We thank you for taking out time to read, review and comment on the principles given below. These principles are the basis on which we suggest legal reform to the law of defamation in India. They provide an overview and background to help you get a sense of where the law stands and how it can be changed. These principles are not exhaustive and the legislation we are drafting is based on a synthesis of Supreme Court judgements and best practices.
We hope this sparks a debate on how we can act to reform laws in India, in this case the law relating to defamation. The principles listed below cover both the substantive and procedural contours of such a proposal.
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Constitutional values require legislative action to protect speech and reputation
- The Supreme Court in a recent case that challenged the constitutionality of criminal defamation observed that protecting speech and reputation are both important. Under Article 19(1)(a), the Constitution of India provides a balance to both. It contains the fundamental right to freedom of speech and expression and acts as the rule that safeguards our right to free speech.
- However, there are restrictions to this under Article 19(2) which provides exceptions to the rule. These restrictions set thresholds to which Parliament can make laws that can limit the right to free speech. Article 19(2) provides that such restrictions have to be, first, “reasonable” and secondly, be from one of the grounds mentioned in it. These grounds include, “defamation”.
- We have taken note of the fact that, in this day & age, more citizens are becoming speakers and reaching out to larger audiences. Hence, through this bill we aim to protect free speech as a principle and reputation as the exception. This is in keeping with not only our constitutional values but a global trend to review defamation law.
Criminal defamation is a disproportionate sanction on free speech
- The remedy of criminal defamation is contained under Section 499 of the Indian Penal Code, 1860. This law is old and not suited to the present day needs of modern India. The remedy of criminal defamation has been recognized to be a burden on free speech, given that it was initially made to prevent the deaths done by duels in Victorian England.
- Criminal defamation that applies on a pure exercise of speech, without any incitement of violence or disturbing public order, serves the desires of an individual and not of society. Hence, we feel that there is no modern justification for retaining the criminal remedy of defamation.
- The reality of present day criminal defamation is that it is merely being used as a legal tool for coercion and not for vindication of a person’s reputation. Criminal defamation results in a prolonged trial in which the process itself becomes the punishment. This comes with the requirement of personal attendance at each date of hearing, restrictions imposed by bail and the threat of eventual conviction.
- Even though most criminal defamation cases are ultimately abandoned and do not result in conviction, they are made to linger and drag on for years resulting in no determination of legality but only to cause harassment and chill speech.
Civil defamation law requires consolidation and reform
- Defamation under the civil law has never been consolidated and defined in statute in India. Since ‘defamation’ is not clearly defined, judgments are given banking on case laws. Some courts, in the past, have used the ingredients of criminal remedy of defamation while some others have applied different standards. Today there exists a wide amount of confusion as to what constitutes civil defamation. This problem becomes greater for putting up a defense against civil defamation since it is not consolidated or well understood even by some lawyers and judges too.
- Due to an absence of a well defined law for civil defamation, India is falling deficient both to protect a person’s right to free speech on one hand and another person’s reputation on the other. We propose that a modern objective standard for defamation should be adopted in which a person has to demonstrate conclusively that serious harm has been caused by a false statement.
- It is necessary to properly define “serious harm” to prevent people from taking offence against criticism. It is also important to include the possibility that truth, if proven, should suffice as a complete defense.
Civil defamation requires direct harm to be caused
- The civil law of defamation today is abused for several reasons. It is found that there have been cases where parties that are not connected to an incident have filed defamation cases against a person that has made a statement. Filing such cases should be prohibited unless the parties are directly connected.
- It is important that a person does not claim serious harm automatically just because a statement is made against a relative, friend or an acquaintance. A statement has to cause direct harm to such a person and not merely through relation. Even in instances when companies institute suits for defamation, they have to show actual financial loss suffered by them, subsequent to the statement being made.
- Even in the case of associations or a collective of persons being directly harmed by a statement, there needs to be an important safeguard. In case a person seeks leave of the court on behalf of a collective, the court can first check whether such a person is actually a member of the association. The court will also check if serious harm has been caused before issuing summons to the defendant who made the statement. This safeguard will be important to make sure frivolous cases are not brought before courts. Any such law should also contain suitable protections against SLAPP litigations.
Civil defamation can only be claimed against the speaker, editor, and publisher of the statement
Quite often defamation cases are filed against persons who are not responsible for the statement that is alleged to be defamatory. Many such persons are made defendants to cases only to apply pressure and it results in a long legal process in which innocent people, unconnected to the publication have to appear before courts and engage lawyers. Such people include, owners, national editors of newspapers, intermediaries and other parties.
Even though existing laws such as the Press and Registration of Books Act, 1867 and the Information Technology Act, 2000 grant immunity to innocent persons yet they can still be made parties to defamation cases. It is suggested that such people should not in any instance be made defendants. Social media companies, which are mere online intermediaries such as Facebook, Google and Twitter, are still required to comply with court orders even though they are not parties to the case. There need to be safeguards against this.
Pre-litigation measures to, limit abuse, promote settlement and avoid litigation
We further contemplate a pre-action notice in which prior to filing a suit for defamation a person has to send a mandatory notice to the author, editor and the publisher of the statement. Such an advance notice should contain specific reasoning on how and why the statement caused serious harm.
The notice should also explain the role of the person who receives the notice in making the statement, the name and place where the case will be filed, and the precise demand in the form of an apology, correction or monetary damages. This will bring a level of specificity to complaints even before cases are initiated and help check abuse.
Any model law should also provide a process of settlement to a person who receives such a notice. This should be done in a manner that is fair and allows both the person who sends the notice and the one who receives it to negotiate in a legal environment. The law needs to ensure that offers of settlement do not create any prejudice.
If such an offer is accepted then a suit for defamation cannot be filed and the recourse for resolving the case would be to enforce the terms of the settlement. Through this process, settlements will be promoted and cases will be avoided given the pendency and the time taken to determine them. This will be to the benefit of all.
Cases by government and public servants should not lead to censorship
It is well recognized that government and public servants, being public figures, invite a higher level of criticism. The model law should recognize that government, local bodies and other institutions exercising statutory functions cannot institute a suit for defamation.
We suggest that in the cases of public servants their reputation may be seriously harmed only when the statement is made relating to their personal life. Their acts and conduct relevant to the discharge of their duties should be kept out of the ambit of defamation. Another safeguard would be that a defamatory statement needs to be made with actual malice and with a reckless disregard for the truth.
Avoiding multiplicity of litigation and forum shopping for a single statement
Quite often, for a single statement that is alleged to be defamatory, multiple cases are filed in courts that are remote and distant. This makes the litigation process tiresome and leads to an abuse of the judicial process. To prevent this, we propose that a single publication should lead to a single cause of action and a single case. This should be irrespective of whether multiple parts of the same publication are alleged to be defamatory. This provision would not apply if subsequent publication of the same statement is materially different, in the sense that it is given more prominence or made available to a different audience.
To remedy the instances of abuse in which cases are filed in distant places we aim to limit the territorial jurisdiction of a court. A graded system is proposed where a suit has to be filed where the defendant resides, or carries on business, or personally works for gain. If such an address is unavailable the case can be filed where the publication containing the statement was first made available to public. Also in cases when the publication is made on the internet, the case can be filed only where the person who is complaining resides, carries on business or works for gain. This limits the jurisdiction of multiple courts and brings specificity to the places where such cases can be filed without leaving a person remediless.
Even in instances when abuse may occur, where cases are filed in remote locations to harass the author, publisher or the editor, there should be a provision for consolidation of multiple cases and transfer it to the court as per this rule.
A specific statutory power may be created in favor of the Hon’ble Supreme Court for a person to make an application for consolidation and transfer. This can be also as per the principles of forum non-conveniens.
Reasonable, balanced damages that repair reputations without a chilling effect
There is a growing trend of quoting excessive damages that run into hundreds of crores. Such reliefs are claimed not to repair a person’s reputation but to injure the speaker. It should be clear that damages claimed need to bear a rational basis to the damage caused. Hence, a person filing a case for defamation cannot claim excessive damages.
Further, damages that are ultimately given by a court cannot be exemplary or punitive either. There should be an appropriate and rational relationship between the harm sustained and the amount of damages that are awarded. The court should consider the proportionality of the harm with the direct financial loss, repeated statements, presence of malice, flagrant disregard for the truth etc.
It is proposed that the court should also consider factors such as the chilling effect, corrections, retraction or apology by publications and any delay caused by the Plaintiff.
Any change in law needs to be made prospectively
A large number of defamation cases, both criminal and civil are presently pending in Indian courts. They are at different stages and many people have put in a large amount of time prosecuting and defending them. Hence, we propose that any change in law or a proposal to change it should only apply to cases that are filed in the future.
We propose that any legal proceeding pending in a court at the commencement of the model law may be continued in that court as if there has been no change. It is hoped that this also promotes a debate on the policy aspects of this proposal.