Unit 2

Defamation
What Is Defamation?

Defamation is the act of communicating false statements about a person that

injure the reputation of that person when observed through the eyes of
ordinary man. Any false and unprivileged statement published or spoken
deliberately, intentionally, knowingly with the intention to damage someone's
reputation is defamation. A man's reputation is treated as his property and
such damage are punishable by law. It could be written or verbal. Written
defamation, printed or typed material or images is called as libel and spoken
defamation is called slander.

History of defamation can be traced in Roman law and German law. Abusive
chants were capitally punishable in Roman. In early English and German law,
insults were punished by cutting out the tongue. In the late 18th century, only
imputation of crime or social disease or casting aspersions on professional
competence constituted slander in England. The enactment of Slander of
Women Act added imputation of unchastity illegal. French defamation laws
were very severe. Conspicuous retraction of libelous matter in newspaper was
severely punishable and only truth is allowed as defense when the publication
related to public persons. In Italy, defamation is criminally punishable and
truth seldom excuses defamation.

Defamation Law in India:

Article 19 of the Constitution grants various freedoms to its citizens. However,

Article 19(2) has imposed reasonable exemption to freedom of speech and
expression granted under Article 19(1) (a). Contempt of court, defamation and
incitement to an offence are some exceptions.
Defamation is an offence under both the civil and criminal law. In civil law,
defamation is punishable under the Law of Torts by imposing punishment in
the form of damages to be awarded to the claimant. Under the Criminal law,
Defamation is a bailable, non-cognizable offence and compoundable offence.
Hence a policeman may arrest only with an arrest warrant issued by a
magistrate. The Indian Penal Code punishes the offence with a simple
imprisonment up to two years, or with fine, or both.

Civil Defamation:

The statements made need to be false and it must be made without the
consent of the alleged defamed person. Monetary compensation can be
claimed from the defendant for defamation. There are certain requirements
for successful defamation suit. They are:

The presence of a defamatory statement is required. Defamatory content is

one calculated to injure the reputation of a person or a class of persons by
exposing them to hatred, contempt or ridicule. The test whether it damages
reputation has to be calculated from the eyes of a common man and his
comprehension of the matter.

Secondly, the statements must purport to a person or a class of persons.

General statements like all “politicians are corrupt” is too broad and no
specific politician can gain compensation for the same.

It must be published either in oral or written form. Unless the content is made
available to a third person, there can be no defamation. Where a letter is sent
in a language unknown to the recipient, he needs a third person to read to it
him. If any defaming statement is made in it, it will constitute defamation even
if it was sent as a private letter, since the aid of a third person was needed to
read it.

Once all these conditions are satisfied, a successful defamation suit subsists.
The defendant can plead defenses that:

The statement published was true,Fair comments made with public interest
based on true incidents,
Certain persons are vested with the privilege to make statements even if they
are defamatory,Example judicial proceedings and members of parliament. If
the defendant fails to substantiate his act, the suit is successful.

Criminal Defamation:

It is nothing but a defamation for which simple imprisonment may be awarded.

Under a criminal suit, intention to defame is necessary. The allegation should
be made with malice intent to defame another or at least the knowledge that
the publication is likely to defame another is essential. It has to be proved
beyond reasonable doubt that the act was being done to lower the reputation
of another.

Section 499 of the Indian Penal Code, 1860 defines what is defamation and its
exceptions. Words or signs imputed intending to harm or with the knowledge
that such imputation will cause harm. It may amount to defamation if anything
is imputed against a deceased person, if such imputation would harm the
reputation had the person been alive. The class of persons shall include
company or associations. It is no defamation unless the alleged defamatory
statement either directly or indirectly lowers the moral or intellectual
character or his respect of his caste or his calling in the estimation of others.

Exceptions:

Persons who make defamatory statements are exempted from punishments if

they fall in one of the ten exceptions provided in Section 499. They are:

Attribution of any truth made for public good. Truth is seldom defense unless
made for a public good.

Any opinion made in good faith regarding the conduct of a public servant in
the discharge of his public functions.

Any opinion made in good faith respecting the conduct of any person which
relates to a public question.
Publication of true reports of the proceedings of the Courts or the result of the
proceedings is not defamation.Any opinion made in good faith regarding the
merits of any civil or criminal case decided by the Court of Justice, or the
conduct of any person as a party, witness or agent to that case and no further.

Opinions made about the merits of any performance which its author has
submitted to the judgement of the public, or about the author is not
defamation if made in good faith.

Censures passed by persons neither having authority over another either

conferred by a law or from a lawful contract in good faith is nor defamation.
Censure is formal statement of severe disapproval.

Accusation of offence to any person having lawful authority over the alleged
person in good faith is an exception to defamation. Complaints about servants
to masters and children to parents are examples to the exception.

Statements made about the character of character is not defamation if it is

made in order to protect the interests of the person making it, or any other
person, or for the public good.

Cautions conveyed to one person against another are not defamation if it is

intended for the good of the conveyed person, or any other, or for public good.

Section 500 of the Code punishes defamation if it does not fall within the
above said exceptions with simple imprisonment which may extend to two
years, or fine, or both. The Indian Penal Code punishes printing or engraving
matter known to be defamatory or sale of such printed or engraved substance
containing defamatory matter about any person in the same manner of
punishing defamation.

Constitutionality of Defamation Laws:

Controversies have erupted over the fact that defamation laws are violation of
fundamental right guaranteed under Article 19 of the constitution. The
Supreme Court has ruled that the criminal provisions of defamation are
constitutionally valid and are not in conflict with the right to free speech. The
court also held that the freedom of speech and expression is “absolutely
sacrosanct” and is not absolute. The right to life under Article 21 shall also
include the right to reputation of a person and cannot be allowed to crucify by
other's right of free speech.

Landmark Judgements in India:

The courts in India have seen a variety of defamation cases. Of these, the
following are some landmark cases which has interesting facts or has an
important court ruling.

D.P.Choudhary v/s. Manjulatha: A publication was made in the local

newspaper, Dainik Navjyothi that the plaintiff a 17 year old college girl ran
away with a boy after she went out of the house by saying she was having
lectures. This false news item had adverse effects on her and ruined her
marriage prospects. It was actionable per se and she was awarded damages of
Rs.10000/- by way of general damages.

Mahendra Ram Vs. Harnandan Prasad: A letter written in Urdu was sent to the
plaintiff. Therefore he needed another person to read it to him. It was held
that since the defendant knew the plaintiff does not know Urdu and he needs
assistance, the act of defendant amounted to defamation.

Ram Jethmalani Vs. Subramanian Swamy: The court held Dr.Swamy for
defaming Ram Jetmalani by saying that he received money from a banned
organization to protect the then Chief Minister if Tamil Nadu from the case of
assassination of Rajiv Gandhi.

Arun Jaitley Vs. Arvind Kejriwal: The court held that statements made by
Arvind Kejrival and his five other leaders to be defamatory. The matter was
sort out when all the defendants apologized for their actions.
Ramdhara Vs. Phulwatibai: - The plaintiff, a widow of 45 years was imputed
that she is a keep of the maternal uncle of the plaintiff's daughter in law. The
court held that more than vulgar abuse it was an imputation up on her chastity
and hence it constitutes defamation.

Chintaman Rao Vs. The State of Madhya Pradesh: The Supreme Court
explained the meaning of “reasonable restrictions” imposed in Article 19
(2). It implies intelligent care and deliberation and that is required in the
interests of the public.

T.V.Ramasubha Iyer Vs. A.M.A.Mohideen: Defendants published a statement

without any intention to defame the defendants. It related to a particular
person carrying on business of Agarbathis to Ceylon has been arrested for the
offence of smuggling. The plaintiff was also a person carrying on similar
business and since his reputation was damaged, the court awarded him
damages.

Shreya Singhal Vs. Union of India:It is a landmark judgement regarding internet

defamation. It held unconstitutional the Section 66A of the Information
Technology Act, 2000 which punishes for sending offensive messages through
communication services.

Conclusion:

Reputation is an asset to each and every one. Any damage to such asset can be
legally dealt with. Defamation laws have been enacted to prevent person
maliciously using their right to freedom of speech and expression. The Indian
law has rightly not made any distinction between libel and slander. Otherwise
there could have been chances for committing slander and escaping from the
laws that there is no written publication of matter.
Â Intentional act of defamation is also punished with imprisonment which
prohibits defaming a person with malice intention. The defamation law is also
constitutional and is reasonable restriction on the right to free speech and
expression. However, it is no defamation if the acts done fall within the
exceptions provided. Over the seventy one years of Independence, there are
has been numerous cases of defamation and the court has interpreted each
and every case with utmost care and they serve as precedents.

ONLINE DEFAMATION
Concept of Online Defamation

The Communications Decency Act 1996 (CDA) (United States Enactment)

Section 223 of this Act clearly lays down that any person who puts information
on the web which is obscene, lewd, lascivious, filthy, or indecent, with intent to
annoy, abuse, threaten, or harass another person; will be punished either with
imprisonment or with fine. It is thus clear that the ISP will not be held liable.

Section 230 Protection for Private Blocking and Screening of Offensive Material

No provider or user of an interactive computer service shall be treated as the

publisher or speaker of any information provided by another information
content provider.

Civil liability: No provider or user of an interactive computer service shall be

held liable on account of -

1. any action voluntarily taken in good faith to restrict access to or availability

of material that the provider or user considers to be obscene, lewd, lascivious,
filthy, excessively violent, harassing, or otherwise objectionable, whether or
not such material is constitutionally protected; or
2. any action taken to enable or make available to information content
providers or others the technical means to restrict access to material described
in paragraph (1)

Zeran v. AOL- Decided 12/11/97

Shortly after the Oklahoma City bombing, an unknown person posted

messages on an AOL bulletin board falsely implicating Zeran. Zeran filed a
lawsuit against AOL for the allegedly defamatory postings. The case concerned
the question of whether AOL may be liable for allegedly being unreasonably
slow to remove a series of allegedly defamatory messages posted on AOL
message boards by an unidentified third party. The US District court granted
the judgment in favour of AOL, holding that section 230 of the CDA, known as
the good Samaritan provisions, protects providers of interactive computer
services from liability for defamatory information posted on the network by
someone else. The same was affirmed in the future appeals as well as at the
Supreme Court.

Lunney v. Prodigy Services Company Opinion Decided 2/12 99

In its first major ruling on privacy and defamation in cyberspace, the court of
appeals held that an ISP is merely a conduit for information, as opposed to a
publisher, and consequently is no more responsible than a telephone company
for defamatory materials transmitted over its lines.

Patrick Cahill v john Doe

The Delaware Supreme Court held that when guidelines on the top of the blogs
state that the forum is dedicated to opinions, then the statements are
considered not as matter of facts. However, in Singapore two ethic Chinese
were punished under the country's anti sedition law for posting anti Moslem
remarks in their weblogs. Internet service providers are thus in general,
immune from liability for information that originates with third parties
Specialized Defence to Defamation
# Justification by Truth

# Fair (and bona fide) Comment

# Privilege (which may be either absolute or qualified)

Justification by Truth

In a defamation suit it is not required from the claimant to prove the falsity of
the statement for the reason that the law assumes that in his favour.
Nevertheless the defendant can plead justification (the technical expression
for truth). Truth of defamatory expression is an absolute defence in a civil
action. The law has recognized this defence for the reason that since
defamation is essentially an injury to a man's reputation, when it is shown that
what is spoken of person is true it means only that his reputation has been
brought down to its proper level and there is no reason for him to complain.
M'Pherson v. Daniels (1829 10 B & C 263) embodies this principle commenting
that the law will not permit a man to recover damages in respect to an injury
to a character which he either does not or ought not to possess. The motive or
maliciousness is immaterial to the extent the charges are correct. It would
make no difference in law that the defendant had made a defamatory
statement devoid of any belief in its truth, if it turned out afterwards to be true
when made.

Whenever this plea of justification is raised by a defendant the burden is cast

upon him to prove that precise imputation complained of. If the words impute
a definite offence, e.g. stealing a watch, it is not enough to prove that the
plaintiff was guilty of another offence though of the same character, e.g.
stealing a sunglass. According to the rules of common law in case of multiple
and distinct charges, each charge must be proved to be true to avail the
defence. This rule has somewhat been amended and relaxed. If the defendant
is successful in proving the truth regarding some of the charges only, the
defence of justification will still be available if the charges not proved do not
materially injure the reputation. The defendant must show that the imputation
made or repeated by him was true as a whole and in every part thereof. The
defendant need not show that the charge he seeks to justify is precisely true in
every particular: what matters is whether it is substantially true. If the
statement is to a large extent true but false in certain minor aspects, the
protection will still be accessible. But if there is gross exaggeration, the plea of
justification will fail.

In Gulf Oil v Page (1988 Ch. 327) it has been held that the Fourth Estate is
authorized a degree of overstatement or exaggeration even in the context of
factual assertions.

Where the words complained of add up to specific statements of a fact, for

example, the plaintiff stole a car from the defendant's premises, it is adequate
to plead that the said words are true. On the other hand if, the words convey a
general charge, for example the plaintiff is a swindler or pickpocket, it is not
adequate to plead merely that the said words are true, but the defendant must
give particulars of facts on which the charge is based and plead that those facts
are true. In a case of innuendo, the defendant must plead the truth of the
words both in the natural and alleged hidden meaning.

In criminal law truth is not an absolute justification. It can only be availed if it is

shown that the publication was for public benefit or public good. In accordance
to the Exception 1 of Section 499 of the Indian Penal Code (It is not defamation
to impute anything which is true concerning any person, if it be for the public
good that the imputation should be made or published. Whether or not it is for
public good is a question of fact.), it is not enough that the words complained
of are true, the defendant must then be prepared to go further and prove that
not only are the words true, but that it is also for the public benefit that they
should be published.
Limitations-

Truth is in any sense no justification in case of speaking ill about any religion or
god. This would amount to blasphemy or sacrilege. In addition, truth cannot be
claimed as a justification in case of defamation of the State called Sedition.

in Simi Garewal v T.N. Ramachandran (CA 387/74) a still from a US film was
proposed to be published by a magazine owned by the defendant. It was
against this proposed publication that the plaintiff sought for the issue of an
injunction restraining the defendant form doing that. She alleged that the
defendant wanted to defame her in the Indian society and among the Indian
people. The defendant pleaded among other things that the photo was a true
photo of a scene in the film. The court honoured the defendant's plea holding
that once it is established that the representation or statement in question is
true in substance and in fact, it is totally irrelevant to judge whether it is
defamatory or not. Further the court said that a person has no right to the
protection of the reputation to which that person is not entitled.

A comment is a statement of opinion on facts. It is an expression of opinion

rather than assertion of fact. Making fair comments on matters of public
interest is a defence in an action for defamation. It must be related to certain
true facts and these facts must be known to the public or the commentator
should make it known along with the comment. If the facts upon which the
comment purports to be made do not exist or are fictions, the Fundamentum
(foundation) of the plea is exhausted. (Subhash Chandra Bose v R. Knight &
Sons AIR 1929 Cal 69 –where the distinction between fact and comment is
obliterated there is no existence of fair comment.)

The comment must be bona fide as malice destroys the defence. If due to
malice on the part of the defendant the comment is a distorted it ceases to be
fair and the defence can not be availed. This is an exception to the general
principle that the motive of the defendant is irrelevant in the law of tort.

Matters of public interest contains matters in which public is legitimately

concerned or interested. These envelop a wide spectrum of subjects and
individuals. In modern times the ambit of public interest has encompassed
everything relating to national, state or local governments, the administration
of public and private institutions, and the public conduct of public officials,
clergyman, judges, advocates, political candidates and agitators who take part
in public affairs. The conduct of all civil and criminal actions in courts, the
decisions of Judges and the evidence of witnesses can properly be commented
upon when the trial is over.

Fair Comment-

The defence of fair comment is different form that of justification. Under the
latter, the defendant must prove the truth of every defamatory fact alleged
and every injurious imputation made. On the other hand, under the former the
defendant must prove that the facts on which the comment is based are true
and that the comment on these facts is fair.

Another point of distinction is in relation to the mental state of the defendant.

In the case of justification the state of mind of the defendant at the time he
published the defamatory imputations is immaterial. Thus the presence of
actual malice is irrelevant to the defence of justification. In contrast, in the
case of fair comment the sate of mind of the defendant at the time he
published the defamatory statements is most material. Thus he cannot avail of
any facts as justifying his comment of which he was ignorant at the time he
published the words complained of. Proof of actual malice would defeat the
idea of fair comment.

Under fair comment it is enough to prove that there was some substratum of
fact on which the comment was based. To succeed in a defence of fair
comment the defendant must show that the words complained of were:

• expressions of opinion and not statements of fact, i.e., they constituted mere
comment

• fair and bona fide (without malice)

• on a matter of public interest

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 to the mind
of the writer. Mere exaggeration or even gross exaggeration does not make a
comment unfair but maliciousness may negative fairness.

Comment in order to be fair must be based upon facts, and if the defendant
cannot show that his comments contain no misstatement of fact he cannot
prove a defendant of fair comment. Facts on which the comment is based
must be truly stated though later on they may not turn out to be true at all. A
fact may be truly stated and may yet be utterly untrue. Where the facts on a
matter of public interest have been correctly stated, the test of fair comment is
whether the opinion which is expressed in the comment even though it might
be exaggerated, obstinate or prejudiced was honestly held by the writer. The
comment to be fair must be based on true facts and must be objectively fair in
the sense that any man however, prejudiced and obstinate could have
honestly held the views expressed. The defence is concerned with protection
of comments and not imputation of fact.

In Gregory v Duke of Brunswick (1843 6 M & G 205) the plaintiff an actor,

appeared on the stage of a theatre and the defendant and other persons
actuated by malice hissed and hooted at the plaintiff and thereby caused him
to lose his engagement. Hissing and hooting after conspiracy was held to be
actionable and that was not a fair comment on the plaintiff's performance.

On certain junctures law articulates that the right to free speech overshadows
the plaintiff's right to reputation. These instances are coined 'Privileges' and a
defamatory statement made on such occasions is not actionable. Privilege is a
protective umbrella or immunity conferred by law on statements or
communications made on certain 'privileged occasions'. Privileged occasions
are occasions when a person has a duty or interest in making certain
statements to some person or persons having a corresponding duty or interest
(Lord Atkinson in Adam v Ward 1917 AC 309); also in Ram Jethmalani
Vs.Subramaniam Swamy;

Privileges are of two types:

Absolute and Qualified. Instances of the former are statements made by a

judge, advocate or witness during proceedings in a court of law. Whereas
statements made by a person about his former servant to an intending
employer or about a crime to the police are instances of qualified privileges. In
the case of an absolute privilege it is not open to the plaintiff to prove malice
to negative the privilege; in the case of qualified privilege it is so open. The
reason is that public interests require that persons in the positions of judge,
advocate or witness should be able to discharge their duties without fear or
legal proceedings for defamation. In the case of person having a qualified
privilege the demands of public policy are not so high, but require only that
they should protected from liability so long as they are not proved to have
acted from an improper motive. (Ramadas v Raja 1958 Raj 257)

Absolute Privilege –

In matters of absolute privilege, no action lies for the defamatory statement

even though the statement is false or has been made maliciously. In these
cases, the public interest demands that the individual's right to reputation
should give way to the freedom of speech. Absolute privilege is recognized in
the case of parliamentary proceedings, judicial proceedings, State
communications and Military and Naval Proceedings. Thus statements made
by an officer of the state to another in course of official duty are absolutely
privileged for reasons of public policy.

An absolute privilege extends to statement and words used in the proceedings

which have relevance to the matter before the court. These words should not
cross the limits of relevance. In Pukhraj v State of Rajasthan (1973 SCC (Cri)
944) it was held that the words (sale, gunde, badmash) and actions (kicking the
plaintiff) of postal authorities had no link to the discharge of their duties. An
action for defamation therefore was valid.

Qualified Privileges –

A privileged occasion in reference to a qualified privilege is when a person who

makes a communication has an interest or a duty – legal, social or moral – to
make it to the person to whom it is made has a corresponding interest or duty
to receive it. The test for this defence is requirement of public interest. In
certain cases the speaker is prevented if there is absence of malice.

In Radheshyam Tiwari v Eknath (AIR 1985 Bom 285) the defendant who was
the editor of a local Marathi Weekly published a series of articles mentioning
that the plaintiff, who was a BDO, issued false certificates, accepted bribe,
adopted corrupt and illegal means to mint money and was a 'Mischief
Monger'. In an action for defamation, the defendant pleaded all three
defences. The defence of Justification was discarded as truth of facts
mentioned could not be proved. The defence of Fair Comment was not
accessible because there was a statement of fact, rather than an expression of
opinion. The defence of qualified privileges could also be not availed because
the publications were mala fide.

HATE SPEECH
The appalling state of affairs are that Hate Speech has not been defined in any
of the laws of the country, only prohibitions for using certain forms of
speeches and expressions are stated. In the 267th Report of the Law
Commission of India, hate speech is stated as "an incitement to hatred
primarily against a group of persons defined in terms of race, ethnicity, gender,
sexual orientation, religious belief and the like.
In other words, it means that hate speech is "any word written or spoken,
signs, visible representations within the hearing or sight of a person with the
intention to cause fear or alarm, or incitement to violence." And the Blacks Law
Dictionary identifies hate speech as the speech that carries no meaning other
than expression of hatred for some group, such as a particular race, especially
in circumstances in which the communication is likely to provoke violence.

In a civil society like ours, man is regarded as a doer of rational things but when
it comes to his expressions, he has to be controlled, modulated, monitored and
balanced with the expression and thoughts of another man who inculcates the
similar desires. With the baggage of a population of diverse caste, creed,
religion the importance of delivering a responsible speech becomes a mandate
for backing the principles of liberty and democracy enshrined in the
Constitution.

One of the greatest challenges is not to exercise the principle of autonomy and
free speech principle that are detrimental to any section of society. Free
speech is necessary to promote a plurality of opinions where hate speech
becomes an exception to Article 19(1) (a).

Thus, even if a speech that is vehement, caustic, and sometimes unpleasantly

sharp[3] is protected from State intervention. It acts as palisade against the
States power to regulate speech. The value accorded to the expression is
greater in the lists of the rights that become the reason of the reluctance of
the lawmakers and judiciary in creating exceptions to it that might curtail the
spirit of this freedom provided. Perhaps, this could be one of the important
reasons behind the reluctance in defining hate speech.[4] Whether the
provisions as prescribed in the Constitution allow them to do so?
Legal Aspect

Apart from the Constitution, there are various other legislation and self-
regulatory mechanisms under which hate speech is negated, like:

1. The Indian Penal Code, 1860: Section 124A; Section 153A[5]; Section
153B[6]; Section 153 C[7]; Section 295A[8]; Section 298[9]; Section 505(1) and
(2)[10].

2. The Representation of the People Act, 1951: Section 8[11] ; Section 324;
Section 123(3); 123(3A) and Section 125[12].

3. The Protection of Civil Rights Act, 1955: Section 7[13]

4. The Religious Institutions (Prevention of Misuse) Act, 1988: Section 3(g)[14]

5. The Cable Television Network Regulation Act, 1995: Sections 5 and 6 of the
Act prohibits transmission or retransmission of a program through cable
network in contravention to the prescribed program code or advertisement
code. These codes have been defined in rule 6 and 7 respectively of the Cable
Television Network Rules, 1994.

6. The Cinematograph Act, 1952: Sections 4, 5B and 7 empower the Board of

Film Certification to prohibit and regulate the screening of a film.

7. The Code of Criminal Procedure, 1973: Section 95[15]; Section 107[16];

Section 144.[17]

The above-mentioned laws may not directly deal with the issues of hate
speech but the Constitution has been interpreted elaborately by the Supreme
Court to confine these provisions under the reasonable restrictions of Article
19(2). Hence, the notion of hate speech has been made wider in our country to
maintain peace and public order. Despite such enumerate provisions in our
laws, contradictory questions have been raised about them, first, it is
inadequate and second, it restricts the freedom to express. This perplexing
confutation is depicted by two different cases of the Honble Supreme Court-
1. Pravasi Bhalai Sangathan v. Union of India: [18]Where the petitioners found
the existing laws related to hate speech inadequate and prayed that the State
should enact stricter regulation and take peremptory action against people
promoting hate speech. But the Court observed that the implementation of
existing laws would solve the problem of hate speech to a great extent. The
matter of hate speech deserved deeper consideration by the Law Commission
of India. Therefore, the Commission after taking into view the laws and various
pronouncements on hate speech had submitted its Report No.267 before the
Government of India in March 2017 for consideration.

2. Subramaniam Swamy v. Union of India:[19] In this case arguments were

raised on the reasonableness of the restrictions imposed by Sections 499-500
IPC on free speech in light of settled law that restrictions should be narrowly
tailored and should not be excessive, arbitrary or disproportionate.
Subramanian Swamy argued that half a dozen sections of the Indian Penal
Code, 1860 should be declared unconstitutional for violating Article 19(1) (a).

Therefore, it can be observed that there are mixed feelings regarding the
concept of hate speech in our country where because of no concrete platform
about it makes its implementation ineffective. The doers escape challenging
the laws to be restrictive in nature while some who are the victims of this
hatred, demands for stricter provisions for their safety and prosperity.

There are many judicial interpretations on this subject, like-

1. Shreya Singhal v. Union of India:[20] Issues were raised about Section 66A of
the Information Technology Act, 2000 relating to the fundamental right of free
speech and expression guaranteed by Article 19(1) (a) of the Constitution,
where the Court differentiated between discussion, advocacy, and incitement
and held that the first two were the essence of Article 19(1).

2. Arup Bhuyan vs State of Assam:[21] The Court held that a mere act cannot
be punished unless an individual resorted to violence or inciting any other
person to violence.

3. S. Rangarajan Etc vs P. Jagjivan Ram:[22] In this case, the Court held that
freedom of expression cannot be suppressed unless the situation so created
are dangerous to the community/ public interest wherein this danger should
not be remote, conjectural or far-fetched. There should be a proximate and
direct nexus with the expression so used.

The Judicial decisions depict that India follows a speech protective regime,
meaning the words that are used by the people to express themselves are
critically heard and then reacted on them if the words go against public
morality. Although the Courts are extremely cautious about putting restrictions
on Article 19 because of the sole reason for it to be misused by the State
negatively. Despite numerous precedents on this subject, it remains a
challenging task to identify a a particular type of words or expressions that may
have the capability to wake violence in the country

FREE SPEECH

Laws restricting the freedom of expression

India prohibits hate speech by several sections of the Indian Penal Code, the
Code of Criminal Procedure, and by other laws which put limitations on the
freedom of expression. Section 95 of the Code of Criminal Procedure gives the
government the right to declare certain publications “forfeited” if the
“publication ... appears to the State Government to contain any matter the
publication of which is punishable under Section 124A or Section 153A or
Section 153B or Section 292 or Section 293 or Section 295A of the Indian Penal
Code”.[3]

Section 153(A)

Section 153A of the Indian penal code says,[4] inter alia:

Whoever (a) by words, either spoken or written, or by signs or by visible

representations or otherwise, promotes or attempts to promote, on grounds
of religion, race, place of birth, residence, language, caste or community or any
other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will
between different religious, racial, language or regional groups or castes or
communities, or (b) commits any act which is prejudicial to the maintenance of
harmony between different religious, racial, language or regional groups or
castes or communities, and which disturbs or is likely to disturb the public
tranquillity, . . . shall be punished with imprisonment which may extend to
three years, or with fine, or with both.

Section 295(A)

Section 295(A) of the Indian Penal Code (IPC) enacted in 1927[5] says:[6]

Whoever, with deliberate and malicious intention of outraging the religious

feelings of any class of [citizens of India], [by words, either spoken or written,
or by signs or by visible representations or otherwise], insults or attempts to
insult the religion or the religious beliefs of that class, shall be punished with
imprisonment of either description for a term which may extend to [three
years], or with fine, or with both.[7]

Legislative history of Section 295(A)

A book, Rangila Rasul, was published in 1927. The book concerned the
marriages and sex life of Muhammad. On the basis of a complaint, the
publisher was arrested but later acquitted in April 1929 because there was no
law against insult to religion. The publisher was murdered in Court by Ilm-ud-
din. As a result, Ilm-ud-din was honored with the honorifics 'Ghazi' and
'Shaheed'.[8] As the book did not cause enmity or hatred between different
religious communities, it didn't violate Section 153(A). The Indian Muslim
community demanded a law against insult to religious feelings. Hence, the
British Government enacted Section 295(A). The Select Committee before
enactment of the law, stated in its report that the purpose was to punish
persons who indulge in wanton vilification or attacks upon other religions or
their religious figures. It however added that a writer might insult a religion to
facilitate social reform by grabbing attention. Therefore, it recommended that
the words with deliberate and malicious intention be inserted in the SectioN

REGULATION ON CONTENT ON INTERNET AND FREE

SPEECH

Unlike the US, free speech in India is not absolute. Our Constitution, while
guaranteeing the freedom of speech and expression, places “reasonable
restrictions” on this basic human right.

Before 2015, online and offline speech were treated on different pedestals
under law. As per Section 66A, an infamous provision of India’s Information
Technology Act, 2000, anyone who posted material that was grossly offensive,
inconvenient, injurious, menacing in character or insulting, could be
imprisoned for up to three years.

This draconian provision was struck down by India’s Supreme Court in 2015 for
being violative of the constitutionally guaranteed right of free speech and
expression, in the landmark case, Shreya Singhal vs Union of India.
Besides championing free speech in the online world, the Supreme Court, in
Shreya Singhal, absolved content hosting platforms like search engines and
social media websites from constantly monitoring their platforms for illegal
content, enhancing existing safe-harbour protection (legal protection given to
internet companies for content posted by their users).

The court made it clear that only authorised government agencies and the
judiciary could legitimately request internet platforms to take down content.
As content hosting platforms are the gatekeepers of digital expression, this was
a turning point in India’s online free speech regime.

Despite Shreya Singhal, state authorities continued their use of Section 66A
and other legal provisions to curb online speech. In 2017, a youth from the
state of Uttar Pradesh was booked under Section 66A for criticising the state’s
chief minister on Facebook.

Journalists are often targeted by state authorities for their comments on social
media. In September, last year, a Delhi-based journalist was arrested for his
tweets on sculptures at the Sun Temple in Konark, Odisha, and another
journalist from Manipur was booked under the stringent National Security Act,
1980, and jailed for uploading a video on the internet in which he made
remarks deemed to be “derogatory” towards the chief minister of the state.

Proposed amendment

In December, the Union Ministry of Electronics and Information Technology,

the nodal ministry for regulating matters on information technology and the
internet, released a draft amendment to guidelines under the Information
Technology Act, which prescribe certain conditions for content hosting
platforms to seek protection for third-party content.

The amendment, which was brought along to tackle the menace of “fake
news” and reduce the flow of obscene and illegal content on social media,
seeks to mandate the use of “automated filters” for content takedowns on
internet platforms and requires them to trace the originator of that
information on their services (this traceability requirement is believed to be
targeted at messaging apps like WhatsApp, Signal and Telegram).

Apart from state authorities, content sharing and social media companies take
down content in tandem with their community standards and terms and
conditions. This is often arbitrary and inconsistent.

In February, Twitter was heavily criticised for blocking journalist Barkha Dutt’s
account after she posted personal details of people who were sending her rape
threats and obscene pictures. While blocking her account, Twitter failed to
takedown the obscene content directed at Dutt.

Similarly, in March, Facebook blocked the account of prominent YouTuber and

social media personality Dhruv Rathee after he shared excerpts from Adolf
Hitler’s biography Mein Kampf on his Facebook page.

Threat to free speech

Our online speech is heavily dependent on policies (both government and

industry lead) which affect digital platforms like Facebook, Twitter and
YouTube. Recognising this fact, SFLC.in, in March, published a comprehensive
report which captures the legal landscape in India and key international
developments on content liability on internet platforms.

We believe that government regulation such as the draft amendment to the

rules that regulate platform liability undermines free speech and privacy rights
of Indians in the online world, while promoting private censorship by
companies.Having said that, acknowledging the problems of circulation of
illegal content, legitimate access to law enforcement and disinformation on the
internet, the law should mandate governance structures and grievance
mechanisms on the part of intermediaries, enabling quick takedown of content
determined as illegal by the judiciary or appropriate government agencies.

The “filter bubble” effect, where users are shown similar content, results in
readers not being exposed to opposing views, due to which they become easy
targets of disinformation.
The way forward

Content hosting platforms must maintain 100% transparency on political

advertising and law enforcement agencies should explore existing tools under
law (such as Section 69 of the Information Technology Act and exploring
agreements under the Clarifying Lawful Overseas Use of Data or CLOUD Act in
the US) for access to information.

Tech-companies must also re-think their internal policies to ensure that self-
initiated content takedowns are not arbitrary and users have a right to voice
their concerns.Government agencies should work with internet platforms to
educate users in identifying disinformation to check its spread.Lastly, the
government should adhere to constitutionally mandated principles and
conduct multi-stakeholder consultations before drafting internet policy to
safeguard the varying interests of interested parties.

SELF AND GOVERNMENT REGULATION

In the last decade, the region has seen a wave of media regulatory framework
reforms that seek to replace the predominance of market approaches and
light-touch regulation.86 There have been several policies and attempts
designed to change the media landscape and the financing modes through
integral regulatory modifications.

As reported by the Special Rapporteur on Freedom of Expression of the

Organisation of American States (OAS) in 2014, the Americas are increasingly
improving their processes for allocating licenses through legal provisions that
are clearer and improving their transparency. There is also an emerging trend
to organize more open, transparent and consultative processes in the
digitization of television strategies implemented by local regulators, which are
now under more public and continuous scrutiny.Nonetheless, the process of
issuing licenses in many countries still lacks transparency and follows obscure
or non-transparent procedures. In addition, the issuing of broadcast licenses or
‘regulatory immunities’, with options to renew, are legally ‘precarious and
revocable’, and are subject to government decision.

Attempts to set the framework for independent broadcast regulators, often

with the telecoms regulators, have been made throughout the region and
particularly within the larger countries. Nonetheless, in practice, regulators in
the region tend to have scarce margins to avoid political influence in their
decisions. Examples of this include failures to renew or retain licenses for
editorially critical media; allocating the regulator back into ministries or
reducing its competences and margins of action; lack of due process in the
adoption of regulatory decisions, and a lack of process to hire relevant staff,
among others.

The majority of regional broadcasting is commercial and there is a lack of an

institutional culture of non-for-profit public media. Additionally, state-owned
media, with the exception of Chile, are usually characterized as having low
audiences and a predominance of governmental content. These structural
problems of the media system have led to a persisting trend in the region that
have limited licensing in protection of the public interest. There are some
exceptions to this trend. Some countries have created public channels with
innovative approaches to programming. However, they all face the challenge
of independence from government pressures.The community radio
broadcasting sector is diverse, numerically significant, widespread and highly
influential in certain contexts, where it replaces state-owned outlets. However,
in most countries these have emerged in a regulatory vacuum, and in same
cases in direct opposition to the law. Older established stations continue to
operate with commercial or cultural licenses and are slowly being recognized
and regulated in a growing number of countries. Yet such legal recognition
sometimes imposes restrictions on the community sector that could threaten
their viability, such as limiting transmission power or prohibiting advertising.

SELF-REGULATION

There is an increasing number of countries that have their own news or media
ombudsman, which receive complaints from the public and investigate media
coverage to promote quality reporting and awareness of the public’s concerns.

Self-regulatory accountability is recognised as important for protecting the

independence of the news media. During the last decade throughout the
region, journalism has been questioned and subjected to public scrutiny.
Reliance on self-regulatory mechanisms of journalism and communications
ethics, such as sectoral codes of conduct and press councils in most countries,
has continued in the form of standards of conduct for the exercise of
communications and media professions in the region93, despite their limits as
instruments to uphold media accountability.Press entities in the region have
created their own press councils, which have their own self-regulatory process.
These councils work as independent ‘tribunals’ that receive complaints
regarding any actions taken by media and, when they consider so, issue a
resolution adjudicating a decision

LYBEL AND SLANDER IN CYBER SPACE

The growth and development of technology have brought a drastic change in
the world. The Internet has made many things far easier for all of us through
various social networking sites. Whether it is communication or access to
information, these things have become a piece of cake for all of us. But these
facilities may sometimes lead to misuse also. As users can publish and
disseminate information through these social networking sites, Defamation has
become a subject of concern. With the rise of so-called trends of sharing or
posting information or pictures on certain social networking sites and
commenting on them have increased the risk of ‘Cyber Defamation’.

The term ‘Cyber Defamation’ basically means publishing of false statement

about an individual in cyberspace that can injure or demean the reputation of
that individual. In India, defamation can be contemplated as both civil and
criminal offence, and thus legal remedies are provided to the victims by the
Indian judiciary system.

What do we understand by the term “Defamation”?

Defamation can be understood as the wrongful and intentional publication of

something either in the written or oral form about a person to harm his
reputation in the society. For a statement to be considered as defamatory, the
following essential elements must be fulfilled.
There must be the publication of the defamatory statement, which means
coming to the knowledge of a third party.

The statement must refer only to the plaintiff

The statement must be defamatory in nature.

Types of Defamation

Defamation can be bifurcated into two categories that are –

Libel – A statement that is defamatory and is published in a written form.

Slander – A defamatory statement spoken that means a verbal form of

defamation.

Thus, the fundamental distinction between both the types is the medium in
which they are expressed that is, one is expressed in a written form while the
other in oral form.

Cyber Defamation

The widely used social media brought a revolution not only in the Indian
sphere but also all across the world. The remarkable growth of the Internet has
provided people with a platform to express their opinions, thoughts, and
feelings through various forms of publications. Nonetheless, the ease of
accessibility and publication in this online world has created several risks as
these digital platforms are prone to be exploited by unscrupulous Internet
users in the name of freedom of speech and expression. Thus this has led to
numerous cases of “Cyber Defamation”.

Cyber defamation is a new concept but the traditional definition of defamation

is injury caused to the reputation of a person in the eyes of a third person, and
this injury can be done by verbal or written communication or through signs
and visible representations. The statement must refer to the plaintiff, and the
intention must be to lower the reputation of the person against whom the
statement has been made. On the other hand, Cyber defamation involves
defaming a person through a new and far more effective method such as the
use of modern Electronic devices. It refers to the publishing of defamatory
material against any person in cyberspace or with the help of computers or the
Internet. If a person publishes any kind of defamatory statement against any
other person on a website or sends E-mails containing defamatory material to
that person to whom the statement has been made would tantamount to
Cyber defamation

Liability in Cyber Defamation

In India, a person can be made liable for defamation both under civil and
criminal law.

Indian Penal Code

Section 499 of Indian Penal Code says that “Whoever by words either spoken
or intended to be read or by signs and visual representations makes or
publishes any imputation 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, except in the cases hereinafter excepted to defame that
person.”

Section 500 of IPC provides for punishment wherein “any person held liable
under section 499 will be punishable with imprisonment of two years or fine or
both.”

Section 469 deals with forgery. If anyone creates a false document or fake
account by which it harms the reputation of a person. The punishment of this
offence can extend up to 3 years and fine.

Section 503 of IPC deals with the offence of criminal intimidation by use of
electronic means to damage one’s reputation in society.
Information Technology Act, 2000

Section 66A, Information Technology Act,2000 – This law has been struck down
by Supreme Court in the year 2015. The section defined punishment for
sending ‘offensive’ messages through a computer, mobile or tablet. Since the
government did not clarify the word ‘offensive’. The government started using
it as a tool to repress freedom of speech. In 2015, the whole section was
quashed by the Supreme Court.If a person has been defamed in cyberspace, he
can make a complaint to the cyber crime investigation cell. It is a unit of the
Crime Investigation Department.

Problems and issues in Cyber Defamation

Our tremendously increasing dependency on the Internet for the use of social
networking sites have created several legal issues in the country. In the context
of defamation, the biggest issue can be figuring out the person who has
intended to harm our reputation or the third party who has read the
defamatory statement as to when it comes to web pages such as blogs or
other media sites including newspapers or magazines. This is because bloggers
may be transparent or may choose to keep their names or identities nameless
to protect themselves.Thus this may be very hard to determine the person
who has published the statement if it appears on someone’s blog. It gets even
more challenging to determine the readers who leave comments on blogs or
online news articles as most sites do not require people to use their real names
or provide any necessary information including name, location or e-mail
address. Even if they do, people could give false information. Thus it becomes
difficult to track these people. Once a defamatory statement is published on
sites such as Facebook, it quickly gets circulated and also read by a large
number of people causing damage to a person against whom the statement is
made

Dow Jones & Co. Inc. v Gutnick

Dow Jones & Co. Inc. v Gutnick was an Internet defamation case heard in the
High Court of Australia, decided on 10 December 2002. The 28 October 2000
edition of Barron's Online, published by Dow Jones, contained an article
entitled "Unholy Gains" in which several references were made to the
respondent, Joseph Gutnick. Gutnick contended that part of the article
defamed him. A key judgement was that the suit could be brought in Australia.

Existing principles of defamation law are that legal proceedings should be

undertaken in the place where the communication is received, not where the
communication is sent from. This applies equally to internet communications,
despite the new nature of the technology.

The article in question was entitled Unholy Gains, by William Alpert, published
in Barron's 2000 Oct 30. Australian courts described the details of the article in
their written opinion on the case, as follows

"[The article] "states that some of his business dealings with religious charities
raise "uncomfortable questions" . . . . The author then uses some language that
the media have appropriated from the law courts, implying that a balanced
trial with equal opportunity to participate by all concerned has taken place:
that a "Barron's investigation found that several charities traded heavily in
stocks promoted by Gutnick." . . . (emphasis added) The article associates the
respondent with Mr Nachum Goldberg who is apparently a convicted tax
evader and another person awaiting trial for [[stock manipulation]] in New
York."

In court it was proven that only five copies of the Barron's print edition were
sent from New Jersey to be circulated in Australia, but that none had actually
arrived in the Jurisdiction. Gutnick therefore resorted to the internet based
publication in order to show an actionable tort in the jurisdiction. The Internet
version of the magazine had 550,000 international subscribers and 1700
Australian-based credit cards.
Geoffrey Robertson QC argued for the publisher Dow Jones as to whether it
was considered to be "published from" where it was uploaded in New Jersey or
"published into" where it was downloaded by subscribers in Victoria, Australia.
The argument was on publication and jurisdiction.

In a unanimous decision, all seven High Court justices decided that Gutnick had
the right to sue for defamation at his primary residence and the place he was
best known. Victoria was considered the place where damage to his reputation
occurred. The High Court decided that defamation did not occur at the time of
publishing, but as soon as a third party read the publication and thought less of
the individual who was defamed.

Dow Jones was forced to admit in court that "there was no reason to believe
Mr Gutnick was a customer of Mr Goldberg or had any criminal or improper
relations with Mr Goldberg." (quote from an Australian Broadcasting
Corporation story)[4]

The High Court's ruling effectively allows defamation plaintiffs in Australia to

sue for defamation on the internet against any defendant irrespective of their
location. "If people wish to do business in, or indeed travel to, or live in, or
utilize the infrastructure of different countries, they can hardly expect to be
absolved from compliance with the laws of those countries. The fact that
publication might occur everywhere does not mean that it occurs nowhere."
(per Callinan J at para 186)

Equally, however, the majority of the Court (Gleeson CJ, McHugh, Gummow
and Hayne JJ handing down a joint decision) stated that they disagreed that
this would cause open-slather defamation actions in Australia: (at para 54 of
the decision)

…the spectre which Dow Jones sought to conjure up in the present appeal, of a
publisher forced to consider every article it publishes on the World Wide Web
against the defamation laws of every country from Afghanistan to Zimbabwe is
seen to be unreal when it is recalled that in all except the most unusual of
cases, identifying the person about whom material is to be published will
readily identify the defamation law to which that person may resort.
The case was highly controversial and the subject of much commentary from
legal analysts.[5] The case was appealed by the author, to the UN under the
right of direct petition for individuals.[6] In the teeth of that application
prepared by Geoffrey Robertson, Tim Robertson SC, Mark Stephens (solicitor)
and Sydney based lawyer Paul Reidy, the case was settled on 15 November
2004, Dow Jones settled the case, agreeing to pay Gutnick some of his legal
fees