All you need to know about Defamation Laws in India

Freedom of speech and expression is a right that is guaranteed by the Constitution of India to every Indian citizen. This fundamental right under Article 19(1) of the Constitution grants us the freedom to express our views and opinions to other persons.

This fundamental right, just like all others cannot be arbitrary and are hence subject to some restrictions that are mentioned under Article 19(2) of the Constitution. Such restrictions are made in certain cases where the statements made are detrimental to the country or are defamatory in nature. To ensure that false statements to destroy the reputation of others are not made, defamation laws were introduced.

What do you mean by Defamation?

Defamation is the act of injuring another person's character, reputation, or fame by publishing false or malicious statements. In India, defamation is both a civil wrong as well as a criminal wrong. In other words, a person can either be sued for compensation by the person defamed or he/she can be criminally prosecuted for such acts. Generally, defamation requires that there is a false publication regarding the person without his/her consent. It is to be noted that mere injury to one's feelings cannot amount to defamation there must be a loss of reputation due to the false statements.

Consult: Top Criminal Lawyers in India

What are the Types of Defamation?

There are two types of recognized defamation. These are Libel and Slander:

• Libel- It refers to defaming a person by representing the statements in permanent forms. For example, writing, printing in the newspaper, publishing of defamatory photos, etc.

• Slander- It refers to defamation through spoken words or gestures. It also includes sign language and inarticulate forms of expression such as booing, winking, or any other way of injuring reputation.

The difference between libel and slander is that a slanderous statement can be made in any medium. It could be in a blog comment or spoken in a speech or said on television. Libelous acts occur when a statement is made in writing (digital statements count as writing). Slanderous statements are only made orally. However, it is necessary that in both cases, the defamatory words are heard/seen by a third party, i.e. a person other than the one defaming or being defamed. Libel is also actionable per se without any proof of special damage as it is in writing and can be produced in evidence but in a case of slander is actionable only when the aggrieved can provide proof of special damage. This special damage is material damage that can be evaluated in monetary terms.

Consult: Top Criminal Lawyers in India

Defamation under the Indian Laws

There are three main essentials needed to constitute defamation : -

• Published Statement- A defamatory statement needs to be published. Defamation is the publication of a statement that causes a loss of reputation or character. Publication, here, means that such defamatory statements must be communicated to a third person and more.

• The statement must refer to another person- A defamatory statement must refer to the other person. Even if the person does not have an intention to defame, he/she can be liable for his/her statements if they are defaming another individual. A statement that is not referred to anyone cannot be defamatory.

• Such statement must be defamatory- The statement made by a person must be defamatory in nature, that is, there must be a loss of reputation in front of a third party. Any statement cannot be termed defamatory. It's the court that decides in every case whether a statement can be held defamatory or not. The Indian laws further say that defamation can also include any statement made against a deceased person if such a statement is intended to be hurtful to their family or reputation. Any statements made against companies or any association of persons can also be held defamatory.

What are the Remedies and Punishments for Defamation

A defamation claim can be filed in both civil courts as well as criminal courts.

If it is a civil offense, the remedy is under Tort Law and the aggrieved person can file a civil suit in the appropriate High Court or District Court and claim compensation (monetary claim) for damages caused to his reputation due to the defamatory statement.

Both libel and slander are considered to be criminal offenses in India under the Indian Penal Code ( Section 499 and Section 500 ) and one can file a criminal case against the accused.

In criminal cases, the punishment prescribed includes maximum imprisonment for up to two years or a fine, or both. The offense is bailable, non-cognizable, and compoundable in nature.

Consult: Top Criminal Lawyers in India

Upon whom does the burden to prove Defamation lie?

If the Plaintiff (aggrieved) has filed the case, the liability to prove that the statement/action of the accused was of defamatory nature or holds a defamatory remark lies on the plaintiff himself. It is to be proved by the aggrieved who has filed the matter that the statement referred to him/her.

What are your Defences if a Defamation Charge is brought against you?

If you are accused of defamation in a defamation suit, there are certain defenses you can exercise in front of the judge-

• Justification by truth- Defamation requires that a false statement is made by the person. A statement made by anyone that is truthful does not amount to defamation. A statement cannot be held defamatory if it indicates the truth.

• Fair Comment- A fair and bona fide comment is a defense against criminal defamation. A fair comment is a comment that is made without any malicious intention and made in good faith for the interest of the public. For this defense to be used, your statement must be treated as your opinion and not as a statement asserting facts.

• Privilege- Privileges are provided to certain members to communicate freely without any restrictions. These privileges are provided in certain circumstances only where the opinions are required to be communicated freely. They are further of two types:

1. Absolute Privilege- It refers to a privilege where no action lies even for a malicious or false statement. It is applied in court proceedings, parliamentary proceedings, and state communications.

2. Qualified Privilege- Privilege is granted in certain cases where the person has a legal or moral duty to make a comment which can be perceived as defamatory. For example, statements made in proceedings of regulatory bodies like NCLT and governmental bodies or criticisms made by press members in a conference, etc. Such statements, however, must be made without any malicious intentions.

   Consult: Top Criminal Lawyers in India

How to file a Defamation Case?

Defamation in India falls under both Civil and Criminal Law. Depending upon the facts and circumstances of each case, a lawyer would recommend whether to file a civil case or a criminal case or file for both civil and criminal remedies. A general procedure to file a Defamation Case has been stated below:

1. Legal Notice: A legal notice by the victim is sent to the person who has allegedly defamed. A legal notice consists of all the facts leading up to the case and the cause of action(s) due to which you are aggrieved. It also consists of a call to action and if not complied with, a statement that the aggrieved will take appropriate legal action whether civil or criminal. If the receiver of the legal notice does not comply with the legal notice, you can move ahead and file a complaint in the appropriate court(s).

2. Filing of the Complaint: As per the recommendations of the lawyer, a civil criminal or both cases would be filed. For a civil case, a petition is filed in the civil court having appropriate jurisdiction under Order 7 Rule 1 of the Civil Procedure Code. If it is a criminal case, it would fall under Sections 499 and 500 of the Indian Penal Code. A lawyer would file a criminal complaint under Section 200 of the Criminal Procedure Code, 1973.

3. Service of Notice: If on the first day of the hearing, the court thinks that there is merit in the case, it will issue a notice to the opposite party, calling upon him to submit their arguments on a date fixed by the court. Once a lawsuit is filed, the defendant gets served.

4. Discovery: This is when both the parties will exchange documents and responses filed by them in court and learn about the strengths and weaknesses of the other side's case.

5. Presentation of Witnesses: If there are witnesses from either side, they are presented and cross-examined or interviewed.

6. Final Hearings: The final arguments are made by either party after the witnesses are examined and additional documents or evidence are placed before the Court.

7. Decision of the Court: After hearing the parties' lawyers, the Court gives its decision. Whether the accused is guilty or not and if he/she is, then what will be the punishment (compensation, imprisonment, fine, damages, etc.

Why do you need a lawyer in such matters?

If you are charged under defamation laws, it is advisable to approach a lawyer . As defamation is also considered a criminal wrong in India, if convicted by the court in such cases, the person can even face jail time. A lawyer can represent you in court and provide defenses for any such charges. If you are defamed by any other person, you can approach a lawyer who will file a defamation claim on your behalf and will represent you in court. You can also ask a lawyer online a free legal question using LawRato's Ask a Free Question service.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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