Is unintentional defamation a lesser offence?

BY V S Hariharan| IN Law and Policy | 20/11/2011

Justice Sawant's defamation suit against Times Now has shaken up the media and reactions opposing the punitive court order have been an inevitable corollary.

V S HARIHARAN asks if defamation without intent warrants the same treatment as that with malice. Pix: Justice Sawant, from intoday.in

The Supreme Court on November 14 declined to stay the Mumbai High Court order directing Times Now to deposit Rs 20 cr and furnishing a bank guarantee for Rs 80 cr, in the defamation case filed against it by Justice Sawant, before appealing against the Pune Court order. The Editors Guild promptly voiced its concern that the law of defamation should not “constrain the normal functioning of the media”. The Foundation for Media Professionals expressed “deep distress.” Vishnu Som of NDTV, while discussing the enormity of the issue, wondered whether a “15 seconds mistake” warranted a Rs 100 cr penalty. Obviously everyone is concerned.

There are two issues involved in this case. Firstly, the Supreme Court has not gone into the merits of the Pune Court verdict. That is what Mumbai High Court will be doing. It has simply reiterated the High Court’s decision that if Times Now wanted to appeal, it has to deposit part of the money. This is a normal procedure and it acts as a deterrent against frivolous appeals against the decisions of lower courts. So the ire of media forums should not be directed against this order but the original order of the Pune Court. Arun Jaitely, in an article in Hindustan Times has wondered how a former Supreme Court judge was entitled to Rs 100 crore in compensation while ordinary citizens do not get even a fraction of that.

Now the second and somewhat complicated issue. According to a report in the Times of India Arnab Goswami regretted the “inadvertent error of running his (former Justice Sawant’s) picture instead of another judge”. As soon as Justice Sawant issued a defamation notice in 2008, Times Now had admitted the mistake and apologized for a few days. These considerations obviously did not weigh with the Pune Court and by awarding Rs. 100 cr as damages the court has treated it as a serious offence.

This raises a critical question: Is unintentional defamation a lesser offence? In India defamation is a criminal offence. According to Section 499 of the Indian Penal Code only those words or signs or visible representations made by a person “intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation” of another constitute defamation. In other words IPC makes a clear distinction between intentional and unintentional defamation.

But Justice Sawant has not pursued the criminal line. In civil law, defamation is treated as a tort. To make it a tort, it is enough if the imputation is defamatory, is directed against the plaintiff and is publicized. Malicious intent is not an essential ingredient. In UK, for example presence or absence of malicious intent was not a relevant factor in defamation cases till 1952. Thereafter the law was amended and further refined in 1996 to provide a preferential treatment in cases of unintentional defamation viz. the defamer can apologize to the aggrieved person. If the apology is accepted, the aggrieved person may drop the defamation proceedings. In any case an apology serves to mitigate the culpability of the defamer.

Another story which grabbed the headlines a few days back was the ITC’s decision to sue Suhel Seth for Rs 200 crore for defamatory tweets. Both are big ticket cases and both seek exemplary damages. But that is where the parallels end. ITC has alleged malice on the part of Seth and state that he was handling ITC’s account till 2007 and after losing the account he was badmouthing the company.

While in one of the tweets Seth made a sarcastic reference to Y C Deveshwar’s appointment as “Chairman ETERNUS”, in the other he said ‘Yogi Devesh will teach the insider trading course at Tihar School of Business.’ On his part Seth claims that his twitter account has been hacked and some of the tweets are not his. He has also removed some of his comments on Deveshwar. The fact malice has been alleged distinguishes this case from Times Now’s case.

Further ITC is a commercial organization. Defamation, even if unintentional may affect its business adversely. A simple apology may not adequately compensate the aggrieved party. In such a case seeking damages may be justified. When it is a case of tarnishing the reputation of an individual, would not an unconditional apology, rather than monetary compensation be a more appropriate and graceful solution?