Guru Nandan Singh
Nitin Agarwal NK
Online Defamation – What does law say?
Table of Contents
1.1 What is Defamation?
1.2 How about freedom of speech?
1.3 Online Defamation
Recourses to defamation in India
Can online defamation law be misused?
1.1 What is Defamation?
(Shakespear's Othello, Act-II, Scene III, pp.167)
A good name is worth more than good riches. Good name in man and woman, dear my Lord Is the immediate jewel of their souls; Who steals my purse, steals trash; its something nothing; T'was mine, t'is, and has been slave to thousands; But he that filches from me my good name, robs me of that which not enriches him And makes me poor indeed. 
As per www.wsj.com “Defamation is a legal wrong emerging from an act of injuring a person’s reputation and sullying their character without lawful justification or excuse.”
In history, the root of this misconduct is in the act of shouting. The Praetorian Edict circa 130 AD had made the act of cursive public pronouncement, through shouting, to be gravely punishable. The code had declared: "qui, advesus bonos mores convicium cui fecisse cuiusve opera factum esse dicitur, quo adversus bonos mores convicium Weret, in eum iudicium dabo." That is, shouting words and invectives contrary to public morals shall be punishable. 
Everyone has right to good reputation. Defamation is a false and unprivileged statement of fact that is harmful to someone's reputation or good name.
Defamation is of two kinds:
Slander – there is no permanency about slander because it is a spoken statement. It can also be a non verbal gesture or something similar. Example: “B tells C that A is a fraud. Because of this C refuses to do business with A and hence A suffers a monetary loss.” Libel – nature of libel is permanence of its language. That is, said things which amounted to defamation have been written, published or broadcasted etc. Example: “A patient (B) falsely writes in newspaper or gives a TV/Radio interview about her psychiatrist (A) blaming him of sexual harassment and malpractices. This demolishes the professional reputation of the doctor.” Law treats libel and slander differently. If A can prove that B libeled against him along with the intent (mens rea Latin for “guilty mind”), then court will presume that A has suffered damages and will award compensation based on loss of reputation. In slander A needs to prove that he has suffered damages (court will not presume) in order to get a compensation.
But in some special cases court may presume damages even in case of slander – e.g. if B accuses A of crime (unless reported to police), adultery or of having a contagious disease.
Reference  gives an example of libel suit (Ramjethmalani vs Subramanyam Swamy 2006) where compensation of Rs 5 Lakh was awarded to the plaintiff (Ramjethmalani engaged as senior counsel to Ms Jayalalitha).
1.2 Freedom of speech
Law protects individual’s reputation but it also needs to protect the freedom of speech of subjects. Law tries to bring a balance between such competing rights. In situations where someone (defamer) makes hurtful statements about another person (defamed) law provides following defenses to the defamer: Truth or justification - If A says B is a cheat and because of that B loses business. But if this statement is true (and can be proved so) then it is a valid defense for A. Absolute privilege - Statements made in parliament and statements made in trial courts as evidences can’t be used for suing a person for defamation. Qualified privilege - A goes to new employer B for an interview and has given reference of his previous employer C. B calls C and C tells him that A caused moral issues in the...
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