Defamation and Freedom of Speech in the Publishing Industry

Every person has a right to live with dignity. This right of reputation is acknowledged as an inherent personal right of every person as part of the right of personal liberty. A man’s reputation is an invaluable property. If a person’s reputation is being damaged then this loss exceeds far compared to the damaged property. But the law is there to protect the reputation of a person if it is being infringed by someone. The offence of defamation comes into existence when a person “makes or publishes” an imputation about another person, with intent, knowledge, or with reason to believe that it will harm the other’s reputation. An imputation “harms” a person’s reputation if, in the estimation of others, it lowers the person’s character or credit, among other things. Defamation committed through writing is called ‘libel’, and defamation committed through speech is known as ‘slander’.

The law related to defamation acts as a counter-balance upon the Fundamental Right of Freedom of Speech and Expression conferred by Article 19(1) (a) of our Constitution. This freedom is unfettered as reasonable restrictions are imposed on Article 19(1)(a) by clause (2) of Article 19 where these restrictions are enforced in relation to contempt of court, to protect the national interest, to maintain public order, or to restrict one from defaming another. 

To evaluate Defamation as an offence, it is necessary that an accused person must have either made or published defamatory material and such material should be directed towards an audience. There is a huge impact on the Law of Defamation on the publishing industry in India, wherein defamation committed here will be Libel. In the case Swami Ramdev v Juggernaut Books[1], the Delhi High Court made comments with regards to the freedom of speech, right to reputation, fair comment, and defamation. Firstly the court speaks about the necessity of a balance between Freedom of Speech and the Right to Reputation, where it said that the right to reputation of a living person under Article 21 cannot be sacrificed or crucified at the altar of another’s right to freedom of speech. Both have to be harmonized, as no amount of damages can redeem the adverse impact on a person’s reputation. Merely because previous similar publications exist does not permit repetition of prima facie defamatory insinuations. Secondly, the court said that publishing defamatory content which is of interest to the public but has no element of public interest, may amount to a breach of privacy of the victim. The court in this case also described the ‘Test for Defamation’ which remained based on what an ordinary person would perceive of the content in question. The court also said that to justify one’s content as a Fair Comment which is a defence against Defamation, it must appear as a comment and not be mixed up with facts. In other words, a reader should be able to distinguish reported facts from comments, and comments must not convey imputations of disreputable motive unless adequately supported with evidence.        

Talking in the context of the law of defamation as an unreasonable restriction to the Freedom of Speech in the publishing Industry, defamation suits are sometimes bought in to suppress critics and naysayers. But the Courts pay a great deal of attention while weighing the merits of these suits. But in many circumstances, temporary restrictions will be laid on authors and publishers which will again serve as censorship, and again the imprisonment term which is up to two years and a fine has met with a lot of criticism and opposition.   

Lately, in the case Subramaniam Swamy v Union of India, the petitioner argued that any attempt to stifle or bind the expression of public opinion, perception, and criticism, through criminal prosecution would harm the principles of democracy. The Supreme Court, on the other hand, upheld the constitutionality of criminal defamation, stating that the Right to free speech does not allow a citizen to defame another. 

Defamation has always been a difficult issue that continues to have grey areas. They are used and abused by some, while deeply affecting the professions and trades of others. Despite the fact that judicial precedent has attempted to answer some concerns, the fundamental constitutional questions about the criminal offence and civil tort of defamation remain unanswered.  

References:

Ashima Obhan, Sumathi Chandrashekaran, Balancing Defamation and Free Speech Notes For the Publishing IndustryOBHAN & ASSOCIATES., (Apr. 1, 2019). https://www.mondaq.com/india/libel-defamation/793372/balancing-defamation-and-free-speech-notes-for-the-publishing-industry

  [1] The publication, distribution, and sale of a book about guru Ramdev’s life were prohibited because parts of the book were defamatory. The petitioner, Ramdev, claimed that the book, written by Priyanka Pathak Narain and published in July 2017 by Juggernaut Books, was an unauthorised biography that contained false and defamatory material, infringing his fundamental right to privacy and reputation under Article 21 of the Constitution.

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