Assignment

on

“Defamation”
Submitted to :

DR. SANDEEP

NAME: MUKUL PRATAP SINGH

SUBJECT: LAW OF TORTS

COURSE : LLB. HONS 1ST YEAR FIRST SEMESTER

ROLL NO: 20491

COLLEGE : CENTRE FOR PROFESSIONAL AND ALLIED STUDIES, GURUGRAM

UNIVERSITY- MAHARISHI DAYANAND UNIVERSITY ROHTAK

INDEX

Content Page

1. Definition 1

2. Kinds of Defamation 2

3. Essentials of Defamation 3

4. Defamation as a tort and a criminal offence 4

5. V. Defenses 5

6. Cyber Defamation 6-8

7. Conclusion 9
The law of defamation in India is a relic of the British Raj. Defamation
is the publication of a statement which tends to lower a person in the
estimation of right-thinking members of society generally; or which
tends to make them shun or avoid that person.

I. Definition

Defamation may be broadly defined as a false statement of which the tendency is to

disparage the good name or reputation of another person.

1. “A defamatory statement is a statement which tends to lower a person in the

estimation of right-thinking members of the society generally or to cause him to
be shunned or avoided or to expose him to hatred, contempt or ridicule, or to
convey an imputation on him disparaging or injurious to him in his office,
profession, calling trade or business”
2. Reputation is “not only salt of life but the purest treasure and the most precious
perfume of life

3. Personal rights of a human being include the right of reputation

4. The right to reputation is also a “necessary element” of Article 21 of the

Constitution of India. This right is also recognized by several international
covenants and treaties. The Universal Declaration on Human Rights, 1948 has
provisions for both, the right to free speech and right to reputation. The
International Covenant on Civil and Political Rights (ICCPR) contains similar
provisions under Article 19. Similarly, Articles 8 and 10 of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR) provide the right to respect for private and family life and
freedom of expression respectively. The right to the enjoyment of a good
reputation is a valuable privilege of ancient origin and necessary to human
society.
5. The right to freedom of speech and expression under Article 19(1) is not
absolute. It is subject to reasonable restrictions under Article 19(2) of the
Constitution. One of the reasonable restrictions under Article 19(2) is defamation.
The constitutionality of Section 499 and 500 was challenged for being an
unreasonable restriction on the freedom of speech and expression in the case of
Subramanian Swamy v. Union of India
6. The challenge before the court was twofold – first, whether criminalising
defamation is an excessive restriction on freedom of speech, and second,
whether the criminal defamation law under Sections 499 and 500 is vaguely
phrased and hence arbitrary.

7. The Apex Court upheld the validity of the law of defamation and decided it was
not an excessive restriction. Additionally, it was also decided that the language
used in Section 499 was not vague or ambiguous.

II. Kinds of Defamation

Essentially, there are two kinds of defamation: Libel and Slander. Libel refers to
defamation made in some permanent form, i.e. in written, printed or similar manner.
Slander refers to the form of defamation that is transient in nature, i.e. oral defamation

English Law, in the first place, draws a clear distinction between slander or spoken
words on the one hand, and libel or written words on the other hand.

8. Slander is a civil wrong, and “special damage” has to be proved in cases of slander.
Libel is always actionable per se, but slander is actionable is only exceptional
circumstances, which are:

 Imputation of criminal offence to the plaintiff.

 Imputation of a contagious (disease) or infectious disease to the plaintiff (which

has the effect of preventing others from associating with the plaintiff).

 Imputation that a person is incompetent, dishonest or unfit in regard to the office,

profession, calling or trade or business carried by him.

 Imputation of un chastity or adultery to any woman or girl is also actionable per

se.

Under Indian law, there is no distinction between libel and slander. Both are
treated as criminal offences under Section 499 of the Indian Penal Code. India
offers the defamed a remedy both in civil law for damages and in criminal law for
punishment.
III. Essentials of Defamation

Defamation is the publication of a statement which tends to lower a person in the

estimation of right-thinking members of society generally; or which tends to make them
shun or avoid that person. According

1. a statement concerning any person which exposes him to hatred, ridicule, or

contempt, or which causes him to be shunned or avoided, or which has a tendency to
injure him in his office, professional or trade.

2. a false statement about a man to his discredit.

3. would the words tend to lower the plaintiff in the estimation of right-thinking members
of society generally?”

Therefore, defamation must essentially fulfill the following requirements:

The statement must be defamatory

Defamation is a public communication which tends to injure the reputation of another.

What statements are defamatory and the span of defenses varies from jurisdiction to
jurisdiction but there is common agreement in all jurisdictions that statements that are
unflattering, annoying, irksome, embarrassing or hurt one’s feelings are not actionable.
The first essential of defamation is that the nature of the statement must be defamatory,
i.e., it should lower or injure the reputation of the person in society.

The statement must refer to the plaintiff

It should be proved by the plaintiff that the statement was aimed at him. The m, intention of the
defendant is immaterial. The question whether the defamatory words referred to the plaintiff
is determined by an objectives test and the liability arises if the words are in fact
defamatory of the plaintiff, whether or not there has been an intention to refer to the
plaintiff or negligence in relation to the to plaintiff.

The statement must be published

The most important essential of defamation is the publication of the defamatory content
to a third party. Unless there is a publication of the statement, no action lies. In the case
of Mahendra Ram v. Harnandan Prasad, the defendant had sent a letter in Urdu
despite knowing the fact that the plaintiff could not read Urdu and the letter would have
to be eventually read by someone else or a third party. The defendant was held liable
for the offence of defamation.

IV. Defamation as a tort and a criminal offence

Under Indian law, both civil and criminal defamation is recognized. Defamation is a civil
wrong or tort and the damages for the same can be availed under the law of torts.

The Indian Penal Code, 1860, under Section 499 defines criminal defamation.
According to the Section, “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.” The offence under Section 499 is a
bailable, non-cognizable and compoundable offence. The broad definition given under
Section 499 is subject to four explanations and ten exceptions.

Explanation 1 to the Section provides for defamation of a dead person. According to

this explanation, “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.”

Explanation 2 to Section 499 provides that “it may amount to defamation to make an
imputation concerning a company or an association or collection of persons as such.”
What Explanation 2 to S. 499, IPC speaks is an association or collection of people as
such capable of being defamed. Such persons must be a definite and determinable
body. Then only the imputations could be said to relate to its individual members or
components. If only there is some definite body of persons capable of being identified, it
could be said that the defamatory matter applies to all of them.

Explanation 3 to the Section deals with defamation by innuendo. According to this

explanation, “an imputation in the form of an alternative or expressed ironically, may
amount to defamation.”

According to Explanation 4 to Section 499, “no imputation is said to harm a person’

reputation, unless that imputation directly or indirectly, in the estimation of others,
lowers the moral or intellectual character of that person, or lowers the character of that
person in respect of his caste or of 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 as disgraceful.”

The punishment of the offence of criminal defamation is laid down under Section 500. A
person charged with the offence of defamation is penalized with simple imprisonment
which may extend for 2 years or fine or both. Section 199 of the Criminal Procedure
Code, 1973 provides for prosecution for defamation.

V. Defences

Truth is the absolute defense to defamation. If the statement made is truthful in nature,
it does not constitute defamation. The burden is on the defendant to prove the
authenticity of the statement made. According to the Exception 1 given under Section
499, “It is not defamation to impute anything which is true concerning any person if it is
for the public good that the imputation should be made or published.”

If a statement is made in the interest of public good, it is not defamatory in nature. The
defendant has to prove that the statement was made keeping public interest in mind.
The second exception to Section 499 deals with the fair criticism of public servants. The
statement should be made in good faith and should criticize “the conduct of a public
servant in the discharge of his public functions, or respecting his character, so far as his
character appears in that conduct, and no further.” The third exception deals with a fair
comment on the conduct of “any person touching any public question”.

the fourth exception deals with publication of reports on proceedings of Court of Justice.
Such publication of reports would not be defamation if they are substantially true in
nature. According to the fifth exception, “it is not defamation to express in good faith any
opinion whatever respecting the merits of any case, civil or criminal, which has been
decided by a Court of Justice.”
The sixth exception deals with literary criticism while the seventh deals with censure
passed in good faith by a person having lawful authority over another. The eight
exception deals with a complaint to the authority. According to the eighth exception, “it
is not defamation to prefer in good faith an accusation against any person to any of
those who have lawful authority over that person with respect to the subject-matter of
accusation.”

According to the ninth exception, imputation made in “good faith by a person for the
protection of his or other’ interests” is not considered defamation. The tenth exception
deals with cautionary statements made in good faith. If the statement made is “intended
for good of person to whom conveyed or for the public good”, it is not defamation.

VI. Cyber Defamation

With the invention of the internet, people have been provided with a new medium to
interact. The use of internet has also led to the commission of crimes on the internet.
Cyber Defamation is a crime that involves publishing defamatory content against
another person with the use of computer or internet.

The damage caused to the victim of such defamation is irreparable as the information is
widespread and easily accessible by internet users. Depending on the type of content
published, internet defamation can not only injure the individual’s reputation but also put
the welfare of the community at stake. Over the years, the medium to defame on the
internet have increased substantially. The offence can be committed using social media
platforms, mailing lists, emails etc., and can be in the form of audio, video, graphics or
text.

The Delhi High Court in the case of Dharambir v. Central Bureau of Investigation
observed that “Given the wide definition of the words ‘document’ and ‘evidence’ in the
amended Section 3 the EA, read with Sections 2(o) and (t) IT Act, there can be no
doubt that an electronic record is a document.”

Under Indian law, a number of statutory provisions deal with the offence of cyber
defamation. Some the Acts and rules that deal with cyber defamation are The Indian
Penal Code, 1960, The Information Technology Act, 2000, The Code of Criminal
Procedure, 1973 and The Indian Evidence Act, 1872.
The principal provision dealing with the offence of online defamation is Section 499 of
The Indian Penal Code, 1860. The punishment for the same is given under Section 500

Cyber defamation was made a criminal and cognizable offence under Section 66A of
the Information Technology Act, 2000. The widely worded section dealt with
“punishment for sending offensive messages through communication service, etc.”
According to Section 66A, “Any person who sends, by means of a computer resource or
a communication device,

 any information that is grossly offensive or has menacing character; or

 any information which he knows to be false, but for the purpose of causing
annoyance, inconvenience, danger, obstruction, insult, injury, criminal
intimidation, enmity, hatred or ill will, persistently by making use of such
computer resource or a communication device.

any electronic mail or electronic mail message for the purpose of causing annoyance or
inconvenience or to deceive or to mislead the addressee or recipient about the origin of
such messages,

shall be punishable with imprisonment for a term which may extend to three years and
with fine.”

Section 66A was read by the Hon’ble Supreme Court in the landmark judgment of
Shreya Singhal v. Union of India, wherein it was observed by the Apex Court that “for
something to be defamatory, injury to reputation is a basic ingredient.” It was held that
“Section 66A does not concern itself with injury to reputation. Something may be grossly
offensive and may annoy or be inconvenient to somebody without at all affecting his
reputation.”

The first case of cyber defamation in India was SMC Pneumatics India Pvt. Ltd. v.
Jogesh Kwatra, wherein the defendant, Jogesh Kwatra, started sending defamatory
emails to his employer and the subsidiaries of the company all over the world. The
plaintiff sought a permanent injunction to restrain the defendant from posting
defamatory content. The Hon’ble Delhi Court passed an ex-parte ad interim injunction
order restraining the defendant from posting such remarks.
 Liability of ISPS & Intermediary in India

According to Section 79 of the Information Technology Act, 2000, ISPs are not liable for
any third party information, data, or communication link made available or hosted by
them so long as

1. their function is limited to only providing access to the communication system;

2. they do not- (a) initiate transmission; (b) select the receiver of the transmission,
and (c) select or modify the information contained in the transmission.
3. they exercise due diligence in their duties and adhere to any guidelines which
may be prescribed.

However, ISPs can be held liable in the following cases

1. if the intermediary has conspired or abetted or aided or induced, whether by

threats or promise or otherwise in the commission of the unlawful act.
2. if the intermediary fails to expeditiously remove or disable access to that material
on that resource without vitiating the evidence in any manner upon receiving
actual knowledge, or on being notified by the appropriate Government or its
agency that any information, data or communication link residing in or connected
to a computer resource controlled by the intermediary is being used to commit
the unlawful act.

The Hon’ble Delhi High Court in its first case of Vyakti Vikas Kendra, India Public v.
Jitender Bagga held Google to be an “intermediary” within the definition of Section
2(1)(w) and Section 79 of the Information Technology Act, 2000. It was pointed out by
the Court the Google was “under an obligation to remove unlawful content if it receives
actual notice from the affected party of any illegal content being circulated/published
through its service”

According to the Court, Google was also “bound comply with Information Technology
(Intermediaries Guidelines) Rules 2011. Rule 3(3) of the said Rules read with Rule
3(2) requires an intermediary to observe due diligence or publish any information that is
grossly harmful, defamatory, libellous, disparaging or otherwise unlawful.” The court
also heavily relied on the 36-hour takedown timeline given under Rule 3(4).
VII. Conclusion

The law of defamation in India is a relic of the British Raj. Firstly, it imposes
unreasonable restrictions on free speech and expression and has emerged as a means
to censor journalists, writers, social activists etc. Large corporations use SLAAPs
(Strategic Lawsuits against Public Participation) to intimidate and censor the critics.
SLAPPs are used to silence and harass critics by forcing them to spend money to
defend these baseless suits.

SLAPP filers don’t go to court to seek justice. Rather, SLAPPS are intended to
intimidate those who disagree with them or their activities by draining the target’s
financial resources. Recently, during the #MeToo movement, MJ Akbar had filed
defamation against journalist Priya Ramani as his name cropped up on the social
media.

Secondly, defamation law is open to misuse. Since speech that is published on the
Internet or mass-printed and distributed can be read almost anywhere, the venue of
criminal defamation proceedings can be chosen to inconvenience and exhaust a
speaker into surrender.