Defamation

Definition of Defamation

Defamation is a legal term that refers to any statement or

communication that harms the reputation of a person, business, or
organization. (Definition of Civil Wrong) It is a common type of tort
law that protects individuals from false or harmful statements that can
cause them to suffer economic or reputational damages.
Defamation can be divided into two categories:
(i) Libel : Libel is a written or published defamatory statement.
(ii) Slander: Slander is an oral defamatory statement.
(Under Criminal Wrong/ Crime: Section 499 of Penal Code, 1860[1] defines
defamation as: Defamation.—
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.
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....)

Defamatory and Non-defamatory statements

In order for a statement to be considered defamatory, it must meet

several requirements. (Essentials)
(i) The statement must be false.
(ii) It must be communicated to a third party. i.e. someone other
than the party that made the statement and the party that the
statement was about.
(iii) It must harm the reputation of the plaintiff. (it also in
economic/monetary harm)
(iv) The defendant must have either known or should have known
that the statement was false or defamatory.

Essential Elements of Defamation

There are several key elements that must be present in order for a
plaintiff to successfully bring a defamation Suit. These elements include:

(i) The statement must be false: The plaintiff must prove that
the statement made about them is false. If the statement is
true, then it cannot be defamatory.

(ii) The statement must be communicated to a third

party: The plaintiff must prove that the defamatory statement
 was communicated to at least one other person, either orally
or in writing.

(iii) The statement must harm the reputation of the

plaintiff: The plaintiff must prove that the defamatory
statement caused them to suffer harm to their reputation,
either by damaging their standing in the community, causing
them to lose business or employment opportunities, or
otherwise causing them to suffer emotional distress.

(iv) The statement must be made with fault or negligence: The

plaintiff must prove that the defendant knew or should have
known that the statement was false or defamatory, and that
they made the statement with reckless disregard for the truth.

If a plaintiff can prove all of these elements, then they may be entitled to
damages for the harm caused by the defamatory statement. These
damages can include compensation for lost wages, damage to reputation,
and emotional distress.
While in some cases, proving that the defendant was at fault is easier,
such as if the defendant knew that the statement was false and made it
anyway. In other cases, it may be more difficult to prove fault,
particularly if the defendant made the statement based on a good-faith
belief that it was true.

Defenses
There are also some defenses that defendants can use to protect
themselves against defamation claims. One of the most common
defenses is truth(defense no 1): if the defendant can prove that the
statement was true, then they cannot be held liable for defamation.
Other defenses include privilege (defense no. 2): which allows
individuals to make statements without fear of liability in certain
contexts, such as in court proceedings (example) or legislative debates
(parliamentary proceedings). Privilege allows individuals to make
statements without fear of liability in certain contexts, such as in court
proceedings or legislative debates.

Cases on Defamation

Subramanian Swamy v. Union of India: The Supreme Court held that

truth is a defense against defamation claims and that public figures have
a higher burden of proof to prove that a statement is defamatory.
Ram Jethmalani v. Subramanian Swamy: The Delhi High Court held that
opinions are protected under the right to free speech and expression and
cannot be considered defamatory.
Cassidy v. Daily Mirror Newspaper Ltd: Mr. Cassidy didn’t share a
house with his wife but he visited her occasionally. The newspaper
published his picture stating that his engagement had been fixed with a
certain woman. This was held to be defamatory as it reflected poorly on
Mr. Cassidy’s wife by insinuating that she was perhaps his mistress. The
Court held that the innuendo (meaning: an indirect way of talking
about somebody/something, usually suggesting something bad or
rude. It is a kind of defemation) had been established and the
innocence of the defendant was not a valid defence.
 Vicarious Liability
Vicarious liability means the liability of a person for an act committed
by another person and such liability arises due to the nature of the
relation between the two. For e.g. A, is a driver who works for B and
while driving B’s car for taking him to his office, he hits C, a pedestrian
due to his negligence in driving. In such a case even though B was not
driving the car he will still be liable for the accident which was caused
due to the negligence of A.
Relations in which Vicarious Liability arises
These are the major relations in which vicarious liability of a person
arises
1. Master and Servant.
2. Partners in a Partnership Firm.
3. Principal and Agent.
4. Company and its Directors.
5. Owner and Independent Contractor.

Vicarious Liability of Master for torts by Servant

In a Master-Servant relationship, the master employs the services of the
servant and he works on the command of master and thus a special
relation exists between the two and in case of a tort committed by the
servant, his master is also held liable.
There are many cases in which the servant does an act for his master and
thus in law, it is deemed that the master was doing that act himself,
therefore if the servant commits an unlawful act the master will also be
held liable for the same. This liability of the master is based on the
following two maxims.

1.Qui facit per alium facit per se: – It means that whenever a person
gets something done by another person then the person is viewed to be
doing such an act himself.
Illustration: If A is the owner of many trucks and employs drivers to
drive them for the purpose of trade and in case one of his drivers gets
into an accident because of his rash driving, then even though A did not
drive the truck himself, he will be liable for the accident.
2. Respondant Superior: – It means that the superior should be held
responsible for the acts done by his subordinate.
These two maxims have played a significant role in the development of
the law of vicarious liability of the master.

Essentials of Vicarious liability in Master-Servant Relationship

These essential conditions have to be followed for the vicarious liability
of master to arise: –
1. The servant has committed an act which amounts to a tort.
2. Such a tortious act is committed by the servant during the course
of his employment under the master.

Reasons for liability of the Master

There are several reasons behind holding the master liable for the acts of
his servants which are: –
1. An act which is committed by the servant is considered to be done
by the master through him and therefore in the law of torts, it is
 assumed that if any wrong is done by the servant, it has been
committed by his master indirectly and so the master is held liable
for these wrongs.
2. The master is in a better financial position as compared to his
servant and thus in case of any loss caused by the tortious act of
the servant, the master is better suited to pay off the damages to the
victim of the act. Also, since the master is made liable he makes
sure that all reasonable care and precautions are carried so that
he can avoid such liability.
3. When a servant does any act, the benefit from such an act is
enjoyed by the master and thus for the liability arising out of the
servant’s act, the master should also shoulder that liability.

Test for Determining Master-Servant Relationship

For the determination of a Master-Servant relationship, certain tests have
been developed over a long period of time.
Traditional View – Control Test
As per this test, for the determination of a master and servant
relationship, it should be seen whether the master has the power to not
only instruct what should be done but also the manner of doing the act
and if such power exists then as per this test, the master and servant
relationship exists between the two.
Illustration: A is the owner of a big area of land on which farming
activities are carried out and he has hired many workers for farming. A,
not only instructs them how to do their jobs but also how to do it. Here,
by the test of control, the relation between A and his employees is
established as that of a master-servant.
Modern View
The old Control test is not applicable as an exhaustive test because in
cases of work requiring skill such as a doctor working in a hospital, the
owner of the Hospital cannot instruct the doctor on how to treat a patient
and can only instruct him to treat patients. Thus certain other tests have
been developed for determining the Master and Servant Relationship.
The test of work being an Integral Part of Business

In the case of Stevenson Jordan & Harrison Ltd. V Macdonald &

Evans (1952) 1 TLR 101, the “test of an integral part of the business
was applied.” Here, a contract of service was held to be a contract for
such work which is an integral part of the business and a contract for
service was held to be a contract for such work which is not an integral
part of the business.
Illustration: In an IT company the programmers are the employees of
the company and there is a master-servant relationship but if the
company has hired catering services, the company does not have a
master-servant relationship because the act of providing food is not an
integral part of an IT company.
Multiple Test
This test provides that people who are in a contract of service are
deemed to be employees whereas the people who are in
contract for service are independent contractors. In the case of Ready
Mixed Concrete v Minister of Pensions and National Insurance
(1968) 2 QB 497, three conditions were laid down for a contract of
service
1. The servant agrees to provide his skill and work to the master for
performing some service in exchange for wages or some other
consideration.
 2. He agrees to be subjected to such a degree of control so as to make
the person his master in performance of his work.

This test also includes other important factors that are used to determine
the master-servant relationship such as who owns the tools being used
for the work, is the employee paid wages monthly or on a daily basis and
all other relevant factors.
Thus the old view of using Control test is no longer the only method of
determining the relation of master and servant as it has been realized that
in the present complex world where there are a wide number of factors
which affect the process of determining the relation between the
employee and the employer, it is not possible to use just one test and
thus the various aspects of a case are seen to determine the nature of the
relationship and to decide whether such a relation is that of master and
servant or not.

Therefore two essentials arise out of Master-Servant relationship

(1) There should be some control of master over his
servants/employees.
(2) The master in return of skills/labour must pay some
wages/money to the employee/servant.
Difference between Servant and Independent contractor
A servant and an independent contractor both do the work at the behest
of another person. while, in case of tort by servant, the master is liable
but in case of independent contractor the master cannot be held liable.
In case of a servant there is a contract of service which means that
along with instructing what task should be done by the servant, the
master also has the right to instruct the manner in which that act has to
be done and thus the servant does not have autonomy in the performance
of his duties.
Illustration: P is the owner of a newspaper in which many editors are
working. Here P as the owner has the right of telling them which news
should be covered and how it should be written.
Whereas in the case of an independent contractor there is a contract for
service which means that he can only be instructed as to what should be
done but how to do the work is left at his will and he does not take any
instructions from the master.
various ways in which liability of Master arises
A master becomes liable in the following situations:
1. Wrong done as a natural consequence of an act by Servant for
Master with due care.
2. If the employee does an act which is done in pursuance of the
instructions of the master, then the master will be held liable for
any wrong which arises out of such an act even if all due care is
taken by the employee in discharging his work.
In Gregory v. Piper(1829) 9 B & C 591, the defendant and plaintiff had
some disputes between them and the defendant, therefore, ordered his
servant to place rubbish across a pathway to prevent the plaintiff from
proceeding on that way and the servant took all care to ensure that no
part of it was touching the part of the plaintiff’s property but with the
passage of some time. The rubbish slid down and touched the walls of
the plaintiff and thus he sued for trespass. The defendant was held liable
despite his servant taking all due care.
(will continue in next class) Wrong due to Negligence of Worker
A master is also liable for an act of servant which he does negligently or
fails to take due care in carrying out.
In Pushpabai Purshottam Udeshi & Ors. v. Ranjit Ginning & Pressing
Co. (P), deceased was travelling in a car driven by the manager of the
respondent company and it met with an accident as a result of which he
died. The dependents of the deceased filed a claim and the tribunal
allowed damages but on appeal to the High Court, it was set aside on the
grounds that the accident does not make the respondent company liable.
But the Supreme Court in its judgement overruled the judgement of the
High Court and held that from the facts of the case it was clear that the
accident had occurred due to the negligence of the manager who was
driving the vehicle in the course of his employment and therefore, the
respondent company was liable for his negligent act.
Illustration: If H works as a house cleaner for K then there is a master
and servant relationship between them but, if H instead of cleaning the
house decides to cook food even though he has only been hired for
cleaning the house and due to his negligence causes a fire which also
causes loss to K’s neighbour L, then K, will not be liable because H did
an act which was outside the course of his employment.
Wrong by excess or mistaken execution of a lawful authority
For making the master liable in such a case it has to be shown that: –
1. The servant had intended to do an act on behalf of his master,
which he was authorized to do.
2. The act would have been lawful if it was done in those
circumstances which the servant mistakenly believed were true or
if the act would have been lawful if done properly.
In Bayley v Manchester S&L Railway (1873) LR 8 CP 148, a porter
of a railway company while working mistakenly believed that the
plaintiff was in the wrong carriage even though he was in the right one.
The porter thus pulled the plaintiff as a result of which the plaintiff
sustained injuries. Here, the Court held the railway company vicariously
liable for the act of the porter because it was done in the course of his
employment and this act would have been proper if the plaintiff was
indeed in the wrong carriage.
In Anita Bhandari & Ors. v. Union of India , The husband of the
petitioner went to a bank and while entering inside it, the cash box of the
bank was also being carried inside and as a result, the security guard in a
haste shot him and caused his death. The petitioner had claimed that the
bank was vicariously liable in the case because the security guard had
done such act in the course of employment but the bank had contended
that it had not authorized the guard to shoot. The Court held the bank
liable as the act of giving him gun amounted to authorize him to shoot
when he deemed it necessary and while the guard had acted
overzealously in his duties but it was still done in the course of
employment.
Wrong committed willfully by a servant with the intention of serving the
purpose of the master
If a servant does any act willfully, recklessly or improperly then the
master will be held liable for any wrong arising out of such act, if such
an act is done in the course of employment.
In Limpus v. London General Omnibus Co. (1862) EngR 839, the
driver of the defendant company, willfully and against the express orders
not to get involved in racing or to obstruct other omnibuses, had driven
to obstruct the omnibus of the plaintiff. In the case, the Court held that
the defendant company was liable for the act of driver because the
driver’s act of driving the omnibus was within the scope of the course of
employment.
In Peterson v. Royal Oak Hotel Ltd. (1948) N.Z.I.R. 136, The plaintiff
was a customer who on being intoxicated was refused further drinks by
the barman, who was employed under the respondent and thus the
plaintiff threw a glass at him. The barman took a piece of the glass and
threw it at him which hit his eye. The respondent hotel was held liable
due to the act of the barman who had a master-servant relation with
them.
Wrong by Servant’s Fraudulent Act
A master can also be held liable for any fraudulent act of the servant.
In Lloyd v. Grace Smith & Co. (1912) A.C. 716, the plaintiff was a
widow who owned 1000 pounds as dues on a mortgage and a cottage.
She went to the manager of the defendant, which was a firm of
solicitors, and she asked for his advice to get richer. The manager told
her to sell her cottage and to call up the amount of mortgage. She
authorized the manager to sell the property and to collect her money but
he absconded with the money. Thus, she sued the defendant company. It
was held that the defendant was liable for the fraudulent act of the
manager because even a fraudulent act is not authorized, the manager
was authorized to take her signature and thus it was within the course of
employment.
Illustration: If A goes to a bank and deposits a check with C, an
employee of the bank and C fraudulently transfers that amount to his
wife’s account. Here for the fraudulent act of C, the bank will be liable.