Criminal defamation

What is Criminal Defamation?

The act of harming someone’s reputation by publication in spoken or written or any other form of communication, coupled with an element of malice, is referred to as criminal defamation. The presence of ‘malice’ or ‘malafide intention’ is what distinguishes criminal defamation from civil. It is pertinent to note that apart from the essentials mentioned above, another essential element of criminal defamation is ‘injury’. No injury means prosecution for criminal defamation.

The 11th edition of the Black Law dictionary defines criminal defamation as the offense of injuring a person's character or reputation by false and malicious statements; specifically, defamation that is prosecuted as a crime rather than handled as a civil matter.

Official definitions of ‘Criminal Defamation’

‘Criminal Defamation’ as defined in legislation(s)

Section 356 of the Bhartiya Nyaya Sanhita, 2023, defines defamation as an act whereby anyone who makes or publishes any kind of imputation about someone with the intent to harm, or knowing or having reason to believe that such imputation will harm, that person's reputation is considered to have defamed that person, with the exception of the cases listed in the section. This includes words that are spoken or meant to be read, signs, or visible representations.

Previously, sections 499 and 500 of the Indian Penal Code, 1860 dealt with the definition and punishment of defamation respectively. The definition has remained the same in BNS as it was in IPC. The punishment for defamation provided in section 500 IPC was simple imprisonment for a term which may extend to two years, or with fine, or with both. In BNS, apart from the punishment provided in IPC, community service has also been provided as a punishment.

There are 10 exceptions to the offence of defamation. These include the following: Truth for Public Good; Public Conduct of Public Servants; Public Question Concerning Others; Publication for Public Good; Conduct of Public Performers; Censure by Lawful Authority; Accusation in Good Faith; Imputation for Protection; Caution in Good Faith; Bona Fide Reports of Proceedings.

‘Criminal Defamation’ as defined in other official Government Report

42nd Law Commission Report

Criminal defamation has been viewed in light of some significant rights including right to freedom of expression and the right to reputation in official reports like the 42nd Law Commission Report. The report defines defamation in terms of essentials. The essential elements of defamation are: (1) the statement must be defamatory, capable of injuring the reputation of the claimant as perceived by an ordinary, right-minded individual; (2) it must specifically refer to the plaintiff or an identifiable group; and (3) it must be published, meaning communicated to at least one person other than the plaintiff.

Decriminalization of Defamation Bill, 2023

The Decriminalization of Defamation Bill, 2023, introduced in the Rajya Sabha on December 8, 2023, seeks to amend the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC) to remove criminal penalties for defamation. Specifically, it proposes omitting Sections 499 to 502 of the IPC, which define and penalize defamation, and Section 199 of the CrPC, which outlines prosecution procedures for defamation cases.The proposed amendments aim to address concerns that criminal defamation laws are misused to harass individuals, particularly journalists and activists, stifling free speech. By decriminalizing defamation, the Bill encourages a shift towards civil remedies for reputational harm, such as damages, fostering a more balanced approach to protecting reputation and freedom of expression.

285th Law Commission Report

The Law Commission of India's Report No. 285, titled "The Law on Criminal Defamation," examines the legal framework governing defamation in India. Defamation is defined as the act of making false statements that harm an individual's reputation, encompassing both libel (written defamation) and slander (spoken defamation). The Commission analyzed the balance between the right to freedom of speech under Article 19(1)(a) and the right to reputation under Article 21 of the Constitution. After reviewing legal precedents and international practices, the Commission recommended retaining criminal defamation provisions within Indian law, emphasizing the necessity to protect individuals' reputations against defamatory speech and imputations. This conclusion aligns with the Supreme Court's judgment in Subramanian Swamy v. Union of India, which upheld the constitutionality of criminal defamation as a reasonable restriction on free speech.

‘Criminal Defamation’ as defined in case law

Subramanian Swamy v. Union of India

In 2014, Dr. Subramanian Swamy and others challenged the constitutionality of Sections 499 and 500 IPC, following defamation cases filed by the Tamil Nadu Government after corruption allegations against Ms. Jayalalithaa. The challenge claimed that criminal defamation excessively restricted free speech under Article 19(1)(a) and was vaguely phrased. Section 499 defines defamation as words or representations harming a person’s reputation, with exceptions for public good or public conduct. Section 500 prescribes punishment.

On 13 May 2016, the Supreme Court upheld the constitutionality of these provisions, ruling that criminal defamation is a reasonable restriction under Article 19(2). The Court emphasized that protecting reputation is a fundamental right under Article 21 and that defamation affects societal harmony. It dismissed claims of vagueness, relying on Constituent Assembly Debates. Balancing free speech and reputation, the Court validated defamation laws within constitutional limits.

Grievances Redressal Officer, Economic Times Internet Ltd. v. V.V. Mineral Pvt. Ltd.

The Madras High Court quashed a criminal defamation complaint filed by V.V. Mineral Pvt. Ltd. against The Economic Times and journalist Sandhya Ravishankar for publishing an article titled "Scam on the Shores," which alleged illegal beach sand mining in Tamil Nadu.

The Court underscored the constitutional significance of the freedom of the press, stating it as a cornerstone of democracy. It emphasized the ethical imperative of higher judiciary to safeguard press freedom, particularly when reporting on matters of public interest. The Court held that journalists should not face undue harassment or intimidation through frivolous legal proceedings, as such actions have a chilling effect on investigative journalism. Concluding that the article was in the public interest and lacked malice, the Court deemed the criminal defamation complaint unsustainable and quashed the proceedings, reaffirming the role of the press in fostering accountability and transparency.

Types of ‘Criminal Defamation’

Criminal defamation is usually classified into libel and slander. Libel refers to defamatory statements in writing, and Slander refers to defamatory statements made orally. However, in India, the terms libel and slander are both included under the term ‘criminal defamation’ and there is no differentiation provided in terms of definition or punishment.

Innuendo in defamation refers to an indirect or implied statement that, while seemingly innocent on the surface, carries a defamatory meaning when contextualized. The claimant must prove the hidden meaning and show that it would be understood as defamatory by those familiar with the context.

International Experience

England

In England, the two most important laws governing defamation law in England were the Defamation Acts of 1952 and 1996 and the latest law governing the subject matter is the Defamation Act, 2013. Under English law, libel and slander are not the same thing. This can be explained in two ways. First off, it is illegal to libel rather than slander. In actuality, slander is not illegal. Libel is therefore always actionable. Second, a clear injury must be shown in the majority of slander cases. Under tort law, slander can be enforced, but only in extreme situations where there is evidence of a particular injury.

In addition, the Law Commission’s 2002 report titled “Aspects of Defamation Procedure” provided for recommendations to the Lord Chancellor’s Department that no further project is required to examine legal actions intended to silence individuals (“gagging writs”) or threatening notices aimed at discouraging speech (“gagging letters”), nor is there a need to address the strategic use of legal proceedings to intimidate opponents (“tactical targeting”). However, it is suggested that further examination be undertaken to assess whether Section 1 of the Defamation Act 1996 strikes an appropriate balance between the rights of claimants and defendants in defamation cases.

United States of America

The United States' defamation law is significantly less plaintiff-friendly than its European counterpart due to the First Amendment's enforcement. Furthermore, there is no difference between libel and slander. This is because different states have different views. Certain states include the meanings of libel and slander into a single law. Although these are out-of-date statutes that are rarely executed, certain states still have criminal libel laws in place.

Australia

In Australia, defamation laws differed from state to state until 2006, when uniform laws were implemented. Companies with ten or more workers are barred from suing under uniform defamation laws. Persons or groups of individuals employed by or linked with that firm, such as corporate directors, CEOs, or managers, can still sue if their identities are revealed in the publication. No matter how many workers or members a non-profit organization has, it can still sue for defamation.

Germany

In Germany, the following three categories of offences relating to defamation are listed in the German Criminal Code. Insult carries a maximum penalty of one year in jail or a fine. "Asserting or disseminating a fact related to another person which may defame him or negatively affect public opinion about him" is the definition of defamation. A fine or up to a year in jail are the possible penalties. A derogatory comment intended to harm someone's reputation "or endanger his creditworthiness" that the speaker knows to be untrue is considered slander. The penalty is either a fine or a maximum two-year jail sentence.

Appearance of ‘Criminal Defamation’ in database

Convictions for criminal defamation and associated court records are not included in official databases such as the Ministry of Law and Justice's other records or the judicial system's National Crime Records Bureau (NCRB). Criminal convictions and other legal records are stored in these databases but it is crucial to bear in mind that there is no data that expressly addresses the crime of defamation because there are no case types that deal with it exclusively.

Research that engages with term “Criminal Defamation”

Understanding Defamation Laws in India (Committee to Protect Journalists, Media Defence and Thomson Reuters Foundation)

The report provides journalists with a practical guide to both civil and criminal defamation laws in the country. It outlines the legal definitions, key elements, and potential defenses related to defamation, emphasizing the importance of truth, public interest, and good faith in journalistic reporting. The guide also addresses the misuse of defamation laws to suppress free speech and offers strategies for journalists to mitigate legal risks while covering matters of public concern. By elucidating these aspects, the document aims to empower journalists to navigate the legal landscape effectively and uphold the principles of responsible journalism.

Criminal Defamation in the High Courts: Convictions v Dismissals (Supreme Court Observer)

The Supreme Court Observer's analysis of 2018 criminal defamation judgments from India's ten largest High Courts reveals that only 14.29% resulted in convictions under Section 499 of the Indian Penal Code, while 57.14% were dismissed. This data has reignited debates, especially amid the #MeToo movement, about the appropriateness of criminalizing defamation and the potential misuse of such laws to suppress free speech. Advocates for anti-SLAPP (Strategic Lawsuits Against Public Participation) legislation in India argue that current defamation laws are often employed to intimidate critics, thereby imposing unreasonable restrictions on the constitutional right to freedom of expression. The analysis suggests a need to reassess the balance between protecting reputations and upholding free speech rights.

Defamation Laws and Judicial Intervention: A critical Study (Indian Law Institute)

The article evaluates the balance between free speech and defamation laws in India. It analyzes the definitions and elements of defamation, comparing Indian laws with those in England, the USA, Australia, and Pakistan. The study critically evaluates the Supreme Court's judgment in Subramanian Swamy v. Union of India, which upheld the constitutionality of criminal defamation under Sections 499 and 500 of the Indian Penal Code. It also discusses the implications of the Shreya Singhal v. Union of India case on internet defamation and the challenges posed by the "chilling effect" on free speech. The article concludes by emphasizing the need to balance the right to freedom of expression with the right to reputation.

Defamation in the Time of Deepfakes (Columbia Journal of Gender & Law)

The article examines the defamation law issues raised by deepfake pornography. It makes the case that deepfakes are defamatory false representations of truth because they mimic hyper-realistic portrayals of someone's private life. According to the article, victims of lifelike deepfakes find it challenging to deny the information since it blurs the distinction between fact and fiction. It also discusses the application of the defamation law's "actual malice" threshold to deepfake producers and distributors.

Challenges

Balancing the right to freedom of expression with the right to reputation is made extremely difficult by criminal defamation. The subjective character of injury, which makes it challenging to prove purpose and malice, is one of the main problems. This frequently results in legal abuse, as accusations of defamation are used to silence opposition or valid criticism, so preventing free speech. The lack of consistency in international defamation rules makes handling cross-border defamation claims even more difficult in the digital age, when information may readily cross national boundaries. When the victim of defamation and the offender live in different jurisdictions, this discrepancy makes enforcement and responsibility difficult.

The lack of thorough information in government databases such as the National Crime Records Bureau (NCRB), which does not classify or monitor criminal defamation cases independently, further complicates matters. The practical application of the law and its wider societal ramifications cannot be clearly understood due to this lack of data. Furthermore, libel (written defamation) and slander (spoken defamation) are treated under the same criminal defamation umbrella under Indian law, which does not distinguish between the two. The prosecution and adjudication processes are further complicated by this blurring of borders, which makes it challenging to efficiently handle particular types of defamation.

Way Ahead

To tackle the difficulties presented by criminal defamation, a well-organised legal system that guarantees equity, lucidity, and harmony among conflicting rights is necessary. To reduce ambiguity and stop the abuse of laws to target dissent or valid criticism, legislative revisions are necessary to explicitly establish the thresholds for injury, malice, and intent. By clearly defining these standards, the legal system can better protect people's reputations while preserving their right to free speech.

Better trend tracking and analysis would be possible with the establishment of a centralised database for defamation cases, enabling data-driven policy changes. Thorough records would help highlight areas that require revision by offering insights into the implementation and abuse of criminal defamation legislation. Furthermore, encouraging the use of alternative dispute resolution procedures like conciliation and mediation might provide a quicker and less combative way to settle defamation cases, relieving the court's workload and encouraging cooperative resolutions.

Last but not least, court review and public awareness campaigns are necessary to strike a balance between preserving reputations and guaranteeing free speech. While awareness efforts can inform citizens about their rights and duties, courts must carefully balance conflicting rights to prevent excessive speech limitations. This multifaceted strategy guarantees that criminal defamation laws accomplish their goals without limiting democratic liberties.

Related Terms

'Sedition' and 'contempt of court' are two terms that are similar to criminal defamation, however they deal with different situations. Although sedition is a distinct crime, it frequently coexists alongside defamation when it comes to damaging the state's or government officials' reputation, especially when speech or deeds erode public confidence in institutions. However, acts that disparage the judiciary and undermine its authority and dignity are officially referred to as contempt of court. It falls under the category of contempt statutes, which protect the judiciary's reputation by guaranteeing the impartiality and respect of legal proceedings.