FREEDOM OF SPEECH

AND
DEFAMATION
WINFIELD’S DEFINITION OF
DEFAMATION

“Defamation is the publication of a

statement which reflects on a person’s
reputation and tends to lower him in
the estimations of right-thinking
members of society generally or tends
to make them shun or avoid him.”
Thus, one can begin by saying, that by
publishing any statement that
negatively affects the reputation of an
individual and diminishes his
standing in the eyes of others, one is
guilty of defamation.
 In this sense, the statement is false
and made without lawful justification
Sim v. Stretch, (1936) 52 T.L.R. 669, 671.
Lord Atkin’s judgment
“A defamatory statement is one which
has a tendency to injure the reputation
of the person to whom it refers and
lowers him in the estimation of right-
thinking members of society generally.
Further, it can cause him to be regarded
with “feeling of hatred, contempt,
ridicule, fear, dislike or disesteem.”
Defamation in India is both a civil tort –
where monetary compensation can be
claimed - and a criminal offence.
Section 499 of the Indian Penal Code,
1860
“Whoever, by words either spoken or
intended to be read, or by signs or by
visible 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 expected,
to defame that person.”
ESSENTIALS
The Statement must be defamatory.
The Statement must refer to the
plaintiff.
The statement must be published by
the defendant.
The Statement must be false.
ESSENTIALS
Defamation’ as being committed
Through:
(i) words (spoken or intended to be
read),
(ii) signs, or
(iii) visible representations;
Which are a published or spoken
imputation concerning any person;
If the imputation is spoken or
published with:
(i) the intention of causing harm to
the reputation of the person to whom
it pertains, or
(ii) knowledge or reason to believe
that the imputation will harm the
reputation of the person to whom it
pertains will be harmed.
ENGLISH COMMON LAW

In England, defamation consisted first

of slander and later, libel as well as
slander. The early Anglo-Saxon kings
punished slander—speaking falsely
against one's neighbor in local secular
courts, not only to remedy the
dishonor and personal insult it
caused, but to preserve the peace by
eliminating personal vendettas. 
DISTINCTIONS WITHIN DEFAMATION,
NAMELY LIBEL AND SLANDER
If one were to put the distinction
between slander and libel, slander is
addressed to the ear and libel to the eye.
In libel, the defamatory statement is
made in some permanent and visible
form, such as writing, printing pictures,
or effigies.
Slander, on the other hand, is transitory
in nature.
Slander is a spoken defamation, while
libel is a written defamation.
Under English law, libel is an actionable
tort as well as a criminal offence, if severe
enough;
slander is only a civil injury. Libel is in all
cases actionable per se i.e. without proof
of actual damage; slander is, save in
special cases, actionable only on proof of
actual damage.
Elements of Libel
For a statement to be found as libelous, it
must be proved that the statement is a)
false;
b) in writing;
 c) defamatory;
 d) published
INNUENDO
There are certain words which are prima
facie innocent but carry a latent meaning
which is defamatory in nature.
Such explanatory statement is called
innuendo. An innuendo needs to be
supported by extrinsic facts or matter and
cannot be founded on mere interpretation.
INNUENDO
It is upon the plaintiff to make out the
circumstances that make these words
actionable and set forth the
defamatory meaning attached to
them.
The Rights of Newspapers
Newspapers have no special right or
privilege, and have no special right to
make unfair comments, or make
assertions upon a person’s character,
or assertions in respect of or upon a
person’s profession.
The range of a journalist’s criticism is
not wider than that of any other
subject.
A journalist has a greater
responsibility to guard against
falsehood as his expressions have a
larger publication than that of an
individual’s expressions, and are more
likely to be believed by a lay person
since they appear in print.
Moreover, since a journalist’s right to
comment on matters of public interest
is acknowledged by law, the journalist
owes an obligation to the public to
have his facts right.
Indeed, whenever commenting on
matter of public interest, the
newspaper must follow the rule of
"responsible journalism”.
Moving on, investigative journalism
does not enjoy any special right or
protection. Thus, any statement
accusing or implying criminal guilt
against anyone as a result of the
newspaper’s own investigation, does
not allow the newspaper to plead the
defence of qualified privilege.
NEWSPAPER RULE
“Newspaper Rule,” according to
which newspapers are not compelled
to disclose their information sources
at the interim stage in answer to
interrogatories.
Conflict with Freedom of Expression
In Indian law Article 19 of the Indian
Constitution protects certain rights in
the freedom of speech and expression,
considering them to be fundamental
in nature.
 Thus, freedom of speech and
expression is constitutionally
protected in India, with respect to
reasonable restrictions
DEFAMATION IN CYBER
SPACE
Cyberspace is a term used for computer
network where the communication takes
place through electronic medium.
When two or more computers are
connected together then this creates the
space for communication which is known
as cyberspace.
The crime done on the internet or
committed by using computer is known as
cyber crime.
MEDIUMS OF ONLINE
DEFAMATION
There are various medium by which
the online defamation is committed
these are :
 Social Networking website
 Email
Any Website
Forum sites
Any discussion group
OFFENCES OF ONLINE
DEFAMATION:
There are many types of offences which come
under the online defamation these are –
Ridicule any person on cyberspace: When a
person ridicule another person or group by
message, post, comment etc and even like and
share such post on any social networking website
then. Ridiculing anyone could be illegal under the
following laws:
a. Defamation - Section 499 of the Indian Penal
Code
b. Sending offensive electronic messages - Section
66A of the Information Technology Act
OFFENCES OF ONLINE DEFAMATION:
When
 a person ridicule a Minister or Government official
by message, post, comment etc and even like and share
such post on Facebook is an offence.

Ridiculing
 a Government official or Minister on Facebook
could be illegal under the following laws:

a. Sedition - Section 124A of the Indian Penal Code

b. Defamation - Section 499 of the Indian Penal Code

c. Sending offensive electronic messages - Section 66A of

the Information Technology Act
OFFENCES OF ONLINE
DEFAMATION:
Tagging on obscene photo:
When any person tagged his friend or anyone on an
obscene photo with or without wrong intention by
which the person who is tagged on that photo
losing his reputation can file the case against the
person who tagged him. Tagging on that offensive
photo is equal to sending offensive message on
web. This comes under –
a. Sending offensive electronic messages - Section
66A of the Information Technology Act.
b. Defamation - Section 499 of the Indian Penal Code
USING ABUSIVE WORDS
The use of abusive language on cyberspace is
serious offence and even uses of asterisk marks
in place of abusive words in any post, message
or in comment is also a crime the person losing
his reputation because of the abusive words used
by other person on cyberspace. This offence is
punishable under the following law:
a. Sending offensive electronic messages - Section
66A of the Information Technology Act.
b. Defamation - Section 499 of the Indian Penal
Code
Sending threatening message
When any person sends a threatening
message to anyone on any social networking
website or through email by which that
person have to lose his reputation in the eyes
of public it is also a serious offence under
following law:
a. Threatening message comes under sending
offensive electronic messages - Section 66A of
the Information Technology Act
b. Criminal intimidation – Section 503 of
Indian Penal Code
REGULATORY FRAMEWORK
Section 66A of Information Technology
Act, 2000
Section 499 of Indian Penal Code, 1860
Section 500 of Indian Penal Code, 1860
Section 503 of Indian Penal Code, 1860
Section 506 of Indian Penal Code, 1860
Section 469 of Indian Penal Code, 1860
Section 124A Indian Penal Code, 1860
Section 66A of Information Technology Act,
2000
This section is not particularly deals with online
defamation but it deals with the punishment of
sending offensive messages on cyberspace. The
section 66A of IT Act says that –
Any information that is grossly offensive or has
menacing character; or
Any content information which he knows to be
false, but for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury,
criminal intimidation, enmity, hatred, or ill will,
persistently makes by making use of such
computer resource or a communication device,
Section 66A of Information Technology
Act, 2000
 Any electronic mail or electronic mail
message for the purpose of causing
annoyance or inconvenience or to deceive
or to mislead the addressee or recipient
about the origin of such messages shall be
punishable with imprisonment for a term
which may extend to three years and with
fine
 Section 499 of Indian Penal Code, 1860
Whoever, by words either spoken or intended to be
read, or by signs or by visible 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.
The law of defamation under Section 499 got
extended to "Speech" and "Documents" in
electronic form with the enactment of the
Information Technology Act, 2000.2
Section 500 of Indian Penal Code, 1860:

This section deals with the punishment of

defamation (section 499 of Indian Penal
Code). The section 500 of IPC says that –

Whoever defames another shall be

punished with simple imprisonment for a
term which may extend to two years, or
with fine, or with both
Section 503 of Indian Penal Code, 1860
This section deals with the criminal
intimidation. This section covers the
offences done by use of computer devices
through emails, posting messaging,
commenting etc for intimidating the
reputation and for threatening anyone .
The section 503 of Indian Penal Code
says that –
Whoever, threatens another with any injury to his
person, reputation or property, or to the person or
reputation of any one in whom that person is
interested, with intent to cause alarm to that
person, or to cause that person to do any act
which he is not legally bound to do, or to omit to
do any act which that person is legally entitled to
do, as the means of avoiding the execution of
such threats, commits criminal intimidation
Section 506 of Indian Penal Code, 1860
This section deals with the punishment
for criminal intimidation (section 503 of
Indian Penal Code). The section 506 of
IPC says that –
Whoever commits the offence of criminal
intimidation shall be punished with
imprisonment of either description for a
term which may extend to two years, or
with fine, or with both
Section 124A Indian Penal Code, 1860:
This section deals with the sedition.
 Whoever by words, either spoken or written, or

by signs, or by visible representation, or

otherwise, brings or attempts to bring into hatred
or contempt, or excites or attempts to excite
disaffection towards the Government established
by law in India shall be punished with
imprisonment for life to which fine may be
added, or with imprisonment which may extend
to three years, to which fine may be added, or
with fine
Liability of Press
The persons responsible for publishing
anything should take good care before
publishing anything which tends to harm
the reputation of a person.
When one is proved to have made
defamatory comments with an ulterior
motive and with the least justification
motivated by self interest, deserves a
punishment.
Media do not enjoy special privileges.
Freedom of speech and expression in
Article 19(1)(a) can not be taken to mean
absolute freedom to say or write whatever
a person chooses recklessly and without
regard to any person’s honour and
reputation.
Defences to an action for
defamation
Justification
Fair Comment
Privileges
 The alleged Statement was not
published.
The Statement did not refer to the
Plaintiff.
The Statement was true.
The words complained of did not bear
any defamatory meaning.
Statement was true in substance and in
fact.
The Statement was published in good
faith and without malice towards the
Plaintiff.