CRIMINAL DEFAMATION AN AID TO PROTECT ONE S DIGNITY

Transcription

1 CRIMINAL DEFAMATION AN AID TO PROTECT ONE S DIGNITY Chirag Mangal 1 & Snehil Singhvi 2 INTRODUCTION There is a whole new stir in the country s environment regarding defamation. There is a continuous debate going on in the region whether to make defamation only a civil wrong or to keep it criminalized as well as civil in nature. It has been in news past some time and a matter of discussion in courts and a tool of politics in the country. It has been challenged on the basis that it is unconstitutional in nature as it violates the Article 19(1)(a) of the Indian Constitution. The Supreme Court has recently been of the view that right of reputation provides for reasonable restriction to Article 19(1)(a) of the Indian Constitution. The importance of reputation for a man is just next to the importance of his own life. Sometimes even an individual gives it topmost priority and even prefer death then living with an imputed reputation. Many individuals are even inspired to do or abstain to do something because for the love of their reputation. Every individual in some way or the other works to earn reputation and respect from the society. This respect from the society makes them to attain name and recognition which they innately long for. That is why it is important to have laws to protect the reputation of a person same as we have laws to protect our lives and freedom. Defamation stated simply is communication of false statement that harms or injure the reputation of a person, dead or alive, group, religion, business, government, and nation. It means that if an individual or a group of persons or anyone who publishes or communicate in any other form a statement which is false in nature and that statement affects, harm or injure the reputation of another individual then that person is said to defame the other person. According to Section 499 of the Indian Penal Code, 1860, Defamation is defined as 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 1 2nd BCOM LLB Student, Institute of Law, NirmaUniversity 2 2nd BCOM LLB Student, Institute of Law, NirmaUniversity 1 P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 11

2 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 excepted, to defame that person. 3 Defamation is generally divided into two types, i.e., slander and libel. Slander can be defined as oral defamation, in which someone tells one or more person an untruth about another which untruth will harm the reputation of the person defamed. 4 Libel can be defined as to publish in print (including pictures), writing or broadcast through radios, television or film, an untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others. 5 Defamation is generally civil in nature but many countries including India has criminalized certain aspects of defamation. WHAT IS REPUTATION? Reputation is not defined in law, however the Supreme Court has held that reputation is a right to enjoy the good opinion of others and the good name, the credit, honour or character which is derived from such favourable public opinion. 6 It is earned from the observance of rules in the society. Reputation can sometimes be measured in monetary terms and civil actions can be filed for damages but a loss to dignity cannot be measured in monetary terms so any compensation for damages is irrelevant here. HISTORY During the Roman period, for safeguarding the reputation of men, punishments were introduced for defamation. Verbal defamation was civil in nature as in compensation was provided and the amount was decided from case to case. After sometime the remedy was extended with turning many kinds of defamation as crime and punishing with great severity. In Anglo-Saxon England, slander was punished by cutting out the tongue. 3 Section 499, Indian Penal Code, Available at last visited on 12 th December Available at last visited 12 th December Available at last visited 12 th December P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 11

3 This shows that injury to reputation has been recognized in earlier times also and has been termed as crime in many conditions. In contemporary world also many laws are recognized and formulated for defamation. There is a difference from country to country for the extent of punishment of defaming someone. Each country has different statutory provisions for defamation. CURRENT STATUTORY POSITION INDIA The Constitution of India, under Article 19(1)(a), gives the people of India the Fundamental Right to freely express their opinion and there is a freedom of speech and expression. The same article provides for reasonable restrictions which states that Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of [the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. 7 This restriction can be better understood from the Indian Penal Code of India, Section of the Indian Penal Code, 1860 gives laws related to defamation. Section 499 defines what defamation is Defamation - 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. 8 Section 500 states the punishment Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. 9 7 Article 19(2), The Constitution of India, Supra 1. 9 Section 500, Indian Penal Code, P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 11

4 Section 501- Printing or engraving matter known to be defamatory - Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. 10 Section 502 Sale of printed or engraved substance containing defamatory matter - Whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. 11 All these sections clearly define defamation to be a crime in our country. These provisions are the reasonable restrictions that Article 19(2) of the constitution talks about. Reputation of an individual is a right in itself and is an integral part Article 21 and 19(2) of The Constitution of India. This restriction on the freedom of speech is necessary however one cannot deny the fact that freedom of speech is a valued and cherished right but at the same time the Article which provides this freedom also puts reasonable restrictions on it in the form of such laws. One cannot by boasting and claiming this right speak something which is not true and which will affect or injure the reputation of a person. There is need to focus in context of freedom of speech that it is important to protect the dignity of an individual too. There is a duty on the part of the citizens that they must not speak or communicate something which would demean the other person as interfering to another s dignity and reputation is an interference in the liberty of others. THAILAND Section 326. Defamation Whoever, imputes anything to the other person before a third person in a manner likely to impair the reputation of such other person or to expose such other person to be hated or scorned, is said to commit defamation, and shall be punished with imprisonment not exceeding one year or fined not exceeding twenty thousand Baht, or both. 12 Section 327. Defamation to the Family Whoever, imputing anything the deceased person before the third person, and that imputation to be likely to impair the reputation of the father, 10 Section 501, Indian Penal Code, Section 502, Indian Penal Code, Section 326 Thailand Criminal Code, P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 11

5 mother, spouse or child of the deceased or to expose that person hated or scammed to be said to commit defamation, and shall be punished as prescribed by Section FRANCE In France, defamation is a criminal offense defined as "the allegation or [the] allocation of a fact that damages the honour or reputation of the person or body to which the fact is imputed". In the absence of charged facts, it is an insult. 14 UNITED KINGDOM In England and Wales defamation is civil in nature as Criminal libel was abolished on 12 th January 2010 by Section 73 of The Coroners and Justice Act, In Scotland there is no distinction between libel and slander due to which all cases are of simple defamation and it has not criminalized. BRAZIL In Brazil, defamation is a crime, which is prosecuted as defamation (three months to a year in prison, plus fine; Article 139 of the Penal Code), slander (six months to two years in prison, plus fine; Article 138 of the Penal Code) and/or injury offending the dignity of another person (one to six months in prison, or fine; Article 140), with aggravating penalties when the crime is committed against the President, or against the head of a foreign government, against a public official in the performance of his official duties, or against a person who is disabled or over 60 years old (Article 141). 16 UNITED STATES OF AMERICA In the USA there is a complete different laws related to defamation. As noted earlier many countries have been following the Common Law where defamation is criminalized but here the laws are more defendant friendly because of the First Amendment which gives the right 13 Section 327 Thailand Criminal Code, Article 29 of France Press Law, The Coroners and Justice Act, Article 138, 139, 140, 141 of Brazil Penal Code 5 P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 11

6 of freedom of speech and press. Earlier libel was criminal in nature and many cases were there in which the defendant was held criminally liable for defaming another person. Many states in USA have still laws that states defamation to be a crime on their books. Internet Defamation in US - The United States also has a unique law governing accountability as it relates to acts of online defamation - Section 230 of the Communications Decency Act. 17 In short, the statute absolves Internet service providers (hosting companies, websites, developers, etc.) of defamation liability over user comments and content. 18 It's why Facebook, the corporation, is not sued every time an individual Facebook user commits an act of libel on the platform. 19 From the above mentioned positions in different countries we can suggest that there are more countries who have defamation as a criminal offence then countries who have defamation to be civil in nature. Many people argue that civil remedy is sufficient in terms of compensation but the state have a legitimate interest to make it criminal in nature as otherwise people would get away easily from any libellous speech. That is why the law to criminalize defamation is not restriction per se but serves social interest by protecting the reputation of an individual. INTERNATIONALLY United Nations International Covenant on Civil and Political Rights have stated in their Article 17 related to defamation 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. 20 JURISPRUDENTIAL ASPECT St. Augustine and St. Thomas Aquinas said that lying is contrary to the laws of nature. 17 UNITED STATES DEFAMATION LAWS, last visited on 28 th August 2016, Available at last visited 13 th December ibid 19 ibid 20 Article 17 of International Convent on Civil and Political Rights, Available at last visited on 28 th August Article 17 of International Covenant on Civil and Political Rights, Available at 6 P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 11

7 Kant held that lying, defined as false assertion is absolutely wrong. He said that liar throws away and as it were, annihilates his dignity as a human being. 21 According to him even in extreme situations it would be wrong to lie. In linguistic context, arguments again lying is an assertion implies truth, the utterance of a lie violated a universal and constitutive rule of language use and hence is always wrong. 22 In a lie the victim s will and actions are displaced and manipulated as the speaker will. And hence affects the integrity of the individual. Mill s Harm Principle: That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. 23 Defamation basically means saying lie about someone which affects the reputation of that individual in the society. All the Jurists talk about lie being morally wrong and in no circumstance the individual should lie. For them it was not only morally wrong but was also ethically wrong. Every individual should always speak truth and stay on the right side. Saying lie ruins the dignity of individual and it is against the natural law that is law that are made by nature and widely accepted by the people in the society. For an individual it may be an ordinary lie, but for the victim it may defame his reputation and goodwill to such an extent that people start looking down on that victim. SOCIO ECONOMIC FACTOR Defamation to individual affects only that person s reputation in the society. Whereas if you defame a person who represents larger portion of society or a person who has impact in the society, then defaming that person has a huge impact on society and if the person is in position or power, then defamation not only affects the individual s reputation but also that position the person is holding. For example, if you defame the chairperson/president of XYZ Company who has employees working under him and all the employees are satisfied with the job because the 21 Bryan h. Druzin and Jessica Li, THE CRIMINALIZATION OF LYING: UNDER WHAT CIRCUMSTANCES, IF ANY, SHOULD LIES BE MADE CRIMINAL? The Journal of Criminal Law and Criminology, , Available at last visited on 22 nd August 2016 at 3:00 pm. 22 ibid 23 ibid 7 P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 11

8 company gives them employment benefits like free medical and education facility to them. One day the competing firm falsely spreads the word that XYZ Company won t be giving benefits to employee anymore and even the pay package will reduce. After this defamatory statement many employees leave their jobs from the firm in search of some better firm, but they are unable to find any employment. Resulting in their unemployment and also affecting the firm s reputation. Hence there is socio economic impact to this defamatory statement, as it creates unemployment which affects the society at large and the company faces economic problems as their large number of employees leave the job. Recently, the Sikh community in India filed a case in Supreme Court, asking to ban the Santa- Banta jokes which usually represents Sikh community to be not so capable and intelligent like the others in the society. And are always made fun of in the jokes. The Sikh community found this to be defamatory, as the jokes actually defame the members of the community. So defamation may be in form of jokes where the person actually isn t willing to defame the Sikh community but his/her acts are actually affecting sentiments of Sikh and also defaming them by saying they are dumb in their jokes. JUDICIAL POSITION No person likes to be defamed, so every individual has a right to protect their reputation from getting defamed from false slander. Hence the government of India gives special provision under section 499 and 500 of Indian Penal Code, which talks about defamation and punishment for defamation. So every citizen can safeguard their reputation as they have a legal backing. The courts in India have been of the view to keep defamation a civil wrong as well as crime in various case laws. In the case of Dr. Subramanian Swamy vs Union of India & Ors, 24 was filed before the court to remove the sections 499 and 500 of IPC and section 199 of Criminal Procedure Court that made defamation a crime, which according to petitioners, was unconstitutional in nature. It was argued that instead of protecting reputation of individuals it had a stringent effect on freedom of speech Dr. Subramanian Swamy vs Union Of India & Ors, AIR 2014 W.P. (Crl) Harish V Nair, Right to free speech does not mean defaming another, says Supreme Court (May 14, 2016), Available at last visited on 27 th August P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 11

9 The court, regarding this matter, held that reputation is a part of right to life, so it is hard to accept the view that it has a stringent effect on freedom of speech. They also said that if these laws are removed then there will be anarchy in the country and everyone will have a thought to abuse anyone they want to. This judgement gave a balanced decision balancing both article 19 as well as article 21 of the constitution. Attorney General Mukul Rohatgi said that these provisions are even more relevant in times of social network and media, through which any statement could reach out to millions of people. Also, if only civil recourse to defamation be kept then it would take years to complete the case in this country. WHY DEFAMATION SHOULD NOT BE DECRIMINALIZED In the context of Indian laws, the makers of the constitution had clearly in mind that some reasonable restrictions are required over the freedom of speech and press when they added article 19(2) in The Constitution of India. This Article itself included defamation as an exception and criminalizing the same has strong impact in the country as it helps an individual to protect his dignity which has been interpreted to Article 21 of The Constitution of India in which right to life is interpreted as Right to Life with dignity. Also, simple compensation is not enough in many defamation cases which is why it can be justified to criminalize it in India. Arguing that it weakens the democracy is just revolving around freedom of speech and expression. A person has all rights to speak against a person if it is true and is made for any public good and is only punished when that individual base his statements just on rumours or to mock or damage the repute of another person. In the case of Shreya Singhal v. Union of India 26, in which Section 66A of Information Technology Act, 2000 was struck down, was not a case related to defamation and was removed because it was unconstitutional as it violated the freedom of speech but contending on the basis of the same that defamation laws should also be removed as it violates freedom of speech cannot be upheld as defamation comes under the basic structure of the constitution which forms the basis of constitution. Another dissenting argument is that if the constitutional amendments are struck down then why colonial laws are still made to be applicable on the present society. The truth is that the court has struck down merely four to five constitutional amendments and the fact that it is colonial 26 Shreya Singhal v Union of India, AIR 2015 SC P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 11

10 does not mean that it unconstitutional in nature. Section 302 of Indian Procedure Code, 1860, law relating to murder, is also colonial but it adheres with our constitution but we cannot remove it just because it is a colonial law. Some other arguments that favour that defamation should not be decriminalized 1. Statements made in good faith are excluded from defamation: Only those statements which are false or lie are considered under the ambit of defamation as the statements which are defamatory but in good faith or the truth are exempted from the term defamation as stated in Section 499 of Indian Penal Code, As the statements given in good faith are for welfare of people at large. This can be understood by the leading case of Harbhajan Singh v. State of Punjab Prevents hate speech: If enough freedom is given for speech then people will tend to give hate speech and defamatory speech for their rival people. This will not only create enmity between the parties involved, but also have a negative impact on society. 3. Criminal defamation is not violative of freedom of speech and expression: Defamation is out of the purview of freedom of speech and expression as this right comes with reasonable restrictions. One of the restriction being, not defaming other person. And this merely encourages reasonable conduct and speech in society. People are allowed to criticize others but with reasonable restriction without getting penalized for it. 4. Defamatory laws should be common for all: No citizen should be exempted from defamatory laws including the public officials, ministers etc. who represent people at large, if they themselves give defamatory speech then it gives a very wrong impression to people at large in the society. They have the duty to guide people to right path and engage in morally correct behaviour and not engage in slander. CONCLUSION After comparing all the aspects of Defamation certain points can be Enlighted Reputation is something that an individual earns from society and cherish his dignity by enjoying his life with no interference of any kind. Any damage to a person s 27 Harbhajan Singh vs State of Punjab AIR 1965 SCR P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 11

11 reputation will affect or injure his image in the society. This damage to image in the society is known as being defamed by another person. Laws have been made to stop this activity of defaming someone to protect the individual keep up his dignity intact. Many countries have kept defamation criminalized in many situations in which the loss to dignity is not quantifiable in terms of money. Many jurisprudence thinkers suggest and talk about how lie is immoral in nature and that it has a bad impact on a person s personality, in no circumstance a person should lie or defame any other person. Defamation has a big role to play in socio economic factor as if a person defames a well-known public figure who is being followed by a large chunk of society then this might create a negative impact resulting in disturbances in society. The current judicial position suggests that the criminal aspect of defamation is a need in the society as otherwise there will be anarchy in the society. Some reasonable restriction to freedom of speech balances the right to live with dignity. To conclude, criminal defamation, in today s society is a must as there is increased awareness in the society because of growth of social media and internet. So it becomes important that every individual must be protected from being harassed from untrue statements or comments which affect the individual s reputation in the society which he has earned by adhering to all rules of the society. Also, one cannot pass any false statements against another just on the basis of freedom of speech and expression. 11 P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 11