DIFFERENCE BETWEEN CIVIL DEFAMATION AND CRIMINAL DEFAMATION.
Next to life, man cares most for his reputation. Sometimes, we find an individual giving it the foremost place, preferring death rather than living a life of ignominy and disgrace. Reputation is thus in fact a great internal force in the mind of every man, impelling him to do great things. On a careful analysis of the human mind, one will find this element of longing for name and reputation as the basic motive of most actions.
Rightly, law gives protection to a man’s reputation, as it gives protection to his property and life. Before we go deep into this topic, let us first concentrate on the topic of defamation and what it is.
WHAT IS DEFAMATION?
Defamation is actually the injury to the reputation of a person. If any person injures the reputation of another, he does so at his own risk, as it is in the case of an interference with the property. If defamation occurs in spoken words or gestures (or other such transitory form) then it is termed as slander and the same if in written or printed form (of a permanent nature) is libel. In India, defamation is both a civil and a criminal offence. In Civil Law, defamation mostly falls under the Law of Torts, which imposes punishment in the form of damages awarded to the claimant (person filing the claim). Under Criminal Law, Defamation is bailable, non-cognizable and compoundable offence. Therefore, the police cannot start investigation of defamation without a warrant from a magistrate (a FIR cannot be filed). The accused also has a right to seek bail. Later, the charges can be dropped if the victim and the accused enter into a compromise to that effect (even without the permission of the court). Defamation as a criminal offence is stated under section 499 of the Indian Penal Code
DIFFERENCE BETWEEN LIBEL AND SLANDER.
English Law - Mainly because of historical reasons, English law divides defamation into two: -
* Libel - Libel is the representation made in some permanent form, e.g., writing, printing, picture etc.
* Slander - Slander is the publication of a statement in a transient form. examples of it may be spoken words or gestures.
Under English law, the distinction between libel and slander material for two reasons:
1. Under Criminal law, only libel has been recognized as an offence. Slander is not an offence.
2. Under the law of torts, slander is actionable only on proof of special damage. Libel is always actionable.
Indian Law: It has been noted above that under English criminal law, a distinction is made between libel and slander. There, Libel is a crime but slander is not. Slander is just a civil wrong in England. Criminal law in India does not make any such distinction between Libel and Slander. Both Libel and Slander are criminal offences under section 499, I.P.C. It has been noted above that though Libel and Slander both are considered as civil wrongs, but there is a distinction between the two under English Law. Libel is actionable per se, but in case of slander, except in certain cases, proof of special damage is required to be proved.
IN INDIA DEFAMATION IS BOTH A CIVIL AND CRIMINAL OFFENCE.
The remedy for civil defamation is stated under the Law of Torts. In a civil defamation case, the person who is defamed can move either to the High Court or subordinate courts and seek damages in the form of monetary compensation from the accused. Also, under sections 499 and 500 of the Indian Penal Code, a person guilty of criminal defamation can be sent to jail for two years.
DEFAMATION UNDER CIVIL LAW
Under civil law, defamation is the publication of a statement which tends to lower a person in the estimation of the right-thinking members of the society. To constitute a defamation under civil law, few conditions has to be satisfied:
1. The statement made must be defamatory- Defamatory statement is one which tends to injure the reputation of the plaintiff. An imputation which exposes one to disgrace and humiliation, ridicule or contempt is defamatory.
2. The said statement must be referred to the plaintiff. It is immaterial that the defendant did not really intend to defame the plaintiff. If the person to whom the statement was published could infer that the statement referred to the plaintiff, the defendant is liable.
3. The statement must be published - Publication actually means making the defamatory matter known to some person other than the person defamed, and unless and until that is done, no civil action for defamation lies.
The defence to an action for defamation are :
1. JUSTIFICATION OR TRUTH - In a civil action for defamation, truth of the defamatory matter is complete defence. Under criminal law, just proving that the statement was true is no defence. The exception under criminal law states the statement besides being true the imputation must be shown to have been made for public good.
2. FAIR COMMENT - Making fair comment on matters of public interest is a defence to an action for defamation. For this defence to be available, the following essentials are required:
a. It must be a comment.
b. The comment must be fair.
c. The matter commented upon must be a matter of public interest.
The person defamed can move either to the high court or trial court and seek damages in the form of monetary compensation from the accused. The remedy sought is covered under the Law of Torts, a rare and slow course of relief witnessed in India.
The law defines defamatory content as one “calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule.” This is the very first condition required to be fulfilled under the civil remedy.
Second, the claimant must be identified in the defamatory statement. It must address a particular person and no as such broad-based classification is acceptable.
And lastly there must be publication of the defamatory statement in oral or written form. A civil defamation law would be applied once these conditions are attained. The defendant will then have to plead his defense.
CIVIL CASES UNDER THE LAW OF DEFAMATION
In D.P. Choudhury v. Manjulata, the plaintiff - respondent, Manjulata about 17 years of age, belonged to a distinguished educated family of Jodhpur. She was a student of B.A. There was publication of a news item in a local daily, Dainik Navjyoti, dated 18.12.77, that the last night 11 p.m. Manjulata had run away with a boy named Kamlesh, after she went out of her house on the pretext of attending night classes in her college. The news item was untrue and was negligently published. It was held that all defamatory words are actionable per se and in such a case general damages will be presumed.
DEFAMATION UNDER CRIMINAL LAW
SEC 499 OF THE INDIAN PENAL CODE, 1860
Whoever, by words either spoken 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 to defame that person.
On the other hand, the Indian Penal Code gives an opportunity to the defamed individual to also move a criminal court, asking the latter to take cognizance of his complaint. It’s a bailable, non-cognizable and compoundable offence, which means no police can register a case and start investigation without the court’s permission.
Under sections 499 and 500 of the Indian Penal Code, a person found guilty can be sent to jail for two years. The Supreme Court has reserved its verdict on a clutch of petitions challenging the constitutional validity of the two penal provisions.
In a criminal suit, the complainant should be able to prove that the accused intended to defame him. In the absence of intention, it has to be be established that the alleged offender had knowledge that the publication was likely to defame the person. Normal stand of proof in criminal cases, which is to prove the offence beyond reasonable doubt, must also be placed before the court.
Since the law is compoundable, a criminal court can drop the charges if the victim and the accused enter into a compromise to that effect (even without the permission of the court).
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