Defamation in India

The press, the public official and the truth that cannot be proved

Facts. R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264, decided on 7 October 1994. A magazine proposed to serialise the autobiography of a condemned prisoner naming police officials, and the authorities threatened action to prevent publication.

Held. No prior restraint could be imposed on the press. The right to privacy is implicit in article 21 and nothing concerning a person's home, family, marriage, procreation, motherhood, child-bearing or education may be published without consent, whether truthful or not, subject to the exception that publication based on public records, including court records, is unobjectionable, with a further exception protecting the identity of a female victim of a sexual offence. As to a public official's acts and conduct relevant to the discharge of his official duties, no action for damages lies even where the publication is untrue, unless the official establishes reckless disregard for truth; it is enough for the publisher to show reasonable verification. A publication proved false and actuated by malice or personal animosity has no defence.

Why it matters here. It is the Indian answer to the question of how a newspaper is to criticise a public official when it cannot prove every fact, and it is the case to cite on the balance between article 19(1)(a) and article 21.

Defamation on the internet

Nothing in the tort changes, but three consequences follow from the medium.

Publication is wherever the statement is read. A post uploaded in one State and read in another is published in both, which affects where a suit may be filed.

Every forward is a fresh publication. The person who shares a defamatory message publishes it, and it is no defence to say who wrote it first.

The intermediary. A platform that merely hosts what users write is in a different position from the person who wrote it, and the extent of its protection is governed by the law on intermediaries rather than by the law of torts.

The practical remedy sought in these cases is usually an injunction to take the material down, which chapter [Injunction and Specific Restitution of Property] deals with, rather than damages.

A worked example

A former employee posts on a public forum that Meena, who runs a coaching class, "cheats her students and keeps their fees".

In tort. Meena sues for damages. The statement is defamatory, refers to her and was published. The poster must prove it substantially true if he pleads justification.

In the criminal law. She may file a complaint under section 356 of the Bharatiya Nyaya Sanhita 2023. There the poster's defence of truth will not succeed unless he also shows that publication was for the public good, which is a question of fact.

Against those who shared it. Every person who forwarded the post published it and may be sued; naming the original author is no defence.

If Meena were a public official and the statement concerned her official conduct, R. Rajagopal would require her to establish reckless disregard for truth, and reasonable verification by the poster would be enough to defeat her claim.

What she really wants is the post taken down, so the practical relief is an injunction.

What it does NOT mean

It does not mean the criminal remedy has been struck down. Subramanian Swamy v. Union of India, (2016) 7 SCC 221, upheld it.

It does not mean the section numbers of the Penal Code still apply. Since 1 July 2024 the provision is section 356 of the Bharatiya Nyaya Sanhita 2023.

It does not mean a public official cannot sue at all. He may, on his private conduct like anybody else, and even on his official conduct where he proves reckless disregard for truth or malice.

It does not mean an internet platform is liable like an author. That question belongs to the law on intermediaries.

Quick revision

1. Defamation in India is both a tort and an offence, and the proceedings are independent.
2. The offence is section 356 of the Bharatiya Nyaya Sanhita 2023; sections 499 and 500 of the Indian Penal Code 1860 stand repealed since 1 July 2024.
3. Subramanian Swamy v. Union of India, (2016) 7 SCC 221: criminal defamation upheld; reputation is part of article 21; a reasonable restriction under article 19(2).
4. Civil truth is a complete defence; Exception 1 to section 356 requires truth and public good, and public good is a question of fact.
5. R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264: no prior restraint; privacy under article 21; public records exception; public officials must prove reckless disregard for truth.
6. Online: publication where read, every forward is a fresh publication, and the usual relief is an injunction.

Test yourself

1. Discuss the constitutional validity of criminal defamation in India. It was upheld in Subramanian Swamy v. Union of India, (2016) 7 SCC 221. The petitioners argued that making defamation an offence is an unreasonable restriction on the freedom of speech guaranteed by article 19(1)(a), and that the civil remedy is sufficient. The Supreme Court held that reputation is an integral part of the right to life under article 21, that a citizen's right to reputation must be balanced against another's right to speak rather than yield to it, and that criminal defamation is a reasonable restriction saved by article 19(2). It accordingly upheld what were then sections 499 and 500 of the Indian Penal Code 1860 and section 199 of the Code of Criminal Procedure 1973, leaving individual petitioners free to challenge the issue of summons in their own cases under article 226 or section 482. Since 1 July 2024 the corresponding provision is section 356 of the Bharatiya Nyaya Sanhita 2023.

2. How does Indian law balance the freedom of the press against the right to reputation? Through the principles laid down in R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264. The Court refused to allow prior restraint on publication. It held that the right to privacy is implicit in article 21, so that matters such as a person's family, marriage and motherhood may not be published without consent even if true, unless the publication is based on public records, with a further exception protecting the identity of a female victim of a sexual offence. And it held that a public official has no action in respect of publications about his official conduct, even untrue ones, unless he establishes reckless disregard for truth, it being enough for the publisher to show reasonable verification. The result is a wide space for criticism of official conduct, a protected space for private life, and liability where a publication is false and malicious.

3. A defamatory message is forwarded by twenty people on a messaging application. Who is liable? Each of them, and the author. Every repetition of a defamatory statement is a fresh publication, so each person who forwarded the message published it to those who received it, and it is no defence that he named the original author or expressed disbelief. Liability is not affected by the medium: a message read on a telephone is published as surely as one printed in a newspaper, and it is published wherever it is read, which is why such suits may be filed in more than one place. The platform itself stands differently, since its position is governed by the law relating to intermediaries rather than by the ordinary law of publication. The practical relief sought is usually an injunction to remove the material rather than damages against twenty defendants.