31 May 2019

#FOEIndiaSeries | 5. Reputation and Honour

Free Speech in India

This is one of 14 articles (available via this page) through which I hope to share a sense of free speech and content law in India.

Wherever possible, I've tried to avoid mention of matters I've been involved in myself. I've also tried to ensure that the series is accessible to non-lawyers.

The terms ‘child pornography’ and 'revenge porn' have been used simply because of how common they are, both in popular discourse and occasionally at law, even though neither term is accurate. 'Child porn' refers to indecent images of children and, where real children feature, is evidence of child abuse in and of itself. 'Revenge porn' generally refers to the non-consensual release of explicit imagery of a woman by a former partner of hers. It, too, is a manifestation of abuse, and is far more an expression of power than an expression of pornography.

Of course, none of the content of these articles is professional advice and it should not be relied on for any purpose. It is tinged with personal opinion, may not be accurate, and is incomplete.  

Posts in the Series

Part I.    The Foundations of the Law

1.    The Parameters of Indian Discourse    
2.    The Backbone of the Law    
3.    Legislative and Other Input

Part II. Regulating the Substance of Speech    

4.    Creative Content and Trade    
5.    Reputation and Honour    
6.    Keeping the State Functional    
7.    Maintaining Law in a Plural State    
8.    Women’s Existence in Patriarchy
9.    Sexual Abuse and Reportage
10.    Privacy and Rights-Based Legislation    
11.    Explicit Content: Choice, Consent and Coercion    
12.    State Paternalism and Public Interest

Part III.  The Processes of the Law    

13.    Keeping Track of Others’ Content
14.    The Processes of Regulation


Part II. Regulating the Substance of Speech


5. Reputation and Honour


It is obvious that, living in a society, one’s reputation matters. Even if one claims to be a maverick who doesn’t care about others’ opinions, it doesn’t do to be known as someone who is, perhaps, chronically dishonest since such an assessment directly impacts one’s credibility. And not having one’s word be accepted for what it is invariably impacts the willingness of others to deal with one, and one’s ability to govern one’s own life in a manner of one’s choosing. Due to this, it is far from surprising that the law treats unfairly damaging a person’s reputation so as to lower his reputation in the eyes of others as either libel or slander which together constitute defamation: usually libel is written while slander is spoken.

Defamation is, in India, both a criminal offence and a civil wrong. This means that not only could one have to pay damages if one were held to have committed defamation, but also that one could potentially be jailed. Even if, in the ultimate analysis, impugned content was not held to be defamatory, if criminal proceedings had been initiated, there would be multiple trips to court almost certain to be required of those accused of the crime. Unlike in the case of civil proceedings, it is not easy for those who are accused of a crime to simply engage a lawyer to ‘deal with it’ whilst keeping an arm’s length from the nitty-gritty of legal proceedings themselves.

The only saving grace, perhaps, is that the Code of Criminal Procedure classifies defamation as a non-cognisable and bailable offence which, to an extent, helps to restrain the possibility of its being indiscriminately invoked.

The parameters of defamation-as-a-crime and defamation-as-a-civil-wrong are not the same. The former is explained in considerable detail in an Act of Parliament: the 1860 Indian Penal Code which also specifies several circumstances in which the publication of uncomplimentary matter about a person would not be considered to amount to criminal defamation. However, if a person were found guilty of having committed defamation in terms of Penal Code, he would be liable to face the punishment laid out in the Code itself: simple imprisonment for up to two years and/or a fine.

For content to be held to be criminally defamatory, it does not necessarily have to be untrue. It is entirely possible for proceedings to be initiated in respect of the publication of truthful matter about another person which harms his reputation. This is because the law lays down that there should be a public interest angle to the publication of otherwise defamatory content for an accused person to be able to escape liability.

Unfortunately, it isn’t crystal clear what would constitute ‘public interest’ which has the potential to lead to judicial arbitrariness since it is an ill-defined concept. There is a body of case law which quite clearly indicates that public interest is not synonymous with what that interests the public — so, an exposé of the legal, personal life of a private individual who happened to be a celebrity would not be in the public interest even though large sections of the public could be interested.

Talking about what would not be in 'public interest' only defines the term in the negative, without stating what it is. There have been attempts to define public interest in the positive, but such explanations have the unfortunate and entirely unsurprising tendency to rest on a list of characteristics or requirements such as ‘publication would serve the greater good of the general public’ which do not necessarily provide a great deal of guidance about if or how they would apply in the individual case.

Take the case of the married male politician who was filmed engaging in sexual conduct with a person other than his wife. There could easily be two opinions in such a case. One being that the person was engaging in merely private and personal acts which the general public had no legitimate interest in knowing of. The other, alternatively, being that the politician’s conduct, especially if his partner did not have comparable social capital, involved an abuse of power which spoke to both his character and his fitness for governance. In the latter case, it would be possible to argue that the public had an interest in knowing of the politician’s conduct in his personal life.

Or take the case in which two politicians had engaged in an affair, and one later wanted to publish the letters which the other had written during the course of their relationship. That would, almost certainly amount to copyright infringement, which, like defamation is problematic from the point of view of both criminal and civil law. Focussing on the public interest angle though, it isn’t at all clear whether the publication of such letters would merely amount to publicising private affairs possibly after the relationship had soured, or serve to expose the nexus between various politicians and the dynamics between those who had been involved in making decisions of critical national importance.

How the law would view a particular situation would depend on its specifics but what is unarguable is that these are not situations that are entirely black and white. And, consequently, it is extremely difficult to predict what determination a court would arrive at in relation to them.

When it comes to criminal defamation, the dead can be defamed. This is in direct contrast with civil law under which actions for the alleged defamation of dead people cannot generally be brought. There are exceptions to the general rule that the dead cannot be defamed under tort law: if a defamatory statement about a dead person negatively impacted the reputation of a person still alive such as, perhaps, his heir, it would be possible to maintain an action for defamation even under civil law.

In both cases, the effect of its being possible to defame the dead is that where content is released about a deceased person, it isn’t at all surprising to find allegations of defamation being made by persons who may claim to be the heirs of those persons.

Once the allegations are made, they could be thrown out of court for technical reasons depending on which court had been approached and whether the relevant procedural requirements had been followed. For example, if complainants are unable to demonstrate that they have any link whatsoever to the person in relation to whom they’re attempting to initiate legal proceedings, and it is possible that a civil suit would not proceed. However, it is also possible that such actions, particularly if properly initiated in a criminal court, would proceed.

It is possible to construct arguments to suggest that companies and other artificial persons cannot be criminally defamed, which could, in some cases, discourage them from initiating criminal proceedings. This is because, in holding criminal defamation to be constitutional, the judiciary closely linked it to the fundamental right to life which all persons enjoy, as envisaged by the Constitution.

It is not at all straightforward to assert that the constitutional right to life is intended to apply to non-natural persons, and it therefore becomes possible to claim that it is only natural persons — that is to say, human beings — who can be criminally defamed.

The courts have generally been cognisant of the demands of free speech, and, where the content has been academic in nature, they have tended to recognise the value of intellectual exploration. However, as in all cases, trouble arises when it comes to specifics, and predicting outcomes in relation to how unpublished content would be judicially perceived upon its publication is an exercise often better left to astrologers than to lawyers.

Civil courts tend to view content alleged to be defamatory quite differently from the manner in which criminal courts view it. When content is perceived to be problematic, a person who is concerned may approach a court in relation to it either before or after its publication. A pre-publication action would generally seek to have the publication of the content stopped or ‘stayed’ through an injunction. As a general rule, courts hesitate to grant such injunctions except in exceptional circumstances with the rationale seeming to be that if content is ultimately found to be defamatory, recompense can be made for its publication through the payment of damages.

If content has already been published, then civil actions for defamation would likely simply seek damages, and possibly attempt to stop further sales of copies of the impugned content or restrict further communication of the content to the public. Along with defamation, it is possible that allied claims could be made such as the publisher having portrayed the complainant in a ‘false light’ or possibly having committed commercial disparagement although there is no coherent body of case law in India specifically dealing with issues such as false light.

Defamation and allied offences as civil wrongs are largely dealt with by tort law which does not find a basis in statute: its basis lies in case law. And the case law which may be referred to in a civil defamation action could easily be from foreign jurisdictions that follow comparable legal practices: in other words, almost any common law jurisdiction whose legal system was inspired by that of the British. Foreign judgments from other countries do not bind Indian courts but they can have persuasive value especially where they deal with factual matrices which are comparable to those the Indian court in question has at hand, and where there is a dearth of municipal case law on which an Indian court may rely.

As in the case of criminal defamation, civil defamation too is subject to a number of exceptions although they are not defined by statute and are generally referred to as privileges instead of exceptions. They may be absolute or qualified, and they do such things as allow members of legislative assemblies to speak freely on the floor of the House without fear of having to deal with defamation proceedings as a result of what they may say there.

The most striking difference between criminal law and civil law though in terms of what qualifies as defamation for which liability may accrue is that under civil law, truth is considered to be a defence against allegations of defamation. As such, content would not be considered to be defamatory if it could be substantiated or if it could be demonstrated that its publication amounted to ‘fair comment’. There is no requirement that content be published in the public interest to avoid being considered to be defamatory under civil law: the content only has to be true.

As such, although content may be assailed under both civil law and criminal law through allegations of defamation, both these branches of the law understand the term in a manner which is so different that it is not always possible or desirable to attempt to substitute one form of legal proceeding with another.

There are, of course, questions about why defamation should be considered to be a criminal offence at all, and there does not appear to be any satisfactory response which explains why the State should interfere in what is essentially a private slight against a person, and perhaps his ego, to perhaps send another person to jail. Of course, we live in society and our reputation in the eyes of those we interact with is not a non-issue by any stretch of the imagination given that it directly impacts our credibility which would, in turn, almost certainly impact the quality of our lives. However, it is not at all obvious that imprisoning another person would ameliorate the damage done to one’s reputation in a manner that is significantly ‘better’ than simply having a civil court hold that what was said by them was, in fact, defamatory and not worthy of belief.

It appears that the one purpose defamation law does serve — both civil and criminal — is to silence those who claim to be victims of crime. There are exceptions but, for a person to be convicted of a crime, he generally has to be proved to have committed it beyond all reasonable doubt. The standard to proof in civil cases is different: for a determination that a person has committed a wrong to be arrived at, it would generally have to be demonstrated that the wrong had been committed in the balance of probabilities. What this means is that not being held to have done something illegal in a court of law does not automatically and necessarily mean that one hasn’t actually done it. It only means that there doesn’t exist enough proof for one to be held liable for having committed the act.

There are, of course, instances where the laws are abused, and legal proceedings are initiated entirely without basis. There are also laws which counter such practices such as those which deal with malicious prosecution and perjury. However, there is also the possibility that, whether or not there was a legal or factual basis to initiate proceedings, those alleged to have committed illegal acts would misuse defamation law to counter those who made allegations against them.

The courts are not unaware of the possibility of the law of defamation being misused and, although not specifically in this context, while upholding the constitutionality of Section 499 of the Indian Penal Code which defines defamation, the Supreme Court noted:
Moreover, given the presumption of constitutionality, it has also been held by this Court that in judging the reasonableness of restrictions, the Court is fully entitled to take into consideration matters of common report, history of the times and matters of common knowledge and the circumstances existing at the time of legislation. The concept reasonable restriction conveys that there should not be excessive or disproportionate restriction. Merely because law of criminal defamation is misused or abused would not make the provisions unconstitutional if they are otherwise reasonable.

Defamation law could be used in a variety of ways to keep allegations of illegal conduct from being made or publicised. Persons could simply threaten those who wanted to lodge complaints against them that they too would file cases, and they might actually do so.

It isn’t impossible to imagine women who claim to have been raped visit a police station to file a complaint, only to learn that the alleged rapist has already filed a defamation complaint against them for having spoken about the issue, for example. Additionally, an injunction seeking restraints on reportage could be sought. And should accused persons ultimately not be found guilty, they could potentially initiate defamation proceedings against their accusers.

The ease with which defamation proceedings may be initiated in relation to allegations of illegal conduct means that many may consider not making formal allegations at all, which of course suppresses their right to free speech. This is particularly true where the power differential between the accused and the accuser is particularly large, and where the alleged illegal act is, in any case, difficult to prove. In effect, this means that women or others who are subjected to abuse may choose not to invoke the law.

It is presumably not the purpose of either civil or criminal defamation law to lend themselves to being used as tools against those who are abused, or to become tools which facilitate the creation of an even less equitable society through their use by abusers to facilitate themselves. However, the protection available to persons who accuse others of illegal acts is limited, and the possibility that the invocation of defamation law could not only muzzle them but also be an impediment to their being able to access law isn’t far-fetched. In fact, allegations of defamation could pre-emptively be made by abusers simply ‘as a matter of strategy’ either formally or informally.

This obviously isn’t ideal, and demonstrates how defamation law and free speech law often clash. It is also of particular concern since access to law isn’t meant to be impeded by the exercise of power by the privileged but that is precisely what defamation law often inadvertently allows. There’s little in the way of deterrents which could curb the enthusiasm of abusers to use defamation law to silence their victims, and it is likely that defamation law could help abusers to flourish not by design but simply because of how it is structured.

(This post is by Nandita Saikia and was first published at IN Content Law.)

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