Know The Differences Between Civil Defamation And Criminal Defamation

Next to life, a person cares most is their reputation in society. Reputation is a socially constructed status or a position that helps defining a person living in a society. In a celebrated work of Introduction to the Law of Torts and Consumer Protection, Avatar Singh states that every person has a right to have his reputation preserved inviolately. This right of reputation is acknowledged as an inherent personal right of every person.[1] Therefore, it can be said that a man’s reputation is his most valuable property.

Concept and History

Defamation, in law, attacking another’s reputation by a false publication (communication to a third party) tending to bring the person into disrepute.[2] However, in a simpler form, it means an oral (Slander) or written (Libel) false statement made about anyone that harms or injures his reputation or status in society.

Although defamation has evolved from English law, however similar doctrines related to defamation have also existed a few thousand years back. In Roman law, early English, and Germanic law, doctrines revealed that persons making defamatory statements got severely punished by removing their tongue. As late as the 18th in England, imputation of crime or social disease and casting aspersions on professional competence constituted slander, and no offenses were added until the Slander of Women Act in 1891, which made an imputation of unchastity illicit.

French slander laws truly have been more serious. An Act of 1881, which introduced Modern French Defamation Law, required withdrawal of defamatory material in papers and permitted truth as a defense to the accused only when libelous publication concerned well-known individuals. Modern German defamation is similar but permits the truth as a valid defense to the accused. In Italy, truth only occasionally pardons defamation, which is criminally punishable there.[3]

Evolution of Defamation from English Law

In England, the Defamation Acts of 1952 and 1996 are the most important statutes that lays down the laws related to Defamation. Mainly because of Historical reasons, English Law divides actions of defamation into – Libel (publication of a defamatory statement in a transient form, for example- spoken words or gestures) and Slander (representation made in some permanent form, for example- writing, printing or statute).

Under English law, the distinction between libel and slander is material for two reasons –

1) Under criminal law, only libel has been recognized as an offence. Slander is no offence.

2) Under the law of torts, slander is actionable, save in exceptional cases, only on the proof of special damage.

The following four are the exceptional cases where slander is actionable per se-

1) Imputation of criminal offence to plaintiff

2) Imputation of a contagious or an infectious disease to plaintiff (which has the effect of preventing other from associated with the plaintiff)

3) Imputation that a person is incompetent, dishonest or unfit in regard to the office or profession, calling, trade or business carried on by him,

4) Imputation of unchastity or adultery to any women or girl is actionable per se.[4]

With the advent of electronic media, and development of wireless communication technology, the Defamation statute in England also evolved. In the case of Youssoupoff v. M.G.M Pictures Ltd.[5], where the film portrayed a lady, Princess Natasha, having relations of seduction or rape with the man Rasputin, a man of the worst possible character, Slesser L.J. observed that there can be no doubt that, so far as the photographic part of the exhibition is concerned, that is a permanent matter to be seen by the eye, and is the proper subject of an action for libel, if defamatory.[6] Another test which was evolved to distinguish libel and slander is the adoption of the principle “Libel is addressed to the eye, slander to the ear”[7].

Adoption of defamation statute in India

Unlike English Criminal Law, Criminal law in India does not make any distinction between Libel and Slander. Both are criminal offenses under Section 499 of the Indian Penal Code. However, there has been a controversy over whether Slander, like Libel, is actionable per se in India. However, India adopted a different approach by making Slander and Libel both actionable per se. in Parvathi v. Mannar[8], it was held by Turner C.J. and Muthuswami Ayyar, J. that English Law which, except in certain cases, requires the proof of special damage in case of oral defamation, being founded on no reasonable basis, should not be adopted by the courts of British India[9]. Therefore, after an offense of defamation is committed against the plaintiff, it is upon the plaintiff whether to sue the defendant either under the provisions of civil law (if the plaintiff seeks monetary compensation as an adequate relief) or under IPC provisions (if plaintiff suffers a grave injury to his reputation in society).

Defamation under Tort

Under law of torts, defamation is a concept in which has a tendency to injure the reputation of a person and lowers him in the estimation of right-thinking members of the society. In order to constitute an offense of defamation, following conditions are to be satisfied-

  1. The statement must be defamatory.
  2. The statement must be false.
  3. The defamatory statement must refer to the plaintiff.
  4. The statement must be published.

Defamation under the law of tort is just a wrong if the defamatory statement is of a nature that hurts the reputation of an individual who is alive. In most cases, this means saying that it is senseless to consider the dead person being defamed. However, this does not mean that a defamation suit cannot be instituted and maintained against the defendant if a dead person is defamed. Further, if the suit of defamation is instituted against the defendant, and courts did find the accused guilty of defamation, damages will be payable to the plaintiff. 

However, in a civil action for defamation, certain defenses have also been evolved and are provided to the accused so as to prove his intentions behind his guilty act. The defenses are as follows-

  1. Justification or Truth
  2. Fair comment
  3. Absolute and Qualified privilege

Defamation under IPC

The definition of the concept ‘Criminal Defamation’ can be easily found in section 499 of Indian Penal Code, 1860. The punishment for the same is mentioned in sections 500, of the Indian Penal Code, 1860 for general Criminal Defamation, Printed Defamation and the Sale of the Printed Defamatory Matter respectively. 

According to Section 499, 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 excepted, to defame that person

First Exception. —Imputation of truth which public good requires to be made or published. —It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

Second Exception. —Public conduct of public servants. —It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further

Third Exception. —Conduct of any person touching any public question. —It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further

Fourth Exception. —Publication of reports of proceedings of courts. —It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.

Fifth Exception. —Merits of case decided in Court or conduct of witnesses and others concerned. —It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.

Sixth Exception. —Merits of public performance. —It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.

Explanation. —A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.

Seventh Exception. —Censure passed in good faith by person having lawful authority over another. —It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.

Eighth Exception. —Accusation preferred in good faith to authorised person. —It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.

Ninth Exception. —Imputation made in good faith by person for protection of his or other’s interests. —It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.

Tenth Exception. —Caution intended for good of person to whom conveyed or for public good. —It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.[10]

Section 500. Punishment for defamation. –Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.[11]

According to section 499 of Indian Penal Code, 1860, the offense is said to have been committed against the plaintiff, if the defendant fulfils the 3 essential ingredients of the section that is-

  1. Making or Publishing any imputation concerning particular person.
  2. The imputation must have been made either by-
  3. By words (either spoken or intended to be read), or
  4. signs, or
  5. visible representations. 
  6. Imputation must have been made with the intention of harming or with knowledge or having reason to believe that it will harm the reputation of the plaintiff.

Section 499 of IPC is subject to ten exceptions. If an individual has been found guilty of committing defamation under section 499 of the IPC, Section 500 penalizes the offender by awarding him simple imprisonment for up to two years or fine or with both. The offense under this section is non-cognizable, bailable, compoundable with the permission of the court, and triable in the case of a public servant by Court of Session. in other cases, it is compoundable and triable by First Class Magistrate. The limitation period for filing the action is three years from the date of offense[12]. 

Difference between these Landmark Cases

  1. Subramanian Swamy v. Union of India, Ministry of Law and Ors.[13]

In 2014, Dr. Subramanian Swamy made corruption charges against Ms. Jayalathitha. Accordingly, Tamil Nadu State Government filed defamation cases against Dr. Swamy.

Dr. Swamy and other government officials challenged the constitutionality of the criminal defamation law in India. (Sections 499 and 500 of the Indian Penal Code).[14]

Issues before the court

  1. The section 499 and 500 of Indian Penal Code is an excessive restriction on the freedom of speech enshrined under Article 19(2) of the Constitution of India.
  2. Whether the Sections 499 and 500 of IPC are vaguely phrased and hence arbitrary.

Held

The Supreme Court held that section 499 of IPC does not come in conflict with the freedom of speech and expression as enshrined in Article 19(1)(a) of the constitution.

It was held that reputation is an inextricable aspect of the right to life under Article 21 of the constitution of India and the state in order to sustain and protect the said reputation of an individual has kept the provision under Section 499 IPC alive as a part of law.[15]

  • Ram Jethmalani v. Subramanian Swamy[16]

Under this case law, Commission of Enquiry was examining the facts and circumstances relating to the assassination of late Shri Rajiv Gandhi, the defendant, at a press conference, alleged that then Chief Minister of Tamil Nadu had prior information that LTTE Cadre would make an assassination bid on the life of Late Shri Rajiv Gandhi.

The plaintiff was engaged as a senior counsel to represent the then Chief Minister of Tamil Nadu. In Discharge of his professional duties, the plaintiff cross- examined the defendant.

During the proceeding, the defendant in the written conclusive submission, alleged that the plaintiff had been receiving money from LTTE, a banned organization. The statement made by the defendant was held to be ex facie defamatory.

It was held to be a case of exceeding the privilege and that by itself was held to be evidence of malice. The statement made by the defendant against the plaintiff was held to be quite unconnected with and irrelevant to the situation, actual malice on the part of the defendant was well established.

Held-

The plaintiff was awarded damages of rupees 5lacs.[17]

Conclusion

It has been observed by Supreme Court in the case of Shreya Singhal v. Union of India, 2015 that right to one’s reputation is a facet of right to life and article 21 of the constitution. Therefore, as there is a constitutional freedom of speech and expression so there is a law of defamation which curtails restricts and regulates the uncharted Liberty of speech and expression claimed by men.[18]

Disclaimer: The views expressed are personal.

By

Eshaan Goel

2nd Year

Amity Law School, Noida


[1]Avatar Singh and Harpreet Kaur, Introduction To The Law of TORTS AND Consumer Protection 109 (Lexis Nexis, Haryana, 3rd edn., 2001).

[2]Defamation Law, available at: https://www.britannica.com/topic/defamation. ( last visited on Jan. 30, 2021).

[3]Ibid.

[4]Dr. R.K Bangia, Law of TORTS, 150 (Allahabad Law Agency, Lucknow, 24th edn., 2017).  

[5](1934) 5 TLR 581.

[6]Supra note 4 at 2.  

[7]Ibid  

[8](1884) I.L.R. 8 Mad. 175.

[9]Supra note 4 at 2.

[10]Indian Penal Code, 1860 (Act 45 of 1860), s. 499.

[11]Indian Penal Code, 1860 (Act 45 of 1860), s. 500.  

[12]K.A. Pandey, Indian Penal Code (EBC Publishing (P) Ltd., Lalbagh, Lucknow, 4th edn. 2017).

[13](2016) 7 SCC 221.

[14]Supreme Court Observer, available at: https://www.scobserver.in/court-case/defamation-as-a-criminal-offence. ( last visited on Jan. 30, 2021). 

[15]Supra note 12 at 6.  

[16] AIR 2006 Delhi 300.

[17]Supra note 4 at 2.

[18]Supra note 12 at 6.

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