How to defend against defamation claims?
Joginder Singh Rohilla
Advocate at High Court of Madhya Pradesh, Indore | Civil & Criminal Lawyer In Indore
The Bharatiya Nyaya Sanhita (BNS), 2023, which is set to replace the Indian Penal Code (IPC), 1860, introduces a modernized legal framework for defamation in India. Defamation under the BNS remains both a civil wrong (tort) and a criminal offense, similar to the IPC. Below is a comprehensive guide on how to defend against defamation claims under the new BNS, including the relevant sections, defenses, and procedural strategies.
1. Defamation Under BNS
Defamation under the BNS is defined in Section 356(1) (corresponding to Section 499 IPC) and punished under Section 356(2) (corresponding to Section 500 IPC). The essential elements of defamation are:
1. The statement must be false.
2. It must be published (communicated to a third party).
3. It must harm the reputation of the person.
Defamation can be:
- Libel: Defamation in a permanent form (e.g., writing, printing, pictures).
- Slander: Defamation in a transient form (e.g., spoken words or gestures).
2. Legal Framework
- Criminal Defamation: Under Section 356(2), defamation is punishable with imprisonment up to two years, a fine, or both.
- Civil Defamation: The aggrieved party can sue for damages under the law of torts.
3. Defenses Against Defamation Claims Under BNS
To defend against defamation claims, the following defenses can be raised:
a. Truth (Justification)
- BNS Section 356, Exception 1: Truth is a defense if the statement is true and made for the public good.
- The burden of proving the truth lies on the defendant.
- Example: If you accuse a public official of corruption and can prove the allegations with evidence, it is a valid defense.
b. Fair Comment
- Protects opinions or criticisms based on true facts, made in the public interest and without malice.
- Example: A journalist criticizing a public figure’s actions based on verified facts.
c. Privilege
- Absolute Privilege:
- Statements made in judicial proceedings, parliamentary proceedings, or by high-ranking officials in the course of their duties are protected.
- Qualified Privilege:
- Statements made in good faith, without malice, and in the discharge of a legal, moral, or social duty.
- Example: An employer giving a reference for an employee.
d. Consent
- If the plaintiff consented to the publication of the statement, it is a valid defense.
- Example: If someone agrees to the publication of an interview containing defamatory statements.
e. Apology and Mitigation
- Offering a sincere apology and retracting the statement can mitigate damages in civil cases and reduce punishment in criminal cases.
- Example: Publishing a clarification or apology in the same medium where the defamatory statement was made.
f. Lack of Publication
- If the statement was not communicated to a third party, it cannot be considered defamation.
- Example: A private letter that was never shared with anyone else.
g. Absence of Malice
- If the statement was made without malicious intent, it can be a defense, especially in cases of qualified privilege.
- Example: A statement made in good faith to warn others about potential harm.
h. Public Interest
- Statements made in the public interest, such as exposing corruption or wrongdoing, may be defended under the principle of public good.
- Example: A whistleblower exposing corporate fraud.
i. Innocent Dissemination
- If the defendant was unaware of the defamatory nature of the statement (e.g., a bookseller selling a book containing defamatory content), they may claim innocent dissemination.
- Example: A social media platform unaware of defamatory content posted by a user.
4. Procedural Defenses
- Limitation Period:
- Civil Defamation: The limitation period for filing a suit is one year from the date of publication.
- Criminal Defamation: No specific limitation period, but delays can be challenged.
- Jurisdiction: Ensure the case is filed in the correct jurisdiction. If not, challenge the jurisdiction.
- Improper Parties: If the plaintiff is not the person defamed or lacks standing, this can be challenged.
5. Evidence and Documentation
- Gather evidence to prove the truth of the statement or the absence of malice.
- Collect witness testimonies, documents, or records that support your defense.
- If the statement was an opinion, provide evidence of the factual basis for the opinion.
6. Counterclaims
- If the defamation claim is frivolous or malicious, consider filing a counterclaim for malicious prosecution or abuse of process.
7. Legal Strategies
- Pre-litigation: Send a legal notice explaining your defense and requesting the plaintiff to withdraw the claim.
- Mediation: Explore settlement options through mediation to avoid lengthy litigation.
- Court Proceedings: File a strong written statement (in civil cases) or a defense (in criminal cases) outlining your defenses.
8. Landmark Judgments
The principles established in landmark judgments under IPC will continue to guide defamation cases under BNS. Key judgments include:
- Subramanian Swamy v. Union of India (2016): Upheld the constitutional validity of criminal defamation.
- R. Rajagopal v. State of Tamil Nadu (1994): Balanced the right to reputation with freedom of speech.
- Ram Jethmalani v. Subramanian Swamy (2006): Emphasized truth as a defense if in the public interest.
9. Practical Tips
- Avoid making unsubstantiated allegations or statements that could harm someone's reputation.
- If you are a journalist or publisher, ensure that your statements are based on verified facts and are in the public interest.
- Consult a lawyer experienced in defamation cases to draft a strong defense.
10. Conclusion
Defending against defamation claims under the Bharatiya Nyaya Sanhita (BNS) requires a combination of legal knowledge, evidence, and strategic planning. By leveraging defenses such as truth, fair comment, privilege, and absence of malice, you can effectively counter defamation allegations. Always seek legal advice to navigate the complexities of defamation law and protect your rights. The BNS modernizes the legal framework, but the principles established under the IPC continue to apply.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Adcocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304