Table of Contents
1) Introduction
2) Types of defamation
3) Essential Elements of Defamation
3.1) 1. The Statement should be made
3.2) 2. The Statement must be defamatory
3.3) 3. The Statement must refer to the plaintiff
3.4) 4. The intention of the wrongdoer
3.5) 5. The Statement should be false
3.6) 6. The Statement should not be privileged
3.7) 7. The Statement must be published
3.8) 8. The third party believes the defamatory matter to be true
3.9) 9. The Statement must cause injury
4) Defamation and Freedom of Speech
5) What is the interpretation of the Supreme Court on defamation?
6) Conclusion
Introduction
A man’s reputation is considered valuable property. Each and every man has a right to protect
his reputation. This right is indorsed as an inherent personal right and is a jus in rem i.e., a
right good against all persons in the world. The injury caused to the reputation of a person in
the eyes of the third person is defined as Defamation. The injury can be done either by
written or oral means. Provided that the intention of the person creating the defamatory
statement must be to lower the reputation of the person against whom the statement (that
harms a person’s reputation) has been made, In the eyes of the general public. Defamation
can damage a person’s emotional, physical and financial well-being.
Types of defamation.
1. Libel is a defamatory statement that is made in writing by the defendants.
2. Slander is an untrue defamatory statement that is spoken orally by the defendants.
In India, there is no such distinction between libel and slander. Both libel and slander are
offences. It harms a person’s reputation and can lead to a lawsuit. Defamation is both a civil
and criminal offence in India. The remedy for a civil defamation is covered in the Law of
Torts.
In a civil defamation case, a person who is defamed can move either to the High Court or to
the subordinate courts and seek damages in the form of monetary compensation from the
accused. Whereas in criminal defamation case, a guilty person can be sent to jail for two
years as per sections 499 and 500 of the Indian Penal Code, 1860.
Section 499 of Indian Penal Code, 1860 gives the broad definition of defamation with subject
to four explanations and it also cites ten exceptions. The exceptions includes “imputation of
truth” These include “imputation of truth” which is required for the “public good” and thus
has to be published, on any of the public conduct of government officials, the conduct of any
person stirring any public question and the merits of the public performance.
INNUENDO: Sometimes the statement may prime facie be innocent but it has some hidden
or secondary meaning which will be considered as defamatory. Such statements are known as
innuendo.
Essential Elements of Defamation
1. The Statement should be made
A statement can be made by words either spoken or intended to be read, or by signs or by
visible representations. For example, X is asked who stole Y’s diamond necklace. X points to
Z, intending to cause everybody to believe that Z stole the diamond necklace. This is
defamation.
2. The Statement must be defamatory
Defamation begins when somebody makes a false and unpleasant statement, and person who
makes a defamatory statement can be held liable for defamation. A defamatory statement is
likely to diminish the good belief that others hold about the person and it has the propensity
to make the society or other persons to look at him with a feeling of ridicule, hatred, fear or
dislike. Abusive language sometimes may also be defamatory, for example, to call a man
hypocrite or a habitual drunkard. A few illustrations to understand what is defamatory
statement and what is not a defamatory statement. To say a motorist drives negligently is a
defamatory statement. To criticize goods is not a defamation. To say that a baker’s cake is
always distasteful is defamatory.
3. The Statement must refer to the plaintiff
The defamatory statement must refer to the person. The reference may be implied or
expressed. It is not necessary that the plaintiff’s name has to be mentioned if he can still be
recognized. The person referred to in the defamatory statement can be living or deceased,
however, the defamation suit on behalf of a deceased person can be filed only if the person
filing the defamation suit has an interest.
4. The intention of the wrongdoer
The person making the defamatory statement knows that the third party listening to the
statement will believe the statement to be true and it will result in causing injury to the
reputation of the person and the person can be defamed.
5. The Statement should be false
The truth is a defence to defamation so a defamatory statement should be false. The falsity of
the statement is an essential ingredient of defamation so if the statement made is true then
there is no defamation. The law does not punish any person for speaking the truth, even if it is
unpleasant.
6. The Statement should not be privileged
In some situations, the statements may be privileged i.e. the person who has made the
statement is secure from such liability.
7. The Statement must be published
For defamation to take place, the statement should be published i.e, communicated to a third
party. Any statement sent as a personal message or written in a personal diary does not
amount to defamation, but if the sender knows that it is possible that a third person can read
it, then it is considered as defamation. In the case Mahendra Ram v. Harnandan Prasad, the
offender was held liable because he had sent a defamatory message which was written in
Urdu language despite knowing the fact that the plaintiff could not read Urdu language and
eventually the letter will be read by someone else.
8. The third party believes the defamatory matter to be true
The other people of the society to whom the statement has been said believe that the
defamatory matter to be true about the plaintiff.
9. The Statement must cause injury
The statement made by the person should harm or injure the plaintiff in some or the other
way.
Defamation and Freedom of Speech
The main objective behind the law of defamation is to protect the right of reputation. If
anyone makes false and disrespecting statements about another person which can defame that
person then the person who made the statement can be held guilty for defamation. The law of
defamation envisages the clash of two fundamental rights that is right to freedom of speech
and expression and the right to reputation.
Article 19(1)(a) of the Indian Constitution provides people freedom of speech i.e. Right to
speak freely without government intervention. The value of freedom of speech is that free
speech and expression are equal to democracy and infringing of this fundamental right will
amount to violating democracy. So, the argument that is raised is that delivering speech on
public matter should be safeguarded and distinguished from private speech. Therefore, the
defamation law should be balanced with the fundamental right to freedom of speech and
expression. The rules of defamation law are intended to intermediate between these two
rights.
Conclusion
The law of defamation serves the purpose of protecting people from having their reputation
injured resultant from false statements made against them by anyone. However, it is still in
peace with the right to freedom of speech and expression, as people are allowed to make true
statements and give their opinions as well. This area of law seeks to protect an individual’s
reputation from being injured by preventing unfair speech. The apex court has stated in
several cases that the realm of freedom of speech and expression is “sacrosanct” but is not
“an absolute”. It also said that the right to life under Article 21 of the Indian Constitution
includes the right to reputation of a person and it cannot be violated at the cost of the freedom
of speech of another person.
