Learn About The Tort of Defamation

Learn about The Tort of Defamation

INTRODUCTION

It is believed​​ that it​​ is the right of each person to have an unimpaired good reputation during his life time and the law against defamation is a protection to that.​​ In simple words, defamation is an injury to the reputation of a person. ​​ It is basically the publication of statements which harms the reputation of the person in the eyes of reasonable minded persons of the society.​​ 

In English law, the defamation is of following two kinds:

  • Libel:​​ It is the publication of a defamatory statement in a permanent form i.e. in the form of an article or a picture etc.

  • Slander: It is basically defamation through speaking or gestures and therefore temporary in nature.

But in India, any such distinction has not been made with respect to kind of Defamation. All kinds of defamation are treated alike and are offence under section 499 of the Indian Penal Code.

ESSENTIALS OF DEFAMATION

  • The words must be defamatory.

This is a very subjective thing to examine as there is not a definite list of words that can be construed as defamatory. Whether the words used are defamatory or not depend on various factors that include whether the right thinking man of the society construe it as defamatory or not and also whether those words are actually lowering the reputation or not. ​​ It is no defence to say that such statement was not intended to be defamatory. The words should be such that if published, it will lower his reputation, expose him to hatred and ridicule him. Any intention to defame is not necessary to establish defamation.​​ 

Even if the statement prima facie is not defamatory and there is latent meaning hidden which is discriminatory,​​ it is a case of innuendo and a case of defamation can be filed.

  • The word must refer to the plaintiff.

Even when it gets established that the words spoken or published are defamatory in nature, it is still essential to​​ prove that the words complained of are referred to the plaintiff. It is immaterial if the defendant pleads that he didn’t intend to defame the plaintiff. If the person to whom the publication was made can make out that the words were referred to the plaintiff, the defendant will be liable. Although in a case decided in India, it was held that there was no liability for the​​ statements​​ that are published innocently.

  • The words must be published.

It simply means that the words of defamation referring to the plaintiff must be made known to at​​ least one person other than the person defamed. If the defendant has said some defamatory words to the plaintiff only, it does not qualify as defamation because defamation is an injury to reputation and reputation is what other think of you and not a man’s own opinion about himself.

 

  • Malice

In the case of defamation, the malice does not refer to​​ the mere​​ intention​​ but in​​ addition to the fact that the act of defamation was done without any lawful justification or excuse. Taking advantage of​​ the opportunity​​ to defame someone and injure someone’s reputation indicates malice.

 

If the defamatory matter is repeated by some other person than the defendant, that other person will be liable in the same way as the originator. The liability that arises in the case of defamation is strict liability.

 

DEFENCES TO DEFAMATION

  • Justification or Truth.​​ 

The defence of truth is a complete defence when a civil action for defamation is filed. But in Criminal law, if you take the defence of truth, it is mandatory for you to show that the truth was published for public good. But if the statement is wrong, it cannot be justified on the ground that the person who made such publication believed it to be true on reasonable grounds. This is justified by the logic that if the defamatory matter​​ is the truth, then you were in possession of a fake reputation and there is no remedy for injury to such reputation.

 

  • Fair Comment.

This defence is specifically available to critics, authors, writers, editors etc. Comment refers to an opinion made on the existing facts and not making a statement of fact. By fair, it means that no malice should be involved. Such comment should be made in public interest.​​ Several matters​​ of public interest include Government department, Public institutions, textbooks, novels,​​ movies etc. This defence can only be claimed if the statement is made as a comment to the fact and no tone of a fact being stated is used. Also, it was held by the court that comment cannot be considered to be a fair comment if it is based on untrue fact.

 

  • Privilege​​ 

On certain​​ privileged​​ instances, the right of free speech is put on a higher pedestal than a person’s right to reputation. Such Privileges can be of two kinds – Absolute or Qualified.

  • Absolute Privilege: In case of Absolute Privilege, no action can be brought against any defamatory statement irrespective of it being false or being maliciously made. It is an absolute defence and this defence is available only in a very restrictive manner. Such defence is recognised in Parliamentary Proceedings, Judicial Proceedings and State Communication.​​ In the court, any remark related to the case, made by judge, advocates, witnesses etc.​​ is all protected even it is malicious or unjustified. But if any witness makes any comment not even remotely related to the matter, it is not protected.

 

  • Qualified Privilege: It is not an absolute defence and there are a few essentials to be there to plead this defence. Those essentials are:

  • There must be a special occasion for making the statement like in discharge of a duty or protection of an interest etc.​​ 

  • There must not be any malice present with regard to the statement.​​ 

​​ If there is malice present, the defence of qualified privilege fails but the presence of actual malice​​ must be proved by plaintiff.​​ 

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