In many countries, defamation is considered as both a civil wrong as well as a criminal wrong. In other words, if a person commits the wrong of defamation, he can either be sued for compensation by the person affected or can be criminally prosecuted by state for his act, article 19 of the Indian Constitution campaigns against criminal defamation as it is a disproportionate punishment and has an adverse effect on freedom of speech and expression.
Criminal defamation is defined under IPC section 499 and 500-
Section 499 of the IPC defines – ‘Defamation- Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputations 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, expect in the case hereinafter expected, to defame that person.’
Section 500 of the IPC defines- ‘Punishment for defamation- Whoever, defames another shall be punished with a simple imprisonment for a term which may extend up to two years, or with fine, or with both’.
Criminal defamation laws are problematic as they are regularly in conflict with the freedom of speech and expression. It can lead to serious punishments or imposition of harsh sanctions such as prison sentence, hefty fines etc. Even if criminal defamation is applied with restraint, it can still cast a long shadow on the person accused, this can cause a restraint in free speech, and for example, the threat of being in detention or being criminally prosecuted will always be there in the mind of any journalist or any other person if he/she comes forward to expose any scams, or any form of corruption etc. The threat of being harassed will always be there in the mind of such person. This is not to say that defamation should not be discouraged but it must be kept as a civil violation and with accordance of the necessity test, the means used to discourage it should be carefully targeted for the prevention of dampening of legitimate criticism.
International bodies such United Nations or the OSCE have recognised the threats imposed by criminal defamation laws and has further stated that this will leave an adverse effect on the freedom of speech and expression and have recommended that such laws must be abolished. For example, the OSCE parliamentary assembly has called for abolition of all laws that provide criminal penalties for defamation of public figures or which penalise defamation of state or state organ. The UN, OSCE and OAS Special Mandates have stated that “Criminal defamation is not a justifiable restriction on the freedom of speech and expression; all criminal defamation laws should be abolished and replaced, wherever necessary, with appropriate civil defamation laws”.
Article 19 of the Indian Constitution argues that criminal defamation is restriction on freedom of expression, however, it is seen that many countries like India is following this law and it wouldn’t be repealed in the very near future, thus some interim measures are suggested until they are abolished
- None shall be prosecuted for criminal defamation until and unless it has been proven beyond a reasonable doubt that there was the presence of element of offence, as set out below:-
- The offence of criminal defamation shall not be made out unless it has been proven that the impugned statements are false, that they were made with actual knowledge of falsity, or recklessness as to whether or not they were false, and that they were made with a specific intention to cause harm to the party claiming to be defamed;
- Public officials must take no action in the process of prosecution, no matter who the person who is defamed is.
- Sentences or fines must be lenient with regard to the offence of criminal defamation.
It must be made sure by a country that it doesn’t restrict a person’s freedom of expression thus laws such as criminal defamation must be kept in check.
ABOUT THE AUTHOR
Tanmay Sinha is presently in his second semester in Symbiosis Law School, Hyderabad. He has always been interested in engaging himself in activities related to Law apart from academics, such as research papers, article writing etc. He has a passion for law and aims to excel in this field.