Defamation

Bhumika Nanda
Defamation

• Every person has a right to preserve reputation.

• It is a jus in rem – a right good against the entire world
• Law on defamation – allows for a reasonable restriction on the fundamental right of freedom of speech
and expression.

• Winfield – Defamation –
• 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.

• Two Types of defamation

• Libel – covers statement made in some permanent form – printed or written words or broadcast over
media platforms such as radio, television, or the Internet, effigy, cartoons/caricatures
• Slander – applies to defamation made in a transitory form – such as spoken words or gestures
https://englishlegalhistory.wordpress.com/2013/10/18/history-of-defamation/
Distinction between Libel and Slander

• A libel is a defamation in some permanent form and Slander is defamation in a transient form

• At common law – libel is a criminal offence as well as a civil wrong – but a slander is a civil wrong only.
However, under the Indian Law – both Libel and Slander are criminal offences.

• A libel is of itself an infringement of a right and no actual damage need be proved in order to sustain an
action. At common law – slander is actionable only when special damages can be proved to gave been its
natural consequences. However, in India – the opinion is to hold that slander is actionable without proof
of special damage.
• To succeed in an action for defamation – the claimant must prove three things:

• The statement complained of was defamatory

• The claimant referred to the claimant
• The statement must have been published

• Defamatory Statement –

• If reading or hearing it would make an ordinary, reasonable person [right minded citizen] – a man of fair
average intelligence tend to
• Think less well of a person of the individual referred
• Think that the person referred to lacked the ability to do their job effectively
• Shun or avoid the person referred
• Treat the person referred to as a figure of fun or an object of ridicule
• In applying test – the statement complained of – has to be read as a whole and the words used – have to be
given their natural and ordinary meaning.
• The meaning of words in a libel action – a matter of impression as an ordinary man gets on the first reading
and not on a later analysis.
• Mere hasty expression spoken in anger or vulgar abuse – to which no hearer would attribute any set purpose
to injure character would not be actionable.
• Important issue – is not how the defamatory statement makes the person referred to feel –
but the impression it is likely to make on those reading it.

• Defamed person – does not have to prove – that the words actually had any of these
effects – only that the statement could tend to have that effect on an ordinary,
reasonable listener or reader.
• Innuendo –

• Words are prima facie defamatory when their natural, obvious and primary sense is defamatory.

• Words prima facie innocent are not actionable unless their secondary or latent meaning is proved by the
plaintiff.

• Plaintiff must make out the circumstances which made them actionable and must set forth in the
pleadings the defamatory sense attributed to them.

• An innuendo is necessary where imputation is made in an obvious way, or by way of questions, exclamation
or conjecture or irony.

• Plaintiff relies on some special circumstances which convey to some particular person or persons knowing
these circumstances a special defamatory meaning.

• Intention to defame is not necessary – 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.
• Statement must refer to the claimant

• The claimant has to show that an ordinary, reasonable reader or listener, including acquaintances of the claimant, would
take the statement as referring to him or her

• If people who knew the claimant would assume that the statement referred to him or her – it does not matter that
the public at large might not make the same assumption.

• It is immaterial whether the defendant intended the defamatory statement to apply to the plaintiff or knew the
plaintiff ’s existence – if statement might reasonable be understood by those who knew the plaintiff to refer to
him.
• Defamation of a class of persons ?

• Statement must be published

• For the purpose of establishing a case for defamation – a statement is considered to have been published when the
defendant communicates it to anyone – other than the claimant or the defendant’s husband or wife.
• A defendant may escape the liability – if they can prove that it was not possible to foresee that publication would
occur
• When an allegation is published in print – it is not just the writer who can be made liable, booksellers, publishers, and
lending libraries have all be held to have published.
• Defences

• Justification by truth –
• If the matter is true – the purpose or motive with which it was published is irrelevant – the defendant must
show that the imputation made or repeated by him was true as a whole and in every material part thereof.
• It is not necessary to justify every detail of the statement provided that the gist of the libel is proved
to be in substance correct and that the details, etc which are not justified, produce no different effect
on the mind of the reader than the actual truth would do.
• If the statement is false – it is no justification that the defendant honestly and on reasonable grounds
believed it to be true.
• In criminal law – truth is only a justification – if its shown that the publication was for the public
good.

• Fair and bona fide Comment –

• Comment – critically analyse/appreciate existing facts and not invention of new facts
• Fair – means without malice
• On a matter of public interest
• Legitimate criticism is no tort – should loss ensue to the plaintiff – it would be damnum sine injuria
• Include matters in which the public is legitimately interested as also matters in which the public is
legitimately concerned.
• ‘Fair’ – honest and relevant and fairly be called criticism and refers to the language employed and not to the
mind of the writer – difference between comment and allegation/statement of fact
• A says of a book published by Z – ‘Z’s book is foolish; Z must be a weak man; Z’s book is indecent, Z must
be man of impure mind’ – this is an example of comments on Z’s book. But if A says – ‘I am not surprised
that Z’s book is foolish and indecent, for he is a weak man and libertine’
in this – the allegation of Z as a weak man and a libertine is an assertion of fact and not an expression
of opinion.

• Privilege – means that a person stands in such relation to the facts of the case that he is justified in saying or
writing what would be slanderous or libellous.
• General principle – common convenience and welfare of society or the general interest of society.

• Absolute privilege – when no action lies even though it is false and defamatory and made with express
malice.
• On certain occasions – the interest of society requires that a man should speak out his mind fully and
frankly without fear or thought of consequences
• Parliamentary proceedings; judicial proceedings; naval and military proceedings and state proceedings.
• [Article 105(2) and Article 194 (2) of Constitution of India]
• Qualified privileges –
• It is necessary that the statement must have made without malice. [actual or express malice or malice in fact]
• There must have been an occasion for making the statement.

• Communications made in the course of legal, social or moral duty and the corresponding interest in receiving it;
for self protection and for protection of common interest – made in good faith[reciprocity is essential]; for public
good; and reports of parliamentary and judicial proceedings and proceedings at public meetings.

• Consent

• Apology

• Amends

• Remedies –
• Damages – depends on the nature and character of libel/slander, the extent of its circulation, the position of the
parties and the surrounding circumstances of the case
• Aggravated Damages – language, malice, nature of imputation
• Injunction
Books:
1. Ratanlal & Dhirajlal, The Law of Torts, Lexis Nexis, 2016 (27th Edition.)
2. W.V.H. Rogers, Winfield and Jolowicz on Tort, Sweet & Maxwell, 2010 (18th Edition.)
3. Catherine Elliott and Frances Quinn, Tort Law, (Pearson; 10 editions, 2015)