What is Defamation?

Defamation is defined under the law of torts as the injury to the reputation of an individual. It was held that a man's reputation is his property, more valuable than other property.[1]

Libel and slander

English Law divided the defamation into two types; namely Libel and Slander.

Libel: Written form of defamation; examples: Writing, picture, effigy[2]. There is a landmark case on libel named Youssoupoff v. M.G.M. Pictures Ltd.[3] In this case, court said that cinema film is not a photographic part but it is to be considered as Libel because of its permanent nature.

Facts of the case: In a film produced by a producing company named Metro Goldwyn Mayer Pictures Ltd., there is a character of Princess Natasha engaging in relation of Seduction or Rape with Rasputin (Described as worst character in the film).

Section 1 of Defamation Act, 1952 defines that any broadcasting of words through any wireless telegraphy will be treated as permanent form of publication.[4]

According to English Criminal Law, Only Libel is considered as offence but not Slander.

According to English Law of Torts, Libel is always Actional per se which means Libel is actionable as per law even without the proof of any damage. Slander is actionable as per law only on proof of special damage (Exceptional cases).

Indian Laws on Libel and Slander:

Indian Law does not make any differentiation between Libel and Slander. Under Section 499 of IPC, Libel and Slander are criminal offences.

Section 499, IPC: If someone makes or publishes any imputation about someone intending to harm their reputation, or knows or believes it will, they are considered to defame that person, except in certain cases, unless otherwise specified.[5]

In Hirabai Jehangir v. Dinshaw Eduliji[6] , Bombay High court stated that "When the reputation of women is damages by spoken words, the wrong will be actionable per se i.e., without proof of Special damage". Same was said by madras High court in A.D. Narayana Sah v. Kannamma Bai[7].

In D.P. Choudhary v. Manjulata case, Manjulala[8], a 17-year-old student from a distinguished family in Jodhpur, was falsely accused of running away with a boy named Kamlesh after leaving her house for night classes. The news item, published in Dainik Navjyoti, was untrue and negligently published, causing shock and ridicule among her acquaintances. The court ruled that all defamatory words are actionable, and in such cases, general damages will be presumed. Manjulala was awarded Rs. 10,000/- in general damages.

Essentials of Defamation:

To say a statement to be defamatory, plaintiff need to prove the following 3 essentials:

1. The statement must be of in defamatory nature.
2. The said statement must be intended towards plaintiff.
3. The statement must be published which means it should be known to 3rd party.

Elaborating the essentials:
Essential 1: The statement must be of in defamatory nature.

Defamation is a statement that harms the reputation of a plaintiff, lowering their estimation among right-thinking members of society or making them shun or avoid them. It can be made through oral, written, printed, or by exhibiting a picture, statue, effigy, or by conduct. The standard to be applied is that of a right-minded citizen, a man of fair average intelligence, not a special class of individuals whose values are not shared or approved by fair-minded members of society generally.

If the likely effect of the statement is the injury to the plaintiff's reputation, it is not a defence to say that it was not intended to be defamatory. If the statement causes someone to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or dis-esteem, it is defamatory[9]. The essence of defamation is injury to a person's character or reputation.

Cases:

1. S.N.M. Abdi v. Prafulla Kumar Mohanta[10]: The court decided that a remark had to have the potential to harm the plaintiff's reputation among all members of the community or his associates, but it also had to damage him in the eyes of a sizable, respectable group, even if they made up a small portion of the community or his associates as a whole. Chief Minister Prafulla Kumar Mohanta was accused of abusing his position of authority and strength in an article that appeared in the Illustrated Weekly of India on August 9, 1990. Rupees five million was granted as damages to the plaintiff.
    
2. South Indian Railway Co. v. Raakrishna[11]: A South Indian train Co. train guard is accused of misleading a passenger into thinking they had the wrong ticket. Even though they possessed a legal ticket, the passenger sued the company, claiming that the words were defamatory. The guard's comments were genuine, the court said, therefore there was no defamation and the company was not accountable for the incident. The case highlights how important it is to speak truthfully and precisely while handling railroad-related matters.
    

What is Innuendo?

Innuendo means defaming by indirect or implied reference. By prima facie, a statement cannot be defamatory but by the secondary meaning it will be considered as Innuendo. In case of Innuendo to be proved, plaintiff should prove that the words are not defamatory in ordinary sense but the statement is defamatory in secondary meaning (indirectly implied towards the plaintiff's reputation).

Example: A spreads news to B, that C is under treatment of Dr. D. (This may not look like defamation but if the Dr. D is psychiatrist – it means that C is suffering from psychological disorder. This becomes defamatory)

Case Law: Cassidy V. Daily Mirror Newspapers[12]: Defendants published photograph of Mr. A and Miss B being together in a newspaper stating that "Mr. A (Race horse owner) and Miss B, engagement has been announced." This published statement is utter false as they were already married. The court held in favour of the wife of Mr. A that the publication is having the nature of defamation of the plaintiff that she was not the lawful wife of Mr. A and was living with him unlawfully this many days. Defendants were held liable for the defamation. Intention to defame is not necessary.

Essential – 2: The said statement must be intended towards plaintiff.

The statements alleged to be defamatory must be referred to the plaintiff. It's not necessary to show the intention of the defendant.

Case Laws:

1. E. Hulton & Co. v. Jones[13]: In this case defendant (E. Hulton & Co.) wrote a defamatory statement using the plaintiff's name. The defendant claimed that they are not liable for libel because they used Hulton's name as a fictious character name and ever heard the name of the plaintiff. Court held that Intention of the defendant is not necessary in case of defamation.
    
2. Newstead v. London Express Newspapers Ltd.[14]: The defendents (Newspaper) published an article on newspaper that the Harold Newstead, a Camberwell man got convicted for bigamy offence. The storey was true about Harold Newstead, Camberwell barman. Plaintiff named Harold Newstead, the barber brought case to court that the publication was defamatory; it was in the mean of intending him. Court held that the publication is like a defamatory for the plaintiff and held defendants liable for the same.
    
3. Harsh Mendiratta v. Maharaja Singh[15]: The person on whom the defamatory words were intended can only file case for defamation but not by friends or relatives.

Essential 3: The statement must be published which means it should be known to 3rd party.

The Tort of defamation is only be committed, if the publication is known to 3rd person other than the one who made the statement and the one on whom the statement was made. Only this constitutes the tort of defamation.

Case Law: Mahendra Ram v. Harnandan Prasad[16]

Defendant sent a defamatory statement in urdu through letter knowing that the plaintiff can't understand Urdu and he needs assistance of someone to understand the letter. When Plaintiff asked 3rd person to understand letter, defamatory statement got communicated to 3rd person along with Plaintiff. Court said this defamation because defendant knowing that plaintiff can't understand Urdu sent letter.

Communication between Husband and Wife:
In the eyes of law, Husband and Wife will be treated as one. So, any communication to wife will not be treated as defamation and wife and husband are not considered as 3rd party.

Case: T.J.Ponnen v. M.C.Verghese[17]:
In this case, court said that the Husband and Wife will be treated as one and communication between them is not defamation.

Defenses of Defamation:

1. Truth
2. Fair Comment
3. Privilege ( Absolute privilege and Qualified privilege)

Truth as Defence:
Justification of truth is complete defence for defamation. The words said by the defendant must be true. Law won't allow a man to recover damages in respect of injury to a character which he does not possess.

Case: Alexander v. North Eastern Railway[18]

1. The plaintiff was found guilty of using a train without a valid ticket, which carries a punishment of up to fourteen days in jail if unpaid. The defendant then sent the plaintiff a notification indicating that she had been found guilty and that she would have to pay a fine or face three weeks in jail if she didn't. By giving an erroneous description of the punishment, the plaintiff alleged that the defendant had committed libel.
   
   The defendants contended that the comments were not defamatory and that the conviction was fairly portrayed. Since the main thrust of the libel was that the plaintiff had been sentenced to pay an amount of money or face imprisonment in default, the verdict was in favour of the defendants.
    
2. Fair Comment: For a fair comment on public interest won't be said liable. The comment in public interest must be bona fide and should be malice. Legitimate criticism can't be said tort.
    
3. Privilege: Court gave few exceptions where freedom of speech outweighs a plaintiff's right to reputation as 'Privileged'; this privilege is divided into two types: Absolute privilege and qualified privilege.

 

Absolute privilege:

• Parliamentary proceedings
• Judicial proceedings
• Military proceedings
• Naval proceedings
• State proceedings

Qualified Privilege:

• Fair and Accurate reports
• Statements to Protection of common interest
• Statement made to perform a duty in good interest

Conclusion:
Defamation in simple words is nothing but to insult someone's reputation in society. Its important to understand the Laws relating to defamation to ensure that one's reputation is protected and also the freedom of speech is balanced.

Indian Law relating to Defamation: IPC S.499 and S.500 governs defamation as well as the law of torts. Supreme Court of India also interpreted these sections to strike the balance between Right to protection of one's reputation and Freedom of speech. Courts have given great importance to truth as a defense in defamation cases. The defamation should be seen from the view of right thinking person.

It is important for individuals and also media organizations to have caution during the publication or sharing the information that the information should be accurate and should not be false or damaging statements about others. To exercise the rights, one should prove that there was publication of false statement, its impact on his reputation and it should be false and also not in public interest.

Overall, defamation laws aim to ensure the rights of each individual in protecting reputation. These laws make sure that no one will spread false statement in the name of freedom of speech. It's important that the individuals should be mindful of their words and actions and have knowledge on legal consequences of defamation in order to maintain peaceful society.

References:

1. "Law of Torts" by R.K.Bangia.
2. "Winfield and Jolowicz on Tort" by W.V.H. Rogers.
3. Black Law Dictionary
4. SCC Online
5. Manupatra

End-Notes:

1. Dixon v Holden [1869] 7 Eq488
2. Monson v Tusssands Ltd., [1894] 1 Q.B.671
3. Youssoupoff v MGM case [1934] 50 TLR 581 (CA)
4. Defamation Act 1952, s 1
5. Act No 45 of 1860, s 499
6. Hirabai Jehangir v Dinshaw Edulji [1927] I.L.R 51 Bom. 167
7. A.D. Narayana Sah v Kannamma Bai [1932] I.L.R. 55 Mad. 737
8. D.P.Choudhary v Manjulata [1997] A.I.R. Raj. 170
9. Capital and Counties Bank v Henty & Sons [1882] 7 A.C. 741
10. S.N.M. Abdi v Prafulla Kumar Mohanta [2002] A.I.R. Gauhati 75
11. South Indian Railway Co. v Ramakrishna [1890] 13 Mad 34
12. Cassidy v Daily Mirror Newspaper Ltd [1929] 2 KB 331
13. E. Hulton & co v Jones [1963] 220 F Supp 598 (US Dist)
14. Newstead v London [1940] 1 KB 377
15. Harsh Mendiratta v Maharaj Singh [2002] CriLJ; [2002] DLT 78; [2002] 61 DRJ 123
16. Mahendra Ram v Harnandan Prasad [1958] AIR Pat 445
17. M C Verghese v T J Ponnen [1970] AIR 1876; [1969] 2 SCR 692
18. Alexander v North Eastern Railway Coo [1865] 6 B & S 340

Written By: Patenge Chathrapathi, BALLB student at Damodaram Sanjivayya National Law University, Vishakhapatnam.

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• Defamation
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