Introduction

Law of Defamation protects people against damages to their reputations. It objects to prevent the publication of false and defamatory statements against a person (including government, company and organization) which harms its reputation in the society.

Every person has a right to reputation. Defamation is an act which injures the reputation of a person (without reasonable or lawful excuse) by exposing the person to hatred, contempt or ridicule.

Concept of Defamation

The concept of Defamation is as old as Hills.[1] It dates from ancient vedic period to modern legal era. Defamation as concept has been discussed and described in smritis, shrutis and sanhitas. Also it has been defined by almost all jurists and scholars in their own words and understandings.

“Katyayana Smriti” defines Defamation as “ A person if insults another by uttering whatever is censurable as per popular notions, or by dint of making sound, sign or imitation, he commits the offence of ‘Vakparushya’ (Defamation).

Katyayana Smriti classify defamation into 3 categories i.e.

Nishtura :- This is general allegation affecting the reputation of a class of people. Aslils :- When a person humiliates another regarding his character or that of the members of his family.
Tivra :- This is to connect a man with grave sins or offences which results in loss of casts.
In Dixon vs Holden[2] it was observed by the court that “A man’s reputation is his property, and if, possible, more valuable than other property.”

Definition

The concept of Defamation was defined by Justice Cane in the case of Scott vs Sampson[3] as “a false statement about a man to his discredit.” This was verified by later judgments such as Sim vs Stretch[4] and Mohan Charan Naik vs Syambhu Nath Khandigiri.[5]

Salmond defined Defamation as “the wrong of defamation consists in the publication of a false and defamatory statement concerning another person without lawful justification.”

Libel and Slander

Defamation can be done by two ways i.e. Libel and Slander. English law differentiates between the two whereas IPC does not recognize the two as different entities. Libel is representation which has a permanent and visible character. It is a representation made in some permanent form e.g. writing, printing, picture, caricature, effigy or statue. It is both civil and criminal wrong. Whereas Slander is verbal defamation which is spoken. It may arise due to heat of moment or any grudge.

Defamation as per IPC

Indian Penal Code defines Defamation 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 expected, to defame that person.”[6]

Essentials

There are basically 3 essentials for Defamation i.e.

There shall be a representation via signs, words spoken or written or any visible representation:- Defamation arises when defamatory statement is made through oral or verbal conversation or via signs and gesture. That representation must be with regards to the complainant/ plaintiff:- Defamation must be referring to the plaintiff, only then the plaintiff would liable to sue the defendant.cIf the words published are referring to the plaintiff the defendant will be liable and it will be no defence that the defendant did not intended to defame the plaintiff.[7]
That representation must be published:- In section 499 the words makes or publishes any imputation should be interpreted as words supplementing to each other. A maker of imputation without publication is not liable to be punished under that section.[8]
That representation must be false and defamatory :- Where the words are false and defamatory the question of knowledge and intention does not arise. This means that Defamation arises the moment the false and defamatory statement are published.[9]
Defamation and malice

It is not necessary for a person committing defamation to commit it with malicious intention. Defamation could be a result of negligence. However the presence of malice makes the person liable for Defamation both civil and criminal. Malice means ill will or evil intention.

Ipc clearly suggests that Defamation is caused by a person knowingly that his publication would harm the reputation of the other. A person opposing a privilege against a defamation suit must prove the malice.[10]

Defamation and Malicious Prosecution

Defamation and Malicious prosecution are two different concepts but often misunderstood and used together. Defamation on one hand is publication of defamatory statement but Malicious prosecution is prosecuting the plaintiff in false and frivolous cases with no reasonable excuse.

However Defamation can become a part of suit for malicious prosecution. The basic difference between Defamation and Malicious Prosecution has been explained by Madras High Court in N. Hiriyan vs B. Shivakumar[11] as two different concepts as per their meaning and scope. However the court observed that, the fact that a plea of malicious prosecution includes defamation or not depends upon the facts of the case. This means that a plea of Defamation can be filed along with a plea of malicious prosecution if plaintiff can prove his case. Similar view was taken by Supreme court in West Bengal State Electricity vs Dilip Kumar Ray.[12]

Defense against Defamation

Defamation is both a civil and criminal wrong and a person committing defamation can be prosecuted both in civil and criminal proceedings. However there are certain defense to defamation which are;-

Justification or truth:- There is no defamation via truth. A person can escape the liability of defamation if he is able to prove that the statement he has published is true. However if a statement is false it is no justification that the defendant has honestly or has reasonable ground to believe it to be true.[13] Fair Comment:- Fair comment is another exception to defamation. However fair does not mean fair by the standards of an ordinary reasonable man, rather the critic has liberty so long as his comment can come within the gamut of criticism. Privilege:- It is not an exception to defamation but an exception to liability of defamation. Privileged people cannot be sued for defamation. Privilege can be of two types i.e. absolute and qualified including judicial, military or parliamentary privileges.
Remedies for Defamation

As mentioned earlier Defamation is both a civil and criminal wrong. Therefore, a person aggrieved by defamation can file a plaint in the civil against defamation as tort or can file a complaint under IPC. Section 500 of Ipc grants a punishment of 2 years of imprisonment along with fine for defamation of a person. However the amount of fine or damages depends upon case to case.
Kapil Chandna
Kapil Chandna is Advocate practicing at Delhi High Court and Supreme  Court of India. He can be reached at advocate.kapilc@gmail.com. He also writes blog posts for his website kapilchandna.legal

[1] Gunjan Rekhi, Mehrotra’s commentary on Law of Defamation, Damages, Malicious Prosecution 7th Edition.

[2] (1869) 7 Eq. 488.

[3] (1882)Q.B.D. 491.

[4] (1936)52T.L.R66 at p.255.

[5] (1985)60 CLT.252 at p.255

[6] Section 499, IPC,862.

[7] Hulton & Co. vs Jones (1910) A.C.20.

[8] BilalAhmed Kaloo vs State of Andhra Pradesh (1997) 7 Sc 127.

[9] Cassidy vs Daily Mirror Newspapers Ltd. (1929) 2 K.B.331

[10] State of Punjab vs V K Khanna (30/11/2000) Supreme Court.

[11] https://indiankanoon.org/doc/159630057/(Last visited on 26/02/2018)

[12] AIR 2007 SC 976.)

[13] Radheyshyam Tiwari vs Eknath (AIR 1985 BOM.285).