Defamation Under Law Of Torts - jetty study

February 9, 2024

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INTRODUCTION

A man’s reputation is considered valuable property and every man has a right to protect his reputation. This right is acknowledged as an inherent personal right and is a jus in rem i.e., a right good against all persons in the world. Defamation refers to any oral or written statement made by a person which damages the reputation of another person. DEFAMATION means “The offence of injuring a person’s character, fame, or reputation by false and malicious statements”. If the statement made is written and is published, then it is “LIBEL”. If the defamatory statement is spoken, then it is a “SLANDER”.

Defamation is injury to the reputation of a person. If a person injures the reputation of another he does so at his own risk, as in the case of an interference with the property. A man’s reputation is his property, and if possible, more valuable, than other property. The need to protect individual reputation was highlighted in REYNOLD V TIMES NEWPAPERS [2001] 2 AC 127, 201: Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely – Lord Nicholls.

UNDER ARTICLE 10 OF THE HUMAN RIGHTS ACT 1998 (and the ECHR 1950) everyone has the right to freedom of expression, including the right to hold opinions and to receive and impart information. However, the exercise of this right is subject to the conditions prescribed by law for, among other things, the protection of the reputation or rights of others

MEANING

SECTION 499 OF INDIAN PENAL CODE, 1860 defines defamation 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 expected, to defame that person.”

TYPES OF DEFAMATION

There are two ways through which we can transmit the defamatory statement. One is through SLANDER and another one is through LIBEL. Libel is done through text or graphic and it is permanent in nature. Defamation can also be done through slander. Here, slander is referred to as transient or non-permanent in nature.

SLANDER : – The defamatory statement is made by spoken words or some other transitory form, whether visible or audible, such as gestures, hissing or such other things. It is addressed to the ears. It is a civil injury only and not a criminal offence except in certain cases. It is actionable only on proof of actual damage.
LIBEL : – The defamatory statement is made in some permanent and visible form, such as writing, printing, pictures and effigies. It is addressed to the eyes. It is an actionable tort as well as a criminal offence. It is actionable per se (in itself) i.e., without proof of actual damage.

ELEMENTS OF DEFAMATION

THE STATEMENT SHOULD BE MADE - A statement can be made by words either spoken or intended to be read, or by signs or by visible representations. For example, A is asked who stole B’s diamond ring. A point to C, intending to cause everybody to believe that C stole the diamond ring. This is defamation.
THE STATEMENT MUST REFER TO THE PLAINTIFF - The defamatory statement must refer to the person, class of persons or the trustees of a company. The reference may be express or implied. It is not necessary that the plaintiff has to be mentioned by name, if he can still be recognized. The person referred to in the defamatory statement can be living or dead, however, defamation suit on behalf of a dead person can be filed only if the person filing the suit has an interest.
THE STATEMENT MUST BE DEFAMATORY - Defamation starts with someone making a statement, and any person who makes a defamatory statement can be held liable for defamation. A defamatory statement tends to diminish the good opinion that others hold about the person and it has the tendency to make others look at him with a feeling of hatred, ridicule, fear or dislike. Abusive language may also be defamatory, for example, to call a man hypocrite or a habitual drunkard. A few illustrations to understand what is defamatory and what is not. To say a motorist drives negligently is defamatory. To criticize goods is not defamation. To say that a baker’s bread is always unwholesome is defamatory. To state that a person has not that degree of skill which he holds himself as possessing is defamatory.
THE INTENTION OF THE WRONGDOER - The person making the defamatory statement knows that there are high chances of other people believing the statement to be true and it will result in causing injury to the reputation of the person defamed.
THE STATEMENT SHOULD BE FALSE - A defamatory statement should be false because the truth is a defence to defamation. If the statement made is true then there is no defamation as the falsity of the statement is an essential ingredient of defamation. The law does not punish anyone for speaking the truth, even if it is ugly.
THE STATEMENT SHOULD NOT BE PRIVILEGED - In some cases, the statements may be privileged i.e., the person who has made the statement is protected from such liability.
THE STATEMENT MUST BE PUBLISHED- For defamation to occur, the statement should be published. The statement should be communicated to a third party. Any statement written in a personal diary or sent as a personal message does not amount to defamation, but if the sender knows that it is likely that a third person may read it, then it amounts to defamation. In MAHENDRA RAM V. HARNANDAN PRASAD, the defendant was held liable because he had sent a defamatory letter written in Urdu despite knowing the fact that the plaintiff could not read Urdu and ultimately the letter will be read by someone else.
THE THIRD PARTY BELIEVES THE DEFAMATORY MATTER TO BE TRUE - The other people of the society believe that the defamatory matter said about the plaintiff is true.
THE STATEMENT MUST CAUSE INJURY- The statement made should harm or injure the plaintiff in some way. For example, the plaintiff lost his job because of the statement made.

MEASURES OF DAMAGES IN DEFAMATORY PUBLICATION

The Court must take the following things into consideration while deciding the question of compensation in a defamatory publication : –

The conduct of the plaintiff.
His position and standing in society.
The nature of libel.
The absence or refusal of any retraction or apology of libel.
The whole conduct of the defendant from the date of publication of libel to the date of the decree.

In GORANTLA VENKATESHWARLU V. B. DEMUDU, the respondent was a bank officer and was sent on deputation to work as the Managing Director of Co-operative society. The appellant, the President of Society sent a complaint to the Bank alleging that the respondent had illicit connections with ladies which affected the image of the society during his tenure as the Managing Director. The respondent sent a reply denying the allegations made against him. The branch manager of the bank conducted an inquiry and found out that the allegations were false and were made only with a view to see that the respondent is not deputed to inspect the affairs of the society. The respondent filed a suit of defamation claiming damages of Rs. 20,000. The court held that the allegations were per se defamatory and the appellant was liable to pay damages. However, the court considered the fact that the allegations were made known only to staff and the Bank and there was no wide publicity, so the appellant was liable to pay Rs. 5000 as damages.

PUBLICATIONS BY TWO OR MORE PERSONS

When two or more persons agree together to write or utter defamatory words of another, and one of them writes or utters the words in the presence of others, who have so agreed, all of them may be sued as a joint tortfeasor provided the defamatory matter has been published to persons other than those who were acting together or the plaintiff.

REPETITION OF DEFAMATORY WORDS

Generally, the person who first makes a defamatory statement is not liable if the statement is republished by another person even though he expressly states that he is reproducing what he has heard from some source. However, no person has the right to repeat a slanderous statement without any justification. If a person who is aware that a defamatory statement is false and still repeats or communicates it further, then he can also be held liable for defamation.

DEFAMATION BY OMISSION

There may be publication by omission. Failure by a defendant authorized and able to remove defamatory matter which is the work of another is publication by him. For example, if someone puts up a defamatory letter on the notice board of a club and the person in charge has not removed it within a reasonable time, then he will be accountable.

DEFAMATION VS. FREEDOM OF SPEECH

The question that arises is whether liability arising out of defamation is a violation of the right to freedom of speech and expression. As we know that there is no specific fundamental right to privacy, the judicial interpretation includes it as a dimension of the right to life and liberty guaranteed under Article 21 of the Constitution. So the right to reputation also comes in the ambit of Article 21.

In the case of SUBRAMANIAN SWAMY V. UNION OF INDIA, a petition regarding the decriminalization of defamation was filed. The petition challenged the constitutional validity of Section 499 and 500 of the Indian Penal Code, 1860 is an unreasonable restriction on the freedom of speech and expression. The apex court held that criminal defamation under Section 499 and 500 did not violate Art. 19(1)(a) as it is a reasonable restriction under Art. 19(2). The term ‘defamation’ in Art. 19(2) includes both civil and criminal defamation. Section 499 and 500 IPC was held to be non-discriminatory and non-arbitrary and not violative of the right to equality guaranteed under Art. 14 of the Constitution. While in a democracy an individual has a right to criticize and dissent, but his right under Art. 19(1)(a) is not absolute and he cannot defame another person as that would offend the victim’s fundamental right to reputation which is an integral part of Art. 21 of the Constitution.

In SHREYA SINGHAL V. UNION OF INDIA, the petitioners challenged the validity of Section 66A of the Information Technology Act (ITA) contending that it was not a reasonable restriction on the freedom of speech and expression guaranteed under Art. 19(1)(a) of the Constitution. They argued that the impugned section was unconstitutional because it provided protection against annoyance, inconvenience, insult, injury, or criminal intimidation which is not covered in Art. 19(2). The court found section 66A of (ITA) to be vague and invalidated it on the ground of being violative of the right to freedom of speech and expression.

DEFENCES AVAILABLE AGAINST DEFAMATION

JUSTIFICATION BY TRUTH

Truth is an absolute defence. If the statement made is authentic then it does not constitute defamation. The burden of proof is on the defendant who is claiming the defence. For instance, X makes a statement in an interview about Y indulging in gambling and Y files a suit against him. If X is able to justify or prove it, then Y’s claim will be dismissed. In Radheshyam Tiwari v. Eknath, the defendant was unable to prove the facts published by him and therefore was held liable for defamation.

FAIR AND BONAFIDE COMMENT

Nothing is defamatory which is a fair comment in the matter of public interest. The defendant can avail this defence when he has merely made a fair comment in a matter of public interest. This defence is based on public policy which gives every person the right to comment and criticize without any malicious intention the work or activities of public offices, actors, authors and athletes as well as those whose career is based on public attention. Any fair and honest opinion on a matter of public interest is also protected even though it is not true. There is no definition of a matter of public interest. Generally, a matter of public interest can is a subject which invites public attention or is open to public discussion or criticism.

THE MAIN PRINCIPLES RELATING TO THE DEFENCE OF FAIR COMMENT HAVE BEEN STATED BY DUNCAN AND NEILL AS FOLLOWS:

The comment should be on a matter of public interest;
The comment must be based on facts;
The comment, though it can include inferences of fact, must be recognizable as a comment;
The comment must satisfy the following objective test; could any man honestly express that opinion on the proved facts;
Even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.

The same approach is followed in India. Any matter or subject which attracts public attention and is a matter of public interest. For example, A puts allegations on B of being corrupt in a newspaper. If A is not able to prove that the allegations were true, then his comment will not be considered fair comment.

FAIR COMMENT AND JUSTIFICATION DISTINGUISHED

The plea of fair comment is available only in respect of both facts and opinion, it is not necessary to prove the truth of the comment. When justification is pleaded in respect of matters of opinion, the defendant must prove not only that he honestly held the views expressed but also that they were accurate.

ABSOLUTE PRIVILEGE

It gives the person an absolute right to make the statement even if it is defamatory, the person is immune from liability arising out of defamation lawsuit. Generally, absolute privilege exempts defamatory statements made:

during judicial proceedings,
by government officials,
by legislators during debates in the parliament,
during political speeches in the parliamentary proceedings and,
communication between spouses.

FOR EXAMPLE, X is a member of Parliament and he gives a speech in the parliamentary proceedings which defames Y. Here X is protected by absolute privilege. In the case of T.J. PONNEN V. M..C. VERGHESE, the court held that a letter sent by a husband to his wife which contains defamatory about the father-in-law does is not a case of defamation. It is a privileged communication between the spouses as per Section 122 of the Indian Evidence Act, 1872. In Chatterton v. Secretary of State for India, it was held that the letters from the Secretary of State of India to his Parliamentary Under-Secretary providing the materials for the answer to a parliamentary question was absolutely privileged.

QUALIFIED PRIVILEGE

When a person making the statement has a legal, social or moral duty to make it and the listener has an interest in it, then the defence of qualified privilege is allowed. Following are the instances where this defence can be availed of:

Reference for a job applicant,
Answering the police inquiries,
A fair criticism of a published book or film in a review,
communication between parents and teachers,
communication between employers and employees,
communication between traders and credit agencies are all relationships that are protected by qualified privilege.

These privileged communications must relate to the business at hand, even if what was said was untrue. However, this does not give a licence to say false statements, the person making the statement must believe it to be true. This defence can fail if it is proved that the defamatory statement was made with a malicious intention. Discussions on government and political matters which are subjects for public debates are covered under this defence. For example, a teacher tells the parents about the child’s habit of stealing and warns them. In this case, the teacher can take the defence of qualified privilege as he made the statement in good faith and in the interest of the child.

STATEMENT OF OPINION

If the statement made is an opinion and not a statement of fact, then it cannot be defamatory. For example, if a person says that he finds an actor ugly, the statement is just an opinion. However, if he says that the actor is a drug addict or has had multiple affairs, then it will be a defamatory statement. If this statement results into the actor losing work or his job and the statement made are false, then there will be a case for defamation.

CONSENT

If the plaintiff consents to the statement made, then there is no defamation. The consent of the plaintiff gives absolute privilege to the publisher, it is immaterial whether the plaintiff knew that the information approved for publication was defamatory or not. Consent may be given by words or actions, including inaction. If the consent is obtained fraudulently or from a person of unsound mind then it will be invalid.

CENSURE PASSED IN GOOD FAITH BY THE PERSON HAVING LAWFUL AUTHORITY

It is not defamation of a person having over another authority either conferred by law or arising out of the lawful contract made with another to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. For instance, a judge censuring the conduct of a witness or a banker censuring the cashier of his bank or, an engineer submits a report to the municipality that the contractor had taken away the stock of metal. If the engineer has made the report in good faith, then he will not be liable for defamation.

THE ACCUSATION MADE IN GOOD FAITH TO THE AUTHORIZED PERSON

An accusation made in good faith against a person who has lawful authority over that person is not defamation. It is not necessary for the person making allegations to prove that his allegations were true but he must prove that there were reasonable grounds for him to believe in the allegation. If a person signs a petition to the chairman of Lucknow Development Authority against defective construction of houses, along with several other residents of the locality, he can say to have acted in good faith.

DIFFERENCE BETWEEN CIVIL DEFAMATION AND CRIMINAL DEFAMATION

CASE LAWS UNDER DEFAMATION IN TORT LAW

SHREYA SINGHAL VS. UNION OF INDIA ON 24 MARCH, 2015

FACTS OF THE CASE : – The petitioners challenged the validity of SECTION 66A OF THE INFORMATION TECHNOLOGY ACT (ITA), saying it was not a reasonable restriction on the freedom of speech and expression guaranteed under ARTICLE 19(1)(a) OF THE CONSTITUTION. They argued that the impugned section was unconstitutional as it provides protection against annoyance, inconvenience, insult, injury or criminal intimidation which is not covered in ARTICLE19(2).

JUDGMENT OF THE CASE : – The court found SECTION 66A OF THE ITA ambiguous and invalidated it on the ground that it violated the right to freedom of speech and expression.

NEWSTEAD VS. LONDON EXPRESS NEWSPAPERS LTD [1940] 1 KB 377

FACTS OF THE CASE : – The defendants published an article stating that ‘Harold Newstead, a Camberwell man’ had been convicted of bigamy. The story was true of Harold Newstead, a Camberwell barman. The action for defamation was brought by another Harold Newstead, the barber.

JUDGMENT OF THE CASE : – As the words were considered to be understood as referring to the plaintiff, the defendants were liable.

SUBRAMANIAN SWAMY VS. UNION OF INDIA

FACTS OF THE CASE : – Dr. Swamy challenged the constitutionality of the criminal defamation law in India. A two-judge bench of the Supreme Court comprising Justices Dipak Misra and Justice P. C. Pant approved the Constitutional validity of SECTIONS 499 AND 500 ( CRIMINAL DEFAMATION ) in the Indian Penal Code, highlighting that an individual’s fundamental right to live with dignity and reputation “cannot be ruined solely because another individual can enjoy his freedom”.

The presiding noted that “the right to freedom of speech and expression provided to people is not an absolute right but is absolutely sacrosanct” and has to be “balanced with the right to reputation” which is secure under ARTICLE 21 of the Indian Constitution” and it cannot be allowed to be crucified at the altar of the other’s right of free speech.

JUDGMENT OF THE CASE : – The court held that to protect individual dignity of life and reputation it is important to criminalize defamation and it comes under the “reasonable restriction” on the fundamental right of free speech and expression. Therefore, the criminal provisions of defamation are constitutionally valid and do not conflict with the right to free speech.