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speech and writing which will preserve social order and harmony and make
public life and cooperative effort possible.
Meaning of Defamation
Defamation is the wrong done by a person to anothers reputation by words , signs , or
visual representation . it is different on one hand , from wrongful acts which injure
reputation , eg assult involving disgrace, unlawful arrest or attachment , malicious
prosecution . Defamation also differ from insult caused by words or representation .
If one causes injury to a persons reputation without any lawful justification ,
then the tort of defamation is committed . this is a tort that is very frequently in papers ,
and you would surely be able to recall a few recent incidents that have been in news.
REQUIREMENTS OF DEFAMATION
The statement was defamatory , i.e., injuries to reputation .
A statement is said to be defamatory when, in the mind of reasonable member of
the society , the reputation of the plaintiff might fall or injure.
It was the plaintiff who was referred to by or in the statement.
If the defamatory statement was not referring to you then you cannot claim that
your reputation was injured. Of course , what is important is what the people
exposed to the statement believe. If they believe it reffered to the plaintiff, then it
will be defamation .
The statement must be published .
By publication , it is not meant that the statement must be printed . all it is
meant is that the defamatory statement or matter is made known to people other
than the person who is defamed.
DEFENCES TO DEFAMATION
Truth
If you are telling the truth substaintially , then that it a defence under civil law but
under section 499 of Indian Penal Court truth alione is not a defence , the truth
must be for public good.
Fair comment or opinion
If one is expressing an opinion rather than stating what one think is a fact , then it
is a defence .
Privilege
Absolute privilege
Its a complete defence to defamation .
In case of Parliamentary proceedings , judicial proceedings defamatory
statements made are exempted from civil as well as criminal liability.
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Qualified privileges
The person making then statement is exempted as long as the statement is made
without malice , under civil law.
LIABILITY
The Common Law deals with the defamation as a tort and Section 500 of Indian
Penal Code deals with it as a crime. Both civil and penal actions are available for
defamation. It is at the option of the person who has been defamed whether to
take civil action, criminal action or both. Civil Liability: The law of torts deal
with the defamation under 'torts affecting the persons'. A person is entitled to
claim damages for the wrong of defamation. The damages are unliquidated in
nature i.e., the standing of the person in the society decides the damages amount.
It is up to the discretion of the Court to decide the damages in a civil suit for
defamation. In case of a continuing/series of libelous articles to be published, the
defamed person can file suit for permanent injunction.
A person can move a civil suit by filing a plaint U/O 7 Rule 1 of Civil Procedure
Code, in India. In case of a series of articles to be published in furtherance to the
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DECRIMINALIZATION OF DEFAMATION
Due to the current debate surrounding defamation there is a strong call for
decriminalization of this conduct. Yet these arguments focus on the constitutional
validity of sec . 499 and 500 of the IPC . The contention is that it violates the
fundamental right to speech as guaranteed by the constitution .
The first issue is whether decriminalization would serve as a deterrent to
defamation.
It is contended that sec. 499 and 500 are indeed supportive in reducing
defamation and hate speech.
The argument forwarded in support of decriminalization that is that there exists a
alternate remedy in the form of civil remedy seems inadequate. The civil remedy
is in the form of compensation which does not hold the power to deter big
politicians and public figures from making defamatory statement. How can
compensation , a few rupees for them serve as a deterent and protect the
reputation of the person defamed. The chain cycle of defaming one and giving
him compensation would have a never ending end . Besides there are cases where
Indian courts have awarded 1rupee as compensation in civil suits for defamation.
These defamatory statements , given in the context of India , the land of
communal riots (the recent Muzaffarnagar riots) ,regionalism (the evident cliff
between maharastrians and biharis) , where women empowerment is still a issue
not taken seriously, where there is so much of diversification in all aspects ,
would lead us to utmost chaos and anarchy.
In India , if people are given a right to fully exercise their right to expression than
the condition can be realized from the examples of hate speech rendered by some
of the big political names .
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The fact that sec 499 and 500 have existed for such a long span of time concludes
that they are time tested and applicable in India.
The third issue is whether it is a reasonable restriction on individuals right.
Our constitution guarantees the right to freedom of speech and expression subject
to reasonable restrictions elaborated inarticle 19(2) : security to state , public
order and yes , defamation . In other words I dont have the right to call someone
scoundrel without any basis in fact. Under criminal law it also has to be
considered that I must not only establish that the person I called scoundrel is
based on fact, it must also be proved that it was for public good.
With the advent of Internet , where obnoxious content is in the cyber world
forever, reputation has become all more important. Though sec .66(1) of
Information Technology act has been repealed yet cases of the same nature that
were earlier filled under this sec. are being filled under sec. 67(1). Hence, even if
the sec. has been repealed the constraints in exercising ones right to freedom still
remain.
Sec. 499 and 500 which entail a maximum of 2 year in jail for defamation are
constitutionally saved and they are to read as reasonable restrictions on an
individuals right to free speech . Article 19(2) uses the word defamation in the
context of reasonable restriction.
Since the original constitution cannot be challenged before any court of law, what
is prescribed as reasonable restriction can also not be challenged.
The issue of chilling effect .
It is contended that to create balance between irresponsible journalism , fake
sting operations and trials by media we need to have effective provisions.
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The law grants many exceptions to safeguard critics who make statements in
good faith for public good. Freedom of expression has an important place in
liberties but its a place and not the whole story.
CONCLUSION
To conclude , quotation of renowned author William Shakespeare is the best
choice. The quotation sums up defamation and its requisite perception . in his
famous work Othello he has written that
He that filches from me my good name , Robs me of that , which
not enriches him, and makes me poor indeed.
Hence defamation should not be decriminalized.
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