Media & Defamation

Defamation is an injury to the reputation of a person. Every person has a right to

reputation. Reputation of a person is very dearer than life itself. Therefore, the law
gives protection to the reputation of a person. A person needs protection of his
reputation, honour, dignity, integrity and character.
Accordingly the aim of law of defamation is to protect all these aspect. As each
and every person has a right to property, health etc., the person equally is also
entitled to the reputation. No body can injure the reputation of a person, if he does,
he does so at his own risk. Reputation is an integral part of the dignity of the
person which is included in the right to life as embodied under Article 21 of the
Constitution.
In 2016, the Supreme Court while dealing the concept of defamation in case of
Subramanian Swamy V. Union Of India 2016, observed:
"There can be no denial of the fact that the right to freedom of speech and
expression is absolute sacrosanct. Simultaneously, right to life as is understood in
the expansive horizon of Article 21 has its own significance. Right to freedom of
speech and expression cannot be allowed so much room that even reputation of an
individual which is a constituent of Article 21 would have no entry into that area.
Defamation is considered as both civil as well as a criminal wrong. As defamation
constitutes an actionable wrong it gives rise to remedy of damages as provided
under the civil law. It also constitutes a criminal offence and accordingly action
may be taken as provided in the criminal law. Thus, an aggrieved person can file a
criminal prosecution as well as a civil suit for damages for defamation Withdrawal
of a criminal on tender of apology is no bar to a civil action for libel unless there is
a specific agreement barring a civil action.
Meaning
It has been mentioned at the outset that defamation means an injury to the
reputation of a person.
According to Salmond "defamation is the publication of a false and defamatory
statement about another person without lawful justification."
In the words of Underhill, "Defamation is the publication of a fake and defamatory
statement concerning another without just cause or exercise whereby he suffers
injury to his reputation (not to his self esteem)."
As per the Black's Law Dictionary "Defamation is that which tends to injure
reputation, to diminish the esteem, respect, goodwill or confidence in which the
plaintiff is held or to exercise adverse, derogatory or unpleasant feelings or
opinions against him, statement which exposes person to contempt, hatred, ridicule
or obloquy."
Essentials of Defamation

There are three essentials of defamation as civil wrong. There are:

(i) The statement must be 'defamatory';

(ii) The statement must refer to the plaintiff, and

(iii) The statement must be published.

(i) The statement must be 'defamatory'.

Defamatory statement is one which tends to injure the reputation of the person. It is
not essential that there must be some disparagement of the moral or intellectual
character of the plaintiff in the ordinary sense. Any words will be deemed to be
defamatory which (i) expose the plaintiff to hatred, contempt, ridicule, obloquy or
(ii) tend to injure him in his profession or trade; or (iii) cause him to be shunned or
avoided by his neighbours.

Whether a particular word or words are defamatory is a question of fact not law. It
may vary from person to person. The spoken words which are derogatory to a
person may not be so for another. Each case is to be decided basing on its own
facts
In D.P. Choudhary v. Manjulata, There was a publication of a statement in a local
daily of Jodhpur, Dainik Navjyoti, that Manjulata, the plaintiff aged about 17 years
reading in B.A. class had ran away with a boy on the pretext of attending night
classes in her college. This news item affected her and her family as they belong to
a distinguished educated family. It was proved that the news item was untrue and
was published negligenty with utter irresponsibility. She was shocked and ridiculed
by persons who knew her and her marriage prospects were adversely affected
thereby. The statement was held to be defamatory, the defendants were held liable
and she was allowed a compensation by way of general damages.
(ii) The Statement must refer to the plaintiff

In an action for defamation the plaintiff has to prove that the statement which he
alleges to be defamatory refers to him. It is not necessary for this purpose that the
plaintiff should have been described by him own name. It is immaterial whether
the defendant intended the defamatory statement to apply to the plaintiff, or knew
of the plaintiff's existence, if the statement might reasonably be understood by
those who knew the plaintiff to refer to him. It is the duty of the plaintiff to satisfy
the court that he was the person referred to.
(iii) The Statement must be published

The third and the last ingredient of defamation is that the statement must be
published by the defendant. No civil action can be maintained in respect of a
defamatory statement unless the plaintiff can establish that it has been published to
a third person, that is to say, to some person other than the plaintiff himself. It is
because the law of defamation protects the reputation of a person.
II. Defamation and the Criminal Law

It has been discussed at the outset that defamation is an injury to the reputation of a
person. Law gives protection to the man's reputation as it gives protection to his
life and property. In civil law, defamation has been recognised as a civil wrong.
But it is a criminal wrong in the criminal law. In civil law defamation may either
be libel or slander. Libel consists of publication of a defamatory statement
expressed in some permanent form for example in writing, printing etc. while
slander is manifestation of defamation orally or by gestures. A Common Law Libel
is being considered both a criminal and civil offence, but slander is regarded as
only a civil wrong. But in India, there is no such difference between libel and
slander, and both constitute a criminal offence under the Indian Penal Code. This
provision of criminal offence is a codified law while the civil law of defamation
rests on common law. In civil law intention is immaterial while in the Indian
criminal law intention plays a crucial role in establishing the offence of
defamation. In a civil wrong, the aggrieved person is compensated in the way of
damages, but in the criminal law, the wrong doer is punished with imprisonment or
with fine or with both.

In Subramanian Swamy v. Union of India, Sections 499 and 500 of Indian Penal
Code were challenged as unconstitutional and after a detailed deliberation, the
Court upheld the validity of both the provisions. In the process, rejecting the
contention that "existence of criminal defamation on the statute book and the
manner in which the provision is engrafted suffers from disproportionality because
it has room for such restriction which is disproportionate, the Supreme Court
declared that "from the analysis we have made it is clear as day that the provision
alongwith Explanations and Exceptions cannot be called unreasonable, for they are
neither vague nor excessive nor arbitrary. There can be no doubt that the Court can
strike down a provision, if it is excessive, unreasonable or disproportionate, but the
Court cannot strike down if it thinks that the provision is unnecessary or
unwarranted."
Ingredients

From the above definition of defamation, the following ingredients can very well
be derived to prove the commission of the offence:

1. Making or publishing any imputation concerning a person.

2. Such imputation should have been made by-

(a) words either spoken or written; or

(b) signs; or

(c) visible representations.

. The said imputation should have been made with intent to harm or knowing or
having reason to believe that it will harm the reputation of such person or defame
him.
Punishment

Sections 500, 501 and 502 of the Indian Penal Code prescribe punishment for
various kinds of offences of defamation.

As per the provision of Section 500, "whoever defames another shall be punished
with simple imprisonment for a term which may extend to two years, or with fine
or with both. "The offence under this Section is non-cognizable, bailable and is
triable by the Court of Sessions.

Section 501 provides "whoever prints or engraves any matter, knowing or having
good reasons to believe that such matter is defamatory of any person, shall be
punished with simple imprisonment for a term which may extend to two years, or
with fine, or with both. "The offence under this section is non-cognizable, bailable
and is triable by a Magistrate of the First Class.

Section 502 says that "whoever sells or offers for sale any printed or engraved
substance containing defamatory matter, knowing that it contains such matter, shall
be punished with simple imprisonment for a term which may extend to two years
or with fine or with both." The offence under this section is non-cognizable,
bailable and triable by a Court of Session.
In Jawaharlal Darda v. Mannoharrao Ganpatrao, a news item was published by the
accused in the local newspaper 'Dainik Lokmat' relating to a question put to the
concerned Minister about misappropriation of certain Government funds where he
admitted that actually misappropriation has taken place and he also disclosed the
names of some persons including the complainant who have alleged to have been
involved. The complainant filed a complain under Sections 499 to 502 read with
Section 34 of the Indian Penal Code. It was contended by the accused that the said
publication was true and was made for the public good. The trial court quashed the
complaint and when the matter went to the Supreme Court, the court observing that
"if the accused bona fide believing the version of the Minister to be true published
the report in goodfaith, it cannot be said that they intended to harm the reputation
of the complainant" held that as the news item was published for the complainant
therefore, no offence against the accused was made out.