Law Commission Consultation Paper: Should Indian defamation laws be modified?

Law Commission Consultation Paper on Media Law broadly deals with the theme of Freedom of Press, which even though isn't expressly a Fundamental Right under the Constitution of India, has been judicially recognized within the ambit of Article 19(1)(a) which declared Freedom of Speech and Expression as a Fundamental Right. This Freedom, as the paper states it, serves the larger purpose of the right of the people to be informed of a broad spectrum of facts, views and opinions. It is the medium through which people gain access to new information and ideas, an essential component of a functioning democracy.The Report talks about a lot of issues which restricted or promoted the Freedom of Press, such as paid news, cross media holdings, opinion polls, sting operations, trial by media, rights of accused and modes and methods of regulation. However, law relating to defamation has assumed special significance in the light of the defamation suit against Aam Aadmi Party leader, Arvind Kejrival.The present media laws in India are an extension of the archaic media laws enacted during the colonial era and demand a comprehensive change. A counter view to this debate for modification contends that the very right to freedom of speech and expression, from which freedom of press emanates, itself is not absolute. It is subject to certain reasonable restrictions, which include the law of defamation and the law of contempt.The law relating to defamation has often been seen as an impediment to the freedom of press as well as the freedom of speech and expression of an individual. A journalist has no special status under defamation laws in India. Although the press enjoys the freedom of speech and expression under Art. 19(1)(a) of the Constitution, defamation is a ground for a reasonable restriction to this freedom under Art. 19(2).The law of civil defamation in India is currently dealt under the law of torts and criminal defamation under Section 499 of the Indian Penal Code. In criminal law, the burden rests on the prosecution to prove beyond reasonable doubt that there was an offence of defamation committed and there was intent to do so. Then it is up to the accused to corroborate that they are cosseted by one of the 10 exceptions listed under Section 499.The paper emphasised on balancing two opposite forces, when bringing out any modification in the defamation laws in the country. On the one hand, instances of fake sting operations or trial by media give credence to allegations of irresponsible journalism. On the other, threats of legal action with punitive damages under the laws of defamation lead to a 'chilling effect' on the publication of free and independent news articles and puts undue pressure on journalists and publishing houses.The UK Defamation Act, 2013 aims to strike this balance, which is now being envisioned by the law makers in the country. This law pioneers a new "serious harm threshold" structured to help people understand when claims should be initiated and discourage frivolous litigation. The legislation makes an attempt to "reverses the chilling effect" that previous libel laws have had on freedom of expression. Even England and US have done away with defamation as a criminal offence. Defamation only exists as a civil wrong, and under strictly circumscribed conditions, so as to facilitate free speech and expression. The United Nations Commission on Human Rights called criminalizing peaceful expression as "one of the most reprehensible practices employed to silence people and… a serious violation of human rights."Dr. Subramaniam Swamy reportedly supported this contention at an interaction, organized at The Press Club of Odisha, by stating that, "Criminal defamation amounts to harassment and is unconstitutional. In my view there is a case for deleting the defamation clause by interpreting it with enforcement of fundamental rights,"Previous attempts by entities such as the Editor's Guild of India, to decriminalise defamation as far as it relates to journalists, were also quoted in the Consultation Paper. The proposal has been noted by the Law Ministry as well. In 2003, the newspaper The Hindu mounted an unsuccessful challenge in the Supreme Court against the use of the criminal code for defamation, on the ground that it violates the press freedom guaranteed by the Constitution. The paper thus emphasized a consideration of defamation laws as well, while undertaking a comprehensive review of laws regulating the media.This law of defamation has also become complicated due to the exponential growth of media, particularly electronic media, which has resulted in a decline in an individual's privacy. This simplicity of dissemination of information leads to re-circulation of defaming content, time and again, making it perpetually impossible to remove the content, once it gets online.Section 66A of the IT Act makes it a punishable offence to send messages that are offensive or false or created for the purpose of causing...

Law Commission Consultation Paper: Should Indian defamation laws be modified?

Apoorva Mandhani

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