Defamation is one of the most common types of cases that are filed in the courts of law around the world. Anyone who feels he or she has been wrongly accused of something by someone in public, through words or gestures, spoken, written, or by inference can file a defamation suit in a court of law claiming that the accusation levelled deals a blow to his/her reputation.

Defamation is generally levelled by those who have a public image, such as celebrities, renowned writers or journalists, people holding high offices, eminent professionals, etc.

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The latest defamation case has been filed by journalist-turned-politician MJ Akbar against one of the journalists who accused him of sexual harassment during his days as a scribe.

Akbar, who is the Minister of State for External Affairs, is the most prominent name to have come up as an accused in the #MeToo movement which has exposed many celebrities as alleged harassers.

In his complaint Akbar alleged that journalist Priya Ramani “wilfully, deliberately, intentionally and maliciously” defamed him by making a completely false and frivolous statement which has harmed his goodwill and reputation within the political fraternity, media, friends, family, colleagues and society at large.

“That the scandalous allegations levelled by the accused against the complainant (Akbar) herein, by their very tone and tenor, are ex facie defamatory and have not only damaged the goodwill and reputation of the complainant, in his social circles and on the political stage, established after years of toil and hard work, but have also affected the personal reputation of the complainant in the community, friends, family and colleagues, thereby causing him irreparable loss and tremendous distress,” read a statement issued by the lawyers representing Akbar.

What is defamation?

In India, the definition of defamation is generally the accepted definition under the tort of defamation as per the law in United Kingdom.

Under the English law, defamation is generally defined as such:

“Defamation is the publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him.” – Sir Percy Henry Winfield.

Thus defamation essentially must fulfil the following requirements:

1. The statement must be published.

Publication could mean both oral and written forms publication which makes the defamatory matter known to someone other than the person being defamed. Thus if Mr A accuses Mr B in private of something he has not done, and there is no one around to hear the accusation, it is not defamation.

If Mr A accuses Mr B of something in writing or through words spoken in public, Mr B can sue Mr A for defamation. But the caveat is that the person being defamed himself understands the language in which he is being defamed. Thus in the case of Mahender Ram v. Harnandan Prasad it was ruled that when a letter written in Urdu, a language which the plaintiff didn’t understand, was read by a third person on the request of the plaintiff, it is not defamation.

2. The statement must lower the estimation of the person.

The defamatory statement should be damaging to the reputation of the person against whom charges have been made or creates circumstances where the person being defamed is shunned or avoided by the people.

It is also noteworthy that person can be an individual or a small group or persons, and not general groups. For instance, a statement such as “all politicians lie” is not defamation as it is a sweeping statement on all politicians and no one in particular.

3. Defamation must have happened before “right-thinking” members of society.

“Right-thinking” means any person with average intelligence, in other words anyone with a sound mind of the general society. It does not mean any special class of persons of any kind.

The two types of defamation

There are two types of defamation in India: Civil and Criminal.

In civil defamation a person who is defamed can move either High Court or subordinate courts and seek damages in the form of monetary compensation. There is no punishment in the form of jail sentence.

In criminal defamation, the person against whom a defamation case is filed might be sentenced to two years’ imprisonment or fined or both.

What does Indian Penal Code (IPC) say about defamation?

IPC Section 499 lays down the definition of defamation and Section 500 lays down the punishment for criminal defamation. It is under Section 500 that Akbar has sought Ramani’s prosecution. There is no codification of civil defamation.

Section 499: 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.

Explanation 1: It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2: It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3: An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4: No imputation is said to harm a person’s reputa­tion, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

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.

It is noteworthy that Section 499 of the IPC, 1860 has remained unaltered for the last 158 years.

The law of defamation and right to free speech

One of the major exceptions to defamation is if what is being alleged is the absolute truth and is for the public good.

The criminality of defamation was challenged in the Supreme Court in 2015. The argument was that it was an unreasonable restriction on the constitutionally-guaranteed right to freedom of speech and expression.

The apex court, however, upheld the British-era Section in its ruling in 2016. (Subramanian Swamy V. The Union of India [AIR2016SC2728])