This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article discusses defamation law in India and judiciary’s take on the same. 

It has been published by Rachit Garg.

Introduction 

A simple net surfing on defamation makes it clear that it involves any kind of activity that aims to damage or cause harm to the good reputation of an individual. But the term ‘defamation’ has both explanations and exceptions attached to its definition when seen through the lenses of Indian laws. The prime reason for knowing the laws governing the statutorily recognised offence of defamation is to protect one’s dignity, as has been guaranteed by Article 21 of the Indian Constitution. With changing times, defamation has been a misused offence in the hands of many, thereby causing a rise in debate on it with respect to the limitation on free speech. What calls for in this regard is the need for progressive thinking with the changing needs of Indian society. This article aims to explore the legal side attached to defamation in India, judicial upbringing on the same, and the road ahead for it.

What is defamation

An accused individual must have created or disseminated defamatory content for an offence to be proven. While ‘creating’ typically refers to authorship, someone who intentionally or knowingly duplicates or copies defamatory content (with intent, for example) may also be held accountable. A person who is not the author or publisher can claim that the defamatory text was distributed accidentally if intent cannot be shown. The purpose of defamation law is to safeguard a person’s interest in their reputation. However, it has been significantly changed to ensure that public figures cannot use defamatory activities to avoid being held accountable for their actions and public responsibilities.

‘Making’ and ‘publishing’ have been considered additional terms by courts. As per the case of Rohini Singh v. State of Gujarat (2018), the offence of defamation may not be committed if someone only types defamatory material without publishing it or disseminating it to others. Therefore, the individual making the defamation claim must prove that the defamatory material was intended for an audience.

According to the case of Mrs. Pat Sharpe v. Dwijendra Nath Bose (1963), the author of the article (and not the source of the information) becomes liable if the recipient of defamatory material from an anonymous source creates and publishes an article based on that information.

Normally, there must be a connection between the allegedly defamatory content and the person who created or published it. If the owner of a newspaper, for example, is held vicariously liable, it must be determined in each instance whether the owner had the necessary power, knowledge, or approval to publish the defamatory material.

Essentials of defamation 

The statement must be defamatory, and the validity of the statement is determined by how the general public as a whole will perceive the subject of the statement: 

In the case of Ram Jethmalani v. Subramanian Swamy (2006), the Delhi High Court ruled that Swamy’s claims as to the fact that Ram Jethmalani had received funding from a prohibited organisation to support Tamil Nadu’s Chief Minister in the Rajiv Gandhi assassination case were defamatory.

The statement must be about the plaintiff, and it must demonstrate that it is falsely disparaging them:

For instance, in the case of T.V. Rama Subba Iyer v. A.M.A. Mohindeen (1971), the Madras High Court determined that although the defendants were held responsible, they had no intention of doing so because it was stated that a specific individual transporting goods from Agarbathis to Ceylon had been detained for the offence of smuggling. The plaintiff was one of those operating a similar business, and his reputation was seriously damaged as a result of this comment.

That assertion must be made public: 

In the case of Mahendra Ram v. Harnandan Prasad (1958), the defendant was found responsible for the letter that he sent to the plaintiff in Urdu while being aware that the plaintiff was not versed in Urdu. The notice was therefore read by one individual named Kurban Ali in presence of several other persons. The notice contained defamatory and false allegations against the plaintiff which had resulted in causing pain thereby leading to a substantial case of defamation as the assertions were made public. 

Defamation under the Indian Penal Code, 1860

Defamation is both a criminal (which carries a prison sentence) and a civil offence (punishable through the award of damages) in India. The Indian Penal Code, 1860 (IPC) codifies the criminal law on defamation, whereas defamation is penalised as a civil offence under the law of torts.

Defamation is defined in Section 499, and the punishment is outlined in Section 500. The offence of defamation is defined as any spoken, written, or visual statement about another person designed to damage that person’s reputation. The conduct of any person addressing any public issue or expressing comments on a public performance an example of exceptions to this rule, as well as any imputation of truth required for the public benefit.

Section 499 of the Indian Penal Code, 1860

Section 499 of the Indian Penal Code, 1860 reads as follows, “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.”

Consequently, the fundamental components of defamation are:

1. The dissemination of spoken, written, sign, or other visible material.
2. With the goal that such an imputation would reduce the person’s opinion.
3. Such slander is committed in front of society’s upstanding citizens.

Libel and slander

The major form of communication and publication becomes one of the most crucial elements in a defamation case. A third party learns or becomes aware of the alleged defamatory imputations through publishing. Defamation is the publication of a remark that tends to diminish a person’s reputation among other people in society. Libel occurs when a statement is made permanently, whereas slander occurs when only a few inconsequential words or gestures are used. 

1. Libel: Defamation caused by means of words written.
2. Slander: Defamation caused by means of words spoken thus temporary in nature.

The distinction between libel and slander was drawn by the Andhra Pradesh High Court in the case of S.T.S. Raghavendra Chary v. CheguriVenkatLaxma Reddy (2018). The tort of ‘slander’ (a hurtful statement in a temporary form, notably speech), which gives rise to a common law right of action, is where defamation originated in the common law. Libel is the broad term for defamation in the international context. Slander and libel both demand publishing. Libel and slander are fundamentally different from one another only in how the defamatory material is published. 

Therefore, publishing false information about a person with the intent to hurt that person’s reputation is defamation. The prosecution must categorically show that the accused published the libel, and the defamatory statements must have been published within the territorial jurisdiction.

Explanation 1 of Section 499 of the Indian Penal Code, 1860

Explanation 1 of Section 499, which talks about defamation of the deceased, reads as follows, “Explanation 1.- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.”

Therefore, blaming something on a deceased person may likewise be considered slander. Two postulates are established in the explanation, namely: 

1. The imputation must be designed to hurt the feelings of the family or other close relations, and
2. Must be of a character that would have damaged the reputation of the deceased individual if he or she were still alive.

Both requirements must be met under the circumstances (Explanation 1) in order for the defamation claim to be upheld. Additionally, there should be actual injury done rather than harm that was planned to be done. This is due to the fact that the latter criteria do not apply in cases involving deceased individuals.

Defamation of a deceased person and the ‘Gangubai Kathiawadi’ fiasco

Defamation of a deceased person comes within the ambit of Section 499 of the Indian Penal Code, 1860. According to the law, “an imputation would amount to defamation of a deceased person if it would damage the person’s reputation if he/she were still alive and is done with the intent to inflict grievance onto his family or relations.”

The Supreme Court recently rejected a request for a stay on the release of the film ‘’Gangubai Kathiawadi’’ made by an individual who claimed to be Gangubai’s adopted son in a defamation lawsuit involving a deceased person who is Gangubai herself. The man claimed that the portrayal of his adopted mother as a prostitute, brothel owner, and mafia queen in the film damaged the reputation of his mother. The authors of ‘’Mafia Queens of Mumbai,’’ the novel on which the movie is based, served as respondents in this lawsuit.

The Supreme Court noted that in order to maintain a defamation action, the applicant for interim relief would need to demonstrate to the Court that: 

1. They were close relatives or members of the family of the person who was being slandered.
2. The statements made about the deceased family member or relatives were false, and
3. The statements would damage the deceased’s reputation and character. 

If the individual who is being accused of being defamed is not hurt in terms of his reputation or worth in the eyes of others, then it is not defamation. However, the petitioner was unable to establish his relationship with Gangubai through family or close relatives. 

Additionally, the Supreme Court ruled that the movie is, at least on the surface, an artistic expression within the bounds of the law. To recognise remarks and content that can be interpreted as defamatory, it is important to grasp the elements that make up a defamation offence.

Explanation 2 of Section 499 of the Indian Penal Code, 1860

Explanation 2 of Section 499, which deals with defamation of a company or collection of persons, reads as follows; 

“Explanation 2.- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.”

Consequently, a company has a reputation of its own.  Defamation would result from making claims about how the firm or association conducts its business, accusing them of fraud or managerial errors, or criticising their financial situation. In order to be able to claim certainty that a specific group of people, as opposed to the rest of the community, stood defamed, it is also crucial that the group of people be an identifiable body.

Illustration: A business that has been in operation for the past 20 years is now being charged with producing unfit products for human consumption. The declaration is founded on false claims. Even though the company was cleared of the charges, the report about the accusations was published in a newspaper, giving the impression that the product was still unsafe for eating. Any such articles would be defamatory in character since they were false and damaged the company’s reputation because the company’s product was labelled safe for ingestion.

Explanation 3 of Section 499 of the Indian Penal Code, 1860

Explanation 3 of Section 499 deals with defamation by innuendo and reads as follows:

“Explanation 3.- An imputation in the form of an alternative or expressed ironically, may amount to defamation.”

The passage or content, in this case, is prima facie not defamatory, and the injured party must establish that the words that initially seem innocent are in reality defamatory in light of the relevant facts and the nature of the publication.

Explanation 4 of Section 499 of the Indian Penal Code, 1860

Explanation 4 of Section 499 answers what harms the reputation. The explanations state that:

“Explanation 4.- No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of the person, or lowers the character of that person in respect of his caste or his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered disgraceful.”

This explanation’s length and breadth are overly broad and also cover remarks made on caste, community, or indecent behaviour. Defamation would result from the indiscriminate distribution of a flyer accusing the plaintiff of being a sinner. In the case of Shatrughan Prasad Sinha v. Rajbhau Surajmal Rathi (1996), the Marwari Community was the target of injurious and defamatory allegations made in an interview. Along with disparaging the community, the incident also inflamed their religious sentiments. However, the case was dismissed since no such specific allegations were made in it regarding the imputations that damaged the complainant’s reputation in the eyes of others. Therefore, it follows that in order to proceed with the lawsuit, there must be a precise allegation in the complaint about how the imputation has affected the complainant’s reputation.

Forms of publication under Section 499 IPC

As publication is the notable ingredient of the offence of defamation under the Indian Penal Code, 1860, it is necessary to know the forms of publication that can contribute to defamation. There are majorly two kinds of publication, namely,

1. Direct communication to the defamed.
2. Repetitive publication. 

Direct communication to the defamed

1. Back in 1884, the Allahabad High Court, while hearing the case of Queen-Empress vs. Taki Husain observed that direct communication to the defamed should not be considered a publication under the Indian Penal Code, 1860. 
2. Further, the Bombay High Court, in the case of Sukdeo Vithal Pansare v. Prabhakar Sukdeo Pansare (1974), decided that publication is the act of making a defamatory remark and transmitting it to a person other than the target of the statement. It is only when the accused is versed with the fact that his communication will be made known to others, in usual business courses, that he will be held liable for the same. 
3. A letter containing defamatory imputations is considered to be published when it is sent to a business rather than an individual and is intended for all of the business partners to read. Similar defamatory material printed on postcards or delivered via broadcast is considered publishing. Defamatory material transmitted via postal mail but not published, however, does not necessitate the conviction of the accused for defamation. Such an observation was made by a Delhi court in the 1987 case of S.Mohinder Singh Saluja v. Vansan Shoes Delhi. 

Repetitive publication 

1. Repetition or republication of a previously published libel falls under the definition of publishing. Therefore, a newspaper is responsible for all consequences associated with publishing a libellous story that it has copied from another source and made its own. The penalty or damages levied would, at most, be reduced or mitigated by the fact that the piece was only a reprint.
2. The Bombay High Court, while deciding the case of In Re: Howard v. Unknown (1887), which involved republishing an extract from an article classed as defamatory by the accused, observed that the fact that the same information was published in another journal could not serve as a defence to avoid responsibility. Hence in this regard, the accused was held guilty of republication. 
3. It is necessary to note that the Indian Penal Code, 1860 does not provide any exception in relation to second and third publications, when compared with the first publication. The sole ground for convicting a person on grounds of defamation is the publication of defamatory matters. The fact that it is republished is irrelevant to charge an individual under Section 499 of the Indian Penal Code, 1860. 

Sections 501 and 502 of the Indian Penal Code, 1860

While Section 501 of the Indian Penal Code, 1860 deals with the printing or engraving of matter known to be defamatory, Section 502 of the Code talks about the sale of printed or engraved substances containing defamatory matter.

A recent case that appeared before the Supreme Court of India, recognised by the name of Mohammed Abdulla Khan v. Prakash K (2017), involved the Apex Court setting aside the Karnataka High Court’s order that quashed the defamation case against the owner of Kannada Daily Newspaper.  A bench comprising of Justices J. Chelameswar and S. Abdul Nazeer stated that it is necessary to critically examine whether the owner of the printed defamatory content can be heard to claim that he cannot be held vicariously accountable for the defamatory material conveyed by his newspaper, book, etc. when such printed defamatory material is sold or offered for sale.

Furthermore, it stated that the existence of the circumstances necessary to establish an offence under Sections 500, 501, or 502 of the IPC will determine whether an accused person who is the subject of a complaint will be found guilty of such an offence. The bench elaborated, saying that first, it must be proven that the printed and offered for sale matter is defamatory within the sense of the expression under Section 499 of the IPC. If this is established, the next step is to determine whether the accused committed the acts that make up the offence for which he is accused with the necessary intention, knowledge, etc. to make those acts guilty.

The respondent would be subject to punishment under Section 500 of the IPC if he is the one who made or published the defamatory imputation. If he was the one who ‘printed’ the document in the sense that the term is used in Section 501 of the IPC, then the person would come within the ambit of the provision. It must also be proven that the respondent is not just the newspaper’s owner but also sold or offered it for sale in order for there to be a violation of Section 502 of the IPC. 

Setting aside the ruling of the High Court, the Apex Court noted that the High Court had not considered whether the complaint’s content constituted an offence punishable under any one of the aforementioned sections, or all of them, or some of them, in order to dismiss the case against the respondent. The bench noted that “whether there is adequate evidence to prove the respondent’s guilt for any one of the three offences listed above is an issue that can only be reviewed after evidence has been recorded at the time of trial. The subject of a proceeding under Section 482 of the Code of Criminal Procedure, 1973 cannot ever be such.” The Court further stated that it is important to carefully consider whether the owner of the printed defamatory content can be considered to claim that he cannot be held vicariously accountable for the defamatory material contained in his newspaper, book, etc. Thus, by means of this 2017 case, the Apex Court clarified Section 500-502 of the Indian Penal Code, 1860 as far as their ambit and application are concerned. 

Punishment for defamation under the Indian Penal Code, 1860

Anyone who defames another person is subject to punishment under Section 500 of the IPC, which includes fine, simple imprisonment for a time that may not exceed two years or both.

Defamation under the Code of Criminal Procedure, 1973

The Code of Criminal Procedure, 1973 being a procedural law, comes into play after the offence of defamation has been proved and the accused has been prosecuted for the same. A list of related sections has been discussed hereunder: 

Section 199 CrPC (Prosecution for defamation): 

Section 199 relates to prosecution for defamation in general terms. This provision comes into play only after an aggrieved party files a complaint on grounds of defamation as recognised by Chapter XXI of the Indian Penal Code, 1860. A Court of Session can take cognizance in situations involving high dignitaries when the defamation relates to behaviour while performing public duties after receiving a written complaint from the public prosecutor. Within six months of the alleged crime’s commission, the complaint must be filed.

Section 203 CrPC (Dismissal of complaint):

A magistrate may dismiss a complaint summarily in accordance with Section 203 of the Code if, in his judgement, there is insufficient justification for proceeding after reviewing the affidavits of the complainant and witnesses as well as the outcome of the investigation conducted in accordance with Section 202.

Section 204 CrPC (Issue of the process):

Section 204 of the 1973 Code provides that the magistrate will be issuing process under the provision if sufficient ground for proceeding in the same holds substance. If there is a lack of sufficient grounds, then in such a case, the complaint can be dismissed under Section 203 of the Code. 

Section 205 CrPC (Magistrate may dispense with personal attendance of accused):

A magistrate issuing a summons may forego the accused’s personal appearance under this Section. Every situation in which a summon is issued has been covered in this section. It is not limited to cases involving summonses. At any point throughout the proceedings, the magistrate may order the accused to appear in person. However, if a warrant is issued for an accused person, it is necessary for him to appear in person.

Section 207 CrPC (Supply to the accused of copy of the police report and other documents):

Under Section 207 of the 1973 Code, it is the duty of the magistrate to furnish the accused with necessary documents in relation to the offence he is charged with, namely, the police report, the confessional statements, etc., so as to let the accused know the charges that have been brought against him and the suitable grounds for bringing the same. 

Section 357 CrPC (Order to pay compensation):

According to this Section, a trial court, appellate court, high court, or the Court of Session in revision may issue an order of compensation out of the fine imposed at the time of passing judgement in the following four cases:

• To the complaint for correctly covering expenditures.
• To anybody who experienced loss or harm.
• To a person who is qualified to get compensation for damages.
• To a genuine buyer of real estate.

Section 357 A CrPC (Victim compensation scheme):

According to Section 357A, each state government must develop a plan for allocating funds to compensate victims or their dependents who have experienced loss or injury and need rehabilitation, in conjunction with the Central Government.

Section 358 CrPC (Compensation to persons groundlessly arrested):

As per Section 358, if it appears to the magistrate hearing the case that there was insufficient justification for the arrest, the magistrate may award the person who caused the arrest compensation, not to exceed one thousand rupees, to be paid by the person who caused the arrest to the person who was arrested, for his loss of time and expenses in the matter, as the magistrate thinks fit.

Section 359 CrPC (Order to pay costs in non-cognizable cases): 

According to Section 359, whenever a complaint of a non-cognizable offence is brought before a court, the court may, if it finds the accused guilty, order him to pay the complainant’s costs associated with the prosecution, either in full or in part, and may further order that, if he fails to do so, the accused shall be sentenced to simple imprisonment for a period not to exceed thirty days. These costs may include any fees associated with the legal process.

Civil defamation under civil and tort law 

Defamation is mostly used in the context of libel in civil law. The person’s reputation in the eyes of society is damaged as a result of the comment being published against him. If the following criteria are met, a person may be sued for paying damages to the aggrieved party:

1. It must be a derogatory comment.
2. The plaintiff alone must be the subject of the statement.
3. Such a statement needs to be made public.

In the case of Bonnard v. Perryman (1891), it was decided that the court has jurisdiction to restrain by injunction, and even by an interlocutory injunction, the publication of a libel. An interlocutory injunction should only be given in the most obvious circumstances, preferably situations in which, if a jury did not find the matter complained of to be libellous, the court would set aside the decision as unreasonable. However, the use of the jurisdiction is discretionary. When the defendant testifies that he will be able to defend the libel and the court is not convinced that he may not be able to do so, an interlocutory injunction shouldn’t be issued.

Further, it is necessary to note that the legality of civil defamation was at issue in R. Rajagopal v. State of Tamil Nadu (1994). The US Supreme Court’s landmark decision in New York Times v. Sullivan (1964), which stated that a government official performing his or her official duties can only be entitled to damages when the truth claim is false and made with reckless disregard for the truth, was cited by the Supreme Court of India in this case. The bench looked for the connection between free expression and civil defamation in this case. According to the Court, common law defamation was unjustly constrained by Article 19(1)(a) of the Indian Constitution since it unfairly pushed no-fault liability.

Defamation and freedom of speech and expression under the Indian Constitution 

All citizens have the Right to Freedom of Speech and Expression under Article 19(1) of the Constitution. According to Article 19(2), the State must restrict the right in a way that serves the interests of eight different categories, including public order, morality, and decency. Defamation is one of these categories. The Constitution states that the State must censor expression in a ‘reasonable manner,’ not necessarily in the best interests of one of the eight classifications listed in Article 19(2). The Supreme Court’s legal precedent on the topic of what qualifies as a fair restriction has grown over the years. The Court has time and again ruled in various judgments that the requirement of the restriction be ‘narrowly drawn’, is one of the essential elements of reasonableness.

Through judicial interpretations, this Article has been broadly interpreted to include “freedom of the press.” However, Article 19(2) permits the State to pass laws that place ‘reasonable constraints’ on such liberties; therefore, this right is not unrestricted. The limits cover a wide range of situations, such as those involving defamation or contempt of court, as well as situations involving national interests and maintaining public order.

Due to the latitude provided by Article 19(2) and the criminal provisions (under Sections 499 and 500 of the Indian Penal Code, 1860), defamation cases can be contested in India on both a civil and a criminal level. Defamation occurs when someone “makes or publishes” a statement about another person with the intent, knowledge, or reasonable belief that doing so will damage the other person’s reputation.

Due to the media frenzy that has developed over Article 19(1) (a)’s guarantee of Freedom of Speech and Expression, defamation has recently become a contentious and notorious subject. The fundamental right to Freedom of Expression guaranteed by Article 19(1)(a) of the Indian Constitution is restricted by defamation laws in India. People worry about saying something that might cause upset or get them into trouble, whether they are speaking in private or in public. Therefore, the State must design its laws so that they impose speech restrictions only to the amount necessary to further legitimate goals. If the law is more expensive than that, it must be declared unconstitutional because it is too wide. This will guarantee that the State is held severely accountable if it chooses to curtail individual liberties and guard against the ‘chilling effect’ of broad and ambiguous laws that enable people to practice self-censorship in order to maintain their moral integrity.

Case laws in relation to defamation and Article 19(1) of the Indian Constitution

Shreya Singhal v. Union of India (2015)

The major question was whether the Right to Freedom of Expression protected by Article 19(1)(a) of the Indian Constitution was breached by Section 66A of the Information Technology Act, 2000 (IT Act) was raised before the Supreme Court of India in the landmark case of Shreya Singhal v. Union of India (2015). The Court had to also take into consideration that the Union Government is allowed to impose ‘reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence as an exception (Article 19(2)) to the right guaranteed in Article 19(1). 

Supreme Court’s decision 

1. The Court stated that ‘damage to reputation is the primary component of defamation when considering whether Section 66A of the IT Act was a legitimate endeavour to shield people from defamatory claims made through online communications. It was decided that the law does not apply to this objective because it also forbids insulting remarks that may irritate or inconvenience a person without harming his reputation.
2. Because “the mere causing of annoyance, inconvenience, danger, etc., or being grossly offensive or having a menacing character are not offences under the Penal Code at all,” the Court further held that the government had failed to demonstrate that the law intends to prevent communications that incite the commission of an offence.
3. The bench further stated that the restriction’s reasonableness and proportionality must be evaluated from the standpoint of the public interest rather than the perspective of the person subject to the restriction. The Court concluded that the criminal defamation statutes were just and reasonable after applying this criterion. The majority’s assertion that defamation is simply a concept that restricts free speech and expression was rejected by the Court as being too nebulous to serve as a standard for judging whether the limitation is reasonable.

Based on the foregoing reasons, the Court invalidated Section 66A of the IT Act in its entirety as it violated the Right to Freedom of Expression guaranteed under Article 19(1)(a) of the Constitution of India.

Subramanian Swamy v. Union of India (2016)

Dr. Subramanian Swamy accused Ms. Jayalathitha of corruption in 2014. The Tamil Nadu State Government responded by accusing Dr. Swamy of defamation. Following that, Dr. Swamy and other well-known politicians contested the legitimacy of Sections 499 and 500 of the Indian Penal Code, 1860, which constitute India’s criminal defamation laws. The case was determined by a two-judge Supreme Court panel made up of Justices Dipak Misra and P. C. Pant. The Court was asked to decide whether criminalising defamation is an unreasonable restriction on free speech, as well as whether Sections 499 and 500’s criminal defamation laws are arbitrarily worded and therefore unclear and ambiguous.

Decision of the Supreme Court 

1. The Court on May 13, 2016, ruled that Section 499 is not an undue restriction under Article 19(2). According to this ruling, society is made up of different people, and whatever affects one person also impacts society as a whole. As a result, it was decided that treating defamation as a public wrong is acceptable. As reputation preservation is both a fundamental and a human right, it was decided that criminal defamation does not disproportionately restrict free speech.
2. The Court reiterated that the right to reputation is a component of the Right to Life under Article 21 based on the rulings of other nations. The Court, while using the principle of ‘balance of fundamental rights, opined that the Right to Freedom of Speech and Expression cannot be ‘’given so much latitude that even the reputation of an individual, which is a constituent of Article 21, would have no entry into that region’’.
3. Furthermore, the Court determined that Sections 499 and 500 of the IPC are not ambiguously or vaguely stated. The Court found that the word ‘defamation’ constitutes its own separate identity, using the Constituent Assembly Debates to understand what the Constitution’s drafters meant by the word in Article 19(2). Defamation laws must be understood as they were when the Constitution entered into force since it stands alone.

Cyber defamation in India

Cyber defamation is the publication of false information about another individual using computers or the internet in general. Cyber-defamation occurs when someone makes false statements about another person and posts them online or sends emails to other individuals that contain false information with the intent to harm the aggrieved party. The damage done to a person by posting a defamatory comment about them on a website is extensive and irreparable because the material is public and accessible to everyone. 

Users of the internet are far less restrained than they once were, especially when it comes to the content of their messages, thanks to accessibility, anonymity, privacy, and the isolation of one’s own place. Soniya Gandhi-Manmohan Singh jokes and drawings are regularly posted as Facebook updates. The internet has made it far simpler than ever before to spread false information to a global audience without repercussions. Now, anyone can publish anything online, thereby targeting individuals with libellous material.

For publication to be proven, a defamatory accusation needs to be disclosed to one person. Every time an email is forwarded to a different person or offensive content is shared on Facebook, it gets published once more and spreads farther due to the internet’s ability to reach an essentially infinite number of people, giving rise to further causes of action. This has made the internet a very vulnerable place for libel. There is no doubt that a John Doe order (injunction) is always present in cyberspace. The difficulty in locating the offender and the extent to which Internet Service Providers (ISPs) should be held accountable for supporting defamatory acts makes the problem worse.

Cyber defamation laws in India

A person in India may be held accountable for defamation both civilly and criminally. When enlarged, Section 499 of the Indian Penal Code, 1860, which addresses defamation, also addresses instances of cyber defamation. However, India now has an explicit prohibition on cyber-defamation thanks to a recent revision to the Information Technology Act, 2000. 

1. Section 66A of the Information Technology Act, 2000 states that anyone who sends something using a computer resource or a communication device is prohibited if:

• Any content that is egregiously insulting or threatening.
• Any false information that he repeatedly disseminates through a computer resource or a communication tool with the intent to irritate, inconvenience, danger, obstruction, insult, cause harm, criminally intimidate, sow enmity, hatred, or ill will.
• Any electronic mail or electronic mail message sent with the intent to irritate or inconvenience the addressee or recipient, to deceive the addressee or recipient, or to mislead the addressee or recipient about the origin of such messages is punishable by up to three years in prison and a fine.

2. Section 79 of the Information Technology Act, 2000 provides that ISPs are exempted from liability for any information, data, or communication link made available or maintained by them that belongs to a third party as long as:

• Their role is restricted to merely granting access to the communications infrastructure; 
• They do not:

1. Start the transmission;
2. Choose the transmission’s receiver, and
3. Choose or alter the information contained in the message.

• They exert due diligence in their tasks and follow any rules that may be specified. 

3. However, the following circumstances give rise to ISP liability:

• If they were complicit in the criminal act or helped to make it happen,
• If they are aware or are alerted by the appropriate government agency that certain information, data, or communication links are being used to perform illegal acts without tampering with the evidence, they must promptly remove or disable access to those information, data, or communication links.

The IT Act, 2000 differs curiously from the commonwealth countries’ legal framework in that it shares some legal principles with American laws regarding cyber defamation. Although the new amendment does not change the burden of proof from the plaintiff to that of the defendant, it does make it simpler for defendants to establish their innocence if they acted honestly and adhered to their obligations under Section 79 of the Act and Rule 3 of the IT Rules, 2011, provided that they did so. However, despite the fact that ISPs are not legally responsible for posting and distributing defamatory information, they are routinely added as defendants in defamation lawsuits due to their greater financial resources.

The new cybersecurity legislation in industrialised nations like China and the USA is overly severe and imposes limitations on international businesses operating there, which protects the nations and lowers the incidence of cybercrime. However, India is also working hard to improve its efficiency so that it can offer better services and protection in the cyber domain. The Indian government unveiled a National Cyber Security Policy in 2013 with the goal of securing the nation’s information infrastructure, lowering its vulnerability, boosting its capabilities, and defending it against cyberattacks. India is now working to improve the IT Act, which still needs some changes but could be made soon. Additionally, our nation will compete with other developed nations in the field of cyber and IT protection.

Case laws in relation to cyber defamation in India

SMC Pneumatics India Pvt. Ltd. v. Jogesh Kwatra (2014)

In India, the first cyber defamation lawsuit in Asia was initiated in 2001. The case was SMC Pneumatics India Pvt. Ltd. v. Jogesh Kwatra (2014). In this case, the defendant, Jogesh Kwatra, a worker for the plaintiff’s company, began sending slanderous emails to his employers and the company’s several international branches. Following that, the plaintiff filed a lawsuit seeking a permanent injunction barring the defendant from making such defamatory statements. 

Observation by the Delhi High Court

The Hon’ble Delhi High Court, in this case, permitted an ex-parte ad interim injunction, finding that the plaintiff had established their case beyond a reasonable doubt, and forbade the defendant from publishing similar comments.

Avnish Bajaj vs. State (2008)

Avnish Bajaj v. State (2008), also known as the DPS MMS Scandal case, was another noteworthy case in the context of cyber defamation. Ravi Raj, a student at IIT Kharagpur, posted a listing on the website baazee.com with the identity “aliceelec” offering an offensive MMS video clip for sale. The listing appeared with the description “Item 27877408 – DPS Girls having fun!!! full movie + Baazee points,” despite the fact that baazee.com has a filter for publishing undesirable content. The item was removed at about 10 am on November 29, 2004, after being listed online around 8.30 pm on November 27, 2004. The Delhi Police’s Crime Branch took notice of the situation and filed an FIR. Following an inquiry, a charge sheet was submitted, listing Ravi Raj, Avnish Bajaj, the website’s owner, and Sharat Digumarti, the person in charge of processing the content, as the accused individuals (the defendants in this case). Avnish Bajaj filed the appeal after Ravi Raj fled, asking for the criminal proceedings to be stopped.

Observation of the Delhi High Court

1. In this case, the Court noted that a prima facie case for the offence under Section 292 (2) (a) and (d) of the Indian Penal Code, 1860 is made out against the website in relation to the listing and the video clip, respectively. The Court held that under Section 292’s strict liability requirements, knowledge of the listing can be imputed to the company because the website “ran a risk of having knowledge that such an object was in fact obscene imputed to it by not having appropriate filters that could have detected the words in the listing or the pornographic content of what was being offered for sale.”
2. The author respectfully asserted that there was no good basis in this case to exonerate the director, Avnish Bajaj. The idea of corporate criminal culpability may have been used to assess the director with the proper punishment. The argument also finds support in Article 12 of the European Convention on Cyber Crime, which imposes criminal liability on any legal entity with the capacity to act as a representative, make decisions, or exert control. According to Clause 2 of Article 12 of the Convention, a legal person can be held accountable where a criminal offence was made possible because a natural person working under his authority lacked supervision or control.
3. Surprisingly, the Court determined that Avnish Bajaj might be exonerated under Sections 292 and 294 of the Indian Penal Code, 1860 since the legislation does not recognise the idea of an automatic criminal obligation attaching to the director when the corporation is an accused. Avnish Bajaj was ultimately found not guilty in this case.
4. Although India has not yet joined this Convention, the aforementioned provision may have served as a guide to hold Avnish Bajaj accountable. Furthermore, because the Court did not particularly go into these questions and establish the law on this, the position it took in this case does not even help determine the amount of culpability of ISPs and their directors.

Vyakti Vikas Kendra, India  Public Charitable Trust Through Trustee Mahesh Gupta & Ors vs. Jitender Bagga & Anr (2012)

In this case, the Delhi High Court first determined that Google qualified as an ‘intermediary’ under Section 2(1)(w) and Section 79 of the Information Technology Act, 2000. The Court subsequently emphasised that, in accordance with Section 79(3)(b) of the IT Act, 2000, Google was required to remove illegal content if it received real notification from the person who was being harmed of any illegal content being circulated or published through its service. The Information Technology (Intermediaries Guidelines) Rules of 2011 must also be followed by Google.

Observation of the Delhi High Court

1. The Court noted that Rule 3(3) of the IT Rules, read in conjunction with Rule 3(2), requires an intermediary to exercise due diligence or refrain from publishing any information that is gravely damaging, defamatory, libellous, derogatory, or otherwise illegal. An intermediary is required by Rule 3(4) of the Rules to delete such defamatory content within 36 hours of receiving actual knowledge.
2. As a result, in the current case, Google was instructed to take down any defamatory information about the plaintiffs posted by the defendant from its website www.blogger.com as well as all links to such information within 36 hours of learning of the order issued by this Court. The defendant was also forbidden from sending any emails of this nature or from putting anything online that made reference to the plaintiffs, the Art of Living Foundation, a member of the Art of Living Foundation, or His Holiness Sri Sri Ravi Shankar, directly or indirectly.

Conclusion 

The concept of defamation is confusing and continues to be divisive, being utilised and abused by some while having a significant negative influence on the lives of others. Even while judicial precedent has made an effort to clarify this mess and sort out certain concerns, there are still some fundamental constitutional questions about both the criminal offence and the civil offence of defamation that have not yet been addressed. The Freedom of Free Speech and defamation laws should coexist in harmony. Both the former and the latter shouldn’t be sacrificed for either of them. Perception of the legislators on what constitutes defamation in present times should be subjected to progressive changes and the legislators should therefore encourage flexible provisions in this regard instead of a rigid legal framework. 

Frequently Asked Questions

What is civil and criminal defamation in India?

Defamation is a recognised civil and criminal offence in India. The law of torts governs civil defamation remedies, and the individual who has been defamed may seek damages. Criminal defamation is an offence that is punishable under the Indian Penal Code, 1860. Under Sections 499 and 500 of the 1860 Code, slander is a crime. Criminal defamation is a compoundable and non-cognizable offence that is subject to bail. If someone commits criminal defamation, they may receive a fine, a term of simple imprisonment of up to two years, or both.

What is required to prove defamation?

Defamation essentially must fulfil the following requirements:

• The statement must be published.
• The statement must lower the estimation of the person.
• Defamation must have happened before ‘right-thinking’ members of society.

Is defamation bailable or non-bailable?

Defamation is bailable. The only issue is that one needs to make sure at trial that the witness shall be in the petitioner’s favour.

Is defamation a criminal offence?

Defamation is both a criminal (which carries a prison sentence) and a civil offence in India (punishable through the award of damages). While the criminal law on defamation is regulated under the Indian Penal Code, 1860, defamation as a civil offence is penalised under tort law. 

How do I file a defamation case in India?

The complaint regarding defamation can be filed to the magistrate who will direct the police officer to initiate the investigation and then the criminal trial will start. For a civil suit, the plaint must be filed by the plaintiff before the civil court under Section 19 of the Civil Procedure Code, 1908.

What is not defamation?

Section 499 includes a definition of defamation as well as specific instances in which making a false remark about another person does not constitute defamation. Defamation is exempt from the following situations:

• Imputation of truth which the public good requires to be made or published

It is not defamation if a factual imputation or accusation is made about a person. However, it must be done in the public interest.

• Public conduct of a public servant

It does not constitute defamation when an opinion is made in good faith on how public employees behave while doing their duties.

• Conduct of any person approaching any public question

It is not defamation when an opinion is held in good faith about the behaviour of someone who engages in public discourse or performs official duties.

• Publication of reports of proceedings of courts

Publication of a substantially accurate account of a court’s proceedings or the outcome of those proceedings is not considered defamation.

• Merits of a case decided in court or conduct of witnesses and others related to the case

Publication of a substantially accurate account of a court’s proceedings or the outcome of those proceedings is not considered defamation.

• Merits of public performance

This exception includes critiques of published books on music, art, and other subjects. Having an honest opinion about the merits of a performance that its creator has let the public judge is not considered slander.

• Censure is passed in good faith by a person having lawful authority over another

It does not constitute defamation when someone with legal or contractual responsibility over another person criticises that person’s actions in good faith.

• Accusation desired in good faith to the authorised person

He won’t be held accountable for defamation when someone who has legal control over another person makes accusations against him. The complaint must, however, be legitimate.

• Imputation made in good faith by a person for the protection of his or others’ interests

This exception is used when someone makes a defamatory comment about someone else while acting in good faith to safeguard their own interests.

• Caution intended for the good of a person to whom conveyed or the public good

Any caution or warning that is given in good faith to another individual or to the general public does not constitute defamation.

Is name-calling defamation?

Insulting someone is against the law. The legal term for insulting someone is libel if it was done in writing and slander if it was done verbally. You could get into legal trouble if you say or write something that is false and damages someone’s reputation.

Can a person defame without writing words?

Until the person’s reputation has been hurt, simply saying or writing anything, imagining something, or gesturing something does not constitute defamation. The only negative outcome that can result from defamatory conduct is harm to reputation.

What is verbal defamation?

Verbal defamation is the other term that is generally used for slander. 

References

1. https://www.researchgate.net/publication/354326435_A_Critical_Study_on_Cyber_Defamation_and_Liability_of_ISPS.
2. S.Mohinder Singh Saluja v. Vansan Shoes Delhi, (1987)1Crimes 57 (61) (Del).
3. http://www.ijim.in/wp-content/uploads/2019/06/Vol-4-Issue-II-14-17-Paper-4-Deffermation-iadian-context-Sujata-Dahiya.pdf.

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