• Defamation
• Specific Tort
• Tort of defamation protects reputation
• Definition - Defamation
Winfield:
“publication of statement which tends to lower a person in the estimation of right thinking members of society generally or which makes them shun or avoid that person”
• Right to reputation – if effected by means of words spoken or written is actionable as civil as well as criminal wrong
• Dixon v Holden 1869
• A man’s reputation is his property and if possible more valuable than any other property.
• Hence an injury to a person's reputation results in substantial damage and the law recognizes it as a tort and a crime.
• A defamatory matter may be of any imputation concerning any person, or any member of family, whether living or dead, by which the reputation of that person is likely to be injured.
• Defamation in common law
• The common law origins of defamation lie in the torts of slander (harmful statement in a transitory form, especially speech) and libel (harmful statement in a fixed medium, especially writing but also a picture, sign, or electronic broadcast), each of which gives a common law right of action.
• Libel
• A libel can be defined as a publication of false and defamatory statement in some permanent form tending to injure the reputation of another person without lawful justification or excuse.
• libel is actionable per se, i.e., without proof of actual damage.
• In libel, general damages are presumed i.e., the plaintiff does not have to show actual injury which includes compensation for disgrace, dishonor, humiliation, injury to reputation and emotional distress.
• Slander and libel
• Libel and slander both require publication.
• The fundamental distinction between libel and slander lies solely in the form in which the defamatory matter is published.
• If the offending material is published in some transient form, as by spoken words or sounds, sign language, gestures and the like, then this is slander.
• If it is published in more permanent form, for example in written words, film, compact disc (CD), DVD, blogging and the like, then it is considered libel."
• Internet and defamation law
• The debate whether Internet blogs or Bulletin Boards are publishers is a key subject being addressed, whereas an Internet based community is more akin to conversations in a bar or pub, with content being written as an ongoing dialog which is generally not edited or regulated such as in the publishing industry
• SMC Peneumatics India Pvt Ltd. v J katwara 2001 Delhi HC
• Law of Defamation in India
• There is no statutory Law of Defamation in India except in Chapter XXI of I.P.C (Section 499).
• The civil law on defamation is not codified. The courts apply the English precedents or the common law of England. The remedy for defamation in civil law is an award for damages or compensation to the party whose reputation is injured.
• However, the general rules of England are generally applied to the Indian cases as principles of equity, justice and good conscience. In India defamation is both civil and criminal offence.
• In many countries it is decriminalized and made as civil wrong to strike a balance between the freedom of expression and protection of reputation.
• Section 499 of IPC provides ten exceptions which protect the defendant from the liability of defamation. These include statements made or published for the public good.
• Criminalizing Defamation – section 499 IPC
• 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 expected, to defame that person.
• Explanations under S.499
• Explanation 1- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
• Explanation 2- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
• Explanation 3- An imputation in the form of an alternative or expressed ironically, may amount to defamation.
• Explanation 4- No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loath some state, or in a state generally considered as disgraceful.
• Position: India & English
• English Law: Difference between libel and slander is maintained in imposing liabilities.
• Slander is merely a civil wrong in English law except in certain situation it may amount to criminal wrong. Libel is both civil as well as criminal.
• Indian Law: Slander and Libel are treated alike.
• Both are actionable per se.
• Limitation Period: One year
• Essentials
• The words must be false and defamatory.
• The said words must refer to the plaintiff and
• The words must be published.
• First -The words must be false and defamatory
• Whether a statement is defamatory or not depends upon how the right thinking members of the society are likely to take it.
• A statement is said to be defamatory when it has a tendency to excite adverse opinion against the plaintiff or when it has a tendency to injure the reputation of a person to whom it refers. This can be said to be the test of determining a defamatory statement. Consequence of statement
• Substantial and respectable proportion- citizens- avoid and think less of him.
• Examples of non-defamatory statement
• South India Rly Co. v Ramakrishna I.L.R. (1980) “ I suspect you are travelling with a wrong or false ticket”
• Sim v Stretch (1936) 2 All ER “ edith resumed her services with us today. Please send her possessions and the money borrowed, also her wages”
• Innuendo
• Sometimes the statement may prima facie be innocent ( natural and ordinary meaning is not defamatory) but bcoz of some latent or hidden meaning it may be considered to be defamatory.
• Tolley v J.S.Fry & Sons, Ltd. (1931) A.C.
• Cassidy v Daily Mirror Newspaper Ltd. (1929) K.B.
• Innocence is no defence
• The said words must refer to the plaintiff
• Hulton & Co. v Jones (1910) A.C.- Artemus Jones
• Defamation Act, 1952 [U.K.] innocent author or publisher can avoid his liability. In India we follow the same.
• Defamation of a class of persons-[No person from that class bring a suit for defamation unless he a particular injury to his reputation under law of torts]
• Defamation of deceased is no tort but definitely a criminal wrong
• The words must be published
• Publication means making the defamatory matter known to some person other than the person defamed.
• If plt. Alone knows than no defamation
• If third person wrongfully reads the letter meant for plt. It is no publication. Defendant is not liable. Huth v Huth (1915) 1 WLR
• But if there is likelihoodness to be read by somebod else clerk/spouse there is publication [ Theaker v Richardson (1962) 1 WLR]
• Postcard/ telegram
• Whether Communication to spouse is publication?
• In India, husband and wife are one person and the communication of defamatory matter from the husband to the wife or vice versa is no publication.
• T.J.Ponnen v M.C.Verghese AIR 1970 SC The question was whether a letter from a husband to the wife containing defamatory matter concerning the father in law could be proved in an action by father-in-law against his son-in-law. His wife has passed those letters to her father (M.C. Verghese). The husband (ponen) contended that the letter addressed by him to his wife are not, except with his consent , admissible in evidence by virtue of Section 122 of I.E.Act, 1872.
• The communication of a matter defamatory of one spouse to the other is sufficient publication- Theaker v Richardson
• Reputation v Free Speech
• A defamation action can rebound against the plaintiff when it is perceived as unjust and information about it is widely communicated to relevant audience, causing outrage. Such an outcome can be termed as backfire.
• "Defamation and the Art of Backfire" by Truda Gray and Brian Martin discusses that the standard perspective on defamation law is an attempt to balance the protection of two contrary values viz., reputation and free speech.
• Article 19 (1)(a) & Defamation
• The tort of defamation purports to strike a balance between freedom of speech & expression and the protection of reputation.- By virtue of Article 19 (2) of the Indian Constitution.
• Article 19 clause (1) sub-clause (a) of the Constitution of India guarantees to its citizen the right to freedom of speech and expression subject to reasonable restrictions (as laid down in Article 19, Clause (2)) on the exercise of this right relating to:
• defamation;
• [contempt of Court; decency or morality; public order; incitement to an offense; security of the state; friendly relation with foreign state; maintenance of sovereignty and integrity of India.]
• Defenses to tort of defamation
• Justification or truth
• Fair comment
• Privilege
• Justification or Truth
• In civil action for defamation truth of the defamatory matter is complete defense.
• In criminal law , apart from truth it must be made for public good.
• The term public includes any class of the public or community. Public men such as generals, judges, authors, actors, doctors, members of public bodies are all people whose acts concern the welfare of the public and thus any true publication about them made for public good would be protected
• Doctrine of Substantial Truth
• Reason: the law will not permit a man to recover damages for Injury to character which he either does not or ought not to possess
• Defence is available even publication is made maliciously.
• If the statement is false, it is no justification that defendant honestly and on reasonable grounds believed it to be true.
• Radhey shyam Tiwari v Eknath AIR 1985
• Fair comment
• Generally available to authors, editors, critic, etc.
• ‘Comment’ means an expression of opinion on certain facts rather than making a statement of fact
Essentials of fair comment
• Appreciation of existing facts and not invention of new facts
• Comment must be in public interest.
• McQuire v Western Morning news Co. (1903)2 KB
• Example: A says a book published by Z – “Z’s book is foolish: Z must be a weak man.” It is comment based on Z’s book and A will be protected if he has said that in good faith. But if A says – “ I am not surprised that Z’s book is foolish, for he is a weak man.” It is not a comment but statement of fact and cannot be called a fair comment.
• Privilege
• There are certain occasions when the law recognizes that the right of free speech outweighs the plaintiff right to reputation: the law treats such occasion to be privileged and a defamatory statement made on such occasion is not actionable.
Absolute Privilege
• Parliamentary Proceedings
• Judicial Proceedings
• State Communication
• Qualified privilege
• The statement must have been made without malice
• There must be an occasion for making the statement
Privileged occasion
• Is an occasion where the perosn who makes a communication has an interest or a duty (legal, social or moral) and the person to whom it is made has a corresponding interest or a duty to receive it
• Example
• A, a shopkeeper, says to B, who manages his buisness – “Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty.” A is protected if he has made this imputation on Z in good faith for the protection of his own interest.