DEFAMATION AND

PROTECTION TO MEDIA
By Ashutosh Kumar

D EFA M ATIO N
SALMOND- Defamation is the publication of a

false and defamatory statement concerning

another person without lawful justification
WINFIELD- Defamation is the publication of a

statement which tends to lower a person in the

estimation of right thinking member of the society
generally.

1.

ESSEN TIA LS O F
EFA
M ATIO N
The statement D
must
be defamatory

2. The said statement must refer the plaintiff.

3. The statement must be published.
4. Defamatory statement
. Statement which tends to injure the reputation of plaintiff.
. Imputation which expose one to disgrace and humiliation.
. Such statement may be-

Oral, In writing, Printed, Picture ,By some conduct

DP Choudhury v. Manjulata AIR 1997 Raj-Running away in the
name of night classes-published in Dainik Novjyoti of JodhpurHeld defamation and Rs. One lakh awarded as damages.

2. Statement must refer to the plaintiff

To get succeed the plaintiff has to prove.
CasesHulton Co. v. Jones (1990) AC 20-Publication of a fictional
article on morals in Sunday Chronicle in the name of a
person Artemus Jones, a church warden at Pekham - a
barrister of same name bought an action- held libel.
Newstead v. London Express Newspaper Ltd (1939) All
ER 391- Publication of an article that plaintiff had been
convicted of bigamy- this was true but action was bought
by another person of same name- held libel
Eastwood V. Homes (1858)- All lawyers are thieves.-No
libel till not pointing to a particular lawyer

3. The Statement must be published

Publication means making the defamatory matters
known to some person other than the person defamed.
Communication to the plaintiff himself is not enough
because it is injury to reputation.
CasesPullman v. Hill (1891) QB 524-Dictating a letter to
ones typist is enough publication.
Theaker v. Richardson (1962) All ER 299- If
defamatory letter sent to the plaintiff is likely to read
by someone else, there is publication.
Example- post card, Telegram, Facebook-?, Web sites-?

P U N IS H M EN T
Common law tort action for damages

against defamation.
Criminal suit under section-499 of
the Indian Penal Code- Whoever
defames another shall be punished
with simple imprisonment for a term
which may extend to two years, or
fine, or both

W H AT IS M ED IA ?
News, entertainment, education, data, and promotional messages are
sent

world-wide

Everybroadcasting

through
and

this

narrow

type
casting

ofcommunicationchannels.
medium,

like

newspapers,

magazines, TV, radio, billboards, direct mail, telephone, fax, and internet are
part of what is the Media. depending on the sense intended, Media can take
a plural or singular verb as Media is the plural of medium. 2. Three broad
recognized categories of data storage material are divided by recording
method: (1) Magnetic, as in diskettes, disks, tapes, (2) Optical, as in
microfiche, and (3) Magneto Optical, as in CDs and DVDs.

D EFA M ATIO N C A S ES O F
M ED IA
1. Gurudas Kamat defamation case

against Marathi daily :

. In May 2014, Gurudas Kamat filed civil and
criminal defamation cases against local
Marathi dailyVruttmanasfor defamatory
articles indicating that he would lose in the
upcoming elections and that he had hired
people for his rally. The civil defamation
case was filed in the Bombay High Court
on May 9, 2014 and is in the pre-admission
stage (Case No. - S/522/2014).

2. Amul Besahara Parivar ad case

In April 2014, as per news reports, a defamation

notice was sent by the Sahara Group to Amul for

their ad campaign Besahara Parivar. The ad
shows Sahara employees begging for money and is
a spoof of the Sahara Groups corporate case.
3. Shashi Tharoor defamation case against
theSunday Indian
In November 2011, Shashi Tharoor, through Sherrif
Associates, sent a defamation notice to the Sunday
Indian . The notice alleged that the November 3, 2011
issue of theSunday Indiancontained an online article
that indicated that Tharoor had unaccounted money in
Swiss Banks and other allegations.

4. AAPs defamation case against Deepak

Chaurasia
On November 22, 2013, a defamation case was
instituted by the Aam Aadmi Party against Deepak
Chaurasia for an allegedly fake sting operation that
harmed the reputation of the party. The case was
reported to be heard on November 27, 2013
5.

TheIndian Expressdefamation case

againstOPENand Vinod Mehta
In 2012, theIndian Expresssent a legal notice to
theOPENmagazine and Vinod Mehta for an interview
Mehta gave toOPEN. In this interview he criticised an
article in the Indian Express. He indirectly termed the
source of the story as some mischief-maker and
called it the mother of all mistakes . This dispute has
now been settled - a clarification has been issued by
OPEN and the impugned write up has been removed

6. Justice Sawant and Times Now case

In 2008, Times Now wrongly displayed
Justice Sawants photo in relation to the
Ghaziabad PF scam. In 2011, a Pune
district court order Times Now and Arnab
Goswami (Editor-in-chief) to pay 100 crore
in damages . Times Now preferred to
appeal before the Bombay High Court. The
Bombay High Court, however, asked Times
Now to deposit 20 crore and furnish a bank
guarantee of 80 crore before it took up the
appeal . Times Now petitioned the
Supreme Court to stay the Bombay High
Courts order . However, the SC refused to
interfere with the Bombay HC order.

7. Jayalalitha defamation case

In March 2011, Jayalalithaa issued legal notices to three
media organisations, including Mid-Day and the DMK
backed Kalaignar TV for reports that linked her to
businessman Hassan Ali Khan, accused of hoarding black
money abroad . The notices threatened legal action if the
media organisations did not render an apology. No further
updates are available online.
8. Maheshwar Peri'sCareers360magazine and IIPM
In 2010, Arindam Chaudhuri of IIPM instituted a criminal
defamation case against Maheshwar Peri, the founder
ofCareers360magazine, for his article about IIPM. As per
reports, a Gwalior court held the article to be prima facie
defamatory . However, in 2010, the Uttarakhand High
Court quashed all the proceedings in the criminal
complaint against Maheshwar Peri . The court also set
aside the Criminal Complaint Case No. 5020 of 2009
which was pending before the A.C.J.M, 3rd Dehradun.

P R O TEC TIO N TO M ED IA
A G A IN S T D EFA M ATIO N
Though the press has freedom to speech and

expression under Article 19(1) (a), it is not

absolute. On grounds of defamation, free
speech can be limited. Thus if any journalist
publishes defamatory content then he can be
liable for defamation irrespective of his right
to speech and expression. a journalist has no
special privileges under the law of
defamation. If defamatory statements have
been published by a newspaper or a journal
they can be held liable for defamation like the
rest of the public.

 Fair criticism is allowed when it is for the public good. Fair

criticism is generally permitted in the following situations:

(a)The official conduct of public officials- The fair criticism of
the conduct of a public official is permitted. InRajagopal v. State of
Tamil Nadu (1995 AIR 264),it was held that damages for
defamatory statements relating to the officials public duty can
only be claimed when it is proved that the statement was made
with the prior knowledge that it was false or with reckless disregard
of whether it is false or not.Only due care needs to be taken in
relation to the veracity of the statement.
(b)Issues of public importance and persons in the public
eye- The facts stated in the publication must be true. If facts and
criticism are interwoven then firstly the facts stated must be true
before the criticism can be considered fair.
(c)Proceedings of courts of justice- If the report of the
proceedings is substantially fair and correct then such a report is
not considered to be defamatory. If any comments are made then
they should be restricted to the merits of the case and must be
distinguishable from the report.
(d)Public performances- Includes all forms of art that have been
exposed to public scrutiny (by publication, performance, etc.). The
critique must be on the merits of the work and must be made in
good faith.

 under Indian Law prior restraint is not allowed. Defamation

proceedings can be initiated once the publication is

complete. No restraints can be imposed prior to the
publication. The Court has held in various cases that prior
restraint on the press would amount to infringement of the
freedom to speech and expression under Article 19(1) (a).
This was upheld inBrij Bhushan v. State of Delhi (AIR 1950
SC 129)as well asR. Rajagopal v. State of Tamil
Nadu(1995 AIR 264.)Thus, there can be no prior restraint
on publication on any grounds including defamation.
The statements made must be substantially true. There
should not be gross exaggeration. Thus saying that
someone was imprisoned for three weeks when in reality it
was just a period of two weeks is not a problem if the
person had reasons to believe the statement. However, if
the same statement says that the imprisonment was for
one year can be a problem. Opinions on the other hand
cannot be qualified as true or false. The only precaution
which needs to be taken is that the opinion must be based
on verifiable facts.

 An apology cannot change the fact that a defamatory

statement was published. In a civil suit, if an apology is

published and the plaintiff accepts the apology then a
suit for damages can be avoided. In criminal law, an
apology only goes as far as to (a) show the bona fides
of the maker of the statement, and (b) to show the
publication of the imputation as a mistake. The offence
is compoundable (i.e. the dispute can be settled
privately between the parties) in some cases by the
defamed person and in some cases with the permission
of the Court. Thus, if the defamed person is satisfied by
the apology in a criminal case of defamation then the
offence can be compounded.
truth is a complete defence in civil defamation

proceedings. A publication based on verifiable facts can

extinguish liability for defamation. But the same is not
true in case of criminal defamation. There truth is not a
complete defence.
The burden to prove the truth in the alleged

defamatory publication lies on the person asserting that

 truth by itself is not a complete defence against a

criminal charge of defamation. Along with truth, it

also needs to be established that the publication
was in public interest or for the greater public good.
The burden of proof lies on the person instituting
the case for defamation. He has to prove that the
published work defamed him in some manner.
Sec.52 of the IPC defines good faith as an act that
is done with due care and attention. It denotes
the degree of reasonableness or the care ought to
be exercised. The enquiry must be of such depth as
a reasonable and prudent man would make to know
the truth.It is important here as the defences
available under the Exceptions to charge of
defamation under Section 499 of IPC are only
available when there is good faith.

 Defamation is a non-cognizable, bailable,

compoundable offence. Non cognizable implies that

you cannot be arrested without a warrant on a
charge of defamation.A bailable offence is one
where there is a right to be granted bail.
In a compoundable offence, you can seek to settle

the case by private arrangement under Sec.320 of

the Code of Criminal Procedure. A defamation
offence is compoundable by the defamed person.
However, in certain cases, the permission of the
court needs to be taken. These are the cases where
Defamation is against the President or the VicePresident or the Governor of a State or the
Administrator of a Union territory or a Minister in
respect of his conduct in the discharge of his public
when instituted upon a complaint made by the public
prosecutor.

C O N C LU SIO N
Defamation law doesn't work well to

protect reputations
It prevents the dialogue and debate
which is necessary to seek the truth
Published statements - including
libellous ones - are open, available to
be criticised and refuted
The worst part of defamation law is
its chilling effect on free speech