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A web-series released on Netflix named “Hasmukh” starring Vir Das and Ranvir Shorey has landed in trouble. Some lawyers of New Delhi have sent a legal notice to Netflix against the streaming of the comedy series as it portrays advocates in poor light. The plea is moved by the Supreme Court advocate Ashutosh Dubey who contends that in episode 4 of this web series, lawyers have been referred to as thieves, rogues, goons, and rapists. Dubey has claimed that these statements are highly disparaging and demeaning in nature and bring disrespect to the profession of law and lawyers in the eyes of the general public.
The said remarks have caused utmost damage to the legal profession and impugned the image of lawyers in the eyes of millions of viewers, who visit this streaming website. The lawyer in his plea seeks a permanent injunction on the airing of the series or to delete the particular clip. The suit also pleads to direct the producers, directors, and writers of the web series to issue “an unconditional apology online for slandering the image of the lawyers’ community”. The Delhi High Court’s judge Justice Sanjeev Sachdeva heard the case on April 27, 2020, a plea seeking to restrain online media-streaming platform Netflix from airing its web series Hasmukh for sabotaging and defaming the image and reputation of lawyers.
What is defamation?
“Any type of deliberate false communication, either written or spoken, that can harm a person’s reputation or decreases the respect, regard or confidence of a person; or induces disparaging, or a hostile or disagreeable opinion or feeling against a person is known as defamation.”
A man’s reputation is treated as his property and such damage are punishable by law. It could be written or verbal. Written defamation printed or typed material or images are called as libel and spoken defamation is called slander.
History of defamation can be traced in Roman law and German law. Abusive chants were capitally punishable in Roman. In early English and German law, insults were punished by cutting out the tongue. In the late 18th century, only imputation of crime or social disease or casting aspersions on professional competence constituted slander in England. In Italy, defamation is criminally punishable and truth seldom excuses defamation.
Defamation law in India
Article 19 of the Constitution grants various freedoms to its citizens. However, Article 19(2) has imposed reasonable exemption to freedom of speech and expression granted under Article 19(1)(a). Contempt of court, defamation and incitement to an offence are some exceptions.
Defamation is an offence under both the civil and criminal law. In civil law, defamation is punishable under the Law of Torts by imposing punishment in the form of damages to be awarded to the claimant. Under the Criminal law, Defamation is a bailable, non-cognizable offence and compoundable offence. Hence a policeman may arrest only with an arrest warrant issued by a magistrate. The Indian Penal Code punishes the offence with a simple imprisonment up to two years, or with fine, or both.
The statements made, need to be false and it must be made without the consent of the alleged defamed person. Monetary compensation can be claimed from the defendant for defamation. There are certain requirements for successful defamation suit. They are:
- The presence of a defamatory statement is required. Defamatory content is one calculated to injure the reputation of a person or a class of persons by exposing them to hatred, contempt or ridicule. The test whether it damages reputation has to be calculated from the eyes of a common man and his comprehension of the matter.
- Secondly, the statements must purport to a person or a class of persons. General statements like all “politicians are corrupt” is too broad and no specific politician can gain compensation for the same.
- It must be published either in oral or written form. Unless the content is made available to a third person, there can be no defamation. Where a letter is sent in a language unknown to the recipient, he needs a third person to read it to him. If any defaming statement is made in it, it will constitute defamation even if it was sent as a private letter, since the aid of a third person was needed to read it.
Once all these conditions are satisfied, a successful defamation suit subsists. The defendant can plead defenses that
1. The statement published was true,
2. Fair comments made with public interest based on true incidents,
3. Certain persons are vested with the privilege to make statements even if they are defamatory, example judicial proceedings and members of parliament.
If the defendant fails to substantiate his act, the suit is successful.
It is nothing but a defamation for which simple imprisonment may be awarded. Under a criminal suit, intention to defame is necessary. The allegation should be made with malice intent to defame another or at least the knowledge that the publication is likely to defame another is essential. It has to be proved beyond reasonable doubt that the act was being done to lower the reputation of another.
Section 499 of the Indian Penal Code, 1860 defines defamation and its exceptions. Words or signs imputed intending to harm or with the knowledge that such imputation will cause harm. It may amount to defamation if anything is imputed against a deceased person, if such imputation would harm the reputation had the person been alive. The class of persons shall include company or associations. It is no defamation unless the alleged defamatory statement either directly or indirectly lowers the moral or intellectual character or his respect of his caste or his calling in the estimation of others.
Persons who make defamatory statements are exempted from punishments if they fall in one of the ten exceptions provided in Section 499. They are: –
- Attribution of any truth made for public good. Truth is seldom defense unless made for a public good.
- Any opinion made in good faith regarding the conduct of a public servant in the discharge of his public functions.
- Any opinion made in good faith respecting the conduct of any person which relates to a public question.
- Publication of true reports of the proceedings of the Courts or the result of the proceedings is not a defamation.
- Any opinion made in good faith regarding the merits of any civil or criminal case decided by the Court of Justice, or the conduct of any person as a party, witness or agent to that case and no further.
- Opinions made about the merits of any performance which its author has submitted to the judgement of the public, or about the author is not defamation if made in good faith.
- Censures passed by persons neither having authority over another either conferred by a law or from a lawful contract in good faith is nor defamation. Censure is formal statement of severe disapproval.
- Accusation of offence to any person having lawful authority over the alleged person in good faith is an exception to defamation. Complaints about servants to masters and children to parents are examples to the exception.
- Statements made about the character are not defamation if it is made in order to protect the interests of the person making it, or any other person, or for the public good.
- Cautions conveyed to one person against another are not defamation if it is intended for the good of the conveyed person, or any other, or for public good.
Section 500 of the Code punishes defamation if it does not fall within the above said exceptions with simple imprisonment which may extend to two years, or fine, or both. The Indian Penal Code punishes printing or engraving matter known to be defamatory or sale of such printed or engraved substance containing defamatory matter about any person in the same manner of punishing defamation.
Constitutionality of defamation laws
Controversies have erupted over the fact that defamation laws are in violation of fundamental right guaranteed under Article 19 of the constitution. The Supreme Court has ruled that the criminal provisions of defamation are constitutionally valid and are not in conflict with the right to free speech. The court also held that the freedom of speech and expression is “absolutely sacrosanct” and is not absolute. The right to life under Article 21 shall also include the right to reputation of a person and cannot be allowed to be crucifed by other’s right of free speech.
Landmark judgements in India
The courts in India have seen a variety of defamation cases. Of these, the following are some landmark cases which have interesting facts or have an important court ruling.
- D.P.Choudhary vs. Manjulatha: A publication was made in the local newspaper, Dainik Navjyothi that the plaintiff a 17 year old college girl ran away with a boy after she went out of the house by saying she was having lectures. This false news item had adverse effects on her and ruined her marriage prospects. It was actionable per se and she was awarded damages of Rs.10000/- by way of general damages.
- Mahendra Ram vs. Harnandan Prasad: A letter written in Urdu was sent to the plaintiff. Therefore he needed another person to read it to him. It was held that since the defendant knew the plaintiff does not know Urdu and he needs assistance, the act of defendant amounted to defamation.
- Ram Jethmalani vs. Subramanian Swamy: The court held Dr. Swamy guilty for defaming Ram Jetmalani by saying that he received money from a banned organization to protect the then Chief Minister of Tamil Nadu from the case of assassination of Rajiv Gandhi.
- Chintaman Rao vs. The State of Madhya Pradesh: The Supreme Court explained the meaning of “reasonable restrictions” imposed in Article 19 (2). It implies intelligent care and deliberation and that is required in the interests of the public.
- T.V.Ramasubha Iyer vs. A.M.A.Mohideen: Defendants published a statement without any intention to defame the defendants. It related to a particular person carrying on business of Agarbathis to Ceylon has been arrested for the offence of smuggling. The plaintiff was also a person carrying on similar business and since his reputation was damaged, the court awarded him damages.
Reputation is an asset to each and every person. Any damage to such an asset can be legally dealt with. Defamation laws have been enacted to prevent person maliciously using their right to freedom of speech and expression. The Indian law has rightly not made any distinction between libel and slander. Otherwise there could have been chances for committing slander and escaping from the laws that there is no written publication of matter.
In this particular case, the second essential for making a case of defamation is missing. The character in series ‘Hasmukh’ has in his statements refereed to the whole community of advocates, not indicating any one of them individually. Hence, the whole premise of the matter falls.
Intentional act of defamation is also punished with imprisonment which prohibits defaming a person with malice intention. The defamation laws are constitutional and reasonable. However, it is no defamation if the acts done fall within the exceptions provided. Over the seventy one years of Independence, there have been numerous cases of defamation and the court has interpreted each and every case with utmost care and they serve as precedents.
Author: Shourya Shubham from Chanakya National Law University, Patna.
Editor: Arya Mittal from Hidayatullah National Law University, Raipur.