Meaning of Defamation, Essential elements and its exception. Difference between Slander and Libel.
The law gives protection to a man’s reputation which to some is dearer than life itself. The aim of the law of defamation is to protect one’s reputation, honour and dignity in the society. A person needs protection of his reparation, honour, integrity and character as much as the right to the enjoyment of property, health, personal safety, liberty and a number of other privileges.
Defamation an injury to a person’s reputation is both a crime and a civil wrong. An aggrieved person may file a criminal prosecution as well as a civil suit for damages for defamation.
In a civil action for defamation truth is a defence, but in a criminal action, the accused must prove both the truth of the matter and that its publication was for the public good. The defence of truth is not satisfied merely by proving that the publisher honestly believed the statement to be true, he must prove that the statement was in fact true.
To constitute the offence of “defamation” there has to be imputation and it must have made in the manner as provided in the provision with the intention of causing harm or having reason to believe that such imputation will harm the reputation of the person about whom it is made. Causing harm to the reputation of a person is the basis on which the offence is founded and mens rea is a condition precedent to constitute the said offence. The complainant has to show that the accused had intended or known or had reason to believe that the imputation made by him would harm the reputation of the complainant. The criminal offence emphasizes on the intention or harm. Section 44 of Indian Penal Code defines ‘injury’. It denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. Thus, the word ‘injury’ encapsulates harm caused to the reputation of any person. It also takes into account the harm caused to a person’s body and mind.
The ‘character’ of a person is what a person “actually is”, while “reputation” is what neighbors and others say “what he is”. Defamation is concerned with the latter. It is not necessary that the actual harm should result. By ‘harm’ is meant imputation on a man’s character made and expressed to other so as to lower him in their estimation. Anything, which lowers him in his own estimation, does not constitute defamation. The words ‘visible representation’ includes pictures, caricatures, statues, effigies, cinema film etc.
The defamatory matter should be published i.e., communicated to some person other than the one to whom it relates, thus, dictating a letter to a clerk amounts to a publication. A man’s opinion of himself is not his ‘reputation’ and therefore, communication of defamatory matter to the persons defamed is not publication.
Section 499 to 502 of the Indian Penal Code, 1860 deal with the offence of ‘Defamation’ section 499 defines the offence of defamation with the help of four explanations, ten exceptions and a number of illustrations.
According to section 499 of the Indian Penal Code explains “Defamation” as “whoever, by words either spoken or intended to be read, or by sings or by visible representation makes or published 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 herein after expected, to defame that person.
The offence of defamation consists of the following essential ingredients.
- Making or publishing of an imputation concerning a person
- Such imputation should have been made,- a) by words either spoken or written,or b) by signs, or c) by visible representation;
- The said imputation should have been made with intent to harm or knowing or having reason to believe that it will harm the reputation of such person defame him.
Explanation 1 :- Refers to defamation in respect of a deceased person. If the defamatory statement imputes anything to a deceased, if living or if defame the family members of the deceased.
Explanation 2:- relates to a company or an association or collection of person as such. A company or corporation can sue for defamation, if it affects its reputation or business.
Explanation 3:- deals with innuendo ‘indirect reference’ i.e. saying something ironically. In other words, a statement by itself is no defamation. But, because of the existence of some latent and secondary meaning, it becomes defamatory.
Explanation 4:- deals with fallen reputation. If a person has no reputation at all, he cannot be defamed.
Section 499 provides ten exceptions to the change of defamation when a statement would not attract penalty. These are based on the ground of truth, good faith or public interest, and strike a balance between freedom of speech and expression guaranteed under Article 19(1)(a) of the constitution and the individuals right to reputation. The burden of proof of the Exception is on the accused. These Exception are as follows :-
Imputation of truth for public good – Two condition are required to be proved :-
a) that the impugned statement must be show to be true ; and
b) that its publication must be shown to be for public good.