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Defamation – A crime or a tort

ABSTRACT

Reputation is a strong belief or an opinion that someone has towards you. Every person across the globe gives more importance and a very big place to their reputation and fame, as it is very essential and takes over a lifetime to build one’s reputation. People make sure that they remain socially recognized as they prioritize their reputation more than their life. This being the scenario, there is a need for the law to protect and redress the grievances of the people in the event of any violation of malice or damage caused to their reputation.
The laws tends to vary from country to country because in some countries it is limited to the payment of monetary damages while some countries go to the extent of placing the wrongdoer behind the bars. This article throws light on defamation and its various aspects across the globe.

INTRODUCTION

In a world where a man gives more importance and value to his reputation than his own life, it is no bombshell that there exists a concept called defamation in law. Reputation is derived from the Latin word called Reputationem, which means “Consideration”. It’s how people consider or label you as – good or bad.
Defamation is an act of causing an injury, damage, or malice to one’s reputation or fame, or character by way of making erroneous and libelous allegations against any person. Every person is guaranteed a right to defend himself by the law from any such calumny or defamation.
A man considers his reputation as his property; it is considered more valuable than any other property. Any person who causes damage or an injury to one’s reputation, henceforth he must be prepared at his own risk to face the legal consequences.

DEFAMATION ACROSS THE WORLD

Defamation has its origin in English law. But the concept, definition, aspects, and punishments for the same tend to vary from country to country. The early German and English Law considered defamation a crime, and the defendant/respondent i.e.; the wrongdoers were punished by cutting off their tongue.
In Italy defamation was regarded as a criminal offense that was punishable under the law and the defense of truth was never acceptable at times. Persons who committed barbaric, abusive, ruthless chants were capitally punishable in Rome. At present India, Bangladesh and Pakistan have similar defamation laws where it permits both civil and criminal action accordingly for causing any such malice, damage to one’s reputation or fame or character by making any wrongful statement.
Even today, most of the African countries continue to follow the laws that existed during the colonial era, which characterized defamation as a criminal offense as and when the wrongful statements, reports, or rumors were published, which are likely to alarm and distress the public. Except for few countries like Liberia, Ghana, and Kenya which have made substantive changes to their law after the colonial era. Though the defamation laws have been varied substantially across the globe, some essential elements constituted the defamation have almost remained the same, namely:

  • The statement must be Defamatory
  • The statement may be in a transient form i.e.: vocally expressed by words or gestures must be made against the other person or may be in permanent form i.e.: writing, printing, pictures, statute, or effigy
  • Such statements made by the person must be one that causes harm or damage to the reputation, fame, or character of the other person
  • The defamatory statement must be published i.e.: to say, it must be communicated to at least one person aforesaid the 3rd party other than the one who is being defamed by the defendant.

When the statement or the words refer to a group of individuals or a class of people, no member of that group or class can sue in the court of law, unless he can prove that the words have referred to him in particular. The statement is defamatory only if it is malicious to the reputation of every member of the group or class. Thus “if a man wrote that all doctors were thieves, no particular doctor can sue in the court of law against him unless there is something to prove towards a particular individual”

ENGLISH LAW

Due to historical reasons, English law has classified defamation into two categories, namely – Slander and Libel. The publication of a defamatory statement in a transient form is considered as Slander while the publication made in a permanent form is considered as Libel. In some circumstances like cinema, movie or films where both libel and slander constitutes as a combination, here not only the photographic part amounts to be libel but also the speech (which is considered it as the only slander) that is synchronized and coordinated with the photographic part amounts to be libel and is punishable for the same.
In the case of Youssoupoff vs. MGM Pictures Ltd , a film produced by an English company called Metro Goldwyn Mayer Pictures Ltd, when the film showcased a lady Princess Natasha to have had a relationship of abduction or seduction with the man Rasputin, a man of the worst substandard character since there arose a question as to whether defamation against the metro Goldwyn Mayer Pictures Ltd amounts to a libel or slander, the court observed and told undoubtedly that “the speech which is synchronized and been coordinated with the photographic reproduction which therefore forms a part of one complex, common exhibition as an ancillary circumstance, part of the surroundings explaining that which is to be seen.”
Section 1 of the Defamation Act, 1952 also makes it comprehensible by stating that publication or broadcasting of statements through wireless telegraphy shall be treated as a publication in a permanent form. Under English law, only Libel is always actionable per se not slander. Slander is made actionable only in few exceptional cases on the evidence of special damages and those of exceptional cases are as follows:

  • Imputation of a criminal offense to the appellant/plaintiff
  • For example; accusing the plaintiff of an offense of abducting or theft
  • The imputation that the plaintiff is disloyal, not capable enough or unskilled or unprofessional regarding his office, trade, business, profession, calling carried on by him.
  • Imputation of an infectious or contagious or transferrable disease to the plaintiff which results in the effect of preventing others from associating with the plaintiff.
  • Imputation of adultery or unchastity to any girl or woman which leads to actionable per se by the Slander of Women Act, 1891.

INDIAN LAW

The defamation under English criminal law, have been segregated into two types like libel and slander but when it comes to Indian law there is no segregation as such. Article 19 of the Indian Constitution grants various freedoms to the citizens of our country. However, Article 19(2) has imposed reasonable exceptions to freedom of speech and expression granted under Article 19(1)(a).

The court held in the case of Parvathi vs. Mannar that the prevailing concept of English law where they permit action against slander only on the accurate evidence of special damages being founded on no reasonable basis, hence the same should not be adopted by the courts of British India.

In the case of A.C.Narayan Shah vs. Kannama Bhai, the Bombay and Madras High Courts respectively held that when there is an imputation of unchastity or adultery to any girl or woman is actionable per se even without the evidence or proof of special damages. Therefore the action can be categorized into two namely;

  • Criminal defamation
  • Civil defamation

DEFAMATION AS A CRIME IN INDIA

The Indian Penal Code, 1860 contains the provisions relating to defamation and punishments for the same and protects an individual’s reputation under Section 499-502. According to Section 499 of Indian Penal Code,

“whoever by words either spoken or vocally expressed or intended to be read or by any signs of gestures or by visible representations, makes or publishes any imputation on any person intending to defame and lower them or injure, malice or harm the reputation of such person hence it is said to be defamed and therefore the defendant shall be liable for the punishment”.

It also states that imputation on a deceased person will also lead to defamation if such imputation is intended to hurt the feelings of his/her family or relatives of the deceased or if it hurts the reputation of that person if living.

Section 499 of IPC defines the vast definition, concept and scope, and exceptions to defamation, while Section 500 of IPC prescribes the punishments accordingly. Any person who defames another shall be liable for the punishment under the law which shall be simple imprisonment which may extend up to two years or with fine or both. This provision is subject to four explanations and ten exceptions accordingly.

Section 199 of the Code of Criminal Procedure, 1973 lays down the procedural aspects of the law, stating that the offense is bailable and non-cognizable. Any imputation made on any individual in any of the ten exceptional circumstances does not lead to defamation and no action will be taken against the same.
Some of the exceptions to the Criminal defamation provided under

Section 499 are as follows:

  • An act of any truth made for the public good
  • Cautions conveyed to any person with an intention of good faith is not considered defamation
  • Statements made regarding the character of a person to protect the interest of the person or for the public good is not considered defamation
  • Publications of true reports of the proceedings of the courts are not defamation.

DEFAMATION AS A TORT

India has recognized Defamation as both a Civil and Criminal offense. Criminal defamation is punishable under Section 499, IPC which is bailable and non-cognizable offense. When it comes to civil defamation it is covered under the law of torts and the person who defamed the other person i.e.: Plaintiff can ask for damages from the person who has defamed his reputation i.e.; defendant.

In the case of D.P.choudhary vs. Manjulata, a 17-year-old girl named Manjulata who belonged to a well-versed family of Jodhpur was a student of B.A. There was a publication made in the local daily newspaper, Dainik Navjyoti on 18th of December 1977 saying that last night around 11 pm, Manjula left her house in the pretext of attending night classes at her college and eloped with a boy named Kamlesh. This false statement and negligent publication of news resulted in horrified and ridiculed by her family and by persons who knew her and this amounted to an effect on her marriage prospects. Hence the respondent was made liable for defamation and was actionable per se and the plaintiff was entitled to an award of Rs.10000 for the damages caused to the reputation of the girl and her family.
In the case of S.N.M Abdi vs. Prafulla Kumar Mohanta, a defamatory statement was published in the illustrated weekly of India alleging that the chief minister of Assam, Prafulla Kumar Mohanta, had misused men and muscle power for his requirements. The false piece of news resulted in the defamation of the reputation of an individual hence the court awarded damages of a sum of Rs.500000/- to the plaintiff.

CONCLUSION

Reputation is an ultimate asset to every person across the globe; as it is considered one of the priceless elements. A healthy and strong reputation has its high value of influence and persuasion whether as a sole proprietor, organization, company, partnership, trade and commerce, head of the family, etc.
Defamation laws have been enacted to prevent and protect the individual from any malice, damage, or injury caused to one’s reputation or fame, or character. The main principle behind defamation laws lies in the beauty of separation between the right to freedom of speech and the expression of one and the right to dignity of another.
Hence it is in the hands of the judiciary to make it clear the chaos that arises in the light of these two rights. Over the seventy-four years of independent India, there lie numerous cases of defamation where the court has interpreted various cases and served the nation accordingly with utmost diligence.

Author:

PRITA.TK (BMS College of Law , Bangalore)