PRIVILEGE AS DEFENSE IN DEFAMATION CASES

Defamation - Ritik Goyal

INTRODUCTION

In today’s time where everyone is busy in their world, nobody likes to hear anything from anyone about them as the said things would be not liked by the person and can cause inconvenience for the person or maybe something which he/she thinks to be disrespecting. People have got their freedom to speak for Article 19(1)a but it follows with the restrictions that everyone has to obey as a citizen of the country.

WHAT IS DEFAMATION

In India, we have section 499 of IPC which provide us with the definition of defamation as whoever, by word either spoken or intended to be read, or by signs or by visible representation, 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 a person has defamed the person.

Defamation can be civil defamation (tort)  or criminal defamation basic difference between the two is in civil defamation we want compensation and criminal we want punishment for the wrongdoer that is the defendant.

Defamation can be classified into two types :

Slander: it refers to the transitory or fleeting form of defamation where the defamatory mark or mode is temporary and is not an endearing slur. for example in a room where there are three persons and the first person says something to the second person which lowers the reputation of the second person in presence of the third one then we can say the first person has slandered the second person. the modus operandi[1] is temporary, in the above example as soon as the first person is said and the defamatory statement is heard by the third person it no longer remains. Besides defamation by spoken words (though not all defamation by speech is slander, some can also be libel as well )be pointing at someone to indicate that he is a thief when he is not.

Libel: it refers to a permanent form of defamation where defamation is rendered in a lasting form. for example when it is done in written words as in a poster or a newspaper, a cartoon in a magazine, a defamatory statue or plaque is erected, or even when speech is rendered in a permanent form like in a recording or a motion picture. libel is considered to be far more serious than slander as it persists in human memory and has a more lasting and therefore more harmful effect on one’s reputation. originally the rule of slander was that in the case of slander, the damage would have to be proved but in libel, it need not be proved, it was presumed because of the permanent nature.

PRIVILEGE AS A DEFENCE TO DEFAMATION

If we talk about privilege as a defense it can be further classified into Absolute privilege and qualified privilege

Absolute privilege: where there is complete immunity[2] even if the material may be outright defamatory, It can be said in absolute privilege is where free expression is so important that any defamatory statement is not even considered.

Statements that come under the absolute privileges are:

  • By legislators in the parliament: there is a member of parliament and he speaks defamatory against the other m.ember in a parliamentary debate? proceedings, in the above example the member is protected from any case against him for the defamatory speech.
  • Between spouses: in T.J. Ponnnen vs M.C. Verghese case, the court said that a letter sent to the wife by her husband which contain a defamatory statement regarding the father in law of the husband will not constitute a case of defamation .any statement between husband and wife is protected under section 122 of India evidence act 1872.
  • Parliamentary privileges come under absolute privilege: article 105 and 194 of the Indian constitution provide immunity to the member of the parliament. They have different kind of freedom of speech as article 105 and 194 are specially for the members of parliaments is subject to the rules of parliamentary proceeding, the article 19(1) does not protect an individual completely they are subject to certain restrictions .in P.V.narsimha Rao v. state (JMM bribery case ) .the supreme court said the immunity under article 105 is extended to the taking of the bribe by the member for voting in a particular manner in the parliament.

Qualified privilege:  In this, there is not a complete blanket but defamatory things said may not attract liability provided they are said on an occasion inviting performance of duty and secondly, said without malice.

Statements that come under qualified privilege are:

  • Statements made in self-defense or to warn others of danger or harm
  • Review by the critics
  • Government proceedings
  • A statement made in legal proceedings
  • Doctors, lawyers, and journalists.

In the case where a publisher publishes a defamatory statement regarding a person where he presumes to be true then he/she has to convince the court that he/she has taken all the necessary measures to verify the statement.

Another example can be where an employee prepares a character reference for a former employee or the company comments/ communication are defamatory then-employer/ company are absolved of any liabilities.

CONCLUSION

Defamation can be considered as an important defense to defamation as it provides something more than freedom of speech that is provided to every citizen of the country.

The comment made by the person claiming defense under privilege has made the defamatory statement but still the statement for a good or having a larger public interest. it a person makes a statement regarding another person that seems to be defamatory but the statement is true then can claim defense under privileges. As a normal citizen of the country, we have freedom of speech ad expression but it is not absolute but subject to some reasonable restriction. It has also said in article 21 right to life includes the right to live with a reputation as a person.

Author(s) Name: Ritik Goyal (IMS Law College, Noida)

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Reference(s):

[1] Modus operandi:- it is a Latin term meaning the mode of operation.

[2] Immunity:-Immunity is a freedom from a legal duty, prosecution, or penalty, granted by government authority or statute. The main types of immunity are witness immunity, public officials’ immunity from liability, sovereign immunity, and diplomatic immunity.

3. https://www.google.com/amp/s/blog.ipleaders.in/law-of-defamation-in-india/amp/

4. https://www.nolo.com/legal-encyclopedia/privileges-defenses-defamation-cases.html

5. https://www.britannica.com/topic/defamation

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