Tort as a branch of law consists of various 'torts' or wrongful acts whereby the wrongdoer violates some legal right vested in another person. Property rights and personal freedoms are, inter alia, the interests protected by the law of torts.

Every man has a right to have his reputation preserved inviolate.[1] The tort of defamation provides for the balancing of the competing interests of a person who has his reputation in the interest and every person who has freedom of speech.

The tort of defamation is to cause loss to the reputation of other with mala fide intentions. The wrong of defamation can either be committed by writing, libel, or by way of speech, slander.

In Indian law, defamation is also a criminal offence. Criminal defamation in the Indian Penal Code, 1860 is defined under section 499[2] as:

"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 excepted, to defame that person."

The section 500[3] of the Indian Penal Code prescribes the punishment for the offence of the criminal defamation as: "Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both."

The major distinction between the civil and criminal defamation is the remedies which the aggrieved party can seek.

In the case of civil defamation, redressal of the damage caused by defamation might take the form of monetary compensation because no sentence can be granted to the party who defamed under tort law, only damages can be sought by the defamed party.[4]

Criminal defamation, on the other hand, is regulated by criminal law and punishes the accused who commits the offence of defamation. Section 500[5] of the Indian Penal Code provides for punishment for defamation. The penalty is imprisonment for up to two years, a fine, or both.[6]

To achieve a balance between the protection of reputation and freedom of speech, defences are provided. Some of the defences are justification (truth), fair comment, privilege (either absolute or qualified), and offer of amends.

Fair comment is basically a defence that the comment is fair on a matter of public interest. To claim the defence of fair comment, the defamatory content must be a 'comment based on facts' and not a mere 'assertion of facts'. As it is difficult to make a clear distinction between the two, it creates a hindrance in adjudication of the matters involving the defence of fair comment.

The project seeks to find a solution to the problem by identifying the ways through which a distinction between a 'comment based on facts' and an 'assertion of facts' can be laid down.

Fair Comment
As defamation should be a balance between protection of reputation and freedom of speech, such a balance is achieved by defences of defamation.

The defences to an action for defamation are:

1. Justification or Truth,
2. Fair comment,
3. Privilege, which may be either absolute or qualified

Fair comment is the defence that the comment is fair on a matter of public interest. The defence of "fair comment" was established in the English cases of Sutherland v. Stopes[7] and Slim v. Daily Telegraph[8]. Now, fair comment is a complete defence to an action of defamation.

In the case of Sutherland v. Stopes[9], it was held by the House of Lords that the plea of "fair comment" is raised when words complained of consist of allegations of fact and of opinion expressed in good faith and without malice.[10] Southerland, a Surgeon by profession, had written a book titled Birth Control, the seventh chapter of which (captioned "Evils of Artificial Control") criticised Mrs. Marie Stopes for running a clinic for poor mothers and encouraging them to use a method of birth control that had been declared dangerous by an eminent gynaecologist. Mrs. Stope's case was dismissed when the Court of Appeals' decision was reversed.

In Slim v. Daily Telegraph[11], the Court of Appeal ruled that a newspaper's honest presentation of real public opinion is not actionable. Lord Denning stated that the true opinion of an honest man was protected: "no matter that his words conveyed defamatory imputations; no matter that his opinion was wrong; or exaggerated or prejudiced; no matter that it was badly expressed so that other people read all sorts of innuendos into it"[12], holding that right of fair comment was as "essential element" of freedom of speech which "must not be whittled down by legal refinements".[13]

Essentials Of Fair Comment
The defence of fair comment can be availed when the following essentials are fulfiled:

1. It must be a Comment, i.e., an expression of opinion rather than assertion of fact;
2. The comment must be fair; and
3. The matter commented upon must be of public interest.[14]
    

Comment:
A comment is a statement of one's opinion on a certain set of fact. It should be separated from making a factual assertion. A fair comment is a defence by itself, but a statement of fact can be dismissed only if justification or privilege is demonstrated. The language employed or the context in which a remark is made determines whether it is a fact or a comment on specific facts.[15]

Illustration (D) to the sixth exception of the section 499[16] of the Indian Penal Code provides some clarity in this regard, the illustration reads as follows - "A says of a book published by Z - 'Z's book is foolish; Z must be a weak man. Z's book is indecent; Z must be a man of impure mind.' A is within the exception, if he says this in good faith, inasmuch as the opinion which he expresses of Z respects Z's character only so far as it appears in Z's book, and no further".[17]

As these are only observations based on Z's book, hence, A will be protected if he said them in good faith. But if A had said that - "I am not surprised that Z's book is foolish and indecent, for he is a weak man and a libertine." It is not a comment on Z's book, but rather a statement of fact, therefore the fair comment defence cannot be invoked in such a circumstance.[18]

Comment must be fair: When the comment is based on false facts, it cannot be considered fair. It is not fair to make a statement based on created and false information. Thus, where immorality is implied in a play review by implying that it featured an incidence of adultery when there was no such occurrence in the play, the fair comment defence cannot be invoked. The defence of fair comment, which is based on the incorrect facts, will also fail if a newspaper publishes a statement of facts that makes significant accusations of dishonesty and corruption against the plaintiff and the defendant is unable to substantiate the accuracy of those facts.

Whether or whether the defendant honestly held that particular perspective determines whether or not the criticism is fair. The viewpoint of the commentator is important, not the court's assessment of how fair the statement is.

Justice Diplock remarked in the case of Silkin v. Beaverbook Newspapers Ltd[19]:
"The basis of our public life is that the enthusiast may say what he honestly thinks just as much as the reasonable man or woman who sits on a jury, and it would be a sad day for freedom of speech in this country if a jury were to apply the test of whether it agrees with the comment instead of applying the true test : was this an opinion, however exaggerated, obstinate or prejudiced, which was honestly held by the writer?"

If the defendant made the statement with malice, it would no longer be fair and he would be unable to use it as a defence.[20]

The matter commented upon must be of public interest: Administration of government agencies, public businesses, courts, the conduct of public figures like ministers or officers of the State, public institutions, local governments, public gatherings, exhibitions, performances, and other forms of public entertainment, as well as textbooks and literature, are all regarded as matters of public interest. So, to claim the defence of fair comment the matter on which the comment is made must be of public interest.

Fair Comment Is A Comment Based On Facts
Generally speaking, facts are assertions that can be verified as true or false, whereas opinions are things of belief or ideas that cannot be validated in either direction. For instance, it is possible to disprove the claim that Naresh is a thief by demonstrating that he has never stolen anything in his life.

That and "Naresh is a total fool" are to be contrasted. The latter is an opinion (or, more precisely, "a pure opinion") since the definition of an idiot is a subjective one that differs from person to person. One person's fool is not necessarily another person's fool. In other words, it would be impossible to demonstrate that Naresh is not an idiot. A statement cannot be used as the foundation for a defamation action if it is a "pure opinion."[21]

Of course, figuring out if a statement is just a pure opinion is not always simple. Opinions that infer erroneous underlying facts will not be protected[22], as was stated above. For instance, saying "Naresh is insane" might be both a fact and an opinion. It could imply that Chris has been given a psychotic diagnosis and has to be admitted to a mental hospital; however, this might be disproven. It may also imply that Chris has absurd beliefs with which one disagrees, which is an opinion.[23]

Courts frequently look to the statement's context and use common sense logic to determine which meaning should be ascribed to it (or to phrase it in legalese, the "totality of circumstances" of the publication). For example, if one called Naresh insane in a forum post as part of a heated argument over politics, the statement would likely be interpreted as an opinion.[24]

Kemsley v Foot [25]
The plaintiff claimed that the headline of a piece by the defendant, 'Lower than Kemsley', which criticised the actions of the Beaverbrook Press, was defamatory. The defendant claimed fair comment. Plaintiff filed an appeal. The question of law put forth before the court was whether a claim of fair comment must be supported by a statement of the facts upon which it is based, and the Court was to determine the particularity with which those facts must be published.

The House of Lords held that as the conduct of the Kemsley Press was the fact on which the comment was made the defence of fair comment was available. It is crucial that the facts on which the comment is based should be stated in the alleged libel.[26]

Distinction Between A 'Comment Based On Facts' And An 'Assertion Of Facts'
It is only when an observation or inference from facts, rather than an assertion of fact, is present may the defence of fair comment be used. The sheer existence of the defence serves as evidence that a comment may be legally construed as defamatory, yet it would be oversimplified to claim that fair comment is limited to assertions of opinion.

Since it can be difficult to distinguish between a fact and an opinion, a critic should take care to keep their facts and their commentary on them apart. If it is not reasonably clear that something is intended to be commentary, a critic cannot use "fair comment" as a defence and is thrown back; instead, they must rely on justification or privilege.

In order to determine whether the statement is a comment based on facts or an assertion of facts, every statement must be taken on its merits.

If it is said that "Naresh is a shame on humanity", then, it is an allegation/assertion of facts. But if the words were, "Naresh raped a minor girl and hence, he is a shame on humanity", then it is explicitly a comment on the fact that Naresh raped a minor girl. The key thing here is not the statement itself in isolation but it is the context in which it is stated, when looked at in the context it is a comment upon the facts stated.

Hence, in order to distinguish between a comment based on facts and an assertion of facts, it is important to examine the allegedly defamatory statement in the context it is used. When the context is referred, it becomes easier to ascertain the distinction between the two.

Conclusion And Suggestions
In the project, fair comment as a defence in defamation case is thoroughly analysed. The essentials to claim the defence of fair comment are also identified using authoritative texts on the matter and foreign and Indian case laws.

Fair comment is basically a defence that the comment is fair on a matter of public interest. To claim the defence of fair comment, the defamatory content must be a 'comment based on facts' and not a mere 'assertion of facts'. As it is quite difficult to make a clear distinction between the two. Hence, it creates an implementational problem while deciding matters in which fair comment as a defence is claimed. The problem is probed into in this project and the following conclusion generated.

As the same words may in one context amount to an opinion whereas in another context a statement of fact, hence, it is important to assess the defamatory content in the context of whole to adjudge whether it is a 'comment based on facts' or an 'assertion of facts.' Only when it is established that it is comment based on facts and other essentials of fair comment are fulfilled, the defence of fair comment should be allowed.

End-Notes:

1. Akshay Sapre, Ratanlal & Dhirajlal's The Law of Torts (28th edn, LexisNexis 2019) 293.
2. The Indian Penal Code, 1860 (45 of 1860) s 499.
3. The Indian Penal Code, 1860 (45 of 1860) s 500.
4. Journal of Legal Research and Juridical Sciences, 'Understanding the difference between Civil and Criminal Defamation' <https://jlrjs.com/understanding-the-difference-between-civil-and-criminal-defamation/> accessed 11 November 2022.
5. The Indian Penal Code, 1860 (45 of 1860) s 500.
6. JLRJS (n 4).
7. Sutherland v Stopes [1925] AC 4.
8. Slim v Daily Telegraph [1968] 1 All ER 497.
9. Sutherland (n 7).
10. Dainik Bhaskar v Madhusudan Bhargava AIR 1991 MP 162
11. Slim (n 8).
12. ibid
13. Dainik (n 10).
14. R.K. Bangia, Law of Torts including Motor Vehicles Act and Consumer Protection Act (22th edn, Allahabad Law Agency 2010) 206.
15. ibid
16. The Indian Penal Code, 1860 (45 of 1860) s 499
17. ibid
18. Bangia (n 14).
19. Silkin v Beaverbook Newspapers Ltd [1956] 1 All ER 361.
20. Thomad v Bradbury, Agnew & Co. Ltd. [1906] 2 KB 627
21. Digital Media Law Project, 'Opinion and Fair Comment Privileges' (10 September 2022) < https://www.dmlp.org/legal-guide/opinion-and-fair-comment-privileges> accessed on 11 November 2022
22. Mangena v Wright [1909] 2 KB 958
23. ibid
24. ibid
25. Kemsley v Foot [1952] AC 345
26. swarb.co.uk, 'Kemsley v Foot HL 25 Feb 1952: Fair Comment Crticism of Newspaper Publisher' (1 November 2021) <https://swarb.co.uk/kemsley-v-foot-hl-25-feb-1952/> accessed 11 November 2022.