“It takes many good deeds to build a good reputation, and only one bad one to lose it”.
– Benjamin Franklin
As Aristotle has rightly proclaimed 2300 years ago, “Man is a social animal”, it means that man cannot live without the society and people and what defines man in society is the ‘reputation’ he carries. After life, what a human considers to be very essential to live is the reputation. Human strives for entire life to make or shape his/her own reputation. This blog specifically focuses on the topic of defamation and further defines the difference between civil and criminal defamation. Defamation, in general augmentation means, to disrepute any person by falsely publishing or proclaiming something about him/her. The main aim of defamation remains to diminish the reputation of any person. The meaning of the said concept can easily be figured out through the name itself. When the fame is diminished or distorted.
The origins of defamation can be traced back into the Roman, English and German law, approximately 1000 years ago as when in Roman law, ‘abusive citation or chant’ was enough to constitute the offence of defamation and in roman law it was punishable capitally. Inclusion of law of defamation in India was occurred when Lord Macaulay drafted Indian Penal Code and defamation was included in the list of laws prevailing in India. Even though India has seen the insertion of this law since more than 150 years now, still there have been opinions which stated that the law of defamation has not been evolved or discussed than it should be. As a theory or law in practical, defamation stands as one of the most important laws in Indian law system. Defamation is one among such rare laws which has its roots in civil and in criminal law. Many a times, it creates perplexities in mind of people while deciding the nature (Civil or Criminal) of defamation. There, according to me, arises the need to elaborate or throw light on the peculiarities of the difference between civil and criminal defamation. When any content which is defamatory in nature, if it is in written form then it is called as defamation by ‘libel’ and when the defamation is expressed through spoken words then it is called as ‘slander’. The detailed discussion on difference between libel and slander was discussed in Bryson vs. New America Publication, Inc.
ESSENTIALS OF DEFAMATION.
- Presence of Defamatory Content.
- Claimant must be identifiable.
- Publication of the defamatory statement.
1. Presence of Defamatory Content:
If the aggrieved party wants to bring an action of defamation against any individual or group then he/she has to prove that there is existence or presence of such content or material which is capable enough to disrepute any person. This forms the very basic element of defamation. Presence of defamatory sentences or statements is the pre-required and a most important thing. In Ram Jethmalani vs. Subramanyam Swamy, court held that Mr. Swamy’s statement contained defamatory statements regarding Jethmalani as Swamy had alleged Jethmalani of receiving cash from an association which was prohibited and the intend behind giving this cash was to ensure about the CM of Tamil Nadu after death of Rajiv Gandhi.
2. Claimant must be identifiable:
The another most important element to initiate a suit is that the one who has made defamatory statements must be identifiable. The defamatory statements which have been made must be addressed to a specific individual or a group. For e.g. “All actors in the industry are drug addicts”. This statement is much vague and cannot be classified as a defamatory statement towards any entity, particularly. In India, this specific reference of a defamatory statement to anyone was held in T.V. Ramsubha Iyer vs. A.M.A Mohindeen.
3. Publication of the defamatory statement:
Publication is the most important element to constitute the tort or offence of defamation. When any defamatory statement regarding any individual is published to the third party and comes to the knowledge of third party, then only it is eligible to be labelled as ‘defamation’. In short, publication of such defamatory content is mandatory. In Mahender Ram vs. Harnandan Prasad, the respondent had posted a letter written in Urdu, even after knowing that to whom the receiving person does not understand the Urdu and would take assistance of some another person. What was written in the letter about the appellant was read by the person reading that letter for him. This case amounts to publication of such statements.
DEFAMATION IN CIVIL LAW
Defamation in civil law comes under the ambit of law of torts. Civil Defamation particularly focuses on the defamation that has been caused by libel only. It does not consider the defamation by slander. Hence, any defamation which is caused due to publication of false elements in written or printed format will only be considered in the defamation as a tort or civil defamation.
The other interesting fact about the civil defamation is, it considers defamation as a tort which has been caused to any individual who is alive only. It means that under the civil law, defamation can only be done to the person who is alive and not dead (Raju vs. Chacko). According to it, no deceased person can be defamed. While studying civil defamation, this aspect plays an important role. The one who wants to bring an action of defamation against any individual under civil law, has to prove some factors. They are as follows:
- False: One has to prove that the defamatory content published in written form is false. Falsity of the content is the major thing which has to be proved.
- Written: One has to prove that the content published is in written format.
- Defamatory: The most essential ingredient remains the defamatory nature of the content. The content should be defamatory in nature.
- Published: There must be publication of the content. Without publication of such content, no civil suit can be initiated.
As a civil defamation is governed by civil law, the aggrieved party can bring a suit against the party who has caused the defamation in trial or High Courts of concerned jurisdiction. Redressal of the damage caused by defamation can be in the form of monetary compensation as no punishment can be awarded to the party due to civil law.
DEFAMATION IN CRIMINAL LAW
Defamation, as in criminal law, is codified under section 499 of Indian Penal Code, 1860. It is about stating anything which is negative in nature and can damage the reputation of any person or group which is false in reality. In this law, foundationally, intention is considered that whether the person making such statements had the intention to defame or disrepute other individual. There is no such specification provided for criminal defamation under criminal law like civil defamation particularly requires libellous defamation. This can be in written, spoken, printed or in any format. It may include all platforms of social media also. The party aggrieved may be an individual, a group or any organization.
Criminal defamation being governed by criminal law, awards punishment to the accused who has caused the defamation. Provision of Punishment for defamation is given under section 500 of Indian Penal Code. Punishment consists of imprisonment which may extend to 2 years or fine or both.
GENERAL DEFENCES TO DEFAMATION
Truth: Truth is the very basic defence available for defamation. If the statement or content in the statement is truth, then it does not amount to the offence or tort of defamation. As ‘false content’ remains the very basic element of defamation. In this defence, intention of the person making the statements would not be considered.
Bona-fide Comment: If the statement made was in good-faith then it will not be constituted as defamation. If it is in the interest of public or society at large then such statement or content will not be termed as defamation.
Consent: Consent is one of the major defences for the defamation. If the statement is made with the permission or consent of the person to whom it is addressed then it would not be called as defamation. In simple language, if any person utters any statement regarding any individual then wouldn’t be termed as defamatory if it is made by seeking the permission of the concerned individual.
Both Civil and Criminal defamation have their roots in totally different branches of law, civil defamation being coming under the ambit tort and criminal bring mentioned in Section 499 of IPC. When anyone proceeds on bringing civil action of defamation then that person expects monetary compensation to be paid and the matter of defamation remains only libellous in nature whereas criminal defamation goes on putting person in jail with paying fine. Applicability of both the forms of defamation stand distinct in respective laws and conditions.
Author’s Name: Ninad Senad (D.E.S Shri Navalmal Firodia Law College, Pune)