• Mr. Mir Adil Rashid

Tort of 'Defamation'

Updated: Apr 1, 2021

Introduction

Every man has a right to have his reputation preserved inviolately. This right of reputation is acknowledged as an inherent personal right of every person as part of the right of personal security. It is a jus in rem, a right good against the entire world. Thus, defamation is an injury to the reputation of a person. If a person injures the reputation of another person, he does so at his own risk, as in the case of an interference with the property. A man’s reputation is his property and if possible, more valuable, than other property. The existing law relating to defamation is a reasonable restriction on the fundamental right of freedom of speech and expression conferred by Article 19(1)(a) of the Indian Constitution and is saved by clause (2) of Article 19.


A defamatory statement is a statement calculated to expose a person to hatred, contempt or ridicule, or to injure him in his trade, business, profession, calling or office, or to cause him to be shunned or avoided in society. To be defamatory, a statement need only have the tendency to affect a person's reputation; it need not actually lower it. Mere insult or abuse do not by itself constitute defamation, although it may be offensive to a man's dignity, unless and until it is proved to have lowered his reputation in the estimation of others.


Types of Defamation

The wrong of defamation may be committed either by way of writing, or its equivalent or by way of speech. Therefore, the wrong of defamation can be committed in two ways, namely, i) libel, & ii) Slander.


  • Libel- Libel refers to the making of false and malicious statements about a person in some type of print or writing. This can include false and malicious statements made in writing, printed on signs, or published on a public forum. Publishing defamatory statements or pictures through the media is also considered libel.

  • Slander- A slander is a false and defamatory statement by spoken words or gestures tending to injure the reputation of another. It is the publication of a defamatory statement in a transient form. Example- Anything spoken by words or gestures, intending to injure the reputation of another person.

Position in English law relating to libel and slander- English law makes a clear distinction between libel and slander. Libel is a representation made in some permanent form, e.g. writing, printing, picture, effigy, or statute, while slander is a defamatory statement in transient form. English law, the distinction between libel and slander is material for two reasons:

  1. Under criminal law, only libel is a crime. Slander is no offence.

  2. Under the law of tort, slander is a civil wrong and actionable, provided that there should be some proof of special damage. Libel is actionable per se.

Position in Indian Law relating to Libel and slander- Unlike English Criminal Law, Indian criminal law doesn’t make a difference between libel and slander. Both are criminal offence under Section 499, IPC. Under civil law, both are considered as civil wrong but in case of slander some proof of special damage needs to be proved, which is further is the contradictory point in the Indian Law system.

In the case of Hirabai Jehangir v. Dinshaw Edulji and A.C. Narayana Sah v. Kannamma Bai, the Bombay and Madras High Courts respectively held that when there was imputation of unchastity to a woman by spoken words, the wrong was actionable without proof of special damage.


In D.P. Choudhary v. Manjulata, a false publication was made in a newspaper regarding to the character of a girl. It was made with utter irresponsibility. It was by the court that all the defamatory words are actionable per se and the girl was awarded damages by way of general damages.


Essentials

There are some essentials which need to be satisfied to make to suit for defamation which is as follows:

  • The statement must be defamatory: In “Salmond on the law of torts”, the following observations were made in regards to the defamatory statement:

“A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem”


Thus, the defamatory statement is one that tends to injure the reputation of the plaintiff. It could be made in different ways like writing, oral or printing etc. whether a statement is defamatory or not depends upon how the right-thinking members of society are likely to take it. The reasoning of a reasonable, prudent minded, fair-average intelligent person is to be applied. When the statement causes anyone to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem, it is defamatory. The essence of defamation is an injury to a person’s character or reputation.


In Ram Jethmalani v. Subramaniam Swamy, while a commission of inquiry was examining the facts and circumstances relating to the assassination of late Shri Rajiv Gandhi, the defendant at the press conference, alleged that the then CM of Tamil Nadu had prior information that LTTE cadre would make an assassination bid on the life of Late Shri Rajiv Gandhi. The plaintiff was engaged as a senior counsel to present the then CM of Tamil Nadu. In the discharge of his professional duties, the plaintiff cross-examined the defendant. During the proceeding, the defendant in the written conclusive submission alleged that the plaintiff had been receiving money from LTTE, a banned organisation. The Statement made by the defendant was held to be ex-facie defamatory. The statement of the defendant was unconnected and irrelevant to the situation.


The case discussed earlier, D.P. Choudhary v. Manjulata, was case where a defamatory statement was made by the defendant which tends to injure the reputation of the plaintiff. Therefore, the defendant was held liable to pay damages to plaintiff.


But mere hasty expression spoken in anger, or vulgar abuse to which no hearer would attribute any set purpose to injure the character would not be actionable. In Venkata Surya v. Sita Ram, it was held no action for damages can lie for mere insult.


  • The Innuendo

In law, it means "an indirect hint." "Innuendo" is used in lawsuits for defamation (libel or slander), usually to show that the party suing was the person about whom the nasty statements were made. A statement may be prime facie defamatory and that is so when its natural and obvious meaning leads to that conclusion. Sometimes, the statement may prime facie to be innocent but because of some latent or secondary meaning, it may be considered to be defamatory. When natural and ordinary meaning is not defamatory but the plaintiff wants to bring an action for defamation, he must prove the latent or secondary meaning, i.e. the ‘Innuendo’, which makes the statement defamatory. For instance, the statement that A is like his father may be defamatory if it is likely to convey the impression that he is a ‘cheat’ like his father. When the words are considered to be defamatory by the person to whom the statement is published, there is defamation, even though the person making the statement believed it to be innocent. In Cassidy v. Daily Newspaper Ltd., it was held that once innuendo is proved, the innocence of the defendant is no defence. He is held liable if he has made the defamatory statement.


Is the intention necessary to prove?- In B.M. Thimmaiah v. T.M. Rukimini, it was held that the malice or evil intention of the author of the statement need not be established. It is no defence in a suit of defamation that the defendant was not intended to injure the reputation of the plaintiff.


  • The statement must be referred to the plaintiff: To justify the suit of defamation the plaintiff must show that the defamatory statement made by the defendant was referred to him particularly. Failing to do so, damages can’t be claimed. According to Lord Alverstone, C.J.,

“..if the libel speaks of a person by description without mentioning the name in order to establish a right of action, the plaintiff must prove to the satisfaction of a jury that the ordinary readers of the paper who knew him would have understood that it referred to him.”

The action for defamation is only maintainable by the person to whom it was referred. This can be better understood from the observation in John Thomas v. Dr. K. Jagadeesan, it was observed that if a defamatory statement is referred to a particular individual, only he can file a suit for defamation. His friends & family have no right to sue for the same.


Defamation to the class of a person: When a defamatory is made referring to a whole group or class, any individual from the group can’t take any action against the defamatory statement unless he can prove that in one or some other way, this statement referred to him. For example- “If a man writes all lawyers are liars”, any particular lawyer can’t bring any action against this statement.


In Kanupffer v. London Express Newspaper Ltd., the appellant was a member of a party, the membership of which was about 2,000 out of which 24 members including the plaintiff were in England. The Respondent published a statement of the party as a whole. Some of the plaintiff’s friends considered the article to be referring to him. It was held in this case that since the article was referred to such a big class, it could not reasonably be considered to be referring to the appellant and Respondent was held not liable.


In Dhirendra Nath Sen v. Rajat Kanti Bhadra, it was observed that when an editorial in a newspaper is defamatory of a spiritual head of a community, an individual of that community doesn’t have any right to the action.


  • The Statement must be Published: Publication means making the defamatory matter known to some person other than the person defamed, unless this is done, no civil action can be brought for defamation.

Sending a defamatory letter is no defamation but when there is a possibility that someone other than the plaintiff, is likely to read the letter, the same will constitute the wrong of defamation. For example- A Telegram post that is supposed to read by post office officials who transmit and receive it will give rise to an action for defamation. But when a telegram post is written in such writing or manner that it will not be understood by a third person, it will not result in defamation. If a letter is wrongfully read by a third person, which was meant for the plaintiff only, there will be no action for defamation lies.


In the case of Mahendra Ram v. Harnandan Prasad, the defendant sent a defamatory letter written in Urdu to the plaintiff. The plaintiff did not know Urdu and therefore the same was read over to him by a third person. It was held that the defendant was not liable unless it was proved that at the time of writing the letter in Urdu script, the defendant knew the Urdu script was not known to the plaintiff and it would necessitate reading of the letter by a third person.


Defences

There are three defences that are available to the defendant.

  • Justification/Truth

In civil law, truth is a valid defence for the action of defamation. In Mc Pherson v. Daniels, it was said that “the law will not permit a man to recover damages in respect of an injury to a character which he either doesn’t not or ought not to possess”. Here the intention of the defendant need not take into consideration. This defence is available even if the defendant act maliciously. A substantial truth with minor factual inaccuracy will not affect the availability of this defence.


In the case of Alexander v. North Eastern Ry, the plaintiff was sentenced to a fine of one Euro and 14 days’ imprisonment. The defendant published a notice stating that the plaintiff had been sentenced to a fine of One Euro or three weeks imprisonment. The court held the defendant not liable for the statement being substantially accurate.


  • Fair Comment

To make this defence available defendant must have proved the following essentials:

  1. It must be an expression of opinion rather than an assertion of fact: If a comment of the defendant is not a statement of fact but just an opinion, it will be a defense under the law against defamation. Whether a statement is a fact or opinion, depends on the language used or the context in which it is stated. For example- A says of a book published by Z- “Z’s book is foolish”. It just an opinion. But if A say, “I’m not surprised that Z’s book is foolish and indecent, for he is a weak man”. It will be a statement of fact. The defense can’t be claimed in this case.

  2. It must be fair, without malice: Comment must be fair and not based not invented or untrue facts. If the facts are substantially true and justify the comment of the facts which are truly stated, this defence can be taken even though some of the facts stated may not be proved. In R.K. Karanjia v. S. Viswanathan, it was seen that if in a newspaper, there is a publication of a statement of facts making serious allegations of dishonesty and fraud against the plaintiff, and the defendant is unable to prove the truth of such facts, the plea of fair comment, which is based upon those untrue facts, will also fail.

  3. It must be of public interest: Administration of Govt. department, public companies, public institution etc, are considered to be a matter of public interest.

  • Privileges

There are two kinds of privileges:

  1. Absolute Privilege- Absolute privileges refer to those privileges where it considers that an individual’s right to reputation should give way to the freedom of speech. This privilege will be available even when the statement is made with malice. Under Absolute privilege, no action can lie even though the statement is false and malicious. Article 105(2) of the Indian Constitution provides absolute privilege for all the parliamentarian proceeding. Such a privilege also extends to State legislatures under Article 194(2). Also, judicial proceedings do have this privilege. Judges, counsels, witnesses, or parties to the case are exempted from any action for defamation. Further, a statement made by one officer of the state to another in the course of official duty is absolutely privileged for reasons of public policy.

  2. Qualified Privilege- this privilege will be available only when the statement is made without malice. Further, there must be an occasion for making the statement. To avail this defense, the following two points need to be satisfied:

  • The statement was made on a privileged occasion, i.e. it was in discharge of duty or protection of interest; or it is a fair report of parliamentary, judicial or other public proceedings. In India, the Parliament Proceeding Act, 1977 grants qualified privilege to the publication of reports of parliamentary proceedings. To claim Qualified privilege in respect of parliament proceedings, the publication should be without malice and for the public good

  • The statement must be made without malice. The presence of malice will destroy this defense.


The author is pursuing BA.LLB at School of Legal Studies, Central University of Kashmir.

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