DEFAMATION

• Man’s reputation is considered to be his property, more

precious than any other property. Defamation is an injury to
reputation of a person.
• Defamation is a tort which injures reputation and is therefore
actionable. As in Dixon v Holden (1869) , "A man's reputation
is his property, and if, possible, more valuable, than other
property".
• Winfield has defined defamation as "publication of statement
which tends to lower a person in the estimation of right
thinking members of the society or which makes them shun
or avoid that person”
• It is not only the injury which a man may himself
suffer, it includes any injury to the reputation of his
wife, his children or dependents if the injury suffered
by them has a direct bearing on the reputation of the
man who alleges to have suffered an injury.
• It is important to note that defamation is both a civil
and criminal wrong. A person can institute criminal
proceedings against the writer or the publisher or he
can sue him in a civil action for damages in tort for
the injury he has suffered.
• The law of defamation like many other branches of
the law of torts provide for balancing of interest (i.e.,
reputation vs freedom of speech).
• Defamation is a reasonable restriction on the
fundamental right of freedom of speech and
expression Art. 19(l)(a) and is saved by Article 19(2).
Defamation is customarily classified into,
(a) libel and (b) slander.
• Broad distinction between the two is that libel is
addressed to the eye while as slander to the ear. Slander
is the publication of defamatory statement in a transient
form.
• An example of it is spoken words. Libel is a representation
made in some permanent form e.g. writing, printing,
picture, effigy or statute. In a cinema film not only the
photographic part of it is considered to be libel but also
the speech which synchronizes with it is also a libel.
English Law
• Under English Law, the distinction between libel and slander is
material for two reasons;
• 1. Under criminal law, only libel has been recognized as an
offence. Slander is no offence.
• 2. Under Law of torts, slander is actionable, save in exceptional
cases, only on proof of special damage. Libel is always
actionable per se i.e. without the proof of any damage.
• While libel is both a civil and criminal wrong and offence,
slander is merely a civil wrong, except in certain cases where
the spoken words are blasphemous, seditious, and obscene and
such as may amount to contempt of the court.
Indian Law
• The above stated distinctions do not find any place in
India. Under Indian criminal law, libel and slander are
treated alike, both of them are considered to be an
offence.
• Moreover, weight of various decisions in India is to
make slander like libel actionable per se. The limitation
period for filing an action for libel as well as slander (3
years for criminal action and 1 year for civil action from
the date of event).
Slander is also actionable per se in the
following four exceptional cases:
• 1. Imputation of criminal offence to the plaintiff,
• 2. Imputation of contagious or infectious disease to the
plaintiff which has effect of preventing others from
associating with the plaintiff,
• 3. Imputation that the person is incompetent, dishonest, or
unfit in regard to the office, profession, calling, trade or
business carried on by him,
• 4. Imputation of unchastity or adultery to any woman or
girl.
Requisites of Defamation
• The constituent elements of defamation are:
a. The words must be defamatory
b. The defamatory words, should directly or
indirectly refer to the person defamed, and
c. Publication of the words by any medium
should take place.
(a) Defamatory Words:
• The defamatory words or statements are those which
cause an injury to reputation. Reputation is injured
when one is lowered in the estimation of members of
the society generally or when one is avoided by
others or others shun his company. In short, an
imputation which exposes the aggrieved person to
disgrace, humiliation, ridicule or contempt, is
defamatory.
Criteria of defamatory words

• The criterion to determine whether a statement is

defamatory or not, is “how do the right-thinking
members of the society think”?
• If they consider the statement as disgraceful,
humiliating, ridiculous or contemptuous, the
statement is defamatory.
Intention is not essential element

• If the statement is likely to injure the

reputation of the aggrieved person, it is no
defence on the part of the defamer that he
never intended to do so.
Mere insult not defamation
• Words which merely hurt feelings or cause annoyance but in
no way cast reflection on reputation or character, are not
libelous. Vulgar abuses uttered as mere abuse and not
understood by the person who hears them as defamatory,
though they hurt one’s pride.
• If, However, the insulting words are also likely to cause
ridicule and humiliation they are actionable.
• The meaning of words in a libel action “is a matter of
impression as an ordinary man gets on the first reading not
on a later analysis”.
The Innuendo
• Many a time, people do not directly use defamatory
words, but utter defamatory words in innuendoes.
Innuendoes are those words, which appear innocent
but contain some secondary or latent meaning which
is defamatory.
• The statement may be prima facie be innocent (i.e.
natural and ordinary meaning is not defamatory).
Example
• Thus, if A says to B in the presence of P that ‘P is very
honest man, he could never have stolen anything.’
The statement will be defamatory if from this, B
understood that P was a dishonest man. If the words
or statements are defamatory, it is immaterial with
what intention they are uttered or circulated.
• The statement that a lady has given birth to a child is
defamatory when the lady is unmarried.
Morrison v. Ritetise
• ‘R’ in good faith published a mistaken statement
that ‘M’ a lady, had given birth to twins. The fact
of the matter was that ‘M’ was married only two
months back. The statement was held
defamatory.
Intention to defame is not necessary:

• When the words are considered to be

defamatory by the persons to whom the
statement is published there is defamation,
even though the persons, making the
statement believed it to be innocent.
Cassidy v Daily Mirror Newspapers Ltd. (1929)

• Cassidy did not live with his lawful wife (Mrs. Cassidy) but
occasionally came and stayed with her at her flat. The
defendants published in their newspaper a photograph of
Mr. Cassidy and Miss ‘X’ with the following words
underneath: “Mr. M. Cassidy, the race house owner, and Miss
‘X’ whose engagement has been announced.” Mrs. Cassidy
sued the defendant for libel alleging that the innuendo was
that Mr. Cassidy was not her husband and he lived with her
in immoral cohabitation. Held that the innuendo was
established.
(b)Words Must Refer To The Person
Defamed (plaintiff):
• In any action for defamation, the person defamed
must establish that the defamatory words or the
statement referred to him.
• In other words, defamatory statement was such that
the defamed person would reasonably infer that the
statement was directed against him.
Jones v. Holton & Co. (1910)
• The defendants, newspaper proprietors, published a
fictional article in their newspaper by which imputations
were cast on the morals of a fictitious person Artemus
Jones.
• A real person of the same name i.e., Artemus Jones,
brought an action for libel.
• His friends, who read that article, swore that they believed
that the article referred to him. The defendants were held
liable.
• It was observed that if libel speaks of a person by
description without mentioning the name, in order to
establish a right of action, the plaintiff must prove to
the satisfaction of the jury that ordinary readers of
the paper, who knew him, would have understood
that it referred to him.
Newstead v. London Express Ltd
• In the newspaper a news item appeared thus: ‘Harold
Newstead, a Camberwell man, has been convicted for
bigamy.’ The news was true to Harold Newstead, Camberwell
Barman.
• Another Harold Newstead, Camberwell barber and his friend
thought that it referred to him and brought a suit for
defamation. As the statement was understood as referring to
Harold Newstead, Camberwell barber, the statement was
held defamatory, though newspaper never intended him to
be the person.
The state of English Law was considered unsatisfactory as it
led to the conviction of innocent person. Consequently, the
Defamation Act,1952 was passed under which it was
established that the publisher of the statement did not
intend to publish it concerning the other man, or the words
were not defamatory on the face of them, and he did not
know the circumstances under which they were understood
to be defamatory. He would not be liable.
Section 4 of the Defamation Act,
1952(English)
• It lays down the procedure by which an innocent author or
publisher can avoid his liability. The defendant must prove:
• (1) That the words which had been published by him were
published innocently, and
• (2) That as soon as he came to know that these words
published by him resulted in the defamation of the plaintiff,
an offer of amends (a suitable correction and an apology)
was made.
• In India, law is the same.
Defamation of a class of persons:
• Defamation is an injury to a man's reputation, which is a right in
rem. By its very nature, reputation for the purpose of the law of
tort is that of an individual and not a class of persons.
• Ordinarily there cannot be a defamation of a class of persons. If
a person says: ‘lawyers are liers’ or ‘all doctors are
incompetent’, no lawyer or doctor can sue for defamation
unless he shows that these words were in reference to him.
• "If a man wrote that all lawyers were thieves, no particular
lawyer could sue him unless there was something to point to
the particular individual."
Kupffer v. London Express Newspaper Ltd
• Lord Atkin observed, “There can be no law that a defamatory
statement made of a firm, or trustee, or the tenants of a
particular building, is not actionable, if the words would
reasonably be understood as published of each member of the
firm or each trustee or each tenant.
• The reason as to why a libel published of a large or
indeterminate number of persons described by some general
name fails to be actionable, is the difficulty of establishing
that the plaintiff was, in fact, included in the defamatory
statement.”
Defamation of the deceased
• Defaming a deceased person is no tort.
• Defaming a deceased criminal law, 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/other near relatives (Sec. 499,
Explanation, I.P.C.).
(3) The Words Must be Published
• No defamation will be constituted unless defamatory
statement or material is published.
• Publication does not mean publication in press or by
leaflets. If it is brought to the notice or knowledge of
persons or even to a single person other than the
defamed person, amounts to publication.
• Publication means making the defamatory matter
known to some person other than the person
defamed.
• Sending the defamatory letter to the plaintiff is no
defamation.
• It is defamation only if more than two persons are
involved.
• If a third person wrongfully reads a letter
meant for the plaintiff, the defendant is not liable. It
is no publication as it is unauthorized.
• If a third person opens the letter not meant for him
wrongly, for instance father reads the latter meant for
his son or servant reads letter meant for his master,
there is no publication.
• But if defamatory letter sent to the plaintiff is likely to
be read by somebody else (e.g., clerk or spouse) there
is a publication [Theaker v Richardson (1962) 1 WLR
151].
• If a third person writes a defamatory letter about one
spouse to the other in such a manner that the former is
most likely to read it, there is sufficient communication.
• If a defamatory matter enclosed in an envelope is not publication.
• Dictating a defamatory letter to stenographer or typist is
publication, but not to the private secretary.
• When the defamatory matter is contained in a postcard or a
telegram, the defendant is liable even without a proof that
somebody else read it or irrespective of the fact whether
someone has read it or not.
• If a letter is written in a language which the defamed person does
not understand and, therefore has to be read by someone else, it
amounts to communication.
• If one spouse writes a defamatory letter to the other, there is no
defamation, as there is no publication.
T. J. Ponnen v M.C. Verghese (AIR 1970 SC
1876)
• The question was whether a letter from the husband to the wife
containing defamatory matter concerning the father-in-law (wife's
father) could be proved in an action by the father-in-law against his son-
in-law.
• His wife had passed on those letters to her father (M.C. Verghese). The
husband (Ponnen) contended that the letters addressed by him to his
wife are not, except with his consent, admissible in evidence by virtue of
Sec. 122, Evidence Act.
• Held that the husband is liable for defamation but the defamatory
statement has to be proved from evidence other than that of the wife.
• The Supreme Court took the view that if such letters fall into the hands
of the defamed person, he can prove them in any other manner and if
proved, the action for defamation will lie.
Theaker v Richardson
• Defendant wrote a letter to the plaintiff making false
allegations of her being a prostitute. The letter was
sent under the circumstances that the plaintiff's
husband in all probability would have read the same.
The plaintiff's husband opened and read it. The
defendant was held liable.
Nemi Chand v Khemraj (AIR 1973 Raj. 240)
• The defendants called a meeting against the plaintiff
and made wild imputations against him. One of the
defendants got these speeches printed and the
printouts were lying in his godown.
• The plaintiff argued that even printing constitutes
publication. Held that mere printing is not
actionable.
Defences to Defamation

•1. Justification or truth

•2. Fair comment
•3. Privilege
1. Justification or truth
• In defamation there cannot be better defence than
that of truth, as the law will not permit a man to
recover damages in respect of any injury and
character which he either does not or ought not to
possess.
• In a civil action for defamation truth of the
defamatory matter is complete defence.
• The reason for the defence is that ''the law will not
permit a man to recover damages in respect of an
injury to a character which he either does not or
ought not to possess." The defence is available even
though the publication was made maliciously.
• Defence is available if the statement is substantially
correct though incorrect in respect of certain minor
details.
Alexender v. North Eastern Rly.
• A news was published in the newspaper that X has been
sentenced to a fine of pound of 1 or three weeks
imprisonment. In the alternative, while in fact X was
sentenced to a fine of pound 1 or 14 days imprisonment.
• It was held that the statement in the press was
substantially correct and no action lied.
• Obviously, if defamer fails to prove the truth of
statement, he is liable.
Radheyshyam Tiwari v Eknath (AIR 1985)
• If the statement is false, it is no justification that the
defendant honestly and on reasonable grounds believed it
to be true.
• The defendant, who was editor, printer and publisher of a
newspaper published a series of articles against the
plaintiff, a Block Development Officer, alleging that the
plaintiff had issued false certificates, accepted bribe and
adopted illegal means in various matters.
• In an action for defamation, the defendant could not
prove that the facts published by him were true and
(2) Fair Comment
• The second defence to an action for defamation is
that the statement was a fair comment in public
interest. Comment means expression of an opinion.
• It is generally a defence available to authors, editors,
critics, etc.
• It is critical appreciation of existing facts and not
invention of new facts.
The essentials of this defence are:

a. It must be a comment, i.e., expression of opinion.

b. Comment must be fair i.e., without malice.
c. Comment must be in public interest.
Public interest
• Administration of Government departments,
public companies, public institutions and local
authorities, public meetings, pictures, theatres,
public entertainment, textbooks, novels, etc. are
considered to be matters of public interest.
'Comment'
• 'Comment' means an expression of opinion on
certain facts rather than making a statement of
fact.
• A fair comment is a defence by itself whereas if
it is a statement of fact that can be excused only
if justification or privilege is proved regarding
that.
For example
• A says of a book published by Z - "Z's book is foolish: Z
must be a weak man." It is a comment based on Z's
book and A will be protected if he has said that in
good faith.
• But if A says - "I am not surprised that Z's book is
foolish, for he is a weak man." It is not a comment
but a statement of fact, and cannot be called a fair
comment.
McQuire v Western Morning News Co.
(1903)
• The comment in question was "A three act musical absurdity,
written and composed by T.C. McQuire is composed of nothing
but nonsense of a not very humorous character, whilst the music
is far from attractive."
• Held that the words may be fairly called criticism. However,
criticism could not be used as a cloak for mere invective
(sarcasm or satire).
• An art critic's opinion of a prominent dancer's performances
that the world would be happier place if her feet had ambitions
other than dancing amounts to sarcasm.
• Since comments are always made on facts, it is
necessary that facts commented upon should be
generally known or the commentator should make
them known before comments upon them.
• A says ‘B is guilty of breach of trust.’ This is a
statement of fact and must be true. A then adds, ‘B is,
therefore, a dishonest man.’ This is a comment.
• But if audience or public do not know the fact that B
has been convicted for breach of trust, the latter
statement will be statement of fact.
• Comment should be fair. No comment can be fair
which is based on untrue facts. Thus, when
commenting on play, it was stated that, ‘play portrays
vulgarity as it contents a scene of rape’, while in fact
there is no such scene, the comment is not fair.
3. Privilege
• There are certain occasions when the law recognizes
that the right of free speech outweighs the plaintiff's
right to reputation: the law treats such occasions to
be ‘privileged’ and a defamatory statement made on
such occasion is not actionable. Privilege may be
either 'Absolute' or Qualified'.
Absolute privilege:
• It is an absolute defence as under it no action lies for
the defamatory statement even though the statement
is false or has been made maliciously. It is recognized
in ‘Parliamentary proceedings’ ‘judicial Proceedings’
and ‘State communications.
• In Judicial proceedings, there can be no action against
judges, counsels, witnesses, or parties for words
(written or spoken) in course of any proceedings
before any court, even though the words were written
or spoken maliciously, without any justification or
excuse. However, a remark by a witness which is
wholly irrelevant to the matter of enquiry is not
privileged.
Qualified privilege:
• It is different from the defence of absolute privilege in
two respects.
• First, in this case it is necessary....that the statement
must have been made without malice.
• Second, there must be all occasion for making the
statement.
• Generally such a privilege is available either when the
statement is made in discharge of duty protection of
an interest, or the publication is in the form of report
of parliamentary, judicial or other public proceedings.
• A privileged occasion (in reference to qualified
privilege) is an occasion where the person who makes a
communication has an interest or a duty (legal, social
or moral) and the person to whom it is made has a
corresponding interest or a duty to receive it. This
reciprocity is essential [Adam v Ward (1917) A.C. 309].
• Government and political matters are proper subjects
for public discussion and such discussion is covered by
the defence of qualified privilege. To maintain the
defence of qualified privilege for such publications,
the publisher must have acted reasonably in the
circumstances and not been motivated by malice.
The following illustrations will clear the
point:
• (i) A, a shopkeeper, says to B, who manages his business - "Sell
nothing to Z unless he pays you ready money, for I have no
opinion of his honesty." A is protected if he has made this
imputation on Z in good faith for the protection of his own
interest.
• (ii) A former employer has a moral duty to state a servant's
character to a person who is going to employ the servant.
• But if a former employer, without any enquiry, publishes the
character of his servant with a motive to harm the servant the
defence of qualified privilege cannot be taken.
• (iii) In the case of publication of defamatory matter
in a newspaper, if duty to the public exists.
• (iv) Such communication may be made in cases of
confidential relationships like those of husband and
wife, father and his son and daughter, guardian and
ward, master and servant or agent, solicitor and his
client, partners or even close friends.
• Thus, a father may acquaint his daughter about the
character of a man whom she is going to marry.
• The presence of 'malice' destroy the defence of
qualified privilege. The plaintiff must prove, actual or
express 'malice' or 'malice in fact' (i.e. actual wrong
state of mind) as distinguished from 'implied malice'
which the law presumes from the mere publication
of defamatory matter.
Burden of Proof:
• The burden of proof is on the plaintiff. Thus, for pleading an innuendo
the plaintiff must make out the special circumstances which made
the words actionable and he must set forth in his pleading the
defamatory sense, he attributes to them. When the defence to
defamation is taken, the burden of proof is on the defendant.
• In a defence of fair comment, the defendant has to show that his
comments contain no misstatements of fact. In a defence of privilege
(qualified), the defendant has to prove that the occasion is
privileged.
• It is important to note that in a case of libel it is not necessary to
prove the actual loss of reputation; it is sufficient to establish that
the defamatory statements could damage one’s reputation.
Joint Publication
• In all cases of joint publication each defendant is
liable for all the ensuing damage (viz. for a libel
in a newspaper, the editor, the printer and the
publisher are liable to be sued either separately
or together).
Who can sue:
• The publication of defamation can give a right of action to
any one but the person defamed. The fact that a defamatory
statement has caused damage to other persons does not
entitle them to sue.
• Thus a brother cannot not sue for slander of his sister, nor
father for defaming his daughter, nor the heir and nearest
relation of a deceased person for defamatory words spoken
of the deceased.