Criminal defamation

What is Defamation?

Defamation refers to the act of publication of defamatory content that lowers the reputation of an individual or an entity when observed through the perspective of an ordinary man. If defamation occurs in spoken words or gestures (or other such transitory form) then it is termed as slander and the same if in written or printed form is libel.
 
Criminal Defamation is legal : SC
The Supreme Court has upheld constitutional validity of penal laws on defamation as the right to life under Article 21 includes the right to reputation.
 
What was the case?
The petitioners had alleged that the provisions of criminal sanction act as a censoring device thus violate the freedom of speech guaranteed by the Constitution.
 
What are the current legal provisions?
Defamation in India is both a civil and a criminal offence.
  • In Civil Law, defamation falls under the Law of Torts, which imposes punishment in the form of damages awarded to the claimant (person filing the claim).
  • Under Criminal Law, Defamation is bailable, non-congnizable and compoundable offence. Therefore, the police cannot start investigation of defamation without a warrant from a magistrate (an FIR cannot be filed). The accused also has a right to seek bail. Further, the charges can be dropped if the victim and the accused enter into a compromise to that effect (even without the permission of the court)
  • Sections 499 (Define defamation) and 500 (Determines punishment) of the Indian Penal Code (IPC), 1860 make defamation a criminal offence.  In a criminal wrong a person can invite imprisonment up to two years as per section 500 of IPC, while in a civil wrong a person may be sued for monetary compensation.
 
What is the decision of SC?
Supreme Ruled that
  • Freedom of Right to speech and expression enshrined under Article 19 of Constitution does not confer any right to a person to trample the reputation of others.
  • Right to free speech is not absolute, so it does not mean freedom to hurt another’s reputation which is protected under Article 21 of the Constitution.
  • Defaming a person amounts to offence against society and the government is entitled to lodge a case against a person under criminal defamation law.
  • Magistrates across the country to observe extreme caution while issuing summons in private defamation complaints.
  • Henceforth the interim protection will continue and criminal proceedings will remain stayed before trial court.
 
Some Facts:
  • The United Kingdom abolished criminal defamation altogether
  • Constitutional Court of Zimbabwe struck it down as an unconstitutional restriction upon the freedom of speech
 
Why defamation should remain a criminal offence?
  • Defamation should remain a penal offence in India as the defamer may be too poor to compensate the victim in some cases.
  • Since there is no mechanism to censor the Internet from within, online defamation could only be adequately countered by retaining defamation as a criminal offence.
  • Also, criminalisation of defamation is part of the state’s “compelling interest” to protect the right to dignity and good reputation of its citizens.
  • Unlike in the U. S, defamation in India cannot be treated only as civil liability as there is always a possibility of the defamer being judgment free, i.e., not having the adequate financial capability to compensate the victim.
  • Besides, Sections 499 and 500, framed in 1860, cannot be said to obsolete in a modern democratic polity as there are 10 exceptions to Section 499 of the IPC. These exceptions clearly exclude from its ambit any speech that is truthful, made in good faith and/or is for public good.
 
Why defamation should be a civil offence only?
  • Critics argue that defamation law impinges upon the fundamental right to freedom of speech and expression and that civil defamation is an adequate remedy against such wrongs
  • The misuse of law as an instrument of harassment is also pervasive in India. Often, the prosecutor’s complaint is taken at face value by courts, which send out routine notices for the appearance of defendants without any preliminary examination whether the offending comments or reports come under one of the exceptions spelt out in Section 499. Thus, the process itself becomes the punishment
  • Criminal defamation has a pernicious effect on society: for instance, the state uses it as a means to coerce the media and political opponents into adopting self-censorship and unwarranted self-restraint
 
What needs to be done now?
Reforms to defamation would best be done through the enactment of a new statute. Such a law should decriminalize defamation and reform civil defamation to make it fairer and clearer.
  • The new law should also factor in the Internet and new media when deciding issues like who can be punished for defamation and how.
  • Limits should also be set around civil defamation—not only must the loss to reputation be serious, the proof must also be substantial. The complainant must demonstrate that material injury was caused to their reputation as a direct result of the alleged statement.
  • Truth, opinion and reasonable inference should also be made viable defences in defamation suits.
  • Courts should also be empowered to impose exemplary costs on frivolous suits that waste their time.
  • To ease the burden of the judiciary, it is vital that courts are required to only hear serious defamation cases that haven’t been amicably settled.
  • Legal reforms can also be supplemented by measures addressing the imbalance of resources, such as indemnification clauses in contracts for journalists and a form of defamation insurance.
 
 
 
Do you think the presence of Sections 499 and 500 (criminal defamation) of the Indian Penal Code is an affront to free speech prescribed under Article 19 (2) of the Constitution? Critically comment. (200 Words)
 
Section 499 of IPC: 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 expected, to defame that person.
 
Section 500 of IPC: Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
 
In many countries defamation is defined both as a civil wrong and a criminal offence. In other words, a person can either be sued for compensation by the affected person or be criminally prosecuted by the state. Article 19 campaigns against criminal defamation as it is a disproportionate punishment and has a harsh effect on freedom of expression.
 
While the right to freedom of speech is granted by constitution, it is subject to reasonable restrictions of which defamation is one. Unsubstantiated or wrong allegations often cause irreparable damage to the reputation of a person and may cause financial as well as physical harm. Thus, it is important to protect against defamation.
 
While civil defamation is completely justified, criminal defamation is a legacy of colonial era. It was intended not to protect civil rights of the people, but to discourage any dissent against the foreign rule. It Curbs Right to express freely. General public fears police. It is often misused by powerful section of society to curb any voice against them.
 
A law commission paper acknowledged that criminal defamation violated international norms and had chilling effect on free speech.
 
Defamatory acts which harm the public order are already covered under section 124, 153, 153A of the IPC.
 
Hence, criminal defamation serves no overarching public interest. Thus, it is imperative to review criminal defamation so that the intent and spirit of the constitution can be realised.