Source: begers & co lawyers
“Your reputation is your brand. It is one of the most valuable assets. It takes a thousand good deeds to build a good reputation, and only one bad moment to lose it.”- Benjamin Franklin
Defamation refers to any statement, either oral or written, made by a person involving injury of one’s reputation caused by a malicious statement of fact. If the defamatory statement is written and published via any medium, then it is “libel” and if such a statement is spoken, then it is a “slander”. However, truthful statements cannot create liability for defamation even if they harm a person’s reputation.
History of defamation can be traced back to the Roman and German law where abusive chants were subjected to capital punishments in Roman. Insult to a person’s reputation was punished by cutting out the tongue of the offender in early English and German cultures. In the late 18th century, in England, imputation of crime or social disorder or attacking the integrity of an individual’s professional competence added up to slander. The enactment of Slander of Women Act also included accusation of unchastity unlawful. If looked at the French defamation laws, they were far more severe. Both in France and Italy any libellous information in newspaper was harshly punishable criminally and seldom only truth was allowed as a defence or excuse when the publication related to public persons.
DEFEMATION LAW IN INDIA
In India, defamation is treated as an offence under civil as well as the criminal law. In civil law, defamation is punishable under the Law of Torts by imposing damages on the offender which are to be awarded to the claimant. Under the Criminal law, defamation is considered as non-heinous, bailable, non-cognizable offence and compoundable offence. Therefore, according to the Indian Penal Code, the offender in cases of defamation attracts only a punishment of simple imprisonment up to two years, or with fine, or both.
DEFEMATION Vs. FREEDOM OF SPEECH
Article 19 of the Constitution guarantees various freedoms to its citizens of India. However, Article 19(2) imposes reasonable restriction to freedom of speech and expression promised under Article 19(1)(a). The question now arises is whether liability created by defamation is a violation of the right to freedom of speech and expression? The right to reputation comes in the ambit of Article 21 which grants its citizens the right to life and liberty.
In the case of Subramanian Swamy v. Union of India (1), a petition regarding the decriminalization of defamation was filed challenging constitutional validity of Section 499 and 500 of the Indian Penal Code, 1860 places an unreasonable restriction on the freedom of speech and expression. The Supreme Court held that criminal defamation under Section 499 and 500 did not violate the article in question. The word ‘defamation’ in includes both civil and criminal defamation.
In Shreya Singhal v. Union of India (2), the petitioners challenged the validity of Section 66A of the Information Technology Act submitting that it was not a reasonable restriction on the freedom of speech and expression guaranteed under Art. 19(1)(a) of the Constitution as it provided protection against annoyance, inconvenience, insult, injury, or criminal intimidation which is not covered in Art. 19(2). The court opined that section 66A of (ITA) was vague and thus, invalidated it on the ground of being violative of the right to freedom of speech and expression.
ELEMENTS OF DEFEMATION
In general, a person who brings a suit of defamation must prove the following:
The Statement made- A statement can be made by words either spoken or written, or by signs, expressions or visible representations.
The Statement is about the plaintiff- The defamatory statement must refer to the person, class of people or the trustees of a company either expressly or impliedly.
The Statement must harm the reputation- The statement must result in Defamation which tends to diminish the good opinion that others hold about the person and make everyone look upon him with a feeling of hatred, ridicule, fear or dislike.
False statement: A defamatory statement should be false because. The person making the such statement does it intentionally that there are high chances of people believing the statement to be true and it will tarnish the reputation of the person defamed.
The Statement must be published- For creating liability of defamation, the statement should be published. It can be communicated to a third party or written in a personal diary which is likely to be read by the concerned person.
TRUTH AS DEFENCE OF DEFEMATION
Among the five elements required for someone to successfully sue a person for defamation is the requirement that the statement be false. If the statement is true, there is no liability and the person cannot claim any damages.
In court proceedings, where the statements are alleged to be defamatory in nature are defended as ‘statements of fact’. An important question which now pops up is, ‘whether the statement published was substantially true or not?’. However, the answer to this question is not as clear as seems to one. When determining ‘truth’ the court is not necessarily concerned with the statement, but with the ‘imputation’ or ‘insinuation’ that such a statement makes.
For instance, a statement that Rahul makes in an interview about Ravi indulging in gambling and Ravi files a suit against him. If Rahul is able to justify or prove it, then Ravi’s claim will be dismissed. In Radheshyam Tiwari v. Eknath (3), the defendant could not prove the facts published by him and therefore was charged for defamation. What we gather is that justification by truth is an absolute defence. However, if the statement made is authentic then it would not constitute defamation. The burden of proof is on the defendant who is claiming the defence.
According to common law principles, the burden of proof relative to the truth or falsity of a statement is upon the defendant. Truth is considered as an absolute defence, but there are several considerations in determining the truth or falsity of a statement like:
A statement does not have to be truthful in terms of every detail. A few inaccuracies still can help point to a statement that is true in its core substance. It also is imperative to note that while reasonable doubt may arise before a jury, but simple implication or a preponderance of the evidence is sufficient when determining whether a person has been defamed.
If a statement alleges a particular behaviour or a specific crime that was committed by the petitioner, the statement is considered as true and no liability is created. However, if the accusation is general, wording and implication becomes significant in determining truth.
A statement is not considered truthful just because someone said it. While it may be true that the statement was made by another, if the content of that statement is false, the person reiterating shall also be liable, along with the original publisher.
PLEADING THE TRUTH
In earlier times, in the cases of defamation, the defence of truth was strictly construed against the defendant. In the plea of justification (truth) the plaintiff was required to allege that the statements complained of were true in every sense. The plaint must justify the very words contained in the declaration, which appear actionable. In an action charging the plaintiff with adultery with one man, an answer that the woman had committed adultery with another man is bad. However, it is not sufficient to plead and prove the plaintiff guilty of a similar offense or even of one more blatant.
Reputation is an asset of an individual. Any damage to such asset has a legal remedy. The defamation law is also constitutional and places a reasonable restriction on the right to free speech and expression. Defamation laws have been enacted to prevent a person from overriding the right to freedom of speech and expression granted to them.
An intentional act of defamation is also punished with imprisonment which prohibits defaming a person with malicious intentions. However, it is no defamation if the acts done fall within the exceptions provided. Over the decades, there are has been numerous cases of defamation and the court has dealt with and interpreted each and every case with due care and diligence.
 Writ Petition(s)(Criminal)No(s).69/2015
 WRIT PETITION (CRIMINAL) NO.167 OF 2012
 AIR 1985 Bom 285
‘Truth as defence’ https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=2023&context=cklawreview accessed on 10th February,2021; 6:45 pm
‘Elements of defamation’ https://blog.ipleaders.in/law-of-defamation-in-india/ accessed on 11th February,2021; 2:10 pm
‘Defamation law in India’ http://www.legalserviceindia.com/legal/article-2224-defamation-law-in-india.html accessed on 11th February,2021; 2:57 pm