Insights into Editorial: The need for reform of defamation laws
A BJD Member of Parliament is planning to propose a new Bill to reform the laws on defamation. Currently, the law favours protecting the right to reputation over the right to free speech and a new law may actually be the best way to fix the situation.
What is defamation all about?
Defamation refers to the act of publication of defamatory content that lowers the reputation of an individual or an entity when observed through the perspective of an ordinary man. If defamation occurs in spoken words or gestures (or other such transitory form) then it is termed as slander and the same if in written or printed form is libel. Defamation in India is both a civil and a criminal offence.
- In Civil Law, defamation falls under the Law of Torts, which imposes punishment in the form of damages awarded to the claimant (person filing the claim).
- Under Criminal Law, Defamation is bailable, non-congnizable and compoundable offence. Therefore, the police cannot start investigation of defamation without a warrant from a magistrate (an FIR cannot be filed). The accused also has a right to seek bail. Further, the charges can be dropped if the victim and the accused enter into a compromise to that effect (even without the permission of the court).
Sections 499 and 500:
Sections 499 and 500 in the IPC deal with criminal defamation. While the former defines the offence of defamation, the latter defines the punishment for it.
- Section 499: 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.
- 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.
Why defamation should remain a criminal offence?
Arguments ‘In favor’:
- Defamation should remain a penal offence in India as the defamer may be too poor to compensate the victim in some cases.
- Since there is no mechanism to censor the Internet from within, online defamation could only be adequately countered by retaining defamation as a criminal offence.
- Also, criminalisation of defamation is part of the state’s “compelling interest” to protect the right to dignity and good reputation of its citizens.
- Unlike in the U. S, defamation in India cannot be treated only as civil liability as there is always a possibility of the defamer being judgment free, i.e., not having the adequate financial capability to compensate the victim.
- Besides, Sections 499 and 500, framed in 1860, cannot be said to obsolete in a modern democratic polity as there are 10 exceptions to Section 499 of the IPC. These exceptions clearly exclude from its ambit any speech that is truthful, made in good faith and/or is for public good.
- ‘Truth’ is generally considered to be a defence to defamation as a civil offence but under criminal law, truth is a defence only in a limited number of circumstances. Besides the statement or writing being demonstrably true, it also requires to be proved that the imputation was made for public good.
- Critics argue that defamation law impinges upon the fundamental right to freedom of speech and expression and that civil defamation is an adequate remedy against such wrongs.
- Many countries worldwide are in favor of treating defamation as a civil wrong, not as a criminal offence. Also, in 2011, the Human Rights Committee of the International Covenant on Civil and Political Rights called upon states to abolish criminal defamation, noting that it intimidates citizens and makes them shy away from exposing wrongdoing.
- The misuse of law as an instrument of harassment is also pervasive in India. Often, the prosecutor’s complaint is taken at face value by courts, which send out routine notices for the appearance of defendants without any preliminary examination whether the offending comments or reports come under one of the exceptions spelt out in Section 499. Thus, the process itself becomes the punishment.
- Criminal defamation has a pernicious effect on society: for instance, the state uses it as a means to coerce the media and political opponents into adopting self-censorship and unwarranted self-restraint.
- The law can also be used by groups or sections claiming to have been hurt or insulted and abuse the process by initiating multiple proceedings in different places.
- Also, criminal defamation should not be allowed to be an instrument in the hands of the state, especially when the Code of Criminal Procedure gives public servants an unfair advantage by allowing the state’s prosecutors to stand in for them when they claim to have been defamed by the media or political opponents.
- Defamatory acts that may harm public order are covered by Sections 124, 153 and 153A, and so criminal defamation does not serve any overarching public interest. Even though Section 499 provides safeguards by means of exceptions, the threat of criminal prosecution is in itself unreasonable and excessive.
What needs to be done now?
Reforms to defamation would best be done through the enactment of a new statute. Such a law should decriminalize defamation and reform civil defamation to make it fairer and clearer.
- The new law should also factor in the Internet and new media when deciding issues like who can be punished for defamation and how.
- Limits should also be set around civil defamation—not only must the loss to reputation be serious, the proof must also be substantial. The complainant must demonstrate that material injury was caused to their reputation as a direct result of the alleged statement.
- Truth, opinion and reasonable inference should also be made viable defences in defamation suits.
- Courts should also be empowered to impose exemplary costs on frivolous suits that waste their time.
- To ease the burden of the judiciary, it is vital that courts are required to only hear serious defamation cases that haven’t been amicably settled.
- Legal reforms can also be supplemented by measures addressing the imbalance of resources, such as indemnification clauses in contracts for journalists and a form of defamation insurance.
While the right to reputation may be protected by the Constitution, it should not be at the cost of freedom of speech. Free speech is necessary because, among other things, it enables the media to hold governments and individuals accountable. Freedom of speech should also protect the right to offend within reasonable limits, i.e. to legitimately criticize the rich and powerful. Ultimately, some kind of reform is necessary—free speech is meaningless without the right to reasonably offend. If the ability to legitimately criticize is not protected, voices throwing light on important issues will continue to be silenced by the rich and powerful. And without those voices, the Indian state could be dramatically altered or compromised while Indians are kept in the dark.