Analysis of the offence of Defamation

• Section 499 of the Indian Penal Code talks about defamation. So, what is defamation?

Any person who by spoken or written words, signs, or visible gestures creates or publishes any imputation on any person with an intention to harm the reputation of that person. The person making such an imputation should have the knowledge or a reason to believe that such an imputation will ruin the reputation of the person.

However, there are many exceptions included in this Section. We will discuss them in the approaching topic.

Reputation

To sue any person it is necessary to establish that real damage or harm has occurred to the reputation of the person. Only speaking or writing the words, picturing, or gesturing does not amount to defamation until the reputation of the person has been harmed.

Harm to reputation is the only negative consequence that can arise from the act of defamation.

It could prove harmful to your professional career as well. For example, if someone points out to a shopkeeper says that you should not buy groceries from him as he sells low-grade things at a high rate. In this case, if the statement is found to be untrue then the reputation of the shopkeeper is being harmed as this will lead to a shortage of customers coming to his shop.

Publication

For a person to be sued for defamation, it is required that the publication of the words he spoke or wrote must have happened. What does it mean?

It means that damage to the reputation of the person happens when the defamatory words have reached to any third person. Publication means that the third person has read, heard or seen the written, spoken, gestured or pictured defamatory words.

If it has not happened then there is no ground to sue for defamation.

The Distinction Between English Law And Indian Law

An act of defamation can occur in two forms, libel and slander.

Libel:

It is a kind of defamation that is present in some permanent form such as in writing, printed or a picture.

Slander:

It is a kind of defamation that is present in an unwritten form such as spoken words, gestures or representation made with hands.

In English law, there is a distinction made between both of the forms under the categories of criminal defamation and civil defamation.

Under criminal law, only libel is an offense and not slander. Whereas in civil law, libel is an offense just like in criminal law but the change here is that slander is also an offense when provided with proof.

In Indian law, both slander and libel are recognized as criminal offenses under Section 499 of IPC. Whereas, in the law of torts libel is actionable per se and slander is actionable. It means in the case of slander there has to be proof of the act of defamation.

D.P. Choudhary v. Kumari Manjulata

In this case, it was published in a newspaper that Manjulata, a 17-year-old girl belonging to a well-known family, eloped with a boy who lived closeby. After this, her reputation got tainted and she suffered a lot of disgrace, as this news was completely false and was published with irresponsibility.

Later on, the Court, in this case, ruled out the Rs. 10000, should be provided to the defendant as it amounted to defamation.

Forms of Publication

There are various forms of publication in which the act of defamation can take place, let's look at them.

Direct communication to the Defamed
If any defamation is made directly to the defamed and is not heard by anybody else, then it is not defamation. It is necessary that any third party hears it through which the reputation of the defamed goes down.

Publication by Repetition

There is a limited period to sue for defamation. It is maintainable till one year since the act of defamation took place. For a single publication, an action for libel can arise but for repetitive or multiple publications, the action can arise every time the libel is published.

The Limitation Act, 1968 makes the limitation period of the libel on the internet to 1 year. After every publication on the internet, this period will get renewed.

Khawar Butt vs Asif Nazir Mir

This case was decided in the year 2013. The Delhi High Court, in this case, ruled out to set aside the multiple publication rule on the internet and to follow only the single publication rule.

Printed Matters: Liability of editor and others

Section 501 of the Indian Penal Code talks about the printing of defamatory things.

It says that any person who prints or engraves such a matter which he knows or has reason to believe that such matter is of defamatory nature and hence, will lower down the reputation of the person and bring ridicule and disgrace to his/her character.

This Section checks for the printed defamatory matters and provides the provision for the punishment to the person who printed it. The punishment of a maximum of two years in jail or fine or both is provided under this Section.

Now, let's understand what is the provision for the people who further sells the defamatory printed content.

Section 502 of the Indian Penal Code says that any person who sells or offers to sell any printed content that he knows or has reason to believe that it contains defamatory matter will be punished.

The punishment will either be imprisonment which can be extended to a term of two years or could be fine. In some instances, both can be imposed.

Therefore, through both of these Sections, the printing or engraving, selling or offering to sell, such a matter which contains some defamatory content, is a crime and is punishable.

Imputations concerning 'Any Person'

In Section 499 of the Indian Penal Code the 'imputation concerning any person', is mentioned. Imputation in general terms means accusation or claim that someone has done something wrong.

As far as the term 'concerning any person' is concerned, this means that defamation should be clear enough to point out the person to whom the defamation is intended to be made and if it is published to others then the third person is also able to clearly understand who is defamed by the publication.

Intention to Injure

There has to be a knowledge or reason to believe that the act will certainly cause the defamation of the character of the person. It implies the mens rea of the person, that is the person should have the intention to harm the reputation of the other person.

To win a defamation lawsuit, the defendant should prove that he had honest intentions and no malice, and it was just an honest mistake.

Analysis of provisions of Sections 499 and 500, IPC
The provisions regarding defamation are provided in Section 499 to 502. Section 501 and Section 502 has already been explained earlier in this article. Now, let's understand the provisions contained in Section 499 and Section 500.

Section 499 provides the definition of defamation and all the cases and exceptions of the act of defamation. This is a lengthy Section with explanations and in total 10 exceptions included in it.

Section 500 provides for punishment for the act of defamation.

Explanation l: Defamation of the Dead
In case, a person defames another person who has passed away or is already dead, by any means that is written, spoken, by gestures or pictures.then, it will be an act of defamation, this act would have harmed the reputation of the person if he would have been still alive, or in case it harms the reputation of the family or close relatives of the deceased.

Explanation 2: Defamation of a Company or a Collection of Persons
If an act is intended to cause harm to a company or association or a group of people, then it will amount to defamation. This means under it companies or associations can slap a defamation suit against an individual.

Priya Parameshwaran Pillai v. Union of India and Ors

In this case, Priya, a Greenpeace activist, wrote in her blog that the environment is degraded by the power project which was set up by the Essar group. After which a suit of defamation was filed by the Essar group.

Priya, in her argument, contended that the private companies should not be given the right to file a defamation suit against an individual. But her contention was set aside by the Court, not allowing any more questions and contentions to be added further.

This particular case has its roots in the previous Subramaniam Swamy v. Union of India case. Let us discuss that now.

Subramaniam Swamy v. Union of India

In the year 2014, Dr. Subramaniam Swamy alleged corruption charges on Ms. Jaylathitha. After which Ms. Jaylathitha framed defamation charges on Dr. Subramaniam Swamy. He in return challenged the constitutional validity of Section 499 and Section 500 of the India Penal Code.

The court, in this case, upheld the constitutional validity of the offense of criminal defamation.

And ruled out that Section 499 and Section 500 of the India Penal Code, impose reasonable restrictions on the right to freedom of speech and expression.

Explanation 3: Defamation by Innuendo
Well, to be able to understand it we must first understand what innuendo in general terms means.

Innuendo is a clever way to speak negative sentences in a very sarcastic way, which may appear to be positive at the surface of it.

Under Section 499, defaming of any person by innuendo is a form of criminal defamation.

Illustration:
A says to B, pointing out to C, 'C is a very even-handed person, I have not seen him making any discrimination against G.

This is discrimination as A intended to point at C has a discriminatory person and that he has discriminated in the case of G.

B asks A,' do you think someone discriminated?

A in return pointed at C and said, 'well you know, who can'.

This is discrimination has it was said in a sarcastic way while pointing at C.

Explanation 4:

• What is Harming Reputation?
• Defamation is an act by which a person's reputation is harmed, but what is harming reputation?
   

According to explanation 4 given in Section 499, the reputation of a person is harmed when the act injures the moral or intellectual character of the person or lowers his credit. It also hampers the reputation if the act lowers down the person's character in the respect of his cast or his calling.

The act of defamation which let the others believe that the body of any particular person is in a detestable condition.

All of these acts are considered to harm the reputation of the person and comes under the offense of criminal defamation.