Aishwarya Rao

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Alumni Meet 2005
Aishwarya Rao
When Indian courts are still dealing with defamation in traditional media, a new form - web defamation (through Blogs) seems to have taken the blogworld by storm (despite the fact that traditional media has been extremely sluggish in carrying this war to the masses and is busy writing snippets on who committed suicide where).

The IIPM Vs Bloggers case prompted me to prepare my defense for blogger Gaurav Sabnis. Here is my case

Getting the Basics Right
The Indian Constitution guarantees freedom of speech to every citizen of the country. Article 19 of the Indian constitution states that all citizens have the right to freedom of speech and expression. This means that every citizen of the country is free to criticize anything from films, religion, politics, government, bureaucracy to even politicians. Free speech is also protected by Article 19 of the Universal Declaration of Human Rights.
(The legal cell of IIPM headed by Mr. A. Saxena, could have bothered to clarify this before threatening to sue Gaurav)

What can IIPM sue Gaurav for?
When Saxena says
This notice is with respect to your releasing totally false articles about IIPM on the website blogspot.com (reference blogger.com) that has your clear reference and that has been released by you with proven deliberate and fraudulent intentions to harm the image of IIPM and related businesses. The articles have caused unfathomable damage to the reputation of IIPM and to its various operational areas. The articles further have affected innumerable future operations of IIPM” , he is struggling to tell Gaurav that he might sue him for defamation and specifically for libel.

Before we proceed let us understand both the terms in question.
Defamation is an "attack" on the reputation of a person (Here a company or a corporation is also treated like a natural person). It is called libel if it is in writing and is known as slander if it is spoken (or any temporary form).
Section 499 of the Indian Penal Code defines Defamation as under – 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 specified cases, to defame the person.
It is not enough just to know the definition of defamation.It is imperative to know that under the Indian Constitution the law of defamation has been framed only to prevent a person from indulging in unnecessary or unwarranted or false criticism rising possibly out of malice or personal vendetta and thereby laying down standards of speech and writing.

This implies that Gaurav cannot be held for defamation because
1.He didn’t not falsely criticize IIPM. His opinions were based on facts contained in the article published by JAM Magazine. In blog defamation settlements abroad it has been held that if a blogger links to defamatory content, the blogger cannot be ordinarily held liable for defamation.2. He had no malice or personal vendetta against Arindam or IIPM

Secondly Gaurav if sued can be sued for libel.
Libel is
1.Publication of a false and defamatory statement tending to injure the reputation of another person without justification or excuse; -
Gaurav can’t be held for defamation under this clause since his first post itself is linked to the article in JAM Magazine
2.In some permanent form e.g. written, printed, pictures, statue, waxwork, effigy, caricature, signs or picture marks on walls;
Again this doesn’t explicitly include blogs, though this rule can be applicable.
3.Under (English) Law, is both a civil & criminal wrong;
4.Is by itself, an infringement of the right to reputation and no actual damage need be proved. I am assuming that the IIPM legal team noticed just this when they say ‘Even though the damage caused by your deliberate and fraudulent intentions cannot be calculated…’

Thirdly the Indian Penal code, in the clause specifying Defamation of a Company/Corporation contains that the defamation shall be
–Not actionable per se, if the statement in question refers to the personal character or reputation of its officers. That is Gaurav cannot be sued for comparing Arindam to Parnab Mukherjee.Now that the case has been clearly stated, let us see the three defences that Gaurav has.

Defences
Justification by truth
·The principle behind this defence is that the law will not permit a man to recover damages in respect of an injury for character, which either he does not, or ought not to possess

Fair and bonafide comment
·A fair and bona fide statement in matters of public interest (for example, pertaining to books, pictures, theaters, concerts, local authorities etc.) will not constitute a libel.
Since Gaurav has posted his blog in good intention in order to protect the future of several MBA aspirants, he shall be rightfully defended for making a fair statement in public interest.
·The term "fair" in this context means that it must be honest and relevant to the context but not tainted with malice
·The comment must be based on true facts, though they may be slightly exaggerated

Privilege
Qualified Privilege - which is available to a speaker for communication made in the course of legal/social/moral duty, for self—protection, for protection of common interest and for public good; reports of Parliamentary and judicial proceedings and proceedings at public meetings

Last word
I cannot express in those many words the disgust I feel for IIPM. With my arguments, I just want to reiterate that everyone has a right to disagree, oppose, vary in opinion and criticize an injustice. So dear Gaurav, of course IIPM can go ahead and sue you. But they 'll lose.
In case they file a suit,simply countersue them for costs and legal fees.