Project on ipr

8/13/2019 Project on ipr

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TABLE OF CONTENTS

TOPICS PAGE NUMBER

CHAPTER 1..4

CHAPTER 2..5

CHAPTER 3..12

CHAPTER 4..15


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CHAPTER 1

INTRODUCTION

Defamation also called calumny, vilification, or traducement is the communication of a false

statement that harms the reputation of an individual, business, product, group, government

,religion, or nation. Most jurisdictions allow legal action to deter various kinds of defamation and

retaliate against groundless criticism. 1

Under common law, to constitute defamation, a claim must generally be false and have been

made to someone other than the person defamed .] Some common law jurisdictions also

distinguish between spoken defamation, called slander, and defamation in other media such as

printed words or images, called libel.

In some civil law jurisdictions, defamation is treated as a crime rather than a civil wrong. .

The United Nations Commission on Human Rights ruled in 2012 that the criminalization of libel

violates freedom of expression and is inconsistent with Article 19 of the International Covenant

on Civil and Political Rights.

Defamation is publication of a statement about someone that lowers him or her in the estimation

of right-thinking members of society generally, where no defense (usually truth, opinion, or

qualified privilege) is available. Examples of defamation can be, calling someone dishonest,

corrupt, hypocritical, lazy, incompetent, criminal, unfaithful, or financially troubled. But beware!

It includes what ordinary readers or viewers see or hear between the lines. The courts will look

at the sting of the article. Proving the literal truth of the words wont help if the sting is an

inference. 2

Sometimes journalists and others try to get clever with words, hinting and implying things,

thinking they are safe because they can prove the literal truth of the words. Wrong. What they

have to prove is the meaning that ordinary readers take from their story.

My project deals with the freedom of speech and expression guaranteed under constitution,

defamation laws and nexus between the freedom and reasonable restrictions.

1 http://en.wikipedia.org/wiki/Defamation 2 http://www.medialawjournal.co.nz/?page_id=273
http://en.wikipedia.org/wiki/Defamation#cite_note-1http://en.wikipedia.org/wiki/Defamation#cite_note-1http://en.wikipedia.org/wiki/Defamation#cite_note-1http://en.wikipedia.org/wiki/Defamationhttp://en.wikipedia.org/wiki/Defamationhttp://en.wikipedia.org/wiki/Defamationhttp://www.medialawjournal.co.nz/?page_id=273http://www.medialawjournal.co.nz/?page_id=273http://www.medialawjournal.co.nz/?page_id=273http://www.medialawjournal.co.nz/?page_id=273http://en.wikipedia.org/wiki/Defamationhttp://en.wikipedia.org/wiki/Defamation#cite_note-1


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CHAPTER 2

HISTORICAL BACKGROUND

The essence of defamation is injury to a person's reputation and good name. The mere fact that a

person does not like the way an article portrays him does not entitle him to damages. Rather, a

defamatory communication, in its classic definition, is one that tends to hold a person up to

hatred, contempt, or ridicule or causes him to be shunned or avoided by others. 3

In this case the essence of the offense lay in the unwarrantable public proclamation. According

to Ulpian , not all shouting was actionable. Drawing on the argument of Labeo , he asserted that

the offense consisted in shouting contrary to the morals of the city ("adversus bonos mores huiuscivitatis") something apt to bring in disrepute or contempt ("quae... ad infamiam vel invidiam

alicuius spectaret") the person exposed thereto. Any act apt to bring another person into disrepute

gave rise to an actio injurarum . In such a case the truth of the statements was no justification for

the public and insulting manner in which they had been made. But even in public matters, the

accused had the opportunity to justify his actions by openly stating what he considered necessary

for public safety to be denounced by the libel, and proving his assertions to be true. The second

head included defamatory statements made in private, and in this case the offense lay in the

content of the imputation, not in the manner of its publication. The truth was therefore a

sufficient defense, for no man had a right to demand legal protection for a false reputation. 4

Roman law was aimed at giving sufficient scope for the discussion of a man's character, while it

protected him from needless insult and pain. The remedy for verbal defamation was long

confined to a civil action for a monetary penalty, which was estimated according to the

significance of the case, and which, although vindictive in its character, doubtless included

practically the element of compensation. 5 But a new remedy was introduced with the extension

of the criminal law, under which many kinds of defamation were punished with great severity.

At the same time increased importance attached to the publication of defamatory books and

3 http://www.wikipedia-watch.org/defame.html 4 http://en.wikipedia.org/wiki/Defamation 5 ibid
http://en.wikipedia.org/wiki/Ulpianhttp://en.wikipedia.org/wiki/Ulpianhttp://en.wikipedia.org/wiki/Ulpianhttp://en.wikipedia.org/wiki/Marcus_Antistius_Labeohttp://en.wikipedia.org/wiki/Marcus_Antistius_Labeohttp://en.wikipedia.org/wiki/Marcus_Antistius_Labeohttp://www.wikipedia-watch.org/defame.htmlhttp://www.wikipedia-watch.org/defame.htmlhttp://www.wikipedia-watch.org/defame.htmlhttp://en.wikipedia.org/wiki/Defamationhttp://en.wikipedia.org/wiki/Defamationhttp://en.wikipedia.org/wiki/Defamationhttp://en.wikipedia.org/wiki/Defamationhttp://www.wikipedia-watch.org/defame.htmlhttp://en.wikipedia.org/wiki/Marcus_Antistius_Labeohttp://en.wikipedia.org/wiki/Ulpian


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writings, the libri or libelli famosi , from which we derive our modern use of the word libel; and

under the later emperors the latter term came to be specially applied to anonymous accusations

or pasquils , the dissemination of which was regarded as particularly dangerous, and visited with

very severe punishment, whether the matter contained in them were true or false. 6

PRINT MEDIA AND FREEDOM OF SPEECH AND EXPRESSION

Media of mass communication are very important part of the modern society. They are also very

powerful systems that influence the society. At a certain level media influences the present and

can also influence the future of the society. Mass media have the power to make or unmake

governments.

So it is clear that mass media are quite powerful. But the exercise of power by the media gets

regulated and controlled by the various laws and rules enacted from time to time. In a democratic

society media enjoy more powers and face less restrictions and regulations. In an authoritarian

form of governance, the working of the media is restricted and controlled to a great extent.

Sometimes media in autocracies or under military rule are not all free. 7

In India, the situation is a mixed one. The mass media enjoy certain freedom. But the

Constitution imposes certain reasonable restrictions. Then there are laws that regulate thefunctioning of mass media in India. Media laws in India have a long history right from the

British rule. The Government enacted several rules and regulations in India to perpetuate in rule.

After independence, more laws have been enacted and the old ones amended r the benefit of the

society. Some of the laws that regulate the performance of media in India are mentioned below.

A few of the laws will be discussed in detail in other lessons. 8

CONSTITUTIONAL PROVISIONS FOR FREEDOM OF MEDIA:

The Indian Constitution does not provide freedom for media separately. But there is an indirect

provision for media freedom. It gets derived from Article 19(1) (a). This Article guarantees

6 http://en.wikipedia.org/wiki/Defamation 7 http://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdf 8 ibid
http://en.wikipedia.org/wiki/Pasquilhttp://en.wikipedia.org/wiki/Pasquilhttp://en.wikipedia.org/wiki/Pasquilhttp://en.wikipedia.org/wiki/Defamationhttp://en.wikipedia.org/wiki/Defamationhttp://en.wikipedia.org/wiki/Defamationhttp://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdfhttp://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdfhttp://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdfhttp://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdfhttp://en.wikipedia.org/wiki/Defamationhttp://en.wikipedia.org/wiki/Pasquil


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freedom of speech and expression. The freedom of mass media is derived indirectly from this

Article.

Our Constitution also lays down some restrictions in the form of Article 19(2). Our Constitution

also lays down some restrictions in the form of Article 19(2). Regarding the issue of freedom ofspeech, Dr. B. R. Ambedkar explained the position as follows:

"The press (or the mass media) has no special right which is not to be given to or which are not

to be exercised by the citizen in his individual capacity. The editor of a Press or the manager are

all citizens and, therefore, when they choose to represent any newspapers, they are merely

exercising their right of expression and in my judgement no special mention is necessary of the

freedom of Press at all." 9

On the matter of the freedom of speech and expression, the first Press Commission in its report

said, "This freedom is stated in wide terms and includes not only freedom of speech which

manifests itself by oral utterances, but freedom of expression, whether such expression is

communicated by written word or printed matter. Thus, freedom of the press particularly of

newspapers and periodicals is a species of which the freedom of expression is a genus. There

can, therefore, be no doubt that freedom of the press is included in the fundamental right of the

freedom of expression guaranteed to the citizens under Article 19(1) (a) of the Indian

Constitution." 10

Justice Mudholkar, a Supreme Court Judge said during Emergency (1975-77),

"Pre-censorship, prohibition on import of printed and published material, placing a ban on

printing and publishing material of a specified nature, demanding security from the press or

placing any restriction which would amount to an indirect curb on free circulation of a

newspaper or class of newspaper should confine itself have all been held to be bad in law." 11

Article 19 of the Indian constitution lays down,

9 http://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdf 10 http://presscouncil.nic.in/history.htm 11 http://share.pdfonline.com/7cacec0700a04fcc9eabff7ed5dc098e/mmc-204.htm
http://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdfhttp://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdfhttp://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdfhttp://presscouncil.nic.in/history.htmhttp://presscouncil.nic.in/history.htmhttp://presscouncil.nic.in/history.htmhttp://share.pdfonline.com/7cacec0700a04fcc9eabff7ed5dc098e/mmc-204.htmhttp://share.pdfonline.com/7cacec0700a04fcc9eabff7ed5dc098e/mmc-204.htmhttp://share.pdfonline.com/7cacec0700a04fcc9eabff7ed5dc098e/mmc-204.htmhttp://share.pdfonline.com/7cacec0700a04fcc9eabff7ed5dc098e/mmc-204.htmhttp://presscouncil.nic.in/history.htmhttp://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdf


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"All citizens shall have the right to freedom of speech and expression, to assemble peaceably,

and without arms, to form associations or unions, to move freely throughout the territory of

India, to reside in any part of the territory of India, to acquire hold and dispose of property and

to practice any profession or to carry on any occupation, trade or business. However the right to

freedom of speech and expression shall not affect the operation of any existing law or prevent the

state from making any law insofar as such law imposes reasonable restrictions on the exercise of

that right in the interests of the sovereignty and integrity of India, the security of the State,

friendly relations with foreign states, public decency or morality or In relation to contempt of

court, defamation or incitement to offen ce. 12

Thus the type of freedom of expression guaranteed to the American Citizen does not exist in

India but that he is liable to "reasonable restrictions.

REASONABLE RESTRICTIONS ON MEDIA:

It is strange, unique and paradoxical that what is provided as a right by our Constitution on the

one hand is taken away by some sub-clause in the same situation.

Article 19 of our Constitution deals with the right to freedom and it enumerates certain rights

regarding individual freedom of speech and expression etc. These provisions are important and

vital, which lie at the very root of liberty. It is true that in the sub-clauses that follow, certain

limitations are placed upon these freedoms with regard to freedom of speech and expression. In

addition, there are many laws that relate to libel, slander, defamation, contempt of court, or any

matter which offends against decency or morality or which undermines the security of, or tends

to overthrow the State. It can be seen that these limitations are related to the objective standards

laid down by the Constitution. Similarly, the legislature is given the right to impose reasonable

restrictions in the interest of public order on the right to assemble peaceably and without arms.

Whether a restriction is reasonable or not is not left to the determination of the legislature, and of

the executive. But it is again an objective consideration, which has got to be determined by the

Court of law. Only such a restriction would be reasonable as the Court thinks as reasonable. 13

12 http://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdf 13 ibid
http://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdfhttp://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdfhttp://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdfhttp://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdf


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It is clear therefore that the Constitution has not left the laws to the mercy of the party in power

or to the whims of the executive. No one is allowed to limit, control or impair our fundamental

rights by changing, amending, or introducing new laws that easily. Any limitation of a

fundamental right has to before a Court of law. Legislatures, indeed, have been empowered to

impose reasonable restrictions on freedom of speech and expressions on the following grounds: 14

Integrity of India, Security of the State, Friendly Relations with neighboring Countries, Public order, Decency or morality,

Contempt of Court and Contempt of Legislature, Defamation, and Incitement to an offence.

By and large the necessity for imposing "reasonable restrictions" by the legislature has not been

seriously challenged by the newspaper world (and media world) where matters of state security

or the integrity of India are concerned. And where the superior judiciary is concerned, Justice

Mudholkar has remarked, there has been a long tradition of non-interference with the freedom of

the press (and other mass media) except where newspaper was found guilty of contempt of court.

Thus, it is evident that the freedom conferred by Article 19 (1) (a) in fairly general terms. It does

not for example, even refer specifically to the freedom of the Press (or mass media) as is

envisaged in the corresponding provision in the American Constitution.

Judicial decisions have, however, affirmed that Article 19 (1) is sufficiently wide to include the

freedom of the Press and implicitly, the freedom of other mass media. MAJOR MEDIA LAWS

IN INDIA:

Some of the major laws related to mass media in India include the following: 15

First Press Regulations,

14 http://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdf 15 ibid


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Gagging Act, Indian Press Act, Vernacular Press Act, Constitutional Provisions regarding Press Freedom, Official Secrets Act, Press and Registration of Books Act, Sea Customs Act, Contempt of Court Act, Young Persons (Harmful Publications) Act, Parliamentary Proceedings Act, Delivery of Books and Newspapers Act, Copyright Act, Defense of India Act, Press Council of India Act, Police Act, Drugs and Magic Remedies Act, Cable Television Regulation Act, Right to Information Act.

Legislation in the shape of Laws and Acts, etc., is a convenient way of controlling the mass

media. Many countries have tried this method since a long time now. Other means of

suppressing media freedom are oppressive measures like raids, seizures, arrests, fines, etc. 16

Only few countries like the USA have ensured freedom of media in a direct manner. Most

countries, like in India, have some indirect measure. Almost all countries have provisions that

impose restrictions in a reasonable manner. In India, much legislation has been enacted in this

direction. Most Governments feel that they have the right to enact such Acts and Laws with aview towards restricting the freedom of expression in the interest if the State, with regard to

16 http://blogs.wsj.com/indiarealtime/2012/11/15/inside-law-how-defamation-works-in-india/
http://blogs.wsj.com/indiarealtime/2012/11/15/inside-law-how-defamation-works-in-india/http://blogs.wsj.com/indiarealtime/2012/11/15/inside-law-how-defamation-works-in-india/http://blogs.wsj.com/indiarealtime/2012/11/15/inside-law-how-defamation-works-in-india/http://blogs.wsj.com/indiarealtime/2012/11/15/inside-law-how-defamation-works-in-india/


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friendly relations with foreign Stats, with regard to public order, with regard to decency or

morality, or in relation to contempt of court, defamation, or incitement to an offence. 17

17 http://www.medialawjournal.co.nz/?page_id=273
http://www.medialawjournal.co.nz/?page_id=273http://www.medialawjournal.co.nz/?page_id=273http://www.medialawjournal.co.nz/?page_id=273http://www.medialawjournal.co.nz/?page_id=273


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CHAPTER 3

LAW OF LIBEL AND DEFAMATION:

Defamation simply means tarnishing some body's image. It is an injury to a man's reputation. It

means speaking or writing something damaging or diminishing the status or personality or

prestige of a person or an Organization. 18 There are two types of Defamation:

Libel: It is a written form of defamation.

Slander: It is a spoken form of defamation

Section 499 of the Indian Penal Code defines defamation as: '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 having reason to believe that such

imputation will harm the reputation of such person, is said except in cases hereinafter excepted to

defame that person. 19

There are four explanations and 10 exceptions of section 499. The four explanations are as

follows.

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;

To make an imputation concerning a company or an association or collection of persons

as such;

To make an imputation in the form of an alternative or expressed ironically; But 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 that character of that person in respect of his caste or his calling, or

18 https://www.mckennalong.com/practices-Defamation-Media-Law-First-Amendment.html 19 http://indiankanoon.org/doc/1041742/
https://www.mckennalong.com/practices-Defamation-Media-Law-First-Amendment.htmlhttps://www.mckennalong.com/practices-Defamation-Media-Law-First-Amendment.htmlhttps://www.mckennalong.com/practices-Defamation-Media-Law-First-Amendment.htmlhttp://indiankanoon.org/doc/1041742/http://indiankanoon.org/doc/1041742/http://indiankanoon.org/doc/1041742/http://indiankanoon.org/doc/1041742/https://www.mckennalong.com/practices-Defamation-Media-Law-First-Amendment.html


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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". 20

There are ten exceptions in this Act. These are:

First Exception: It is not defamation to impute anything, which is true concerning any

person, if it were 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: It is not defamation to express in good faith any option 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: It is not defamation to express in good faith any opinion whatever

respecting the conduct of any person touching public question, and respecting his

character, so far as his character appears in that conduct, and no further.

Fourth Exception: It is not defamation to publish a substantially true report of the

proceedings of a court of justice, or the result of any such proceedings.

Fifth Exception: 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 party witness or agent, in any case such

of respecting the character of such person as far as his character appears in that conduct

and no further. Sixth Exception: It is not defamation to express in good faith any opinion. Whatever

respecting the merits of any performance, which its author has submitted to the

judgement of the public, or respecting the character of the author so far as his character

appears in such performance and no further.

Seventh Exception: It is not defamation if a person having over another any authority,

either conferred by law or arising out of any lawful contact made with that other to pass

in good faith any censure on the conduct of that other in matters to which such lawful

authority relates.

Eighth Exception: It is not defamation to prefer good faith an accusation against any

person to any of those who have lawful authority over that person with respect to the

subject matter of accusation.

20 http://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdf


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Ninth Exception: It is not defamation to make an imputation on the character of another

provided that imputation is made in good faith for the protection of the interest of the

person making it or of any other person, or for the public good.

Tenth Exception: It is not defamation to convey a caution in good faith to one person

against another provided that such caution in be intended for the good of the person to

whom it is conveyed, or of same person in whom that person is interested, or for the

public good. 21

PUNISHMENT FOR DEFAMATION:

Three sections of the Indian Penal Code deal with the punishment for defamation. These are:

Section 500, Section 501 and Section 502.

Section 500 of the Indian Panel Code lays down, "Whoever defames another shall be punished

with simple imprisonment for a term which may extend to two years or with fine or with both.22

Section 501 of the Indian Penal Code lays down, "Whoever prints (or engraves) any matter,

knowing or having good reason to believe that such matter is defamatory of any I person, shall

be punished with simple imprisonment for a term which may extend to two years or with fine or

with both. 23

Section 502 of the Indian Penal Code lays down, "Whoever sells or offers for sale any printed or

engraved substance containing defamatory matter, knowing that it contains such matter, shall be

punished with simple imprisonment for a term which may extend to two years or with fine or

with both. 24

21 http://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdf22 http://www.advocatekhoj.com/library/bareacts/indianpenalcode/index.php?Title=Indian%20Penal%20Code,%20186023 http://indiankanoon.org/doc/1820068/ 24 http://indiankanoon.org/doc/1495647/
http://indiankanoon.org/doc/1820068/http://indiankanoon.org/doc/1820068/http://indiankanoon.org/doc/1820068/http://indiankanoon.org/doc/1495647/http://indiankanoon.org/doc/1495647/http://indiankanoon.org/doc/1495647/http://indiankanoon.org/doc/1495647/http://indiankanoon.org/doc/1820068/


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CHAPTER 4

CONCLUSION

A story that is inaccurate because a reporter became biased and failed to pursue available leads

easily can result in a defamation judgment. But where a journalist objectively and thoroughly

explores the story, objectively critiques sources, accurately states the facts learned and draws fair

conclusions from those facts, a defamation suit is far less likely and, if filed, almost always

winnable.

The most dangerous stories are those researched and written under extreme deadlines and

those that include material that the reporter does not understand fully or cannot verify fully.

Editors should be used as a resource for sharing ideas and enhancing objectivity. Attorneys

should be consulted as well where threat of liability seems probable or even likely.

Finally, stories should be about matters of a general and legitimate public interest, not merely

matters of simple curiosity.

The law of defamation substantially parallels principles of fairness and ethics taught in most

journalism schools and practiced by most ethical journalists. Reports must be balanced and

objective. In light of the burdens and overwhelming expense of litigation, lawsuits have to be

avoided and risks minimized. Even frivolous or marginal suits can be expensive to defend.

Scrupulous checking and rechecking of sources and prepublication review by editors and counsel

or at least a self check must be used whenever a reporter spotlights a potential plaintiff's

integrity or character and even where such a spotlight inadvertently focuses on one who is

incidental to the report. Defamation plaintiffs are frequently not those featured, but witnesses or

sources who disagree with the use of the information they provided. Though the law is stacked

with technicality, journalists must recognize that defamation suits are avoided and won chiefly

by accurate and objective reporting.

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