Tuesday, November 8, 2011

Defamation and the Suits Filed by ITC against Suhel Seth

Defamation finds itself placed under Indian Penal Code, where it has been defined as such a publication (both oral and written) which is intended to harm the reputation of a person.[1]The recent suits filed by ITC against Suhel Seth, who once retained the advertisement work of ITC.[2]Two suits one in Kolkata and other in Bangalore, each begging for Rs 100 crore, have been filed in these cities. Interestingly, these suits refer to the comments made by Seth on twitter, and some of the comments can be read as[3]

"YC Deveshwar of ITC has had a sterling track-record of avoiding retirement at all costs...he could also be offered to the Maosits (sic) but then...."

"YC Deveshwar of ITC has just been nominated CHAIRMAN ETERNUS (sic)...forget Emeritus..." Seth has recently removed a few of his comments on Deveshwar from Twitter.”

'Yogi Devesh will teach the insider trading course at Tihar School of Business.”

Before concluding whether these comments can be considered as something which can impair the reputation of Y C Deveshwar, ITC Chairman and ITC itself, the important elements which ought to be satisfied for a defamation claim must be understood. Since it is a civil suit, conditions which are required to be satisfied in case of criminal defamation are not mandatorily being fulfilled, mens rea being one of them.[4]But again, a prima facie defamation should appear to the court.[5]

Article 19 of (1)(a) of the Constitution of India confers right on every citizen of India. At the same time, no right can be absolute and reasonable restrictions can be placed by the state, and so is with this right to freedom of speech and expression.[6]

Apparently, defamation can be categorised into libel and slander, where former requires the defamatory statement to subsist in permanent form, no such prerequisite is needed in the case of the latter. While slander is only a civil offence rather being a criminal offence in UK, no such distinction is present in India where both libel and slander are considered to be both criminal and civil offence. In the present case, statements made by Seth seem to be of permanent nature and can certainly be categorised as libel. Since, only civil suits have been filed by ITC, no requirement as regards criminal nature of defamation would be required to understand this situation. Before moving further, it is important here to know the imperative elements with regard to libel -

1. That the statement which is being made by the defendant (Seth in this case) is false. In the absence of the statement being false, plaintiff would not be able succeed in his claim.

2. It must be shown that the statement so published is static in form, and it can be both in writing and printing.

3. Thirdly, it must be shown that the statement so made is actually defamatory in nature. Now, what is defamatory is a matter of fact, and would depend on the facts and circumstances of each case. In general, the statement should either expose plaintiff to hatred, contempt, ridicule, or it should tend to harm his profession or trade, or it should cause him to be avoided by his society members, neighbours to be more specific.

It shall be noted here that even if plaintiff is not directly defamed by the statement, he can have a locus standi in case he has a reason to be believe that the statements are in fact directed against him and has caused injury to his reputation.[7]And further, if the statement is made against a company, then its directors can surely move a suit against defendant.[8]

In order to prove their case substantially, ITC has to satisfy all these conditions. Since the damages so demanded seem to be considerably high in nature, succeeding in getting such an amount seems difficult. One reason why usually higher monetary claims are made in the cases related to defamation can be attributed to the fact that in such a situation, plaintiff may be able to get proportionally lesser amount which would be at least more than what he could have received had he have claimed a lesser amount.

Also, whether the statements so made would actually harm the plaintiff shall also be taken into account in these cases, and whether it would harm ITC by any means whatsoever would again be a matter of fact.

Some other recent cases as regards defamation include the recent trail against Medha Patkar, and also the case against Carvan Magazine and Siddhartha Deb by IIPM.

[1] Section 499, Indian Penal Code, 1860

[3] Ibid

[4] S. Khushboo v. Kanniammal, (2010) 5 SCC 600 at page 616

[5] Ibid

[6] Article 19(2), Constitution of India, 1950

[7] John Thomas v. K. Jagadeesan (Dr), (2001) 6 SCC 30 at page 35

[8] Ibid

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