Defamation in India

Violina Huzuri

(huzuriviolina@gmail.com)

Freedom – this simple seven-letter word holds all the importance in the world. Life wouldn't exist as we know it. It took years, decades, centuries even to realize the full potential of the word, Freedom. Lives were lost, and blood was shed in the struggle to attain freedom. Once the battle was won, it became essential that what was won shouldn't be misused to ruin all that was fought for. Hence it became very important to draft legislation to ensure that a balance was established and that everything is kept in check.

The Internet phenomenon has changed the way the world revolves, an individual from the previous century would not recognize the world as it is today. The internet platform has efficiently evolved the interaction of human beings for the better. However, as much as the goodness and convenience it has brought into our lives, it also has its own fair share of downfalls.

In India with changing times, defamation has been a misused offence in the hands of many, thereby causing a rise in debate on it with respect to the limitation on free speech. What calls for in this regard is the need for progressive thinking with the changing needs of Indian society.

Defamation is the act of communicating false statements about a person that injure the reputation of that person when observed through the eyes of an ordinary man. Any false and unprivileged statement published or spoken deliberately, intentionally, or knowingly with the intention to damage someone's reputation is defamation. A man's reputation is treated as his property and such damage is punishable by law. It could be written or verbal. Written defamation, printed or typed material or images, is called libel and spoken defamation is called slander.

There are various definitions of Defamation available. Winfield's Definition, "Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of the society generally or which tends to make them hate or avoid that person". Salmond's Definition, "Defamation consists in the publication of a false and defamatory statement concerning another without lawful justification". Underhill's Definition, "Defamation is the publication of a false and defamatory statement concerning another without just cause or excuse, whereby he suffers an injury to his reputation".

The history of defamation can be traced to Roman law and German law. 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. The enactment of the Slander of Women Act added the imputation of unchastity as illegal. French defamation laws were very severe. Conspicuous retraction of libellous matter in newspapers was severely punishable and only truth is allowed as a defence when the publication is related to public persons. In Italy, defamation is criminally punishable and truth seldom excuses defamation.

Article 19 of the Constitution grants various freedoms to its citizens. However, Article 19(2) has imposed reasonable exemption to freedom of speech and expression granted under Article 19(1) (a). Contempt of court, defamation and incitement to an offence are some exceptions.

Defamation is an offence under both civil and criminal law. In civil law, defamation is punishable under the Law of Torts by imposing punishment in the form of damages to be awarded to the claimant. Under Criminal law, Defamation is a bailable, non-cognizable offence and compoundable offence. Hence a policeman may arrest only with an arrest warrant issued by a magistrate. The Indian Penal Code punishes the offence with simple imprisonment of up to two years, with a fine, or both.

"With great power comes great responsibility" fittingly describes the situation of the use of liberty, technology and its potential misuse. At times, when free speech rights clash with a person's right to a reputation it becomes pertinent for the State to establish a boundary, so as not for that free speech to become a weapon in the hands of certain people. There is a serious need for a system which educates and makes people aware of what to do and what not to do, what is wrong and what is right and what is defamatory and what is not defamatory in cyberspace.

With the dawn of the internet age, the convenience of communication has increased tremendously. However, such convenience comes with its own challenges. The effortless data transfer and information exchange over the internet has made it a critical hotspot for defamation. Although there are prohibitory laws in place which prevent people from posting such content online, most people are ignorant of the same or are too negligent to realize whether such content is defamatory or not. Further, the internet service intermediaries who provide such an open platform should monitor the content posted on their platform and take the appropriate and necessary actions against such users who post such defamatory content in order to avoid repetition in the future.

Defamation laws are slowly but steadily emerging strong in India. At present, the courts have acted conservative in many high-profile cases of defamation. Still, it is these laws and remedies that have offered protection to individuals of their personal interest as well as reputation against people who maliciously use their right to freedom of speech and expression.