Journalism

Semester 3

A research paper on :

Media and defamation

SUBMITTED TO:

Prof. Dr. C.K. Singh

NMIMS Kirit P.Mehta School of Law

SUBMITTED BY:

Divyanshu Singh

Roll no: B059

Div :B

Kirit P.Mehta School of law Page 1

 INDEX:

Serial .no Topic Page .no

1. Abstract 3

2. Introduction 4-5

3. Research objective 5-6

4. Review of literature 7-8

5. analysis 8-19

6. conclusion 20-21

7. bibliography 22

Kirit P.Mehta School of law Page 2

ABSTRACT

This paper focuses on how defamation laws are being used by the big corporate houses and
politicians. The major area of research is to find out problems faced by media due to the prevailing
laws on defamation in India even when protection is provided to the media under article 19(1),
freedom of speech and expression. This has been done with the help of various landmark case laws
and recent cases on defamation. The first part of this research deals with the various aspects of
defamation in order to grasp a better holding on the topic, in the later part the present standing of
India on defamation as a criminal offence and a civil wrong is discussed. the paper also contains the
position in India a regard to defamation laws.

Kirit P.Mehta School of law Page 3

Introduction:

The Concept of defamation:

Defamation is primarily a publication of wrong or defamatory statement about another person, the
statement is such that it doesn’t have any legal justification. A statement is defamatory if it attacks
and injures the reputation of the person referred and such publication exposes him to hatred ,
ridicule or it causes him to be avoided or has the propensity to injure him in his office, profession or
calling.

What constitutes cause of action for defamation:

i. The statement must be defamatory

A statement which injures the reputation of another is defamatory. It is not necessary to disparage
the moral or intellectual character of the concerned person.1 Traditionally, the test which is applied
to find whether a statement is defamatory is to check whether the words were intended to injure the
reputation of another and such words expose him to hatred, contempt or ridicule.’2 In Cassidy v.
Daily Mirror3, a defamation suit was filed by Casidy’s wife arguing that the alleged photographs
suggested that Corrigan is unmarried man and the wife has an illicit relationship with him. The court
held that to fix the liability for libel it is not necessary to prove intention of the defendant but facts
are important.

ii. The statement must refer to the Plaintiff

In every case of defamation, the plaintiff has to establish that the statement was referred to him. It
implies that the plaintiff must prove that he is the person defamed. The House of Lords in With
respect to group defamation, in Eastwood v. Holmes4 is a case which dealt with concept of group
defamation. The court was of the view that when words are targeted at a particular group, it
becomes difficult to prove that such words were spoken especially for one person of that group.

1
Ridge v. English Illustrated Magazine, (1913) 29 TLR 592
2
Parmiter v. Coupland, (1840) 6 M&W 105.
3
(1929) 2 KB 331.
4
(1858) 1 F&F 347.

Kirit P.Mehta School of law Page 4

 Example that can be used here is a statement that ‘all lawyers are thieves’, this does not gives a cause
of action for an individual lawyer to file a case.

iii. The statement must be published by the defendant

The objective behind the defamation law is to protect the reputation and integrity of a person in
front of society. Hence to file a defamation suit the plaintiff is required to prove that the words are
published to persons other then the plaintiff himself. In Re, S.K. Sundaram5, certain defamatory and
contemptuous allegations were made against the Chief Justice of India by an advocate. The
defamatory remarks were written in a telegram which was sent to the Chief Justice. The court held
that since when someone sends a telegram the contents are read by telegraphic office before as well
as after the transmission, therefore sending a telegram amounts to publication.

RESEARCH PROBLEM:

Defamation suits has increased against media in the recent years, this weapon is used majorly by
politicians and big corporate houses who enjoys great power and authority. It is used as a means
to silence criticism. For example, The polyester prince, authored by Hamish MacDonald, the
book is about the Ambanis. Its was unavailable in India because the publisher feared defamation
suit. The most recent case of defamation is filed by BSES Limited, a company in Anil
Dhirubhai Ambani Group against Bennett, coleman and company publisher of Times of India for
a series of reports allegedly defaming them. The amount claimed is of Rs. 5000 crores.

One thing that seems to be disconcerting in this scenario is that most of the plaintiffs are
politicians or big business houses and defendants are journalists or newspapers. The amount
claimed is massive so as to make the media houses discontinue their business but the actual harm
is unidentified. The reason behind this crippled situation of media is because the defamtion law
allows this. Once preliminary conditions are satisfied burden shifts to defendants to prove that
the statement is true or is guarded by privileged communication. Even an unintentional error can
lead to liability.

5
(2001) 2 SCC 171

Kirit P.Mehta School of law Page 5

RESEARCH OBJECTIVES:

(i) To find out the reasons for recent rise in defamation suits against media.
(ii) To analyse the pattern of various judgement passed by the courts with regard to
defamation suits.
(iii) To compare the protection given to media in India under article 19(1)(a) with that of
U.K and United States Of America.

HYPOTHESIS:

Threats of legal action with punitive damages under the laws of defamation lead to ‘chilling
effect’ on the publication of free and independent articles and puts undue pressure on journalists
and publishing houses. In this situation the media more or less becomes handicapped.

RESEARCH QUESTIONS:

(i) Whether the increase in defamation suits and courts decisions in favour of plaintiff’s
clipping the wings of media and thus interfering with free media?

(ii) Is it time for the appropriate authority to remove defamation as a reasonable restriction
under article 19(2) for the purpose of article 19(1)(a)?

(iii) Keeping in mind the various measures taken in different countries for the protection of
free media, is it time for Indian counterpart to make effective regulatory framework to
protect media from dummy defamation suits?

Kirit P.Mehta School of law Page 6

REVIEW OF LITERATURE:

Roy L. Moore and Michael Murray in their book ‘Media law and Ethics’ 4th edition6 talks
about libel, its meaning and the impact of various decisions of U.S. Supreme Court on libel suits.
The authors have explained how it has become a smooth walk for people suing for defamation but
still some hurdles for public figures, public officials and private individuals are there to successfully
sue for libel. They have also dealt with various defenses like constitutional privilege and truth, truth
being an absolute defense. They have concluded by saying that the past trend shows more
favourable conditions for the plaintiff but recent trends indicate a swing in favour of media
defendants. The book gives an insight into the U.S laws and their standing with regard to media
protection. The book gives a basic understanding of defamation law, what it means, its impact on
freedom of media and how the various Supreme Court decisions have led to the passing of First
Amendment.

Comparative Media law and Ethics by Tim Crook7, this book focuses on the law of United
Kingdom and USA. The author also considers media law jurisdictions of India, France, China and
Saudi Arabia, each country giving an insight into media law of common law, civil law, socialist law
and Islamic law countries. Tim crook also analyses the present position of media law and how it
ought to be, historical development of legal and regulatory controls of communication. The
comparative study is important to analyse the safeguards for free and independent media at
international level. The book is a very good source to understand the historical development of
defamation law in different countries. Not only it focuses on common law but also refers the civil,
socialist and Islamic laws on media.

6
David Banks and Mark Hanna, ‘McNae’s essential law for journalists’, (Oxford University Press, New York, 20th ed.,
2009).
7
Tim Crook, ‘Comparative Media Law and Ethics’,( Routledge Taylor and Francis group, New York, 2010).

Kirit P.Mehta School of law Page 7

CHAPTER 2:

CONCEPT OF DEFAMATION AND GOVERNING LAWS IN INDIA:

LIBEL AND SLANDER

Defamation could take one of the two forms: libel or slander. Libel consists in the publication of a
defamatory statement expressed in some permanent form, for instance by writing, printing, pictures,
statue, waxwork, effigy etc. Where, on the other hand, defamation is oral or by gestures or in some
other transient form, it constitutes the tort of slander.8

In Monson v. Tussands Ltd.,9 the distinction was explained thus:

Libels are generally in writing or printing, but this is not necessary; the defamatory
matter may be conveyed in some other permanent form. For instance, a statue,
caricature, an effigy, chalk marks on a wall, signs or pictures may constitute a libel.

In a later case, Youssopoff v. Metro Goldwyn-Meyer Pictures Ltd.,10 it was suggested that in addition to the
test of permanence, the communication must also be visual. In this case, the question arose as to
whether film pictures accompanied by speech could amount to libel. The court came to the
conclusion that while there was no doubt that the visual aspect, being permanent in nature would
constitute libel, the audio portion would also qualify as libel, not independently, but only because it
was part of ‘one complex, common exhibition’ being ‘ancillary’ to the visual image.

At common law, while libel is both criminal as well as a civil wrong, slander is regarded as capable of
constituting only a civil wrong, even though the words used may come within the ambit of criminal
law being blasphemous, seditious or obscene, or as being a solicitation to commit a crime or as
being a contempt of court.11 Under Indian Law, both libel and slander constitute criminal offences
under section 499 of the Indian Penal Code, 1860.

In India, we need not over-emphasise the distinction between libel and slander since the common
law rule that slander is not actionable per se has not been adopted by our courts. In Indi, both libel

8
Madhavi Goradia Divan, ‘Facets of Media Law’, (Eastern Book Company, Lucknow, first ed. 2006) pg. 85.
9
(1894) 1 QB 671, P. 692.
10
(1934) 50 TLR 581 (CA).
11
R. v. Holbrook, (1878) 4 QBD 42, P.46.

Kirit P.Mehta School of law Page 8

and slander are actionable in a civil court without proof of special damage.12 Also, section 499 of
Indian Penal Code, 1860 makes no distinction between written and spoken words and both libel and
slander are capable of constituting criminal offences.13 In cases of slander, the actual words used by
the accused may be reproduced where the statement is brief. But where the defamatory statement is
long, it would be technical to insisit that the actual words spoken be reproduced verbatim.14

CRIMINAL LAW:

According to section 499 of the Indian Penal Code, defamation may be by words, either spoken or
intended to be read, or by signs or visible representation. Any person who makes or publishes any
imputation concerning any person, knowing or having reason to believe that such imputation will
harm the reputation of such person, is said to defame that person.15

CIVIL LAW:

In civil law, an action for defamation is claimed in the form of damages for causing injury to the
reputation of the plaintiff. The amount of damages differs from case to case and is to be determined
by the judge.

Remedies for defamation

The plaintiff may sue an author, editor, proprietor, printer and publisher for defamation. All these
persons would be jointly and severally liable and may be sued as such. Punitive damages are awarded
to punish the wrongdoer. In awarding exemplary or punitive damages, the court considers, not what
the plaintiff would like to receive, but ‘what the defendant ought to pay’ for his conduct. Punitive or
exemplary damages are awarded by adding a sum to the compensatory damages, enhanced by
aggravating circumstances.

12
Ramdhara v. Phulwatibai, 1969 MPLJ 483.
13
Ibid.
14
Balraj Khanna v. Moti Ram,(1971) 3 SCC 399.
15
M.Neelamalar,’Media Law and Ethics’, (PHI Learning Private limited, New Delhi, 2010) pg.25-28.

Kirit P.Mehta School of law Page 9

CHAPTER 3: PROMISE OF ARTICLE 19(1)(a): FREE MEDIA

Freedom of speech and expression is an issue, which, for various socio-political and economic
reasons, has not yet taken the shape it should have acquired. Nonetheless, it is an issue. The more
we are aware of it, the better it is for our society to pursue its democratic principles. Through the
ages, man has expressed his ideas through several media like symbols, signals, speech, script and
print, and now computer language. Man’s greatest invention is language. The invention of the script
has helped mankind to preserve human thought and learning. It has helped society to conquer both
space and time. Since information and ideas are so important for growth and survival of a free and
democratic society, such a goal cannot be achieved unless every citizen has a fundamental right to
give expression to his ideas and opinions. This came to be known as the right to free speech and
expression. With the advent of printing technology, freedom of the press was included in the
freedom of expression.

Article 19(1) (a):

With the gaining of independence, freedom of speech and expression were recognised as
fundamental rights and were included in the Indian Constitution. In the article 19(1) (a) of our
Constitution. In the Article 19(1) (a) of our Constitution, it is stated: “all citizens shall have the right
to freedom of speech and expression”.

Article 19(2) provides reasonable restrictions on freedom of expression. Article 19(2) says that the
state can impose reasonable restrictions on the exercise of the freedom expression and speech in the
interests of (a) sovereignty and integrity of India; (b) the security of the state; (c) friendly relations
with foreign states; (d) public order; (e) decency or morality; (f) contempt of court; (g) defamation
and (h) incitement to an offence. It means that the law has to limit itself to the eight areas
mentioned above. The restrictions imposed on the freedom of speech and expression must be
reasonable.

Article 361 A of our Constitution says:

No person shall be liable to any proceeding, civil or criminal in any court in respect of the
publication in a newspaper of a substantially true report of any proceedings of either house

Kirit P.Mehta School of law Page 10

 of the Legislature of a State, unless the publication is proved to have been made with
malice.

The Supreme Court delivered judgements in a few cases proclaiming that freedom of speech and
expression included freedom of the press also. An important case was that of the Sakal decided by
the Supreme Court in 1962. In that case, the Supreme Court held that the right to propagate one’s
ideas was inherent in the concept of freedom of speech and expression and that for the purpose of
propagating his ideas, every citizen had a right to publish, disseminate and circulate them.16

In two earlier cases, Romesh Thapar v. State of Madras(1950) and Brij Bhushan v. State of Delhi (1950), the
Supreme Court held that the freedom of speech and expression included freedom of propagation of
ideas and that freedom was ensured by the freedom to circulate ideas. It also declared that freedom
of the press was an essential part of the right to freedom of speech and expression.17

Constitutional status of the media

The media derives its right from the right to freedom of speech and expression available to the
citizen. Thus, the media has the same rights- no more and no less than any individual to write,
publish, circulate or broadcast. In a case that arose in pre-independent India, the Privy council held:

The freedom of the journalist is an ordinary part of the freedom of the subject and
to whatever lengths the subject in general may go, so also may the journalist, apart
from the statute law, his privilege is no other and no higher....No privilege attaches
to his position.18

The framework for analysing media rights remains much the same in post-independence India. In
M.S.M.Sharma v. Krishna Sinha19, the Supreme Court observed:

A non citizen running a newspaper is not entitles to the fundamental right to freedom of
speech and expression and , therefore cannot claim, as his fundamental right, the benefit of
the liberty of the press. Further, being only a right flowing from the freedom of speech and
expression, the liberty of the press in India stands on no higher footing than the freedom of

16
S.Kundra,’Media Laws and Indian Constitution’,(Anmol Publications Pvt. Ltd., New Delhi, first edn., 2005)pg.201.
17
Ibid.
18
Channing Arnold v. Emperor, AIR 1914 PC 116.
19
AIR 1959 SC 395.

Kirit P.Mehta School of law Page 11

speech and expression of the citizen and that no privilege attaches to the Press as such, that
is to say, as distinct from the freedom of the citizen.

In other words, the media enjoys no special immunity or elevated status compared to the citizen and
is subject to the general laws of the land, including those relating to taxation. However, in post-
independence India both the citizen and citizen-owned media enjoys a constitutional guarantee that
was hitherto absent.

Characteristics of speech and expression under Article 19(1)(a)

The concept under article 19(1)(a) enumerates various characteristics of freedom of speech and
expression. It deals with what should be the contents of speech and expression and various methods
via which communication is undertaken. The concept is not static but dynamic which changes with
time and technology.

Article 19(1)(a) includes the right to express by words spoken, written, printed, conveyed through
pictures or in other ways. It covers freedom of communication and the right to propagate or publish
any individuals view.

The resultant scenario:

The current scenario is that freedom of press is not absolute. It can be restricted provided three
distinct and independent prerequisites are satisfied:

1) The restriction imposed must have the authority of law to support it. Freedom of the press
cannot be curtailed by executive orders or administrative instructions which lack the sanction of law

2) The law must fall squarely within one or more heads of restrictions specified in Art 19(2).
Restrictions on freedom of speech and expression cannot be imposed on such omnibus grounds as
‘in the interest of the general public’.

3) The restrictions must be reasonable and must not be excessive. The validity of restrictions
imposed is justifiable and open for Judicial review by the Indian courts.

Kirit P.Mehta School of law Page 12

Liberty has got to be limited in order to be affectively possessed. For liberty of one must not offend
the liberty of others. Patanjali Shastri,J. in A.K. Gopalan’s20 case, observed, “ man as a rational being
desires to do many things, but in a civil society his desires will have to be controlled with the
exercise of similar desires by other individuals”. The guarantee of each of the above right is
therefore restricted by the Constitution itself by conferring upon the State a power to impose by
reasonable restrictions as may be necessary in the larger interest of community. The restrictions on
these freedoms are provided in clauses 2 to 6 of Art 19 of the Constitution. ‘The Liberty of the press
as defined by Lord Mansfield, “consists in printing without any license subject to the consequences
of law”. Thus the liberty of the press means liberty to print and publish what one pleases, without
previous permission. It includes newspapers, periodicals and even pamphlets.21

Freedom of press does not occupy a preferred position in the Indian Constitution which does not
recognize a hierarchy of rights. There are however dicta of the Supreme Court describing this
freedom as ‘the Ark of the Covenant of Democracy’22.The most precious of all freedoms guaranteed
by our Constitution.

In Prabhu Dutt v Union of India23 the Supreme Court has held that the right to know news and
information regarding administration of the Government is included in the freedom of press. But
this right is not absolute and restrictions can be imposed on it in the interest of the society and the
individual from which the press obtains information. They can obtain information from an
individual when he voluntarily agrees to give such information.

In another celebrated decision, Bennett Coleman & Co. v Union of India24 the Supreme court again came
to the rescue of the press. It held that freedom of press entitles newspapers to achieve any volume
of circulation and freedom lies both in its circulation and content. Freedom of press is the heart of
social and political intercourse. It is the primary duty of the courts to uphold the freedom of the
press and invalidate all laws or administrative actions which interfere with it contrary to the
constitutional mandate.

20
AIR 1951 SC 21
21
Lowell v Griffin, (1939) 303 US 444
22
Bennett Coleman & Co. v Union of India AIR 1972 SC 106
23
AIR 1982 SC 6
24
AIR 1972 SC 106

Kirit P.Mehta School of law Page 13

In the case of Tata Press Ltd v Mahanagar Telephone Nigam Ltd.25 The issue was that whether a
commercial speech is protected under Art 19(1)(a). the court after an extensive review of the
judgments of the US Supreme Court and previous Supreme Court held that Commercial
advertisements are entitled to the protection of Article 19(1)(a).

Chapter 4

Law of defamation as a restriction on media

During the course of evidence, many of the state governments have stressed the desirability of
amending the law of defamation, particularly in its application to public officers and government
servants. They have urged that many newspapers, particularly those which indulge in yellow
journalism, make reckless allegations against public officials and Government servants, very often
merely for the purpose of indulging in sensationalism and thus attracting more circulation. These
officers find it extremely inconvenient and often very expensive to launch either a civil suit or a
criminal prosecution particularly because of the delay involved in the conduct of these cases. When
they do file such a suit or prosecution, they are subjected to cross-examination which is aimed at
throwing more mud on the reputation of these persons, and even if there is no truth in the
allegations which are suggested in the cross examination, some of the mud sticks. They are,
therefore, extremely reluctant to take any legal step to obtain redress. Even if they are able to bring
home the charge to the accused, he often tenders an apology when it begins to appear that there is
no way of escaping conviction, and thus the matter is either compromised or the accused gets away
with a nominal sentence or fine. The state governments have, therefore stressed the desirability of
amending the law in such a way as to enable the public servants to obtain relief without the
handicaps involved in the present procedure. They have also urged that a mere apology should not
confer immunity on the accused. On the other hand, it has been urged by the Southern India

Under article 19(2) of the Constitution, the fundamental right of Freedom of speech and expression
can be curtailed by the imposition of reasonable restrictions in relation, inter alia, to contempt of
court, defamation or incitement to an offence. It is the contention of the Federation of Working
Journalists and the point was stressed by a member of the bar that the permissible restriction in
relation to defamation should operate only in the sphere of civil liability and not in the sphere of

25
(1995) 5 SCC 139 at 154.

Kirit P.Mehta School of law Page 14

criminal liability. He urged that the right given by the Constitution for freedom of expression should
not be curtailed by making an exception in favour of criminal libel of private individuals. He thought
that only that form of defamation which was likely to lead to a breach of the peace, should be made
an exception to the right conferred by article 19(1) in relation to defamation.

In the Indian context, perhaps the provisions of Order 7 Rule 11 of the Code of Civil Procedure,
1908 (CPC) may be stretched to say that the principle of anti-SLAPP is present within a statutory
provision. Order 7 Rule 11 of the CPC deals with rejection of plaint and the court is mandated to
reject the plaint for failure to disclose a cause of action. Judicial interpretation of the aforesaid
provisions reveals that the court has to form its opinion on the non-disclosure of any cause of action
in the plaint by a bare and meaningful reading of the plaint only.3 However, the defendant has to
make out a clear case only by reading the plaint that the plaintiff has failed to disclose a cause of
action as against the defendant.

In the absence of any express statutory provisions regarding the principle of anti-SLAPP, Indian
courts have not had many occasions to consider such principle. Judgments on rejection of plaint
under the provisions of Order 7 Rule 11 of the CPC have not discussed the applicability of the
principle of anti-SLAPP. However, the principle is slowly being plead before courts in India as well.
Two judgments have been rendered by the Delhi High Court with regards to SLAPP suits and both
the judgments are a recent phenomenon, occurring as late as 2009.

In Tata Sons Ltd v Greenpeace International & anor [2011], the plaintiff, Tata Sons, claimed a decree for
permanent injunction, and a decree for damages to the extent of ten crores, against the defendants
for defamation with the ulterior motive of damaging its reputation and infringement of its trade
mark. The plaintiff alleged that the defendants made an online game by the title 'Turtle v TATA' in
which the users of the game read statements like:

'The aim of the colourful and noisy video game is to help the yellow turtles eat as many little white
dots as possible without running into Ratty (presumably after Ratan Tata, chairman of the Tata
Group), matty, Natty or Tinku.'

The plaintiff alleged that such statements over the internet were clearly defamatory.

The defendants contended that here was a global organisation consistently espousing environmental
issues and the impact of development at the cost of the environment. They argued that the suit was

Kirit P.Mehta School of law Page 15

a SLAPP suit intended to silence, censor and intimidate the defendants and other third parties, who
were concerned with the negative effect of the Dhamra port project on one of the largest nesting
grounds for the olive ridley sea turtle and two adjoining protected areas. It was submitted that the
suit had been instituted with the only motive being to stifle honest and bona fide criticism by
threatening to burden the defendants with financial consequences.

The Delhi High Court, while dismissing the application filed by the plaintiff, held that the courts in
different jurisdictions had put great value on free speech and its salutary catalysing effect on public
debate and discussion on issues at large. It was of the opinion that the issue, which the defendant's
game sought to address, was also one of public concern, and the court could not sit in value
judgment over the medium (of expression) chosen by the defendant since, in a democracy, speech
can include forms such as caricature, lampoon, mime parody and other manifestations of wit. The
court held that whether there was libel or not would be a matter of trial and, therefore, the granting
of an injunction at such an intermediate stage would freeze the entire public debate on the effect of
the port project on the olive ridley turtles' habitat.

A final point about this trend, particularly as it relates to silencing academic comment, is that it is a
dangerous one, and one against which we must all speak out: these cases, in which the challenged
content offers studied comment against the powers that be, will be a good acid test for the strength
of our speech protections as they fall squarely within the class of speech which constitutional
protections seek to maximize and disinhibit. It should be the very minimum that the Article 19(1)(a)
guarantee entails.

Kirit P.Mehta School of law Page 16

CHAPTER 5:

INDIA’S STANDING ON FREE MEDIA

India was ranked 136 out of 180 nations worldwide in terms of press freedom in 2020, which marks
an improvement from its rank of 140 in 2014, even though its absolute score declined from 40.34 to
40.49.

In the annual World Press Freedom Index (WPFI) produced by Reporters Without Borders (RSF),
India’s “abuse score,” which reflects the intensity of violent harassment faced by journalists was
59.58, which is higher than Sri Lanka’s score of 40.6 but below Pakistan’s score of 64.91 and China’s
score of 89.64.

Regarding the country performance the WPFI report said “One journalist and no net citizens were
killed.”26

The WPFI ranks the performance of countries according to a range of criteria that include media
pluralism and independence, respect for the safety and freedom of journalists, and the legislative,
institutional and infrastructural environment in which the media operate, according to its producers.

With regard to the laws of the country in favour of media houses there is a heated debate going on.
Cases are being filed for decriminalising defamation. Section 499, 500 and 501 of Indian penal code
are being challenged as being violative of Article 14, 19 and 21. This reasonable restriction does not
seem to be reasonable anymore. As the concept of investigative journalism is embraced by the media
there is an increase in defamation cases against them. Also with the introduction of SLAPP suits
more and more corporate houses are filing such suits. The big names like Subramaniam Swamy and
Rahul Gandhi are in favour of scrapping defamation as a criminal offence.

The recent reports suggest that the defamation cases have multiplied in 2019. The number of
defamation cases increased from six in 2014 to eight (till august) in 2019. The latest case was filed by
Essar Steel India ltd against CARAVAN on august 22. The case is filed against the publisher i.e.
Delhi Press and its editors and also against its reporter, Krishn Kaushik. The company filed a
defamation suit on the basis of a report published by the reporter under the heading ‘Doing the

26
Narayan Lakshman, ‘India Improves press freedom rank”, (The Hindu, 13th February 2015), last accessed on 14th
October 2015.

Kirit P.Mehta School of law Page 17

Needful: Essar’s industry of influence”. The company alleged that the story makes such imputations
which are harmful for the company’s goodwill.

In January 2015, cricketer Ravindera Jadeja filed a suit against a newspaper in Rajkot which
published a report alleging the cricketers connection with a land grabber. In February, suit was filed
by a MLA from Karnataka, Priya Krishna, against a Kannada news channel. The channel alleged that
the MLA was involved in encroachment of forests. The number of cases steeply increased in July. In
July itself five cases were filed and in August three were filed.27

The first case filed in July was by National Stock Exchange against Moneylife, an online portal, on
the basis of a report published by it. It was alleged that the portal has published false reports on
algorithm trading mechanism. The judgement in this case was passed on 9 th September 2015 in
which the Bombay High Court rejected the application for injunction filed by National stock
exchange. The application was filed against the journalist Sucheta Dalal and others. Heavy fines were
imposed by Justice Gautam Patel upon the National Stock Exchange which will serve as a
deterrence to increasing SLAPP suits. It might seem a little inappropriate to some people to impose
fine in an injunction application where the main suit was till not disposed off but the step will go a
long way in safeguarding the media against such suits.

The case is important because it further strengthens the body of jurisprudence of defamation laws
and the extent of freedom of speech and expression. The constitutionality of defamation law started
to be questioned back in 1994 in the case of R.Rajgopal v. State of Tamil Nadu28. From then on
defamation law has seen many ups and down. The decision of the Bombay High Court bucks an
emerging trend of subjecting defamation law principles to thorough constitutional scrutiny.

27
Nandita Jha, ‘Defamation cases multiply’, (The Hoot, 27/08/2015), http://www.thehoot.org/, last accessed on
15th October 2015.
28
AIR 264, 1994 SCC (6) 632

Kirit P.Mehta School of law Page 18

VIEW OF THE INDIAN COURTS

Law in India had entered the cyber foray with the IT Act, 2000, but the act did not talk about Torts
like defamation in the cyber space. So since defamation online is considered in the form of Libel,
Indian courts were following the common law rule of Multiple publication as far as Cyber
Defamation was considered. Though there would have been only a handful of cases in this regard.

The Limitation Act, 1963 fixes the limitation period for Libel at 1 year8, so that would mean with
each hit to the webpage with the defamatory content, the limitation period of one year got renewed,
thus providing a longer limitation period to the Libel that could last years.

Latest View

The Delhi High Court recently ruled in the case Khawar Butt vs Asif Nazir Mir, Nov,
2013, Justice Vipin Sanghi9 on defamation on the Internet. In this far reaching Judgment the Delhi
High Court rejected the Multiple Publication rule and adopted the Single Publication Rule for Libel
on the Internet.

CHAPTER 8: CONCLUSION AND RECOMMENDATIONS

CONCLUSION:
India has come a long way in its protection for media. There were laws made against the freedom of
media before independence when Hickley’s Bengal Gazzette came into being and the laws got stricter
after coming of Indian Penal code which made defamation a criminal wrong. In India defamation is
treated as a civil wrong as well as a criminal offence whereas in United states it is treated as a civil
wrong because they are of the view that it is important to provide security to the reputation of a
person but at the same time it is also necessary to ensure freedom of media. In U.K also defamation
is treated as a tort only i.e. a civil wrong not a criminal offence as they consider the criminal
defamation a relic and not applicable in present society. They argue that such laws would do more
harm than good, they might be dangerous to freedom of speech and expression and therefore
should be discontinued.

Kirit P.Mehta School of law Page 19

• Defamation as a criminal offence is started to be questioned in India also. Though the decision
is yet to come it is time for the Indian Courts also to remove it from the criminal offence
because it does affect the freedom of media in reporting the reality. Many Supreme Court
lawyers are of the view that such false criminal defamation cases are filed with the sole aim to
oppress the opposition voices. These provisions are used arbitrarily these days. In this paper
various recent cases are discussed which are filed by many big politicians or big corporate houses
just to curb the voices of opposition against them. If such a situation would be allowed to
continue it will run havoc in the society and reality would be far more different than that is being
told.

• India is one of those rare countries who criminalise defamation. Even the country that gave
India its defamation laws have decriminalised defamation. Everybody is moving with time and
agree with fact that it is important to remove it as a criminal offence, but India is still stuck with
this century old regime. Kavita Krishnan, an activist, was branded as a terrorist during a
television debate but she refused to file a criminal case against that channel because she was of
the view that there are hundreds of people who are accussed of being terrorists but they are
mostly poor and therefore unable to file any case against anyone. This weapon is majorly used by
big corporate guns and politicians because they have resources and to ensure that there secrets
don’t get unearthed. It is clear from this fact that this law is used only by rich to prevent from
reaching the truth and poor even ripped apart have nothing in their hands. In the author’s view
we should follow the lines of other countries and scrap this age old law.

• It is also true that sometimes media do try to sensationalise a issue and forgets its true role in the
society. Newspapers have a come a long way from the time when there used to be limited
number of pages and it used to be filed with relevant news instead of some gossip columns.
With the advancement of technology newspapers have become much better edited and crafted.

• From the above noted facts it is clear that even though defamation as a criminal offence clips
the wings of the media but to ensure that the media follows a righteous path and refrain from
tarnishing someone’s image just to gain trps, defamation as a civil wrong is important. The
reasonable restriction on freedom of speech and expression under article 19(2) even though
sometimes might become a barrier between media and reporting but they are important.

Kirit P.Mehta School of law Page 20

• The free press is both the mortar that binds together the bricks of our country’s freedom, and
the open window embedded in those bricks. No Indian leader would go as far as Thomas
Jefferson, who said that given a choice between government without newspapers and
newspapers without government, he would choose the latter. But government needs newspapers
to keep it honest and efficient, to serve as both mirror and scalpel. If instead all we have is a
blunt axe, society is not well served.

• If India wishes to be taken seriously by the rest of the world as a responsible global player and a
model 21st-century democracy, we will have to take ourselves seriously and responsibly as well.
Our media would be a good place to start.

RECOMMENDATIONS:

• Since the Indian Supreme court has taken a step forward in National stock exchange case by
setting high standards to prove defamation, it should continue moving in that direction only.
The author does not support the view that there should be no regulation on the media and to let
it run like a mad bull but there is a much needed relaxation that is required by removing
defamation as a criminal offence under section 499 and 500 of Indian Penal Code, 1860. We
need not to be clutched in the laws that were made for us by the people who ruled India
especially when they themselves have moved on with their own laws.

BIBLIOGRAPHY

Statutes/legislations referred:

1. Constitution of India
2. Indian Penal Code, 1860
3. Press Council of India Act, 1965
4. The Press and Registration of Books Act, 1867

Books referred:

1. Madhavi Goradia Divan, ‘Facets of Media Law’, (Eastern Book Company, Lucknow, first ed.
2006).

Kirit P.Mehta School of law Page 21

 2. S.Kundra,’Media Laws and Indian Constitution’,(Anmol Publications Pvt. Ltd., New Delhi, first
edn., 2005).

3. Tim Crook, ‘Comparative Media Law and Ethics’,( Routledge Taylor and Francis group, New
York, 2010).

4. Banks D. and Hanna M., ‘McNae’s essential law for journalists’, (Oxford University Press, New
York, 20th ed., 2009).
5. Lalit Bhasin, ‘Media world and the Law’, (Universal law publishing Co., New Delhi, 2010).

Articles referred:

1. Gautam Bhatia, ‘Free Speech and Civil Defamation’ (The Centre for Internet and Society, 25th
june 2014), http://cis-india.org/ accessed on 13th September 2015.

2. Nandita Jha, ‘Defamation cases multiply’ (The Hoot, 27/08/2015) http://www.thehoot.org

accessed 13 september 2015

Kirit P.Mehta School of law Page 22