All you need to know about Defamation Laws in India

हिंदी में पढ़ें
November 29, 2019
By Advocate Chikirsha Mohanty

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 for 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.

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What are the Types of Defamation?

There are two types of recognised 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 form of expressions 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.

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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 a defamatory statement.

  • 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 offence, 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 offences in India under the Indian Penal Code (Sections 499 and 500) and one can file criminal case against the accused.

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

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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 defences 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 defence against criminal defamation. 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 defence 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.

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 defences 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 the court.

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These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.

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