Defamation — why the police will send you away, why truth alone will not save the speaker, and what a notice should actually demand

Why the police will send you away

Offences in Indian criminal law are divided into cognizable and non-cognizable. In a cognizable offence the police may register a first information report and investigate without the Magistrate’s permission. In a non-cognizable offence they may not.

Defamation is non-cognizable. It is also bailable, and it is compoundable — meaning it can be settled with the complainant’s consent. Three consequences follow, and together they explain almost every frustration people have with this area.

• There will be no FIR and no police investigation. The officer at the desk is not refusing to help; he has no power.
• Nobody is going to be arrested. A client who wants the other side picked up by evening is going to be disappointed, and it is better to say so on day one.
• You have to do the work. The complaint is yours to make, the evidence is yours to produce, and the witnesses are yours to bring.

The route is a complaint case. The person aggrieved files a complaint before the Magistrate having jurisdiction. The Magistrate examines the complainant on oath, may conduct or direct an inquiry, and then decides whether there is sufficient ground to proceed and to issue process to the accused. It is a real proceeding with a real threshold, and it is why the quality of what you put in front of the court at the start matters more here than in an ordinary criminal case.

What the law defines as defamation

Four explanations widen that considerably, and each of them decides real cases.

• The dead. An imputation concerning a deceased person may amount to defamation if it would harm the reputation of that person were he living, and is intended to be hurtful to the feelings of his family or other near relatives.
• Companies and groups. An imputation concerning a company or an association or collection of persons as such may amount to defamation.
• Irony and innuendo. An imputation expressed ironically, or by way of an alternative, may amount to defamation. Saying something by implication is still saying it.
• What “harm” means. No imputation is said to harm a person’s reputation unless it directly or indirectly lowers his moral or intellectual character, lowers him in respect of his caste or calling or credit, or causes it to be believed that his body is in a loathsome state or a state generally considered disgraceful.

That last explanation is the one that disposes of a great many complaints. Something can be untrue, annoying and unfair without lowering the person in the estimation of others in any of those ways. The test is not whether you are upset. It is whether your standing has been damaged.

The four things that have to be shown

Stripped to its elements, a defamation case requires four things, and a notice should address each of them explicitly because a vague notice is easy to ignore.

Publication is the element people misunderstand most often. A statement made only to you — an abusive message sent to you and nobody else — is not defamation, whatever else it may be. It has to reach a third party. Conversely, a message in a group of four people is published, and a private account with a small following is still publication.

Fact or opinion — where most cases are decided

Before anything else, we test what was said against a single question: is it an assertion of fact capable of being true or false, or is it an expression of opinion?

The line is not always clean, and two refinements matter. First, an opinion that carries an implied assertion of undisclosed fact can still be actionable — “in my opinion he is a fraudster” is not saved simply by the words “in my opinion”. Second, a statement can be defamatory by innuendo: apparently innocuous words that, to people who know the surrounding circumstances, convey a damaging meaning. Where that is your case, the notice has to spell out the innuendo, because it is not self-evident to a reader.

We say this to clients plainly: if what you are complaining about is a bad review that does not allege any specific false fact, a legal notice is unlikely to help you and may well hurt you. What helps is a considered public reply and, where the review breaches the platform’s own rules, the platform’s process.

The exceptions, and why truth alone is not enough

Section 356 is expressly subject to exceptions, and this is where Indian law departs sharply from what people assume from foreign television.

Read the condition. Truth is necessary but not sufficient. The publication must also serve the public good, and that is a question of fact for the court. A person who publishes a true but purely private matter, with no public interest in its disclosure and out of malice, is not protected by this exception in India — whereas in England truth alone would answer the claim.

That cuts both ways, and both are worth knowing.

• If you are complaining, a respondent who says “but it is true” has not finished his answer. He also has to show public good.
• If you are replying to a notice, do not rest on truth alone. Set out why the publication served the public good — consumer protection, warning others, accountability of a public servant — because that is half the defence.

The other exceptions cover, in substance: an opinion expressed in good faith about the conduct of a public servant in the discharge of his functions; an opinion in good faith about the conduct of any person touching a public question; a substantially true report of court proceedings; an opinion in good faith on the merits of a case decided by a court or on the conduct of those involved; an opinion in good faith on the merits of a performance which the author has submitted to the public judgment; censure passed in good faith by a person having lawful authority over another; an accusation preferred in good faith to a person having lawful authority over the accused; an imputation made in good faith for the protection of the interests of the person making it or of another or for the public good; and a caution conveyed in good faith for the good of the person to whom it is conveyed.

Notice how many of them turn on good faith, which the law treats as requiring due care and attention rather than mere honesty of belief. A person who published a serious allegation without checking anything is on weak ground even where he believed it.

Punishment, and what kind of offence it is

Three characteristics govern how such a case actually behaves.

• Non-cognizable — no FIR, no police investigation, complaint before a Magistrate.
• Bailable — the accused is entitled to bail as of right; nobody is going to jail at the start of this.
• Compoundable — the complainant may compound the offence, which is why so many of these matters end in an apology and a withdrawal rather than a trial.

That last feature is the one to hold on to when deciding what you want. Most people who come to us about defamation do not want a conviction. They want the statement taken down, corrected, and not repeated. The compoundable character of the offence is what makes a negotiated outcome normal rather than exceptional — and a well-drafted notice is the first move in that negotiation.

Is criminal defamation constitutional?

It is, and the question has been settled at the highest level.

In Subramanian Swamy v. Union of India, decided on 13 May 2016, the Supreme Court upheld the constitutional validity of the criminal defamation provisions then contained in the Penal Code. The Court reasoned that the right to reputation is an intrinsic part of the right to life and personal liberty under Article 21, that the right to free speech under Article 19(1)(a) is subject to reasonable restrictions under Article 19(2) which expressly include defamation, and that the criminal provisions were not disproportionate.

The Bharatiya Nyaya Sanhita carries that structure forward. The wording of Section 356, its explanations and its exceptions track the earlier provisions closely, and the case law built up around them continues to be relevant.

Who can sue, and criticism of public conduct

Two questions come up early in almost every consultation: can I bring this at all, and does it make a difference that the person complaining is well known?

The complaint belongs to the person defamed

As a general rule the proceeding is brought by the person aggrieved — the person whose reputation the imputation concerns. You cannot bring a complaint because a false statement was made about your friend, your employer or a public figure you admire. There are limited situations in which another person may move with the court’s permission, and the Sanhita expressly allows a complaint about a deceased person where the imputation would have harmed his reputation if living and is intended to be hurtful to the feelings of his family or near relatives. Outside those, the right to complain is personal.

A company can be defamed, because the explanations extend the section to an imputation concerning a company or an association as such. What a company cannot claim is hurt feelings; its case rests on damage to its trading reputation, its creditworthiness or the safety and quality of what it sells. That is why a false allegation that a product is adulterated is a different kind of case from a rude remark about the management.

Statements about a group

Where a statement is made about a class of people rather than an individual, the question is whether it points to identifiable individuals. The broader the class, the weaker the claim. An allegation against “all traders in this market” will rarely support an individual complaint. An allegation against “the four partners of this firm” is a different matter, because everyone who knows the firm knows which four people are meant. The practical test is whether an ordinary reader who knows the circumstances would understand the statement as being about you.

That test is also how a statement that never names you can still be actionable. A post describing “the documentation shop next to the sub-registrar office in this colony” identifies a business as surely as naming it, and the notice should say so explicitly rather than leaving the court to work it out.

Criticism of public conduct gets more latitude

The exceptions to Section 356 do not treat all speech alike, and two of them give noticeably more room to criticism of matters in the public sphere: an opinion expressed in good faith respecting the conduct of a public servant in the discharge of his public functions, and an opinion expressed in good faith respecting the conduct of any person touching any public question.

Three things follow, and they cut in both directions.

• Official conduct is more open to comment than private life. A criticism of how somebody discharged a public function stands on much stronger ground than an allegation about their household.
• It is opinion that is protected, not invented facts. The exceptions speak of an opinion expressed in good faith. Fabricating a fact about a public figure is not covered by either exception.
• “Good faith” means care, not just sincerity. Indian law treats good faith as requiring due care and attention. Somebody who published a serious allegation without checking anything cannot rely on having believed it.

For a business owner this has a practical edge. If your work involves a public function, a licence or a public contract, expect a wider latitude for criticism of that work, and pick your battles accordingly. Conversely, an allegation about your personal honesty or your family is not sheltered by these exceptions merely because you are locally well known.

What defamation gets confused with

A large share of what arrives described as defamation is something else, and the something else is frequently a more useful claim — sometimes a cognizable offence the police can actually act on. Working this out on day one changes the whole route.

The row worth dwelling on is the fourth. Where private images, recordings or sexual content are circulated, or where a fake account is used to impersonate somebody, the offences involved are of a different character and several are cognizable — which means the police can and should register a case and investigate. Treating such a matter as ordinary defamation and filing a complaint case is a serious misdirection that costs the victim months. If any part of what happened to you falls in that row, say so at the start.

The last row is the one we see most often in a documentation practice. An unpaid amount leads to a public accusation, the accusation leads to a defamation notice, and the original debt is never addressed. Resolving the money almost always resolves the speech, and it does so faster and cheaper than any notice.

The civil route — damages and injunction

Alongside the criminal provision sits the civil wrong of defamation, which is not codified in a statute but is well established. A suit may be brought for damages, and — usually more valuable — for an injunction restraining further publication.

For most clients the injunction is the point. Money awarded two years later does not restore a reputation; an order restraining continued publication, obtained early, can.

Three practical features of the civil route.

• Interim relief is where the action is. The application for an interim injunction is usually decided long before the suit, and it is decided on the material filed at the start. Which is another reason the evidence-preservation step below matters so much.
• Courts are cautious about prior restraint. An order stopping speech before it is found to be defamatory engages free expression directly, and courts approach it carefully, particularly where the defendant pleads truth and public interest.
• Damages in India are ordinarily modest. Very large figures make headlines when claimed; they rarely resemble what is awarded. A client who is in this for the money should hear that early.

Which route, and can you take both?

They are not mutually exclusive. Both may be pursued, and in a serious matter both often are, because they do different jobs. Whether that is proportionate depends on the harm, the resources and the appetite for a fight that will itself be public. We give that view before either is filed.

Online defamation, and the provision that no longer exists

Almost every defamation enquiry we now receive concerns something posted online. The substantive law is the same — Section 356 does not distinguish by medium — but three things change.

Reach and permanence. A remark at a gathering fades. A post is indexed, shared and archived. That affects both the harm and the urgency.

Anonymity. A significant proportion of online defamation comes from accounts that cannot be identified without the platform’s cooperation, which ordinarily requires a court order. This is a real practical barrier and it should be explained before a client spends money.

A provision that people still quote, wrongly.

Section 66A does not exist. It has not existed since 2015. The Supreme Court has since had occasion to note with concern that cases continued to be registered under it years afterwards, and to direct that the position be communicated to authorities. If a notice, a complaint or an adviser refers to Section 66A for an offensive online message, that reference is simply wrong, and a reply that points it out lands hard.

The same judgment read down the intermediary liability provision, holding that an intermediary is required to act upon receiving actual knowledge in the form of a court order or a government notification, rather than on any private complaint. That reading shapes the takedown route below.

Getting content taken down

There are three doors, and they should be tried in this order.

1. The person who posted it. A notice, or sometimes a calm message before one. A surprising proportion of online defamation comes down when the poster realises the person is real, has read it, and has kept a copy.
2. The platform’s grievance mechanism. The intermediary rules require intermediaries to publish the name and contact of a Grievance Officer and to acknowledge and dispose of complaints within prescribed timelines, with shorter timelines for certain categories of content. A grievance that quotes the platform’s own policy, identifies the exact content and explains why it breaches that policy is far more effective than one that recites the law.
3. A court order. The safe-harbour framework, as read by the Supreme Court, requires an intermediary to remove content on actual knowledge in the form of a court order or a government direction. Where the platform will not act, this is the route — and it is also the route to identifying an anonymous poster.

One realistic caution. Removal from one platform does not remove the content from the internet, and an aggressive removal campaign can itself become the story. Where the material has limited reach, the cost of amplifying it by fighting can exceed the cost of leaving it.

Preserving the evidence before it disappears

This is the step that costs nothing and is skipped most often, and it is irreversible once missed. Content comes down the moment a notice arrives, and a case built on a cropped screenshot is a weak case.

Store all of it in one folder with a note of when you captured it and who captured it. If the matter goes to court, questions about electronic evidence and how it was collected will arise, and a contemporaneous, orderly record is worth a great deal more than a phone gallery.

When a notice makes it worse

We turn down this work more often than we accept it, because a notice sent in the wrong case creates a problem larger than the one it was meant to solve. Five situations where we will say so.

• The statement is true and there is a public interest in it. A notice invites the First Exception in writing, and the reply will be a far more damaging document than the original post.
• It is opinion, not fact. A bad review, a low rating, a critical remark. A notice here reads as an attempt to silence criticism, and that is a story in itself.
• The audience was tiny. Forty people saw it. A notice that becomes public can introduce it to forty thousand. This is a real and well-documented pattern.
• The speaker wants the fight. Some accounts exist to provoke exactly this response, and a notice is the content they were hoping for.
• There is an unresolved dispute underneath. An unpaid dues claim, a disputed exit, a consumer complaint. Deal with the underlying matter and the speech often resolves itself; send a notice and you may get a counter-claim and a wider audience.

None of that means you should tolerate a serious false allegation. It means the decision to send a notice is a strategic one, taken with the facts in front of you, and not an automatic response to being upset. We give that assessment as part of the work rather than as an extra.

What the notice should contain

A defamation notice is a document a court may read later, so it should be written as though it will be. The structure we use:

• Who you are — and the standing and reputation that has been affected, stated factually.
• The statement, quoted exactly, with the date, the platform or occasion, and the URL or reference. Not paraphrased.
• Why it is false — specifically, allegation by allegation, not as a general denial.
• Publication — to whom it went, and the reach.
• The harm — the damage to reputation, and any concrete consequence you can point to.
• Where the innuendo lies, if the words are damaging only in context.
• The demands, numbered, with a deadline.
• What follows if it is not met — stated once, without threats about matters you do not intend to pursue.

Two habits of drafting matter more than eloquence. Be specific, because a notice that says “various false and defamatory statements” can be answered with “which?” and the exchange stalls. And do not overreach — a notice that threatens criminal prosecution, a damages claim in crores and a complaint to the employer, over a single comment, reads as pressure rather than as a legal position, and it hands the recipient a grievance of their own.

What to demand

Four demands, in this order of practical importance.

1. Immediate removal or cessation. The first and often the only thing that matters.
2. An apology or retraction, with equal prominence. A correction buried where nobody will see it is not a correction. Say where it must appear and for how long.
3. An undertaking not to repeat, extending to republishing elsewhere or through another account.
4. Compensation or costs, where the harm justifies it.

Put the money last, and in many cases leave it out. A notice whose principal demand is a large sum invites the response that this is a monetised grievance, and it makes the apology harder to obtain because conceding anything now looks like conceding the claim.

Serving it so that service can be proved

A notice that cannot be proved to have been delivered is worth much less, because its whole value lies in showing that the person was told.

• Registered post with acknowledgement due, to the last known address, and keep the receipt and the tracking record.
• Courier, with the proof of delivery retained.
• Email, to an address the person actually uses, retaining the sent record.
• Through the platform, where the person is only reachable online — a direct message, captured.
• To the intermediary as well, where you want the platform on notice too.

Where a notice is returned unclaimed or refused, keep the returned envelope unopened and on file. Refusal to accept is itself a fact a court can take into account, and the envelope is the proof of it.

If it is ignored

Silence is not a defeat. An unanswered notice is evidence that the person was told precisely what was false, was given an opportunity to correct it, and chose to do nothing. That is useful in a complaint before a Magistrate and useful in an application for an injunction.

What happens next is a decision, not an automatic escalation. The questions we work through with a client are: has the content remained up, and is it still being seen; has the harm continued or crystallised; is the person identifiable and reachable; is there a realistic prospect on the merits; and is the cost and publicity of proceeding proportionate to what is at stake?

Sometimes the answer is to proceed. Often the answer is that the notice achieved what it could, the matter has gone quiet, and the right thing is to keep the file and move on. We would rather say that than sell a case.

If you have received one

Half the work we do in this area is on the receiving side, and the reply is frequently the more valuable document.

• Do not ignore it, and do not reply the same day in anger. Both are common and both are expensive.
• Do not quietly delete everything. Preserve your own material — the research, the sources, the messages — because it is the foundation of your defence. Deleting after a notice looks like consciousness of fault.
• Work out what is actually alleged, statement by statement. Many notices complain about an overall impression rather than identifying a false assertion of fact, and that is a weakness worth naming.
• Assemble the basis for what you said. Documents, dates, sources, and anybody who can confirm it.
• Build the reply on the exceptions, not on defiance. Truth and public good; good faith; fair comment on a public question; a report of proceedings.
• Reply within the time given, and keep proof of service of your reply.

A measured reply that sets out the material basis for each statement, explains the public interest, and offers to correct anything genuinely inaccurate closes a large proportion of these matters. It also positions you well if it does not.

How long you have

Move quickly. The limitation period for a suit for compensation for defamation is short — measured in one year, running from when the words are spoken, or, where the words are written, from when the publication comes to the knowledge of the person defamed. Criminal complaints are governed by their own limitation rules, keyed to the punishment prescribed for the offence.

Two things follow. First, record the date you became aware of the publication, in writing, at the time — for written defamation the clock often runs from knowledge rather than publication, and being able to show when you learned of it can matter. Second, do not let a notice exchange consume the entire period. Set a deadline in the notice, and diarise the outside date independently of whatever the other side is doing.

Beyond the statute, delay is bad advocacy. A person whose reputation has genuinely been damaged usually acts. Waiting eleven months and then complaining of grave injury invites an obvious question.

Where these go wrong

Time and cost

Drafting starts at ₹3,999 and ordinarily takes 1 – 3 days. That covers the assessment as well as the document, because in this area the assessment is the part that protects you.

Where the matter proceeds to court, that is advocacy rather than documentation, and you will need a practising advocate to appear. Our directory is free to search and we do not charge for a referral. A short consultation before anything is drafted is often the cheapest money spent on the whole matter.

If the honest answer to the second or third question goes against you, the right advice is not to send the notice. We would rather tell you that on the first call than draft something that is used against you later.