Understanding the Law of Defamation Around the World
Globally, the law of defamation has been now in news because of the recent controversial defamation case that took place in the USA between Johnny Depp and Amber Heard. In the suit, damages of up to 100 million USD were sought by the parties. Moreover, the court even granted compensation to the tune of 15 million USD. Thus, it can be understood that the law of defamation is an action where the complainant alleges that the defendant has either spoken or written something which has harmed his reputation when seen from the eyes of the public.
Ideally, defamation is of two types which are Libel and Slander. Libel is an untrue defamatory statement that is made in writing while Slander is an untrue defamatory statement that is spoken orally. In both cases, the reputation of the person is tarnished. Further, the action of defamation can be taken in civil law as well as under criminal law. This depends on the country to country as some countries have laws where the offence of defamation is criminalized and as an alternate, the civil remedy is also available. Moreover, there are some countries where only civil action against the offence of defamation is available. Usually, the remedy in criminal defamation is imprisonment or any other punitive measure. On the aspect of remedy in the case of civil defamation, a complainant is at the liberty to seek general as well as special damages, depending on the case. This certainly shows that the law of defamation is not the same in each country and further does not have a common approach in all countries. Hence, it is required to see how major countries in the world are dealing with the law of defamation in their jurisdiction.
In the UK, the criminal law on defamation has now been out-ruled. The same was repealed in the year 2010 by the Coroners and Justice Act, 2009. Section 73 of the Act abolished the offences of sedition and seditious libel, defamatory libel, and obscene libel.1 This measure was taken in view of protecting the right to freedom of speech and expression and protecting the same from being suppressed.
On the aspect of civil defamation, the law has been amended and revised multiple times. Major reforms started with the Defamation Act of 1952, the Defamation Act of 19962 and recently the Defamation Act of 2013. At present, the Defamation Act of 1996 read with the Defamation Act of 2013 substantially covers the law of defamation in the UK. With the 2013 amendment,3 a dynamic thrust is given to this law wherein focus was laid on ensuring a balance between the right to freedom of expression and the protection of reputation.
One of the major reforms is that now the claimant or the complainant has to satisfy that due to defamation, they have caused “serious harm”. The term serious harm means that the publication of a defamatory statement has caused or is likely to cause serious harm to the reputation of the claimant. Further, serious harm in regard to companies would be considered when such statements would cause serious financial loss. Moreover, through this new 2013 law, new statutory defences of truth and honest opinion replaced the common law defences of justification and fair comment. The amendment also introduced a defence of “responsible publication on matters of public interest”. The Act also enlarged the scope and covered the action for defamation when it is brought against the operator of a website in respect of a statement posted on the website. Thus, the law has tried to bring reformatory measures that are in tune with the contemporary moral stands and promotes the fundamental rights of the people.
In India, defamation is recognized as a criminal offence as well as an offence under the law of tort. While dealing with the offence of criminal defamation, chapter XXI of the Indian Penal Code4 deals with the same. Under this chapter, there are four sections which are:
- Section 499- Defamation
- Section 500- Punishment for defamation
- Section 501- Printing or engraving matter known to be defamatory
- Section 502- Sale of printed or engraved substance containing defamatory matter
Under IPC, defamation has not been differentiated between libel and slander. So, if defamation has been caused either by words spoken or written, the case of defamation can be made. Under this law, even defamation against a deceased person can be prosecuted and action against the accused can be taken by the deceased person’s family or other near relatives. However, not every statement made can be said to be defaming and in regard to the same, ten exceptions have also been provided in the law itself. Thus, if a person comes under that scope, no action of defamation can lie against the accused. The punishment for defamation is simple imprisonment for up to two years, or fine, or with both.
While on the other hand, a case of civil defamation can also take place in India under the law of tort. There is no codified law to deal with civil defamation and hence, the aid of common law is taken. The complainant has to prove that a defamatory statement has been made by the defendant and that the right-thinking person or a person with a reasonable mind must understood that the defamatory statement has been referred to the plaintiff. Communication of such a statement is necessary to the public. Although, the law is uncodified, the defendant is however not remediless and enjoys the defence like defence of justification of truth, defence of fair comment, apology, etc. the Court can award general or special damages if the plaintiff is able to prove his case.
The United States of America
On the federal level, there is no criminal law in defamation and the only remedy is to find under civil law i.e. the law of tort. Nonetheless, some of the states in the USA have their own criminal law on defamation law. Therefore, the law on defamation in each state varies making it confusing as to what one may interpret from the terms libel and slander. Moreover, the First Amendment of the US Constitution that protects free speech makes it difficult for a case of defamation to stand. Nonetheless, the Supreme Court of the USA has through its judgments fortified the law on defamation in the USA.
In the case of New York Times v. Sullivan5 it was held that to bring the case of defamation and to seek monetary compensation, “actual malice” has to be proved. Actual malice means that the statement was made with knowledge of its falsity or with reckless disregard for whether it was true or false. This judgment was in respect to a public servant who was claiming the suit of defamation against the defendant. It was made as a safeguard in favour of the public under the light of the First Amendment. So, if a public servant has to bring a case against the accused, normal elements accompanied with “actual malice” has to be proved. The effect of this judgment was further made applicable to all public figures by Supreme Court in the case of Curtis Publishing Co. v. Butts6 This has now become a general principle where the onus is on the complainant to satisfy the actual malice before bringing the case of libel before the court. So mostly, the federal law on defamation has been strengthened on the tenets of civil law and by the judgments of the supreme court.
General view of countries around the world
Criminal defamation laws are very active in the region of Europe. At present, 23 of the European Union countries maintain the offence of criminal defamation.7 Out of these countries, Germany has record-breaking convictions for this particular offence. On the other hand, Columbia has now done away with the criminalization of defamation. Even the Supreme Court of Indonesia has held that criminal defamation law should be resorted to in cases involving the media only where remedies under the Press Law have failed to redress the harm. Further, countries like Cyprus, Sri Lanka, Georgia, New Zealand, Ukraine, Ghana, Bosnia- Herzegovina, Mexico, and Estonia have also removed the offence of criminal defamation.
Certainly, the law of defamation is required in society as one enjoys the right to reputation. The right to reputation is a recognized right and has been upheld as a fundamental right in some countries. Therefore, in the garb of exercising the right to freedom of expression and speech, it is impermissible to tarnish the image of any person. Nonetheless, excessive liberty without responsibility and control can sometimes become a tool of oppression. The right to freedom of expression and speech is also a recognized right and rather has much recognition in every international charter. A human being cannot be restricted to speak out the truth, or putting forward his fair comment or honest opinion just because there is a risk of someone’s image getting defamed. A reasonable balance has to be struck down between the right to freedom of expression and the right to reputation. Societies have now progressed by removing criminal liability for the offence of defamation, however, some countries have still considered the need to penalize the offence of defamation. Nonetheless, it is time that we may move towards greater resistance and tolerance, however, ensuring that no freedom is exercised in an absolute manner.