Generally, defamation refers to destroying the reputation of a person or organization by means of slander (speech), libel (written), or by any means.
The history of defamation can be traced in Roman law and German law. Abusive chants were capital punishable in Roman. In early English and German law, insults were punished by cutting out the tongue. In the late 18th century, only imputation of crime or social disease or casting aspersions on professional competence constitutes slander in England. In Italy, defamation is criminally punishable and truth seldom excuses defamation.
In India, defamation can both be a civil wrong and a criminal offense.
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The criminal provisions have often been used to pursue political personalities. In the colonial era, the law was used, along with sedition, to jail freedom fighters. So-called SLAPP (or strategic lawsuit against public participation) suits have been used in the recent past to muzzle investigative journalists and prevent critical analysis of the financial information of listed companies.
A further brief difference between Criminal and Civil defamation.
It is specifically defined as an offence under section 499 of the Indian Penal Code (IPC)
Objective: It aims to punish a wrongdoer and also send a strong message to others not to commit such acts.
The defamation has to be established beyond a reasonable doubt to punish him/her under Section 499.
It is not defined specifically, and it is based on tort law (A wrongful act, that can be remedied in civil court, usually through compensation)
Objective: It aims to provide compensation to redress the wrong-doing.
Defamation can be awarded based on probabilities (the preponderance of the evidence).
Recent developments in defamation laws
In India, Section 499 of the Indian Penal Code primarily governs the law on defamation, however, it is pertinent to note that the law has been extended to "electronic documents". Section 469 of the IPC (forgery for purpose of harming reputation) has been amended by the Information Technology Act, 2000 to include 'electronic record forged' and now reads as a whole as – whoever commits forgery, intending that the document or electronic record forged shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
Section 66A of Information & Technology Act 2000 (IT Act), was quashed by the Supreme Court of India in Shreya Singhal v. Union of India, due to ambiguity in the definition of the word 'offensive' in the Section. The section stated that sending any offensive message to a computer or any other communication device would be an offence. Such unfettered power, under section 66A, was misused by the Government in curtailing and suppressing people's freedom of speech and expression and hence repealed.
Intermediary Liability and Cyber Defamation
Section 79 of the IT Act provides a safe harbor to intermediaries against any act of defamation. Section 79 provides that an intermediary is not liable for third-party information, data, links hosted on its platform. However, the safe harbor protection is limited to certain conditions viz. an intermediary shall be liable if it initiates the transmission of such defamatory content, selects the receiver of such content, or modifies such content.
In view of the aforesaid, it can be concluded that an intermediary's liability can be reduced by complying with certain obligations, such as adopting statutory due diligence or enforcing 'notice and takedown procedures.
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It is common for criminal defamation cases to involve public figures such as politicians, celebrities, and athletes. Since these people are in the public spotlight, they are likely targets of defamatory statements. At the same time, the law recognizes that it is critically important for the media and the public at large to discuss issues of public concern without fear of litigation. This often involves criticizing the people who have placed themselves in the public spotlight, sometimes in harsh and personal terms.
Right To Freedom Of Speech And Expression:
Violative of Right to Free Speech:
It is an ideal weapon for powerful individuals to silence critical or inconvenient speech. It is a colonial-era law introduced by the British regime to suppress political criticism. Thus Sec 499-500 are violative of the right to freedom of speech and expression provided under Article 19 of the constitution.
Let's look at some landmark judgments related to defamation laws in India.
The court held Dr. Swamy guilty for defaming Ram Jetmalani by saying that he received money from a banned organization to protect the then Chief Minister of Tamil Nadu from the case of the assassination of Rajiv Gandhi.
The Supreme Court explained the meaning of “reasonable restrictions” imposed in Article 19 (2). It implies intelligent care and deliberation and that is required in the interests of the public.
The Constitution of India has given the citizens certain rights and they should use them in limits so that they should not hamper the rights of others. Ultimately Defamation laws should no longer remain the tool of the powerful people to blackmail, harass, and silence inconvenient speech in India and at the same time to protect the right to dignity and reputation of the individuals. The wisdom of the lawmakers is reflected in treating slander and label at par with each other, by necessarily checking the misuse of weaker provisions. Similarly, malicious intent to harm and test of criminality in a statement for defamation is meant to dissuade persons to resort to such practices. Over the seventy-five years of Independence, there have been numerous cases of defamation and the court has interpreted each and every case with utmost care and they serve as precedents; Defamation laws are strengthening slowly but steadily rising in India.