defame
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This article is written by Rangita Chowdhury, of Symbiosis Law School, NOIDA. It discusses the aspects of the Right to Privacy, its constitutional and other provisions, the existing laws on defamation, how they are related, and whether further legal provisions are necessary. 

Introduction 

Reputation and privacy often go hand in hand. Every man has the right to protect his reputation and not be subjected to statements that defame him as an independent and private individual. The right to freedom of speech and expression under Article 19(1) (a) are undoubtedly fundamental rights under the Indian Constitution, but with reasonable restrictions. Though the existing defamation laws have sought to protect the reputation of an individual by acting as an aid to the restrictive principles of the right to freedom and speech, it has not, in every instant, protecting the privacy of an individual, because privacy, though being equated with reputation, has not always been directly covered under the tort of defamation. 

Further, privacy was not explicitly declared as a fundamental right under the right to life and liberty before the historic Supreme Court judgment in Puttaswamy Vs. the Union of India (2017). Thus the historic Supreme court judgement has strengthened the existing defamation laws and given the Indian citizen further and wider scope for protection of privacy. 

In many past instances, defamation laws have been considered by many as a violation of one’s right to freedom and speech and in each case, the court had to analyse the case on its merit to find out actually if it was defamatory in nature or not. Now, after this historic judgement, it will be interesting to see how the judiciary analyses cases which have a thin line between privacy and reputation of a person. 

Right to privacy

The Right to privacy is considered an inalienable natural right of humans. It restrains the government or individuals to do acts or take actions that infringe our right to be ‘left one’. Thus ideally the right does not give any other person or organization or the State to invade one’s personal space. 

The right is a fundamental right in India. On 24th August, 2017, the Supreme Court declared that it is protected under the right to life and liberty. Though the right has always been recognized by various statutes, the historical judgement in Puttaswamy definitely elevated it to a higher plane.  

Tort of defamation

Torts is a 19th-century concept. Whenever there is an invasion of privacy of an individual, this provision gives the latter a legal opportunity to set it right through the assertion of his legal rights. He can recover damages or obtain compensation for unjust encroachment of his privacy prompted by curiosity, malice, or personal gains. The law of torts thus gives legal recognition to the right to privacy.

Black’s Law Dictionary defines defamation as “The offence of injuring a person’s character, fame, or reputation by false and malicious statements”. Any statement, either oral or written, if it damages the reputation of a person through such false and malicious statements, constitutes defamation. True statements, expressing one’s point of view, however, will not constitute defamation as it is covered under the right of freedom and speech protected by the Constitution. But the interpretation of the principle is a point of law to be examined by the judiciary. In ‘Dixon Vs. Holden (1869)’ it was held by the court that reputation is a person’s property, more valuable than other properties. 

Essential ingredients for defamation to take place 

The statement must be published

Publication means that the defamatory statement is communicated to a person other than the person it was directed to. Publication here can be oral or written. If the defamatory statement is made in private and there was no one else to hear it other than the person being subjected to it, it won’t be considered defamation even if it is fake. 

Illustration: A accuses B of stealing his gold watch one evening while they are alone at home. B did not steal A’s watch and the statement can be safely assumed to be false however, this will not be considered as defamation because the statement was made when there was no one around to hear it and there was no written publication. 

The court has also held in the case of ‘Mahender Ram Vs. Harnandan Prasad (1958)’ that if a defamatory statement is made in a language which is not known to the person to whom it was made and for that purpose he took the help of another person to read it, then it will not be defamation as the person does not understand the language. In this case, the plaintiff did not understand a defamatory letter written to him in Urdu and took the help of another person to read it, it was not defamation even though the defamatory letter was exposed to a third party. 

The statement must lower the reputation of the person i.e. be defamatory in nature

The statement should be defamatory in such a manner that it affects the standing of a person in society and creates circumstances where people avoid him or shun him. The person making the defamatory statement cannot take the defence that the statement was not meant to be defamatory. 

Illustration: A publishes an article in a newspaper accusing B of taking bribes. This is clearly defamation because the newspaper will be read by a lot of people and this will influence their views on the character of B

In ‘Ram Jethmalani Vs. Subramaniam Swamy (2006)’ the court held that Dr. Swamy was indeed liable for defamation because his statement that Mr. Jethmalani took bribes from a banned organisation to protect the then Chief Minister of Tamil Nadu when Rajiv Gandhi was assassinated affected the reputation of Mr. Jethmalani and defamed him. 

The statement must refer to the plaintiff

The plaintiff has to prove that the defamatory statement made was directed against him and not some other member of the society. If the person complaining of defamation sees the defamatory statement and has enough reason to believe that it was directed at him and could infer it from the statement then it will be considered defamation. It will not matter whether the defendant made the statements against this particular person, because if he had reasonable reasons to think he was being targeted, then the other members of the society could also come to the same conclusion which would defame him in their eyes.

Illustration: A publishes a defamatory article in the newspaper about a Mr. B who lives in New Avenue and looks in a mechanic shop. There are two Mr. Bs who live in New Avenue and work in a mechanic shop. So Mr. B can sue A even if the article was not meant for him because there are enough facts to conclude that the article might mean him.

In ‘T.V. Ramasubba Iyer And Anr. Vs. A.M. Ahamed Mohideen (1971)’ the defendants are liable for publishing statements which defame the plaintiff even if there was no intention to do so. The plaintiff was carrying a similar business like that of the person towards whom the defamatory statement was directed. The statement was related to smuggling in the business and the plaintiff had enough reason to believe it was meant for him even if it actually wasn’t. 

Types of Defamation

Libel

When fictitious or false statements are published in the form of writing, which defames the plaintiff, then it is considered as libel. The publication should directly or indirectly refer to the one complaining of defamation. The publication can be in any form like a cartoon, an article, sculptures, pictures, etc. 

Illustration: A wrote an article in a magazine about Mr. C accusing him of being involved with trafficking organizations. This is an example of libel because of the defamatory statement in the form of writing.

Slander

The fictitious or defamatory statements when made orally are referred to as slander. They are transient and not permanent in nature. It includes forms of expressions like winking, booing, gestures, sign languages, etc which injure the reputation of a person. 

Illustration: Mr. B in the weekly community meeting insinuates that Mr. D is having an affair. This is slander because it is spoken orally and damages the reputation of Mr. D.

While it is very easy to take action against libel because the defamatory statements are already published in writing and that is enough proof, slander is not so easily actionable. Since defamatory statements made orally are transient and later on there is no proof that it actually took place unless the plaintiff can prove that there was some special damage. Also, words spoken in the heat of the moment are unintentional even if they injure the reputation of a person and cannot be considered as defamation. Libel is the deliberate action of causing harm to someone’s character and therefore the malicious intent is very clearly visible and thus is actionable in a court of law without providing any proof of special damage. 

Defamation laws in India  

Defamation in India has two types of remedies:

  • Civil remedy 
  • Criminal remedy

In a civil offence, the defence is provided under the law of torts where a person can seek the court for recovery of monetary damages from the person who defamed him. In ‘D.P. Choudhary And Ors. Vs. Kumari Manjulata (1997)’ a 17-year-old girl named Manjulata returned home late from her night classes but a newspaper falsely printed a report about her saying Manjulata a girl from a well-distinguished family of Jodhpur ran away with a boy on the night of so and so with the pretext of attending night classes. The Rajasthan High Court held that since the news item was not true and negligently published, the plaintiff was eligible for damages against the respondent. 

The Indian Penal Code also lets a person approach the court for a remedy under crucial law. Section 499 of IPC defines defamation and Section 500 of IPC describes the punishment for criminal defamation. A person can be sent to jail for two years, fined, or both. Defamation under criminal law is bailable, non-cognizable, and a compoundable offence. An FIR cannot be filed and police cannot start investigating without a warrant. The accused has the right to get bail and the charges can later be dropped if the parties come to a compromise. The principle of ‘beyond reasonable doubt’ is followed since it’s a criminal case.

Defamatory statements can be also restrained under a suit of injunctions under Section 38 or Section 39 of Specific Relief Act (1963). Further Right to reputation is a constituent of Article 21 of the Indian Constitution. 

Critical analysis of freedom of speech and expression viz a viz right to privacy

Right to Privacy is now a fundamental right guaranteed as the right to live a life with dignity under Article 21 of the Constitution which mandates that no one should be deprived of his right to life and personal liberty. Thus, privacy entitles one to protect his reputation and also guarantees him to keep his private life outside the purview of inquisitiveness and undue attention or harm.

The right to life is the most fundamental of all human rights and no one shall be dispossessed of this right without due process of law. The right to liberty signifies all the lawful freedoms that a human being is expected to have.

In ‘Kharak Singh Vs. The State Of U. P. & Others’ the Court admitted the importance of the right to privacy but did not consider it as a fundamental right and observed that the State has the right of surveillance to prevent crimes based on the evidence available.  

However, the 2017 judgement has comprehensively put the right to the right to privacy within the golden Trinity of Article 14 (Right to Equality), Article 19 (Right to Freedom) and Article 21 (Right to Life and Personal Liberty).

Thus, the right privacy is a dynamic concept which incorporates the right to live a life of dignity and protect his reputation as well. The right to privacy and its various aspects affecting the dignity and reputation of citizens can be analysed from different quarters.  

Gender issues

All women have the right to be treated with dignity and decency, which is sadly not the case in India, where, female foeticide, honour killing, rape, marital rape, domestic violence harassment at workplace, eve-teasing, sexual abuse, and molestation are common crimes hurting their dignity, privacy, and reputation.

Health issues

Information about the health and disability of any person needs to be kept confidential. The relation between a doctor and patient is a confidential one which both should protect on moral and ethical grounds.

State and individuals

State has the right to undertake surveillance of persons with criminal records and also has the power of search and seizure. But this has to be strict as per law and should not infringe the personal liberty of an individual as pointed out in Maneka Gandhi Vs Union of India. Though search without warrant and harassment and excesses by the law enforcing authorities in contravention of the right to privacy and personal liberty are very common in India.

Sexual identity

Consensual sexual act between two adults is constitutional. This was observed in the Navtej Singh Johar Vs. Union of India (2018), where the Supreme Court struck down Section 377 of IPC. But in reality, the picture is quite different. The LGBT community is looked down upon by the Indian psyche. Their right to privacy is considered non-existent. They are forced to hide their sexual behaviour and identity in fear of harassment and social backlash. They also face harassment from the police. Thus their right to privacy is severely compromised. The dignity of an individual, which constitutes the basis of the right to privacy, is not enjoyed by them.

Security of state

Several data sharing and surveillance programmes to increase public safety and identify terrorist and secessionist activities have been initiated by the State. While undoubtedly these are essential for national security, the chances of such schemes being misused cannot be ruled out. Thus, these are also a potential threat to the privacy and dignity of citizens. Apart from the provisions of CrPC, Various laws in this regard have also been enacted which allow the State to encroach on the privacy of an individual.

However, the right to privacy is not absolute, we need to realize this. It is within the ambit of reasonable restrictions, which is fair enough considering that national security and protection of law and order are also very important issues. 

But the right is assuming greater importance with every passing day. Social media is constantly exposing our private lives in the public domain. Sting operations, investigative journalism, and invasive reporting are making life difficult for us, particularly those who live a public life. Private conversations and activities are being videographed and uploaded in the web world without our consent. People are being blackmailed. Different hacking software data-stealing software is being devised to steal confidential information from us, including our bank details and financial data. 

We also need to realize that comments being made by the public on different social media platforms, blogging sites, etc are often insulting, derogatory, and humiliating. Such remarks and comments are often devoid of decency and decorum. Celebrities and reputed persons from different walks of life are often insulted and humiliated by the public on social media platforms. We tend to forget that just as we are entitled to the right to privacy and protecting our dignity and reputation, every other person has the same right.

Right to freedom of speech and expression

Interestingly just as the right to privacy is a fundamental right, so is the right to freedom of speech and expression. Defamation, which is considered to destroy the reputation of a person, is a legal wrong that can be corrected by taking legal recourse. Many people contend that defamation should not be criminalized as it goes against the fundamental right of speech and freedom. But as we have already discussed, defamation destroys a person’s dignity and reputation and also his private space and thus violates fundamental rights. Hence defamation is treated as both a civil and a criminal wrong and is dealt with by the law accordingly.

Justice Chandrachud in Puttaswamy Vs Union of India has categorically stated that “Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty, and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination”  Justice Kaul in the same case also observed that the right to privacy involves the right to preserve personal reputation.

Article 12 of the United Nations Declaration of Human Rights (UDHR) 1948, categorically states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

Even before this judgement, the Supreme Court had upheld sections 499 and 500 of IPC (which deal with criminal defamation) in Subramanian Swamy Vs. Union of India (The other component of defamation is civil defamation and is covered under the Law of Torts). Section 499 defines what defamation is and section 500 provides the penal provisions. These sections were challenged that they violate the right to freedom of speech and expression under Article 19 of the Indian Constitution.

But the Court rightly appreciated that the reputation of one person cannot be crucified at the expense of another person’s right to freedom of speech. Further, the sections are not arbitrary as they also address the issue of frivolous complaints and lay the burden of proof on the complainant. The Court observed that the reputation of a person is an integral part of the right to life and hence there should be legal means open to a citizen to protect his reputation if the same has been tampered with. 

The relationship between privacy and dignity/reputation of a person being very clear, I feel that the reputation should be protected at all costs. If reputation is destroyed, privacy cannot be protected. It is the fundamental component of the right to life and liberty. Hence libel and slander, the two essential components of defamation, should be adequately addressed by the defamation laws. No right is absolute and the right to freedom of speech and expression should also be subject to reasonable restrictions.

In the above context, I also feel privacy should be rigorously protected and any encroachment on one’s personal space and reputation should be stopped. In this digital age, when our privacy is being compromised every day, there should be adequate legal measures to protect it.

Suggestions

  • Encroachment and stealing a person’s personal identity, including financial identity, should be stopped by bringing in suitable legislation.
  • There should be adequate safeguards to ensure that there is no misuse of interception of communications. State interests and national security should be the only reasons necessitating such interception.
  • Public data available with the state should be adequately protected and an independent high powered quasi-judicial body should be made the custodian of such data to prevent misuse by Govt officials.
  • Adequate legislation addressing character assassination and harm of reputation in the social media platforms may be enacted, but it should be kept in mind that they do not interfere with the basic right of freedom of speech and expression and that innocent person are not harassed with this provision.

Protection of privacy and the tort of defamation

We have discussed elaborately why privacy is a fundamental right. It is an integral component of one’s right to life and liberty and should protect his personal space from being encroached into. It should ideally also protect his reputation since reputation and privacy are closely interrelated, as established from various judgements of the Supreme Court which we have discussed.

The empathic judgement of the Supreme court establishing the right to privacy as a fundamental right will no doubt give the Indian citizen a much better and precise scope to address any wrongdoing in this area as he can seek judicial intervention under article 226 of the Constitution. This will ensure stronger protection of his reputation and dignity.

But do the existing law of torts on defamation ensure enough protection of one’s privacy? Defamation is essentially a civil wrong and can be addressed by civil means. The aggrieved person has the right to sue him in a defamation case. Here for obvious reasons, we are not discussing criminal laws dealing with defamation.

It is undoubtedly true that tort of defamation does not provide absolute protection of a person’s privacy. To file a lawsuit for defamation, the following ingredients are essential: – A statement has to be made or published, it should cause injury, has to be false and it should not fall under the privileged category.

But privacy is a dynamic concept and can be encroached upon even if any or all the above conditions are not fulfilled. A statement may not be false but the accused person may consider it to be too private or privileged to be disclosed. Everybody has the right to keep his private life outside the glare of the public eye and any information about himself or his family, if disclosed before the public, may harm his reputation. Private moments of his life that he shares with his friends and family can be exposed, thanks to the new digital age and competitive journalism, where publishing breaking news has become the order of the day. Social media sites are full of infighting, allegations, and counter-allegations. If contested, it becomes a point of law whether the statement is false or derogatory because the defendant can well argue that he has made a remark as he thought it to be true.  

Encroachment of the privacy of celebrities and people in high positions is very common. Paparazzi and similar news channels thrive on bringing out exclusive reports on the private life of celebrities. Such news destroys one’s public space but it cannot be said to be false. Further, the defendant can contend that he had no intention to destroy the dignity of the plaintiff, as there is nothing false in it and hence it is not injurious to his reputation. Cyber-crimes, data theft, stealing of financial information are all wrongs against the privacy of a person, but whether the existing tort of defamation is enough safeguards to correct this wrong, is not clear. Further, the accused can always take the plea of his right to freedom of speech and expression, while defending himself, as these are constitutional rights. These lawsuits continue for years and often depend upon the financial means and ability of the aggrieved person to prove the defendant guilty in Court.

Criminal defamation too is a bailable, non-cognizable, and compoundable offence. Warrants are needed from a magistrate against the accused, otherwise, the police will not take an FIR. It is often considered a less serious criminal offense and also allows both parties to settle the matter outside the court.

 

Conclusion

Privacy is a fundamental right and an essential component of a person’s reputation. We also know that defamation constitutes encroachment of privacy. In India, customary laws, constitutional provisions, and laws on criminal and civil defamation protect a person against defamation and loss of reputation. But despite privacy being closely linked to reputation, the means of protecting one’s privacy through the existing defamation laws are not very well understood and it is not guaranteed that they will protect our privacy being encroached upon. Hence it would not be out of place to consider whether the right to privacy should be brought under a  special and exclusive statute, i.e. there should be a tort of privacy in India which should strike a balance between people’s right to know and the protection of a person’s privacy. The present digital era, where we are constantly exposed without our knowledge, really calls for such legislation.

Reference 


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