If you’re looking to know about criminal defamation vs civil defamation ? then, read this article to know about criminal defamation vs civil defamation
1. INTRODUCTION
Since the Supreme Court ordered Times Now to pay INR 100 crore in damages for defamation and Arvind Kejriwal is currently in judicial detention after failing to seek bail, there is a lot of interest in India’s defamation laws. NUJS’s Utkarsh Agarwal defines defamation and discusses the several legal facets of defamation law. Let me pass to Utkarsh.
The act of publishing defamatory material that, from the viewpoint of the average person, damages the reputation of a person or organization is referred to as defamation. Libel is the term used when defamation happens in written or printed form, whereas slander is the term used when it occurs in spoken words, gestures, or another such ephemeral form. In India, it is illegal and civil to defame someone. Defamation in Civil Law is subject to the Law of Torts, which punishes the claimant (the one bringing the claim) with damages. Defamation is an offense that is compoundable, non-cognizable, and subject to bail under criminal law.
Consequently, without a magistrate’s warrant (without which an FIR cannot be filed), the police are unable to begin an investigation into defamation. Bail is another recourse that the accused may pursue. In addition, the victim and the accused may reach a deal to that effect, even if the court grants permission for the charges to be dismissed. Section 499 of the Indian Penal Code defines defamation as a criminal offense.
The punishment specified in section 500 may consist of a fine, two years of simple imprisonment, or both. This essay explores the similarities and contrasts between defamation cases in India’s criminal and civil systems, as well as the obstacles and defenses that each presents.
2. DEFAMATION AS AN OFFENCE
A defamation lawsuit must meet a few fundamental criteria to be successful: First, it is necessary for defamatory content to exist. Defamatory content is any information intended to harm someone else’s reputation by making them the target of ridicule, hostility, or anger. But when it comes to this kind of information, the standard man test is used, meaning that the content’s meaning is determined by what a regular man would understand it to be. Secondly, the name of the claimant in the libelous statement needs to be mentioned. For anything to constitute defamation, it must expressly target a single individual or a very limited group. Nothing about a lawyer or politician can be directly linked to a general statement such as “All lawyers are thieves” or “All politicians are corrupt” since it is too wide a categorization. It is not defamatory to make such remarks, therefore. Third, the defamatory comment needs to be verbally or in writing.
There may be no defamation until the content is published or made accessible to a party other than the plaintiff. Defamation suits arise under civil suits when all three requirements are met, and the defendant is required to assert a privilege or mount a defense. If the defendant is unable to comply with the claim, the defamation lawsuit succeeds. An essential component of a criminal lawsuit is the intention to slander. When there was no purpose to cause defamation, it becomes crucial to know that the publication was likely to cause defamation or is defamatory. Furthermore, all of this is subject to the usual burden of proof in criminal trials, which is beyond a reasonable doubt.
3. DEFENCES AGAINST DEFAMATION
3.1. JUSTIFICATION OF TRUTH
Implying anything about someone accurate is often not considered defamation. In civil trials, honesty is an unassailable defense in India; nevertheless, in criminal prosecutions, the truth must also be imputed for the benefit of the public. Hence, if someone imputes anything true, regardless of whether it was done intentionally or for the public benefit under section 499 of the Indian Penal Code, no defamation complaint may be filed against them.
In a libel case, the plaintiff asserts and provides sufficient evidence to create a prima facie case, which means the plaintiff convinces the court that the defendant’s comments constitute a publication that may be interpreted as defamatory. He is competent to make his argument before the jury since other people may comprehend what he is saying. Nevertheless, as is usually the case, he could find that the good times are far from finished.
If the defendant can show that the events were private, that may be a possibility. Perhaps he might persuade the jury that the publishing remained within the parameters of appropriate criticism. He may even be able to demonstrate the veracity of the statements that form the foundation of the alleged libel. Any one of these three well-known defenses may prevent the plaintiff from receiving their full compensation.
Advocates supporting the legislation have provided in-depth commentary on each of them. The third defense stated is covered in great length in this article. The author’s objective is to first provide a brief overview of the history of this defense in English law and then track its development in both English and American jurisprudence. If the criminal and civil cases are considered independently, this may be completed more simply. He can persuade the jury that the publication did not go too far in examining the fundamentals of the rule-making procedure.
Examining the guiding concepts of the defense as a whole is the second phase. Third, the courts have sometimes gone so far as to recognize new rights to show how the rule that makes truth a full defense has prohibited the law of libel from accomplishing its original goal, therefore giving the plaintiff redress.
3.2. FAIR COMMENT
A reasonable comment can serve as a defense against defamation in Commonwealth countries including Canada, India, and the UK. To sum up, fair comment allows people to voice their opinions on matters of public interest without fear of repercussions. As long as the primary goal of the comment is not malicious, a fair remark can effectively defend against libel.
In this particular defamation case, Stanford made false charges, but the judge found that his actions lacked “dominant intent” and that there was no “malicious hostility” underlying them. Stated differently, the court supported Stanford because he thought that salmon farming was harmful, and his main goal was to protect fish, not hurt Mainstream Canada.
3.2.1. ESSENTIALS OF FAIR COMMENT
- That’s a commentary or critique, not an assertion of fact.
- A comment has to address a subject that is widely discussed.
- It is an honest and reasonable statement.
The ruling in Ramakrishna Pillai v. Karunakaran Menon makes this clear: “Any lawsuit for defamation will not be filed against the defendant unless it can be demonstrated that he has crossed the line from a fair remark or that his actions were motivated by malice, which is not the case here. Given that the publications included subjects of wide interest, the defendant is entitled to remark on them.
A privilege granted by the law may shield an individual from tort or even criminal defamation accusations. In some circumstances, when the right to free expression takes precedence over the right to reputation, defamatory statements may be legally regarded as having been made under privilege.
Within the category of privilege are both qualified privilege and absolute advantage.
3.3.1. ABSOLUTE PRIVILEGE
The defamatory remarks are not enforceable under absolute privilege, regardless of how vicious or inaccurate they are. These opinions are protected under the right to free expression since the subject matter is important to the general public. The decision in the case of Dr. Jatish Chandra Ghosh v. Hari Sadhan Mukherjee and Others was rendered by those who “argued on his behalf that he had an unrestricted right under Constitutional Article 194 to disseminate the prohibited… alluded to.” 487-88. The right to a privilege does not fully cover the publication of House proceedings.
3.3.1.1. PARLIAMENTARY PROCEEDINGS
In the course of parliamentary proceedings, remarks made by members of parliament that are offensive—whether spoken verbally or in writing—are shielded by the defense of absolute privilege in either house of parliament. Legislative members of states enjoy a similar degree of absolute privilege about remarks they make during sessions of the legislature.
3.3.1.2. JUDICIAL PROCEEDINGS
In any lawsuit or trial before a court or other legally recognized institution, judges, attorneys, witnesses, and parties are not held accountable for the words or writings they make. The absolute privilege defense, however, will not be accepted if a witness or lawyer says something disparaging that has nothing to do with the investigation’s subject.
“The defendant made a defamatory statement about the plaintiff and brought a suit in a trial court without any relationship to the plaintiff,” according to the ruling in Jiwan Mal v. Lachhman Das. The plaintiff accused the defendant of defamation, and the defendant asserted absolute privilege as a defense. However the Lahore High Court decided that the plaintiff was unrelated to the case, hence the defendant could not raise the defense of absolute privilege.
3.3.2. ABSOLUTE PRIVELEGE
pertains to any assertion made by an individual to law enforcement that they would be willing to testify to in court under oath. In the V. Narayana Bhat v. E. Subbanna Bhatt case, the Karnataka High Court determined that the defendant’s complaint was an absolute privilege, which meant that even if he filed a false police report against the plaintiff, he could not be held liable for defamation.
Absolute privilege defends communications, discussions, and reports exchanged between military personnel and government offices while they are doing their duties; these exchanges are not liable for libel.
3.3.3. LICENSED PRIVELEGE
The Licensed Privilege privilege may be invoked as a defense by someone who, during a protected event, talks disparagingly about another person in good faith. Unlike absolute privilege, the defendant needs to prove two things to invoke the defense of licensed privilege.
During a unique occasion, the proper sentence is delivered. A fortunate event involves a work completed or an interest safeguarded. When someone speaks disparagingly without intending to harm while performing a legal, social, or moral obligation, they are protected by qualified privilege. For information to be useful, the person receiving it must find it interesting.
If a defamatory comment was published in a newspaper or on television, there must be an established duty to the public. According to the Bombay High Court’s decision in R.K. Karanjia v. Thackersey, “A topic of public significance cannot be classified as a privileged occasion if the person transmitting it is under no responsibility to do so.”
There must be reciprocity of interest or responsibility. This suggests that the publisher of the information and the person receiving it must both have an obligation or stake in it. Reports of legislative proceedings published with permission from either house of the parliament are protected by absolute privilege. It is possible to assert qualified privilege, nevertheless, if these studies are made public without the house’s approval.
Proving that the reports were disclosed with good intentions and no malicious intent is a requirement for the defendant. A parliamentary report sketch or summary may be shielded by qualified privilege if it refers to the full report and is presumed to be an accurate representation of the events as seen by the audience.
Making the suitable selection needs to be done so objectively. If there was malice present at the time the defamatory statement was uttered, the qualified privilege defense is not applicable. It is consequently essential that the defendant have no malice. The argument that the defendant should only be allowed to depend on the defense on special occasions justifies this.
The occasion loses its privilege if the defendant utilizes it for any dishonest or deceptive purpose.
In the instance of Horrocks versus Lowe, “it was established that even if the defendant published a defamatory matter against the plaintiff if he is of the honest opinion that the statement said by him is true, then he can take the defense of qualified privilege” .
“Even if there is reason to believe that the defendant had malicious intentions if he is of an honest opinion, then he has used the occasion to discharge a duty or protect an interest, and therefore the occasion is deemed privileged.”
3.4. FREEDOM OF THE PRESS
“Press freedom is a symbol of people’s freedom in a nation.” In the Pandit M.S.M. Sharma against Sri Krishna Sinha case, the Indian Supreme Court held that press freedom is a prerequisite for a free and democratic society, but it must also be subject to reasonable constraints. “Every free man has an undeniable right to put whatever views he pleases before the public; to ban this, is to undermine the freedom of the Press; but if he publishes what is unsuitable, harmful, or criminal, he must bear the consequences of his own boldness,” the court said.
The defense of fair comment permits a range of disparaging statements as long as the case’s facts are accurately reported. Nevertheless, if the material released is false and defamatory, the publisher could be held legally responsible for defamation. The Delhi High Court held in the Sardar Charanjit Singh v. Arun Purie case that a person can assert the defense of fair remark or privilege even if a false statement has been made public. There should be some basis for the publicized assertion.
“Reputation of the concerned aggrieved parties on one hand and freedom of the press on the other, have to be equally balanced.”
4. CIVIL VERSUS CRIMINAL DEFAMATION
There are two types of slander: written and spoken. Written defamation is called libel, while spoken defamation is called slander. The identical provision of the IPC applies to both crimes.
There are potential legal and criminal consequences for defamation. Subject to specific legislative limits, the aggrieved party may bring a civil complaint under English common law in India even if the country lacks a codified defamation legislation.
Civil action is not an option if the defamation stems from words that were made in public. Using the media as an example, it is more probable that libel will only be published in written or printed form by the press or newspapers.
4.1. LIABILITY AND DEFENCE
One’s legal liability for defamation is unaffected by their intent. complete security For a civil defamation lawsuit to be successful, the statement must be true. Criminal law requires that an offense have a motivation. In criminal law, the defense of good faith is recognized. With the exception of the first exemption to Section 499 IPC, the truth is not, however, a defense in a criminal case. It is imperative to prove that the dissemination of defamation is for the benefit of the public at large.
4.2. PUNISHMENT VERSUS COMPENSATION
A civil case differs from a criminal defamation proceeding primarily in the amount of compensation that is awarded. Although the goal of a criminal prosecution is to punish the offender with jail time, fines, or both, the goal of a civil action is to provide the victim of defamation with damages to adequately recompense them for the harm done to their reputation.
4.3. CUMULATIVE NATURE OF REMEDIES
Rather than being in direct competition with one another, the civil and criminal remedies are complimentary. A victim of misconduct has the right to file a criminal complaint and a civil case simultaneously. According to Section 499 of the Indian Penal Code, even after the offender has been found guilty in a criminal court, the aggrieved party may still file a civil claim for damages.
4.4. ACCORDING TO IPC SECTION 499- DEFAMATION
When someone is slandered, their reputation—which is seen as their property—is hurt. According to Section 499 of the Indian Penal Code, defamation is defined as follows. “Except in the cases here after expected, any person who makes or publishes any imputation concerning any person with the intent to defame, or with reasonable cause to believe that such imputation will defame, the reputation of such person is said to have done so by words either spoken or intended to be read, or by signs or by visible representation.”
This chapter gives examples of how, in addition to verbal or written remarks, defamation can also happen through signs and visual representations. This implies that the subject of a defamation case can be a disparaging cartoon or picture.
4.5. PENALTIES UNDER SECTION 500 OF THE IPC
Section 500 of the Indian Penal Code stipulated that defamation was illegal. According to this clause, anyone who disparages another person faces a fine, more than two years in simple jail, or both.
A journalist might face serious repercussions because the disparaging remarks were extensively publicized. A journalist who makes a careless comment with the intention of causing harm may be charged with further crimes. What he acts after the publication and throughout the trial will also have an impact on the sentence he gets.
The crimes of “selling of printed or engraved substance containing defamatory matter” and “printing and engraving matter known to be defamatory” are punished by a fine or a simple jail sentence of up to two years, according to Sections 502 and 501 of the Indian Penal Code.
5. CONCLUSION
One element of the right to life and dignity guaranteed by Article 21 is the right to reputation. The Indian Constitution guarantees the right to free speech and expression. There are sensible restrictions on this ability, though. The use of false claims to lower someone’s social status is never acceptable.
The Defamation Law allows an individual to safeguard their right to their reputation. But as truth serves as a shield against defamation, this rule only comes into play when the statement is false. However, even though the IPC clearly defines defamation, its uses, and its exclusions, there is still a great deal of uncertainty in some situations. This is especially true in the domain of uncodified tort law.
Hence, the appropriate course of action is up to the plaintiff, who must file a lawsuit in tort law to get compensation, or in criminal defamation law to obtain punishment. The most valuable asset in this day and age is a person’s reputation, therefore we must be aware of the significance of the solution we choose. As a result, filing a lawsuit within the proper legal timeframe is crucial.
I attempted to provide a quick explanation of civil and criminal defamation, how to distinguish between the two, and which legal provisions to initiate a lawsuit under through my research work. The significance of defamation must be understood, as it essentially aids parties in determining the type of remedy they seek through legal action.
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