Preface:
Defamation means to take away or destroy the good fame or reputation; to speak evil of; to charge falsely or to asperse. According to Winfield, ‘defamation’ is the publication of statement which tends to lower a person in the estimation of right-thinking members of society generally or which tends to make them shun or avoid that person. It is “libel” if the statement be in permanent form and “slander” if it consists in significant words spoken or gestures. In the matter of: Parmiter V/s Coupland, 1840 (6) MLW 105, it was observed that, defamation means a publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule. Further, in the matter of: Myroft V/s Sleight, 1921 (37) TLR 646, it was observed that, a defamatory statement is a statement concerning any person which exposes him to hatred, ridicule or contempt or which causes him to be shunned or avoided or which has tendency to injure him in his office, profession or trade. In India, by virtue of report in the matter of: Manisha Koirala V/s Shashi Lal Nair & Ors, 2003 (2) BCR 136, following test was laid down in order to determine whether or not a particular statement is defamatory:
A. A statement concerning any person which exposes him to hatred, ridicule, or contempt, or which causes him to be shunned or avoided, or which has tendency to injure him in his office, profession or trade is defamatory;
B. A false statement about a man to his discredit is defamatory; and,
C. Words which tend to lower the plaintiff in the estimation of right-thinking members of society generally, are defamatory.
Essential ingredients of the tort of defamation:
a. Malice (The words must have been published maliciously);
b. They must be defamatory;
c. The words must have reference to the plaintiff; and,
d. They must be published.
Decision in the matter of: Subramanian Swamy V/s Union of India, Ministry & Ors, (2016) 7 SCC 221:
In the matter of: Subramanian Swamy (Supra) it was observed that-
a. A defamatory statement is one which has tendency to injure the reputation of the person to whom it refers; which tends to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-thinking member of society. (See: Bata India Ltd. V/s A.M. Turaz & Ors, 2013 (53) PTC 536, and, Pandey Surindra Nath Sinha V/s Bageshwari, AIR 1961 Pat 164)
b. According to the Halsbury’s Laws of England, Fourth Edition, Volume 28:
“…A defamatory statement is a statement which tends to lower a person in the estimation of ‘right thinking’ members of the society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business…”
c. A defamatory statement is nothing but a false statement about a man to his discredit. (See: Scott V/s Sampson, 1882 QBD 491)
d. The wrong of defamation consists in the publication of a false and defamatory statement concerning another person without lawful justification. The wrong has always been regarded as one in which the court should have the advantage of the personal presence of the parties if justice is to be done. Thus, not only does an action of defamation not survive for or against the estate of a deceased person, but a statement about a deceased person is not actionable at the suit of his relative.
e. Sections 499 to 502 of the Indian Penal Code, 1860 are constitutionally valid. Reputations cannot be allowed to be sullied on the anvils of free speech and right to free speech is not an absolute right.
Newspaper Publication:
A newspaper is in no different position from an individual and it cannot give currency to a defamatory statement and escape upon the ground that, it showed that it did not believe that which it had published; this may have some bearing on the question of damages but not upon the question of liability. The responsibility in either case is the same. The degree of care and attention is in no way less in the case of newspaper publications other than that required from ordinary men. There can be no doubt that fair comments upon any matter of public interest in which are included publications in a newspaper are protected in absence of malice.
In the matter of: Publishers and Editors of Divya Himachal & Anr V/s Prakash Chand & Ors, RFA No. 153/2003, High Court of Himachal Pradesh, Date of Decision: 11.12.2017, Coram: Tarlok Singh Chauhan, J., it was observed that:
“…34. A newspaper has no privilege beyond any other member of the community in commenting (on) any matter of public interest and no privilege whatsoever attaches to his (its) position. When the defendant in a case for damages, takes the plea of fair comment, he is not required to justify the comment and it is sufficient for him if he can satisfy the Court that it is “fair” comment. If the words complained of, are justified as comment and the words also contain allegations of fact, the defendant is required to prove that such allegations of fact are true and it is not sufficient for him to plead that he bona fide believed them to be true. In other words, the distinction between comment and allegations of fact must be always be borne in mind in determining whether the plea of fair comment can be sustained.
35. As regards the publication by the editor, printer and publisher, it is the duty of an editor of a newspaper to check up the news of the information that is supplied to him, before publishing the same in his paper, especially when the news might be defamatory would make the editor responsible for publishing any defamatory material in his paper.
36. As regards the publisher, he would be liable for every publication, wherein any imputation concerning another person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of the other person and would be guilty of defaming the other person. …”
Further, in the matter of: Langlands V/s John Leng Ltd., 1916 S.C. (H.L.) 102 (at p. 110), it was observed that, a newspaper has the right and no greater/higher right to make comment upon a public officer or a person occupying a public situation than an ordinary citizen.
Lastly, in the matter of: Mitha Rustomji Murzban V/s Nusserwanji, AIR 1941 Bom 278, it was held that, the newspapers are subject to the same rules as for other media, and have no special right or privilege, and in spite of the latitude allowed to them, it does not mean that they have any special right to make unfair comments, or to make imputations upon the character of a person, or imputations upon or in respect of a person’s profession/calling.
Duties & Rights of the Journalists:
1. A journalist like any other citizen has the right to comment fairly and if necessary, severally on a matter of public interest, provided that the allegations of facts he makes are accurate and truthful, however, defamatory they may be otherwise.
2. In the matter of: Rustom K. Karanjia V/s Krishnaraj M.D. Thackersey, AIR 1970 Bom 424, it was held that, since the right of a journalist to comment on matters of public interest is recognized by law, the journalist obviously owes an obligation to the public to have his facts right. Where a journalist himself makes an investigation, he must make sure that all his facts are accurate and true, so that if challenged, he would be able to prove the same, so that the public interests are better served in that way.
3. To bring publication of a scandalous imputation under the penal law, it is not necessary to prove that it was done out of any ill-will or malice or that the complainant had actually suffered from it. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant. Every sane man is presumed to have intended the consequences, which normally follow his act. (See: G. Chandrasekhara Pillai V/s G. Raman Pillai, AIR 1964 Ker 277)
4. In the matter of: Khair-ud-din V/s Tara Singh, AIR 1927 Lah. 22 (p. 23), it was observed that:
a. It is the duty of a journalist to only publish complaints which he is satisfied are true and if he publishes complaints of a defamatory nature, which are not true he must suffer the consequences;
b. A journalist who publishes a statement about an individual is in the eyes of law precisely in the same position as is any other person; he is not specially privileged as to what he may say. On the contrary, he has far greater responsibility to guard against untruths, for the simple reason that his utterances have a far greater circulation than the utterances of an individual, and they are more likely to be believed by the ignorant by reason of their appearing in print.
5. The Press Council of India on 21.01.1993 had issued the following guidelines for guarding against the commission of the following journalistic improprieties and/or un-ethicalities:
a. Distortion/exaggeration of facts/incidents in relation to communal matters or giving currency to unverified rumours/suspicions/inferences as if they were facts and base their comment, on them;
b. Employment of intemperate/unrestrained language in the presentation of news/views, even as a piece of literary flourish or for the purpose of rhetoric or emphasis;
c. While it is the legitimate function of the Press to draw attention to the genuine and legitimate grievance of any community with a view to having the same redressed by all peaceful legal and legitimate means, it is improper and a breach of journalistic ethics to invent grievances, or to exaggerate real grievances, as these tend to promote communal ill-feeling and accentuate discord;
d. Scurrilous and untrue attacks on communities, or individuals, particularly when this is accompanied by charges attributing misconduct to them as due to their being members of a particular community/caste;
e. Falsely giving a communal colour to incidents which might occur in which members of different communities happen to be involved.
f. Publishing alarming news which in substance is untrue and/or exaggerating actual happenings to achieve sensationalism and/or publication of news which adversely affect communal harmony with banner headlines of distinctive types.
g. Making disrespectful, derogatory or insulting remarks on or reference to the different religions or faiths or their founders.
6. The Law Commission of India in its 200th Report on Trial by Media, Free Speech and Fair Trial under Criminal Procedure Code, 1973 (August, 2006) stated as follows:
“…The freedom of the media not being absolute, media persons, connected with the print and electronic media have to be equipped with sufficient inputs as to the width of the right under Article 19(1)(a) and about what is not permitted to be published under Article 19(2). Aspects of constitutional law, human rights, protection of life and liberty, law relating to defamation and Contempt of Court are important from the media point of view. It is necessary that the syllabus in Journalism should cover the various aspects of law referred to above. It is also necessary to have Diploma and Degree Course in Journalism and the Law…”
Trial by Media:
The prejudice that results from reporting was taken note by the Hon’ble Supreme Court of India in the matter of: R.K. Anand V/s Registrar, Delhi High Court, (2009) 8 SCC 106 and while explaining the meaning of “trial by media”, the Hon’ble Court held as under:
“…The impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. During high publicity court cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but means that, regardless of the result of the trial, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny…”
In the matter of: Court on its Own Motion V/s State & Ors, 2009 Crl. L.J. 677, it was observed that:
“… before a cause is instituted in a Court of law, or is otherwise not imminent, the media has full play in the matter of legitimate ‘investigative journalism’. This is in accord with our Constitutional principles of freedom of speech and expression and is in consonance with the right and duty of the media to raise issues of public concern and interest. This is also in harmony with a citizen’s right to know particularly about events relating to the investigation in a case, or delay in investigation or soft-pedaling on investigations pertaining to matters of public concern and importance…”
Further, in the matter of: Manu Sharma V/s State (NCT of Delhi), (2010) 6 SCC 1, it was observed by the Hon’ble Supreme Court of India that:
a. Despite the significance of the print and electronic media in the present day, it is not only desirable but the least that is expected of the persons at the helm of affairs in the field is to ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defence of the accused in any manner whatsoever. It will amount to travesty of justice if either of this causes impediments in the accepted judicious and fair investigation and trial.
b. Every effort should be made by the print and electronic media to ensure that the distinction between trial by media and informative media should always be maintained. Trial by media should be avoided particularly, at a stage when the suspect is entitled to the constitutional protections. Invasion of his rights is bound to be held as impermissible.
Lastly, in the matter of: Dr. Shashi Tharoor V/s Arnab Goswami & Anr, CS (OS) 253/2017, High Court of Delhi, Date of Decision: 01.12.2017 (Coram: Manmohan, J.) it was observed that-
“41…This Court is of the opinion that it is the function and right of the media to gather and convey information to the public and to comment on the administration of justice, including cases before, during and after trial, without violating the presumption of innocence. In fact, presumption of innocence and fair trial are the heart of criminal jurisprudence and in a way important facets of a democratic polity that is governed by rule of law. Journalists are free to investigate but they cannot pronounce anyone guilty and/or pre-judge the issue and/or prejudice the trial. The grant of the fairest of the opportunity to the accused to prove his innocence is the object of every fair trial. Conducting a fair trial is beneficial both to the accused as well as to the society. A conviction resulting from unfair trial is contrary to the concept of justice…”
Prior Restraint Orders Against Press:
a. In the matter of: Reliance Petrochemicals V/s Proprietors of Indian Express Newspapers Bombay, (1988) 4 SCC 592, it was observed that, the test for any preventive injunction against press must be “based on reasonable grounds for keeping the administration of justice unimpaired” and that there must be reasonable ground to believe that the danger apprehended is real and imminent. The Hon’ble Court went by the doctrine of clear, present and imminent danger.
b. Similarly, in the matter of: Sahara India Real Estate V/s SEBI, (2012) 10 SCC 603, it was observed that, prior restraint per se is not unconstitutional, but it should be passed only when necessary to prevent real and substantial risk to the fairness of the trial and that to if reasonable alternative methods such as, change of venue or postponement of trial, will not prevent the said risk and when the salutary effects of such orders outweigh the deleterious effects to the free expression of those affected by prior restraint.
c. The Press Council of India’s Reference Guide on the norms of journalistic conduct states that, “…in a conflict between the fair trial and freedom of speech, fair trial has to necessarily prevail because any compromise of fair trial for an accused will cause immense harm and defeat the justice delivery system…”
d. In the matter of: His Holiness Shamar Rimpoche V/s Lea Terhune & Ors, AIR 2005 Del 167, following the decision in the matter of: Khushwant Singh V/s Maneka Gandhi, AIR 2002 Del 58, the Hon’ble Court observed that:
“… This court is bound by the judgment of the Division Bench in Khushwant Singh’s case (supra). The sum and substance of the said judgment is that in case of an article/publication of an allegedly offending and defamatory nature, pre-publication injunction of restraint should not be granted in case the defendant who supports the publication cites truth as a defence and pleads justification. In such a case as per Khushwant Singh’s case, damages are the appropriate remedy…”
Excursus:
1. The Constitution of India, 1950 is not absolute with respect to freedom of speech and expression, as enshrined in the First Amendment to the American Constitution. One of the permissible heads of restrictions on freedom of expression is defamation.
2. Freedom of expression and democracy are the cornerstones of the Constitution of India, 1950. The framers of the Constitution of India, 1950 were of the opinion that a well-informed citizenry governs itself better. Freedom of expression as defined in Article 19 of the Constitution of India, 1950 does not specifically mention ‘freedom of press’, but the Hon’ble Supreme Court of India in catena of cases has held that freedom of the media is included in Article 19(1)(a) of the Constitution of India, 1950 and it constitutes one of the essential foundations of democratic society in India. (See: Indian Express Newspaper (Bombay) (P) Ltd. V/s Union of India, (1985) 1 SCC 641)
3. A free and healthy press is indispensable to the functioning of a true democracy. The primary function of the press is to provide comprehensive and objective information of all aspects of the country’s political, social, economic and cultural life. Press plays an important role in molding public opinion and it is an instrument of social change.
4. If a newspaper publishes what is improper, mischievously false or illegal and abuses its liberty then it makes itself liable to be punished by the court of law; further, the editor of a newspaper/journal has the responsibility to guard against untruthful news and publications for a simple reason that a newspaper/journal has far greater circulation and impact than any other media and public at large generally believes that which is published in a newspaper.
5. It is the duty of a true and responsible journalist to strive to inform the people with accurate and impartial presentation of news and their views after dispassionate evaluation of the facts and information received by them and to be published as a news item. The presentation of the news has to be truthful, objective and comprehensive without any false and distorted expression. (See: Surya Prakash Khatri V/s Madhu Trehan, 2001 (92) DLT 665)
6. A large number of people tend to believe as correct that which appears in the print or electronic media and for these reasons alone, the mass media has to be circumspect while dealing with news. (See: Rajendra Sail V/s M.P. High Court Bar Association, (2005) 6 SCC 109)
7. In India, ‘freedom of speech’ is not an absolute/unlimited right. Article 19 (2) of the Constitution of India, 1950 provides reasonable restrictions on what is guaranteed by Article 19 (1) (a) of the Constitution of India, 1950. The mass media is obliged to maintain high professional standards and is expected to verify the correctness of the news disseminated.
8. Publication of false/fake news is a great disservice to the public. Moreover, the constitutional guarantee of free speech (Article 19(1)(a) of the Constitution of India, 1950) does not confer a right to defame persons and harm their reputation by false and baseless allegations and by innuendoes and insinuations.
9. In India there can be criminal prosecution for defamation with imprisonment for up to two years and a fine. There is also the civil remedy of damages for defamation.
10. Every individual/accused has a right to silence. Under the Constitution of India, 1950, no person can be compelled to give testimony or answer questions which may incriminate him. Undoubtedly, an individual affected by a news story must be given an option to give his version, but he cannot be compelled to speak, if he does not want to. The culture of thrusting a microphone in the face of a person needs to be deprecated.
