Defamation is a statement which injures the reputation of a person. If any person harms the reputation of another person, such a task is done at the own risk of the person defaming the other and he/she is liable to face the consequences arising out of it. The reputation of a human being is a highly valuable property, and each person has a right to protect the same. This right is widely acknowledged as a jus in rem i.e., a right enforceable against those who violate such right of a person. Defamation is either a written statement (Libel) or in spoken/ oral form (Slander).

Libel and Slander:

English Law has bifurcated the actions for defamation as Libel and Slander where libel refers to the publication of any statement that is of defamatory nature and slander is a defamatory statement made by words spoken or in oral form.

In one case, a film was produced by an English Company which showcased a woman having relations of seduction with a man who had a very horrible character. It was held that as far as a film is considered, photographic parts along with the speech that follows simultaneously is also Libel.[1]

English Law: Under criminal law, slander is not an offence, but libel is an offence. Under torts law, an action can be brought against slander and libel it is actionable per se i.e., there is no requirement to provide a proof that such as act has occurred.

There are few exceptions where slander is also actionable per se.

The exceptions are as follows:

1. A charge of claim of criminal offence is made by the plaintiff
2. A charge of claim regarding a disease which is contagious in nature, or any similar infectious disease to the plaintiff, which leads to the disassociation of other people from the plaintiff.
3. A charge of claim that such a person is incapable or not of honest nature or is a person who is not fit for a particular job, profession or any other occupation done by him.
4. A charge of claim characterizing transgression, or adultery to any woman or a girl. [2]

Indian Law: In Indian Law, there is no distinction between Libel and Slander. Under Section 499 of Indian Penal Code, both libel and slander are criminal offences. In India, libel, and slander both are actionable per se.

In a case law, it was held by Turner C.J. and Muthuswami Ayyar, J. that in cases of oral defamation, requirement of proof of special damage is found to be unreasonable.[3]
In another case law, it was held that if there is a charge of claim (imputation) of unchastity to any woman by words of mouth, the very act is actionable, and no proof of special damage is required to be given.[4]

Essentials of Defamation

1. The statement must be defamatory:

   • The statement made by the defendant must be one that in injuring the reputation of the plaintiff and exposing him to humiliation
   • Such a statement must lower the reputation of the plaintiff in the minds of the people who are held to be the right-thinking members of the society.
   • The statement can either be oral, or written, or published, or in any other way by which it gets known to the public.
   • Whether a statement made by any such person is defamatory in nature or not depends on how the members of society take in the statement as.
     
     A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers, which tends, that is to say, to lower him in the estimation of right-thinking members of the society generally and in particularly to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem.” – Salmond [5]
     In a very famous case, the defendant alleged that the Chief Minister of Tamil Nadu, already knew about the information regarding the assassination bid on the life of late Shri Rajiv Gandhi by the LTTE cadre. LTTE is a banned organization.
     
     The plaintiff was a senior counsel at that time representing the then CM of Tamil Nadu. For discharging his duties, the plaintiff had to cross-examine the defendant, and during the legal proceedings the defendant alleged in written submission that the plaintiff had received money from LTTE. The statement was held to be ex facie (on the face of it) defamatory. The statement was irrelevant to the current context of the situation and thus the statement was held defamatory. The plaintiff was compensated with INR 5 Lakh as damages. [6]
     
     Innuendo:
     A statement might seem as not being a defamation, but due to some hidden meaning or secondary meaning can be considered as a statement of defamatory nature. In such cases, the plaintiff must prove the hidden meaning in the statement which is making the statement as defamatory.
     
     

     Intention to defame is not necessary:

     In cases where the statement is found to be defamatory, but the defendant says that he had no intention to defame the plaintiff, the statement is still held as defamation. In a case, the defendant had published by mistake that the plaintiff had given birth to twins, but the woman was just married two months ago. The defendants were ignorant of the correct facts but were still held liable for damages. [7]
   
    

2. The statement must refer to the plaintiff:

   • The plaintiff should prove that the statement made by the defendant was referred to him.
   • If the plaintiff was able to infer that the defamatory statement made by the plaintiff was directed towards him, then the defendant is liable for such an act of defamation.
     
     In the case of Newstead v. London Express Newspapers Ltd., the defendants published an article which stated that “Harold Newstead, a Camberwell man” has been convicted of bigamy. The statement made by the defendants were true about Harold Newstead who was a Camberwell barman. But there was another Harold Newstead who was a Camberwell barber and he inferred that the person being referred to in the defamatory statement as himself and sued the defendants. The defendants were held liable. [8]
      

3. The statement must be published:

   Publication refers to making the statement which is of defamatory nature known to a person other than the one to whom it is being referred to. Publication of the statement makes it known to the public at large. Making the statement known to the plaintiff alone will not amount to any defamation as defamation involves lowering and injuring the reputation of one person in the guesstimate of right-thinking members of the society.
   
   In the case of Theaker v. Richardson, the defendant wrote a letter to the plaintiff which was accusing the plaintiff as “a dirty whore”. The plaintiff’s husband had opened and read the letter thinking it to a letter regarding the election process. The plaintiff sued the defendant for libel. The defendant argued that he did not anticipate that the plaintiff’s husband will read the letter and there is no publication. The defendant was held liable for defamation (libel). [9]
    

In another case of Mahendra Ram v. Harnandan Prasad, a letter in Urdu was sent by the defendant and the plaintiff had no knowledge of how to read Urdu. The plaintiff requested another person who knows Urdu to read the letter for him. The letter included contents which might be of defamatory nature. It was held that the defendant is not liable if he can prove that he did not know that the plaintiff does not have knowledge of how to read the Urdu script and that would make him take help from a third person for reading the letter. [10]

Defences:

1. Justification or Truth:
   Defamation is a false statement. So, the person making the defamatory statement must prove that the statement made against the plaintiff are true facts. As per criminal law, proving the statement to be true is not enough. The defendant must also prove that such a statement was made for bona fide reasons for the good of the public. But under civil law, proving that the statement made are true facts is enough for defence. The main objective for the availability of such a defence is that a person who is exposed with statements of defamation which are qualities a person of ordinary prudence must not possess. But, if the defendant fails to prove the statement as true, then this defence will not be available to him.
   
   In a case, the defendant was the editor, printer, and publisher of a newspaper. He published a series of articles defaming the plaintiff alleging that the plaintiff has issued fake certificates, has accepted bribes, and follows unlawful methods for various issues. But when the plaintiff sued the defendant, he failed to prove all the allegations to be true and was therefore held liable for defamation. [11
    
2. Fair Comment:
   For a person to avail this defence, he must prove that the statements made by him were an opinion expressed and not a forceful statement of facts. He must prove that expression of such an opinion was fair and was for the purpose of public interest. To determine that the statement made by the defendant is a comment or not depends on how he has used the language or in what context has he stated it.
   
   The comment made by the defendant cannot be considered as a fair comment if such statement is not true. The matter on which such comments are made must be of public interest such as regarding government departments or any public company, or local authorities, etc.
   
   In the case of K.S. Sundram v. S. Vishwanathan, the defendants published about the deterioration in the performance of management of the company of which the plaintiff was the President. It was held by the Madras High Court that there was no personal anger established for a writer who publishes articles which are defamatory for the plaintiff. It was also held that the articles published contained fair comment and are not statements of defamation. [12]
    
3. Privilege:
   In certain situations, the law recognizes that right to freedom of speech is surpassing the right to reputation of the plaintiff and such situations are treated as privileged. There are two types of privileges:
   
   1. Absolute and
   2. Qualified.
   
   In absolute privilege, there is no action for proceedings for defamation even if the statements are made from malice. In these cases, it is demanded in public interest that the freedom of speech should surpass the right to reputation of an individual. In qualified privilege, it is important that the statement made must be without malice. Such a defence is available when there is any discharge of duty, protection of public interest, fair report by the parliament, or any other public proceedings.
   
   In a case, it was held that a creditor is protected when he makes any statement about the financial condition of the debtor to another creditor. [13]

End-Notes:

1. Youssoupoff v. M.G.M Picture Ltd., (1934) 50 T.L.R. 581
2. Exception created by the Slander of Women Act, 1891
3. Parvathi v. Mannar, I.L.R. (1885) 8 Mad. 175
4. A.C. Narayana Sah v. Kannamma Bai, I.L.R. (1932) 55 Mad. 727
5. Quoted in Deepak Kumar Biswas v. National Insurance Co. Ltd., A.I.R. 2006 Gau. 110
6. Ram Jethmalani v. Subramaniam Swamy, A.I.R. 2006 Del. 300
7. Morrison v. Ritihie & Co., (1902) 4 F. 654
8. (1939) 4 All E.R. 391: (1940) 1 K.B. 377
9. Theaker v. Richardson, (1962) 1 All E.R. 299
10. A.I.R. 1958 Pat. 445
11. Radheshyam Tiwari v. Eknath, A.I.R. 1985 Bom. 285
12. A.I.R. 2013 (NOC) 216 (Mad.)
13. Spill v. Maule, (1869) L.R. 4 Ex. 232

Award Winning Article Is Written By: Ms.Sandhya Prabhakaran - BBA LL.B. (H), 1st year, Amity Law School, Noida

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