Defamation under Criminal Law

Introduction

• Imagine a high-stakes courtroom drama where a Hollywood star sues their ex-partner over a seemingly innocent newspaper article. No names are mentioned, yet reputations crumble, careers derail, and the world watches, captivated. This is precisely what unfolded in the riveting Johnny Depp v. Amber Heard saga[1]. An op-ed, a silent insinuation, and a whirlwind of accusations led to a defamation lawsuit that blurred the lines between free speech and personal vindication. How could a few carefully crafted words spark such a tempest?
• Defamation is a critical legal and social issue because it strikes at the core of an individual’s or entity’s dignity and honor.
• In the digital era, where information spreads rapidly and widely, defamation can have devastating consequences. With the proliferation of social media and online platforms, the potential for defamation has increased manifold, making it a relevant topic of discussion in both legal and societal contexts.

Meaning of Defamation

• Defamation as defined under Section 356(1) of Bharatiya Nyaya Sanhita, 2023/ Section 499 of Indian Penal Code, 1860 refers to any false statement, written or spoken, that harms the reputation of an individual, organization, or entity.
• An accused individual must have either created or disseminated defamatory content for an offense to be proven under defamation law.
• The term ‘creating’ typically refers to the authorship or origination of the defamatory content.
• A person who intentionally or knowingly duplicates or copies defamatory content with the intent to harm the reputation of another may also be held accountable under defamation law.
• An individual who is neither the author nor the original publisher can claim that the defamatory content was distributed accidentally if intent cannot be proven.
• The primary purpose of defamation law is to protect an individual’s interest in their reputation against unjust harm caused by false statements.
• However, defamation laws have been significantly modified to ensure that public figures cannot misuse these provisions to avoid scrutiny or accountability for their actions and public responsibilities.
• Courts have also recognized ‘making’ and ‘publishing’ as distinct elements in defamation cases. In the case of Rohini Singh v. State of Gujarat (2018)[2], it was held that merely typing defamatory material does not constitute the offense of defamation unless it is subsequently published or disseminated to others. Therefore, for a defamation claim to succeed, the claimant must demonstrate that the defamatory material was intended to reach an audience.

Defamation v/s Right to Speech

• The legal landscape surrounding defamation and the right to free speech is shaped by the need to balance two fundamental rights: the protection of an individual’s reputation and the right to express one’s views freely.
• Free speech is a cornerstone of democratic societies, enshrined in various constitutions worldwide. In the Indian Constitution, it is protected under Article 19(1)(a), which guarantees the right to freedom of speech and expression. Similarly, the First Amendment of the United States Constitution enshrines this right, particularly in relation to public discourse and media.
• However, the right to free speech is not absolute. Article 19(2) of the Indian Constitution imposes reasonable restrictions on free speech in the interest of public order, morality, and reputation of individuals, among other considerations. Defamation falls within this exception, thus limiting free speech when it unjustly harms another person’s reputation.
• The challenge lies in maintaining a balance between protecting individuals from defamatory statements and upholding the right to free speech.
• R. Rajagopal v. State of Tamil Nadu (1994)[3] this case, also known as the Auto Shankar case, is a key Indian judgment that addressed the conflict between privacy, defamation, and free speech. The Supreme Court held that the state or its officials cannot initiate a defamation case to stifle freedom of the press. The court ruled that publications concerning matters of public record do not amount to defamation, even if they damage someone’s reputation, provided the information is true.

Types of  Defamation

The medium of communication and publication is a critical element in a defamation case. Defamation occurs when a statement is published, allowing a third party to learn or become aware of the defamatory content. It involves making a remark that damages a person’s reputation in the eyes of society. Libel refers to defamatory statements made in a permanent form, while slander pertains to temporary, fleeting remarks or gestures that carry less significance.

LIBEL	SLANDER
Written or published defamatory statements	Spoken or transient defamatory statements
Permanent form, such as in writing, media, or images	Temporary form, typically spoken words or gestures
Damage is presumed due to the permanence of the statement	Plaintiff must usually prove actual damage
Actionable without proof of actual harm (in most cases)	Requires proof of harm or special damages
More severe penalties or damages are often awarded	Lighter penalties compared to libel
Examples: False accusations in an article, defamatory social media post	Examples: False accusations made in a conversation or public speech

Essential elements of Defamation

1. The statement must be defamatory

• A statement is considered defamatory if it harms the reputation of an individual in the eyes of the general public. The validity of such a statement is assessed based on how an average person perceives its impact on the subject’s reputation.
• In Ram Jethmalani v. Subramanian Swamy (2006)[4], the Delhi High Court held that Subramanian Swamy’s allegation, claiming that Ram Jethmalani received funding from a banned organization to support the Chief Minister of Tamil Nadu in the Rajiv Gandhi assassination case, was defamatory. The court ruled that such accusations could significantly tarnish Jethmalani’s public image.

2. The statement must refer to the Plaintiff

• The defamatory statement must specifically concern the plaintiff and falsely portray them in a negative light, damaging their reputation.
• In T.V. Rama Subba Iyer v. A.M.A. Mohindeen (1971)[5], the Madras High Court held that although the defendants were not intentionally defamatory, they were liable for making a statement that falsely accused an individual of smuggling goods from Agarbathis to Ceylon. The plaintiff, who was engaged in a similar business, suffered serious harm to his reputation due to the implications of the statement.

3. The statement must be published

• For defamation to be established, the defamatory content must be communicated to someone other than the person defamed, thus making it public.
• In Mahendra Ram v. Harnandan Prasad (1958)[6], the defendant sent a defamatory letter in Urdu to the plaintiff, knowing that the plaintiff could not understand the language. The letter was then read aloud by a third party, Kurban Ali, in the presence of others. The court found the defendant liable for defamation because the false allegations were made public, causing harm to the plaintiff’s reputation.

Defamation – A Civil wrong or a Criminal wrong?

Defamation can be pursued as both a civil and a criminal offense, depending on the jurisdiction and the nature of the case. In India, defamation is unique because it is actionable under both civil law (torts) and criminal law (Indian Penal Code, 1860). Both avenues have different purposes, procedures, and potential outcomes.

Aspect	Civil Defamation	Criminal Defamation
Objective	To compensate the aggrieved person for damage to reputation.	To punish the offender for harming someone’s reputation.
Governing Law	Law of Torts	Bhartiya Nyaya Sanhita section
Standard of Proof	Preponderance of evidence (balance of probabilities)	Beyond a reasonable doubt
Punishment	Monetary damages	Imprisonment (up to 2 years), fine, or both
Plaintiff’s Role	The aggrieved party files the lawsuit	The state prosecutes the accused on behalf of the victim
Example	False articles or publications	Publicly made false accusations, verbal or written.

Defences against Defamation

In defamation cases, the accused can raise several defenses to avoid liability. These defenses are designed to protect individuals from being unfairly punished for statements that may harm a person’s reputation but are justified by other legal or societal principles, such as the public interest or truth.

1. Truth (Justification)

• Truth is an absolute defense to defamation. If the defendant can prove that the defamatory statement is true, they cannot be held liable, as the law does not punish someone for stating the truth, even if it harms another’s reputation.
• In Alexander v. Northeastern Railway Co. (1865)[7], a statement was made that the plaintiff had been fined for traveling without a valid ticket, which was true. The court held that since the statement was factual, the defense of truth applied, and no defamation had occurred.

2. Fair Comment (Honest Opinion)

• The defense of fair comment applies when the defamatory statement is an opinion, not a fact, and it relates to a matter of public interest. The comment must be based on true facts and made without malice. Fair comment allows individuals to express their honest opinions on issues that concern the public, such as political or artistic matters.
• In Kemsley v. Foot (1952)[8], the defendant made critical comments about the editorial style of a newspaper. The House of Lords ruled that since the remarks were honest opinions about a matter of public interest, the defense of fair comment was valid.

3. Privilege

• Privilege refers to situations where the law grants certain protections to individuals, allowing them to make defamatory statements without liability, depending on the context in which the statements are made.
• The Indian Constitution and other legal provisions provide for various privileged communications where defamatory statements may be protected.

Absolute Privilege	Absolute privilege grants complete immunity from defamation claims, regardless of whether the statement was made with malice or intent to harm.Article 105(2) of the Indian Constitution provides absolute privilege to Members of Parliament (MPs) for anything said in Parliament or any committee thereof. MPs cannot be sued for defamation based on their statements during parliamentary debates.Article 194(2) extends similar privileges to members of state legislatures. Members of state assemblies cannot be sued for defamatory statements made in the assembly or its committees.Statements made by judges, lawyers, witnesses, and parties during the course of judicial proceedings are protected by absolute privilege. This allows for free expression within legal contexts without fear of defamation suits.
Qualified Privilege	Qualified privilege applies to situations where the defendant has a legal, moral, or social duty to communicate the information to a third party, or where the communication serves a legitimate public or private interest.Unlike absolute privilege, qualified privilege can be defeated if the plaintiff proves malice—i.e., that the statement was made with an improper motive or ill intent.In the case of Horrocks v. Lowe (1975) [9]The House of Lords held that a defamatory statement made by a local councilor was protected by qualified privilege, as it was made in good faith without malice. However, the defense of qualified privilege is lost if the statement is proven to be made with malice.
Fair Comment and Freedom of Speech (Article 19)	Fair comment is a common defense in defamation cases and is closely tied to the right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution.Article 19(1)(a) guarantees the right to freedom of speech and expression, subject to reasonable restrictions underArticle 19(2) also imposes one such restriction is defamation, meaning free speech cannot be used to maliciously harm another’s reputation.

4. Innocent Dissemination

• The defense of innocent dissemination applies to individuals who unknowingly distribute defamatory material as part of their business or duty. This defense protects intermediaries such as booksellers, internet service providers, and news vendors who have no knowledge of the defamatory content in the material they distribute.

5. Consent

• If the plaintiff consented to the publication of the defamatory statement, the defendant can raise consent as a defense. The idea is that a person who voluntarily agrees to the publication cannot later claim to be defamed by it.
• In Chapman v. Lord Ellesmere (1932)[10], the court ruled that the plaintiff could not claim defamation because he had consented to the publication of certain statements.

Comparative analysis of Defamation under Bhartiya Nyaya Sanhita 2023 and Indian Penal Code

Aspect	Indian Penal Code	Bhartiya Nyaya Sanhita
Definition	As defined under section 499 Defamation occurs when a person makes or publishes any imputation concerning any other person with intent to harm their reputation.	Similar definition retained under section 356(1)
Punishment	Section 500 – Imprisonment up to 2 years, fine, or both	As under section 356(2) Imprisonment up to 2 years, fine, or both
Publication Requirement	Publication of the defamatory statement must be made to a third party for it to be actionable.	Retained the requirement that the defamatory statement must be communicated to a third party.
Exceptions	10 exceptions under Section 499, such as truth for public good, fair comment on public conduct, or judicial proceedings	Similar exceptions carried forward, allowing for fair comment, truth, and protection of free speech.

Defamation under other statutes

Act	Scope
Press Council Act, 1978	The Press Council of India, under the Press Council Act, 1978, regulates the standards of print journalism. If a defamatory statement is published in a newspaper, the Press Council can take disciplinary actions against the journalist or publication, though it cannot impose penalties or compensation directly. Individuals can file complaints with the Press Council regarding defamatory content published in newspapers.
Contempt of Courts Act, 1971	Statements or publications that lower the authority of a court or defame a judge can be addressed under the Contempt of Courts Act, 1971. False statements that scandalize the court or impair the judicial process may be considered criminal contempt, which can attract penalties.

Conclusion

In India, defamation can be pursued under both civil and criminal law, allowing for flexible remedies depending on the nature of the case. Civil defamation seeks to compensate the victim, while criminal defamation aims to punish the wrongdoer. Despite criticisms, criminal defamation remains constitutionally valid in India, with courts emphasizing the need to balance free speech with the protection of individual reputations. The distinction between these two forms of defamation ensures that both personal reputation and freedom of expression are safeguarded within the legal framework.

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[1] Case No. CL-2019-2911.

[2]    R/SCR.A/8885/2017.

[3] 1995 AIR 264.

[4] (2006) 126 DLT 535.

[5] AIR 1972 MAD 398.

[6] AIR 1958 PATNA 445.

[7] [1865] 6 B & S 340; 122 ER 1221.

[8] [1952] A.C. 345 (H.L.).

[9] [1975] AC 135. 

[10] [1932] 2 K.B. 431 (C.A.).