Understanding the Law of Defamation in the context of Newspaper Publication and Other Allied Areas: From K.M. Mathew (2002) to Mohammed Abdulla Khan (2017)

“Good name in man and woman, dear my lord,

  Is the immediate jewel of their souls.

 Who steals my purse steals trash…

 But he that filches from me my good name

 Robs me of that which not enriches him,

 And makes me poor indeed.”[1]

Freedom of Expression and Democracy are the cornerstone of our Constitution. Article 19 of the Constitution of India, 1950 does not specifically mention ‘freedom of press’, but the Hon’ble Supreme Court of India in a 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 the Indian democratic society.[2] The constitutional guarantee of free speech does not confer a right to defame persons and harm their reputations by false and baseless allegations and by innuendoes and insinuations. In India there can be criminal prosecution for defamation with imprisonment for up to two years and a fine. There is also civil remedy of damages for defamation.[3] The Hon’ble Supreme Court of India while upholding the constitutional validity of Sections 499 and 500 of the Indian Penal Code, 1860 in the matter of Subramanian Swamy v. Union of India, Ministry of Law and Others [4], held that the right to free speech cannot mean that one citizen can defame the other.  

Substance of Section 499 of the Indian Penal Code, 1860: According to the purport of Section 499 of the IPC, to constitute an offence of defamation, it requires a person to make some imputation concerning any other person and such imputation must be made either: (a) with intention, or, (b) with knowledge, or, (c) having reason to believe, that such imputation will harm the reputation of the person against whom it is made. The imputation could be, by, words (either spoken or written), or, making signs, or, visible representations. The imputation could be either made or published. The difference between ‘making of an imputation’ and ‘publishing of an imputation’ can be understood with the help of the following illustration: if ‘P’ tells ‘R’ that ‘R’ is a criminal, then ‘P’ makes an imputation; however, if ‘P’ tells ‘Q’ that ‘R’ is a criminal, then, ‘P’ publishes the imputation. Therefore, the essence of publication in the context of Section 499 of the IPC is the communication of defamatory imputation to persons other than the person against whom the imputation is made.[5]

Section 500 of the IPC stipulates the punishment as regards the offence of defamation committed under Section 499 of the IPC. The punishment for the offence of defamation is simple imprisonment for 2 years, or fine, or both; and the nature of the offence is ‘non-cognizable’ and ‘bailable’; an offence under Section 499 read with Section 500 of the IPC is to be tried by Magistrate of First Class.[6]

Printing or engraving any defamatory material is altogether a different offence under Section 501 of the IPC, punishable with simple imprisonment for a term which may extend up to 2 years, or with fine, or with both. Offering for sale or selling any printed or engraved defamatory material is a distinct offence falling within the purport of Section 502 of the IPC, punishable with simple imprisonment up to 2 years, or with fine, or with both. Therefore, it can be said that, if the content of any news item carried in a newspaper is defamatory as defined in Section 499 of the IPC then the printing of such defamatory material knowing or having good reason to believe that such matter is defamatory itself constitutes an offence under Section 501 of the IPC apart from being an offence under Section 500 of the IPC (which plainly prescribes punishment for the offence of defamation) and furthermore, the sale or offering for sale of such printed material (newspaper) containing defamatory matter knowing that it contains such matter shall constitute a separate offence which is to be tried under Section 502 of the IPC. Whether or not, an accused against whom a complaint is registered under the various provisions of the IPC, namely, Sections 500, 501 and 502, could be convicted qua any of the enumerated offences, depends on the evidence available on record as regards the existence of such facts which point towards the constitution and commission of such offences as mentioned above.

To press Section 499 of the IPC into operation it is essential to first of all establish that the matter published (printed and offered for sale) in a daily newspaper is defamatory within the meaning and scope of Section 499 of the IPC. If it is proved that the article/news item published is defamatory then the next step will be to examine, whether or not, the accused has committed the alleged acts which are as such complained of, that is, printing, publishing and offering for sale the defamatory article/news item with the requisite intention, knowledge, or reason to believe, so that the accused can be made liable under Sections 500, 501 and 502 of the IPC respectively. If the act of printing, publishing and/or offering for sale of defamatory article/news item is proved along with the element of mens rea (intention, knowledge or reason to believe) then the accused can be prosecuted under the provisions of Section 499 read with Sections 500, 501 and 502 of the IPC. The only effect of an imputation being per se defamatory is that it relieves the aggrieved party of the burden to establish that the publication of such imputations have lowered it in the estimation of the ‘right-thinking members of the public’.

Key points worth noting as regards Section 499 of the IPC are as follows: (a) Section 499 of the IPC emphasises on the words “makes or publishes”, thus, if there is no evidence that the accused had either made or published the defamatory imputation then that is the end of the matter and no trial apropos the offence of defamation can run against him[7]; (b) The word “makes” is not only intended to refer to the originator of the imputation, but it is equally applicable to the one who, though not its author, repeats, writes or copies it[8]; (c) Publication is the making known of the defamatory matter, after it has been written to some person other than the person to whom it is addressed. Publication is the gist of the offence of defamation. If the statement is sent directly to the person defamed, then there is no publication of it[9]; (d) In order to constitute an offence under Section 500 of the IPC, mere making of an imputation concerning a person is not enough; it is necessary to prove that the writing of the defamatory matter was intended to be read by persons other than the person to whom it is was addressed and that the defamatory matter was in fact published; (e) The substance of the offence of defamation lies in the dissemination, propagation, distribution and circulation of the harmful imputation; (f) When a defamatory statement is published, it is not only the publisher, but also the maker who is responsible and it is in that context that the word “makes” has been used in Section 499 of the IPC; (g) In order to constitute the offence of defamation, the imputation must be communicated to a third person because what is intended by the imputation is to arouse the hostility of others; (h) If a person merely writes defamatory words and keeps the writing with himself, then, the offence of defamation is not made out; (i) A publication which is neither intentional, nor deliberate (premeditated or calculated), is not actionable as against the accused person, this is to say that, if a postman who in the ordinary course delivers a letter in good faith and without knowledge that it contains a libel does not publish the libel, the same rule applies to a news-vendor, book seller and librarian. It is always open to the one who is not an author, printer or the first main publisher of the work containing libel to plead that he has unknowingly disseminated the libel, there by stating that he has never published the libel[10]; (j) Publication, even of a true statement, apropos a person shall be regarded as defamatory if it is neither in the interest of the person making it nor is in public good.

Tort of Defamation: To constitute tort of defamation (libel or slander) following requisites must be proved by the plaintiff (aggrieved party): (a) the words published were defamatory; (b) the defamatory words referred to the plaintiff (aggrieved party); and (c) the defamatory words were ‘maliciously’ published. In the case of, Lewis v. Daily Telegraph Ltd[11], Lord Devlin held that an individual cannot escape the liability for defamation by putting the libel behind a prefix such as, ‘I have been told that…’ or ‘it is rumoured that…’ and then asserting that it was in fact being rumoured. For the purpose of the law of libel a hearsay statement is said to have the same effect as that of a direct statement. Moreover, it is also essential to note that, it is not necessary for everyone to know to whom the defamatory article/material refers as this in many cases would be impossible. If in the opinion of the court, substantial number of persons who knew the aggrieved person, on reading the defamatory article/material would believe that it refers to the aggrieved person then an action in law qua the offence of defamation is maintainable.

It is important to note that, in order to bring defamatory imputation within the meaning of Section 499 of the IPC, ‘ill-will’ or ‘malice’ on the part of the writer or publisher is not necessarily required to be proved. Moreover, the complainant is not required to prove that he suffered on account of the publication. It is sufficient for the complainant to prove that the accused had in the least ‘reason to believe’ that the impugned defamatory imputation would harm the reputation of the complainant.[12]

Publication of Defamatory Matter: Making of a defamatory matter known, after it has been written to some person other than the person to whom the defamatory matter is directed is known as ‘publication’. In the case of, Sukhdeo Vital Pansare v. Prabhakar Sukhdeo[13], the question that arose for consideration and adjudication before the Hon’ble High Court of Bombay was, whether or not, a notice which an individual got issued through his advocate being defamatory in nature will constitute an offence of defamation? Answering the question in the ‘negative’, the Hon’ble High Court of Bombay held that all the communication that takes place between a lawyer and his client is private, confidential and privileged and there is no dissemination of information to the public at large, thus, there can be no publication of defamatory information as such, moreover, because the defamatory notice is directed to the individual defamed and the same is not published in a newspaper, no offence of defamation can be made out. The second question that was posed before the Hon’ble High Court of Bombay was, whether or not, the defamatory notice which the lawyer got typed through his typist at the behest of his client would amount to publication to the typist? Again answering the question in the ‘negative’, the Hon’ble High Court of Bombay held that if a lawyer gets a defamatory notice typed at the behest of his client through a typist in discharge of his professional duties then there can be said to be no publication of the alleged defamatory notice to the typist. Also, in the case of P.R. Ramakrishnan v. Subharamma Satrigal[14] it was held that, if a person sends a libellous communication to another person but addresses that communication to the advocate of that person instead of addressing it to him then the tort of defamation cannot be made out. 

Further, in the case of, Mrs. Pat Sharpe v. Dwijendra Nath Bose[15], the High Court of Calcutta held that, where an individual receives defamatory information from someone who wishes to remain anonymous, and after receiving the information gives it a shape of an article which subsequently gets published, then, it is the individual who received the alleged information and gave it the shape of an article (which subsequently got published) shall be held liable in the capacity of the “maker” of the alleged information and shall be prosecuted for the offence of defamation.

According to Clark and Lindsell on Torts[16], when a letter is addressed to a particular person then the writer is not as a general rule responsible, except for a publication to the addressee. If the letter is stolen and published by a thief then the writer would not be liable. But if the sender of the letter knows or ought to have known that the letter will probably be read by some person other than the addressee, as for instance a clerk in the office of the addressee then the sender will be responsible in the event of the letter being so read. If the sender wants to protect himself he should write the words “private and confidential” on the envelope.

It is pertinent to note that in the case of, Thangavelu Chettiar v. Ponnammal[17] it was held that filing of a petition (plaint) before the court of law containing defamatory matter amounts to publication within the meaning of Section 499 of the IPC, 1860. In such a case, the court within whose jurisdiction the defamatory plaint has been filed or the court within whose jurisdiction the service of the defamatory plaint along with other documents is effected upon the opposite party (defendant), shall have the jurisdiction to try the case.

Interestingly, in the case of, Wennhak v. Morgan[18], and, Springer v. Swift[19], it was held that so far as the law of defamation is concerned husband and wife are regarded as one person, so any publication of defamatory matter by one to the other about any other third person is not to be regarded as publication. Lastly, every repetition of a libel is a new libel and each publisher is answerable for his act to the same extent as if the calumny originated from him.

Territorial Jurisdiction of the Court to try the Offence of Defamation under Section 500 of the IPC, 1860: Where a newspaper containing a defamatory article is printed and published at one place and is sold at several other places at the behest of the accused responsible for printing and publishing the alleged newspaper then there would be publication of the defamatory article in all places where the newspaper is circulated and thus, the jurisdictional/area Magistrate of all such places where the newspaper is printed, published and sold (circulated) shall have the jurisdiction to try and entertain the complaint for defamation.[20] According to Section 179 of the Code of Criminal Procedure, 1973, when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a court within whose local jurisdiction such thing has been done or such consequence has ensued.

Liability of the Publisher and the Editor: When a defamatory statement is published, whether in a newspaper, pamphlet or book, the author, publisher and printer of the defamatory matter are liable for the offence of defamation. It is essential to note that the proprietor of a newspaper or magazine is not immune from the civil liability of payment of damages which can be fastened upon the proprietor based on the principle of vicarious liability.[21] Ordinarily it is the editor of a newspaper who is responsible for publication of defamatory matter in the newspaper. However, in the case of, Narayan Singh v. Rajmal[22], when the editor of the newspaper was absent from duty for a bona fide purpose and the publication was made by the sub-editor, it was held that, the editor was not liable. In the case of, Mohammed Koya v. Muthukoya[23], it was held that the Press and Registration of Books Act, 1867 does not recognise any other legal entity except for the editor of a newspaper so far as the publication of matter in newspaper is concerned. According to Section 3 of the Press and Registration of Books Act, 1867 every book or paper should have printed legibly on it the name of the printer and the place of printing.

Responsibility of Publisher of Newspaper: In the case of Wason v. Walter[24], it was held that the publisher of a newspaper is duty bound to publish fair and accurate report of proceedings of Parliament, even though the report contains statements, which are defamatory of an individual.

Dictum in K.M. Mathew v. K.A. Abraham & Ors[25]:

Facts: K.M. Mathew was the Chief Editor of a daily called ‘Malayalam Manorama’. When he was sought to be prosecuted for the offence of defamation, he approached the Hon’ble High Court under Section 482 of the Code of Criminal Procedure, 1973 praying that the prosecution be quashed on the ground that Section 7 of the Press and Registration of Books Act, 1867 only permits the prosecution of the ‘Editor’ but not the ‘Chief Editor’. The Hon’ble High Court was not pleased with the submissions made and rejected the same. An appeal was preferred before the Hon’ble Supreme Court of India assailing the judgment and order of the Hon’ble High Court but the same also came to be rejected.

Decision: The Hon’ble Supreme Court of India held that, the provisions contained in the Press and Registration of Books Act, 1867 clearly go on to show that there could be a presumption against the Editor whose name is printed in the newspaper to the effect that he is the Editor of the publication and that he is responsible for selecting the matter for publication. Though, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item. As already stated, Section 7 of the Press and Registration of Books Act, 1867 raises a presumption to the effect that the Editor of a newspaper is responsible for what is printed in the newspaper and it is the Editor of the newspaper who selects the news items that are to be published in the daily newspaper, nonetheless, the presumption raised by virtue of Section 7 of the Press and Registration of Books Act, 1867 is a rebuttable presumption and that by itself indicates that someone other than the Editor can also be held responsible for selecting the matter for publication in a newspaper.

Dictum in Mohammed Abdulla Khan v. Prakash K.[26]: In this case it was held that-

1. The Press and Registration of Books Act (Act XXV of 1867) was enacted during the reign of the British in India and it is still in operation by virtue of Article 372 of the Constitution of India, 1950;
2. If a complaint contains allegations which if proved would constitute an offence of defamation then the person other than the one who is declared to be the Editor of the newspaper can be prosecuted if he is proved to be responsible for the publication of the aforesaid defamatory material;
3. If the accused (the Editor of the newspaper) is able to show that he entrusted in good faith the temporary management of the newspaper to a competent person during his absence, and that the libel was published without his authority, knowledge or consent then this being a sufficient answer to the charge of defamation instituted against him, he can be acquitted.[27]
4. The owner of a newspaper employs individuals to print, publish and sell the newspaper to make financial gain out of the said activity, thus, where defamatory matter is printed in a newspaper or a book and the same is offered for sale then whether or not the owner of the newspaper can be heard to say that he cannot be made vicariously liable for the defamatory material carried by his newspaper or book requires serious (critical) examination in each case.    

Re-tweeting of an allegedly defamatory tweet amounts to defamation? In the case of R v. Paine[28], it was held that, if an individual repeats or rewrites a libel written by someone else or if an individual approves a libel written by someone else or if he publicises an allegedly defamatory material then he is to be construed as the ‘maker’ of the libel, and, all individuals who concur or show their assent or approbation in commission of the offence of defamation are guilty of it, jointly and severally. Thus, if we go by that logic, the answer to the question posed should be in the ‘affirmative’. No doubt where there are joint tortfeasors, a compromise with one of them debars the plaintiff (aggrieved party) from seeking remedy against all the others.[29]

The Argument of ‘Good Faith’: While dealing with the expression ‘good faith’ in relation to the ‘Ninth Exception’ contained in Section 499 of the IPC, in the case of Harbhajan Singh v. State of Punjab[30], the Hon’ble Supreme Court of India observed that: (1) As per Section 52 of the IPC, nothing is said to be done or believed in “good faith” which is done or believed without due care and attention, thus, to invoke the ‘Ninth Exception’ to Section 499 of the IPC the accused has to satisfy the Court that he acted with due care, caution and attention; (2) A specious plea that the accused believed that what he stated was true by itself will not sustain the defence of the accused premised on the argument of ‘good faith’ contained in the ‘Ninth Exception’ to Section 499 of the IPC; (3) Simple belief or actual belief is not enough. The accused has to show that his belief had a rational basis and it was not just a simple blind belief; (4) If it appears that before making the statement the accused did not exercise due care and attention, then that would be enough to defeat the plea of good faith of the accused; (5) The accused in order to establish the defence of ‘good faith’ has to press before the Court the assertion that he conducted a reasonable and proper enquiry before making the alleged defamatory imputation; (6) It is not possible to lay down any rigid rule or test for deciding whether an accused person acted in good faith under the ‘Ninth Exception’ to Section 499 of the IPC. The plea of good faith has to be decided, keeping in mind, the entirety of the factual conspectus of each case. Some issues of relevance and consideration are:

1. What is the nature of the imputation made?
2. Under what circumstances did it came to be made?
3. What is the status of the person who made the imputation?
4. Was there any malice in mind of the accused when he made the said imputation?
5. Was any enquiry made by the accused before he made the alleged imputation?
6. Are there cogent reasons to accept the story put forth by the accused that he acted with due care and circumspection?
7. Was the accused satisfied that the imputation was true?

These are some of the questions which require due consideration and which are required to be kept in mind while deciding the plea of ‘good faith’ which is raised by the accused by invoking the ‘Ninth Exception’ to Section 499 of the IPC. ‘Good faith’ is a question of fact and honesty of purpose is also an essential ingredient in judging good faith.

‘Truth’ as the defence: ‘First Exception’  to Section 499 of the IPC states that it is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for public good is a question of fact. If ‘truth’ is set up as a defence it must extend to the entire statement. In the case of, Sewakram v. R.K. Karanjiya[31], it was held that ‘public good’ like ‘good faith’ is a matter of evidence and not conjecture.       

Excursus:

1. It is a settled law that mere writing of defamatory words to a person intended to be read by him alone and not intended to be read by any third person, does not constitute an offence of defamation and further it does not make an individual (accused of the tort of defamation) liable to pay damages in a civil action.
2. To arrive at a conclusion as regards whether or not the words employed in the impugned communication are defamatory, the test to be employed is: “Would the words tend to lower the plaintiff, in the estimation of right-thinking members of society?”
3. In the words of Salmond, “The test of defamatory nature of a statement is its tendency to excite against the plaintiff the adverse opinion or feelings of other persons. The typical form of defamation is an attack upon the moral character of the plaintiff attributing to him any form of disgraceful conduct.”[32]
4. No action for slander can be maintained unless there has been publication of the slanderous words to someone other than the person slandered. The material part of the cause of action in libel is not writing, but the publication of the libel; this applies to both libel and slander.
5. It is no defence in the matter of defamation for the accused to say that he acted on the information given to him by another. It is for the accused to establish that the source on which he acted was a proper (reliable) source on which he was ordinarily supposed to have relied and further the accused acted with due care and caution.
6. ‘Editor’ is the person who controls the selection of the matter that is to be published in a newspaper. Where the name of an individual is printed in the newspaper as its Editor, it raises a ‘rebuttable’ presumption only against such Editor and he can rebut the presumption by showing that he had nothing to do with the publication of the editorial or the news report.
7. When defamatory words are repeated it amounts to republication, giving rise to fresh cause of action for defamation. Every republication of a libel is a new libel and each publisher is answerable for his act to the same extent as if the libel originated from him.[33] If a person is guilty of slander, another person repeating it cannot escape the responsibility because he merely repeats slanderous statement made by another.[34]
8. Law of defamation albeit publication can be summarised succinctly in the words of Goddard L.J. as follows:

“If words are used which impute discreditable conduct to my friend he had been defamed to me; although I do not believe the imputation, and may even know that it is untrue.”[35]

9. Although a corporation cannot suffer damages in the mind or the body, but a trading corporation has ‘business reputation’ which if injured an action in the law of torts can be maintained. So far as the criminal law is concerned, Section 11 of the IPC defines the word ‘person’ as follows: The word “person” includes any Company or Association or body of persons, whether incorporated or not. Sections 499 of the IPC, 1860 vide Explanation 2 states as follows: It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
10. It is settled law that if an accused makes a defamatory statement to a newspaper reporter intending that his words be published in the newspaper, or, if the accused sends a defamatory letter to a newspaper for publication, then, the accused will be held liable for causing publication in the newspaper as well as for the publication of the slander or libel (as the case may be) to the reporter or the editor.
11. Where the complainant himself circulates or publishes defamatory material/information directed to him by the accused, no offence of defamation can be made out.[36]
12. Offence of defamation is to be tried as a “Summons Case”[37] and as per the mandate of Section 256 of the Code of Criminal Procedure, 1973 in case of non-appearance of the complainant due to his death or for any other reason whatsoever the general rule is that the prosecution cannot be allowed to be continued at the instance of the advocate of the complainant against the accused and the accused is to be acquitted of the offence for which he is charged.[38]
13. As per Section 499 (Explanation 1) it may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Moreover, as per Section 199(1) of the Code of Criminal Procedure, 1973, no court is to take cognizance of an offence punishable under Chapter XXI of the IPC except upon a complaint made by some person aggrieved by the offence, provided that, where such person is under the age of 18 years or is an idiot or a lunatic or is from sickness or infirmity unable to make a complaint or is a woman who according to the local customs (and manners), ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf. Thus, if a magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an aggrieved person, the trial and conviction would be held void and illegal.[39]
14. To defame a dead person is not a tort, but if a defamatory imputation though expressly addressed to the deceased, reflects upon the plaintiff and affects his reputation, then an action in the law of torts is maintainable.[40]
15. Criminal liability so far as the crime of defamation is concerned cannot be fastened upon the owner of the newspaper until and unless it can be proved that the owner of the newspaper conspired with the editor and/or the publisher of the newspaper to get the alleged (impugned) defamatory news article published in the newspaper.
16. Reputation of a respectable citizen cannot be measured in terms of money: In the case of Hari Shankar v. Kailash Narayan[41], it was held that, if the reputation of a respectable citizen can be measured in terms of money, then, it will amount to issuance of a licence against a citizen asking him to take money as compensation for the injury he has suffered apropos his reputation.
17. Chairman of a company which owns a newspaper can be held liable for publication of the offending news item only if it can be shown that he was somehow concerned with publication of the defamatory news item. An individual cannot be asked to answer the charge of defamation merely because he happened to be the Chairman of a company which owns a newspaper, without there being any further evidence as regards his participation in the actual management and administration of the affairs of the company.[42]
18. The editor whose name appears on the copy of the newspaper is presumed to be aware of what is printed and published in the issue of the newspaper.
19. Where a writer makes the public conduct of a public man the subject of comment, and it is for the public good, the writer is not liable to an action if the comments are made honestly, and he honestly believes the facts to be as he states them. However, an imputation or criticism cannot be justified on the ground of fair comment, the moment it is shown that the criticism is based upon a misstatement of facts. Whether or not it is for public good, is question of fact and like any other defence the onus of proving the same lies on the accused.
20. The question of applicability of the exceptions to Section 499 of the IPC as well as all other defences that may be available to the accused are to be gone into during the trial of the complaint and not at the stage of enquiry under Section 202 of the Code of Criminal Procedure, 1973.[43]