UNDERSTANDING DEFAMATION – PROTECTING YOUR REPUTATION LEGALLY
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The Supreme Court of India recently found itself at the intersection of politics, law, and the boundless reach of social media, all in the context of a seemingly harmless retweet. The Delhi Chief Minister, Arvind Kejriwal, had been summoned in a criminal defamation case for retweeting an allegedly defamatory video posted by a YouTuber back in 2018.
The Delhi High Court noted that the act of retweeting can be interpreted as “projecting the content as one’s own views.” This, the court said, could prima facie bring the Chief Minister under the ambit of Section 499 of the Indian Penal Code, 1960, (Now, Section 356(1) of the Bhartiya Nyaya Sanhita, 2023) which defines and penalizes defamation. For someone in such a powerful position, the Hon’ble Court observed, retweeting could easily be seen as a public endorsement.
On the other hand, the Supreme Court’s ruling in this case was a nuanced one. While the court acknowledged that, in certain contexts, retweeting can indeed amount to endorsement, it made a crucial distinction: retweeting does not always equate to endorsing.
Defamation is a multifaceted legal issue that sits at the intersection of protecting individual reputations and upholding the right to free speech. While the protection of personal and organizational reputation is crucial, freedom of speech and expression, enshrined in Article 19(1) under the Indian Constitution, must be safeguarded.
UNDERSTANDING DEFAMATION
To defame someone means to harm their reputation through false or malicious statements. The term originates from the Latin word “diffamare,” meaning to spread or transmit information about someone that could damage their public image. According to Black’s Law Dictionary, defamation refers to the act of injuring a person’s character or reputation through false and harmful statements.
The Indian Penal Code (IPC), Act No. 45 of 1860
The Bharatiya Nyaya Sanhita (BNS), 2023, Act No. 45 of 2023.
In legal contexts, defamation can take two forms:
- Libel: Defamation in a permanent form, such as through writing, printing, or imagery.
- Slander: Defamation in a transient form, often spoken words or gestures.
However, Indian law does not make a distinction between libel and slander, treating both as criminal offenses.
LEGAL FRAMEWORK OF DEFAMATION IN INDIA
Defamation law in India is primarily divided into two categories: criminal and civil defamation.
Criminal Defamation
The Indian Penal Code (IPC), under Chapter XXI, Sections 499–502, deals with defamation as a criminal offense. Section 499 defines defamation and lists exceptions where defamatory statements may not result in prosecution, such as those made in good faith or for the public good.
The IPC also addresses specific forms of defamation:
- Section 153 (Now, Section 192 of the Bhartiya Nyaya Sanhita, 2023): Defamation against a class or community, which could lead to rioting.
- Section 295A (Now, Section 299 of the Bhartiya Nyaya Sanhita, 2023): Defamation involving hate speech intended to outrage religious sentiments.
- Section 499 (Now, Section 356(1) of the Bhartiya Nyaya Sanhita, 2023): Defamation as an act by which a person makes or publishes any imputation concerning any person, knowing that such imputation will harm, the reputation of the person.
- Section 500 (Now, Section 356(2) of the Bhartiya Nyaya Sanhita, 2023): Prescribes the punishment for defamation, which is simple imprisonment for a term which may extend to two years, or with a fine, or both.
- Section 124A: Defamation as words, signs, or other means to bring hatred or contempt towards the government of India. (Section 152 of the Bhartiya Nyaya Sanhita, 2023 – addresses acts that endanger the sovereignty, unity, and integrity of India)
The Supreme Court upheld the constitutionality of IPC Sections 499 and 500 in Subramanian Swamy vs. Union of India. The Court held that the right to reputation is an equally important fundamental right under Article 21 (Right to Life and Personal Liberty). Protecting someone’s reputation is a legitimate state interest, and reasonable restrictions on free speech are permissible.
These provisions ensure protection for individual reputations and societal harmony, but they also come under criticism for being used to curb free expression in certain cases.
Civil Defamation
Civil defamation in India, though not codified in a specific statute, is governed by the law of torts, allowing an injured party to seek damages for harm caused to their reputation. Unlike criminal defamation, which can lead to imprisonment, civil defamation focuses on financial compensation.
For a civil defamation claim to succeed, the plaintiff must prove that the defendant made a defamatory statement that was false and lowered the plaintiff’s reputation in the eyes of society. Additionally, the statement must have been published, meaning it was communicated to a third party, and it must have caused injury to the plaintiff’s reputation, leading to either social or financial harm.
Defences available to the defendant in civil defamation include proving that the statement was true, making a fair comment on a matter of public interest, or claiming qualified privilege, such as statements made in parliamentary proceedings or judicial contexts. The primary remedy in civil defamation cases is financial damages, which can be compensatory, exemplary, or nominal, depending on the extent of the harm.
Subramanian Swamy v. Union of India although primarily dealt with the constitutionality of criminal defamation, it re-emphasized the distinction between civil and criminal defamation, upholding the right of individuals to seek financial redress through civil courts for damage to their reputation. In Ram Jethmalani v. Subramanian Swamy, prominent lawyer Ram Jethmalani sued Subramanian Swamy for defamatory statements made during a public event. The court ruled in favour of Jethmalani, awarding him damages, thus emphasizing the significance of financial compensation in civil defamation cases.
Cyber Defamation
With the rise of social media and the internet, cyber defamation has emerged as a significant legal concern. Cyber defamation, occurs when harmful statements are made through digital platforms, damaging a person’s reputation.
The ease of communication on social media platforms makes the rapid spread of defamatory content almost effortless, amplifying the damage to an individual’s or organization’s reputation. Cyber defamation mirrors traditional forms of defamation in terms of content, but its reach and influence are far greater due to the nature of the internet.
The Shreya Singhal v. Union of India case marked a significant milestone in protecting free speech on the internet. The case arose after multiple instances of misuse of Section 66A of the Information Technology Act, 2000, which criminalized sending “offensive” messages via the internet. The section’s vague language, including terms like “grossly offensive” and “annoying,” led to arbitrary arrests. Challenging the constitutionality of Section 66A, petitioners argued that it violated the right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. They contended that the section was overly broad, vague, and had a chilling effect on free speech, as people would hesitate to express their views online for fear of prosecution.
On March 24, 2015, the Supreme Court struck down Section 66A as unconstitutional, ruling that it did not meet the criteria of a “reasonable restriction” under Article 19(2). The Court found that the provision’s vague and subjective language led to arbitrary enforcement, which stifled free speech.
The Court also upheld Section 69A, which allowed the government to block websites under specific conditions, and Section 79, which dealt with intermediary liability, clarifying that social media platforms would not be held liable for third-party content if they complied with government notifications. The Shreya Singhal case ultimately paved the way for a more open and freer internet in India, ensuring that citizens can express themselves online without the fear of arbitrary prosecution.
Challenges in Online Defamation
One of the primary challenges of online defamation is anonymity. Identifying the source of defamatory statements online can be difficult due to issues like falsified identities, IP address spoofing, and the use of encrypted communication. This makes it harder to bring offenders to justice. Defamatory content on the internet can go viral within minutes, leading to widespread damage before any legal intervention is possible. Moreover, even if the content is removed, traces can persist through reposts, cached data, or mirrored websites.
Furthermore, determining jurisdiction is another complex issue. Since the internet transcends borders, questions arise regarding where a defamation case should be filed—based on the location of the publisher, the target audience, or the victim.
Determining the liability of online intermediaries, such as social media platforms, websites, and search engines, poses a challenge. These platforms are often not the creators of the defamatory content but may be responsible for its dissemination.
In Sahara India Real Estate Corporation Limited v. SEBI, the Supreme Court ruled that defamation cases can be pursued for online content, particularly for defamatory articles or reports published on websites. This judgment underlined that the principles of defamation law applied equally to content on the internet as they do to traditional media.
Further, in Swami Ramdev & Anr. vs Facebook, Inc. & Ors.,, the Delhi High Court dealt with the issue of intermediaries’ liability for defamatory content. Swami Ramdev filed a suit against Facebook, Google, and Twitter, demanding the removal of defamatory content posted by third parties. The court ruled that intermediaries must remove defamatory content globally if directed by a court in India, thereby establishing precedents for the global reach of takedown orders in online defamation cases.
The legal framework for online defamation in India requires further clarification, especially given the borderless nature of digital communication.
CONCLUSION
In conclusion, the intersection of defamation law and social media poses significant challenges and opportunities for protecting individual reputations while upholding the fundamental right to free speech. The Supreme Court’s recent rulings, particularly regarding retweets and online expression, have underscored the need for a nuanced understanding of how digital interactions can influence perceptions and reputations.
While India’s legal framework for defamation, encompassing both criminal and civil provisions, aims to safeguard personal dignity and societal harmony, it must also adapt to the complexities of the online world. Cases like Shreya Singhal v. Union of India and the recent decision involving Arvind Kejriwal serve as pivotal moments in defining the boundaries of acceptable speech in a digital landscape, ensuring that the rights of individuals are protected without stifling legitimate expression. As society continues to navigate the challenges of online communication, it is imperative for the legal system to evolve, striking a balance that preserves both reputation and freedom of expression in an increasingly interconnected world.