RESEARCH PROJECT

on
‘Defamation in tort law : A detailed analysis’
Submitted to

MAHARASHTRA NATIONAL LAW UNIVERSITY, AURANGABAD

Submitted by

RIYA GARG

B. [Link].B. (Hons.) Semester-I

Roll No. 2020/BALLB/45
Paper : Law of Torts

Under the guidance of

Dr. Tanaya Tarai
OSD (Academics & Publications)
&
Prof. Dr. B. H. Choudhary
Assistant Professor of Law,

Maharashtra National Law University, Aurangabad

February, 2021

pg. 1
 TABLE OF CONTENTS

[Link]. Chapter Page No.

1.
INTRODUCTION 3
2.
METHODOLOGY AND HYPOTHESIS
OF THE PROJECT 4

3.
LITERATURE REVIEW 5-6

4.
MEANING AND TYPES OF 7-9
DEFAMATION
5.
ELEMENTS OF DEFAMATION &
RELEVANT CASE LAWS 10-11

6. 12-14
DEFENCES

7. 15-17
WHO CAN SUE? & WHO MAY BE
SUED?
8.
CONCLUSION 18-19

9.
BIBLIOGRAPHY 20

pg. 2
 Chapter 1
INTRODUCTION

The tort of defamation protects a person’s reputation and integrity from being harmed by the
dissemination of false statements. The need to protect individual reputation was highlighted
in Reynold v Times Newspapers [2001]:

“Reputation is an integral and important part of the dignity of the individual. It also forms the
basis of many decisions in a democratic society which are fundamental to its well-being:
whom to employ or work for, whom to promote, whom to do business with or vote for. Once
besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged
forever, especially if there is no opportunity to vindicate one's reputation. When this happens,
society as well as the individual is the loser. For it should not be supposed that protection of
reputation is a matter of importance only to the affected individual and his family. Protection
of reputation is conducive to the public good. It is in the public interest that the reputation of
public figures should not be debased falsely” – Lord Nicholls.

Thus, the tort of defamation seeks to balance the right to freedom of expression and the need
to protect individual reputation, integrity and privacy. Freedom of expression is therefore,
accompanied by a duty not to use that freedom to the detriment of others without reasonable
legal justification.

However, the tort of defamation does not protect someone’s feelings or opinion about himself
or herself from being wounded or damaged; it only seeks to protect a person in relation to
what other people think of, or how they relate with, him or her.

This research project aims to study ‘Defamation in tort law’ in detail by throwing light
on its meaning, types, elements of defamation and defences provided by law. The paper
also attempts to explain who can sue and who may be sued under tort of defamation
and highlights the relevant case laws too.

pg. 3
 Chapter 2

RESEARCH METHODOLOGY

The research was done on the topic ‘Defamation in tort law: A detailed analysis’ and the
research design was descriptive in nature. As per the topic, qualitative data collection was
preferred and secondary data analysis was done. The collection of data has been done through
Wikipedia, journal articles, books, online sources, case studies, etc. The mixed method has
been applied for the research i.e., Content Analysis Method and Case Study Method.

RESEARCH OBJECTIVES

 To understand the concept of ‘defamation’ in tort law

 To identify and analyse the types of defamation

 To enhance the knowledge and understanding with the help of relevant case laws

 To get a clear understanding of the elements of defamation

 To study the defences provided for defamation

 To study who can sue & who may be sued for defamation

pg. 4
 Chapter 3

LITERATURE REVIEW

The book ‘Defamation: Law and Practice’ by Neville Cox provides an in-depth analysis
and comprehensive coverage of defamation law in Ireland, including coverage of substantive
and procedural law. The book contains analysis of the elements of the tort of defamation,
defences to a defamation action, damages and other reliefs, the application of human rights
law in the context of defamation, the application of practice and procedure rules in
defamation cases, and a body of useful precedents.

The ‘Making of the Modern Law of Defamation’ by Paul Mitchell explains how and why
the law has come to be as it is by offering an historical analysis of its development from the
seventeenth century to the present day. Whilst the primary focus of the book is the law of
England, it also makes extensive use of comparative common law materials from
jurisdictions such as Australia, South Africa, the United States and Scotland.

The article ‘Protecting Reputation: Defamation and Negligence’ 1 by Eric Descheemaeker

concerns itself with the relationship between defamation and negligence in the protection of
the interest in reputation. The bijection between defamation and reputation is typically
thought of as perfect: defamation only protects reputation, while reputation is only protected
by defamation. This article shows, however, that neither limb of the proposition is true;
furthermore, there is no principled ground why they should be.

The research paper ‘defamation’ by Asherry Magalla provides a number of definitions of

defamation as defined by many authors and in the end it provides the true meaning of the
term defamation as define by the author.

The article ‘Three Errors in the Defamation Act 2013’ by Erik Descheemaeker considers
three aspects of a recent English statute on the law of defamation, the Defamation Act 2013,
disputing in each case their opportune-ness. First, it argues that the new requirement of
‘serious harm’ under sec1 runs against basic tenets of the law. Second, it expresses concern

1
Oxford Journal of Legal Studies, Volume 29, Issue 4, Winter 2009, Pages 603-641. Published: 24 September
2009

pg. 5
about the new drafting of the defence of responsible journalism (sec4), which is in danger of
losing touch with its original rationale. Third, it examines the revamped version of the
defence of fair comment, now known as ‘honest opinion’ (sec3), and suggests that comment
should never be actionable because it cannot be defamatory in the first place.

pg. 6
 Chapter 4

MEANING AND TYPES OF DEFAMATION

Concept of Defamation:

Defamation is the publication of a false statement about somebody that is injurious to his or
her reputation; or which exposes him or her to ridicule, odium, contempt or opprobrium by
others; or which causes other people to shun him or her. It has also been defined as:

 A publication, without justification or lawful excuse, which is calculated to injure the

reputation of another, by exposing him to hatred, contempt, or ridicule2.

 A statement which tends to lower the claimant 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 and dis-esteem3.

 A statement means “words, pictures, visual images, gestures or any other method of
signifying meaning.

Types of Defamation:

Libel and slander are simply two different types of defamation; defamation is the overarching
tort, libel and slander are just two different ways of committing that tort. They both remain
privy to the general principles governing the tort of defamation.

Libel

2
Lord Wensleydale (then Parke B) in Parmiter v. Coupland (1840) 6 M & W 105, 108.
3
Lord Atkin in Sim v Stretch [1936] 2 All ER 1237

pg. 7
Libel refers to permanent defamatory statements, such as that which is written, broadcast, or
otherwise performed.4 The ‘permanence’ requirement doesn’t mean ‘forever’, but rather
communication which exists for longer than the time the original message is communicated.
Thus, the courts have gone as far as suggesting that skywriting can constitute libel since the
writing takes time to disperse.5

Words are not necessary; it merely must be a type of permanent communication. 6 It should be
noted that libel is also a criminal offence, as well as a tort.

Slander

Slander is a defamatory statement which is non-permanent or transient. The key example is

spoken word. Gestures can also constitute slander, since they are a form of non-permanent
communication. Because non-permanent statements have a lesser effect than permanent
statements, the aggrieved in this case must show that they have suffered a ‘special loss’, in
effect a loss which can be estimated in monetary terms. The courts however have stretched
this definition to include loss of a marriage prospect 7 and loss of consortium.8

There are two exceptions to this rule. Firstly, if it is imputed that the claimant has committed
9
a criminal offence punishable by imprisonment, as per Gray v Jones. Secondly, if the
statements are calculated to disparage the claimant in his or her profession, business or office,
Foulger v Newcomb. 10 It should be noted that the statement must be based on the claimant’s
calling, rather than merely being an unrelated statement, which nevertheless might affect
others’ perception of the claimant’s ability to undertake that calling. 11 Slander is not a
criminal offence.

Innuendo
4
S.1 of the Defamation Act 1952; s.28 of the Cable and Broadcasting Act 1984; s.4(1) of the Theatres Act 1968.
5
Gulf Oil (GB) Ltd v Page [1987] Ch. 327
6
Monsoon v Tussauds Ltd [1934] 50 TLR.
7
Speight v Gosnay [1891] 60 LJQB 231
8
Lynch v Knight [1861] 9 HLC 777.

9
[1939] 1 All ER 798
10
[1867] LR 2 Ex. 327
11
Jones v Jones [1916] 2 AC 481; Thompson v Bridges [1925] 273 SW 529.

pg. 8
Sometimes, the statement may prime facie be innocent but it has some hidden or secondary
meaning which can be considered as defamatory. Such types of statements are known as
innuendo.

pg. 9
 Chapter 5
ELEMENTS OF DEFAMATION & RELEVANT CASE LAWS

1. The statement must be published

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 standard to be applied is that of a right minded citizen. A man of fair average
intelligence, and not that of a special class of persons whose values are not shared or
approved by the fair minded members of the society generally.

Ram Jethmalani v. Subramaniam Swamy12

An inquiry commission was setup for examining the facts and circumstances relating to
assassination of late Shri Rajiv Gandhi. The defendant, at a press conference alleged that the
then Chief Minister of Tamil Nadu had prior information that LTTE cadre would make an
assassination bid on the life of Rajiv Gandhi. The plaintiff was engaged as a sr. counsel to the
then CM of TN. In 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 organization. The statement
by defendant was ex facie defamatory.

In Ramdhara v. Phulwatibai13
It has been held that the imputation by the defendant that the plaintiff, a widow of 45 year
age, is a keep of the maternal uncle of the plaintiff daughter-in-law, is not a mere vulgar
abuse but a definite imputation upon her chastity and thus constitutes defamation.

In South Indian Railway Co. v. Ramakrishna14

A ticket checker of railway asking for the identity proof and other documents as a part of his
duty is no defamation, as he has not published any defamatory statement.

12
(2006) 126 DLT 535
13
1970 CriLJ 286
14
(1890) ILR13MAD34

pg. 10
-Intention to defame is not necessary
In the Scottish case of Morrison v. Ritchie & Co.[vi] where damages were recovered against
the proprietors of a newspaper who in all innocence had announced in the paper that a lady,
who had in fact been married only a month, had given birth to twins.

2. The statement must refer to the plaintiff

If the person to whom the statement was published could reasonably infer that the statement
referred to the plaintiff, the defendant is nevertheless liable.

In Newstead v., London Express Newspapers Ltd.15

The defendants published an article stating that Harold Newstead, a Camberwell man had
been convicted of bigamy. The story was true of Harold Newstead, a Camberwell barman.
The action for defamation was brought by another Harold Newstead, the barber. As the words
were considered to be understood as referring to the plaintiff, the defendants were liable.

The Delhi HC in Harsh Mendiratta v. Maharaj Singh16 said that an action for defamation was
maintainable only by the person who was defamed and not by his friends or relatives.

3. Defamation must be published

Publication means making the defamatory matter known to some person other than the
person defamed and unless that is done, no civil action for defamation lies.
In the case of Mahender Ram v. Harnandan Prasad it was said when a defamatory letter is
written in urdu to the plaintiff and he doesn’t know Urdu, he asks a third person to read it , it
is not defamation unless it was proved that at the time of writing letter defendant knew that
Urdu was not known to the plaintiff.

15
[1940] 1KB 377
16
2002 CriLJ 1894, 95 (2002) DLT 78, 2002 (61) DRJ 123

pg. 11
 Chapter 6
DEFENCES

Usually a person will be liable if he harms the reputation of an individual. However, there are
a few specific defences that may be available to the defendant. There are mainly three
defences that may be available to the defences under the tort of defamation. These are:-

 Truth

Truth is always a defence in matters of private concern. For matters of public concern, the
plaintiff has the burden to prove falsity as an element of the claim. In a civil action for
defamation, truth of the defamatory matter is complete defence. Under Criminal Law, merely
proving that the statement was true is no defence. First exception to sec. 499, I.P.C. requires
that besides being true, the imputation must be shown to have been made for public good.
Under the Civil Law, merely proving that the statement was true is a good defence. The
reason for the defence is that “the law will not permit a man to recover damages in respect of
an injury to a character which he either does not or ought not to possess. The defence is
available even though the publication is made maliciously. If the statement is substantially
true but incorrect in respect of certain minor particulars, the defence will still be available

 Fair Comment

Making fair comment on matters of public interest is a defence to an action for defamation.
For this defence to be available, the following essentials are required:

 It must be a Comment, i.e., an expression of opinion rather than assertion of fact;

 The comment must be fair; and
 The matter commented upon must be of public interest.

 Privilege

Absolute privilege:

pg. 12
Applies in very limited circumstances. In general, absolute privilege exempts persons from
liability for potentially defamatory statements made:

 during judicial proceedings

 by legislators during legislative debates
 during political broadcasts or speeches, and
 In between spouses.

Liability for Defamatory statements made in statutory proceedings: It is to be noted that

absolute privilege is available in statutory proceedings only if the statement made is
necessary for the proceedings.

In the eyes of law, husband and wife are one entity hence something written defamatory by
husband to his wife or vice-versa does not amount to publication. But communication of
defamatory statement by a third party to either husband or wife are publication on the ground
that although husband and wife are one person, they are not so for the purpose of having the
honour and feelings of the husband assailed and injured by acts done or communication made
to wife.17

Qualified privilege:

Other types of communications are subject to what is called a qualified privilege, meaning
that the person making the allegedly defamatory statement may have had some right to make
that statement.

If a qualified privilege applies to a statement, it means that the person suing for defamation
must prove that the person who made the defamatory statement acted intentionally,
recklessly, or with malice, hatred, spite, ill will or resentment, depending on your state’s law.
Just some of the statements for which a qualified privilege applies are-

17
Wenman v. Ash
pg. 13
  statements made in governmental reports of official proceedings
 statements made by lower government officials such members of town or local boards
 citizen testimony during legislative proceedings
 statements made in self-defence or to warn others about a harm or danger
 certain types of statements made by a former employer to a potential employer
regarding the employee, and
 published book or film reviews that constitute fair criticism.

The employer review qualified privilege is particularly noteworthy. In order to avoid

defamation claims, some employers these days refuse to confirm any details about former
employees other than their dates of employment. But certain types of negative statements
might fit in under the qualified privilege category, If, for example, the employer fired the
employee for theft, a statement about that to a potential employer might qualify as a
statement made to warn others about a harm or danger (i.e., the danger of hiring someone
who might steal from you).

 Good Faith is not a defence

In the case D.P. Chowdhery v. Manjulata18, a news was published in a local daily Dainik
Navjyoti that the plaintiff Manjulata, a 17 years old girl, a student of B.A. belonging to a
distinguished family based at Jodhpur has eloped with a boy named Kamlesh on the pretext
of attending night classes at her college. It was found that the news was untrue and was
published negligently and with irresponsibility. The Court found the defendant liable and
awarded a damage of Rs. 10,000 to plaintiff. If the defendant has defamed the plaintiff's
reputation although unintentionally, he is liable. The words are actionable if false and
defamatory, although published accidentally or inadvertently.

Chapter 7
WHO CAN SUE AND WHO CAN BE SUED?
18
AIR 19997 Raj 170

pg. 14
Who can sue?
Only living persons can sue for defamation; a defamation action does not survive
the death of the defamed person.

 Trading corporations/companies can sue – Jameel v Wall Street Journal Europe [2006] – A
trading corporation could sue in order to protect its business reputation.

 Government Authorities, including local government authorities cannot sue. Derbyshire

County Council v Times Newspapers (1993) – the claimant council complained that an
article in the defendant newspaper questioning the propriety of some of the investment of its
pension fund had injured its credit and reputation and had brought it into public contempt. It
was held that the council could not bring the action: “It is of the highest public importance
that a democratically elected governmental body, or indeed any government; body, should
be open to uninhibited public criticism. The threat of a civil action for defamation
must inevitably have an inhibiting effect on freedom of speech” -- Lord Keith.

 Political parties cannot sue -- Goldsmith v Bhoyrul 19

– The Referendum Party held
unable to bring an action in defamation. However, individual politicians may sue on
personal bases for defamation.20

 Trade Unions cannot sue. In EETPU v The Times 21, it was held that a trade union does
not have the legal personality necessary to bring an action in defamation.

Who may be sued?

Every author, editor and/or publisher of the defamatory statement may be sued.

19
[1998] 2 WLR 435
20
Culnane v Morris & Naidu [2005] ECWH 2438
21
[1980] QB 585b

pg. 15
 According to s. 1 (1) and (2) Defamation Act 1996:

 ‘Author’ refers to the originator of the statement unless he did not intend his statement to
published.
 ‘Editor’ means the person who edits the statement or took the decision to publish it.
 ‘Publisher’ means a commercial publisher who issues the defamatory material in the course
of business.

Employees of an author, editor or producer may be liable if they are involved in the making
of the statement or in the decision to publish it.

Under section 1(3), a person is not an author, editor, or publisher if he was only involved:

(a) In printing, producing, distributing or selling printed material containing the statement;

(b) In processing, making copies of, distributing, exhibiting or selling a film or sound
recording.

(c) In processing, making copies of, distributing or selling any electronic medium in or on
which the statement is recorded, or in operating or providing any equipment, system or
service by means of which the statement is retrieved, copied, distributed or made available in
electronic form;

(d) As the broadcaster of a live programme containing the statement in circumstances in

which he has no effective control over the maker of the statement;

(e) As the operator of or provider of access to a communications system by means of which

the statement is transmitted, or made available, by a person over whom he has no effective
control.

In a case not within paragraphs (a) to (e) the court may have regard to those provisions by
way of analogy in deciding whether a person is to be considered the author, editor or
publisher of a statement.

Godfrey v Demon Internet [2001] – The defendant, an Internet Service Provider, was held not
liable for libellous material published on the web site hosted by it until it was alerted to it by
the claimant and failed to remove it.

pg. 16
Under s. 10 of Defamation Act 2013: A court does not have jurisdiction to hear and
determine an action for defamation brought against a person who was not the author, editor or
publisher of the statement complained of unless the court is satisfied that it is not reasonably
practicable for an action to be brought against the author, editor or publisher.

pg. 17
 Chapter 8
CONCLUSION

Defamation is the communication of a false statement that harms the reputation of an

individual. The law of defamation protects a person’s reputation and good name against
communications that are false and derogatory. Defamation consists of two torts: libel and
slander. Libel consists of any defamation that can be seen, most typically in writing. Slander
is a form of defamation that consists of making false oral statements about a person which
would damage that person’s reputation. If I spread a rumour that my neighbour has been in
jail and this is not true, I could be held liable for slander.

A person is liable for the defamation of another. In order to prove defamation, the plaintiff
must prove:
 that a statement was made about the plaintiff’s reputation, honesty or integrity that is
not true;
 there was publication to a third party (i.e., another person hears or reads the
statement); and
 The plaintiff suffers damage as a result of the statement.

Public figures have a more difficult time proving defamation. Politicians or celebrities are
understood to take some risk in being in the public eye and many of them profit by their
public persona. A celebrity must prove that the party defaming them knew the statements
were false, made them with actual malice (intent to harm), or was negligent in saying or
writing them. Proving these elements can be an uphill battle. However, an outrageously
inaccurate statement that is harmful to one’s career can be grounds for a successful
defamation suit, even if the subject is famous. For example, some celebrities have won suits
against tabloids for false statements regarding their ability to work, such as an inaccurate
statement that the star had a drinking problem.

Another important aspect of defamation is the difference between fact and opinion.
Statements made as “facts” are frequently actionable defamation. Statements of opinion or
pure opinion are not actionable. Some jurisdictions decline to recognize any legal distinction
pg. 18
between fact and opinion. To win damages in a libel case, the plaintiff must first show that
the statements were “statements of fact or mixed statements of opinion and fact” and second
that these statements were false. Conversely, a typical defence to defamation is that the
statements are opinion.

One of the major tests to distinguish whether a statement is fact or opinion is whether the
statement can be proved true or false in a court of law. If the statement can be proved true or
false, then, on that basis, the case will be heard by a jury to determine whether it is true or
false. For example, your statement of opinion is just an opinion, and does not contain specific
facts that can be proved untrue. “The waiters and waitresses at the Tivoli Restaurant are too
slow and the food is too spicy.” This is a statement of opinion. “I got food poisoning at the
Tivoli Restaurant” is potentially a defamatory statement if, in fact, the restaurant can prove
that you never contracted food poison.”

Some statements, while libellous or slanderous, are absolutely privileged in the sense that the
statements can be made without fear of a lawsuit for slander. The best example is a statement
made in a court of law. An untrue statement made by a witness about a person in court which
damages that person’s reputation will generally not be held to be liability to the witness as far
as slander is concerned.

pg. 19
 Chapter 9
BIBLIOGRAPHY

 (n.d.). Retrieved from [Link]: [Link]

rules-of-defamation/

 Defamation: general principles . (2014-2015).

 Hylton, K. N. (2016). Defamation. 301-331.

 Jubaer, S. M. (2018). Defamation under tort law. ResearchGate.

 Mitchell, P. (2005). The Making of the Modern Law of Defamation. Hart publishing.

 Neville Cox, E. M. (2014). Defamation: Law and Practice. Clarus Press Ltd.

 Shivi. (2016). DEFAMATION LAWS AND JUDICIAL INTERVENTION: A CRITICAL STUDY. ILI Law Review.

 Singh, K. K. (2015). The Tort of Defamation. Lexis Nexis.

 Yasser, R. (1977). Defamation As a Constitutional Tort: With Actual Malice for All. Tulsa law review.

pg. 20