This Article is written by Harmanjot Kaur and the article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders) and Vanshika Kapoor (Senior Managing Editor, Blog iPleaders).
Table of Contents
Introduction
For someone who is a Bollywood fan, hurting the sentiments of his famous star can be like throwing a pebble on the glass pane of a newly built home. However, understanding the key intentions and the intricacies of law can prevent anyone from falling into the prey of litigation; just because you said something wrong to them.
Provisions in the constitution
Article 19(1)(a) gives you the right to express your opinion. However, this right is limited by Article 19(2), which allows the State to enforce reasonable restrictions. Some of them are as follows:
*A good sense of decency and morality
* Contempt and disrespect of the court system
* Defamation
* Sovereignty and Integrity of India
* Peaceful relations with foreign nations and States
The freedom of speech and expression means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, pictures or any other mode. It includes the right to publish and propagate one’s views. The fundamental principle involved here is the right to know.
In the National Anthem’s case (1986), it was held that the right to freedom of speech includes the right to remain silent as well.
Freedom of press
Unlike the American Constitution, Article 19(1)(a) does not expressly mentions the liberty
of the press. However, we have implicitly imbibed the freedom to publish what we want, the right to express our opinions.
In the case of Bennen Coleman, 1973 it was held that it is the freedom of the newspaper to publish any number of pages or to circulate it to any number of people. This constitutes one of the important parts of the freedom of speech. In Sakal Paper’s case, 1962 it was held that the freedom of speech in the newspaper is not only limited to the commercial content written in it.
Why do newspapers levy subscription charges if freedom of speech is a fundamental right
In the case of Express Newspaper’s case, it was held that the press industry is not free from taxation, but the tax circulation is within reasonable limitations. However, this does not impede the right to freedom of speech since there is a need for a budget for the machinery, printing press, electricity which the newspaper industry also have to pay bills.
Can anyone publish a documentary based on public records of a criminal
Yes. In the case of Rajagopal vs State of Tamil Nadu, 1994 it was held that a person can have the right to publish the documentary of a criminal without any pre-censorship or his permission. The freedom of the press means the absence of any interference by the State unless the topic touches certain areas. These include subjects such as the security of the state, morals and decency, contempt of court, defamation, India’s sovereignty, public order and friendly relations with foreign countries.
What are the constituents of defamation
Article 19(a) of the Constitution of India guarantees the right to freedom of speech. However, this freedom of speech is curtailed by the provisions of the Indian Penal Code, 1860 by inserting Section 124A for sedition and Section 499 defining the provision of Defamation.
The constituents include three broadheads to fulfil the requirements of defamation. These are having a mala fide intent to defame or harm the reputation; publication i.e., made known to the people at large; understood by a reasonable man.
What are the remedies available
There are two remedies available to someone who is defamed. One is the civil proceedings and the other is going for the criminal proceedings.
Can I get compensation for myself rather than publicly displaying anything
Yes, for that case the plaintiff should opt for the civil proceedings, where the plaintiff will get compensation or damages for the defamation.
What is the option that I should have if I care about my reputation in society more than money
In case the plaintiff cares about his reputation in society at large, it is suggested that one should opt for the criminal proceedings. This is a right in rem i.e., against the world at large, where one can opt-out for the criminal proceeding or can make the person pay a fine and even go to jail for a considerable period.
Which option should I opt-out of Criminal proceedings or a Civil Case
In case the plaintiff would care about monetary profit or gaining in personam the damages for the defamation, then he should go for the Civil proceedings. This is more like the arbitration proceedings where the parties compromise with each other and talk about how they can negotiate the long proceedings and settle the matter quickly.
In case, the plaintiff is more concerned about his reputation in the eyes of people at large, then the person should opt for the criminal proceedings. As it can make the person get imprisoned due to his offence.
What are the provisions under English Law
In English law, there is a division of defamation into two categories. These are termed: Libel and Slander. The defamation which is in the written format i.e., which is about the sense of sight is known as Libel. This was held in the case of Goldsmith v. Bhoyrul. On the flip side, Slander is the defamation or harming the reputation in an oral form i.e., something related to the sense of hearing or something which is heard. This was held in the case of White v Mellin. Additionally, Justice Watson commented the statement: ‘In defamation, damages and injunctions are merely two remedies for the same wrong.’
Additionally, there is a provision of innuendo. In innuendo, a person speaks something which is seemingly very innocent but at a deeper level, it is defamation. It is like mockery on the surface however after deeper analysis it is an ‘oblique remark’ disparaging the reputation. In the case of Tolly vs JS Fry & Sons Ltd., the portrait of a golf player was shown as hitting the ice-cream ball. This would amount to defamation as his reputation and career is mocked here. Similarly, in the case of Cassy vs Daily Mirror Newspaper Ltd., it was said that Mr A married Mrs A, but lives with Miss B. At first glance, it may seem to be a simple statement, however deep inside it is raising questions on the person’s character. This would amount to innuendo under English law. Likewise, in the case of Morrison vs Ritchie Co., it was held that it would be an innuendo to say that a lady has given birth to twins just in two months.
Newstead vs London Express Newspaper, a specific person named ‘Camberwell’ was said to commit adultery. However, the actual name of the person was ‘Camberwell Barman’ who had committed adultery. Hence, one needs to be as specific as possible when it comes to writing on any sensitive information. Here, indirectly, the news writer is implying the crime of bigamy, which is an offence. Hence, it is defamation.
What are the specifications under Indian Law
Under Indian law, we have Article 19(1) providing the provision for the freedom of speech. However, curtailing this right so as not to hurt anybody’s sentiments, we have Section 499 of IPC. In Radhey Shyam Tiwari vs Eknath, it was held that one should verify the information before circulating. A false claim of issuing fake certificates, accepting bribes and calling reputed BDO a ‘Money Monger’ would constitute defamation.
Likewise, in Gurbachan Singh vs Baburam, it was held that the editor should check the veracity of the information before publishing it. Otherwise, it may amount to defamation, if it was later found to be untrue. In Alexander vs North Eastern Ry., there was a newspaper headline of a $1 fine or 14 days imprisonment, as the accused was travelling without a ticket. It was held that such an act would not amount to defamation, as the person was actually to pay a fine and was imprisoned. So, using one of the two pieces of information (fine or imprisonment) as a headline would not amount to defamation, as overall the information was true.
In Cook vs Alexander, it was held that anything said during the parliamentary proceeding would not amount to any defamation.
In the present case where ‘Kangana Ranaut’ compared Javed Akhtar with a terrorist, there is clear evidence of irrational prejudice. Moreover, she has not verified the veracity of the information. On similar lines, the precedents attached to this case can be Horrock vs Lowe, where it was held that whoever published anything with prejudice, irrational and unfavourable against the plaintiff would defame them. In the case of Ram Jethmalani v Subramaium Swamy it was held that the provision of ‘qualified privilege’ is present only in the Houses of Parliament or in the courtroom proceedings. Anything which is spoken outside the ambit of the parliamentary proceeding or the courtroom proceedings would amount to defamation. In Salena Dandasi v/s Gajjala Malla Reddy & Another, it was held that the publisher of a newspaper should run due diligence before publishing anything. Otherwise, if later it would be found that the claims were untrue, it could lead to defamation. In Noor Mohammad vs Mohammad Jiajddin, it was said that revoking the marriage in front of the whole ‘baraat’ would amount to defamation. Similarly, in D.P. Choudhary v. Kumari Manjulata, a student going for night classes was accused of running away with her lover. This would amount to defamation, as the information was untrue and not verified before publishing.
What are the provisions in the Indian legal system
There are various exceptions discussed in Indian Penal Code related to defamation. These are discussed under Section 499 of Indian Penal Code, 1860.
Explanation 1.
Implicate anything to a deceased person may constitute defamation, It has been noted that if the imputation would harm that person’s reputation if he were living. Furthermore, it may also hurt the feelings of his family or other close relatives.
Explanation 2.
False imputations regarding a company or an association or group of people may constitute defamation.
Explanation 3.
If an imputation is presented as an alternative or is stated ironically, it may be defamatory. A mocking, less direct, and mischievous way of saying the same thing creates an ironic situation here. This may amount to defamation.
Explanation 4.
Imputations never cause harm to someone’s reputation, unless they lower their character in relation to their caste or their calling. In addition, they do not cause others to believe that their body is dishevelled, or is in a state generally considered disgraceful.
Illustrations
(a) A states, “Z is an honest man; he never stole B’s watch”, intending to give the impression that Z did steal B’s watch. Unless it falls within one of the exceptions, this is defamation.
(b) A inquired who stole B’s watch. In order to make it appear that Z stole B’s watch, A points to Z. Unless it falls within one of the exceptions, this is defamation.
(c) A shows a drawing of Z running away with B’s watch, intending for people to think that Z did it. There is defamation here, unless it falls within the exception.
Exceptions:
First Exception. —Truth about someone that’s for public benefit
Truth about someone that’s for public benefit can be imputed or published. This would not amount to defamation. Factual impugnation about someone that serves the public interest are not defamatory. However, it should be noted that facts determine whether a policy is in the public interest or not.
Second Exception. —Public conduct of public servants.
Defamation does not include the expression of a good faith opinion. This can be related to what a public servant does in the discharge of public functions. Also, it can be about what character he displays, so long as that character appears in that conduct, and no further. Such an expression in good faith would not amount to any defamation.
Third Exception. —Conduct of any person touching any public question
In the case where a news reporter touches the question in good faith, it would not be defamation. This can be related to how a politician has been doing in the last few days, or the work done by a social worker or NGO in the past few days.
Fourth Exception. —Publication of reports of proceedings of Courts.
In case a person presents a compilation of supreme court or high court judgements or any other related reports, it would not amount to any defamation.
Fifth Exception. —Merits of case decided in Court
In case there is any commentary or a document presented in relation to the case decided by the, it would not amount to any defamation,
Conclusion
In a nutshell, we can see that there is a right to freedom of speech however at the same time we have a subsidiary provision to prevent people from rambling anything they want. Kangana Ranaut would have been on a safer side, if she would have targeted a whole community, say; doctors, lawyers, directors etc. before making any claim. As the precedent set by Kempffur vs London Express Newspaper it was held that targeting the whole community of lawyers, doctors etc. would not amount to any defamation. A generic view expressed in good faith would not amount to defamation. However, mentioning a specific ‘target person’ is known to amount to defamation. For instance, speaking hate speech, promoting Naxalism ideology, terrorism, sedition is prohibited. Additionally, speaking anything which is violative of international diplomacy is not allowed. This is implicitly mentioned in Article 51(a) forming the Fundamental duties. With the changing times, it is evident that people are becoming aware of their rights and duties. Furthermore, the infancy stage of the IT Act, 2000 and other laws are slowly buddying. It is only because of them that new and esoteric terms such as ‘Zombie Laws’ are prevalent in the present times. Slowly, but steadily we are on the lines of considering the old idioms and phrases very seriously such as: ‘think before you speak.’
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