This article is written by Monesh Mehndiratta, a student of BA LLB, Graphic Era Hill University, Dehradun. This article explains defamation as a civil wrong and a criminal offence. It further gives exceptions to it and explains the procedure to file a defamation case in India. 

It has been published by Rachit Garg.

Introduction

The law provides protection to an individual’s life, property, and reputation. Even Section 11 of the Indian Penal Code, 1860 defines injury as “harm to a person’s body, mind, reputation, and property”. It has imbibed in it, the safeguard to protect a person’s reputation by providing punishment for the offence of defamation. Defamation is both a crime made punishable under Section 499 IPC and, a civil wrong given in the law of torts. One of the recent cases of defamation that has grabbed the attention of people all over the world is the case of Johnny Depp and Amber Heard. Johnny Depp sued Amber Heard for defamation for an allegation that she published in the Washington Post in 2018. The case is under trial and the judgement is yet to come. 

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The article deals with defamation, its essentials and types of defamation, along with exceptions. It further explains the procedure for filing a defamation case in the country as a criminal case and a civil suit.

Defamation

It is an injury to a person’s reputation. The law of defamation, like in common law countries, is uncodified in India and is largely dependent on case laws and precedents.

Types of defamation

English law divides defamation under 2 heads, these are:

Slander  

It means the publication of a defamatory statement in the transient form. For example, anything that is spoken or the gestures harming the reputation of the person. It was held in the case of Hirabai Jehangir v. Dinshaw Edulji (1932) that when remarks are made on the chastity of women, there is no need for special damages to be proved.

Libel 

It means any kind of representation in permanent form. For example, something that is written, printed or picturized. In the case of D.P. Chaudhary v. Manjulata (1997), a 17-year old girl who belonged to a middle-class educated family and was a student of B.A. was defamed by a publication in a local newspaper that she ran away with a boy named Kamlesh. Though the news was false and fabricated, she had to face repercussions as a result of such publication. When she filed a case against the local newspaper, she was entitled to compensation of Rs. 10,000/-. 

In the case of Youssoupoff v. M.G.M. Pictures Ltd. (1934), it was held that not only the photographic part of a film but also the speech in it is seen as libel.

Difference between libel and slander

Under the English law, libel and slander have been differentiated as:

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  • Libel is addressed only to the eye, but slander is addressed to the ear.
  • Under criminal law, only libel is made punishable and slander is no offence. 
  • Under the law of torts, slander is only actionable in cases of special damages, but libel is actionable per se.

Indian law – Criminal law in India does not differentiate between libel and slander, unlike English law. Both are offences and punishable under Section499 of IPC. Also, both are actionable per se in the country.

Essentials of Defamation

The statement must be defamatory

Any statement which makes a person subject to humiliation, disrespect, or contempt is considered to be defamatory. In the case of Ram Jethmalani v. Subramaniam Swamy (2006), the defendant during the proceedings said in written proof that the plaintiff had received money from the LTTE, which is a  banned organization. It was found that the statement was defamatory and the defendant exceeded the privilege, gave evidence of evil intention and was held liable.

In another case of South Indian Railway Co. v. Ramakrishna (1890), the guard went to a carriage to check the tickets and, while checking, made remarks to a person that he suspected of travelling illegally. The person produced the ticket and later sued the railway company for defamation. The court held that the statement was bonafide and made under circumstances that did not amount to defamation.

The statement must refer to the plaintiff

It is necessary for defamation to be proved that the statement was made to the person filing the suit. The intention is immaterial whether the person wanted to defame or not. In the case of Newstead v. London Express Newspapers Ltd. (1939), an article was published that “Harold Newstead, who is a Camberwell man,” is convicted of bigamy. The suit was filed by another person with the same name who was a barber. It was held that the article did not provide complete information as a result of which it was seen as referring to the plaintiff and they were held liable.

It should also be noted that when the words are used for a class of persons or a group, no one as an individual can claim damages for defamation until and unless it is proven that the words referred to him. 

The statement must be published 

It means that the defamatory statement must also be known to some other person other than the person it is referring to, only then any civil action can be taken against that person. In the case of Mahendra Ram v. Harnandan Prasad (1958), the defendant had sent a letter written in Urdu to the plaintiff, who did not know how to read it. He asked another person to read it and found that it contained some defamatory statements. It was held that the defendant will not be held liable for defamation unless it is proved that he knew that the plaintiff did not know how to read Urdu. 

Defences 

The various defences which do not amount to defamation are:

  1. A statement which is true or can be justified,
  2. Fair comment in the public interest
  3. Privileges, which are further of the following types: 
    • Absolute privilege
      1. Parliamentary proceedings
      2. Judicial proceedings
      3. State communications
    • Qualified privilege
      1. A statement made in discharge of duty
      2. Without malice

Filing of a civil suit

A person whose reputation has been harmed by another person can either file a civil suit or initiate a criminal proceeding against the person. A person can file a civil suit under Section 19 of the Civil Procedure Code, 1908 (CPC) which includes within it any civil wrong done to a person. However, it does not mention the word defamation, but as mentioned under the law of tort, defamation is a civil wrong where the personal rights of an individual are infringed. It is a well-known fact that the law of torts is not a codified law in India, and as such, there is no specified procedure to file a civil suit for damages. The judge decides the compensation on the grounds of equity, justice, and good conscience,  mostly depending on the precedents having similar facts and circumstances. Thus, the procedure for filing a civil suit is as follows:

  • Order 7 of CPC mentions the filing of a civil suit and so a suit for defamation can be filed under this. 
  • The complaint can also be filed under Section 200 of the Code of Criminal Procedure, 1973. 
  • In civil cases, the parties to the suit are the plaintiff and the defendant. 
  • The cases that are of civil nature, must be filed in the civil courts. 

Procedure 

The procedure followed in civil suits is as follows:

  • A written complaint or a plaint is filed in the court which includes the name of the court, nature, name and address of parties involved, and a declaration by the plaintiff that all the information is correct. 
  • A necessary court fee of Rs. 10/-and a procedure fee of Rs. 25/- is paid, which varies from case to case. 
  • The next step is the hearing. On the first day of the hearing, the court decides whether the plaint contains a substantial matter or not. If it does, a written notice is sent to the defendants. The plaintiff is under an obligation to submit the required documents within 7 days of notice:
    • process fee
    • 2 Copies of the plaint 
  • The next stage is the submission of written statements, which are submitted as soon as the notice of the next appearance is received by the parties. It must contain the arguments related to the charges and verification by the defendants. It must be submitted within 30 days of notice, but in exceptional cases, it can extend to 90 days. 
  • Plaintiff is required to file replication, which is his response to the written statement filed by the defendant. At this stage, the pleading is said to be complete.
  • The next step is the framing of issues, which is done by the court. The parties must file the list of witnesses within 15 days. 
  • The parties can either call the parties personally or if the court feels it can issue a  summons to the witness. 
  • On a specified date, the witnesses are cross-examined and the court announces the date of the final hearing. 
  • After the final hearing, the court issues the final order and a certified copy of the order. 
  • The parties to the suit, if they are not satisfied with the order, have other options:
    • Appeal 
    • Reference 
    • Review

Defamation as a criminal offence

The offence of defamation is given under Section 499 IPC. It is necessary for a person who is accused of defamation to prove that the statement was true and was made in good faith for the public at large. The section further mentions that mens rea or the intention of the person making such a statement must be considered. In the case of Scott v. Simpson (1882), defamation was defined as “any false statement about a man and his credits.” The punishment for the offence of defamation is given under Section 500 IPC. 

The Section states that the following persons can be defamed:

  1. Imputation to a deceased person
  2. Any company, association or class of persons
  3. Defamation by innuendo, i.e., any indirect statement
  4. Any statement that harms or lowers the moral or intellectual character of the person and also includes a remark on his caste. 

Ingredients 

The ingredients of Section 499 are:

Publication of any statement against the reputation of a person

Imputation made in the form of

  • Words, whether spoken or written
  • Signs
  • Any representation that is visible

Intention to harm the reputation of the person or the presence of mens rea to defame him. 

Exceptions 

Public interest

The conditions necessary for this exception are:

  1. True statement 
  2. Made for the public good 

Conduct of public servants 

In the case of Purshottam Vijay v. State of Madhya Pradesh (1961), the High Court laid down the requirements necessary for second and third exceptions under the section. 

  1. The facts must be true
  2. Fair comments
  3. Criticism must be made in the interest of the public. 

Reports of court proceedings

This exception provides that if the court proceedings are published, then in such a case, any statement made cannot be treated as defamatory. However, it is necessary that the proceeding be published continuously as held in the case of Ananda Prasad v. Manotosan Roy (1953). 

Conduct of witnesses and merits of public performance

It means that the conduct of any person in any court proceeding is not defamatory and the literary criticism of public performances or the opinions on art, painting, literature, etc. does not amount to defamation. 

Censure passed in good faith

The following acts of censure are included under this:

  • Censure of conduct of any witness or officer by the judge
  • A person under the head of the department
  • A schoolmaster who derived authority from the censure of the parents
  • Censure of a servant by the master 
  • Censure of the cashier by the bank

Accusation in good faith

Any allegation made against any authorised person who acted in good faith comes under the exception to the offence of defamation. However, it is not necessary to prove that the statements or allegations were true. 

Caution conveyed in good faith

Such caution must be exercised for the good of the person to whom it is addressed. Thus, the intention of the person conveying caution needs to be proved. 

Filing of criminal proceedings 

If a person wants to file criminal proceedings against a person who tried to defame him, he can file a complaint. The accused will be charged under Section 499 of IPC. As soon as the officers receive the complaint and permission from the magistrate, they will start the investigation under Section 156 of the Code of Criminal Procedure, 1973. The magistrate, after the accused has been produced before him, will start the trial and, based on evidence and arguments from both sides, will give punishment to the accused. The punishment for the offence of defamation is given under Section 500 IPC, which is simple imprisonment for 2 years or a fine or both. The offence is non-cognizable, bailable, and triable by the Sessions Court. 

Procedure

  • A complaint is filed to the police officer who mentions all the details in a book or diary authorized by the State Government in the case of a non-cognizable offence. 
  • The complaint is further sent to the magistrate, with whose permission, the officers proceed with the investigation. 
  • The complainant has a right to follow up on the investigation process. He can also file a complaint directly to the magistrate if police officers do not act properly. 
  • A magistrate, on being satisfied, can issue a notice to the accused to appear before the court and start the proceedings. 
  • If he is not satisfied that the case contains the substance, he may ask the police officer to conduct a proper inquiry. If he is satisfied, he will summon the accused and continue the trial procedure. 
  • The evidence is produced and, after that, the police file the final report with the magistrate, which also means that the investigation has been completed. 
  • The two types of final reports are:
    • Closer report – it reveals that there is no evidence against the said charges and the magistrate, based on this report, either closes the case or orders further investigation. 
    • Chargesheet – it contains brief facts, a copy of the FIR, Panchanamas, a list of witnesses, seizures, etc., which helps the magistrate to believe that the case is genuine and contains substance. 
  • After the charge sheet has been filed, the prosecution takes cognizance of the case and issues a warrant to the accused as per the provisions of the Criminal Procedure Code, 1973. (Section 190)
  • If the case is not made out in the first hearing, the accused is discharged under Section 227 of the code. 
  • If he pleads guilty, he is directly convicted under Section 229 of the Code or else the trial is continued. 
  • The next stage is when the prosecution produces the witnesses and their cross-examination. At any stage during the trial, if the judge thinks he can examine the accused as per Section 313 of the Code. 
  • After the prosecution, the defence lawyer presents his witnesses and both parties argue. On the basis of arguments, the judge decides whether the accused must be convicted or acquitted. 

Defamation cases against celebrities

The life of a celebrity is not hidden from the public. From what they wear to what they eat, everything is reported to the people. Here are some famous cases of defamation which involved celebrities:  

  1. Recently, a defamation suit was filed by celebrity Shilpa Shetty in 2021 against the  media personnel where she accused them of destroying her image and reputation after her husband was accused and arrested for creating derogatory content (pornography). She requested the court to order the media to delete all such articles and issue a written apology. On this the court remarked that such an order would affect the media, curtail their rights and have a “chilling effect” on them. 
  2. Another such instance of defamation is when the famous Akshay Kumar filed a defamation case against a Youtuber, asking to pay Rs. 500 crore as damages to him. The content creator was alleged to have defamed Akshay during Sushant Singh Rajput’s case. 
  3. A famous instance of defamation witnessed by the country was when lyricist Javed Akhtar filed a criminal case of defamation against actress Kangana Ranaut for her comments during her interview with a TV channel. He asked for the punishment as she used his name in the death case of Sushant Singh Rajput. 
  4. When actress Payal Gosh used the name of actress Richa Chadha in a derogatory way during a fight with Anurag Kashyap in the Metoo movement, she filed a defamation suit against her. The case was settled between the two after Payal Gosh gave a public apology for the same. 
  5. Another famous defamation case which grabbed the attention of the public was the defamation case filed by actor Salman Khan during his trial in the Blackbuck case against a news channel and asked to pay Rs 100 crores as damages in the High Court of Bombay. He also asked the court to order the channel not to publicize the sting operation done by them as it would ruin his reputation. 
  6. Even the filmmakers have filed defamation cases against each other. Mahesh Bhatt and his brother filed a defamation suit against an actor for making false and fabricated allegations against both of them in the Bombay High Court and asked for Rs 1 crore as damages. 

Landmark judgements on defamation 

Knupffer v. London Express Newspaper Ltd. (1944)

Facts

In this case, the appellant was one of the members of a party. Out of 2000 members, 24 members including him, were in England. The respondents published a defamatory article making a reference to the party. But the appellant took it as if the article referred to him and filed a defamation case against the publication agency. 

Issue

Whether the respondents are liable for defamation 

Judgement

It was held that when an article refers to a large number of people or a class of people, it cannot be taken as referring to one particular person. The reason being that in such a case, it is very difficult to prove whether the defamatory sentence was referred to the appellant or not. Thus, the respondents were not held liable. 

T.V. Rama Subba Iyer v. A.M.A Mohindeen

Facts

In this case, the defendants published a news headline in their newspaper that a person was exporting scented agarbattis to Ceylon (present day Sri Lanka) and had smuggled drugs in the name of agarbathis. It further stated that the person resided in Tirunelveli and has been arrested. The plaintiff from the same place as mentioned had a business of scented agarbattis and exported it to Ceylon. As a result of this publication he suffered a loss in the business and filed a suit of defamation against the defendant. The defendants pleaded that they did not have any intention to defame him and also corrected the news article the next day stating that the article did not refer to the plaintiff. 

Issue 

Whether there is any liability in India for a defamatory statement published without the intention to defame a person.

Judgement

The Court while delivering the judgement referred to the case of Hulton and Co. v. Jones and held that in India there is no liability  for the statements that are published innocently and thus, they were not held liable. 

Cassidy v. Daily Mirror Newspapers Ltd. (1929)

Facts 

In this case, Mr. Cassidy also at times called Mr. Corrigan was married to a lady who was his lawful wife but did not live with him. The defendants published in their newspaper that “Mr. Corrigan, the owner of the race course and Miss ‘X’s engagement has been announced”. The lady or the wife of Mr. Corrigan sued the defendants for libel stating that the innuendo  was that Mr. Corrigan was not her husband and he had immoral cohabitation with her. It was also shown that some of their friends formed a bad opinion because of such a publication. 

Issues

Whether the defendants will be held liable for the defamation.

Judgement

The jury found that the meaning of the statement was defamatory and held that innuendo was established. The defendants were not given any defence of innocence and were held liable. 

Ram Jethmalani v. Subramanian Swamy (2006)

Facts

In this case, a commission was set up to enquire about the facts relating to assassination of Late Shri Rajiv Gandhi. The defendant in a press conference said that the CM of Tamil Nadu had prior information regarding the same. The plaintiff was appointed as the senior counsel to the then Chief Minister as a result of which he cross-examined the defendant. During the proceeding, the defendant made a written submission stating that the plaintiff had taken money from LTTE which is a banned organization. This statement appeared defamatory and the plaintiff filed the suit for the same. 

Issue 

Whether the defendant is liable for defamation?

Judgement

The Court held that the statement made for the plaintiff is irrelevant and not connected to the case. This showed malice on the part of the defendant and he was held liable for defamation and the Court awarded Rs. 5 lacs as damages to the plaintiff. 

Conclusion 

Defamation is a civil wrong where the individual rights of a person are infringed. The remedy for defamation can either be a civil remedy where damages will be paid to the plaintiff or criminal punishment where the accused will be punished with simple imprisonment up to 2 years or a  fine or both. The complaint regarding defamation can be filed to the magistrate who will direct the police officers to initiate the investigation and then the criminal trial will start. For a civil suit, the plaint must be filed by the plaintiff in the civil court under Section 19, CPC. This way a defamation case can be filed in the country. 

Frequently Asked Questions (FAQs)

Where is defamation defined under IPC?

The offence of defamation is given under Section 499 whose punishment is given under Section 500 of the IPC

What are the ingredients of Section 499 IPC?

The ingredients to Section 499 are:

Publication of any statement against the reputation of a person

Imputation made in the form of:

  • Words whether spoken or written
  • Signs
  • Any representation which is visible

Intention to harm the reputation of the person or the presence of mens rea to defame him. 

Is defamation a civil wrong?

Defamation is a civil wrong where the individual rights of a person are infringed. However, in India, a person can either file a civil suit against the person for defamation or initiate the criminal proceedings by filing a complaint as the remedy to defamation. 

What are the defences to defamation as a civil wrong?

The defences are:

  1. Justification or true statement
  2. Fair comment
  3. Absolute and qualified privileges. 

5. Who all can be defamed as per Section 499 of the Indian Penal Code?

The Section states that the following persons can be defamed:

  1. Imputation to a deceased person.
  2. Any company, association or class of persons.
  3. Defamation by innuendo, i.e., any indirect statement.
  4. Any statement that harms or lowers the moral or intellectual character of the person and also includes a remark on his caste.

References 

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