Journalist reporting official action not defamation, rules Kerala High Court

Justice C S Dias noted that the distinction between a “report of an official proceeding” and an “independent defamatory assertion” is crucial. “A journalist does not become criminally liable for defamation because the publication of an official action has caused reputational harm to a litigant. What the aforesaid Sections penalize is not truthful reporting as such, but a culpable defamatory imputation of the kind contemplated by the provision,” the judge added.

Justice CS Dias observed that distinction between a report of an official proceeding and an independent defamatory assertion was crucial.

The court was hearing a defamation case against the Chief Editor, Editor and Reporter of a Malayalam media house.

Dismissing the case, the August 5 ruling said, “I am satisfied that the complaint, even if its allegations are accepted in their entirety, does not disclose the essential ingredients of the aforementioned offences. The complaint neither attributes an independent defamatory imputation to the petitioners nor contains the necessary averments to establish the requisite mens rea (guilty mind). The publication was made based on the occurrence report, which led to the arrest of the second respondent.”

Section 499. Defamation – 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 excepted, to defame that person.

Background, arguments

The case stemmed from the arrest of a man in 2020 for allegedly unlawfully possessing Indian Made Foreign Liquor, which he claimed was only 2.5 litres, but the publication had “falsely” reported the quantity being 3 litres.

The order recorded the man’s submission as saying, “The official records disclosed only the seizure of 2.5 litres; hence, the news was false, which was published to defame the name and reputation of the second respondent owing to the previous animosity of the third petitioner towards him.”

Appearing for the media house and its editors, advocate Millu Dandapani, called the news article a “faithful and correct” report detailing the arrest of the man for the crime, rejecting the claim that it was “false news or a defamatory imputation”.

“The publication has merely reported an official action of the excise officials, and, therefore, cannot be a foundation for a criminal prosecution for defamation,” Dandapani argued. The man’s counsel, B K Gopalakrishnan, however, said that the allegations involved “disputed questions of fact” that were yet to be decided at trial.

He contended that his client was eventually acquitted of the crime but the petitioners, by publishing the article and along with his photograph, while projecting him as an offender, had “tarnished his reputation and name in the society”.

Finding, decision

The court held that if the law recognises that a substantially true report of a proceeding before a court does not constitute defamation, there was “still less justification for treating the mere reporting of the fact that a competent statutory authority registered a crime and arrested the accused, as a defamatory imputation” given that article substantially reflected the official record and was not “embellished by an independent or malicious imputation”.

“The distinction is material: the protection does not arise merely because the information originated from the police; it arises because the publication is a report of an official act, substantially founded on the record, and unaccompanied by the culpable mental element,” it added.

Crucially, the judge held that an “adverse publication, or one which causes embarrassment to the person concerned, does not by itself constitute criminal defamation”.

“The prosecution must disclose that the accused made or published a defamatory statement with the intention of harming the reputation or with the knowledge or reason to believe that such harm would result,” it said.

In the case at hand, the court found that there was no dispute over the man’s arrest in connection with the crime and the article was founded upon the occurrence report.

“Even assuming that some particulars in the news item differed from those contained in the official record, the complaint does not allege circumstances sufficient to establish that the petitioners have deliberately fabricated the report with the requisite intention or knowledge to defame the second respondent (man),” the order held.