DEFENCES TO DEFAMATION: FAIR REPORT, CONSENT, APOLOGY

* WHAT IS DEFAMATION?
Defamation is a false accusation of an offense or a malicious misrepresentation of someone's words or actions. A man’s reputation is his property, more valuable than any other property. The existing law for defamation is a reasonable restriction on the fundamental right of speech and expression conferred by article 19(1) (a) of the Indian Constitution and is saved by cl (2) of art 19. The wrong of defamation may be either committed by way of writing i.e. Libel or by way of speech i.e. Slander. There may be forms of Defamation that do not fall under Libel or Slander. 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. A libel is a publication of a false and defamatory statement tending to injure the reputation of another person without lawful justification or excuse. The statement must be expressed in some permanent form. E.g. - Writing, printing, statues, pictures etc. A slander is a false and defamatory statement by spoken words or gestures tending to injure the reputation of another.

* DEFENCES I. APOLOGY
Apology is one of the defences to defamation. This defence is provided by the Libel Act, 1843 and the Defamation Act 1952. The Libel Act 1843 enacts,
“ In an action for a libel contained in any public newspaper or other periodical publication, it shall be competent to the defendant to plead that such libel was inserted in such newspaper or other periodical publication without actual malice, and without gross negligence, and that before the commencement of the action, or at the earliest opportunity afterwards, he inserted in such newspaper or other periodical publication a full apology for the said libel, or, if the newspaper or periodical publication should be ordinarily published at intervals exceeding one week, had offered to publish the said apology in any newspaper or periodical publication to be selected by the plaintiff in such action” . These are Acts passed by the Parliament of United Kingdom. Every such defence must be accompanied by a payment of money into the Court by way of amends. The issues of malice, gross negligence and the adequacy of the apology are to be decided separately by the jury. In India, we have no such legislation in this regard but suits for damages founded upon tort and more especially those based upon slander have to be decided according to the principles of justice, equity and good conscience and in the light of the judicial principles laid down by eminent English judges and recognized jurists. The defence of apology is part of the Common Law in India. Thus if apology is accepted does not prevent a suit in India, at the most it is a circumstance mitigating the damages to be awarded. This defence is rarely used. If the defendant fails in his plea for apology, then the jury will assess the damages without regard to the payment into court, and the plaintiff is entitled to the judgment for the sum awarded by the jury. The burden of proof is on the defendant to prove that the publication was without actual malice, without gross negligence. In Bell v Northern Constitution Limited, Andrews CJ held that it was gross negligence for a newspaper to publish the announcement of a birth without making any inquiry as to the authenticity of a notice received by telephone. The apology given by the defendant must also be sufficient. If the defendant can prove these three things in the Court of Law, then the defendant will be entitled to the Judgment. The publication of a contradiction and expression of regret is not equivalent to an apology. II. CONSENT Where plaintiff consents to the publication of defamatory matter about him or her, then this consent is a complete defence to a defamatory action. The defence of consent and assumption of risk was upheld in Chapman v Ellesmer; the plaintiff said that even though he had consented to the publication of a report of an inquiry, he had not consented to the publication in such a form that contains innuendo against him. Innuendo is an indirect intimation about a person or thing, especially of a disparaging or a derogatory nature. The court in this case rejected the plea of the plaintiff and stated that the plaintiff had agreed to run the risk of the particular form that the statement might take. In one case a school superintendent was demoted and requested a statement of reasons from the school board. The school board did so in a confidential letter, which included the allegation that the superintendent had taken part in distributing fake election flyers. Apparently the superintendent was not pleased so he submitted the letter to a newspaper and the newspaper published the letter... The court held that plaintiff' consented to the publication of the letter. Consent to a defamatory statement relinquishes all rights to claim damages. In the Simi Garewal v T.N Ramachandran, the Bombay High Court dismissed the suit for injunction filed by the plaintiff from publishing her nude photograph in a film magazine owned by the defendant. The picture was a film which was shot in India but did not release here and it was shown only in the United States. The Defendant’s magazine proposed to publish a color photo of it and the plaintiff sought an injunction restraining the defendant from doing it. There was an agreement between the producer of the movie and the plaintiff that this scene would not be screened in Indian without her permission. The defendant explained that this photograph was taken with her consent and had already been published in American Magazines and also in an Indian weekly magazine. He also stated that this was a true photograph and it was in no way defaming the plaintiff.

III. FAIR REPORT/ COMMENT.
Any fair or bona fide comment which is made on a matter of public interest is not a libel. This defence is one of the most used and most important defences of Defamation. The right of fair comment and bona fide comment on a matter of public interest is a right which it is the duty of courts carefully to guard and literally to interpret. It is a very important defence. The defence is called ‘honest opinion’ in New Zealand (Defamation Act 1992, s 9), Australia (Defamation Law, 2005) and Ireland (Defamation Act 2009, s 20). Any private individual or journalist can make a comment if it is of a matter of public interest. Exaggeration would not make a comment unfair. A comment has to be based upon the facts if it is to be fair. In the Channel Seven Adelaide Pty. Ltd v Manock case, one Anna Jones was found dead in the bathroom and her fiancé Henry Keogh was charged with her murder. Dr. Manock, the doctor was a pathologist on whose evidence Keogh was convicted of murder. The presenter of Channel Seven Adelaide in a broadcast stated ‘The new Keogh facts. The evidence they kept to themselves. The data, dates and documents that don’t add up The evidence changed from one court to the next.’ In this case, it was held that the statement in the broadcast was not a comment but a statement of fact implying that the plaintiff an expert witness concealed facts that led to miscarriage of justice. So the defence of the comment was struck out.
A general test of fair comment is based on the words of Lord Keith in Telnikoff v Matusevich, where he stated the test to be: ‘whether any man, however prejudiced and obstinate, could honestly hold the view expressed by the defendant’. The concepts of ‘fairness’, ‘ fair mindedness’ or ‘reasonableness’ do not have any place in this test. In Slim v Daily Telegraph Ltd Lord Denning said: ‘the right of fair comment is one of the essential elements which go to make up our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements.’
There are also other judicial opinions that stress the importance of this defence. The main principles relating to the defence of Fair Comment are as follows: 1. The Comment must be made in matter of public interest. (1.01) 2. The comment must be recognizable as a comment, i.e. distinct from a fact.(1.02) 3. The words complained of should explicitly or implicitly indicate the factual basis for the comment. 4. The comment must be based on facts which are true or protected by privilege.(1.04) 5. The comment must be one that an honest person would have made i.e. it should not be malicious and should be true.(1.05) 6. The defence can be defeated if the claimant proves that the defendant was actuated by express malice.

* THE COMMENT MUST BE MADE IN MATTER OF PUBLIC INTEREST.
The defendant has to prove in the court of law that his comment was made in the matter of public interest. There is no exact definition of the term “public interest”. But it can be stated that any matter that is of public interest is a matter of public interest. Some examples of matters of public interest are:- 1. Affairs of State. Public Acts of Ministers and Officers of State- The conduct of all the public servants and confidential reports made by the superior officers, all bills in the Parliament , collection of taxes and other matters which touch the public welfare. Even appointments made by the Government to any office are matters of public concern. 2. Administration of Justice- A fair, bona fide comment and correct report of proceedings in any court of Justice open to public. But any opinion can be given only when the case gets over. The administration of justice must be made a topic for discussion as it is of most essential importance. But a person cannot discuss about corruption even if the matter is over. 3. Books, pictures and works of Art: Any painting or for that matter any piece of art may be criticized, provided the criticism is honest and fair. 4. Theatres, Concerts and other public entertainments- Any sources of public entertainment such as plays, concerts and movies can be questioned by the public. 5. Public Institutions and Local Authorities.: The authorities that are run by the Government or that run by Government Funds can be questioned and is open to public scrutiny. The conduct of any officer and officials who are in charge of a polling booth was held to be a matter of public interest. 6. Ecclesiastical Matters. (Of or relating to the Christian Church or its clergy.)

In London Artists v Littler, Lord Denning spoke on the scope of public interest as follows:
‘Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make a fair comment.’
Matters that take place in public, e.g. Public Meetings or rallies or matters of foreign policy are all matters of public interest. Such things concern a group of people and not an individual. In South Hetton Coal Co v North Eastern News Association, the plaintiff was an owner of some cottages. They weren’t maintained properly. The defendant made comments on the condition of those cottages. It was held that the insanitary condition of the cottages owned by the defendant company was a matter of public interest.

* THE COMMENT MUST BE RECOGNISABLE AS A COMMENT, DISTINCT FROM A FACT
The commentator can include inferences of the fact. The meaning of the word comment was made clear in the Clarke v Norton. In the case Clarke v Norton, Cussen J said
“A comment is taken to be something which can reasonably be inferred to be a deduction, conclusion, criticism, judgment, remark or observation. In the Subhas Chandra Bose v R. Knight & Sons, the court held that “If the meaning of that article is that the plaintiff was a member of a terrorist organization, the question arises whether it is a fair comment. It is a statement when said that the plaintiff is a part of a terrorist organization.”

* There must be a distinction made by the commentator on assertions of fact and inferences drawn by him. In Telenikoff v Matusevich, the plaintiff wrote an article in the Daily Telegraph criticizing the BBC Russian Service for over-recruiting people from ethnic minority groups. The defendant replied accusing the claimant of being a racist. The House of Lords held that the question whether the words complained were to be regarded as comments or statement of facts must be determined with reference to the reply and not with reference to the article. The reason given by Lord Kinkel J was that
‘The readers of the letter must have included a substantial number of persons who had not read the article or those who read it, did not have it fully in mind.’

If the commentator first puts the facts, then states his inference from the facts, then it will be considered a comment. An allegation would not be considered a comment. For example- If I say that a person has committed a theft, then it will not be considered a comment unless I make it clear that the allegation is my inference from a set of other facts. The use of introductory words like “In my opinion” or “in other words” are an indication that the succeeding words are comment rather than an assertion of fact.
In Hunt v Star Newspapers Co Ltd, Fletcher LJ said ‘Comment in order to be justified as a fair comment must appear as a comment and must not be mixed up with the facts that the reader cannot distinguish between fact and comment’.

* THE COMMENT MUST BE BASED ON FACTS WHICH ARE TRUE AND PROTECTED BY PRIVILEGE.
For establishing the defence of fair comment, the defendant must prove that there are facts which are true or protected by privilege and which form a basis for comment. In Cohen v Daily Telegraph Ltd, Lord Denning MR said “In order to make good a plea of fair comment on fact existing at that time. No man can comment on facts which may happen in the future”. Only a fair and bonafide comment is an excuse of what would otherwise be a defamatory publication is admitted. Kennedy J in Joynt v Cycle Trade Publishing Co. “The comment must not mistake facts, because a comment cannot be fair which is built on facts which are truly stated”.

* MALICE IN RELATION TO FAIR COMMENT The defence of fair comment will fail if there is any malice in the comment made. Malice will be proved if the commentator was motivated by any ill will or improper motive. Any honest person must also make the same comment as the commentator made. The sole test of malice in relation to fair comment is the honesty of the commentator. The comment can be fair only if there is no malice in it. Malice means improper motive for the making of the statement. The best test in relation to malice has been laid by Lord Esher in Merivale v Carson and modified in Turner v Metro Goldwyn Mayer Pictures by Lord Porter. It is as follows “Would any honest man, however prejudiced he might be, or however exaggerated or obstinate his views, have written this criticism?” When a writer publishes a malicious newspaper article, then the malice on his part would be attributed to the newspaper as it will be vicariously liable.
REFERENCES
B. M. Gandhi, Law of Torts (3rd edition ed. 2006).
Avtar Singh, Law of Tort (2010).
W. V. H. Rogers, Winfield and Jolowicz on Tort (18th Revised edition ed. 2010).
Ratanlal & Dhirajlal’s the law of torts (2006).
Duncan and Neill on Defamation, (3rd ed.).
Mitter, Law of Defamation and Malicious Prosecution: Civil and Criminal (2008)
Margaret Brazier, Street: The Law of Torts (1988).

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[ 1 ]. Dixon v Holden, (1869) LR 7 Eq 488
[ 2 ]. SEERVAI, Constitutional Law of India, 3rd Edition, Vol I, p 495; S.N.M Abdi v Prafulla K Mahanta, AIR 2002 Gau 75, p. 76
[ 3 ]. Noor Mohd v Mohd Jiauddin, AIR 1992 MP 244 (para 15)
[ 4 ]. Libel Act 1845, s 2.
[ 5 ]. B. M. Gandhi, Law of Torts p.162 (2nd edition ed. 2002).
[ 6 ]. 1943 NI 108
[ 7 ]. K P Narayanan v.Mahendrasingh, ILR 1956 Nag 439
[ 8 ]. [1932] 2 KB 431
[ 9 ]. http://www.defamationlawblog.com/2009/12/articles/defamation-basics/defamation-defence-consent/
[ 10 ]. Simi Garewal v. TN Ramachandran (1976), 78 BOMLR 623.
[ 11 ]. V. Mitter, Law of Defamation and Malicious Prosecution: Civil and Criminal (2008) p 118.
[ 12 ]. N.R Gopalakrishna v P. Raman Namboodiri, (1985) 1 Crimes 300 (Ker)
[ 13 ]. Sevmour v Butterworth, (1862) 3 F & F 372.
[ 14 ]. Thompson v Shackell, (1828) Mood and M 187.
[ 15 ]. Avtar Singh, Law of Tort (2010) p 121.
[ 16 ]. [1969] 2 QB 375 at p.391.
[ 17 ]. [1894] 1 QB 133
[ 18 ]. [1910] VLR 494
[ 19 ]. [1992] 2 AC 343
[ 20 ]. W. Blake Odgers, The Law of Libel and Slander (2011).
[ 21 ]. [1908] 2 KB 309
[ 22 ]. [1968] 2 All ER 407
[ 23 ]. (1904) 2 KB 292 at p. 294