DEFAMATION

AMIT JYOTI SANDHU

 Introduction
 Defamation: Injury to the reputation of a person.
 Statement meant to expose a person to hatred, contempt or
ridicule or to injure him in his trade, business, profession,
calling or office, or to cause him to be shunned or avoided in
society
 Defamation requires publication of defamatory statement which
refers to an identifiable P, without lawful justification, to some
third person, whether by spoken or written word, or by gesture,
picture or action. It should result in damage to reputation: hurt
feelings, humiliation and psychological depression.
 Necessary to suffer some injury to reputation
 Objective:
- Protects reputation
- Balance between personal right to reputation and freedom of
speech
 Forms

Libel
publication of false and
defamatory statement in
permanent form tending to injure
the reputation of another person
without lawful justification or
excuse
Slander
a false and defamatory verbal
statement tending to injure the
reputation of another without
lawful justification or excuse
 Essentials

 The Statement must be Defamatory

 The Statement must refer to the
Plaintiff
 The Statement must be Published
 Defamatory Statement
 Statement includes: words, written or spoken, scandalous painting,
effigy, or emblem
 D’s statement is defamatory for what it does, i.e.. if it tends so to harm
the reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing with
him.
 Mere hasty expression spoken in anger, or vulgar abuse to which no
hearer would attribute any set purpose to injure the character would
not be actionable. No action for damages can lie for mere insult. If,
however, the insulting words are also likely to cause ridicule and
humiliation, they are actionable.
 The question of defamation depends not only on what has been said,
but also on the person or group to whom it has been said. Generally, to
decide whether a statement is defamatory or not depends upon how
the right thinking members of the society are likely to take it
 D cannot escape the liability on the ground that unrelated persons or
even some people in P’s own social or business circles do not take a
dim view of the statement in question.
 Intention or malice to defame is not an essential requirement
 Petra Ecclestone v. Telegraph Media Group
Ltd.

“Sir Paul McCartney’s call for ‘Meat-Free-Mondays’ hasn’t impressed Petra Ecclestone, left, the
daughter of Bernie Ecclestone, the Formula One racing boss. “I am not a veggie and I don’t
have much time for people like the McCartneys and Annie Lennox” she told Mandrake at the
10th Anniversary party of Asia de Cuba, the West End restaurant.
Unlike Sir Paul’s daughter Stella McCartney who refuses to use animal products in her range
of clothes, Petra, 21, who launched a men’s fashion line called Form says “I’m all or nothing”,
so don’t have a problem using leather as a designer. I am now going to bring out my first
womeswear collection. It will be in leather and out in the Spring for Autumn 2010. I am basing
it on what a girls like myself likes to wear.”
 The approach to be adopted when the court is called upon to determine the actual
meaning of the words:
a) The court should give the material complained of the natural and ordinary
meaning which it would have conveyed to the ordinary reasonable reader
reading it once;
b) The hypothetical reasonable reader is not naïve but he is not unduly suspicious.
He can read between the lines. He can read in an implication more readily than
a lawyer and may indulge in a certain amount of loose thinking. But he must be
treated as being a man who is not avid for scandal and someone who does not,
and should not, select one bad meaning where other non-defamatory meanings
are available;
c) While limiting its attention to what the defendant has actually said or written
the court should be cautious of an over-elaborate analysis of the material in
issue;
d) The reasonable reader does not give a newspaper item the analytical attention of
a lawyer to the meaning of a document, an auditor to the interpretation of
accounts, or an academic to the content of a learned article;
e) In deciding what impression the material complained of would have been likely
to have on the hypothetical reasonable reader the court is entitled (if not bound)
to have regard to the impression it made on them;
f) The court should not be too literal in its approach.
 HELD: “In the real world, I do not think most readers would have done anymore
than read the item quickly (it was not an academic article, or even a serious and
considered article in the same newspaper). But even if read with care I simply do
not think it is capable of lowering the Claimant in the estimation of right thinking
members of society generally. It might be that a sector of the public (i.e. those
who disapproved of the use of leather or eating animal products) could think the
less of the Claimant for taking the opposite stance, and might even do so because
of what she is reported to have said about the McCartneys and Annie Lennox. But
the test is not whether a sector of the public could think less of the Claimant for
what she is alleged to have said (see Arab News Network v Al Khazen [2001]
EWCA Civ 118 at [30]), but whether ordinary reasonable people in our society as
a whole — or to use Mr Barca's phrase ‘the public’ generally could do so. In our
society people hold different (and sometimes strong) views on any number of
issues including the use of animal products. In a democratic society where
freedom of expression is a protected right, people are entitled to hold strong
views, and to express them within the limits laid down by the law. Indeed Mr
Barca did not suggest otherwise.”
 Ordinary reader would see this sentence in the context in which it was used, as
nothing more than the expression of a permissible view about an issue and
matters on which some people hold strong opinions…”
 Words here are not capable of bearing any meaning defamatory of P.
 Indian Express Newspapers (Bombay) Pvt.
Ltd. v. Jagmohan Mundhara
 Defames the journalist and the newspaper: Journalist is shown to be a dominating
husband who treats his wife as a slave; Management of the newspaper is shown to
have succumbed to political pressure, went to the length of taking steps to kidnap
the girl and cause her disappearance to hush up the whole affair and sacked the
journalist who by his brilliant piece of investigative journalism enhanced the
reputation and business of the newspaper.
 In the film innuendo is made very clear. It to some extent shifts the emphasis from
human servitude to political pressure on free press and tends to malign the
management to the newspaper to a great extent.
 The relevant scenes must be deleted before the film is allowed to be released.
 False
 Defamation of a person is taken to be false until it is
proved to be true; BoP that words are false does not lie
upon P
 P has to prove that the words complained of were
understood in a defamatory sense
 Is it necessary that defamatory statement should refer
to P directly?
 No! It is immaterial whether D intended the
defamatory statement to apply to P, or knew of P’s
existence, if the statement might reasonably be
understood by those who knew P to refer to him.
 Innuendo
 Where the words are not prima facie defamatory but P intends to
maintain that they were defamatory by reason of their being
understood in a special sense, he must insert an averment called an
innuendo.
 When the natural and ordinary meaning is not defamatory but P wants
to bring an action for defamation, he must prove the latent or
secondary meaning.
 It is an explanatory averment in the statement of claim defining the
meaning which P assigns to the words complained of or specifying P as
person to whom they apply.
 The purpose of innuendo is to point out a secondary meaning in which
the words are defamatory.
 An innuendo is necessary where the imputation is made in an oblique
way, or by way of question, exclamation, conjecture, or irony.
 An innuendu cannot add a fact or enlarge the natural meaning of
words.
 Hough v. London Express Newspaper Ltd.

 D, in Dec 22, 1937 issue published an article: “ Frank Hough’s curly

headed wife sees every fight. ‘I should be more in suspense at
home,’ she says. ‘I always get nervous when he gets in the ring,
although I know he won’t get hurt. Nothing puts him off his food.
He always eats a cooked meal at night, however late it is when he
gets in.”
 Whether the words complained of are defamatory as innuendo?
 The said words did not refer to P, it is referring to some other
woman. It conveys that P is not lawfully married to Frank
Hough. She is an unmarried woman who had cohabited with and
had children by Frank Hough without being married to him.
 Prove that the matter published in the particular case conveyed
to the mind of a normal person cognizant of the special
circumstances what to the mind of a normal person
unacquainted therewith it would not convey.
 It is not proof of a special fact in the sense to call a number of
people to say that they understood the words in a defamatory
sense; they would have to prove some fact know to them
which would be sufficient to entitle any reasonable man
with such knowledge to interpret the words in a
defamatory sense.
 D held liable for defamation.
 Public Officers v. Defamation
R. Rajagopal v. St of T.N.
 Questions: Freedom of Press vis-à-vis the right
to privacy of the citizens; parameters of the
right of the press to criticize and comment on
the acts and conduct of public officials.
 P is the editor, printer and publisher of a Tamil
weekly magazine ‘Nakkheeran’ who has filed a
writ petition to restrain the state authorities
from taking any action and interfering with the
publication of the autobiography of the
condemned prisoner, Auto Shankar.
 The autobiography sets out the close nexus
between the prisoner and several IAS and
other officers, some of whom were indeed his
partners in several crimes. Several police and
prison officers were afraid that their links with
the condemned prisoner would be exposed.
 Issue 1: Whether a citizen of this country can prevent another person
from writing his life story or biography? Does such unauthorized
writing infringe the citizen's right to privacy? Whether the freedom of
press guaranteed by Article 19(1)(a) entitles the press to publish such
unauthorized account of a citizen's life and activities and if so to what
extent and in what circumstances? What are the remedies open to a
citizen of this country in case of infringement of his right to privacy
and further in case such writing amounts to defamation?
 Issue 2: a) Whether the Government can maintain an action for its
defamation? b) Whether the Government has any legal authority to
impose prior restraint on the press to prevent publication of material
defamatory of its officials? And c)Whether the public officials, who
apprehend that they or their colleagues may be defamed, can impose a
prior restraint upon the press to prevent such publication?
 Issue 3: Whether the prison officials can prevent the publication of the
life story of a prisoner on the ground that the prisoner being
incarcerated and thus not being in a position to adopt legal remedies to
protect his rights, they are entitled to act on his behalf?
 Issue 1 & 2: No prior restraint or prohibition of
publication can be imposed by the D upon proposed
publication of the alleged autobiography of ‘Auto
Shankar’ by P. This cannot be done either by the State
or by its officials. The remedy of public officials/ public
figures, if any, will arise only after the publication.
 Issue 3: As ‘Auto Shankar’ had not requested or
authorized prison officials or IGP to adopt appropriate
proceedings to protect his right to privacy, they cannot
take upon themselves the obligation of protecting his
right to privacy.
a) The right to privacy is implicit in the right to life and liberty guaranteed to the
citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right
to safeguard the privacy of his own, his family, marriage, procreation, motherhood,
child-bearing and education among other matters. None can publish anything
concerning the above matters without his consent whether truthful or otherwise and
whether laudatory or critical. If he does so, he would be violating the right to privacy
of the person concerned and would be liable in an action for damages. Position may,
however, be different, if a person voluntarily thrusts himself into controversy or
voluntarily invites or raises a controversy.
b) The rule aforesaid is subject to the exception, that any publication concerning the
aforesaid aspects becomes unobjectionable if such publication is based upon public
records including court records. This is for the reason that once a matter becomes a
matter of public record, the right to privacy no longer subsists and it becomes a
legitimate subject for comment by press and media among others.
c) Another exception to the rule in (1) above is that in the case of public officials, it is
obvious, right to privacy, or for that matter, the remedy of action for damages is
simply not available with respect to their acts and conduct relevant to the discharge
of their official duties. This is so even where the publication is based upon facts and
statements which are not true, unless the official establishes that the publication was
made (by the defendant) with reckless disregard for truth. In such a case, it would be
enough for the defendant (member of the press or media) to prove that he acted after
a reasonable verification of the facts; it is not necessary for him to prove that what he
has written is true. Of course, where the publication is proved to be false and
actuated by malice or personal animosity, the defendant would have no defence and
would be liable for damages.
d) So far as the Government, local authority and other organs and institutions
exercising governmental power are concerned, they cannot maintain a suit for
damages for defaming them.
e) There is no law empowering the State or its officials to prohibit, or to impose a prior
restraint upon the press/media.
 Refer to the Plaintiff
 If the person to whom the statement was published could
reasonably infer that the statement referred to P, D is liable.
 When the words refer to a group of individuals or a class of
persons, no member of that group or class can sue unless he can
prove that the words could reasonably be considered to be
referring to him.
 If defamatory statement speaks of a person by description
without mentioning the name in order to establish a right of
action, P must prove to the satisfaction of the court that ordinary
people who knew him would have understood that it referred to
him
 Defamation of deceased is a criminal offence if the imputation
would harm the reputation of that person, if living, and is
intended to be hurtful to the feelings of his family or other near
relatives.
 Publication
 Making known, knowingly or negligently, of a defamatory statement to
any person, other than the object of it, is publication.
 If a defamatory letter is meant for A but is wrongfully read by B, the
person who sent it is not liable.
 What if P doesn’t know the language in which defamatory notice is sent
to him and he gets someone to read it?
 Communication of a defamatory matter from the husband to the wife
or vice versa is no publication – S.122 IEA: Communications during
marriage: No person who is or has been married, shall be compelled to
disclose any communication made to him during marriage by any
person to whom he is or has been married; nor shall he be permitted to
disclose any such communication, unless the person who made it, or
his representative in interest, consents, except in suits between
married persons, or proceedings in which one married person is
prosecuted for any crime committed against the other.
 Communication of a matter defamatory of one spouse to the other is
sufficient publication.
 Re-publication
 Republication: Just as D is liable for his own defamatory
statement, so too D commits Defamation when he
republishes the libel or slander of another. Repetition of a
defamatory statement by another amounts to offence in the
same way as that of the originator, every repetition is fresh
publication giving rise to a fresh CoA. However, its an open
question whether the republisher is solely responsible for
the consequences of his publication, or whether that blame
should be shared with the original publisher by treating the
matter as one of joint causation. If the publisher knows of
the falsity of the statement and deliberately chooses to
republish it, he should be solely responsible for the
resulting harm. But matter is contentious where
republisher does not know or has reason to know that
statement is defamatory.
 Huth v. Huth

 Four infants filed a suit against their father for libel

through the post in an unclosed envelope
 Was the letter published as it was in an unclosed envelope
bearing a halfpenny stamp?
- The Court took judicial notice of the nature of the document:
unclosed letter

 Was the letter published to the Butler?

 Whether the words were capable of defamatory meaning by
applying innuendo?
{“Not known. Try Miss Edith Greaves”; “To Mr. T. Boyes, saddler,
Wadhurst. The woman known as Mrs Huth will henceforth take
her maiden name of Miss Edith Greaves”; “The woman in question
has forfeited all claims to the title of ‘Mrs Huth’, and I hereby and
herewith disown her. P.S. Huth. To Mr. T. Boyes, saddler,
Wadhurst.”}
 Defamation by Newspapers: Nishi Prem v.
Javed Akhtar
 D had written an article under the title “Queer Quartet”
and published in the issue of April, 1987 of magazine
“Star Dust”
 Article relates to P and his wife. They challenge it to be
defamatory and false to the knowledge of D.
 D claims that she had over-heard certain conversation
at a gathering and thereafter made enquiries with
various people in the film industry as well as the
members of the unit of film “Mr. India”. She quotes
what was told to her by these people.
 P claims that author had concocted fictitious facts out
of her fertile imagination and reference to fictitious
persons in the industry and the unit was made only to
lend credibility to the article.
 Appeal in the HC against order by Chamber Judge
directing D to disclose on affidavit the names of
‘starwife’, ‘industrywalla’, industrywallis’, and
‘unitwalla’.
 CoA against D is complete and it is not the claim the P would not be entitled to
get a decree against D in absence of disclosure of source of information.
 A party is not entitled to administer interrogatories for obtaining discovery of
facts which constitutes exclusively the evidence of its adversary’s case.
 Newspaper Rule: Press is not compelled to disclose the source of
information at an interim stage in an action for libel or slander.
 “Sometimes this put as a rule of practice, on the ground that it not necessary at
the interlocutory stage to discover the name of the informant. At other times it
is put as a rule of law, on the ground that the plaintiff has an adequate remedy
in damages against the newspaper and that it is not the public interest that the
name of the informant should be disclosed, else the sources of information
would dry up. But, whichever way it is put, the court has never in any of our
cases compelled a newspaper to disclose the name of its informant save in the
leading cases where on balance the public interest in compelling disclosure
outweighed the public interest in protecting the sources of information.”
 Under Order XI Rule 1 of CPC and principles evolved by the Court,
interrogatories were misdirected, irrelevant and for an object which was
entirely outside the ambit of the suit and on the ground that D is entitled to the
protection of the newspaper rule.
 S.499 I.P.C.
 Whoever, by words either spoken or intended to be read, 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, except in the
cases hereinafter expected, to defame that person.
 Explanation 1—It may amount to defamation to impute anything to a deceased
person, if the imputation would harm the reputation of that person if living,
and is intended to be hurtful to the feelings of his family or other near
relatives.
 Explanation 2—It may amount to defamation to make an imputation
concerning a company or an association or collection of persons as such.
 Explanation 3—An imputation in the form of an alternative or expressed
ironically, may amount to defamation.
 Explanation 4—No imputation is said to harm a person’s reputation, unless
that imputation directly or indirectly, in the estimation of others, lowers the
moral or intellectual character of that person, or lowers the character of that
person in respect of his caste or of his calling, or lowers the credit of that
person, or causes it to be believed that the body of that person is in a
loathsome state, or in a state generally considered as disgraceful.
 Exceptions under S.499 IPC:
 First Exception—Imputation of truth which public good requires to be made or published—It is not
defamation to impute anything which is true concerning any person, if it be for the public good that the
imputation should be made or published. Whether or not it is for the public good is a question of fact.

 Second Exception.—Public conduct of public servants —It is not defamation to express in a good faith any
opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or
respecting his character, so far as his character appears in that conduct, and no further.

 Third Exception—Conduct of any person touching any public question—It is not defamation to express in
good faith any opinion whatever respecting the conduct of any person touching any public question, and
respecting his character, so far as his character appears in that conduct, and no further. Illustration It is
not defamation in A to express in good faith any opinion whatever respecting Z’s conduct in petitioning
Government on a public question, in signing a requisition for a meeting on a public question, in presiding
or attending a such meeting, in forming or joining any society which invites the public support, in voting or
canvassing for a particular candidate for any situation in the efficient discharges of the duties of which the
public is interested.

 Fourth Exception—Publication of reports of proceedings of Courts—It is not defamation to publish

substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.

 Fifth Exception—Merits of case decided in Court or conduct of witnesses and others concerned—It is not
defamation to express in good faith any opinion whatever respecting the merits of any case, civil or
criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party,
witness or agent, in any such case, or respecting the character of such person, as far as his character
appears in that conduct, and no further.
 Defenses
 Justification by Truth
 Fair and Bona Fide Comment
 Privilege
- Absolute privilege
- Qualified privilege
 Justification by Truth

 D must show that the imputation made or repeated by him was true as
a whole and every material part thereof.
 However, it is not necessary to justify every detail of the charge or
general terms of the abuse, provided that the gist of defamation is
proved to be in substance correct, and that the details, etc., which
are not justified, produce no different effect on the mind of the reader
than the actual truth would do.
 If there is gross exaggeration, the plea will fail.
 If the matter is true the purpose or motive with which it is published is
irrelevant.
 D can plead justification of any alternative meaning which the alleged
defamatory words are reasonably capable of bearing.
 S.499, First Exception—Imputation of truth which public good
requires to be made or published: It is not defamation to impute
anything which is true concerning any person, if it be for the
public good that the imputation should be made or published.
Whether or not it is for the public good is a question of fact.
 Fair & Bona Fide Comment

 A fair and bona fide comment on a matter of

public interest is no defamation.
 Fair: Honest & relevant to be categorized as criticism;
based on facts as opposed to misstatement of facts;
 Where the facts on a matter of public interest have
been correctly stated, the test of fair comment is
whether the opinion which is expressed in the
comment even though it might be exaggerated,
obstinate or prejudiced was honestly held by the writer.
 Abdul Wahab Galadari v. Indian Express
Newspaper
 P, UAE citizen, files a defamation case against
Indian Express claiming compensation of Rs
20 crores from latter for printing and
publishing the following three defamatory
articles:
a) “Pak Arms Cargo on way to India” (Feb 4,
1993): P is named as head of Pak syndicate
operating from UAE who is helping ISI to
smuggle arms into India.
b) “ISI behind Blast: (March 13, 1993): Refers
to previous article and P’s roles and
particularly refers to series of explosion
which took place the previous day.
c) “Firearms came in Two Consignments”
(March 24, 1993): Described P as AWG who
is the supplier of gold-cum-trafficker-cum-
smuggler-cum-gun-runner.
 Are the statements made of general public importance
concerning the security and stability of the country?
Did D act in a bona fide manner with due care and
caution?
 Considering the context of the events when the
impugned articles were published, one cannot say that
the intention of the publication was anything other
than public interest.
 Content of the impugned articles is based on the
confidential governmental communication.
 Privilege
 A person stands in such relation to the facts of the case that he is
justified in saying or writing what would be defamatory for any one
else.
 Rationale: General interest and welfare of the society.
 Absolute Privilege: When no action lies for a statement even though
it is false and defamatory, and made with express malice.
a) Parliamentary Proceedings: Article 105 (2) no member of Parliament
shall be liable to any proceedings in any court in respect of anything
said by him in Parliament, or in any committee thereof. No person
shall be liable in respect of the publication by or under the authority
of either House of Parliament of any report, paper, votes or
proceedings.
b) Judicial Proceedings: No action lies whether against Judges, counsel,
witnesses or parties for words written or spoken in the course of any
proceedings, before any court recognized by law, and this though the
words written or spoken were written or spoken maliciously, without
any justification or excuse.
c) State Communications
 Qualified Privilege: When no action lies for a statement even
though it is false and defamatory, unless the plaintiff proves express
malice.
- Malice means making use of a privileged occasion for an indirect and
improper motive.
- Ways to prove: D believed allegations to be false; D is moved by hatred
or dislike; by showing out anger, prejudice or wrong motive.
a) D has a duty of making a communication to a third person who has a
corresponding interest in receiving it .(father-daughter)
b) Communications made in cases of confidential relationship
(husband-wife)
c) Information as to crime or misconduct of others (S.43 Cr.PC)
d) Communications made to persons in public position
e) Fair Reports of judicial proceedings, parliamentary proceedings,
quasi-judicial and other similar proceedings and proceedings of
public meetings.
 Govind Shantaram Walaralkar v.
Pandharinath Shivaram Rege
 D filed a report with the Police Station alleging that P was distilling
alcohol and liquor in his house. Police proceeded to P’s house and
while P was absent and only female folks of the family were there,
police subjected the house to search and found nothing incriminating.
Consequently, police investigation was closed and matter was dropped.
 P and D were initially friends and even resided together in P’s house.
With regard to the occupation of the house, quarrels started and with
the view to evict P, D resorted to make such a false complaint to the
police.
 P filed a case for defamation.
 Can D claim absolute or qualified privilege?
 Held: Privilege is not a universal defence for defamation but a
mere specie. Central ques to be considered to apply privilege is: What
was the occasion and how the parties were positioned to it?
What is the impact of the character of the occasion upon the matters
that caused the injury?
 Investigative proceedings do not furnish occasions for claiming
absolute privilege. There exists distinction between the steps in the
judicial proceedings and the statements given in the aid of justice.
 Remedies

 Damages: Depending upon the nature and character of

defamatory statement, the extent of its circulation, the
position in life of parties, and the surrounding
circumstances.
- Aggravation
- Mitigation
 Injunction: P has to satisfy the court that the
statements in the document are untrue and there is a
likelihood if immediate and pressing injury to person
or property of P.
 Cyber Defamation
 Any discussion of the law of defamation in cyberspace must
be conducted in conjunction with a discussion of
jurisdictional issues on cyberspace.
 Dow Jones v. Gutnick: a defamatory case by a Melbourne
based businessman, Joseph Gutnick, who alleged that the
Dow Jones corporation defamed him by publishing an
article titled ‘Unholy Gains’ in Barrons, an international
financial magazine which can be purchased in hardcopy or
readers could prescribe online.
 Kirby J held that first the elements of the tort of defamation
must be satisfied (damage to reputation; publication to
third party; each publication is a new CoA; publisher is
liable in a particular jurisdiction where that is the intended
or natural and probable consequences of its acts.)
 Publication, in the context of internet, includes
dissemination, transmission and storage of
information or data in electronic form.
 To construe relationship b/w Defamation and
Publication on the internet, it is important to consider
the following:
a) When a ‘publication’ takes place?
b) How a ‘publication’ takes place?
c) Where the ‘publication’ takes place?
d) Who would be responsible for the publication of the
allegedly defamatory statement?
 Defence of Innocent Dissemination:
- D published the matter merely in the capacity, or as an
employee or agent, of a subordinate distributor;
- D neither knew, nor ought reasonably to have known, that
the matter was defamatory, and
- D’s lack of knowledge was not due to any negligence on the
part of D
 Questions on liability of Administrator and Internet Service
Providers.
 The question of when a defamatory tort occurs in India is
governed by the Indian Limitation Act, 1963 under entry 75
and 76 as: Within ONE year When the words are spoken or,
if the words are not actionable in themselves, when the
special damage complained of results.
 The Information Technology Act, 2000
 Section 66A. Punishment for sending offensive messages through
communication service, etc.: Any person who sends, by means of a
computer resource or a communication device,—
a) any information that is grossly offensive or has menacing character; or
b) any information which he knows to be false, but for the purpose of causing
annoyance, inconvenience, danger, obstruction, insult, injury, criminal
intimidation, enmity, hatred or ill will, persistently by making use of such
computer resource or a communication device,
c) any electronic mail or electronic mail message for the purpose of causing
annoyance or inconvenience or to deceive or to mislead the addressee or
recipient about the origin of such messages,
shall be punishable with imprisonment for a term which may extend to three
years and with fine.
 Explanation.— For the purpose of this section, terms “electronic mail” and
“electronic mail message” means a message or information created or
transmitted or received on a computer, computer system, computer resource
or communication device including attachments in text, images, audio, video
and any other electronic record, which may be transmitted with the message.
 Section 67, Publishing of information which is
obscene in electronic form - Whoever publishes or
transmits or causes to be published in the electronic form,
any material which is lascivious or appeals to the prurient
interest or if its effect is such as to tend to deprave and
corrupt persons who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or
embodied in it, shall be punished on first conviction with
imprisonment of either description for a term which may
extend to two three years and with fine which may extend
to five lakh rupees and in the event of a second or
subsequent conviction with imprisonment of either
description for a term which may extend to five years and
also with fine which may extend to ten lakh rupees.
 Section 79 Exemption from liability of intermediary in certain cases:
1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions
of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or
communication link hosted by him.
2) The provisions of sub-section (1) shall apply if-
a) the function of the intermediary is limited to providing access to a communication system over which
information made available by third parties is transmitted or temporarily stored; or
b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission
c) the intermediary observes due diligence while discharging his duties under this Act and also observes
such other guidelines as the Central Government may prescribe in this behalf
3) The provisions of sub-section (1) shall not apply if-
(a) the intermediary has conspired or abetted or aided or induced whether by threats or promise or
otherwise in the commission of the unlawful act
(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that
any information, data or communication link residing in or connected to a computer resource
controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to
expeditiously remove or disable access to that material on that resource without vitiating the evidence
in any manner.
Explanation:- For the purpose of this section, the expression "third party information" means any information
dealt with by an intermediary in his capacity as an intermediary.
Section 2(1)(w) "intermediary" with respect to any particular electronic message means any person who
on behalf of another person receives, stores or transmits that message or provides any service
with respect to that message.
 Defamation v. Freedom of Speech

 Article 19, Protection of certain rights regarding

freedom of speech, etc. –
1) All citizens shall have the right –
a. To freedom of speech and expression;

2) Nothing in sub-clause (a) of clause (1) shall affect the

operation of any existing law, or prevent the State from making
any law, in so far as such law imposes reasonable restrictions
on the exercise of the right conferred by the said sub-clause in
the interests of the
- Sovereignty and integrity of India,
- The security of the State,
- Public order,
- Decency or morality,
- In relation to contempt of court,
- Defamation
- Incitement to an offence.
 New York Times v. Sullivan

 Issue: To determine the extent to which the

constitutional protections for speech and
press limit a State’s power to award
damages in a libel action brought by a public
official against critics of his official conduct?
Or
 Whether this rule of liability, as applied to
an action brought by a public official against
critics of his official conduct, abridges the
freedom of speech and of the press that is
guaranteed by the First and Fourteenth
Amendments?
Facts: L.B. Sullivan is one of the 3 elected Commissioners of the City of Montgomery,
Alabama. He testified that he was ‘Commissioner of Public Affairs and the duties are
supervision of the Police Department, Fire Department, Department of Cemetery and
Department of Scales.’ He brought this civil libel action against the four individual
petitioners, who are Negroes and Alabama clergymen, and against petitioner the New York
Times Company, a New York corporation which publishes the New York Times, a daily
newspaper. He claimed that he had been libeled by statements in a full-page paid
advertisement that was carried in the NY Times on March 29, 1960 entitled “Heed Their
Rising Voices”. that ‘As the whole world knows by now, thousands of Southern Negro
students are engaged in wide-spread non-violent demonstrations in positive affirmation of
the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of
Rights.’ It went on to charge that ‘in their efforts to uphold these guarantees, they are
being met by an unprecedented wave of terror by those who would deny and negate that
document which the whole world looks upon as setting the pattern for modern freedom. …
’ Succeeding paragraphs purported to illustrate the ‘wave of terror’ by describing certain
alleged events. The text concluded with an appeal for funds for three purposes: support of
the student movement, ‘the struggle for the right-to-vote,’ and the legal defense of Dr.
Martin Luther King, Jr., leader of the movement, against a perjury indictment then
pending in Montgomery. The text appeared over the names of 64 persons, many widely
known for their activities in public affairs, religion, trade unions, and the performing arts.
Below these names, and under a line reading ‘We in the south who are struggling daily for
dignity and freedom warmly endorse this appeal,’ appeared the names of the four
individual petitioners and of 16 other persons, all but two of whom were identified as
clergymen in various Southern cities. The advertisement was signed at the bottom of the
page by the ‘Committee to Defend Martin Luther King and the Struggle for Freedom in the
South,’ and the officers of the Committee were listed.
 Neither of the statements mentions Sullivan by name but he contends that the
word ‘police’ referred to him as the Montgomery Commissioner who supervised
the Police Department. The statements were understood referring to him in his
capacity as Commissioner.
 Some of the statements contained in the two paragraphs were not accurate descriptions
of events which occurred in Montgomery. Although Negro students staged a
demonstration on the State Capital steps, they sang the National Anthem and not “My
Country, ‘Tis of Thee.” Although nine students were expelled by the State Board of
Education, this was not for leading the demonstration at the Capitol, but for demanding
service at a lunch counter in the Montgomery County Courthouse on another day. Not
the entire student body, but most of it, had protested the expulsion, not by refusing to
register, but by boycotting classes on a single day; virtually all the students did register
for the ensuing semester. The campus dining hall was not padlocked on any occasion,
and the only students who may have been barred from eating there were the few who
had neither signed a preregistration application nor requested temporary meal tickets.
Although the police were deployed near the campus in large numbers on three
occasions, they did not at any time “ring” the campus, and they were not called to the
campus in connection with the demonstration on the State Capitol steps, as the third
paragraph implied. Dr. King had not been arrested seven times, but only four; and
although he claimed to have been assaulted some years earlier in connection with his
arrest for loitering outside a courtroom, one of the officers who made the arrest denied
that there was such an assault.
 Procedural History: A jury in the Circuit Court of
Montgomery County awarded Sullivan damages of
$500,000 as the trial court instructed them that the
statements in the advt. were libelous per se and not
privileged and the Supreme Court of Alabama
affirmed. U.S.S.C. reversed the judgment saying that
the rule of law applied by Alabama courts is
constitutionally deficient for failure to provide the
safeguards for freedom of speech and of the press that
are required by the First and Fourteenth Amendments
in a libel action brought by a public official against
critics of his official conduct.
 First Amendment: Congress shall make no law
respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government
for a redress of grievances.
 Fourteenth Amendment: Section 1, No state shall make
or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall
any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of
the laws.
 Held: Constitution does not protect libelous publications but the
use of libel laws to impose sanctions upon expression critical of
the official conduct of public officials.
 The constitutional safeguard was fashioned to assure unfettered
interchange of ideas for the bringing about of political and social
changes desired by the people.
 Its is a prized American privilege to speak one’s mind, although
not always with perfect good taste, on all public institutions.
 Debate on public issues should be uninhibited, robust, and wide-
open and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public
officials.
 The present advt. is an expression of grievance and protest on a
major public issue and therefore qualify for the constitutional
protection. The question is would this protection be forfeited by
the fact that some statements are false and allegedly defamatory
of Sullivan?
 Erroneous statement is inevitable in free debate, and that it must
be protected if the freedoms of expression are to have the
breathing space that they need to survive.
 The interest of the public outweighs the interest of any other
individual.
 Criticism of their official conduct does not lose its constitutional
protection merely because it is effective criticism and hence
diminishes their official reputations.
 A federal rule that prohibits a public official from recovering
damages for a defamatory falsehood relating to his official
conduct unless he proves that the statement was made with
‘actual malice’.
 It would give public servants an unjustified preference over the
public they serve, if critics of official conduct did not have a fair
equivalent of the immunity granted to the officials themselves.
 Sullivan couldn’t prove actual malice.