Criminal defamation

1. CRIMINAL DEFAMATION
By
Upasana Venkatasubban
Legal Manager
EscrowTech India Private Limited

2. WHAT IS DEFAMATION?
Defamation is the communication of a false statement that harms the reputation of an individual
person, business, product, group, government, religion, or nation.
In India, defamation is both civil and criminal offence. The remedy for a civil defamation is
covered under the Law of Torts. In a civil defamation case, a person who is defamed can move
either high court or subordinate courts and seek damages in the form of monetary
compensation from the accused.
The Indian penal Code, 1860 provides an opportunity for the defamed person to file a criminal
case against the accused. Under sections 499 and 500 of the IPC, a person guilty of criminal
defamation can be sent to jail for two years.
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.

4. DIFFERENCE BETWEEN CRIMINAL & CIVIL DEFAMATION?
1. In Civil defamation, a mala fide intention to defame is not always necessary while a
Criminal defamation must contain some deliberate malice or mala fide intention, to
cause damage to reputation of someone.
2. In civil defamation, Court fees are required to be paid as per value of damages caused
to reputation whereas court fees are NOT required at the level of a civil case in a criminal
defamation case.
3. At the end of case, court punishes offender if defamation is proved in criminal case and
awards damages to compensate loss to reputation if defamation is proved in civil
defamation case.

5. FREEDOM OF SPEECH VS CRIMINAL DEFAMATION
Article 19 (1) (a) of the Constitution
guarantees every citizen of India
the freedom of free speech and
expression.
Article 19(2) limits the freedom of
speech with reasonable restrictions.

6. Every citizen has a right to freedom of speech and expression unless this freedom goes against
the following:
 The sovereignty and integrity of India.
 Security of the State.
 Friendly relations with foreign states.
 Public order, decency and morality.
 Or is in relation to contempt of court, DEFAMATION,
or incitement to an offence.
From the above we see that freedom of speech is not applicable in case of defamation.
Section 499 of the Indian Penal Code defines what qualifies as criminal defamation.
Criminal defamation refers to intentionally harming someone’s reputation.
If the intent is not clear, then the lawsuit becomes a civil defamation.

7. DEFAMATION AS AN OFFENCE
There are certain basic requirements for a successful defamation suit:
 First, the presence of defamatory content is required. Defamatory content is defined as one
calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule.
 Second, the claimant should be identified in the defamatory statement. The content must be
clearly addressing a particular person or a very small group for it to be defamation.
 Third, there must be a publication of the defamatory statement in either oral or written form.
Unless the content is published – made available to someone other than the claimant, there can
no defamation.
Under a civil suit, once all these conditions are satisfied, a defamation suit subsists, and the defendant
has to take up a defense. If the defendant fails to do so satisfactorily, the defamation suit is
successful.
Under a criminal suit, intention to defame is an important element. In the absence of intention, the
knowledge that the publication was likely to defame or is defamatory becomes essential. All this is
further subject to the normal standard of proof in criminal cases: beyond reasonable doubt.

8. SOME COMMON DEFENCES TO DEFAMATION
 Truth: It is not defamation to impute anything, which is true, concerning any person. In
India, truth is an absolute defense in Civil Cases however; in Criminal cases, the true
statement must also be an imputation for public good. Therefore, irrespective of the
intentional of an individual, no defamation suit can be brought against someone if he
imputes something true (and for public good under section 499, IPC).
 Privilege: Individual may be protected from claims of defamation under tort or even
criminal defamation by a privilege conferred on them by law. Absolute privilege irrespective
of intention to defame is conferred upon Government officials, Judges and other such
public officials in discharge of their public functions by the law. Journalists are however
given Qualified privilege, valid only if made without the intention to defame.
 Fair Comment: In case of defamatory opinions, the exception of fair comment is allowed.
The publication has to be clearly expressed as an opinion and should not mixed up with
facts. Also, the opinion should be one that a fair-minded person is capable of holding such
opinion even if the reasoning is illogical.

9. SHAH RUKH KHAN VS STATE OF RAJASTHAN & ORS
In a nutshell, the facts of the case are that, in 1996, under the direction of Mr. Rajiv Mehra, a
Hindi film Ram Jaane was released for public viewing after due certification by the Central Board
of Certification. The Petitioner played the role of the protagonist in the film. In the later part of
the film, the hero is tried for triple murders.
In the courtroom scene, the defense lawyer gets up to defend
the hero who is, however, bent upon confessing his crime.
He, therefore, questions the conduct of the lawyer and says:
“This lawyer well knows that I have killed the three persons,
yet he tries to save me. Why? For the sake of money, no?
For the sake of money, he sells his morals. He sells the laws.
By selling the laws, you people have turned life into a misery.”
(English translation of the Hindi dialogue)

10.  An open reading of the script clearly establishes that neither the theme of Ram Jaane, nor
its plot, is geared to parody the legal profession. It is a commonplace in the criticism of
fiction that plot is the surest index of the work's meaning. There is little in this film to
suggest that it was composed merely to parody the legal profession lock, stock, and barrel.
And the intention that is not integral to the work can't, by any honest critic, be imposed
upon it.
 The law requires that the defamatory statement, in order to be actionable, be made against
a definite and an identifiable group. However, lawyers taken as a class cannot be identified
with any particular individual, indefinite, and unidentifiable as the members are: Firstly, the
members of this class are too varied to be reduced to a few traits. Their is not a
homogenous class, but a heterogeneous one, made up of wonderfully different individuals.
Secondly, they are spread over the length and the breadth of the land. Thirdly, the class is
always in flux, ever changing, as new lawyers enter and old ones depart the profession. The
entire members of the class are clearly unidentifiable and indeterminable.

11. To conclude, quotation of renowned author William Shakespeare.
The quotation sums up defamation and its requisite perception. In his famous work ‘Othello’:
“He that filches from me
my good name, Robs me of that,
which not enriches him,
and makes me poor indeed.”
CONCLUSION