DEFAMATION AND FAIR COMMENT IN INDIA: A CRITICAL ANALYSIS
By: ATIN KUMAR DAS,LL.M II SEMESTER,NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL.
The law gives protection to a man's reputation, which to some is dearer to life than anything else. Love of reputation inspires people to do great things, acquire name and fame which is the main frame of life in every walk of life. The aim of law of defamation is to protect one's reputation, and honour and dignity in the society. A person needs protection of his reputation, honour, integrity and character as much as the right to the enjoyment of property, health, personal safety, liberty and a number of other privileges.
Defamation an injury to a person's reputation is both a crime and a civil wrong. The law of civil defamation as in English and other common law countries, is uncodified in India, it is largely based on case laws. The law of criminal defamation on the other hand is codified in Ss. 499 to 502 of IPC, 1860. Circumstances on which the title to a remedy must depend on:
(i) The injurious quality or consequence of the calumny.
(ii) The mode or extent of publication.
(iii) Motive and intention of the party publishing it.
(iv) The collateral circumstances connected with the publication.
These will have to do presently considered as it has been observed the three main divisions of the code compromise offence
(a) Against the stake.
(b) Those against the person and
(c) Those relating to property.
In a civil action for defamation in tort, truth is a defence, but in criminal action, the accused must prove both the truth of the matter and that its publication was for the public good. The defence of truth is not satisfied merely by proving that the publishes honestly believed the statement to be true.
Lets now emphasise on the meaning of defamation and the various applications of fair comment.
MEANING OF DEFAMATION
According to S. 499 of the Indian Penal Code, 1860 the definition of defamation is as follows:
' Whoever by words either spoken or intended to be read or by sings or by visible representations, makes or publishes any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in cases hereinafter expected, to defame that person.' This Section defines defamation with the help of four explanations, ten exceptions and a number of illustrations.
The Section states when an act of imputation amounts to defamation, using terms that expressly requires mens rea, and provides defences to a charge of defamation expressly stated in ten exceptions attached to the section.
As stated by the authors of the code, defamation consists in its tendency to cause that description of pain, which is felt by a person who knows himself to be the object of the unfavourable sentiments of his fellow creatures and those inconveniences to which a person, who is the object of such unfavourable sentiments is exposed. According to the classical definition of the term defamation as given by Cane J., in the case of Scott v. Sumpson , defamation means a false statement about a person to his discredit.
In other words, defamation can be explained as publication of a statement without justification or excuse of that which is calculated to injure the reputation of another, tending to bring into hatred, ridicule or contempt in the estimate of right thinking members of the society. For example, charge of any criminal offence or of a fraud, dishonesty, immorality, or dishonest conduct etc. amounts to defamation.
INGRIEDIENTS : The offence of defamation consist of the following essential ingriedients.
(1) making or publishing of an imputation concerning a person
(2) such imputation shoud have been made
(a) by words either spoken or written
(b) by signs, or
(c) by visible representations.
(3) the said imputation should have been ma de with intent to harm or knowing or having reason to believe that it will harm the reputation of such person or defame him. The Section is aimed at protection of the reputation integrity and honour of the persons. The definition of the offence contains three important statements namely
(i) the person
(ii) his reputation
(iii) the harm to reputation of the person with necessary mens rea ( guilty mind)
if the imputation is defamatory per se, necessary mens rea will be presumed. The maker of the statement must know that it will harm the reputation of one concerning against whom the allegation is made.
The offence is non-cognizable, bailable, compoundable with the permission of the court and triable by court of session.
What is comment?
Comment is a statement of opinion on facts .A comment is an expression of opinion or facts that is a conclusion or an inference from them and should be distinguished from statement of facts. If it is a comment it must be distinguished from a statement of fact. Whether a statement one of factor comment depends on language,context and other circumstances.
A simple illustration given by the IPC 1860 is as follows . A says of a book published by Z, "Z's book is foolish, Z must must be a weak man, Z's book is indecent ;Z must be an impure mind."These comments are and will be protected if they are not malicious.
A says "I am not surprised that Z book is foolish and indecent, for he is weak and a libertine". This is not a comment but a statement of fact and A cannot plead the defence of fair comment but must prove the words to be true.
In Campbell v spottiswoode ,a well known case on this subject, the plaintiff who was a protestant dissenting minister and editor of a newspaper published in its letters on this subject of exongelising the Chinese and the none of various persons who had promised to buy paper in order to promote propaganda. The defendant, the printer of 'The Saturday Review' published in it an article which imputed to the plaintiff an attempt to make money out of a pretended object and deceive the public by false list of subscribers. The defendant was held liable as there was no facts to warrant the imputations.
A fair and a bonafide comment on a matter of public interest is no libel . The right had been recognized in cases of criticism of works of literature and art more than a century ago. The form of plea formerly was "that the words complained of are a fair comment made bonafide and without malice on a matter of public interest". Thus a legitimate criticism of certain things is not an offence matters of public interest are not to be understood in a narrow sense.
They include matters in which public is is legitimately interested and also matters of public concern.
The word fair embraces the meaning of honest and also of relevancy. The view expressed must be honest and must be such as can fairly be called criticism. The word fair refers to the language employed and not the mind of the writer. Hence it is possible that a fair comment should yet be published maliciously. The burden of proving that a comment is fair is on the defendant. He must establish that the facts upon which the comment thereupon is warranted in the sense that it is such as might be made by a reasonable man. Once the defendant has established that in this sense the comment is fair the onus is shifted to the plaintiff if he wishes to prove that the prima facie protection is displaced by the presence of malice in the defendant.
ESSENTIALS OF FAIR COMMENT
Since facts are often mixed up with comments the following points should be observed in raising the defence of fair comment.
A mere perusal of exceptions to 2, 3, and 9 is sufficient to show that these exceptions which embody the defence compendiously known as "fair comment" apply only to expressions of opinion or imputations on character, and not to assertions of fact. The latter can be justified only by truth. Comment must be on actual and not on imagined conduct; and even if the accused person genuinely believed the imputed conduct to be real that would be no defence. If the opinion or the imputation purports to be based on facts, then the person claiming the benefit of these exceptions must prove those facts.
It is not enough for him to say that he believed those facts. When the allegations of facts are in themselves defamatory and those allegations are not proved to be true, no defence of fair comment possibly arise. For fair comment cannot justify a defamatory statement which is untrue in nature and fact. A comment cannot be fair which build upon facts which are not truly stated is.
The law regarding the defence of fair comment is well established. The fact that the accused is a journalist gives him no more and certainly no less freedom of opinion, that is available to any other citizen. Actually a newspaper writer should be more cautious than a private individual as his utterances are widely published. The first and the foremost requirement is that the facts should be substantially true. If there is any material element of falsehood in the account given the accused can no more claim the defence of fair comment. As really the criticism or comment is based upon misstatement of facts and cannot be fair.
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