Defamation is the act of intentionally injuring one’s character by false and malicious words in such a manner that it lowers or injures the reputation of that individual in the eyes of society or the community to which they belong. Traditionally defamation is of two varietals: libel and slander. Libel comprises of all those defamatory statements that are published and would include newspaper articles, books or even a tweet, slander on the other hand constitutes any and all defamatory statements that are spoken by an individual. While Indian laws subsume libel and slander under the umbrella term ‘defamation,’ it does provide for two kinds of defamation, civil and criminal defamation. The remedy for civil defamation, which is a tort, is by way of damages, while criminal defamation may be punished only through the payment of fines and/or imprisonment under the Indian Penal Code, 1860. We have, in a previous article, summarised the Indian position on the law of defamation.
With the proliferation of the internet, social media and smartphones, the age-old adage “everyone is a critic” has never rung truer than it does today. While Article 19 (1) (a) of the Constitution of India grants all citizens of India the freedom of speech and expression, this right is qualified by reasonable restrictions which carves out an exception for, amongst others, defamatory speech. Therefore, this guaranteed freedom of expression is correlated with a corresponding duty to only publish speech and exercise this right when does not impact the rights of others or infringe any applicable laws.
In the event that certain defamatory content is published, it is imperative to understand the rights related to the publication, and when action may be taken against the publisher in such a scenario, especially given the changing nature of speech, the widespread accessibility of public platforms through social media, and the democratisation of information and expression due to the internet. The Delhi High Court on November 7, 2013, in the matter of Khawar Butt vs. Asif Nazir Mir and Ors. (CS (OS) 290/2010), shed light on the issue above, especially in the context of a defamatory publication which was widely and generally available in the public domain for anyone to read. In the above matter, the Court endeavoured to answer the question of, “whether the leaving of the allegedly defamatory material on the internet or a Facebook page gives rise to a fresh cause of action every moment the said offending material is so left on the webpage, which can be viewed by others at any time, or whether the cause of action arises only when the offending material is first posted on the webpage/internet.”
To answer the question of law, the Hon’ble Court noted that there was no Indian case law on the subject, particularly in the context of internet publications, and therefore discussed in detail the position of law in foreign jurisdictions including the United Kingdom and the United States. The earlier law in the United Kingdom, for example, was based on the Multiple Publication Rule whereby every time a statement is made, published, or republished an individual, distinguishable, and actionable defamatory statement is created, leading to the formation of a new cause of action for every subsequent utterance. Following the Multiple Publication Rule, the limitation period for any suit arising from such defamatory statements would commence from the date of the last publication of such statement, being the last day on which it was accessed, permitting the affected individual to initiate proceedings years, or even decades, after the first publication of the statement. The Multiple Publication Rule has also been followed in other jurisdictions such as Australia and Canada. However, the United Kingdom, by way of the enactment of the Defamation Act, 2013, has statutorily overruled the common law Multiple Publication Rule that had been followed by its courts since 1849.
The Court then contrasted the Multiple Publication Rule with the Single Publication Rule, as contained in the Defamation Act, 2013 and the laws of the United States. According to the Single Publication Rule, the publication of any book, periodical or newspaper that contains any defamatory material will give rise to a single cause of action for defamation and the limitation period thereof shall commence from the date of the first publication of the defamatory material, regardless of whether or not copies of the same continue to circulate for years thereafter. Furthermore, American courts have gone so far as to apply the Single Publication Rule to website publications, employing this Rule to govern the modern and ever-changing ways we use to communicate in the information age.
In the Khawar Butt matter, the Delhi High Court found the Single Publication Rule, rather than the Multiple Publication Rule, to be more pragmatic and appropriate to follow. In its judgement, the Court found that: “It is the policy of the law of limitation to bar the remedy beyond the prescribed period. That legislative policy would stand defeated if the mere continued residing of the defamatory material or article on the website were to give a continuous cause of action to the plaintiff to sue for defamation/libel. Of course, if there is republication resorted to by the defendant-with a view to reach the different or larger section of the public in respect of the defamatory article or material, it would give rise to a fresh cause of action.” Therefore, the cause of action for a suit of defamation would arise at the time of the first publication of the defamatory material and may only be renewed or revived if and when the offending material is republished with the intent to garner a larger or different audience for the same.
Our right to freedom of speech and expression comes with certain caveats, one of which is an exception for publishing any libellous or slanderous statements. Thus, to quote another adage, with great power comes great responsibility. With the widespread, perpetual and pervasive availability of the internet, this power is more accessible today than ever before. However, the degree of responsibility and caution with which this power ought to be used has also never been more important. It is now clear that the cause of action for a suit of defamation will only arise at the time of the first publication (unless republished by the defendants), and will, under Entry 75 of the Schedule to the Limitation Act, 1963, continue for a period of one year from the date of publication in the case of libel. And while the internet certainly proves that indeed everyone can be a critic, perhaps, at the significant cost of infringing upon the rights of others or attracting the institution of certain action against them, not everyone should be.
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