India: Balancing Defamation And Free Speech Notes For The Publishing Industry

Last Updated: 1 April 2019
Article by Ashima Obhan and Sumathi Chandrashekaran

Introduction

In what has been termed a "defamation blitz", an Indian corporate house has filed at least 28 defamation suits in courts since January 2018, targetting media and publishing houses, journalists, authors and politicians. Four companies under the Reliance Group have filed these suits objecting to content and reportage published about the company's commercial activities.

This is part of a larger trend in India around defamation suits which raises many questions for publishing houses and authors.

Freedom of speech and defamation

Defamation law acts as a counter-balance to the constitutional right of free speech (guaranteed by Article 19(1)(a) of the Constitution of India). This Article has been expansively read, through judicial interpretations, to include the "freedom of the press". But this freedom is not unfettered, as Article 19(2) allows the state to enact laws that impose "reasonable restrictions" on such freedoms. The restrictions are wide-ranging, including circumstances, among other things, in national interest; for maintaining public order; or in relation to contempt of court, or defamation.

The leeway granted under Article 19(2), along with criminal provisions (under Sections 499 and 500 of the Indian Penal Code) allow for both civil and criminal defamation to be litigated upon in India. An offence of defamation is when a person "makes or publishes" an imputation about another person, with intent, knowledge, or with reason to believe that it will harm the other's reputation. An imputation "harms" a person's reputation if, in the estimation of others, it lowers the person's character or credit, among other things. A deceased person may be affected too, if an imputation would have harmed that person's reputation if they were living, and intends to hurt the person's family. Imputations concerning a company are also defamatory.

Understanding defamation

For an offence to be made out, an accused person must have either made or published defamatory material. While "making" usually means authorship, someone who repeats or copies defamatory content (with intent, etc) may also be liable, provided that such repetition or copying was intentional or deliberate. If intent is not proven, a person who is not the author or publisher, can argue that the defamatory content was unknowingly disseminated.

Courts have interpreted "making" and "publishing" to be supplementary terms. If a person merely writes defamatory content but does not publish or communicate it to others, the offence of defamation may not hold (Rohini Singh vs State of Gujarat (Special Criminal Application (Quashing) No. 8885 Of 2017)). Therefore, a person alleging defamation must necessarily show that the defamatory content was meant for an audience.

If a person receives defamatory information from an anonymous source, and the recipient writes and publishes an article based on that, the author of the article (and not the source of the information) becomes liable (Mrs. Pat Sharpe v. Dwijendra Nath Bose (1964 CriLJ 367)). 

Ordinarily, there must be a link between the defamatory content and the person allegedly making or publishing such content. Vicarious liability of, say, an owner of a newspaper, would  require a case-by-case examination of whether the owner had authority or knowledge of, or consented to, publishing the defamatory content.

Impact on the Indian publishing industry

Defamation has often led to books being banned. Some years ago, Penguin Books India was banned from publishing Jayalalithaa – A Portrait, penned by senior political journalist Ms. Vaasanthi (Selvi J. Jayalalithaa vs. Penguin Books India (C.S. NO. 326 OF 2011)). The Madras High Court granted an injunction against the book's publication apprehending damage to Jayalalitha's political image and violation of her right to privacy. The Court held that reasonable verification of the contents of the book had not been done.

Recently, the Delhi High Court banned the publication, distribution and sale of 'Godman to Tycoon: The Untold Story of Baba Ramdev' on the life of yoga guru Ramdev, as parts of the book were defamatory (Swami Ramdev vs. Juggernaut Books (CM(M) 556/2018)). The petitioner Ramdev alleged that the book, written by Priyanka Pathak Narain and published by Juggernaut Books in July 2017, was an unauthorized biography, and contained false and defamatory material violating his fundamental right to privacy and reputation under Article 21 of the Constitution.

In this case, the Court drew interesting conclusions between freedom of speech, right to reputation, fair comment and defamation, as below:

  1. Balance Between Freedom of Speech and Right to Reputation
    The right to reputation of a living person under Article 21 cannot be sacrificed or crucified at the altar of another's right to freedom of speech. Both have to be harmonized, as no amount of damages can redeem the adverse impact on a person's reputation. Merely because previous similar publications exist does not permit repetition of prima facie defamatory insinuations.
  2. Public Interest
    The Court held that whatever may be of interest to the public, but has no element of public interest, may amount to breach of privacy. Here, the fact that the Petitioner was a public figure did not give a licence to the author and the publisher to defame him.
  3. Test for Defamation
    Several book reviews had been published, and that although several comments said the book was unbiased, an equal number of comments stated that the petitioner was a villain. In this context, the court decided that the test for defamation was the basis of what an ordinary reasonable reader would think of the book.
  4. Fair Comment
    To be justifiable as fair comment, it must appear as a comment and not mixed up with facts. In other words, a reader should be able distinguish reported facts from comments, and a comment must not convey imputations of disreputable motive unless adequately supported with evidence.

Exceptions to defamation

There is a long list of exceptions to the offence of defamation (e.g., it is not defamation to state something that is true and for the public good, or to express an opinion in good faith regarding a public servant's conduct).

"Public good" and "good faith" are questions of fact, to be determined by evidence and not conjecture (Harbhajan Singh v. State of Punjab, AIR 1961 Punj 215). Defences on either count must be decided by considering a range of questions, such as, whether the accused made the imputation with malice, or whether the accused made any enquiries before making the imputation, or whether due care and circumspection were exercised before publishing, or if the accused was satisfied that the imputation was true.

So what can publishing companies do to ensure that they fall within the exception to defamation? Most critically, they must ensure that due care is taken to verify facts and sources. The Supreme Court of India (R. Rajagopal v. State of Tamil Nadu (AIR 1995 SC 264)) held that any publication containing aspects of an individual's private life becomes unobjectionable if such publication is based upon public records, including court records. In the absence of supporting public records, a reasonable verification of facts must be undertaken before publication.

Territorial jurisdiction

The issue of territorial jurisdiction when it comes to filing defamation suits is also interesting. The 28 cases filed by the Reliance Group are defamation suits filed in Ahmedabad courts.

The import of P. Lankesh v. H. Shivappa (Crimes (4) 1995 Knt. 506) is that a defamation case can be filed in any court in whose jurisdiction the defamatory publication is sold. Effectively, for an online publication, or a commonly-available book, any court in the country can try a defamation case.

Gujarat is especially popular because of lenient procedural state laws, which limit the court fees for filing a suit at Rs 75,000, regardless of the value of the claim. In other states, court fees tend to be linked to the suit's valuation itself. Therefore, strategically, Gujarat courts are particularly convenient for suits that make claims for large sums of damages.

An "unreasonable restriction" to freedom of speech?

Despite a host of protections and exceptions in place, defamation suits tend to be used for strategic purposes, to muzzle critics and naysayers into silence. Courts are very careful in weighing the merits of defamation suits, and many cases do not conclude in favour of the aggrieved persons. However, arguably, the long intervening period between the filing of the suit and the issuance of the final decision – and any temporary restrictions on authors and publishers – serves as a form of censorship.

As a result, defamation – and criminal defamation especially, which can lead to imprisonment for up to two years and a fine – has met with much criticism and opposition. Dozens of suits have been filed arguing that defamation law unfairly imposes "unreasonable" restrictions on free speech.

Most recently, in Subramaniam Swamy v. Union of India (W.P. (Crl) 184 of 2014), the petitioner argued that any attempt to fetter or bind the expression of public opinion, perception and criticism, by launching criminal prosecution, would affect the health of the democracy. The Supreme Court, however, upheld the constitutional validity of criminal defamation, stating that the right to free speech cannot mean that one citizen can defame the other.

Conclusion

Defamation is a knotty issue, and remains a polarising subject, used and abused by some, and deeply affecting professions and trades of others. Although judicial precedent has tried to sort some questions out, there are fundamental constitutional questions around the criminal offence and civil tort of defamation that are as yet unresolved.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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