Is tortious defamation protected by the freedom of speech and expression?

Is tortious defamation protected by the freedom of speech and expression?

Defamation has always been a topic of argument between two fundamental rights - freedom to speech and expression granted under Article 19 and the right to dignity granted under Article 21 of the Indian Constitution.

What is defamation?

Defamation is an activity, verbal or behavioral, intending to attack someone's social reputation or malign him or her publicly.

Usually, defamation is constituted when there is a publication that is false and without the consent of the referred person. At present, defamation is not only limited to publication, it has extended its arms to online and specifically on social media; in the form of words written or pictures or video posted. Defamation can be of two kinds:

• Slander - The defamation action conducted verbally. If a person spreads a false story verbally to malign the social reputation of a particular person, then it will come under slander. Only special damages can be claimed under the slender.

• Libel - The defamatory statement or news spread in written or printed form using an image, video, cartoon, drawing, etc. come under libel. Libel lawsuits undertake to address the redressal for all the injuries and its consequences of the defamation which are known as general damages if they involve harm to the reputation and for special damages claim, there must be a financial loss caused to the complainant.

Any kind of defamatory activity whether verbal, content posted or behavioural is triable under criminal law.

What are laws in India regulating defamatory action?

Against defamation, both civil and criminal suits can be brought. Under the Indian Penal Code, Chapter XXI specified the penalty if a person or organization's reputation is maligned.

Under Tort, defamation is a general rule, that focuses mainly on libel. To consider a statement or activity as libellous, it must possess the following points:

• False

• Written

• Defamatory

• Published.

It is an important aspect that under tort, the defamatory action is actionable only if the referred person is alive. It is not a tort to malign a dead person.

How is freedom of speech and expression is used as a cover on defamation?

In the case of Kushwant Singh vs. Maneka Gandhi, the Delhi High Court held that in certain non-exceptional cases, Indian courts have shown much support towards the fundamental right regarding the freedom of speech, and did not pass an injunction to a statement on the ground of probable defamation to be caused by the muzzling speech.

The government under the Prime Ministry Late Rajiv Gandhi proposed a bill to pass laws to regulate defamatory actions, but that received huge criticism and therefore was withdrawn.

The question that arose before the Apex Court was if the reputation of an individual or an organization held under criminal offence on the account of defamation is a violation of the fundamental right under Article 19(1)(a) and Article 19(2) granting the freedom of speech and expression.

The Supreme Court, after scrutiny in detail and goi9ng through the interpretational analysis of the referred fundamental rights, settles to the rule of harmonious interpretation and supported the doctrine of balancing of fundamental rights.

The court also commented on the criminal jurisdiction of the defamation and did not reach a conclusion if the defamation should be exempted from being charged under criminal offence. However, the Indian courts make sure while examining the criminal defamation that the fundamental right of the accused is not compromised.

How is defamation balanced with freedom of speech and expression?

In the landmark case of Shreya Singhal vs. Union of India, the issue of social media defamation and the misuse of the freedom of speech and expression to curb another person's fundamental right to live with dignity under Article 21 of the Constitution of India.

The Supreme Court judgement, in this case, criticized the provision of Sec. 66A of the Information Technology Act and struck down the provision based on the vagueness and chilling effect of it, which made the provision unconstitutional.

The tern 'chilling effect' can be explained to describe a situation where conduct or speech is dominated or hushed by the fear of penal charges at the interest of an individual or a group. It discourages the legitimate exercise of a legal right in the fear of another legal sanction.

The law regulating the prohibition of defamation must aim to protect the reputation of an individual. Since the fundamental rights of freedom to speech and expression, and the right to live with dignity, are both equally important, the matter is not a straight jacket formula. For every matter, the court has to decide based on the prima facie of the case and the actual damages caused due to the same.