Defamation, Libel, and Slander

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Introduction

Defamation is a legal concept that protects the reputation of an individual or entity from false statements that harm their character or standing in the community. According to Black’s Law Dictionary, the term defamation is defined as “The offence of injuring a person’s character, fame, or reputation by false and malicious statements.” To elaborate more, defamation is also defined under the Merriam-Webster Dictionary as “the act of communicating false statements about a person that injure the reputation of that person.” Under the Indian Constitution, defamation is defined in Section 499 of the Indian Penal Code 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… to defame that person.”   

Forms of Defamation

There are two forms of defamation, libel and slander which are discussed as follows:

Libel refers to the act of defamation through written or printed words, pictures, or any other form that can be visually represented. The defamatory statement is permanently recorded and generally published in newspapers, magazines, books, or online platforms. Since libelous statements have a lasting presence, they are considered more harmful. On the other hand, slander occurs when defamatory statements are spoken or communicated through gestures, signs, or any other non-permanent form. Slanderous statements are typically transient and might include oral remarks, speeches, or conversations. Due to their non-permanent nature, slanderous statements are generally considered less damaging than libel.  

What are the kinds of defamation?

• Civil Defamation: It refers to defamation cases that are pursued as a private legal action by the aggrieved party seeking compensation for the harm caused to their reputation. It is primarily a matter of civil law. In a civil defamation case, the burden of proof lies with the plaintiff, who must demonstrate that the defendant made false statements that caused harm to their reputation. The damages awarded in civil defamation cases are typically monetary, intended to compensate the plaintiff for the harm suffered.
• Criminal Defamation: It involves the prosecution of individuals criminally for making defamatory statements and the penalty for criminal defamation may include fines and imprisonment. In a criminal defamation case, the intention to defame another person is necessary which means the allegation should be made with the intent to defame or at least with the knowledge that the publication of such a statement is likely to defame another person. Herein, the burden of proof lies with the prosecution, who must establish the elements of defamation beyond a reasonable doubt. 

What are the essentials of defamation?

The requirements for establishing a case of defamation are mentioned as follows:

• The statement must be defamatory and can be in the form of spoken or written words, signs, gestures, or any other means of communication. It is important that the defamatory or false statement is factually untrue and not a valid expression of opinion. Statement validity is determined by how the public as a whole perceives it.
• The defamatory statement made should refer to the plaintiff and he should prove the same. The statement must have the potential to harm the reputation of the person or entity being defamed. The defendant will only be liable for the statement if the plaintiff proves that the published statement referred to him.
• The statement must be communicated (published) to a third party, someone other than the person being defamed. It can be shared orally, in writing, through social media, or any other form of communication either verbal or non-verbal. Even a single person hearing or reading the statement can constitute publication.

Who can be defamed?

Any natural person including private citizens, public figures, politicians, celebrities, professionals, or any person who can be identified in the statement and whose reputation can be impacted by it can be defamed. Not only this, but any legal entities such as businesses, corporations, organizations, government agencies, non-profit entities, and other similar entities can also be defamed. The legal entities suffer from reputational harm that can impact their relationships, business, or public perception rather than personal feelings or emotions.

Defences

In India, there are various defenses available to individuals facing defamation claims whereas the availability and applicability of these defences vary depending on the specific circumstances of the case. Some of the defences against the defamation claims are discussed as follows:

• Truth: It is an absolute defence against defamation. If the statement in question is factually accurate and can be proven to be true, it can serve as a valid defence. The burden of proof lies with the defendant to demonstrate the truthfulness of the statement. Under civil law, it is enough to prove that the statements made are true facts but under criminal law one has to also prove that such a statement was made for the good of the public.
• Privilege: Certain statements made under specific circumstances may be protected by privilege. Here, the law recognizes that the right to freedom of speech outweighs the right to defamation of the plaintiff. Privilege can be classified as either absolute or qualified.
  • Absolute Privilege: Statements made in the course of judicial or legislative proceedings, such as by judges, witnesses, or lawyers during court proceedings or statements made in Parliament, enjoy absolute privilege. These statements are immune from defamation claims, even if they are false or made with malicious intent. 
  • Qualified Privilege: It applies to statements made in good faith and without malice by individuals who have a legitimate interest or duty to communicate the information to others. This includes statements made by employers providing references for employees, government officials, or journalists reporting on matters of public interest. However, if malice can be proven, this defence may not be applicable.
• Fair Comment: It is a defence that applies to statements of opinion rather than statements of fact. If the allegedly defamatory statement is a genuine expression of opinion based on true facts and relates to a matter of public interest, it may be considered a fair comment and not defamatory. 
• Reports: It has been defined under Section 499 of the IPC that “It is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.”

Cyber Defamation

With the rise of the internet and digital communication, a new form of defamation has emerged known as cyber defamation or online defamation. It involves spreading false and damaging statements about someone through digital channels. It's a form of reputational harm that occurs on the internet, often through social media, websites, forums, emails, or other online platforms. It underscores the need for responsible online behavior and the delicate balance between freedom of expression and safeguarding one's reputation in the digital age. Cyber defamation shares similarities with civil and criminal defamation, but it has its own unique challenges due to the speed and reach of online communications. Proving cyber defamation may involve tracing the origin of the statement, identifying the person responsible, and demonstrating the impact on the plaintiff's reputation. 

Defamation under Indian Law

Defamation is a criminal offense under the Indian Penal Code (IPC). Section 499 of the IPC defines defamation and provides the essential elements required to establish a defamation case. Also, it highlights various exceptions or defences of defamation. In India, cyber defamation is also covered under Section 499 of the IPC whereas it was earlier covered under Section 66A of the Information Technology (IT) Act, 2000. In the Shreya Singal vs Union of India (24 March 2015), the validity of Section 66 of the IT Act was challenged and issues like Public Order, Freedom of Speech and Expression, Reasonable Restrictions Decency, or Morality were raised in the Supreme Court along with the vagueness of section 66 of the IT Act.

Punishments for Defamation

Section 500 of the IPC: It deals with the punishments for defamation. It states that “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”

Section 501 of the IPC: Under this Section of the IPC, the punishments for those who print or engrave any defamatory matter are elaborated. It states that “Whoev­er prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.” 

Section 502 of the IPC: Punishment related to the ‘sale of printed or engraved substance containing defamatory matter’ is illustrated in this Section. It elaborates that “Whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”

Section 503 of the IPC: It deals with Criminal intimidation, “Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intim­idation.”

Section 504 of the IPC: As per this Section of the IPC, “Whoever intentionally insults, and thereby gives provoca­tion to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 

Section 505 of the IPC: It deals with statements that incite public mischief or promote enmity, hatred, or ill-will between different groups. According to Section 505 of the IPC, 

• “Whoever makes, publishes or circulates any statement, rumor or report with intent-
  • to cause, or which is likely to cause, any offi­cer, soldier, sailor, or airman in the Army, Navy, or Air Force of India to mutiny or otherwise disregard or fail in his duty as such; or
  • to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility; or
  • to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community shall be punished with imprisonment which may extend to three years, or with a fine, or with both.
• Whoever makes, publishes, or circulates any statement or report containing rumor or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different reli­gious, racial, language or regional groups or castes or communi­ties, shall be punished with imprisonment which may extend to three years, or with fine, or with both.
• Whoever commits an offence specified in sub-section (2) in any place of worship or in an assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years, and shall also be liable to fine.” 

Related Case Laws

• Subramanian Swamy vs. Union of India (May 13, 2016)
• Khushwant Singh vs Maenka Gandhi (September 18, 2001)
• Swami Ramdev & Anr. vs Facebook, Inc. & Ors. (October 23, 2019)