DEFAMATION AS A TORT

MEANING:
Section 499 of the Indian Penal Code (IPC) states that “Whoever, by words either spoken or
intended to be read, or by signs or by visible representations, makes or publishes any
imputation concerning any person intending to harm, or knowing or having reason to believe
that such imputation will harm, the reputation of such person, is said, except in the cases
hereinafter expected, to defame that person”.
Defamation, in a layman’s language, is the act of communicating false statements to any third
party that injure the reputation of the person. Explanation 1.-It may amount to defamation to
impute anything to a deceased person, if the imputation would harm the reputation of that
person if living, and is intended to be hurtful to the feelings of his family or other near
relatives. Explanation 2.-It may amount to defamation to make an imputation concerning a
company or an association or collection of persons as such. Explanation 3.-An imputation in
the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.-
No imputation is said to harm a person’s reputation, unless that imputation directly or
indirectly, in the estimation of others, lowers the moral or intellectual character of that
person, or lowers the character of that person in respect of his caste or of his calling, or
lowers the credit of that person, or causes it to be believed that the body of that person is in a
loathsome state, or in a state generally considered as disgraceful.

Broadly characterising, there are two forms of Defamation~

1.) LIBEL &
2.) SLANDER

LIBEL
Definition~
A Libel is a publication of a false and defamatory statement in some permanent form, tending
to injure the reputation of another person, without lawful justification or excuse.
Ingredients~
In order to establish the tort of defamation, the following three conditions must be satisfied:

1. The statement must be false The falsity of the statement is presumed in the plaintiff’s favour, The
plaintiff need not prove it to be false, and the burden is on the defendant to prove that it is true.

2. It must be in a permanent form The statement must be in writing. It may be in print or even
conveyed by means of a cinema film or a gramophone record. Thus, Princess Irina of Russia
succeeded in a suit filed by her against the MGM (Metro Goldwyn Mayer) Pictures in whose film
entitled “Rasputin the Mad Monk”, she was represented as Princess Natasha and as having been
seduced by Rasputin.

3. It must be defamatory.

Libel is actionable per se Libel is, in all cases, actionable per se, that is, without proof of actual
damage. When the statement is made in a permanent form, the law presumes that, of necessity, the
person defamed has suffered legal damage.

SLANDER
Definition~

A slander is a false and defamatory verbal or oral statement in some transitory form, tending to
injure the reputation of another, without lawful justification or excuse. By reputation is meant the
opinion of the world in general. Slander is not actionable without proof of special damage, that is, it
is not actionable per se, except in the five cases mentioned below. Ingredients of slander The
following are the six ingredients of slander.

(1) The matter complained of must be defamatory. A matter is defamatory when it lowers the
plaintiff in the esteem of others or causes him or her to be shunned by members of the society.
Thus, to say that Z is suffering from leprosy is defamatory, but not when Z is said to be suffering from
small-pox. A statement is also defamatory when it exposes the plaintiff to hatred, contempt, ridicule
or obloquy. It is equally so when the statement tends to injure him in his profession or calling. Thus,
calling a lawyer ignorant of the law is defamation.

(2) It must be false and must not be privileged or in the nature of a fair and bona fide comment.

(3) It must refer to the plaintiff.

(4) It must be published.

(5) It must be published by the defendant.

(6) There must be special damage to the plaintiff, except in the five cases below where special
damage is not required to be proved. How far special damage is requisite in slander As seen above,
slander is not actionable per se. Except in the five cases mentioned below, slander is actionable only
on proof of special damage. Mere loss of reputation is not sufficient to constitute an action for
spoken words. There must be loss of some material advantage, some loss which is pecuniary, or at
any rate, capable of being estimated in money.

Slander when actionable per se-In the following five cases, however, slander is actionable per se,
that is, special damage need not be proved by the plaintiff:

1. Accusation of a criminal offence-Slander is actionable per se if the words charge the plaintiff with
the commission of a criminal offence punishable corporally and not by fine only, as for example,
murder, robbery, theft, arson, etc.

2. Accusation of virulent disease-Slander is likewise actionable per se if the words contain an

imputation of a contagious disease. Venereal disease and leprosy come within the rule; small-pox,
however, does not. However, the imputation must be that the plaintiff was suffering from the
disease at the time the words were spoken, and not at some time in the past. Thus, where the
defendant told others that his son-in-law was suffering from venereal disease, it was held that the
son-in-law could succeed, even though he was unable to prove any special damage.
3. Imputation against office, profession or trade-Slander is actionable per se where the words are
spoken of the plaintiff in relation to his office, profession or trade, as for instance, to accuse a
barrister or a medical man of incapacity or of infamous practices in the discharge of his professional
duties. It may be noted that the defamatory words, although calculated to injure a person in his
office, profession or trade, but not relating to his conduct therein, are not actionable per se.

4. Unchastity in woman or girl-At common law, words imputing unchastity to a woman were not
actionable without proof of special damage. However, by virtue of the Slander of Woman Act, 1891,
words imputing unchastity or adultery to any woman or girl are now actionable per se in England. In
an old case, it has been held that to call a woman a ‘lesbian’ amounts to defamation.

5. Aspersion on caste- The trend of modern Indian decisions is that it is defamatory to say of a high
caste woman that she belongs to a lower caste. It is defamatory, not only of her, but also of her
husband, he having married a woman of a lower caste. Such an allegation is thus actionable without
proof of special damage.

SLANDER AND LIBEL DISINGUISHED

1. Written or oral Libel is defamation in a written and permanent form, normally addressed to the
eye; slander is defamation in an oral, transient form, normally addressed to the ear. Defamation
through a parrot would thus be slander.

2. Permanent or transient Libel is defamation in a permanent form, whether exhibited to the eye (as
in the case of a statue, effigy, caricature and the like) or only to the ear (as in the case of a
phonographic record or audio cassette). Slander, on the other hand, is defamation in a transient
form, whether audible, as in spoken words, or visible, as in the case of a gesture.

3. Tort or crime In England, libel is both a civil wrong and a criminal offence, whereas slander is a civil
wrong only. Spoken words may, however, fall within the criminal law if they are blasphemous,
seditious or obscene or if they amount to a solicitation to commit a crime or a contempt of court.
There is, however, no crime of slander under English law. In India, both libel and slander are torts as
well as crimes.

4. Whether actionable per se Libel is actionable per se, that is, without proof of actual damage,
whereas slander is not - except in the five cases mentioned above.

5. Presence of malice Libel shows greater deliberation and raises a suggestion of malice. Slander, on
the other hand, may be uttered in the heat of the moment and under a sudden provocation.

6. As to the publisher The actual publisher of a libel may be an innocent person and therefore not
liable in law, whereas in every case of publication of a slander, the publisher acts consciously and
voluntarily and is, therefore, liable.

7. Limitation Under English law, an action of libel is barred after six years whilst that of slander is
timebarred after two years. In India, the period of limitation is one year for both. Defamation via
radio, television Defamation via radio or television has not yet been considered extensively by the
courts and there is a conflict of opinion in this regard. In some cases, it has been held to be libel and
in some others, slander. Yet other cases have laid down that it would be libel if the broadcaster
reads from a script and slander if he does not. One American Judge has even coined the word
‘defamacast’ - perhaps to avoid calling it by either name.
REQUISITES OF A DEFAMATION
As stated earlier, defamation is a generic term, covering both libel and slander. The four requisites
common to both are as follows:

1. The statement must be defamatory.

2. The statement must refer to the plaintiff.

3. The statement must be published.

4. The statement must be false.

1.) The statement must be defamatory.

A statement will be defamatory if it (i) exposes the plaintiff to hatred, contempt, ridicule or obloquy
or (ii) tends to injure him in his profession or trade or (iii) causes him to be shunned or avoided by
his neighbours or by members of the society. Defamation is thus an invasion of one’s reputation and
good name. Defamation is that which tends to injure one’s ‘reputation’ in the popular sense, to
diminish the esteem, respect, goodwill or confidence in which a person is held, or to excite adverse,
derogatory or unpleasant feelings or opinions against him. Drawing on American law, it can be said
that in the absence of special circumstances which add another meaning to the words, it is not
defamatory to say that a man is dead, or that he is over-cautious with his money, or that he has led
an eventful life, or that he has no permanent address, or that he is a labour agitator. However, it
would be defamatory to say that a person is immoral or unchaste or that he refuses to pay his just
debts or that he has ‘wife-trouble’ and is about to be divorced or that he is a ‘skunk’ or a ‘bastard’.
Humour can also be made an instrument of defamation. It is, of course, possible that humour may
be understood by all who hear or read it as good-natured fun, not to be taken seriously or in any
defamatory sense. But when it carries a sting and causes adverse rather than sympathetic
merriment, it may become defamatory. Thus, a speech made after dinner may be understood by all
present as a harmless after-dinner joke, perhaps inspired by a few round of drinks. However, if it is
published in a newspaper on the next day and reaches those who do not understand the comments
which are published out of their context, it may amount to a libel. Relevancy of intention or motive
Where the words are defamatory, the question of intention or motive with which they are used is
quite immaterial. Good faith or ignorance of the defamatory nature of the statement is no defence -
for a man utters defamatory statements at his peril. Liability for libel does not depend on the
intention of the person who defames, but on the fact of defamation. In an action for defamation, the
falsity of the charge is presumed in the plaintiff’s favour. The burden of proof that the words are
false does not lie upon the plaintiff. NEWSTEAD v. LONDON EXPRESS, (1940) 1 K. B. 377. - A
newspaper published an account of a trial for bigamy and referred to the prisoner as “Harold
Newstead, thirty-year old Camberwell man”. The account was true as regards a Camberwell barman
of that name but was not true as regards the plaintiff, Harold Newstead, aged about thirty, who
assisted his father in a business at Camberwell. In an action against the proprietors of the
newspapers, it was held that, assuming the fact that the words complained of were capable of a
meaning defamatory of the plaintiff, the fact that they were true of another person did not afford a
good defence to the defendants. Proof of intention may, however, be material on the question of
damages. Thus, in this case, the jury awarded to the plaintiff damages of one-fourth pence only.
Innuendo Sometimes defamation is not apparent or prima facie. It is often couched in subtle
language. Words which are not defamatory in the ordinary sense may nevertheless convey a
defamatory meaning owing to the particular circumstances in which they are spoken. When a
statement is thus prima facie innocent, but the plaintiff alleges that it has a defamatory significance,
he must, in his pleadings, set forth the circumstances which make it actionable. In technical
language, he must prove an innuendo. By innuendo is meant this explanatory statement that,
though the words were not libelous in their ordinary meaning, they had, in fact, a specified libelous
meaning in the circumstances of the case. Thus, if X says, “Mr. Z is a very honest man. He never stole
my watch”, the statement is defamatory. The innuendo or the underlying (or real) meaning is that Z
did, in fact, steal the watch, he being dishonest. The following cases will clarify this point. CASSIDY v.
DAILY MIRROR, (1929) 2 K. B. 33. — The defendants published in a newspaper a photograph of one
M. C. and a Miss X, together with the words “Mr. M. C., the racehorse owner and Miss X, whose
engagement has been announced.” In an action by the 98 | P a g e plaintiff, the wife of M. C., it was
held that the publication was capable of conveying a meaning defamatory of the plaintiff, namely,
that she was not the lawful wife of M. C., and was living with him in immoral cohabitation. CAPITAL
AND COUNTRIES BANK v. HENTY, (1882) 7 App. Cases, 741. — The defendants, H & Sons, having a
dispute with one of the branch managers of the plaintiff bank, sent a circular notice to their own
customers containing the following sentence: “H & Sons hereby give notice that they will not receive
in payment cheques drawn on any of the branches of C & C Bank”. The circular was followed by a
run on the bank and it suffered loss. In an action brought by the bank, alleging that the notice was
libelous inasmuch as it amounted to an imputation of insolvency, it was held that the natural
meaning of the words was not libelous, and the inference suggested by the innuendo to the effect
that the plaintiffs were insolvent was not the inference which reasonable persons would draw.
Hence, the circular was not libelous. In another case, X made a tom-tom in the following words: “Y’s
goods are being sold by public auction”. Y sued X on the ground that these words suggested an
innuendo that Y was insolvent. It was held that X was not liable, as there was no suggestion that the
goods were being sold because the owner of the goods did not pay his debts. BYRNE v. DEAN, (1937)
1 K.B. 818. — In this case, the plaintiff was suspected of having informed the police that there were
unauthorised gambling machines on the premises of a club. Subsequently, an anonymous lampoon
was pinned on the club’s notice-board, with the following lines: “But he who gave the game away
May he burn in hell and rue all day.” The Court held that this was not defamatory. The members of
the club would not be “rightthinking” if an attempt to suppress crime lowered a person in their
estimation. American cases In one interesting case, a retail clothing store, in order to promote its
sales, mailed a series of post-cards to its prospective customers, one of which was Mr. X. The post-
card, written in feminine handwriting read as follows: “Please call W. Abash 1943, and ask for
Carolyn.” According to Mr. X, when his wife read the card, she concluded that he was having a
clandestine love affair and left him. In fact, Carolyn was only the name of the sales employee in
charge. In a suit by Mr. X against the store, it was held that Mr. X could not succeed, as the words
could not reasonably be construed to have any salacious meaning as alleged. (Perry v. Moskin
Stores, 249 S. W. 2d 812) In another case, the defendant accused the female plaintiff of being a
prostitute and called her a vagabond. Thereupon, the plaintiff’s brother, who had promised to give
her funds to migrate to Australia, retracted his promise till the truth or falsity of the defendant’s
charges was established. The Court held that special damage was shown, since the plaintiff could not
get the expected financial assistance (which she otherwise would have received), and she was,
therefore, entitled to succeed. (Corrosan v. Corcoran, 7 C.L. 272) In yet another interesting American
case, the defendant (who was a portrait painter) was employed by a person to paint his portrait.
Upon completion, the customer refused to accept and pay for the portrait on the ground that the
job was not done well. Thereupon, the defendant painted a pair of donkey’s ears on the portrait and
put it up for sale. The Court held that there was an actionable libel. (In Re Francis Mezzora, 2. N. Y.
City Hall Records, 113) 2. The statement must refer to the plaintiff The second requisite of
defamation (whether libel or slander) is that the statement alleged to be defamatory must refer to
the plaintiff. In every action of defamation, the plaintiff must prove that the statement refers to him.
It is, however, not necessary to show that the defendant intended it to refer to the plaintiff. The
question in each case is not whether the defendant intended any such reference, but whether any
person to whom the statement was published reasonably thought that the plaintiff was the person
referred to. The question is not who was meant, but rather who was hit. In other words, the
question is not what the defendant really intended, but what the words mean when fairly construed
along with the relevant circumstances. E. HOULTON & CO., v. JONES, (1910) A. C. 20. — The
appellants, in their newspaper, published an article in which one “Artemus Jones” described as a
churchwarden, was accused of living with a mistress in France. The article was written as a fiction
and the writer of the article and the owners of the newspapers were ignorant of the existence of any
person with that name. Unfortunately, however, the name so chosen was that of a real person, an
English barrister and journalist (who was not a churchwarden), and those who knew him supposed
that the article referred to him. It was held by a majority of the House of Lords that the defendants
were liable, notwithstanding the absence of any intention to defame the plaintiff. In T.Y.R. IYER v.
MOHIDEEN, (1972) A. I. R. Mad. 398, the Madras High Court has held that the rule laid down by the
majority judgment in Houlton’s case (above) is not in accordance with justice, equity and good
conscience and is, therefore, not applicable to India. [See also NEWSTEAD v. LONDON NEWSPAPER
LTD. (1940) 1 K. B. 377, discussed above.] HAYWARD V. THOMSON (1981, 3 W L R 470). - In this case,
the plaintiff sued the editor, the correspondent and publishers of The Sunday Telegraph, for an
article which connected the plaintiff to an alleged murder plot. The plaintiff was not named in the
article, which referred to him as “a wealthy benefactor of the Liberal party”. The plaintiff was, in
fact, a wealthy philanthropist, who had given more than two million pounds to the Liberal party. In a
subsequent article published by the same newspaper, he was named and it was stated that the
Police wanted to interview him. The defendants, having made no apologies for the publication, the
plaintiff sued them for damages. Awarding 50,000 pounds as damages, the court held that the first
article was defamatory and was understood by many to be aimed at the plaintiff. Moreover, the
second article could be looked at to see whom the first article referred to. In the circumstances, one
lump-sum award for both the publications was made in favour of the plaintiff. [Note: The rule that it
is no defence to an action for libel or slander to show the absence of any intention to defame is now
modified in England by the Defamation Act, 1952. According to this Act, if a person who has
published words alleged to be defamatory of another person claims that the words were published
by him innocently in relation to that other person, he may make an offer of amends. In such a case,
he would not be liable.] 3. The statement must be published “Publication”, in the present context,
means making the matter known to some person other than the plaintiff. It is publication and not
the mere speaking or writing of defamatory words which is the gist of the tort of defamation. Thus,
no action can be maintained for libel or slander, unless there is a publication. Therefore, no action in
tort will lie if the defamatory words are communicated only to the person allegedly defamed - as
that cannot injure his reputation, although it may injure his self-esteem. Thus, there must be a
communication to at least one third person before the defamer can be sued. In short, publication of
defamatory matter means the making known of the statement to any person other than the person
defamed. Communication to a single third person can thus constitute defamation. It may also be
noted that communication need not be intentional; it may even be negligent. The following are a
few instances of publication: defamatory matter transmitted in telegrams or post cards, letters
usually opened by clerks of the plaintiff, defamatory pictures or films, etc. In one case, the defendant
sent a registered notice to the plaintiff at his home address. The letter was written in the Urdu script
and contained certain defamatory allegations against him. The plaintiff, not being conversant with
Urdu, took it to another person to read it and that person read it out in the presence of other
persons. The court held that, since it was neither pleaded nor proved that the defendant had written
it, knowing that the plaintiff did not understand that 100 | P a g e language and would have to get it
read by another person, the defendant was not liable. (Mahendra Ram v. Harnandan Prasad, AIR
1958 Pat. 445) Although the English rule provides that every sale or delivery of a newspaper is a
distinct publication, the majority of American courts have preferred the “single publication rule”
under which an entire edition of a newspaper or a book is treated as one publication, and the
plaintiff is permitted to plead and prove merely a general distribution of the libel and show the
extent of the circulation for the purpose of calculating the quantum of damages. The law of the State
of California, USA, provides that in any suit for libel through a newspaper or a slander by a radio
broadcast, the plaintiff is entitled to recover only special damages (that is, damages actually suffered
by him) unless he has demanded a correction and such correction has not been published or
broadcasted. The constitutional validity of this law has been upheld in Warner v. Southern California
Associated Newspapers, 35 Cal. 2d. 121) 4. The statement must be false Lastly, the defamatory
statement must be false. No civil action lies for the publication of a defamatory statement which is
true. The plaintiff need not prove that it is false; falsity of a defamatory statement is presumed in
favour of the plaintiff and the burden is thrown on the defendant to prove that it is true. Truth is an
absolute defence to an action for defamation. In one case, a news item was published in a Telegu
daily that the plaintiff, an advocate, had raped a Harijan woman. Although the episode was not
totally false and even a First Information Report had been filed with the police in the matter,
exaggerated versions were given in the news item, with several deviations and improvements. The
Court held that such a publication did amount to defamation and could not be excused under the
guise of freedom of expression or freedom of the press. In the circumstances, the plaintiff’s claim
was partly allowed and he was awarded compensation of Rs. 10,000. (Salenadandasi v. Gajjala Malta
Reddy, AIR 2008 (NOC) 299 A. P.) III. DEFENCES The following three defences available to a
defendant in an action for defamation: 1. Justification (or truth) 2. Fair and bona fide comment 3.
Privilege. 1. Justification (or Truth) It is a complete defence to an action for libel or slander to show
that the words complained of are true in substance and in fact, for the law will not permit a man to
recover damages in respect of an injury to a character which he does not, or ought not to, possess. It
is immaterial in law that the defendant made a defamatory statement without knowing of its truth,
as long as it turns out to be true when made. If the statement is true, the publisher’s purpose or
motive is irrelevant. Mere belief in the truth of the statement, however, is no defence, for a man
attacks the reputation of another at his own peril, and mistake, howsoever innocent or inevitable,
can be of no help. In one case, a suit for damages was filed against the printer and the publisher for
having printed a defamatory news item under the caption “Theft of elephants’ tusks”. The
defendants took the plea of justification by truth, and the Kerala High Court ruled in favour of the
defendants, adding that the plea of justification by truth is a well- established defence in India in a
suit for defamation. (N. Achuthan v. The Deshabhimani Printing & Publishing House, A. I. R. 1986 Ker.
41) A libel, which is also a crime, has a tendency to provoke a breach of the public peace, and all the
more so, when it reflects the truth. Therefore, it is said that the greater the truth, the greater the
libel. So, in India, under Exception 1 of S. 499, Indian Penal Code, and in England under the Libel Act,
1943, the accused in a criminal proceeding is required to prove not only that the statement
complained of was true, but also that it was made in public interest. 101 | P a g e 2. Fair and bona
fide comment The second defence or justification to an action for defamation is that of fair and bona
fide comment. A fair and bona fide comment on a matter of public interest does not attract any
liability, however severe it may be in its terms, unless it is written intemperately and maliciously. The
word ‘fair’ in the expression ‘fair comment’ embraces the meaning of ‘honest’ and ‘relevant’. The
views expressed must be honest and such as can fairly be called criticism. But the comment, in order
to be fair, must be based upon true facts. If the facts are mis-stated, the defence of fair comment
will be of no avail. Moreover, the comment must be bona fide and must not be made a cloak for
malice. Legitimate criticism is not a tort. If it is no more than fair, honest, independent, bold, even
exaggerated criticism, then the verdict will be for the defendant. Mere exaggeration, or even gross
exaggeration, would not make the comment unfair. Liberty of criticism must be allowed, or one
would neither have purity of taste nor of morals. The words published must be (i) fairly relevant to
some matter of public interest; (ii) they must be the expression of an opinion, and not the allegation
of a fact; (iii) they must not exceed the limits of fair comment; and (iv) they must not be published
maliciously. Examples of matters of public interest are affairs of State, public acts of ministers and
officers of the State; the administration of justice; public institutions and local authorities; theatres,
concerts and other forms of entertainment; etc. A writer in a public paper may comment on the
conduct of a public man in the strongest terms, but if he imputes dishonestly, he must be prepared
to justify it. The privilege does not extend to calumnious remarks on the private character of the
individual. The defence cannot be sustained if the facts on which the comment purports to be made
do not exist. A journalist like any other citizen, has the right to comment fairly, and if necessary,
severely, on a matter of public interest, provided the allegations of facts he has made are accurate
and truthful, however defamatory they may be otherwise. Since his right to comment on matters of
public interest is recognised by the law, the journalist obviously owes an obligation to the public to
have his facts right. Where the journalist himself makes an investigation, he must be sure that all his
facts are accurate and true, so that if challenged, he would be able to prove the same. Public
interests are better served that way. (Rustom K. Karanjia v. Krishnaraj, 72 Bom. L. R. 94) Rolled up
plea In a civil action of defamation, the plea that words complained of are true in substance and in
fact, is a good justification which can be pleaded by the defendant. Similarly, that the alleged
material is in the nature of fair and bona fide comment is also a defence. Sometimes, a plea is
advanced that, in so far as the words complained of consist of allegations of fact, they are true in
substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment
made bona fide. Such a plea is known as a rolled-up plea. Salmond, however, observes that “it is a
plea of fair comment only.” 4. Privilege The third defence is that of privilege. When a person stands
in such a relation to the facts of the case that he is justified in saying or writing what would be
slanderous or libelous in the case of anyone else, he is said to have a privilege, and the occasion on
which the privilege is exercised is known as a ‘privileged occasion’ There may be circumstances
under which it is right that one should speak out about another, and state fully and freely what he
honestly believes to be the truth as to his character an conduct. Such circumstances are deemed in
law to constitute a privileged occasion. It has been observed that an occasion is privileged only if it
can be fairly stated that the person who has made the communication has a duty or an interest in
making it, and the person to whom it has been made has a corresponding duty or interest in
receiving it. Only if these two factors co-exist, an occasion can be said to be “privileged occasion”.

Privileged occasions are of two kinds: (i) those that confer an absolute privilege and (ii) those that
confer only a qualified privilege. (a) Absolute privilege A statement is absolutely privileged when no
action lies for it, even though it is false, defamatory and made with express malice. Absolute
privilege arises when, on grounds of public policy, a man should speak out his mind freely and
without fear of consequences. No action lies in such cases, however false the statement may be. The
existence of malice is entirely irrelevant in these cases. Absolute privilege attaches to the following
four kinds of proceedings: 1. Parliamentary proceedings No action lies for statements made by
members of either House of Parliament in their places in the House, however injurious they may be
to the interest of third persons. However, this privilege does not extend to anything said outside the
House. CHURCH OF SCIENTOLOGY v. JOHNSON SMITH, (1972) 1 ALL E. R. 378. — The plaintiffs sued
the defendant who was a Member of Parliament, for alleged defamatory remarks made by the
defendant during a television interview. The defendant claimed the defences of fair comment and
privilege. The plaintiffs, in reply to his argument, alleged that the statement was made maliciously,
and in support, sought to adduce evidence of what the defendant had done and said in Parliament
on the same issue. It was held that what was done or said in Parliament cannot be examined outside
Parliament, and therefore, the evidence sought to be given had to be excluded. 2. Judicial
proceedings Every statement made in the course of judicial proceedings is absolutely privileged.
“The authorities establish beyond all question that no action of libel or slander lies, whether against
a judge, counsel, witnesses or parties, for words written or spoken in the course of any proceedings
before any Court recognised by law, and this is so though the words were written or spoken
maliciously without any justification or excuse and from personal ill-will and anger against the
person defamed.” The privilege extends to all pleadings and affidavits, and to all statements made
by an advocate, counsel, solicitor or the party in person, no matter how false, malicious or irrelevant
the words complained of may be. So also, every statement made by a witness in the box is
absolutely privileged, even if it is volunteered, provided that it is relevant to the enquiry before the
Court. No privilege, however, attaches to a matter wholly unconnected with the matters in issue and
made entirely to serve the witness’s own ends. It should be noted that although no action for
defamation lies against a witness for false statements made by him in the witness- box, a criminal
prosecution will lie for perjury if the witness intentionally gives false evidence. In a case decided by
the Calcutta High Court, the interesting question before the Court was whether the immunity which
a lawyer enjoys in a judicial proceedings is also available to him as regards a statement made by him
on behalf of his clients in the course of arbitration proceedings. The Court observed that, on the one
hand, public policy demands that lawyers and advocates must be given full freedom for the
vindication of the rights of their clients. On the other hand, however, a lawyer is not like a loose
cannon which inflicts any discriminatory damage whenever he announces that he is acting within his
professional capacity. A balance is, therefore, to be struck, and it was held by the Court that if, on
such occasions, the lawyer is acting in his professional capacity on the instructions of his client, then
his statements cannot amount to defamation, unless express malice is pleaded and established.
(Majumdar v. Ghosh & Co., A. I. R. 1979 Cal. 68) 3. Military and naval proceedings 103 | P a g e All
acts done in the honest exercise of military or naval authority, reports made in the course of military
or naval duty and statements (whether false or malicious) made before a military or naval Court-
martial, are also absolutely privileged. 4. State proceedings Communications relating to affairs of
State made by one officer of the State to another in the course of duty are likewise absolutely
privileged on the ground of public policy. (b) Qualified privilege In the case of a qualified privilege, no
suit will lie upon a statement, even though it is false and defamatory, unless the plaintiff proves
express malice. The following are the three chief instances of qualified privilege: 1. Statements made
in performance of a duty The circumstances of a case may be such as to cast on the defendant the
duty of making the communication to a third party. This duty may be legal, social or moral.
Communications made pursuant to a duty owned to society relate to the character of servants,
confidential and private matters, information as to crimes, etc. It is not sufficient to attract the
protection of qualified privilege that the subject-matter is one of general public interest. The person
or the newspaper who wants to communicate to the general public must also have a duty to
communicate and the person to whom the communication is made must have a corresponding duty
or interest to receive it. The principle on which the privilege is based is that such communications
are protected for the common convenience and welfare of the society. Thus, in Winstanely v.
Bampton, (1943) 1 K.B. 319, a letter was written by the creditor of a junior officer to his commanding
officer to secure payment of a debt. It was held that the occasion was privileged. WHITE v. J. AND F.
ETC., (1939) 2 K.B. 827. — C, a director of the defendant company, said to the plaintiff: “What have
you done with the money, White? You are 120 pounds short.” These words were overheard by T, a
co-employee of the plaintiff, who happened to be in a cellar below the room in which the statement
was made. Later, C said to the plaintiff, in the presence of P, another employee: “You understand on
what conditions I am dismissing you. You find 120 pounds short and I will give you your week’s
money.” In an action for slander based on these statements, the question raised was whether the
occasion was privileged. It was held, decreeing the suit in plaintiff’s favour, that in order to
constitute a privileged occasion, the person to whom the defamatory statement is published must
be a person who has an interest or a duty, legal, social or moral, to receive it, and where a statement
is made to the plaintiff, as here, in the presence of a third person, the occasion was not privileged,
unless the third person has such an interest or duty. Neither T nor P had such interest or duty. C was,
therefore, liable. BOXSIUS v. GOLBERT, (1894) 1. Q. B. 842. — A solicitor, under the instructions from
his client, dictated to his typist, a letter addressed to B, containing defamatory statements about B.
The letter was press- copied by another clerk. The question arose whether B could sue the solicitor
for defamation. It was held that the privilege protecting a business communication made on a
privileged occasion covers “all incidents of its transmission and treatment which are in accordance
with the reasonable and usual course of business.” Thus, the publication to his clerks by the solicitor
was covered by a qualified privilege, and therefore, B could not successfully sue the solicitor for
defamation. 2. Statements made in protection of common interest Every communication made bona
fide upon any subject matter with the object of protecting one’s interest common to the writer or
speaker and the person to whom it is made, is privileged. Thus, a master warning his servants
against undesirable companions is protected by his interest in their honesty. Similarly, complaints of
a landlord concerning disreputable sub-tenants, 104 | P a g e communications between partners or
joint-owners furthering or defending common interests, are privileged. 3. Fair and accurate reports
(i) Reports of judicial proceedings. — Such reports must be fair and a substantially correct account of
what took place in the court. A ‘report’ is to be distinguished from a ‘comment’. If they are mixed,
there is no privilege. (ii) Extracts or abstracts from report of parliamentary proceedings. — Under the
Parliamentary Papers Act, 1840, extracts or abstracts from reports ordered by Parliament to be
published possess qualified privilege. (iii)Fair reports of parliamentary proceedings. — A fair and
accurate report of any proceedings or debate in either House of Parliament or in the Legislature of
States or in any Committee of such Parliament or Legislature, is privileged, even though it contains
matter defamatory of an individual. If the subject-matter of such proceedings is in the public
interest, legitimate criticism, made in a newspaper, is also protected. (iv) Reports of quasi-judicial
proceedings. — True, accurate, fair and bona fide reports of the proceedings published by quasi-
judicial bodies enjoy a qualified privilege. Speeches made at meetings of local or any other bodies
are also privileged. Absolute and qualified privilege distinguished The following are the four points of
distinction between absolute and qualified privilege: 1. Express malice Absolute privilege is not
affected by the presence of express malice. A qualified privilege, however, is a privilege which is
rebuttable by proof of express malice on the part of the defendant. The plaintiff must prove that the
defendant was actuated by malice. 2. As to occasion In the case of absolute privilege, it is the
occasion which is privileged, and when once the nature of the occasion is shown, it follows as a
necessary inference, that every communication on that occasion is protected. But, in the case of a
qualified privilege, the defendant cannot prove privilege until he has shown how the occasion was
used. It is not enough to have an interest or a duty in making a communication; the interest or duty
must be shown to exist in making the communication complained of. 3. As to enquiry Absolute
privilege is a complete defence. However, in the case of qualified privilege, the person making a
statement is not exempt from enquiry altogether, but the question of liability will be determined by
consideration of malice or otherwise on his part. 4. Whether rebuttable Lastly, a qualified privilege is
a privilege which is rebuttable by proof of express malice on the part of the defendant, whereas
cases of absolute privilege are protected in all circumstances, independently of the presence of good
or bad faith. Summary of defences to an action for defamation 1. Justification (or truth) 2. Fair and
bona fide comment 3. Privilege: (a) Absolute privilege: 1. Parliamentary proceedings 2. Judicial
proceedings 3. Military and naval proceedings 4. State proceedings (b) Qualified privilege: 1.
Statement made in performance of duty 105 | P a g e 2. Statement made in performance of
common interest 3. Fair and accurate reports. IV. MISCELLANEOUS TOPICS Defamation of a
deceased person It is not a tort to defame the dead. But a criminal prosecution can lie for defaming
the dead if it would have amounted to defamation if the deceased were alive and if it is capable of
hurting the feelings of his living relatives. Defamation of a class If a libel is made in the name of a
class, a particular individual can bring an action only if he can show that it applied to himself. Thus, if
a man wrote that all lawyers were thieves, no particular lawyer could sue him, unless there was
something to point to that particular individual. In an American case, a statement made in the
presence of third persons that “one of you has stolen the dress” was held not to be a slander of
either of the three women to whom the statement was addressed. (Wright v. Rosenbaum, 344, S. W.
2d 228) Whether a corporation can sue for defamation A corporation, being a fictitious person,
cannot in the nature of things, be brought into hatred, ridicule or contempt by any manner of
falsehood. When a libel has been made against a corporation, it is, in fact, the individuals composing
it, and not the corporation in its aggregate capacity, whose reputation has been injured. A
corporation, therefore, cannot sue for defamation affecting personal reputation only. It is the
individual members only who have such a cause of action. Thus, in Mayor of Manchester v. Williams,
(1891) 1 Q.B. 94, the plaintiff corporation failed to recover damages in respect of a statement
containing charges of corrupt practices in the administration of municipal affairs, for such
statements did not injuriously affect the reputation of the corporation as such. But a corporation can
sue for defamation when it affects its business and property, even though the charge is leveled
against individual members. In order that a corporation may sue for defamation, two conditions
must exist: (i) The statement must be of such a nature that it would be defamatory if directed
against an individual, (ii) It must be of such a nature that its tendency is to cause actual damage to
the corporation in respect of its property and business. Thus, in South Hetton Coal v. North-Eastern
News Association, (1894) 1 Q.B. 133, the plaintiff company recovered damages in respect of
statements charging it with failing to provide decent and sanitary accommodation for its workmen
and their families, for such statements were calculated to injure it in the way of its business.
Defamation by or to husband and wife According to the age-old doctrine that husband and wife are
one in the eyes of the law, communication of a defamatory matter concerning a third person by a
husband to his wife or by a wife to her husband does not constitute publication. But where
defamatory matter concerning a husband is published to his wife by a third person or defamatory
matter concerning the wife is published to her husband, the husband and wife are regarded as
distinct and different persons and an action can be maintained. According to the Madras High Court,
a husband cannot maintain a suit for defamatory words imputing unchastity to his wife. However,
according to the Calcutta High Court, he can. Repetition of defamatory matter Every repetition of a
defamatory matter is a new publication and a distinct cause of action. A man who receives from the
hands of another a libel on any person is not justified in publishing it. Tale-bearers are as bad as tale-
makers. When slanderous words are not actionable per se, but damage arises from the repetition,
the originator will not be liable except - (i) where the originator authorised or intended the
repetition or (ii) when the repetition was the natural and probable consequence of his act or (iii)
where there 106 | P a g e was a moral obligation on the person in whose presence the slander was
uttered to repeat it. Liability of a news-vendor.— A street news-vendor is not supposed to know the
contents of the newspaper which he sells. Ordinarily, therefore, he is not liable for defamation. But
it is otherwise where he shouts the libelous matter contained in the newspaper with a view to
attract customers. Remedies for defamation A suit for damages is the commonest form of remedy in
cases of defamation. Further, the publication of defamatory matter may also be restrained by an
injunction under the provisions of the Specific Relief Act, 1963. As defamation is also a crime, the
wrong-doer can also be punished under the Indian Penal Code. Aggravating circumstances For the
aggravation of damages, the plaintiff must prove aggravating circumstances, as for instance, malice,
gross recklessness, violence of language, or a wantonly harmful imputation calculated to outrage the
feelings and to cause mental pain to the plaintiff, excessive publicity, repetition of libel, publishing
fresh libels before or after the suit, refusal or neglect to retract or apologise, conduct of the
defendant during the trial of the action, etc. In one case, a Municipal Council, out of ill-will and
malice, served a notice of distraint warrant on a practising Advocate and seized his furniture and
books. The Court held that he was entitled to substantial damages, although no evidence was
adduced as regards the damages suffered by him. (G. Sreedharamurthy v. Bellary Municipal Council,
A. I. R. 1928 Kar. 287) Mitigating circumstances For the mitigation of damages, the defendant must
prove mitigating circumstances, as for instance, an apology by the defendant at the earliest
opportunity, facts showing absence of malice or of gross negligence, like an inadvertent publication,
innocent repetition of a libel, provocation by the plaintiff, bad reputation of the plaintiff, etc.
Apology English Law.—Tendering an apology is a good defence in English Law under the Libel Act,
1843, and the Defamation Act, 1952. Indian Law. - If an apology is tendered by the defendant and
accepted by the plaintiff, the former can resist the plaintiff’s suit for defamation. However,
publishing a contradiction and expressing regret over the mistake does not, by itself, amount to an
apology.