Pocket Notes

Civil and Criminal Defamation

Defamation
Source – Social Media

Defamation can be defined as the act of putting up content that is defamatory in nature or harms the reputation of the person or entity when looked at from the view of an ordinarily prudent person. Defamation termed differently based on the way it takes place. If it happens spoken words or gestures, then it is called slander and if it is done by the way of the written or printed form of sorts it is termed as libel.

In India, defamation is classified under both civil and criminal offenses. In Criminal law, defamation is encompassed under Section 499 and Section 500 prescribes the punishment for it. It is punished with imprisonment up to two years or a fine, or both. It is a bailable, compoundable, and non-cognizable offense.  In Civil law, it comes in the ambit of Law of Torts. Damages are awarded to the claimant for defamation. 

Defamation and Civil Suits

Requirements for a Defamation Suit to be successful –
To have a successful suit of defamation there are certain ingredients that must be present. 

  • Defamatory Content must be present. 
    The basis of a defamation suit is to have defamatory content present. Defamatory content is any content that causes harm to the person’s reputation by exposing him to contempt, hatred, or ridicule. The test used to determine is the test of an ordinary prudent person. This test is used to determine which is defamatory content. According to this test, the meaning of the content will be taken as the meaning which any ordinary prudent man would come to understand.  
  • The claimant must be identified in the defamatory statement.
    The content of the defamatory statement must include the name of the person/ claimant. Statements that are general in nature cannot be considered defamatory statements. For example, the statement all men are liars is not a defamatory statement as it is general in nature and one cannot take it in a personal context and say it is about them. A statement saying Abhinav is a liar and commits fraud is defamatory in nature as Abhinav has been specified. 
  • A defamatory statement must be published in either oral or written form.
    The defamatory statement needs to be published somewhere for it to be considered a defamatory statement. A statement said only to the claimant is not defamatory in nature.
    If Arjun writes a letter to Bhuvan stating that Bhuvan is a liar and is committing fraud, and this letter is only be read by Bhuvan then it will not be defamatory. However, if Arjun posts on social media about B being a liar and committing fraud and people read it then it is a defamatory statement. 

In a Civil suit if these ingredients are present the suit will commence, and the defendant can take a defense or plead privilege. If not proved otherwise by the defendant, then the suit succeeds, and the claimant would receive damages. 

Defense for Defamation

  • Truth 
    As a rule, it is not considered to be defamation if it is true. In India, truth is an absolute defense in Civil Cases however; in Criminal cases, the true statement must be made for the public good. Therefore, irrespective of the intention of an individual, no defamation suit can be brought against someone if he ascribes something true (and for public good under section 499, IPC).
  • Privilege
    An individual can be protected from defamatory suits filed under tort or even criminal law by a privilege conferred on them by law. Absolute privilege (irrespective of intention) is bestowed upon Government officials, Judges, and other such public officials in lieu to discharge their public functions. In the case of journalists, they are given qualified privilege which is valid only if the statement was made without the intention to defame the person, purely in an informative sense. Exception 10 under section 499 IPC expands on this and provides an exception for good faith imputation to caution others or the public.
  • Fair Comment
    In the case of defamatory views, the exception of a fair statement is allowed. The defamatory content or opinion must be clearly expressed as an opinion and should not mix up with facts. Also, the opinion should be one that a fair-minded person can hold such an opinion even if the reasoning is illogical. 

Essentials

  • It must be a comment.
  • The comment must be fair.
  • The matter in which the comment is made must be of public interest.

Defamation and Criminal Suits

In India, an individual who has been defamed has the option to either approach the civil court or criminal court under section 499 of IPC. As mentioned above, it is a bail-able, non-cognizable, and compoundable offense, which technically means that a police officer cannot register a defamation case and then start their investigation without the permission of the court.

According to the provisions of sections 499 and 500 of IPC, a person found guilty under the said sections can be sent to jail for up to two years. The Supreme Court has reserved its verdict on several petitions which have challenged the constitutional validity of the two provisions.

In a criminal suit, the complainant must be able to prove that the accused intended to defame him. The intention is essential in criminal cases. In the case where there is an absence of intention, it must be established that the accused had prior knowledge that the publication was likely to defame the person. A normal stand of proof in criminal cases, which is to prove the offense beyond a reasonable doubt, must also be placed before the court.

Since the law is compoundable, the court can drop the charges if the complainant and the accused enter a compromise to that effect (even without the permission of the court).

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