Defamation and its Defences
- Legal Journey
- Jun 16
- 7 min read
To quote Ryan Freitas “Your reputation is more important than your paycheck”. The society we live in values reputation above all else. In a way, a man’s reputation is everything that makes or breaks him as a person. Section 356 of the Bhartiya Nyaya Sanhita, defines defamation.
The Indian Constitution guarantees the freedom of speech which means that a person has the right to free speech, to state things or say what they wish to. But, there is a fine line between freedom of speech and harming someone’s reputation by saying statements that are untrue, harming that person’s reputation.
Defamation is when a person states harmful or negative things about another person that are not true. To defame someone means to strip that person of their dignified reputation and to harm their image in society. Let us look at what defamation is and what kind of defenses it provides us.
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Meaning, Essentials and Legal Framework
Defamation is both a civil as well as a criminal wrong. It is upon the person defamed (victim/plaintiff) to choose which kind of relief he aims for. Civil defamation aims to compensate the harmed individual through monetary damages, while criminal defamation seeks to punish the defamer with potential imprisonment or fines.
In civil defamation, the burden of proof is on the balance of probabilities, meaning the plaintiff must demonstrate that it is more likely than not that the defamation occurred, whereas in criminal defamation, it requires proof beyond a reasonable doubt, a higher standard of proof given the potential criminal penalties involved.
In layman’s terms, to defame somebody means to harm that person’s reputation or social standing, causing injury to that person’s image in the eyes of the public.
The origin of the word Defamation is derived from the Latin word “diffamare” which means to circulate information about an individual that could potentially harm his/her reputation. In the Indian Law, defamation is encapsulated in the Bhartiya Nyaya Sanhita, 2023 under the Section 356.
Section 356 states that anyone who damages another person’s reputation through words, signs or visible means is punishable accordingly. Under the definition, explanations are provided that elaborate on and clarify any doubts regarding the definition. Illustrations supporting the definition also aim to make the meaning clear of the definition.
However, the definition of defamation under BNS is NOT absolute. It also has certain exceptions which will be elaborated on further in this article.
Essential Elements of Defamation
A statement that damages the reputation of the plaintiff: For defamation to be wrong, the defendant must have made a statement that directly harms the reputation of the plaintiff. Case- Ram Jethmalani v/s Subramaniam Swamy.
Statement must refer to the plaintiff: The burden of proof lies on the plaintiff that the statement in question referred to him. The statement, if made in a general sense, not directed at the plaintiff/anyone, can’t be used against the defendant and he/she cannot be held liable.
Statement must be published: To constitute the wrong of defamation, the statement made by the defendant must be published and seen by a third party. There must be a legit publication of the statement that harms the reputation of the plaintiff. Valid publication means if a third party is in a position to read such a statement.
Types of Defamation
Defamation is mainly of 2 types - Libel and Slander. Let us look at the meaning behind these types.
Libel
An untrue defamatory statement that is made in writing means libel. When there is a digital or physical representation of a false statement, through signs or billboards or placards that can be seen by the general public, it is libel. It includes printed material, pictures or even digital communications like websites, blogs and newsletters.
For libel to be proved by the plaintiff, it must be shown that there was a false statement made in writing; the statement was published or seen by other third parties with the defendant being at fault and because of this action, the plaintiff actually suffered harm like reputational damage, financial loss, contempt or public hatred.
Slander
Statements made orally through words spoken that cause damage to the reputation are known as slander. That means, making a false statement in public places. For something to be slander, there must be a false statement made orally, to third parties where the fault is on the part of the defendant and the statement has caused harm/damage to the plaintiff.
Defences against Defamation
Truth/ Justification: If a statement made by the defendant is true and can be verified as true, it serves as a proper defense for the defendant. In criminal law, this defence requires that the statement must also serve the public interest. It is also known as Truth made with public interest in mind.
Fair Comment/Honest Opinion- If a person is giving his opinion or making fair comments about an event or the statement is a genuine expression of opinion that is based on proper facts and is made in the interest of the public, this can serve as a valid defence for the defendant.
Privilege- The doctrine of privilege protects certain statements where it is permitted to make free speech. Legal immunity is granted to the defendant to make free communication and this is called privilege. There are two types of privileges under this:- a) Absolute privilege; and b) Qualified privilege. Absolute privilege applies to statements made in a court of law and in similar places. It is protected by the legislature. Similarly, qualified privilege covers true and honest communication that is made in good faith to the other party where there exists a duty to convey information.
Court Reports- If a report that is accurate, factual and truthful, on court proceedings is published, it is not considered as defamation.
Criticism by lawful authority - When a person in a lawful authority or supervisory position states criticism of another person within their lawful authority, such as a judge or an employer, it serves as an exception, provided that it is done in good faith.
Opinion on decided cases- If a person or court gives an honest opinion about the facts/merits of a case, which a court has already decided or if a court provides an honest opinion regarding the conduct of a person/party involved in a case, it is protected and serves as a valid defence.
Opinion on public works- Every person has the freedom to express their opinion in good faith on works submitted to the public. Works like books, speeches, performances, articles etc. that are submitted to public judgment are open to receiving opinions. This serves as a valid defence.
Complaints/Lawful accusations: An accusation or complaint made by a person to a person in lawful authority is not defamatory. Lodging complaints with employers, legal authorities or persons in charge is not defamation in any sense and it serves as a valid defence.
Disclosure for protection: Statements made in good faith that aim to protect the interests of the person making it or the public do not amount to defamation. If done in good faith, this serves as a valid defence.
Cautionary Advice: A warning or cautionary statement made in good faith to a person, to inform them, for their benefit, or the public good, does not amount to defamation.
Landmark Cases
D.P. Choudhary v/s Manjulatha: Based on a false report published in the Dainik Navjyothi, which alleged that a minor college student had eloped with a boy under the pretext of going to college, the reputation of the girl got damaged a lot. There was no base for these allegations. The court stated it was actionable per se and gave the girl compensation in the form of general damages.
Subramaniam Swamy v/s Union of India: The court observed in this case that any person cannot defame others in the name of freedom of speech and expression.
MC Verghese v/s TJ Ponnen: In this case, the question of communication between husband-wife being privileged or not was discussed. It was held that the communication between a husband and his wife comes under privileged communication as given under the 8th exception of the definition of defamation.
Khushwant Singh v/s Maneka Gandhi: In this case, Maneka Gandhi filed a defamation case against Khushwant Singh, who is an author. The court dismissed the case stating that the statements were truthful and were made in public interest.
R. Rajagopal v/s State of Tamil Nadu: Public officials in a defamation suit have a limited shield. In this case, a magazine made a plan to publish the autobiography of a prisoner that contained important references to a public servant. The Supreme Court sided with the magazine publisher and ruled that public officials cannot claim defamation for statements about their official conduct unless they show that there was malice. The official must establish that the problem statements were not only false but were made with malicious intent.
Conclusion
The Indian Constitution grants its people certain rights, which they must exercise sparingly so as not to infringe upon the privileges of others. In the end, in order to uphold people's right to dignity and reputation, defamation laws in India should no longer be used by the powerful to extort, harass, and stifle opinions that are different. Lawmakers' wisdom is demonstrated by treating labels and defamation equally and by ensuring that weaker measures are not abused. In a similar way, the objective of malicious intent to hurt and the criminality test in a statement of defamation is to discourage people from engaging in such actions. Our judicial system has made an attempt to strike a fair balance between criminal defamation and civil defamation. Although remedies are available, rehabilitative solutions like apologies and corrections must also be included.
Frequently Asked Questions
Q) How does Civil Defamation differ from Criminal Defamation?
A) While Civil Defamation aims to compensate the victim, Criminal Defamation aims to punish the offender through fine or imprisonment.
Q) What is the legal meaning of defamation?
A) In India, defamation is considered both a civil and a criminal offence. It is any statement, whether written, spoken or through gestures, that harms another person and his reputation and/or property.
Q) Is digital content considered under defamation laws?
A) With the dynamism of the 21st century, social media posts, blogs, newsletters etc. are also included under libel and they are also punishable by law.
Q) What is the difference between absolute and qualified privilege?
A) Absolute privilege applies in cases where statements are made without the fear of legal consequences, for e.g. court proceedings. Qualified privilege applies to communication made in good faith, or with a duty or interest.
Q) What are the remedies available for a defamed person? A) Remedies like monetary compensation, imprisonment of the accused or issuance of fine are available. Rehabilitative remedies are also available such as public apology or retraction of the defamatory statement.
This Article is written by Tanaya Moholkar, a final year law student at Yashwantrao Chavan Law College, Pune.
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