The Law Commission of India recently called for comments on its Consultation Paper on Media Law. Amnesty International India made a submission focusing on key issues concerning the right to free speech and expression. Specifically, the submission analyses existing Indian laws relating to defamation, and provides recommendations on how to bring these laws in line with international law and standards on freedom of expression. Excerpts:
Criminal defamation laws in India are open to misuse, and are in practice deployed to harass and intimidate journalists, critics of large businesses, and human rights defenders. Criminal trials tend to take years to be completed, and prolonged pre-trial detention of suspects is common. Compensation for wrongful arrests is rarely awarded. The threat of being arrested, held in pre-trial detention, and subjected to tortuous criminal trials create a situation where “the process is the punishment”. As one of India’s largest newspapers put it, “Filing a criminal defamation charge costs nothing, and are often used as intimidatory tactics against the media.”
Courts in India have taken note of the “growing tendency in business circles to convert purely civil disputes into criminal cases”. Journalist groups have called for the repeal of criminal defamation laws, and politicians have sporadically agreed that reform is necessary, but the laws remain on the books.
The International Covenant on Civil and Political Rights (ICCPR), to which India is a state party, requires states to guarantee to everyone the right to freedom of expression. States are permitted to impose restrictions – including those seeking to respect the rights and reputations of others. However, such restrictions are nevertheless an interference with freedom of expression and so must serve a legitimate aim, be proportionate to that aim and be the least restrictive available option. They should be drafted in a narrow manner, provide legal clarity, and be construed strictly to ensure that they do not directly violate or have a chilling effect on freedom of expression.
There is growing international consensus that the criminalization of defamation is an unnecessary restriction on freedom of expression, and imprisonment for defamation a disproportionate sanction. The UN Human Rights Committee (HRC), the expert body which monitors state compliance with the ICCPR, has urged states to consider decriminalizing defamation because “the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.” The Committee, in interpreting Article 19 of the ICCPR, states that “defamation laws must be crafted with care to ensure that they comply with paragraph 3, and that they do not serve, in practice, to stifle freedom of expression.”
The Committee also warns against subjecting persons to prolonged criminal prosecution. In its jurisprudence, the Committee has found that keeping defamation cases open for long periods of time and not proceeding to trial expeditiously can have a chilling effect on freedom of expression. Restrictions on freedom of expression must not be overbroad, and must be the least intrusive instrument possible to achieve their protective function. The Committee has stated that the ICCPR places a high value on public debate in a democratic society concerning figures in the public and political domain. It has specifically recommended reform of criminal defamation laws in a number of countries, including recently the Philippines, Italy, Russia and Mexico.
The UN Special Rapporteur on freedom of expression – an independent human rights expert – has also called on countries to abolish criminal defamation laws, on the grounds that civil defamation laws provide adequate protection. In 2013, the Special Rapporteur stated: “I strongly believe that defamation should be decriminalized completely and transformed from a criminal to a civil action, considering that any criminal lawsuit, even one which does not foresee a prison sentence, may have an intimidating effect on journalists. Furthermore, criminalising defamation limits the liberty in which freedom of expression can be exercised. I would also like to draw attention to the fact that if an economic penalty is applied through criminal law, it will most likely also be followed by civil economic reparation to the victim, thus imposing a double economic sanction.”
The Special Rapporteur has also recognized the chilling effect that criminal defamation laws have on freedom of expression, observing: “frivolous litigation, if misused can become a form of “judicial harassment” against the press or anyone exercising freedom of expression. Even if the claim is dismissed, the economic impact of the expenses incurred for defence can seriously limit the exercise of freedom of expression and can have a paralysing effect on the journalist or the media concerned, as well as on others engaged in investigative journalism.”
The UN Special Rapporteur, the OSCE (Organization for Security and Co-operation in Europe) Representative on Freedom of the Media and the OAS (Organization of American States) Special Rapporteur on Freedom of Expression have also jointly called for the repeal of criminal defamation laws. In 2002, they said in a joint statement: “Criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.”
Regional bodies including the Parliamentary Assembly of the OSCE and the Council of Europe Commissioner for Human Rights have also called for the decriminalization of defamation. The European Court of Human Rights has ruled that criminal sanctions for defamation have a chilling effect on journalistic freedom of expression.
India’s criminal defamation laws breach its obligations under international law. These sections are known to lead to violations of the right to freedom of expression, and their existence itself can have a chilling effect, inhibiting people from exercising their rights to free speech and expression for fear of criminal prosecution. Imprisonment for defamation can discourage legitimate criticism by the media of government and public figures, which is key to a democratic society. Given the existence of civil law remedies for defamation, criminalization is unnecessary for the protection of reputations.
Amnesty International India recommends the repeal of Sections 499 and 500 of the Indian Penal Code, and the decriminalization of defamation. If defamation is retained as a criminal offence, the law should not use imprisonment as a punishment for those convicted of defamation, in line with international standards on freedom of expression.
The Indian Penal Code should allow for the defence of truth in all circumstances without imposing any further requirement, and the defence of reasonable efforts to ascertain the truth in matters of statements relating to public interest. The onus of proof of all elements of the offence should be on the state. Civil Defamation Indian Law and Context Civil law for defamation is not codified in India.
The Supreme Court has ruled that public authorities (government bodies and institutions) cannot bring suits for defamation. It has also stated that public officials cannot recover damages for statements about acts related to their official duties.
Civil defamation lawsuits are routinely used by large businesses to harass and intimidate journalists, critics of large businesses, and human rights defenders. The increasing use of strategic civil defamation lawsuits – a practice referred to the in the United States as SLAPPs, or strategic lawsuits against public participation – may directly violate or have a chilling effect on freedom of expression. Defamation lawsuits claiming large sums of money as damages have been filed, or threatened to be filed, by heads of educational institutions against journalists, pesticide industries against environmental activists, and large media houses against student bloggers.
While courts have rarely awarded substantial damages, the financial, time and psychological costs of fighting a defamation claim can force defendants to settle matters out of court, even if they have lawfully exercised their freedom of speech. International Standards Civil defamation laws, like criminal defamation laws, can also improperly restrict freedom of expression.
The UN Human Rights Committee has stated in its authoritative interpretation of the right to freedom of expression under the ICCPR that defamation laws should “avoid excessively punitive measures and penalties”. The UN special rapporteur on freedom of opinion and expression has clarified that “sanctions for defamation should not be so large as to exert a chilling effect on freedom of opinion and expression and the right to seek, receive, and impart information…damage awards should be strictly proportionate to the actual harm caused.”
The Special Rapporteur stated in 2004 with regard to civil defamation: “Any fines that are levied should not prevent the continuation of press activities and investigations and should be appropriate to the financial resources of journalists…defamation cases could equally be solved without recourse to the judiciary, but through the good offices of a mediator.”
The Special Rapporteur, in a joint statement with the OSCE Representative on Freedom of the Media and the Council of Europe Commissioner for Human Rights observed in 2000 that “civil sanctions for defamation should not be so large as to exert a chilling effect on freedom of expression and should be designed to restore the reputation harmed, not to compensate the plaintiff or to punish the defendant; in particular, pecuniary awards should be strictly proportionate to the actual harm caused and the law should prioritize the use of a range of nonpecuniary remedies.”
In another joint statement in June 2014, the experts stated that “the law should allow for corrections and apologies as remedies. In case civil sanctions are necessary, they have to be proportionate. Excessive and disproportionate damages awarded in civil defamation cases can exert heavy pressure on the offender, whose economic survival can be threatened in some cases.”
Amnesty International India recommends that the law on civil defamation be codified. The law should allow correction and apologies to be offered as remedies. Any damages awarded should be proportionate and designed only to restore the reputation harmed, not to punish defendants.