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Defamation

Written by:
Aditya Abhyankar
Published on
25-Jul-18

Defamation literally means an act of harming one’s reputation. As per Article 19(2) of Indian Constitution, Defamation is defined as “the publication of a statement which reflects on a person’s reputation and tends to lower him/her in the estimation of right-thinking members of society generally or tends to make them shun or avoid him/her.”

It can be done in different ways i.e. both verbally as well as through written means. In order to protect the private reputation of an individual, we have defamation laws in India. The objective of formulating defamation laws is to keep the balance between right of a person to his reputation and right to freedom of speech and expression. Let us take a detailed glance at all the aspects of defamation and relating legislations:-

Types of Defamation

There are two types of defamation i.e. libel and slander.

Libel means publicizing of fictitious or non-truthful statement that has the capacity to harm the repute of an individual without any relevance or excuse. It can be in various forms such as prints, cartoons, pictures, waxwork, sculptures or effigies etc. It may not always be in written form. Any insulting writing or name-calling through libelous means is a kind of defamation.

 

Slander on the other hand means any defamatory or fictitious remark made orally or via spoken words with an intention to damage the reputation of someone. It also includes gestures, sign language and inarticulate form of expressions such as winking, booing or any transient way of injuring the reputation.

There is one major difference between two kinds of defamation i.e. libel is actionable per se without providing any proof of special damage as it is in written form and can be produced as evidence whereas slander is actionable when the aggrieved person provides proof of special damage. Here, special damage means loss of money or material damage that can be estimated in monetary terms.

Slander may be an unintentional consequence of provocation articulated in the heat of any caused or staged moment whereas libel showcase higher intent of malice and a deliberate attempt to impair the reputation of someone. In such cases, where the words are spoken out in the heat of moment, they can not be considered as defamatory and thus, slander is actionable without providing proof of special damage.

Remedies

In India, defamation can be considered as both civil and criminal offence.

Civil Offence

If defamation is a civil offence, then the remedy is provided under Law of Torts. As per the law, the aggrieved person can approach to the district or high courts and seek recovery of damages in monetary forms from the accused person causing damage to reputation.

Criminal Offence

In India, both libel and slander are criminal offences under Section 499 and 500 of Indian Penal Code and thereby, gives the chance to the aggrieved person to file a criminal case against the person accusing him/her. In case, the apex court of India has sustained the validity of defamation laws and has given a judgment that such laws are not in dispute with the constitutional right of speech.

In order to prove that it is a defamatory case of either libel or slander, the statement must contain following elements of defamation:-

  • A defamatory statement

  • The statement must directly or indirectly identify the victim

  • The statement has been communicated or published to minimum one person other than victim or plaintiff.

There are certain statements that do not fall in the definition of defamation i.e.:-

  • Any honest or reliable statement issued or spoken or published in the national interest or interest of public.

  • Public opinion on the conduct/behavior/work/character of public servant with respect to his discharge of duties or functions.

  • Conduct on any publicly asked question

  • Any kind of publication of any court proceedings or trial or judgment made by the court.

Remedy

If it is proved that the accused is guilty before the criminal court of justice then he/she will bear the following punishment i.e.:-

  • Simple Imprisonment  up to 2 years or

  • Fine or

  • both

This offence is a non-cognizable, bailable as well as compoundable offence.

Who bears the burden of proving wrong intention in any defamatory statement?

The liability to prove that the statement holds any defamatory remark or innuendo, if plaintiff has filed the petition of defamation, lies on the plaintiff himself. He/she has to prove before the court that the statement is referred to him/her.

Conclusion

Defamation laws are slowly but steadily emerging strong in India. At present, the courts have acted conservative in many high profile cases of defamation. Still, it is these laws and remedies that have offered protection to individuals of their personal interest as well as reputation against people who maliciously use their right of freedom of speech and expression.