Anonymous
Asked January 11, 2017

Contributory negligence as a defence

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Can defence of contributory negligence be used in criminal complaint for defamation if the Complainant himself has incited the accused for imputation of the statement? If no, then please throw light on how incitement can be used as a defence.

Answer 1

Incitement is not a defence to defamation.

According to Section 499 of IPC, three elements have to be fulfilled before a defamation case can be filed-

1. Any defamatory statement has been circulated by a person with ill intention

2. This “circulation” is to be beyond the person who is being defamed and the person who is making up such stuff

3. Such “circulation” has led to loss of reputation for the victim

 

Defences to the charge of defamation:

1. Truth as a defence:

Note that under criminal law, truth is a defence only in a limited number of circumstances. Besides the statement or writing being demonstrably true, it also requires to be proved that the statement was made for public good.  No defamation suit will hold good against you if what you are saying/writing about this person is true, irrespective of your intention. However, truth cannot be considered as an absolute defence to the crime of defamation. Sec. 499 of IPC, sets out truth as a defence only in a particular context. Truth is a defence only when it is in the interest of public good. Whether an expression of truth is in the interest of public good will have to be argued on a case to case basis, as it is a question of fact.

2. Fair comment:

Exception of fair comment is allowed in case it is made clear that the publication clearly expresses an opinion. Expressing an opinion and sharing a personal experience, which is not intended to damage someone's reputation, is considered a valid defence. The second exception , under section 499, specifically states that- “expressing opinion” is not a case for defamation. Hence, the complainant will have to prove that it was done with an ill intent, and it was not just an "opinion". Similarly expression of an opinion in good faith regarding the merits of an individual’s performance thrown open to the public for a judgment is a fair defense for a person charged with libel. (Libel is a written defamation; slander is a spoken defamation.)

3. Privilege:

Absolute privilege irrespective of intention to defame is conferred upon Government officials, Judges and other such public officials in discharge of their public functions by the law.

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