Abstract
In the digital age, where ideas travel faster than it used to decades before and opinions find global platforms in seconds due to globalisation hitting every corner of the world, the boundaries between free speech and defamation have become increasingly blurred. The road from newspapers and radios being the sole modes of expression to people posting reels, stories, videos, and posts on various social media handles has significantly changed how the very idea of expression is perceived. This research paper examines the role of criminal defamation laws in the context of freedom of speech and expression, particularly within the rapidly evolving landscape of social media and artificial intelligence. While these laws were originally intended to safeguard reputations, their continued use, often harsh and disproportionate, can have a chilling effect on legitimate criticism, dissent, and public discourse. Study explores how criminal defamation laws are frequently used to suppress the voices that go against the power structures or express inconvenient truths. At the same point of time, it also delves deep into the need for these reputational safeguards that are necessary in an era where misinformation and AI-generated content can destroy lives and careers overnight. Striking a balance between the protection of reputation and the fundamental right to free speech is not just a legal requirement—it is a moral and societal imperative. Through doctrinal analysis, case studies, and comparative perspectives, this paper advocates for a rethinking of criminal defamation laws with a human-centric approach—one that does not silence critique but rather encourages responsible expression.
Keywords
Criminal defamation. Social media, freedom of speech and expression, Media Ethics, reputational Rights, Online Expression
Introduction
The ancient Roman Empire is where the idea of criminal defamation first appeared. To stop people from making fun of one another, the Romans used severe and punitive measures.
According to “The Praetorian Edict” a person who uses derogatory language against another person may face legal action. Defamation has been defined as “communication to third parties of false statements about a person that injure the reputation of or deter others from associating with that person” as per Merriam Webster dictionary. Cambridge dictionary defines it as “the action of damaging the reputation of a person or group by saying or writing bad things about them that are not true”. Particularly about India, criminal defamation was defined in “Section 499 of IPC” which has been repealed, currently holds its explanation in “Section 356 of BNS.”, mentioned as “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes in any manner, 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 excepted, to defame that person”.
When comparing civil and criminal defamation, it is crucial to remember that civil defamation is a “civil wrong that damages someone’s reputation”, based on common law principles and not specifically protected by any Indian statute. Additionally, the primary objective of civil defamation is to provide restitution to the victim of the offense, typically in the form of cash. However, Criminal defamation carries more severe consequences and harsher fines. “Fined, imprisoned for up to two years, or both along with community service if proven guilty” is the punishment that the defendant faces. The state prosecutes the offender as part of the criminal process, and the conviction serves as a public record of the offense. Punishing the offender and stopping others from doing the same are the goals.
Research methodology
The project has been shaped by doctrinal research. During this study, news articles, books, periodicals, and other online resources were employed as secondary sources of data.
Review of Literature
Sections 499 and 500 of the Indian Penal Code (IPC), 1860, which made defamation a crime, have historically governed defamation in India. Under Section 356 of the Bhartiya Nagrik Sanhita (BNS), 2023, these provisions are upheld, carrying a maximum penalty of two years in prison, a fine, or both. In Subramanian Swamy v. Union of India (2016), the Supreme Court affirmed the constitutionality of criminal defamation, holding that reputation protection is a fundamental right guaranteed by Article 21 of the Indian Constitution. Nonetheless, detractors contend that criminal defamation laws stifle free expression and are frequently applied unfairly to political dissidents, journalists, and activists (Singh, 2022). Defamation rules increasingly cover blogs, social media posts, and digital news portals due to the rise of digital media.
One important piece of legislation governing internet defamation is the Information Technology (IT) Act of 2000. Section 66A of the IT Act, which made offensive online communication illegal, was overturned in Shreya Singhal v. Union of India (2015) due to its arbitrary and ambiguous implementation. However, unless they take action to delete such content after being told, intermediaries (such as Facebook, Twitter, and Google) are nonetheless accountable under Section 79 of the IT Act for hosting defamatory content. In Justice K.S. Puttaswamy v. Union of India (2017), the right to privacy was acknowledged as a basic right, proving that it is a necessary component of Article 21 (Right to Life and Personal Liberty).
Elements of criminal defamation
Criminal defamation as defined in “Section 356 of BNS”as ““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 excepted, to defame that person”
This definition consists of three key elements:
- making or publishing any imputations concerning any person,
- such imputations must have been made by words either spoken or intended to be read or by signs or by visible representations, and
- that is made intentionally or with knowledge or having reason to believe that it will harm the reputation of the person concerned.
Element 1
Imputation is the term for an accusation made against an individual; it suggests a factual charge rather than just an abuse. In addition to the plaintiff and the accused, at least one other third party must be informed of this imputation. The plaintiff’s reputation must also suffer,
An indirect insinuation can be used instead of a direct statement. Defamation, for instance, could result from “[a]n imputation in the form of an alternative or expressed ironically”.
A specific person or people whose identities can be determined must be the subject of the imputation. 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,” then the deceased person may be considered defamatory.
A clearly defined class of people must be the target of slander. For instance, “disparaging remarks directed toward “lawyers” as a class were typically deemed to be too ambiguous and unidentified to qualify as defamatory.”
Element 2
An imputation must be conveyed, either orally, in writing, or through signs or other visual representations, to qualify as defamation. For example, “it was deemed defamatory to publish a group photo with a fictitious caption that identified the subjects as troops in a goonda war.” Libel can also be attributed to a “statute, an effigy, a caricature, chalk drawings on a wall, placards, or images.”
Element 3
The core element of the defamation offense is the publication of an imputation with the knowledge that it will harm the reputation of the person who was defamed. The accused must prove that he knew, intended, or had a good reason to believe that the imputation he made would harm the complainant’s reputation. The term “harm” should have a different meaning from what is commonly associated with it.
The term “harm” describes an imputation about a person’s character that is produced and shared with others in an attempt to minimize their morals.
Free speech and criminal defamation
- Ms. Ramani, a journalist who had accused Mr. Akbar of sexual harassment, was sued for criminal defamation by the journalist-turned-politician Mr. Akbar in “Mobashar Jawed Akbar vs. Priya Ramani (2021)”. Specifically, in 2017, Ms. Ramani penned a post for The Vogue about being sexually assaulted by her boss, whom she referred to as a predator. When Ms. Ramani, in her 2018 Vogue essay on Twitter, accused Mr. Akbar of being the predator, he filed a slander suit. Ms. Ramani’s tweets were declared non-defamatory by the Delhi Hon. District Court in February 2021. As evidence of Mr. Akbar’s poor character, Ms. Ramani had pointed to his history of sexual misconduct, and the court agreed with her that Mr. Akbar’s reputation was not good. The court further reasoned that criminal defamation should not be used as a weapon against women’s constitutional rights to life and dignity, as well as their freedom of expression, in accordance with “Article 21” of the Indian Constitution.
- In the case of “Vijay & Rajendra Darda v. Ravindra Ghisulal Gupta (2022)”, the Bombay High Court Nagpur Bench rejected criminal defamation claims against the chairman and editor-in-chief of Lokmat Media Group, Vijay Darda and Rejendra Darda, respectively. A First Information Report (FIR) filed by the police against the complainant and his family was reported in the Lokmat daily. While acknowledging that the FIR had been filed, the court further stated that “[t]he publisher is not expected to investigate the matter and ascertain the truthfulness of the First Information Report [itself] before publishing the news item.”
Additionally, the court stated that “defamation regarding truthful and faithful reporting is unhealthy for a democratic setup.” - In the case of “Aroon Purie v. State of Nct of Delhi (2022)”,the Supreme Court dismissed a criminal defamation action against India Today editor-in-chief Aroon Purie over a 2007 report, but it left the case against the article’s author, journalist Saurabh Shukla, standing. Regarding editor-in-chief Purie, the court found that he could not be held accountable for the author’s actions because the complaint attributed “nothing specific” to him. The court did point out that if the accusations were “sufficient and specific,” the editor-in-chief might be held accountable. Regarding journalist Shukla, the court clarified that it was “a question of fact to be gone into only at the stage of trial” as to whether Shukla’s conduct were warranted.
In the legal world, the question of which is more important—the fundamental “right to freedom of speech and expression” or the right to be free from defamation—occurs regularly. The answer is always freedom of speech and expression if the question is taken at face value. However, with careful consideration, the subtleties of it become clear. Law is not black and white; rather, it is the gray area in which society chooses to function. While it is important that we have the fundamental right to free speech and expression, exercising that right can also lead to defamation.
The Constitution’s “Article 19 (1) (a)” ensures that every citizen has the fundamental
right to freedom of speech and expression. Including this clause is also consistent with our
Preamble, in which the State guarantees every citizen
“LIBERTY of belief, worship, expression, and thought;”
Despite not being a legally binding document in and of itself, “the Preamble is the foundation of our constitution” Its validity has been the focus of several significant Supreme Court cases. “In itself article 19 (1) (a) is a perfect fundamental right, but cracks seem to develop overtime as more and more people started misusing it. Within one year of the enforcement of our constitution, a clause “19 (2)” was added through an “amendment”, with retrospective effect, to put reasonable restrictions on this right”. The clause read as-
“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause…”
“However, any limitation in the exercise of the right under this clause against clause (1) (a) not falling under the reasons given under 19 (2) cannot be held valid. Freedom of speech and expression includes one’s right to express one’s views or opinions on any issue through any” medium, be it through words of mouth, writing, printing, film, “singing” , etc. Therefore a right to communicate and to propagate or publish automatically attaches itself to this fundamental right. However, “free speech cannot be equated or confused with a license to make unfounded and irresponsible allegations against the judiciary”. A mature and fully developed society lays its foundations with citizens who have access to all their basic rights but the citizens should also be responsible while exercising their rights, misuse of any law leads to rifts between the citizens and the State. The State uses this “misuse” “as an excuse to impose draconian laws which encroach upon the liberty of the citizens. A fine line has to be considered by citizens and State alike when it comes to sensitive topics like the fundamental rights.
After a quick perusal of the section of defamation one may naturally feel that this section imposes a lot of restrictions on a person’s right to freedom of speech and expression. But that is not the case as further in the section ten exceptions have been provided which saves a person from false allegations of defamation.
In a concise way these ten exceptions are”:
- Imputation of truth which public good requires to be made or published.
- Honest opinion about the public conduct of a public servant.
- Honest opinion about the conduct of any person touching any public question.
- Publication of reports of proceedings of Courts.
- Honest opinion about the merits of a case decided in Court or conduct of witnesses and others concerned.
- Honest opinion about any merits of any public performance, including but not limited to a book by an author or singing, dancing etc.
- Censure passed in good faith by person having lawful authority over another. Like a parent over his child
- Accusation preferred in good faith to authorised person. Again like a teacher complaining about a child to his parents
- Imputation made in good faith by person for protection of his or other’s interests
- Caution intended for good of person to whom conveyed or for public good
Digital media and criminal defamation
The way people share and perceive information has fundamentally changed as a result of the introduction of various social networking sites and online journalism into their daily lives. This has especially resulted in new legal concerns pertaining to privacy and dependability. People are more susceptible to misleading assertions, online abuse, and privacy violations as a result of the Internet and social media platforms blurring the boundaries between private and public area. The use of the internet as a platform for defamation, such as posting or commenting on divisive content on social media, has led to an increase in cyber defamation. Section 66A of the Information Technology Act, 2000, which outlined the penalties for disseminating “offensive” content, had to be “overturned” by the Supreme Court of India. This is just one of the many legal repercussions that arise as our reliance on the internet and social media platforms grows significantly.
The major issue that arises in cases of defamation involving internet is amidst figuring out whether the person had actually intended to harm the reputation of the third party or was he referring to someone else and in certain articles or blogs the names are not even mentioned which” makes it all the more challenging to understand which person is being defamed. Article 12 of United Nations Declaration of Human Rights states that (UNDHR) “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”. In the case of “Subramanian Swamy versus Union of India” , the Supreme Court held that the “reputation of one person cannot be tormented at another persons of right to freedom of speech the court held the fact that reputation and privacy of a person is an integral part of a person’s life and the same should not be tampered with.”.
The existing laws of defamation do not provide complete protection to a person’s “privacy . There are certain essentials for a case of defamation to be filed, but against privacy, it cannot be as it does not fall under the category, though both the offences may take place simultaneously. Violation of privacy of celebrities or people in power is very common ass new channels are known to bring out the information on their private life which destroys their space and right to privacy, and in certain cases the channels publish false information just for attention from viewers which leads to loss of reputation for them”.
Suggestions
With the growing usage of social media platforms for expressions, need arises where government should understand the nuanced versions of expressions aldong with defamations arising in contemporary world, which can not be tackled with same legislations which were neither designed for such modes of expressions nor have been amended enough to get along with media platforms to actually delve deeper into the intention of an individual who is commenting upon things of national and internation importance while sitting at their comfortable corners. Regulations need to be formulated that are specifically designed for expressions made through social media , addressing right of privacy of an individual along with defamations.
Conclusion
Criminal punishments are excessive and prone to abuse, even if reputation protection is crucial. In order to enhance civil defamation rules and provide prompt legal remedies that do not restrict free speech, India should think about outlawing criminal defamation. A more democratic and free society would result from this reform, which would bring Indian law into compliance with international human rights norms. The BNS’s continued criminalization of defamation is a divisive topic that reflects the larger conflict between individual liberties and governmental authority. Protecting one’s reputation is important, but it shouldn’t come at the expense of stifling free speech and reasonable criticism. A more equitable, democratic, and balanced judicial system would result from the shift to a civil-based defamation framework.
Author’s Info.
Shriya singh
BALLB/100/23
Dharmashastra National Law University, Jabalpur
Email: shriya100-23@gmail.com
Contact No. 9140718953