1.Every person has a right to have his reputation preserved inviolate. It is a jus in rem, a right good against all in the world.
2. Defamation in law, means attacking another person’s reputation by a false publication (communication to a third party), tending to bring the person into disrepute.
As per Merriam–Webster Dictionary, defamation means the act of communicating false statements about a person that injure the reputation of that person.
Black’s Law Dictionary records that defamation means offence of injuring a person’s character, fame, or reputation by false and malicious statements.
3. Section 499 of Penal Code, 1860 defines defamation as:
Defamation.—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, except in the cases hereinafter expected, to defame that person.
Explanation 1.— It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2.— It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3.— An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4.— No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.
4. Defamation is a public communication which tends to injure the reputation of another. What statements are defamatory and the span of defences varies from jurisdiction to jurisdiction but there is common agreement in all jurisdictions that statements that are unflattering, annoying, irksome, embarrassing or hurt one’s feelings are not actionable. Common element in all jurisdictions is the potential to injure the reputation. (Refer Ram Jethmalani Subramaniam Swamy.)
5. For any defamation action under special law of torts to be successful, the following essential elements are to be proved before the court:
(i) the statement is made by words, either spoken or intended to be read, or by signs or by visible representations;
(ii) the said statement must refer to the plaintiff;
(iii) the statement must be defamatory;
(iv) the person making the defamatory statement knows that there are high chances of other people believing the statement to be true and it will result in causing injury to the reputation of the person defamed;
(v) the statement should be false;
(vi) the statement should not be privileged;
(vii) the statement must be published;
(viii) the third party believes the defamatory matter to be true; and
(ix) the statement must cause injury.
6. However, there are certain exceptions to the general rule:
(i) If the statement made is truth, then it does not constitute defamation.
(ii) If it is a fair comment made in public interest.
The Delhi High Court in Sasikala Pushpa v. Facebook India, while dismissing the suit, held that if the people like the plaintiff meet someone behind closed doors, more particularly a person of rival political party, such matters are of public interest and the public at large has a right to know the true state of affairs, the same outweighing the private interest of the plaintiff of keeping the same hidden from public eyes. Therefore, such a public interest shall be an exception to make somebody liable for defamation and to seek injunction against him/them.
Defence of absolute and qualified privileges.— Absolute privilege gives the person an absolute right to make the statement even if it is defamatory, as the person is immune from liability arising out of defamation lawsuit. Generally, absolute privilege exempts defamatory statements made during judicial proceedings; by government officials; by legislators during debates in the parliament; during political speeches in parliamentary proceedings; and communication between spouses.
When a person making the statement has a legal, social or moral duty to make it and the listener has an interest in it, then the defence of qualified privilege is allowed. Generally, such a defence can be availed in case of reference for a job applicant; response to police enquiries; fair criticism of a published book or movie in review; communication between parents and teachers; communication between employers and employees; and communication between traders and credit agencies.
In Ram Jethmalani, the Delhi High Court while dwelling upon absolute and qualified privileges, in the context of defamation, observed as:
“67. Even the issue of absolute privilege has remained a subject-matter of considerable debate. Is absolute privilege absolute in the sense of being infinite? As late as 1998, in the decision reported as Waple v. Surrey County Council, it was held:
The absolute privilege which applies to statements made in the course of judicial or quasi-judicial proceedings and in the documents made in such proceedings, would only be entitled where it was strictly necessary to do so in order to protect those who were to participate in the proceedings from being sued themselves.
- The decision brings out that absolute privilege is not absolute in the context of being infinite. Even when the occasion is privileged one gets no licence to utter irrelevant and scandalous things unrelated to the proceedings. If what is stated is necessary or relevant to the proceedings, immunity would be absolute.
* * *
- Qualified privilege may be defeated and its protection destroyed by proof of express malice. But how is express malice to be established?”
(iv) If the statement made is an opinion and not a statement of fact, then the said statement cannot be termed as defamatory.
(v) If a person consents to a statement made, then there is no defamation.
(vi) Censure passed in good faith by the person having lawful authority.
(vii) Accusation made in good faith against a person who has lawful authority over that person is not defamation.
7. Under the law of defamation, the test of defamatory nature of a statement is its tendency to incite an adverse opinion or feeling of other persons towards the plaintiff. A statement is to be judged by the standard of ordinary, right thinking members of society at the relevant time. The words must have resulted in the plaintiff to be shunned or evaded or regarded with the feeling of hatred, contempt, ridicule, fear, dislike or disrespect or to convey an imputation to him or disparaging him or his office, profession, calling, trade or business.
8. Defamation can either be libel or slander. Libel is a publication of false and defamatory statement tending to injure the reputation of another person without lawful justification. For example, writing, printing, etc. On the other hand, slander is a false and defamatory statement by spoken words or gestures tending to injure the reputation of another.
9. Defamation traditionally requires the proof of publication of a matter intentionally and with malice. It is important to mention that any person who intentionally and maliciously publishes or distributes such defamatory statement, is also liable as if he has made the statement himself. However, if the defendant proves that the statement is true he will not be liable for such defamation. In India and most other common law countries, the burden of proof is on the defendant to show that the statement is true or the publication was not intentional.
10. The right to reputation, as per the judicial interpretation, is a dimension of the right of life and also comes in the ambit of Article 21 of the Constitution of India. In Subramanian Swamy Union of India, where defamation was sought to be decriminalised, challenging the constitutional validity of Sections 499 and 500 of the Penal Code, 1860 alleging them to be unreasonable restriction on the freedom of speech and expression, the Supreme Court held that criminal defamation under Sections 499 and 500 did not violate Article 19(1)(a) as it is a reasonable restriction under Article 19(2). The term “defamation” in Article 19(2) includes both civil and criminal defamation. Sections 499 and 500 IPC were held to be non-discriminatory and non-arbitrary and not violative of the right to equality guaranteed under Article 14 of the Constitution. While in a democracy, an individual has a right to criticise and dissent, but his right under Article 19(1)(a) is not absolute and he cannot defame another person as that would offend the victim’s fundamental right to reputation which is an integral part of Article 21 of the Constitution of India.
11. A nine-Judge Bench of the Supreme Court inS. Puttaswamy v. Union of India, has authoritatively elucidated the following important principles regarding right to privacy:
(i) the right of privacy is a fundamental right;
(ii) it is a right which protects the inner sphere of the individual from interference from both State and non-State actors and allows the individuals to make autonomous life choices;
(iii) technology has made it possible to enter a citizen’s house without knocking at his/her door and this is equally possible both by the State and non-State actors;
(iv) it is an individual’s choice as to who enters his house, how he lives and in what relationship;
(v) privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity;
(vi) if the individual permits someone to enter the house it does not mean that others can enter the house; the only check and balance is that it should not harm the other individual or affect his/her right;
(vii) the only permitted exception is where there is a countervailing public interest which in particular circumstances is strong enough to outweigh it;
(viii) the question to be asked is, was it necessary and proportionate for the intrusion to take place, for example, in order to expose illegal activity or to prevent the public from being significantly mislead by public claims made by the individual concern or what it necessary because the information would make a contribution to a debate of general interest; and
(ix) the court, in order to decide a case, must carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.
12. The internet has made it easier than ever before to spread a huge amount and variety of information worldwide. Social network websites (SNWs) are, at a grass root level, a medium for exchanging information between people. SNWs allow any person to write any statement, including the defamatory one, on their own or on a third party’s virtual profile. In this scenario, the question which arises is: who can be sued by the person against whom such defamatory statement has been made? Under the operative Indian Law, the person who made such statement as well as its distributor and publishers can be sued. Apart from the author of such statement, intermediaries such as SNWs concerned, the website holder, the internet service providers, as well as other users of such SNWs on whose profiles defamatory statements have been written by the author, can be sued in their capacity as publisher of defamatory statements and can be held liable for such statements. It is to be noted that such intermediaries or other users of SNWs may not be aware of such defamatory statements by the author on their own virtual profile.
13. Section 2(1)(w) of Information Technology Act, 2000 (ITA) defines “intermediary” as under:
“intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes.
14. Section 79 of ITA gives immunity to intermediary. According to clause (1) to the said section, an intermediary shall not be liable under the Act or Rules or Regulations made thereunder, for any third-party information or data made available by him, if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.
In Shreya Singhal v. Union of India, wherein Section 66-A of ITA was a subject-matter of challenge, inter alia, for providing protection against annoyance, inconvenience, insult, injury, or criminal intimidation, all not covered under Article 19(2) of the Constitution of India, the Supreme Court found the said impugned section of ITA to be vague, and invalidated it on the ground of being violative of the right to freedom of speech and expression. It further held that the liability of an intermediary under the ITA shall arise only where the intermediary upon receiving actual knowledge from a valid court order or otherwise that unlawful acts relatable to Article 19(2) of the Constitution of India are going to be committed, fails to expeditiously remove or disable access to such material.
†. Achal Gupta is an Advocate and a qualified Chartered Accountant, presently practising at Supreme Court and Delhi High Court. Author’s views are personal only.