DEFAMATION

Defamation is injury to the reputation of a person. If a person injures the reputation of another, he
does so at his own risk, as in the case of an interference with the property. A man’s reputation is his
property, and if possible, more valuable, than other property.

Types of defamation

Libel and Slander

Libel is the representation made in some permanent form or which is published.

Ex:- Picture, printing, writing

Slander is the publishing of defamatory statement in a transient form.

Ex:- Words, Gestures etc.

Punishments for defamation:

Under Criminal law in India, both Libel and Slander are criminal offences under section 499 of the
I.P.C. Whereas, Under English criminal law, Libel is crime but slander is not. Slander is a civil
wrong in England.

Both Libel and Slander can be considered as civil wrongs, but there is a distinction between the two
under English Law. Libel is actionable per se but in case of Slander, except in certain cases, proof is
not required.

Essentials of Defamation:-

(1) The statement must be defamatory;

(2) The said statement must refer to the plaintiff;

(3) The statement must be published.

1)The statement must be defamatory

Defamatory statement is one which tends to injure the reputation of the plaintiff.

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. An imputation which exposes one to disgrace and humiliation, ridicule

or contempt, is defamatory. The defamatory statement could be made in different ways.

effigy or by some conduct. Thus, if a Municipal Council out of ill will and malice and

without justification served a notice of distraint warrant and seized furniture and books of

a practising advocate, the conduct of the Municipal Council amounted to defamation.

A defamatory statement is one which has a tendency to injure the reputation of the person

to whom it refers; which tends, that is to say, to lower him in the estimation of right thinking

members of society generally and in particularly to cause him to be regarded with feelings

of hatred contempt ridicule, fear, dislike or disesteem.

In Deepak Kumar Biswas v. National Insurance Co. Ltd.,3 the appellant was engaged as

counsel by the Insurance Company in arbitration matter. The award so passed had become

a rule of the Court. But, the appellant did not make any communication to the Insurance

Company as to the award became a rule of Court. As a result, delay was caused on the part

of the Insurance Company in presenting appeal against the award. In condonation petition,

another counsel appointed by the Insurance Company stated that delay had occurred "on

account of laches on part of lawyer who was conducting arbitration case before arbitrator".

The said words were held not necessarily made to cause onslaught on personal integrity or

reputation of the appellant. The Gauhati High Court held that the Insurance Company had

no motive or ill will to defame the appellant. The statement so made was held not

defamatory.

2. The statement must refer to the plaintiff

In an action for defamation, the plaintiff has to prove that the statement of which he

complains referred to him. It is immaterial that the defendant did not intend to defame 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., 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, a Camberwell barber.

As the words were considered to be understood as referring to the plaintiff, the defendants

were held liable.

It has been noted above that the liability for the defamation did not depend upon the intention of the
defendant to defame, but upon the fact that the

statement made by him was considered to be defamatory. This created a lot of hardship for

many innocent authors, printers and publishers because the fact that they were innocent in

publishing the statement did not save them from liability. Such hardship was particularly

noticed in cases like Cassidy v. Daily Mirror Newspapers Ltd., where a statement published

innocently turned out to be defamatory, and Hulton and Co. v. Jones and Newstead v.

London Express Newspapers Ltd., where there was no intention to defame the plaintiff but

he was deemed to have been defamed. The procedure provided in the Act is that if the defendant has
published certain words

innocently but they are considered to be defamatory, he should make an offer of amends,

i.e., he must publish a suitable correction and an apology as soon as possible after he came

to know that the words published by him were considered to be defamatory to the plaintiff.

If the offer of amends is accepted by the aggrieved party, no action for defamation may be

brought or continued against the party making such amends. Even if the aggrieved party

does not accept the offer of amends and chooses to bring or continue an action for

defamation against such an innocent party, then the innocent party who had published the

said statement can avoid the liability by proving : (i) that the words which had been

published by him were published innocently, and (ii) that as soon as he came to know that

these words published by him had resulted in the defamation of the plaintiff, an offer of

amends was made.

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.

Communication to the plaintiff himself is not enough because defamation is injury to the

reputation and reputation consists in the estimation in which others hold him and not a

man's own opinion of himself. Dictating a letter to one's typist is enough publication.5

Sending the defamatory letter to the plaintiff in a language supposed to be known to the

plaintiff is no defamation.

In Mahendra Ram v. Harnandan Prasad,10 the defendant sent a defamatory letter written

in Urdu to the plaintiff. The plaintiff did not know Urdu and therefore the same was read

over to him by a third person. It was held that the defendant was not liable unless it was

proved that at the time of writing the letter in Urdu script, the defendant knew that the Urdu

script was not known to the plaintiff and it would necessitate reading of the letter by a third

person.

In Arumuga Mudaliar v. Annamalai Mudaliar,11 it was held by the Madras High Court

that when two persons jointly wrote a letter containing defamatory matter concerning the plaintiff and
sent the same by registered

post to the plaintiff, there was no publication by one tortfeasor to the other as there could

be no publication between joint tortfeasors nor can there be said to be publication when the

registered letter addressed to the plaintiff gets into the hands of a third person and he reads

it out in the presence of various other persons, if the same could not have been foreseen.

Validity:

The SC of India, in the Subramanian Swamy vs Union of India, 2014, upheld the constitutional
validity of the criminal defamation law.
Right of Reputation vs Right to Dignity

Court's Ruling:

The right of reputation cannot be protected at the cost of the right of life and dignity of women.

Right to Reputation:

As per the SC, the right to reputation is an integral part of Article 21 of the Constitution.

Further, existence of Section 499 (Criminal Defamation) of the Indian Penal Code, 1860 is not a
restriction on the freedom of speech and expression because it ensures that the social interest is served
by holding a reputation as a shared value of the public at large.

Right to Life (Article 21):

No person shall be deprived of his life or personal liberty except according to procedure established
by law.

It confers on every person the fundamental right to life and personal liberty.

Right to Live with Dignity:

In Maneka Gandhi v. Union of India 1978, the SC gave a new dimension to Article 21 and held that
the right to live is not merely a physical right but includes within its ambit the right to live with
human dignity.

Woman has a right to put her grievance at any platform of her choice and even after decades.

Indian cases & defamation:

priya ramani defamation case:

early 2.5 years after former Union minister MJ Akbar filed a criminal defamation case against
journalist Priya Ramani for accusing him of sexually harassing her, a Delhi court on Wednesday
acquitted Priya Ramani in the case.

In the wake of the #MeToo movement in 2018, Priya Ramani had accused MJ Akbar of sexual
misconduct.

Before entering politics, MJ Akbar had served in key editorial positions of several leading
newspapers.
Following Priya Ramani's charges, MJ Akbar filed a criminal defamation complaint against her on
October 15, 2018.

In his plea, MJ Akbar accused Priya Ramani of defaming him by accusing him of sexual misconduct
decades ago when he was a journalist.

As public criticism mounted, MJ Akbar was forced to resign as a Union minister on October 17, 2018.

MJ Akbar has denied all allegations of sexual harassment made against him by women who came
forward during #MeToo campaign against him.

Over 20 women came up with accounts of the alleged sexual harassment by MJ Akbar while they
were working as journalists under him. He termed the allegations "false, fabricated and deeply
distressing" and said he was taking appropriate legal action against them.

Javed Akhtar defamation case:

Mr. Akhtar filed the complaint under sections 499 (defamation) and 500 (punishment for defamation)
of the Indian Penal Code. The application mentions an interview given by the actor to a channel in
which she allegedly makes defamatory statements against him and links him to actor Sushant Singh
Rajput's death.

Famous Foreign cases of defamation:

Depp v News Group Newspapers [2020] EWHC 2911 (QB)

The most high profile libel trial of the year. This was the claim by actor Johnny Depp against the
publisher of the Sun newspaper. The action came following the publication of an article characterising
him as “wife beater Depp”. After a 16 day trial Nicol J reserved judgment for 3 months. His 128
page judgment concluded that:

“The Claimant has not succeeded in his action for libel. Although he has proved the necessary
elements of his cause of action in libel, the Defendants have shown that what they published in the
meaning which I have held the words to bear was substantially true.”

There were regular Inforrm case reports and an Inforrm case comment. Coverage from news outlets
was also predictably broad with the Independent, [Link] and the Sun itself. Depp is reported
appealing the finding.
Serafin v Malkiewicz & Others [2020] 1 WLR 2455

An action for libel and misuse of private information in respect to an article published in October
2015. The UK Supreme Court here provided guidance on s.4 of the Defamation Act 2020, the public
interest defence. The case is also significant due to the rare instance of the UK Supreme Court
ordering a full retrial in the case, concluding that “the justice system has failed both sides” with “deep
regret” and “a degree of embarrassment in relation to respected colleagues” in the Court of Appeal.
There was an Inforrm case comment and a comment from 5RB Chambers.

Gubarev v Orbis Business Intelligence Ltd [2020] EWHC 2912 (QB)

A defamation trial concerning the publication of an article on Buzzfeed alleging that the claimants
took actions to undermine the democratic party leadership throughout March-September 2016. It was
not established that the defendant was responsible in law for the publication of the publication
complained of. There was an Inforrm case comment.

Vardy v Rooney [2020] EWHC 3156 (QB)

A trial of a preliminary issue on meaning following Ms Rooney’s statement on her Instagram account
that she had identified who was leaking details of her personal life to the Sun. There was an Inforrm
case comment. As expected the case drew a media frenzy with commentary from the Metro, CNN,
Telegraph, Daily Mail and INews.

Campbell v Dugdale [2020] CSIH 27

A case in First Division, Inner House of the Court of Session. The case concerns allegations that a
tweet made by the claimant was homophobic. The then Leader of the Scottish Labour Party described
the tweets as “homophobic” and described the author as “someone who sprouts hatred and
homophobia towards others”. It was affirmed that the defence of fair comment was applicable here
and the appeal was dismissed. Brodies LLP has a case comment.

1704604 Ontario Ltd. v. Pointes Protection Association; Bent v. Platnick

These two cases analysed anti-SLAPP legislation in Ontario providing a detailed review of the
language of the legislation and how it ought to, theoretically, be applied. Plantick involved the
application of these principles with the 5:4 split suggesting that there remains a high degree of judicial
discretion at play in the application of Ontario anti-SLAPP legislation. There was an Inforrm case
comment.

Herron v HarperCollins Publishers Australia Pty Ltd (No 3)[2020] FCA 1687.

The case concerned allegations made in a book written by journalist Steve Cannane, published in
2016, which concerned the Church of Scientology in Australia. The Claimants sued for defamation
over the book’s contents, despite the issues raised having been found against them by an enquiry 30
years previously. The case covered determinations of many factual matters and ultimately the
claimants were unsuccessful. There was a 5RB news item.

Rush v Nationwide News [2020] FCAFC 115

The newspapers’ unsuccessful appeal against the original finding in the Geoffery Rush defamation
case from last years list, this concerned the assessment of the award of damages made by the Court.
The award of $2,872,753.10 to Mr Rush was upheld. The case was covered by the BBC.

Higgins v Irish Aviation Authority [2020] IECA 157.

A €387,000 defamation award by a jury to an Aer Lingus pilot against the Irish Aviation Authority
(IAA) has been cut to €76,500 by the Court of Appeal. Mr Justice Donald Binchy, on behalf of the
three-judge COA, found the appropriate sum for general and aggravated damages was €76,500. There
were pieces in The Irish Examiner and the Sunday Times. There was a discussion on the Ronan Daly
Jermyn website.

Industrialist and defamation:

industrialists often sue media houses and journalists alleging defamation and claiming crores of
rupees in damages. But, there are some occasions, when they themselves become target of such cases.
On Monday, Bombay Dyeing chairperson and independent director of some Tata group firms Nusli
Wadia threatened to sue Tatas for defamation, if his demands were not met.

Here are some instances where corporations or their chieftains found themselves dragged to the court
by their rivals, officials and others.
1. 1997: B V P Rao vs Rata Tata and others

B V P Rao contended that Tata Tea had twisted and suppressed the facts projecting him in a very poor
light by alleging that there was no response from him as home secretary in December 1995 for
providing security after the Tata Tea received a letter from the Ulfa demanding hundred walkie-talkie
sets. Rao, who was then the state power commissioner, claimed damage of Rs 1 crore against the Tata
Tea, its managing director R Krishna Kumar and chairman of Tata group of companies Ratan Tata.

2. 2006: R S Lodha vs B K Birla

Auditor R S Lodha, who had claimed that Priyamvada Birla had bequeathed her assets worth
thousands of crores to him, sued industrialist B K Birla for damages of Rs 100 crore. He said Birla's
statements in the media had tarnished his image.

3. 2008: Anil Ambani vs Mukesh Ambani

Anil Ambani sued brother Mukesh for damages of Rs 10,000 crore for certain libelous statements by
the latter in an interview to New York Times. The American publication and some Indian papers
which reproduced this were also made respondents. Case was withdrawn after the truce between
brothers a few years later.

4. 2010: Chris Cairns vs Lalit Modi

New Zealand cricketer Chris Cairns sued the then IPL chairperson Lalit Modi, in the UK's first
Twitter libel case over a defamatory tweet sent in January 2010, in which Modi referred to Cairns'
alleged involvement in match-fixing as the reason for barring him from the IPL auction. "The
allegation made by Lalit Modi that I have been involved in match fixing is scandalous and wholly
untrue. For him to circulate such a falsehood around the world is outrageous," Cairns said in a
statement. In 2012, a UK court awarded damages of 90,000 pounds and costs of 1.5 million pounds.
Modi had said he would appeal.

5. 2014: Veritas vs Indiabulls

Canadian investment firm Veritas Investment filed a suit of settlement of claim in Ontario against
Indiabulls claiming $11 million (Rs 70 crore) in damages for the alleged defamatory announcements
and press releases put out by Indiabulls, which led to the closure of its India Research services.
Indiabulls won an interim order against the move in Delhi High court. Few months later, it also filed a
suit claiming Rs 200 crore damages from Veritas and its analyst Neeraj Monga for submissions made
in the Ontario claim.