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SSRN 4377870

The document critically analyzes the relationship between defamation and the right to privacy in India, emphasizing the significance of protecting personal information in the digital age. It discusses the legal framework surrounding defamation, including libel and slander, and the implications of cyber defamation as technology evolves. The paper aims to explore the current legal landscape, case laws, and the need for improved regulations to safeguard individual privacy and reputation.

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0% found this document useful (0 votes)
22 views11 pages

SSRN 4377870

The document critically analyzes the relationship between defamation and the right to privacy in India, emphasizing the significance of protecting personal information in the digital age. It discusses the legal framework surrounding defamation, including libel and slander, and the implications of cyber defamation as technology evolves. The paper aims to explore the current legal landscape, case laws, and the need for improved regulations to safeguard individual privacy and reputation.

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Priyanka Agarwal
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Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

DEFAMATION AND RIGHT TO PRIVACY - A CRITICAL


ANALYSIS

Ishika Busi, Symbiosis Law school, Hyderabad

ABSTRACT

Privacy is understood as a part of a person’s life which is personal to the


individual. And includes personal information like, an email address,
residence address, office address, marital status, employment details, et
cetera. The Right to Privacy was recognised on September 29th, 2018, by
the Supreme Court of India under Article 21 of Constitution of India in the
case of K.S. Puttaswamy vs. Union of India. In many cases this personal
information is given to various institutions like, school, offices, hospitals et
cetera. And while personal information must be kept keeping the safety
guidelines in mind there are times when there is a breach of the information,
and this breach can lead to defamation in certain cases. Defamation taking
place because of breach of privacy is a serious issue. And so, defamation is
treated as both civil and criminal wrong accordingly. As on date the
technology is being developed at a faster rate and such, breaches and
violation can take place even more easily in the present circumstances and
so, laws need to be in place to avoid the same. This paper shall look into the
defamation and right of privacy and the current position of the same in India.

Keywords: Privacy, defamation, breach, violation, technology

Electronic copy available at: https://ssrn.com/abstract=4377870


Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

INTRODUCTION

The word ‘defame’ means to cause an injury to reputation of a person. There are two kinds of
defamation namely a) libel and b) slander. Libel is a representation made in a permanent form
for example: writing, printing et cetera. Slander is a publication of defamatory statement in
temporary form for example: It may be spoken by words or gestures1.

The Constitution of India grants the citizens fundamental rights, amongst which article 21
grants the citizen ‘right to life’. The scope of article 21 has been expanded over the years, so
that the term life includes all aspects of life. In the landmark judgement K.S Puttaswamy and
others versus Union of India2 declared right to privacy as one of the fundamental rights under
the constitution of India. ‘Right to privacy’ according to Black law’s dictionary means the
“right to be let alone; the right to be free from any unwanted publicity and the right to live
without any unwarranted interference by the public in matters with which the public is not
necessarily concerned”. Same way a person’s opinion or choice is his right to freedom of
speech and expression under article 21 of the Indian constitution and so if someone tries to
hold the person responsible for his opinion or choice, is not only violating his freedom of
speech and expression but, also violating his right to privacy. Defamation being the ground for
restriction of person’s reputation is not only a criminal offence but, also violation of right to
privacy as it destroys a person’s dignity and violates their personal space. And so, defamation
is treated as both civil and criminal wrong accordingly.

The relationship between privacy and reputation must be protected at all costs, because if a
person’s reputation is destroyed then their privacy is endangered.

In today’s growing world technology, is one of the greatest developments and has been
evolving at a faster rate, but with the faster growing technology there have been ever growing
questions about privacy and security and protecting the reputation of a person. Loss of privacy
is one of the risks the mankind is facing as technology is progressing. There are laws in place
as such but, they are not enough. Countries are working towards making more laws to protect
the privacy of a person and in turn their reputation. The connection between defamation,
privacy and data protection is a next stage of development in the laws dealing with reputation
issues, as they are closely linked because an action related to privacy will be pursued when

1
Dr. R.K Bangia, Law of Torts, (25th Edition, 2020), Allahabad Law Agency, Faridabad.
2
K.S Puttaswamy and others versus Union of India, (2017) 10 SCC 1

Electronic copy available at: https://ssrn.com/abstract=4377870


Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

there is some form of claimed defamation against the person3.

This paper shall look into defamation and right to privacy. The laws in India and analyse the
case laws for better understanding of the reader. The paper will also compare the laws of India
with the international context and give an in depth understanding of the topic.

RESEARCH OBJECTIVE

The aim of the given paper is listed below,

1) To understand tort of ‘Defamation’ along with ‘Right to privacy’


2) Drawing a parallel between the two, to understand how the concepts are closely related
3) Understanding Right to privacy and defamation in the digital era
4) Analysing the concept of cyber defamation and linking it with privacy
5) Analysing and explaining the concept with case laws

RESEARCH QUESTIONS

The following questions will be addressed throughout the paper,


1) What is ‘Defamation’? What elements constitute Defamation?
2) What is ‘Right to Privacy’ in India? What elements constitute breach of Privacy?
3) What is the interrelation between ‘Privacy’ and ‘Defamation’? How does breach of
Privacy lead to Defamation?
4) What is cyber defamation and how is related with right to privacy?
5) What laws are present in India with reference to defamation and right to privacy?

CHAPTERIZATION

1) Defamation and its position in India: This chapter defines defamation and types
of defamation, the law in India on defamation an essential of the crime. It even
refers to cyber defamation as the technology is advancing and throws light on
the current situation.

2) Right to privacy: In this chapter the researcher defines what is right to privacy,

3
David Mangan, The Relationship between Defamation, Breach of privacy and other legal claims involving
offensive content on the internet, Law Commission of Ontario, 2017

Electronic copy available at: https://ssrn.com/abstract=4377870


Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

the current legal scenario India and analyses the concept with case laws for a
better understanding

3) Defamation and Right to Privacy: A parallel is drawn between the two concepts,
loopholes are pointed out in the current legal scenario and how can the same be
solved. The concept is interconnected with the help of case laws.

LITERATURE REVIEW

In this research paper the researcher begins with explaining the basic concept of
‘Defamation’ and ‘Right to Privacy’ and draws a connection between the two helping the
reader understand the concept closely and how it has evolved in the present scenario.
The Researcher has referred to books relating to Law of Torts written by authoritative
authors including Ratanlal and Dhirajlal4, and Dr. R.K Bangia5 who have elaborately
explained the concept of ‘Defamation’ and various other articles have helped the
researcher in drawing a connection between the two. Some of the articles have been
reviewed below.

In the article titled ‘Defamation, breach of privacy and other legal claims involving
offensive content on the internet’6 talks about how defamation and right to privacy are
interconnected, and how both of them can be violated at the same time, it defines
defamation and privacy, it defines the importance of reputation and how ruining a
person’s reputation could be harmful for them. It refers to tort of defamation in the
internet age and how, social media play an active role in it. It throws light on how the law
of defamation has evolved over the years. It also refers to the UK scenario of defamation
and privacy laws.

In the article titled the ‘Right to privacy’7 talks about the history of common law and how
various other laws like law of nuisance, assault, battery, right to life came into picture, it
refers to how human nature psychologically developed overtime and then came the need

4
Akshay Sapre, The Law of Torts, (28th Edition, 2019), Lexis Nexis, Noida
5
Dr. R.K Bangia, Law of Torts, (25th Edition, 2020), Allahabad Law Agency, Faridabad
6
David Mangan, The Relationship between Defamation, Breach of privacy and other legal claims involving
offensive content on the internet, Law Commission of Ontario, 2017.
7
Samuel D. Warren and Louis D. Brandeis, Right to Privacy, Vol 4 No.5, Harvard Law Review, 1890

Electronic copy available at: https://ssrn.com/abstract=4377870


Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

for legal provisions to protect the rights of another human. It refers to defamation as well
and how the repercussions of it and how other people surrounding the person react to it
and calls it the “weak side of human nature”. The author talks about how defamation
affects one’s privacy and the psychological affects it has on a person and so how
necessary it is to have a legislation in place for both to overcome the circumstances of
loss of reputation and privacy. He concludes it by saying how each man is responsible for
his own actions and must pay for them if incorrect otherwise.

In the article titled ‘Privacy and Freedom8’ where the reviewer has reviewed a book and
talks about how the author has divided the book into four major parts and (1) the function
of privacy in society; (2) a description of the advances in surveillance technology; (3) the
response of American society to the introduction of these new techniques; and (4) an
evaluation of the past and future role of American law in this area. He draws a connect
between society and individual and how an individual needs privacy in order to function
well in the society. He refers to how the electronic devices have become a threat to
privacy, he talks about the American courts adapting to new privacy laws and
understanding the needs of the individual. He presents data and statistics on how the
privacy has evolved overtime.

In the article titled ‘Defamation, a tort’9 talks about what makes defamation a tort defines
the essentials of defamation, and explains Section 499 of IPC (Indian Penal code) in
detail, it also talks about the remedies and exceptions of the defamation along with the
privileges and who are these privileges applicable to. The author also refers to case laws
for better understanding of torts and along with it discusses right to privacy and its
relevance with defamation and how they are interconnected. Also refers to the problems
faced in the digital age and concludes with suggestions to improve the situation.

DEFAMATION AND IT’S POSITION IN INDIA

The word ‘defame’ stands for causing an injury to another person’s reputation by stating false
facts, as a person’s reputation is known to be more than his property, if possible, more valuable

8
Alan. F. Westin reviewed by Osborne M. Reynolds, Privacy and Freedom, Vol 22, No.1, Administrative Law
Review, 1969
9
Aachal Gupta, Defamation a tort, SCC online

Electronic copy available at: https://ssrn.com/abstract=4377870


Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

than any other property10. There are two kinds of defamation a) libel and b) slander as divided
by English law.

Libel – “Is a representation made in some permanent form like printing, writing, picture,
effigy or statue”11.
Slander- “Publication of a defamatory statement in a transient form maybe spoken by
words or gestures12”

Under English law there has been certain difference between libel and slander where libel is
considered to be a crime and slander is not, but in India both libel and slander are criminal
offences under section 499 of Indian Penal Code (IPC) and for a person to be defamed certain
essentials must be qualified,

1) The statement made must be defamatory in nature as in it must lower the reputation of
person in the right-thinking members of the society which will make them avoid the
person.
2) The statement must refer to the plaintiff and the same should be understood by the right-
minded people of the society
3) The defamed statement made must be communicated to a third party other than the
plaintiff
4) In case of slander there must be proof of special damage in the serious classes of cases

All these essentials must be met for a statement to constitute a crime of defamation. The crime
of defamation not only takes place by printing or human gestures but with the changing times
and advancement in technology most of the human interaction happens on the internet as it is a
lot easier, and with an increase in convenience of communication there is also abuse of the
medium of communication as a lot of people post unnecessary and false comments about a
person which leads to damaging the reputation of a person and this is known as cyber
defamation.

Cyber defamation takes places when a electronic device is connected to the internet and is used

10
Dixon versus Holden, (1869) 7 Eq. 488
11
Dr. R.K Bangia, Law of Torts, (25th Edition, 2020), Allahabad Law Agency, Faridabad
12
Op Cit No. 5

Electronic copy available at: https://ssrn.com/abstract=4377870


Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

as a medium to defame a person.

For example: publishing or commenting a defamatory statement on social media.

In India Section 49913 of IPC and Section 46914 deals with cyber defamation. As we are
tremendously increasing our dependency on the internet and social media platforms there are
certain number of legal consequences that come into picture, for example section 66A of
Information Technology Act, 2000 had to be struck down by the Supreme court of India as the
section had defined punishment for ‘offensive’ content being shared and as this word was not
completely defined the government began to use it as a tool to supress the freedom of speech.

In reference to defamation the major is issue is in figuring out whether the person had actually
intended to harm the reputation of the third party or was he referring to someone else and in
certain articles or blogs the names are not even mentioned which makes it all the more
challenging to understand which person is being defamed.

India has a separate cyber crime cell where cyber issues can be reported as on date but their
efficacy is not up to the mark and needs to be improved as the crimes which take place in the
present environment are mainly virtual.

RIGHT TO PRIVACY IN INDIA

The term Right to privacy means “right to be let alone; the right to be free from any unwanted
publicity and the right to live without any unwarranted interference by the public in matters
with which the public is not necessarily concerned”. The Constitution of India under article
21 states that no person shall be deprived of his life or personal liberty except according to the
procedure established by law. Same way a person’s choice, freedom of speech, if interfered
with is known to be a violation of right to privacy.

Human beings have achieved great things like plastic, making motor vehicles, technology et
cetera but along with the positive effects there have been negative effects to it as well, which
we need to understand and proceed along with cautiously. For instance, the internet, it is a

13
“Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or
publishes any imputation concerning any person intending to harm, or knowing or having reason to believe
that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected,
to defame that person”
14
“Whoever commits forgery, [intending that the document or electronic record forged] shall harm the repu-
tation of any party, or knowing that it is likely to be used for that purpose, shall be punished with
imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.”

Electronic copy available at: https://ssrn.com/abstract=4377870


Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

free space and people can openly express themselves, voice their opinion but at the same it
invades the part of people’s life that they do not want even though there might be security
provisions there is still a way that can be broken into. The Right to privacy in India is a unique
mixture of common law, constitutional and customary law, which has developed overtime.

In the year 1954 in the case of M.P Sharma versus Satish Chandra15 the Supreme court held that
the constitution did not intend to subject the power of search and seizure to a fundamental right
of privacy, then in the case of Kharak Singh versus Uttar Pradesh16 it was held that right to
privacy is not guaranteed under the constitution of India after this in a similar case of Govind
versus State of Madhya Pradesh17 it was held that the restriction can only be used for public
safety and otherwise it would be unconstitutional, and after this there were numerous judgements
in the line of right to privacy where this topic was debated and argued upon. But a major change
came in year 2017 with the landmark judgement in K.S Puttaswamy versus Union of India18 also
known as the ‘Aadhar card case’ where right to privacy to every individual under constitution of
India was guaranteed.

Privacy is directed towards different spheres of life for every individual, it maybe religious,
social, gender related et cetera. In a diverse country like India the matter of privacy needs to eb
taken seriously as with growing technology, advancements in processing data the laws need to
be updated from time to time to meet these needs, as most the work and transactions take place
in the online form now.

Privacy is also a matter of psychological concern for an individual where it maybe related to their
reputation, safety et cetera. There must be a line between to what data can be available regarding
an individual and for what purpose is the data being used, as the government, companies, schools
and colleges take in personal data for various purposes and sometimes due to a breach from their
end the individual has to suffer.

DEFAMATION AND RIGHT TO PRIVACY

Technology being one of the greatest developments and the fastest evolving area there are
questions about protecting the security and privacy of a person. The tort of defamation and

15
M.P Sharma versus Satish Chandra, AIR 1954 SC 300
16
Kharak Singh versus Uttar Pradesh, AIR 1963 SC 1295
17
Govind versus State of Madhya Pradesh, AIR 1975 SC 1378
18
K.S Puttaswamy versus Union of India, AIR 2017 SC 4161

Electronic copy available at: https://ssrn.com/abstract=4377870


Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

right to privacy are linked as defamation destroys reputation of one person and invades the
personal space which in turn violates the fundamental rights and so, must be treated by law
accordingly. Although defamation may not always take place through internet-based form of
communication as the matter would have to be investigated further as to how the person could
make a specific claim and if the claim was made how did the person get access to the
information in the first place to make a false claim regarding a person. And so, there is an
overlap between the two areas.

Article 12 of United Nations Declaration of Human Rights states that (UNDHR) “No one shall
be subjected to arbitrary interference with his privacy, family, home or correspondence, nor
to attacks upon his honour and reputation. Everyone has the right to the protection of the law
against such interference or attacks19”

In the case of Subramanian Swamy versus Union of India20, the Supreme Court held that the
reputation of one person cannot be tormented at another persons of right to freedom of speech
the court held the fact that reputation and privacy of a person is an integral part of a person’s
life and the same should not be tampered with.

The relationship between privacy and reputation is correlated and so, if reputation is ruined
privacy cannot be protected, there are a lot or areas which needs to worked upon. For instance,
stealing a person’s personal identity, the public data which is made available to the state must
be protected and proper legislation in terms of character assassination which harms the
reputation of a person on social media must be taken care of.

The existing laws of defamation does not provide complete protection to a person’s privacy
there are certain essentials for a case of defamation to eb filed but against privacy it cannot be
as it does not fall under the category, though both the offences may take place simultaneously.
Violation of privacy of celebrities or people in power is very common ass new channels are
known to bring out the information on their private life which destroys their space and right
to privacy, and in certain cases the channels publish false information just for attention from
viewers which leads to loss of reputation for them.

And so, even though the two concepts are so closely linked together there are no proper legal
provisions which protects one’s privacy through the current defamation laws in India and in

19
Universal Declaration of Human Rights, § Article 12
20
Subramanian Swamy versus Union of India, [(2016) 7 SCC 221]

Electronic copy available at: https://ssrn.com/abstract=4377870


Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

the digital era we are exposed to these crimes taking place every now and then and so, the
legislation including both is the need of the hour.

CONCLUSION AND CRITICAL ANALYSIS

The given research paper has provided an in-depth understanding of the concept of
‘defamation’ and ‘Right to Privacy’.

The researcher has also drawn a parallel between the two concepts and analysed the same with
landmark judgements. And so, the researcher draws the following conclusion and analysis
from understanding of the same,

1) Defamation and Right to Privacy are closely linked.


2) There are laws in place for defamation in India.
3) The laws in relation to cyber defamation are not up to the mark and the cyber cell which
takes cyber complaints lacks power and efficacy to work smoothly.
4) The laws of Information technology Act 2000 and IPC relating to defamation can be read
together in case the case involves both the crimes simultaneously.
5) The laws need to be updated from time to time to catch up with the present digital era.

10

Electronic copy available at: https://ssrn.com/abstract=4377870


Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

REFERENCES

1. Books:

a) H. J. McCloskey, Privacy and Right to Privacy, Cambridge University Press, Volume 55,
1980.

b) Dr. R.K Bangia, Law of Torts, (25th Edition, 2020), Allahabad Law Agency, Faridabad

c) Akshay Sapre, The Law of Torts, (28th Edition, 2019), Lexis Nexis, Noida

2. Journals:

a) John Wade, Defamation and Right to Privacy, Vanderbilt Law Review, Volume 15, 1962.

b) Van Vechten Veeder, The History and Theory of the Law of Defamation, Columbia Law
Review, Volume 3, 1903.

c) Wright J Kelly, Defamation, Privacy and Public’s Right to know: A National Problem and
new approach, Texas Law Review, Volume 46, 1968.

d) Universal Declaration of Human Rights

e) Samuel D. Warren and Louis D. Brandeis, Right to Privacy, Vol 4 No.5, Harvard Law
Review, 1890

f) Alan. F. Westin reviewed by Osborne M. Reynolds, Privacy and Freedom, Vol 22, No.1,
Administrative Law Review, 1969

g) Aachal Gupta, Defamation a tort, SCC online

3. Research Paper:

a) David Mangan, The Relationship between Defamation, Breach of privacy and other legal
claims involving offensive content on the internet, Law Commission of Ontario, 2017.

11

Electronic copy available at: https://ssrn.com/abstract=4377870

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