Criminal Defamation

IN Press Laws Guide | 17/09/2012

1.Who can sue me for defamation?

Answer: Section 499 of the IPC provides that any person whose reputation has been damaged (or was intended to be damaged) by the material in question can sue for defamation. ‘Any person’ refers to a single individual, an association or collection of persons or a company.
Reasoning: In both civil as well as criminal law, an imputation can refer to an individual, a collection of persons or a company. In the case of a class of persons, such class must be distinguishable from the community at large. For instance, it is unlikely that a suit against Aamir Khan for criminal defamation of ‘doctors’ would stand. This is because the legal assumption is that the class of doctors is too large and the generalisation too sweeping for it to actually affect any of its members. In case of a company, only imputations that bring to disrepute its manner of functioning can possibly be said to be defamed. The difference in civil and criminal law with respect to imputation to a deceased person has already been discussed in Question 2 in civil defamation.
Effect: The ambit of who can sue in a case of defamation is very wide. Such an expansive right has been provided so that all cases of defamation are covered under it. Thus, defamation can be against any person, class of persons or a company subject to the above stated conditions.
2.      What needs to be proven for a successful case of defamation against me?
Answer: The ingredients for establishing a case of defamation are laid down in Section 499 of the IPC. For a defamation case to succeed it has to be proved that the statement referred to the defamed person. Secondly, it must be shown either you intended to cause harm to the reputation of the person or that you knew that the statement would harm or was likely to harm the reputation of the person.
Reasoning: If the person cannot establish that the publication referred to him then no case arises. Further, it is necessary to prove that the person either has intention to cause harm or has knowledge that harm will be caused to your reputation. Lack of intention does not necessarily negate liability if it can be proved that it was likely that harm will be caused to you. Here actual damage to reputation is not required. Mere chance of the reputation of the person being affected is enough for a case of defamation to arise. The definition of harm is dependent on the subjective interpretation of the Court in such cases.
Effect: This principle helps the defamed person in establishing a case for defamation. The aggrieved party does not have to wait for actual damage to be caused to his reputation. The likeliness of harm being caused to him is enough to sue for a case of defamation. Thus, a person before publishing statements has to be careful about the fact that even if he had no intention to cause harm, he can be held liable. Having reasons to believe that harm will be caused is enough for attributing liability to him.
3. Can I have defamed someone without intending to?
Answer: Yes, defamation can take place without intention. Although, intention is an important ingredient in the offence of criminal defamation a person can be held liable without intention in certain cases according to Section 499. Such situations are where you had knowledge or you had reasons to believe that harm will be caused to the reputation of the defamed person by the imputation.
Reasoning: Intention though is essential in Criminal defamation is not the only ingredient for proving liability. To cover the cases where you did not intend to cause any harm but you knew that the statements being published are likely to cause harm the above principle is there. This is again to provide a remedy to the defamed person where there was no intention but harm was caused or was likely to be caused.
Effect: See Question 2.
4. Is truth a complete defence against a charge of defamation?
Answer: No, truth by itself is not a complete defence against a criminal charge of defamation. Along with truth, it also needs to be established that the publication was in public interest or for the greater public good.
Reasoning: In civil defamation truth is a complete defence against the charge of defamation. However, under the IPC truth alone is not a complete defence. It has to be proved that along with the publication being based on truth that it was published in the interest of the public. If a true statement causes harm to a person without producing any advantage to public as a whole it could be termed defamatory. What constitutes public harm is again subject to interpretation of the Court and differs based on the facts and circumstances of the case.
Effect: Truth not being a complete defence, the offence of criminal defamation has often led to stringent punishment being imposed on the offender despite the statements being based on largely true facts. A journalist must consider the need and effect of any statement that could be construed as defamatory in particular where non-public figures are involved.
5. On whom is the burden of proof, for the charge of defamation?
Answer: The burden of proof lies on the person instituting the case for defamation. He has to prove that the published work defamed him in some manner.
Reasoning: The prosecution, as is the case in most offences, must prove that your work defamed him in some manner. However, the defence that you take (truth, fair criticism, etc.) must be proven by you against the prosecution’s case. Thus, initially the burden of proof lies on the prosecution to establish the ingredients of defamation. Subsequently, the onus of the proof shifts to the defendant to bring his case under any of the defences available.
6.      What is malice? Is malice essential for defamation?
Answer: Malice is the intentional commission of a wrongful act, absent justification, with the intent to cause
harm to others. The term does not necessarily imply personal hatred, a spiteful or malignant disposition or ill
feelings of any nature, but rather, it focuses on the mental state which is in reckless disregard of the law in
general and of the legal rights of others. Malice is essential for criminal defamation.
Reasoning: Malice is present if the acts were done in the knowledge that the statement is invalid and with
knowledge that it would cause or be likely to cause injury. Malice would also exist if the acts were done with
reckless indifference or deliberate blindness to that invalidity and that likely injury. Law punishes those who
are reckless in their act and by their recklessness cause harm or injury to another.
Effect: Malice is presumed to exist, in law, when there is intention to bring disrepute or knowledge that the
matter in question could bring disrepute to a person. Thus, to escape the charge of defamation one must show
that there was no malice on his part.
7. What can I do to ensure that my work establishes a lack of malice? Will establishing lack of malice negate the charge of defamation? If not, how does it help?
Answer: One should take all possible steps to ensure the veracity of your information. The statement should be such that the information can be verified and should be true. Only making fair, balanced assessments instead of pointed attacks would be the first things that would indicate a lack of malice. Further, the need for criticism based on the character of an individual must be very clearly weighed out in the public interest. While this may not per se negate a charge of defamation, it would help in establishing good faith, which is an essential ingredient of several of the exceptions to Sec. 499, and provide an escape route.
8. What is good faith? Why is it important in this context?
Answer: Sec.52 of the IPC defines good faith as an act that is done with ‘due care’ and ‘attention’. It denotes the degree of reasonableness or the care ought to be exercised. The enquiry must be of such depth as a reasonable and prudent man would make to know the truth. It is important here as the defences available under the Exceptions to charge of defamation under Section 499 of IPC are only available when there is good faith.
Reasoning: Good faith is important to prove for the person being prosecuted against. There is no set requirement as to determine whether an act is done in good faith or not. It is determined on the basis of the circumstances that you find yourself in at a given point of time.
The exceptions to Sec.499 highlight the various situations where criticism is warranted and charge of criminal defamation would not stand. Be it regarding the official conduct of public servants, issues of public importance, judicial proceedings, or publicly displayed art (performances, literature, etc.), the requirement is that any criticism be fair and be made in good faith. Thus it is imperative that due care be taken before the publication of any comment to ascertain its veracity.
Effect: Unless good faith is established by the person, he cannot take advantage of any of the exceptions under Section 499. Where malice is present, no defences are available.
9. What is the procedure that must be followed when there is a charge of criminal defamation against me?
Answer: Defamation is a non-cognizable, bailable, compoundable offence. Non cognizable implies that you cannot be arrested without a warrant on a charge of defamation. A bailable offence is one where there is a right to be granted bail, if need be.

Effect: In a compoundable offence, you can seek to settle the case by private arrangement under Sec.320 of the Code of Criminal Procedure. A defamation offence is compoundable by the defamed person. However, in certain cases, the permission of the court needs to be taken. These are the cases where Defamation is against the President or the Vice-President or the Governor of a State or the Administrator of a Union territory or a Minister in respect of his conduct in the discharge of his public when instituted upon a complaint made by the public prosecutor.

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