QUESTION:

It seems that nowadays our public sphere is hectically malicious with hate speech, false accusations and contemptuous behaviour. Do we have any way out?

Joy Palathara

ANSWER: Saji Mathew Kanayankal CST

I was stunned to see a news that appeared last week, after the death of Mr Oommen Chandy, the former Chief Minister of Kerala. Mr N. Madhavan Kutty, the ex-consulting editor of Deshabimani, told that he was ashamed of his silence on the fabricated defamatory news created against Mr Chandy when he was the Chief Minister. He mentions the infamous sexual harassment case against Mr Chandy, which became a boomerang to the UDF in the Kerala Assembly elections both in 2016 and 2021. More than a political agenda, the name of Mr Chandy was tarnished and through the political ploy he became a culprit for a good number of people in Kerala. Later on, the CBI has given a clean chit to Mr Chandy and after his death, there were many confessions of his innocence and the play and ploy of his opponents and the tricky silence of some of them like Mr Madhavan Kutty. This incident and many other similar events prompt us to think about the purity of talk and actions in our public sphere. Sometimes we may wonder why these accused do not go to claim their innocence and bring the opponents under the act of defamation.

Defamation in the Public Sphere
The discussions on the act of defamation inevitably invite our attention to a clash between two important values: freedom of speech and freedom from defamation. Freedom of speech is one of the important rights in modern democracy and the Constitution of India grants to all its citizens the right to freedom of speech and expression (Article 19,1). The philosophy behind it lies in the Preamble of the Constitution that secures liberty of thought and expression to all its citizens. It includes the right to express one’s opinions and views through any medium, like words of mouth, writing, printing, picture, film, movie etc. It is also related to the right to information and the right to criticise. However, this freedom of expression is not an absolute right and a person has every right to be protected from defamation.
Defamation refers to the act of making false and damaging statements about a person, especially a public figure like a political or religious leader to harm their reputation or credibility. Defamation is of two types. First, slander, which is spoken, that occurs when a false and damaging statement is made about someone with the intention to harm their reputation. It includes rumours, false accusations, or derogatory remarks made in public. Second is libel, which is defamation in any form of writing that involves the publication of a false and damaging statement about someone that harms their reputation. This can include articles, social media posts, or even images that portray someone in a negative light. Both these forms legally refer to false statements to harm the reputation of the person being defamed. Even the circulation of such false statements can be punished as per the Indian Penel Code with imprisonment for up to two years and a fine or with both (no 1860). Apart from the above punishments, some civil remedies also can be sought.
Defamation is an act against any human person that violates many of their fundamental rights such as the right to reputation, freedom of expression, and the right to privacy, most of which are mentioned in Article 21 of the Constitution of India. The well-hoaxed defamatory statements or writings damage the reputation of the person and their good name, which will eventually affect their other rights as the right to work, the right to a fair trial, and the right to participate in public work. For example, in the case of Mr Oommen Chandy, the whole political scenario of the Kerala Assembly election of 2016 and its priorities were formulated based on the said accusations.

Political Uprightness
In India, political discourses at least partially are exempted from the crime of defamation. The members of the Parliament are protected by the parliamentary privilege, which allows them to speak in parliament without the fear of being sued for defamation. This privilege and many other protections to the MPs are granted hoping that they would be responsible and will raise an accusation only in good faith. Similarly, the country also grants certain privileges to political statements, hoping that the democracy will be matured through scrutinising public figures through meaningful and authentic political discourses. Here any political statement made in good faith about the public servant in the discharge of their public functions is not considered defamatory and modern democracy does not prefer to treat defamation as a criminal offence thinking that an overemphasis on it may weaken the democratic process. Democracy can thrive through the care and guidance of public opinion especially through the freedom of the press par excellence. The Supreme Court of India says that “Freedom of Speech and of the Press lay at the foundation of all democratic organizations, for without free political discussion, no public education, so essential for the proper functioning of the process of Government, is possible.”
In the high ideal of democracy, as far as a person is in the public sphere, they have to face courageously all criticisms against them even if they are defamatory. In most cases, the accusations can be mere bluff statements without any proof. In this context, the credibility of a person and the voice of conscience are very important factors. In a healthy democracy, one should not make baseless accusations against the opponent without clear evidence. The most damaging challenge of today in our country is the growing political dishonesty that spread enmity and hostility to the opponents. Most of the arguments in the public sphere are baseless rhetoric with arrogance and hatred. The over-criminalisation of politics, corruption and hate speeches wherein the media also play their role in favour of their favourite leader or political party have a wide impact on the behaviour and lifestyle of the public. After the recent confessions on the innocence of Mr Chandy and the false accusations against him, at least some of the media persons were defending the role of the media in their reckless attack against him saying that they were reporting only what they have received from some sources. However, can the media wash their hands just by telling us that they have reported only what they have received? Don’t they have the responsibility to ensure the truthfulness of the report they publish? How far can they join with the fake accusations under the banner of investigative journalism?

Ethical Struggles of the Fourth Estate
In the present era of populist regimes, the media too is influenced by the temptation of liberal populism. In a competing world, to increase the number of its viewers, the media is tempted to amuse mass audiences than to bring truth and facts. The creation of misinformation or fake news and their circulation are the modern techniques of both politics and media. It is done through social media with attractive or sometimes abusive, hateful and insulting words or visuals with certain calculated agenda that prevents rational conversation or arguments. Instead of facts and reality, it may give more importance to sensational narrations and descriptions to attract its viewers. In unethical campaigning, fuelled by emotive arguments rather than fact-checks, with gut instincts, disinformation and misinformation, one may receive many fabricated stories which may not have any basis in fact, but have mass appeal which can be published under the guise of having a legitimate look and feel. Most often such sensational news can attract wider circulation and viewers and the rating also will be high. The matters circulated through such disinformation are not necessarily fake, but contain biased or incomplete views of events to have a persuasive effect on the reader. It is a well-calculated, algorithmic or organized move to confuse and cheat everybody else by floating conspiracy theories, wherein the line between fact and fiction has been blurred critically. Here, truth, freedom, dignity and fairness are highly challenged and flouted. Such kind of malicious journalism is described as the ‘plague of our time.’
We have many incidents, especially in Western countries that the newspapers or magazines have been asked to pay the plaintiff a fixed amount of compensation for tarnishing their name and reputation. In most cases, it has been done after a lengthy scrutinizing and systematic legal process, because statements of opinion or those which do not contain objectively verifiable facts are not actionable. The Supreme Court of India comments, “However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” In determining whether a statement reasonably could be understood as fact or opinion, a court must “examine the statement in its totality in the context in which it was uttered or published,” and “must consider all the words used, not merely a particular phrase or sentence.” Factors to be considered include “the specific language used”; “whether the statement is verifiable”; “the general context of the statement”; and “the broader context in which the statement appeared”; as well as any “cautionary terms used by the person publishing the statement.” All these processes take a long time and their analysis, scrutinizing and verification are herculean tasks. Moreover, it is the duty of the plaintiff to prove “clearly and convincingly” that the alleged defamatory statement was made with ‘actual malice’ that is, with knowledge that it was false or with reckless disregard of whether it was false or not. As a result, ‘the lie may travel halfway around the world before the truth can get its boots on.’ In majority events, the victims of defamation may not get proper legal remedy for damage to their reputation and their reputational harm can be very high.
It is high time to bring back honesty and truthfulness into our public sphere, especially in our political discourses for a healthy democracy. It is true that in a democratic country, the failures of the individuals and political parties and their policies are to be criticised and scrutinised. But biased allegations and unethical and baseless accusations harm the country and its people. While making any accusation, even if legal evidence is lacking, one should have the moral certainty to bring it in the day light.