defamation
source: http://youngarenalitigators.blogspot.com/2017/08/defamation-in-india.html

A man’s reputation is property more valuable than other property. Every man has the right to protection of his reputation. Injury to one’s reputation has been termed as defamation.

Definition of Defamation

According to Dr Winfield, “Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or, which tends to make them shun or  avoid that person.”

The literal meaning of defamation is an injury to the reputation of a person. Thus, when a person makes any definite restatement containing some imputation in respect of another person which comes in the knowledge of others and which has the effect of lowering down or injuring the reputation of that person it is called defamation.

The easy words when the statement of such a nature is published by a person in respect of another person which causes injury to such a person in the eyes of others will be the definition of that person.

Under Indian law-

It is well-established fact that under Indian law in respect of defamation no distinction between slander and libel is made.

Our law recognizes that it is only the mode of making defamation and not the substantive basis of starting an action.

This under our law the defamation made by the oral statement has the same effect and intensity as it is held by the defamation made by a written statement.

Under Indian law, the definition is recognized as a tort, as an offence also.

Section 499 I.P.C. declares the defamation as a punishable offence.

A person who is a victim by defamation is entitled to start the action either under criminal law or under civil law or both simultaneously.

Essential condition:-

1) The statement must be defamatory.

2) Such a statement must be about the plaintiff.

3) There must be a publication of such a statement.

  1. Defamatory statement

The tort of defamation arises by definite restatement therefore there must be the use of the defamatory statement. The statement will be defamatory if it is capable to change the opinion of others, which of the person to whom such statement is referred. If the statement is capable to lower down the image or reputation of a person, in the eyes of another person or persons, it will be a defamatory statement.

Such a statement may be made orally or in writing or it may be printed or in the form of pictures, statutes, gestures, or by some conduct. Such a statement may be defamatory in its simple form, defamatory by meaning.

Tomorrow   A statement is regarded defamatory by meaning when the language of the statement is simple, plain, innocent its meaning is defamatory. Such statements are known as INNVENDO.

Capital and Countries Bank versus Henry and Sons

In Capital and Countries Bank versus Henry and Sons, the question relating to defamation by meaning was raised. In this case, Henry and Sons give notice that they will not receive payment by cheque drawn by the above stated Bank. The bank taking this notice as defamatory and started action giving the argument that the people believe that Bank became insolvent. In this case, the court held that words did not convey the supposed imputation therefore it is not a tort of defamation.

Tally versus J.S.F.R.Y and Sons Limited

Tally versus J.S.F.R.Y and Sons Limited is a very good illustration of defamation. Here a  golf champion brought a suit against a chocolate company. The chocolate company published a caricature of Mr Tolly in which he was giving a sound drive to shot and the chocolates were glimpsing out of his pocket.

Mr Tolly is that this tiny creature is definitely for him because it gives a message to the people that he has taken money for the advertisement of chocolate and he plays for money. The appellate court held that it is the tort of defamation.

  1. The requirement of intention:-

It is a noticeable point that intention is not required to constitute the tort of defamation. It means to hold a statement to be defamatory, such a statement doesn’t need to be made to cause defamation.

If this statement is defamatory it will constitute defamation whether made with the intention of defamation or not.

Thus the defamatory statement made by a person is defamation, it was made innocently. This view has been recognized by the court of appeal in Casidy Vs Daily Mirror Newspaper Limited.

  1. The statement must refer to the plaintiff

To be successful in an action for defamation, the plaintiff is to prove that the defamatory statement was referred to him. If the plaintiff fails in establishing this condition or by the circumstances, it appears that statement was not used about the plaintiff there shall be no defamation.

New Street Vs London Express Newspaper Ltd. and Casidy Vs Daily Mirror Newspaper Limited.

Where a defamatory statement is used for a class but not for a particular individual there may be. Which defamatory words are used to a class of person but not about any particular person? In this situation, the question arises whether a particular individual is belonging to that class is entitled to action for defamation or not?

It is noted the point that in this situation the defamatory words are not particularly referred or indicated in reference to a particular individual therefore generally a person is not entitled to bring an action for the tort of defamation. But if by the defamatory statement it appears that these were addressed to a particular group of persons, belonging to a  class, they will be entitled to start an action for defamation. For Example- If the defamatory statement is used alleging that all the advocates are dishonest, no individual advocate is entitled to start an action for the tort of defamation. But if the defamatory statement is that advocate who sits under a tree of banyan, the advocates who daily used to sit under the tree of banyan would be entitled to start an action for defamation.

  1. Defamation of a deceased person

The vegetable list that the formation of a deceased person cannot be committed. The reasoning behind this rule is that the personality of a person starts with his birth and lapses as soon as he dies. Thus defamation in respect of a deceased person does not arise. But if defamatory statement injures/ affects the family member of a deceased person then an action can be brought by them.

  1. Publication of defamatory statement

To constitute a tort of defamation, defamatory words must have been published. There shall be no tort of defamation unless there is a publication of the defamatory words. The publication of defamatory words is necessary because defamation is an injury to the reputation of a person and is an estimation of personality by others, therefore, no injury arises unless The defamatory words come in the knowledge of others. The word publication has very simple meaning about defamation that is the coming defamatory words in the knowledge of others.

When is there no defamation?

No defamation when a defamatory matter is known only to the plaintiff and defendant. If the defamatory words are used by the defendant within a room where only the plaintiff and defendant were present or a letter containing defamatory matter is addressed to plaintive, there shall be no defamation.

  1. By a letter

When the third person wrongfully read a letter. The letter is addressed to the plaintiff about which the defendant knew that it would be read by the plaintiff only but it has been wrongfully read by the third person they shall not be a tort of defamation because it is not a publication. The defendant shall not be liable for defamation in such a situation it was recognized by kings bench in case of Power Vs Gailston.

When there is a possibility that letter may be read by the third person. When the defendant was well known that definitely letter sent by him to the plaintiff is likely to be read by the third person and the letter is read by the third person it shall be a publication.

  1. In another language

The sending of defamatory content by a postcard or by a telegram may be of such nature, that when the defendant sends the defamatory letter to the plaintiff in a language without which he knows, that plaintiff is not having knowledge of that language and he will take help of another person in knowing the contents of the letter, it shall be publication.

  1. To blind person

The sending of a defamatory letter to a blind person is also a good illustration of this. Similarly, when the defamatory letter is sent by the defendant knowing that the letter would be read by his clerk or personal secretary, it will be a publication.

  1. Effective publication

When defamatory content used for a spouse to come into the knowledge of another spouse, it will be an effective publication. Thus about defamation, the husband and wife are regarded as Independent and separate and not the same and single.

Thekar Vs Richardson

The English court has also recognized this view in Thekar Vs Richardson.

  • Communication between husband and wife-

Section 122 of the Indian Evidence Act protects the communication made between husband and wife. Such communication cannot be given in evidence. Due to this factor, the question arises whether such communication can be the basis of action for defamation or not.

In J.J Punan Vs V.M.C Vergese, Pincode has considered this question. Here, the husband wrote a letter to his wife containing defamatory matter in respect to her father. His wife passes the letter to her father who initiated proceeding for defamation based on contents of that letter. The Supreme Court has held that if the letter passes into the hands of the third person, can be proved or presented based on the action for defamation.

  • Repetition of defamatory matter-

When the same defamatory matter is repeated by the defendant on different occasions, the question arises whether he will be liable for defamation for a time or for every time. It is noted the point that if the repetition of defamatory matter is made on different occasions it gives rise to a fresh cause of action every time. Thus every repetition gives birth to new defamation therefore, action for defamation can be brought.

Defences

There are certain differences based on which the defendant may avoid the liability of defamation.

1) Statement of truth-

When the defendant proves successfully that the statement used by him is true, a complete defence against an action for defamation. In Alexander North Eastern Railway, the English Court has also recognized this view it noted the point that the difference does not require that the statement should exactly be true but it requires that it should substantially be true.

Vs criminal law, the truthness of statement is not a defence by itself unless it was made for the public good.

2) Fair comment-

Fair comment on a matter of public interest is a good defence against in action for defamation.

  • It must be a comment, criticism, or an expression of opinion but not a statement or an assertion of fact.
  • Such comments must be fair.
  • These must be on a matter of public interest

When the above conditions are satisfied a comment becomes a fair comment. Therefore, it is regarded as a comment against the tort of defamation. It is a noted point that the comment and statement of a fact must not be regarded as the same. A distinction must be drawn between them.

The distinction between comment and statement is as follows-:

When a person expresses and interference with a conclusion in respect of a person based on his work, it will be an expression of opinion, therefore a comment.

But when a person expresses the intention by his statement about another person as he knows everything about him and based on that he is value what’s the work of that person it is an assertion or statement of fact.

Privileged statement-

There is some certain occasion when the law does not regard this statement to be defamatory. A person who makes a statement on this occasion is not made liable.

Such privilege may be of two types as following-:

  1. Absolute privilege
  2. Qualified privilege

Absolute Privilege

In case of absolute privilege, no tort of defamation arises even though the statement is false or it is made with malice.

The absolute privilege is available in the following cases.

  • parliamentary proceedings
  • judicial proceedings
  • state communications

Thus, when there is a publication of parliamentary proceedings, judicial proceedings, and state communication and such communication are under the authority or the provision of the law, there is no defamation.

Qualified Privilege

There are certain occasions and if the statement is made on such occasion without malice in over for public good, the statement is not defamation.

This occasion provides a qualified privilege that is conditional. These conditions are making a statement without malice or for the public good.

Restoration of qualified privilege is the publication of parliamentary proceedings, judicial proceedings or publication of proceedings of public meetings, etc. When the publication of any such proceeding is made without the authority of law house it will be a qualified privilege against the defamation if such is made without malice or for the public good.


Author:

anusha agarwal Anusha Agarwal


References

  • Law of Torts including Consumer Protection Laws and Compensation under Motor Vehicles Act‟ textbook by Dr N.V. Paranjape (publisher- Central Law Agency).
  • Law of Torts including Compensation under Motor Vehicles Act and Consumer Protection Laws‟ textbook by Dr R.K. Bangia (publisher- Allahabad Law Agency).
  • The Law of Torts‟ textbook by Ratanlal and Dhirajlal (updated 26th edition, publisher- LexisNexis).
  • Cases have been referred from SCC OnLine and Manupatra (Legal Databases).

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