• Devesh Saxena

How to seek Civil Remedy against Defamation?

Updated: Jun 16, 2021


Every human being is allowed to have a reputation of his own, as it is the only thing, which remains associated with the person even after his death. The reputation of a person can be termed as his property and he has all right to preserve his property. In simple words, any act done by a person that has a tendency to malign the person’s character can be termed as defamation. Black’s Law Dictionary has defined defamation as “the offence of injuring a person's character, fame, or reputation by false and malicious statements”. Defamation in recent times has become a hotly debated topic and the tussle between the freedom of speech and expression guaranteed under Article 19 (1) (a) of the Indian Constitution and the defamatory statement has increased. Defamation is a very broad concept, and it is still unclear to individuals as to which of their statements might be considered defamatory.

Defamation: Meaning and its Constituent-

The term ‘Defamation’ has been defined under section 499 of Indian Penal Code, 1860 (hereinafter IPC). It says, “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.”[1] This definition is very comprehensive and is complemented with four explanations to the section. This definition of defamation is more or less the same as that of the United Kingdom. Under the British law, it has been defined by Sir Percy Henry Winfield as, “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.”[2] Therefore, in order to bring a suit for defamation, a person’s reputation needs to be damaged by another person, by publication to a third party.

In order to constitute defamation, it is necessary that the statement published be false and it should be made without the consent of the allegedly defamed individual. Any publication against a person can be interpreted in many ways, but it needs to be interpreted as per common parlance and usage. As defamation is a very subjective thing, i.e., what may be defamation to one need not be defamation for the other person. One thing needs to be noted is that mere damage to the feeling of a person would not constitute defamation, and there should be damage to the reputation. Moreover, the person who is alleging that he/she is being defamed should be ascertainable by the accused statement, and it should not be a general statement.

Defamation is categorized legally into two categories, i.e., libel and slander. Libel is a defamatory statement which is written, while on the other hand, slander is a defamatory statement which is oral. Therefore, libel is the one where the publication is done in some permanent form, like in case of writing, painting, any picture, etc. On the other hand, slander is done in a temporary manner, as in the case of spoken words or gestures. Earlier, these two categories were clearly demarcated, but with the beginning of the prevalence of electronic communication, the difference has somewhat hazed, and it is quite difficult to clearly demarcate them.

Thus, the vital elements that need to be fulfilled in order to file a suit for defamation are, firstly, the alleged statement (either written or spoken) must be defamatory. Secondly, that statement must be referred to as the plaintiff. Lastly, the most important thing is that the said statement should be published, i.e., it must be made known to the third person other than the plaintiff and defendant.

Criminal and Civil remedies in Defamation

Indian laws do not adhere to the distinction between libel and slander done by English law. Both these types are considered as criminal as well as a civil offence. The plaintiff has remedies available under both civil and criminal head, and he can very well choose whether he wants to institute a civil suit for compensation, or criminal suit for punishment. It goes without saying that the burden of proof on the plaintiff is higher in case of criminal remedy than a civil remedy.

The IPC protects the reputation of the person under section 499-502 (Chapter XXI). Section 499 is a definition provision, wherein an elaborate definition of the defamation is given.[3] This definition is coupled with four explanations and ten exceptions. Once the charge of defamation is proved against the defendant under section 499, then the punishment is awarded to the defendant as per section 500. It says, “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.[4] The offence of defamation is non-cognizable and bailable one.

The civil remedy is usually availed by the plaintiff in a case where he does not want to punish the defendant by imprisonment, instead he wants his damages in monetary terms. The constituents for civil remedy is the same, i.e., the statement needs to be false, defamatory, and need to be published. The suit for defamation can only be brought by the person who is defamed, and not by his relatives, friends or his known person.[5] Also, any general statement made towards a group or class of person does not amount to defamation. So, any statements against the players, lawyers, doctors would not be considered unless the concerned plaintiff proves that the said statement is directed towards him, and fulfils the three requirements stated above.[6] One pertinent thing to note here is that in order to get a remedy for defamation, the plaintiff need not show the intention to defame. It is irrelevant whether the defendant had the intention, or even about the veracity of the statement made by him. The only thing relevant is that the statement should be the one which has the tendency to lower down the reputation of the plaintiff in the mind of third person. In a case, where the newspaper agency published that lady has given birth to twins, even though in reality she was married only two months prior to the publication. The defendant here acknowledges his mistake and argued that he was not aware of the facts, hence there is a lack of intention. However, the lady plaintiff was entitled to the damages, and the defendant was held accountable.[7]

Defences Available To Defendant In The Defamation Case:

The initial burden of proof lies on the plaintiff that the statement made by the defendant was a defamatory one. After the plaintiff has established his case, the onus of proof shifts to the defendant. The defendant needs to show that the alleged statement was not defamatory in nature. For this, the defendant will show that this particular statement falls under the defences. The following are the defences which are available to the defendant in an action of civil liability in a suit for defamation.

a. Truth: It acts as a complete defence in the civil proceedings. This is because even though the statement was of malicious in nature, then also it holds true. Any publication done by a person on verifiable facts will not be considered defamatory. Thus, the plaintiff will not be able to recover the damages.

c. Absolute Privilege: fair and bona fide comment in the interest of the general public is not considered as defamatory. The statement should be the one which the general public has a legitimate interest.

c.Absolute Privilege: Even though the statement is defamatory in nature, but the person making it has absolute privilege, then he will be absolved from it. It is done for the common interest of society. It is available in court proceedings to Judges, Counsel, Jury, Witness, etc. These people would not be able to carry their work if they would have a fear that they can be charged under the defamatory provisions.

d. Consent: If the statement made by the defendant was with the consent of the plaintiff then he can absolve any liability from it.

Stages For Defamation Suit

The realm of defamation is very broad, and thus it is quite perplexing as to what falls within the periphery of defamation and what lies outside it. Another problem in the institution of suit for defamation is to choose between the two available remedies, i.e., civil and criminal. It is up to the plaintiff, or the victim to decide what remedy he wants to go for. The first step begins with the meeting with a lawyer who is well versed with the dynamics of the defamation laws. The plaintiff should discuss the said statement with his lawyer, and all the intricate details concerned with the subject matter. The plaintiff then depending upon the peculiar facts, and what the plaintiff wants (whether he wants the compensation for the loss of goodwill and repute or he wants the defendant to be imprisoned) can choose the remedy he wants to pursue.

It is advisable to the plaintiff to go for civil remedy if he wants to maintain the status quo and compensation for the defamatory statement published by the defendant. Going for civil remedy is a more prudent choice for the plaintiff because of several reasons. Firstly, if the plaintiff does not have any personal animosity with the defendant, then he wouldn’t get anything by going for a criminal remedy. In criminal remedy, the defendant will be punished by the court with simple imprisonment and fine, or both. Whatever fine court will levy on the defendant, it will not go directly to the victim, and also in case of imprisonment, the plaintiff will not be personally benefitted from it, apart from the satisfaction of proving the statement defamatory. On the other hand, if he pursues civil remedy, then he will be awarded compensation for the defamatory statement, and hence will get some monetary claim for the loss of repute and goodwill in society. Secondly, the initial burden of proof of proving that the statement was defamatory lies on the plaintiff. In the criminal suit, the burden of proof is beyond a reasonable doubt. It is more difficult to show that the defendant was criminally liable considering the high burden of proof. Moreover, the cases of defamation are usually surrounded by the cloud of uncertainty, especially in the situation of oral statements. It is a very subjective thing to prove, as the statements made by the defendant can have multiple interpretations. Thus, with the higher onus of proof in criminal cases, it can be a difficult task to prove the guilt of the accused. On the other hand, in civil cases burden of proof is relaxed and placed at lower pedestal than the criminal cases. The onus of proof is a mere preponderance of probabilities. Thus, it would be easier for the plaintiff to avail remedy here, even if the facts of the case are hazy.

The civil suit for defamation is like any other civil suit. There is a detailed process which needs to be adhered to, if not then the court registry has the right to dismiss the suit. The suit is instituted by the filing of a plaint by the plaintiff, wherein the plaintiff mentions the contention. The plaint comprises of court’s name, nature of the complaint, name and address of the parties of the suit. Before the institution of the suit, the plaintiff has to find the appropriate court which has jurisdiction over the matter. There are three types of jurisdictions mentioned in the Civil Procedure Code, i.e., pecuniary jurisdiction, territorial jurisdiction, and subject matter jurisdiction. The jurisdiction of the court varies as per the damages claimed by the plaintiff. Section 6 of the CPC deal with the pecuniary jurisdiction of the civil court. It divides the courts into a vertical basis. However, it is pertinent to note here that the pecuniary jurisdiction of each High Court varies, as the limit is decided by the respective High Court rules. However, it is generally seen that the High Court and the District Courts have no such limit up to which they can entertain the matter. All matters go before the District Court, and then the appeal lies before the High Court. In Delhi currently, suit valuing above Rs. 20,00,000 have jurisdiction in the High Court, and the suit lesser than the said value lies to the district court.

Once the court starts hearing the matter, and if it thinks fit that there are merits in the case, then it will issue a notice to the defendant. This is done to make the other party aware that a suit has been instituted against them. The defendant then has to submit their side of the arguments, and a day is fixed for the next hearing in the court. Court then frame the issues to be decided by it in the case. The court then if feel needs to collect further evidence, can ask for interrogatories from the parties. The court in order to collect more evidence can also summon the witness from either party. Parties to suit can ask the other party through court orders to produce certain documents associated with the case. The court can also examine and cross-examine the witness. On the final hearing day, the arguments will take place, and after which the court may fix a date for the final order.

This article is authored by Mr. Abhishek Kumar, a fourth-year student pursuing B.A. LL.B.(Hons.) from National Law University, Delhi, during his online internship with S&D Legal Associates.

[1] Section 499, The Indian Penal Code 1860 [2] Sir Percy Henry Winfield, Winfield on Tort: A Textbook of the Law of Tort (Sweet & Maxwell publication, 1954) [3] Supra at 1. [4] Section 500, Indian Penal Code 1860 [5] Harash Mendiratta vs. Maharaj Singh 2002 Cr. L.J. 2651 [6] Knuffer vs. London Express Newspaper Ltd. (1944) 1 All E.R. 495 [7] Morrison vs. Rithie & Co. (1902) 4 F. 654