Biju Janata Dal (BJD) member of Parliament Tathagata Satpathy is about to propose a new Bill to reform the laws on defamation. Currently, the law favours protecting the right to reputation over the right to free speech and a new law may actually be the best way to fix the situation. Defamation laws in most countries are liable to misuse, but India’s are worse than most. Not only are they obscure, they take the added step of making defamation a criminal offence. This is only made worse by the fact that the current legal system is sufficiently broken to allow people with money to use defamation to intimidate critics.
While the right to reputation may be protected by the Constitution, it should not be at the cost of freedom of speech. Free speech is necessary because, among other things, it enables the media to hold governments and individuals accountable. Freedom of speech should also protect the right to offend within reasonable limits, i.e. to legitimately criticize the rich and powerful.
The Indian Penal Code (IPC), 1860 lists defamation as a criminal offence, making it punishable by fine or imprisonment or even both. There are many reasons why this is problematic. There is the stigma of being arrested and accused of a crime. There is the fact that it was made an offence in a time when duelling to protect one’s reputation was common. There is the fact that the IPC does not recognize irony or keep truth as an absolute defence. There is the fact that having both a civil and criminal remedy for the same injury forces an already overburdened judiciary to respond to the same matter twice.
But on top of all of these is the fact that criminalizing defamation is an entirely unwarranted restriction on free speech when the global norm is that a civil suit for damages is sufficient for protecting reputation. This overzealous restriction on free speech fails the constitutional test that such restrictions be “reasonable” and clearly needs to be struck down. The chilling effect that it has had on free speech and democratic accountability is too high a price to pay for the protection of individual reputations.
However, civil suits for defamation are not a perfect story in India either. It is a well-known fact that fighting a case in Indian courts is generally a tedious and expensive affair that only gets resolved after many years. It is this knowledge that is exploited by individuals and corporations with deep pockets. Knowing that they can afford to bear the costs of a trial, such kinds of people threaten their critics with a protracted defamation suit. These suits also generally ask for exorbitant damages and are filed in a remote court to increase travel costs.
Such suits have been termed, somewhat appropriately, as strategic lawsuits against public participation (or SLAPPs). Unsurprisingly, defendants to SLAPPs do not often have the same resources as the complainants, and find it burdensome, financially and otherwise, to defend their cases. SLAPPs need not actually culminate in a court case, as sometimes multiple notices threatening multiple lawsuits in multiple jurisdictions, each for thousands of crores in damages, are sufficient to buy silence.
Reforms to defamation would best be done through the enactment of a new statute. Such a law should decriminalize defamation and reform civil defamation to make it fairer and clearer in a way that short-circuits the tactics of SLAPPs. Being a fresh legislation, it would be foolish if the law didn’t factor in the Internet and new media when deciding issues like who can be punished for defamation and how.
Limits should also be set around civil defamation—not only must the loss to reputation be serious, the proof must also be substantial. The complainant must demonstrate that material injury was caused to their reputation as a direct result of the alleged statement. Truth, opinion and reasonable inference should also be made viable defences in defamation suits. Finally, courts should be empowered to impose exemplary costs on frivolous suits that waste their time.
To ease the burden of the judiciary, it is vital that courts are required to only hear serious defamation cases that haven’t been amicably settled. One such way to ensure this could be to make the legal notices that complainants send before filing a suit compulsory. These notices should also establish exactly how the alleged statement was false in order to prevent groundless accusations. The notice must specify where the suit will be filed and what damages will be asked for. If a complainant doesn’t file the defamation suit within a prescribed time, they should pay the person threatened in the notice a quarter of the damages requested in the notice. This will make sure that defamation claims and the damages requested are kept honest and reasonable.
Legal reforms can also be supplemented by measures addressing the imbalance of resources, such as indemnification clauses in contracts for journalists and a form of defamation insurance. It is to be hoped that the well-meaning ambitions of Satpathy will prove successful. Ultimately, some kind of reform is necessary—free speech is meaningless without the right to reasonably offend. If the ability to legitimately criticize is not protected, voices throwing light on important issues will continue to be silenced by the rich and powerful. And without those voices, the Indian state could be dramatically altered or compromised while Indians are kept in the dark.
Madhav Chandavarkar and Manasa Venkataraman are research associates at the Takshashila Institution.
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