There is a lot of interest about defamation law in India right now as Supreme Court asked Times Now to pay INR 100 crore damages for defamation and Arvind Kejriwal is in judicial custody following refusal to seek bail. Utkarsh Agarwal from NUJS explains what is defamation and various legal aspects related to defamation law. Over to Utkarsh.

Defamation refers to the act of publication of defamatory content that lowers the reputation of an individual or an entity when observed through the perspective of an ordinary man. If defamation occurs in spoken words or gestures (or other such transitory form) then it is termed as slander and the same if in written or printed form is libel. Defamation in India is both a civil and a criminal offence. In Civil Law, defamation falls under the Law of Torts, which imposes punishment in the form of damages awarded to the claimant (person filing the claim). Under Criminal Law, Defamation is bailable, non-congnizable and compoundable offence. Therefore, the police cannot start investigation of defamation without a warrant from a magistrate (an FIR cannot be filed). The accused also has a right to seek bail. Further, the charges can be dropped if the victim and the accused enter into a compromise to that effect (even without the permission of the court). Defamation as a criminal offence is listed under section 499 of the Indian Penal Code. The punishment, mentioned under section 500, can extend upto simple imprisonment for a term of two years, or with fine, or both.

Defamation as an Offence

There are certain basic requirements for a successful defamation suit: First, the presence of defamatory content is required. Defamatory content is defined as one calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule. However, the test for such content is the ordinary man test where meaning of the content is considered to be what a common, ordinary man will comprehend it to be. Second, the claimant should be identified in the defamatory statement. The content must be clearly addressing a particular person or a very small group for it to be defamation. General statements like “All lawyers are thieves or all politicians are corrupt” are too broad a classification and hence no particular lawyer or politician can consider it to be personally attributed to them. Therefore, such statements are not defamation. Third, there must be a publication of the defamatory statement in either oral or written form. Unless the content is published – made available to someone other than the claimant, there can no defamation. Under a civil suit, once all these conditions are satisfied, a defamation suit subsists, and the defendant has to plead a privilege or take up a defense. If the defendant fails to do so satisfactorily, the defamation suit is successful. Under a criminal suit, intention to defame is an important element. In the absence of intention, the knowledge that the publication was likely to defame or is defamatory becomes essential. All this is further subject to the normal standard of proof in criminal cases: beyond reasonable doubt.

Some Common Defenses to Defamation

Truth

As a general rule, it is not defamation to impute anything, which is true, concerning any person. In India, truth is an absolute defense in Civil Cases however; in Criminal cases, the true statement must also be an imputation for public good. Therefore, irrespective of the intentional of an individual, no defamation suit can be brought against someone if he imputes something true (and for public good under section 499, IPC).

Privilege

Individual may be protected from claims of defamation under tort or even criminal defamation by a privilege conferred on them by law. Absolute privilege irrespective of intention to defame is conferred upon Government officials, Judges and other such public officials in discharge of their public functions by the law. Journalists are however given Qualified privilege, valid only if made without the intention to defame. Exception 10 under section 499 IPC further expands on this and allows exception for good faith imputation to caution other or the public.

Fair Comment

In case of defamatory opinions, the exception of fair comment is allowed. The publication has to be clearly expressed as an opinion and should not mixed up with facts. Also, the opinion should be one that a fair-minded person is capable of holding such opinion even if the reasoning is illogical. These are the broad categories of defence under Defamation. There is a lot of other categories which are generally offshoots of these broader ones.