Defamation law exists to protect a person’s reputation, either moral or professional, from unjustified attack. To constitute a defamation, a claim must generally be false and must have been made to someone other than the person defamed. A defamatory statement is a false statement of fact that exposes a person to hatred, ridicule, or contempt, causes him to be shunned, or injures him in his business or trade.
Injuring a person’s character or reputation is defamation. In India, a defamation case can be filed either under criminal law or civil law or cyber crime law, together or in sequence. There are two basic types of defamation in civil law — slander and libel. Libel is the permanent form — written or broadcast and slander is the spoken form. When a potentially defamatory statement is made online or through social media — such as Facebook or Linkedin — that involves the written or posted word, and so such defamation is considered as a libel. Under section 500 of Indian Penal Code, the punishment for defamation is simple imprisonment for upto two years or with fine or with both.
There are also several basic defences used in defamation cases — truth, absolute and qualified privilege and fair comment.
In a defamation case, a complainant must prove:
a) The words used by the defendant were false.
b) The words used referred specifically to the complainant.
c) The words were read and heard by a third party.
d) The words caused harm and/or economic loss.
e) Disparages the complainant in their office, trade or profession.
f) Lowers them in the eyes of right-thinking people generally
Filing a defamation suit
A successful lawyer should know how to file a defamation suit. Defamation law suit has to be carefully proceeded. Usually it is between two power honchos.
1) First send a Legal notice Under Section 499, 500 and 505 Indian Penal Code 1860 for defamation in public media. Section 499 of the Indian Penal Code 1860 defines what would amount to defamation in relatively clear terms.
2) Leave doors open for compounding of offence. This means the advocate has to leave room for reconciliation between the parties — which is very likely.
3) A defamation case can be filed in the court of session for non cognizable bailable offence. It may also be tried in first class magistrate court.
4) As a strategy the legal notice should be publicised as much as possible through press and visual media.
5) At this stage the reconciliation usually happens else the defamation case can be filed in the sessions court or first class magistrate court and this news should again be publicised through press and visual media.
6) The court will hear the cases based on the merits of the case.
The defence strategy
Given below are some of the guidelines which a successful lawyer may adopt to defend his client in case a defamation suit. The successful lawyer has to weave his defense strategy around any of the following strategies given below.
Strategy 1: 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 the public good is a question of fact.
Strategy 2: It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct and no further.
Strategy 3: It is not defamation to publish substantially true report of the proceedings of a court of justice, or of the result of any such proceedings.
Strategy 4: It is not a defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a court of justice, or respecting the conduct of any person as a party witness or agent, in any such case, or respecting the character of such person as far as his character appears in that conduct, and no further.
Strategy 5: It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.
Strategy 6: It is not defamation in a person having over another any authority, either conferred by law or arising out of lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
Strategy 7: It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.
Strategy 8: It is not defamation to make an imputation in good faith by person for protection of his or other’s interest.
Strategy 9: It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.
Thus from the above it can be seen that there is a very thin line between what will be termed as “defamation” and “not a defamation”. It totally depends on the lawyer how he structures his case to the requirement.
(The writer is the global head of legal in a major information technology company)