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A simple net surfing on defamation makes it clear that it involves any kind of activity that aims to damage or cause harm to the good reputation of an individual. But the term ‘defamation’ has both explanations and exceptions attached to its definition when seen through the lenses of Indian laws. The prime reason for knowing the laws governing the statutorily recognised offence of defamation is to protect one’s dignity, as has been guaranteed by Article 21 of the Indian Constitution. With changing times, defamation has been a misused offence in the hands of many, thereby causing a rise in debate on it with respect to the limitation on free speech. What calls for in this regard is the need for progressive thinking with the changing needs of Indian society. This article aims to explore the legal side attached to defamation in India, judicial upbringing on the same, and the road ahead for it.

What is defamation

An accused individual must have created or disseminated defamatory content for an offence to be proven. While ‘creating’ typically refers to authorship, someone who intentionally or knowingly duplicates or copies defamatory content (with intent, for example) may also be held accountable. A person who is not the author or publisher can claim that the defamatory text was distributed accidentally if intent cannot be shown. The purpose of defamation law is to safeguard a person’s interest in their reputation. However, it has been significantly changed to ensure that public figures cannot use defamatory activities to avoid being held accountable for their actions and public responsibilities.
Making’ and ‘publishing’ have been considered additional terms by courts. As per the case of Rohini Singh v. State of Gujarat (2018), the offence of defamation may not be committed if someone only types defamatory material without publishing it or disseminating it to others. Therefore, the individual making the defamation claim must prove that the defamatory material was intended for an audience.

According to the case of Mrs. Pat Sharpe v. Dwijendra Nath Bose (1963), the author of the article (and not the source of the information) becomes liable if the recipient of defamatory material from an anonymous source creates and publishes an article based on that information.

Normally, there must be a connection between the allegedly defamatory content and the person who created or published it. If the owner of a newspaper, for example, is held vicariously liable, it must be determined in each instance whether the owner had the necessary power, knowledge, or approval to publish the defamatory material.

Essentials of defamation 
The statement must be defamatory, and the validity of the statement is determined by how the general public as a whole will perceive the subject of the statement: 
In the case of Ram Jethmalani v. Subramanian Swamy (2006), the Delhi High Court ruled that Swamy’s claims as to the fact that Ram Jethmalani had received funding from a prohibited organisation to support Tamil Nadu’s Chief Minister in the Rajiv Gandhi assassination case were defamatory.

The statement must be about the plaintiff, and it must demonstrate that it is falsely disparaging them:
For instance, in the case of T.V. Rama Subba Iyer v. A.M.A. Mohindeen (1971), the Madras High Court determined that although the defendants were held responsible, they had no intention of doing so because it was stated that a specific individual transporting goods from Agarbathis to Ceylon had been detained for the offence of smuggling. The plaintiff was one of those operating a similar business, and his reputation was seriously damaged as a result of this comment.

That assertion must be made public: 
In the case of Mahendra Ram v. Harnandan Prasad (1958), the defendant was found responsible for the letter that he sent to the plaintiff in Urdu while being aware that the plaintiff was not versed in Urdu. The notice was therefore read by one individual named Kurban Ali in presence of several other persons. The notice contained defamatory and false allegations against the plaintiff which had resulted in causing pain thereby leading to a substantial case of defamation as the assertions were made public. 
Defamation under the Indian Penal Code, 1860
Defamation is both a criminal (which carries a prison sentence) and a civil offence (punishable through the award of damages) in India. The Indian Penal Code, 1860 (IPC) codifies the criminal law on defamation, whereas defamation is penalised as a civil offence under the law of torts.

Defamation is defined in Section 499, and the punishment is outlined in Section 500. The offence of defamation is defined as any spoken, written, or visual statement about another person designed to damage that person’s reputation. The conduct of any person addressing any public issue or expressing comments on a public performance an example of exceptions to this rule, as well as any imputation of truth required for the public benefit.
Section 499 of the Indian Penal Code, 1860
important to grasp the elements that make up a defamation offence.

Explanation 2 of Section 499 of the Indian Penal Code, 1860
Explanation 2 of Section 499, which deals with defamation of a company or collection of persons, reads as follows; 

“Explanation 2.- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.”

Consequently, a company has a reputation of its own. Defamation would result from making claims about how the firm or association conducts its business, accusing them of fraud or managerial errors, or criticising their financial situation. In order to be able to claim certainty that a specific group of people, as opposed to the rest of the community, stood defamed, it is also crucial that the group of people be an identifiable body.

Illustration: A business that has been in operation for the past 20 years is now being charged with producing unfit products for human consumption. The declaration is founded on false claims. Even though the company was cleared of the charges, the report about the accusations was published in a newspaper, giving the impression that the product was still unsafe for eating. Any such articles would be defamatory in character since they were false and damaged the company’s reputation because the company’s product was labelled safe for ingestion.

According to Section 357A, each state government must develop a plan for allocating funds to compensate victims or their dependents who have experienced loss or injury and need rehabilitation, in conjunction with the Central Government.

Section 358 CrPC (Compensation to persons groundlessly arrested):

As per Section 358, if it appears to the magistrate hearing the case that there was insufficient justification for the arrest, the magistrate may award the person who caused the arrest compensation, not to exceed one thousand rupees, to be paid by the person who caused the arrest to the person who was arrested, for his loss of time and expenses in the matter, as the magistrate thinks fit.

Section 359 CrPC (Order to pay costs in non-cognizable cases): 

According to Section 359, whenever a complaint of a non-cognizable offence is brought before a court, the court may, if it finds the accused guilty, order him to pay the complainant’s costs associated with the prosecution, either in full or in part, and may further order that, if he fails to do so, the accused shall be sentenced to simple imprisonment for a period not to exceed thirty days. These costs may include any fees associated with the legal process.

Civil defamation under civil and tort law 

Start the transmission;
Choose the transmission’s receiver, and
Choose or alter the information contained in the message.
They exert due diligence in their tasks and follow any rules that may be specified. 
However, the following circumstances give rise to ISP liability:
If they were complicit in the criminal act or helped to make it happen,
If they are aware or are alerted by the appropriate government agency that certain information, data, or communication links are being used to perform illegal acts without tampering with the evidence, they must promptly remove or disable access to those information, data, or communication links.
The IT Act, 2000 differs curiously from the commonwealth countries’ legal framework in that it shares some legal principles with American laws regarding cyber defamation. Although the new amendment does not change the burden of proof from the plaintiff to that of the defendant, it does make it simpler for defendants to establish their innocence if they acted honestly and adhered to their obligations under Section 79 of the Act and Rule 3 of the IT Rules, 2011, provided that they did so. However, despite the fact that ISPs are not legally responsible for posting and distributing defamatory information, they are routinely added as defendants in defamation lawsuits due to their greater financial resources.

The new cybersecurity legislation in industrialised nations like China and the USA is overly severe and imposes limitations on international businesses operating there, which protects the nations and lowers the incidence of cybercrime. However, India is also working hard to improve its efficiency so that it can offer better services and protection in the cyber domain. The Indian government unveiled a National Cyber Security Policy in 2013 with the goal of securing the nation’s information infrastructure, lowering its vulnerability, boosting its capabilities, and defending it against cyberattacks. India is now working to improve the IT Act, which still needs some changes but could be made soon. Additionally, our nation will compete with other developed nations in the field of cyber and IT protection.

Case laws in relation to cyber defamation in India

yet been addressed. The Freedom of Free Speech and defamation laws should coexist in harmony. Both the former and the latter shouldn’t be sacrificed for either of them. Perception of the legislators on what constitutes defamation in present times should be subjected to progressive changes and the legislators should therefore encourage flexible provisions in this regard instead of a rigid legal framework. 

Frequently Asked Questions
What is civil and criminal defamation in India?
Defamation is a recognised civil and criminal offence in India. The law of torts governs civil defamation remedies, and the individual who has been defamed may seek damages. Criminal defamation is an offence that is punishable under the Indian Penal Code, 1860. Under Sections 499 and 500 of the 1860 Code, slander is a crime. Criminal defamation is a compoundable and non-cognizable offence that is subject to bail. If someone commits criminal defamation, they may receive a fine, a term of simple imprisonment of up to two years, or both.

What is required to prove defamation?
Defamation essentially must fulfil the following requirements:

The statement must be published.
The statement must lower the estimation of the person.
Defamation must have happened before ‘right-thinking’ members of society.
Is defamation bailable or non-bailable?
Defamation is bailable. The only issue is that one needs to make sure at trial that the witness shall be in the petitioner’s favour.

Is defamation a criminal offence?
Defamation is both a criminal (which carries a prison sentence) and a civil offence in India (punishable through the award of damages). While the criminal law on defamation is regulated under the Indian Penal Code, 1860, defamation as a civil offence is penalised under tort law. 

How do I file a defamation case in India?
The complaint regarding defamation can be filed to the magistrate who will direct the police officer to initiate the investigation and then the criminal trial will start. For a civil suit, the plaint must be filed by the plaintiff before the civil court under Section 19 of the Civil Procedure Code, 1908.

What is not defamation?
Section 499 includes a definition of defamation as well as specific instances in which making a false remark about another person does not constitute defamation. Defamation is exempt from the following situations:

Imputation of truth which the public good requires to be made or published
It is not defamation if a factual imputation or accusation is made about a person. However, it must be done in the public interest.

Public conduct of a public servant
It does not constitute defamation when an opinion is made in good faith on how public employees behave while doing their duties.

Conduct of any person approaching any public question
It is not defamation when an opinion is held in good faith about the behaviour of someone who engages in public discourse or performs official duties.

Publication of reports of proceedings of courts
Publication of a substantially accurate account of a court’s proceedings or the outcome of those proceedings is not considered defamation.

Merits of a case decided in court or conduct of witnesses and others related to the case
Publication of a substantially accurate account of a court’s proceedings or the outcome of those proceedings is not considered defamation.

Merits of public performance
This exception includes critiques of published books on music, art, and other subjects. Having an honest opinion about the merits of a performance that its creator has let the public judge is not considered slander.

Censure is passed in good faith by a person having lawful authority over another
It does not constitute defamation when someone with legal or contractual responsibility over another person criticises that person’s actions in good faith.

Accusation desired in good faith to the authorised person
He won’t be held accountable for defamation when someone who has legal control over another person makes accusations against him. The complaint must, however, be legitimate.

Imputation made in good faith by a person for the protection of his or others’ interests
This exception is used when someone makes a defamatory comment about someone else while acting in good faith to safeguard their own interests.

Caution intended for the good of a person to whom conveyed or the public good
Any caution or warning that is given in good faith to another individual or to the general public does not constitute defamation.

Is name-calling defamation?
Insulting someone is against the law. The legal term for insulting someone is libel if it was done in writing and slander if it was done verbally. You could get into legal trouble if you say or write something that is false and damages someone’s reputation.

Can a person defame without writing words?
Until the person’s reputation has been hurt, simply saying or writing anything, imagining something, or gesturing something does not constitute defamation. The only negative outcome that can result from defamatory conduct is harm to reputation.

What is verbal defamation?
Verbal defamation is the other term that is generally used for slander.