be punishable with liability for compensation. Threat may result in imprisonment up to 2 years.
Further
Defamation in the IPC Bare act ±
Information
http://statutes.agc.gov.sg/non_version/cgibin/cgi_getdata.pl?actno=1872-REVED224&doctitle=PENAL%20C ODE%0A&date=late &segid=888373003-003424
Information Technology Act, 2000 Cyber defamation ±
http://www.cca.gov.in/documents/act2000mod. pdf
