Author: Manika Joshi
JIMS School of Law, Greater Noida, IP University.
Next to life, what man cares and loves most is his reputation. If any injury causes to his reputation, he might psychologically suffers to a great extent. Some persons may commit suicide due to defamation.
In general terms, defamation means damaging the reputation of someone by making false or untrue statements either written or spoken.
In words of Dr. Winfield “Defamation is the publication of a statement which tends to lower a person in estimation of right thinkingof society, or which tends to makes them shun or avid that person.
Any intentional false communication, that harms a person’s reputation, decreases the respect, regard in which a person is held, or induces disparaging and disagreeable opinions or feelings against a person is known as defamation. It is a statement that injures someone’s reputation. The act of saying false things in order to make people have a bad opinion of someone. Any person who does this, does it at his own risk as defamation is a civil and criminal charge under section 499 and section 500 of IPC. A man’s reputation is his property or in fact more valuable than property.
Defamation is of two kinds: Libel and Slander
Libel is the representation made in some permanent form, example writing, printing, picture etc.
Slander is the act of defaming someone by spoken of words or gestures etc.
Under English law, only libel is recognized as a crime and slander is no offence. English law says that libel is always actionable per se i.e., without the proof of any damage. But according to Indian law, both libel and slander are offences.
Section 499 IPC says : whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publish 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 to defame that person.
Section 500 of IPC says whoever defames another shall be punished with simple imprisonment for a term which may extend to two years or fine or both.
What the victim must prove to establish that defamation occurred?
If the victim has to win a lawsuit relating to defamation, then the victim has to prove the following essentials:
1) Statement- There must be a statement which can be spoken, written, pictured or even gestured.
2) Publication- For a statement to be published, a third party must have seen, heard or read the defamatory statement. If there is no publication there is no injury of reputation and no action will arise.
In the case of Mahendra Ram v. Harnandan Prasad it was held that defendant was not liable unless it was proved that at the time of writing the letter in Urdu script, the defendant knew that the Urdu script was not known to the plaintiff and it would necessitate reading of the letter by a third person.
3) Injury- The above statement must have caused an injury to the subject of the statement. It means that the statement must tend to injure the reputation of a person to whom it refers.
As happened in the case of Ram Jethmalani v. Subramaniam Swamy where it was held that the statement made by defendant against plaintiff was irrelevant to the situation happening at that time and actual malice on the part of defendant was established and the plaintiff was awarded with Rs.5 lacs as damages.
Whenever it is not obvious from the defamatory words themselves who is the person referred to, or what the imputation cast upon him is, the plaintiff should insert in his pleading an averment (which is called an innuendo) stating what he understands the words to mean and to whom he supposes them to refer.
Thus, if the defendants said to a stock broker, “he is a lame duck”, the plaintiff should plead that he was a stock-broker, and that “the defendant falsely and maliciously spoke and published of him the words “he (meaning the plaintiff) is a lame duck’ (meaning thereby that the plaintiff had not fulfilled his contracts in respect of certain stocks and shares which he had bought in the course of his business as a stockbroker. (Pollock on Torts)
4) Falsity- The defamatory statement must be false. If the statement is not false then the statement will not be considered as defamatory statement.
5) Unprivileged- In order for a statement to be defamatory, it must be unprivileged. There are certain circumstances, under which a person cannot sue someone for defamation.
Defenses available under defamation:
The following are the defenses taken in an action for defamation:-
1) Justification of truth-
If the defendant proves that the defamatory statement is true, no action will lie for it, even if the statement is published maliciously. It is not necessary to prove that the statement is literally true, it is sufficient if it is true in substance. As held in Alexander v. North Eastern Ry., defendants were not liable, the statements being substantially accurate.
2) Fair and bonafide comment-
A fair and bonafide comment on a matter of public interest is a defense in an action for defamation. The essentials of a fair comment are:
(i) That it is comment or criticism and not a statement of fact,
(ii) That the comment is on a matter of public interest,
(iii) That the comment is fair and honest.
3) Privileged statement-
Law makers have decided that one cannot sue for defamation in certain instances when a statement is considered privileged. Whether a statement is privileged or unprivileged is policy decision that rests on the shoulders of the lawmakers.
Privilege is of two kinds: Absolute privilege and Qualified Privilege
In Absolute Privilege no action lies even if the statement is false or had been made maliciously. This privilege is recognized in following cases:
- Parliamentary privileges
- Judicial Proceedings
- State Communications
For the defense of Qualified privilege the statement must be made without malice and there must be an occasion for making the statement.
Defamation is tort resulting from an injury to ones reputation. It is the act of harming the reputation of another by making a false statement to third person. Defamation is an invasion of the interest in reputation. The law of defamation is supposed to protect people’s reputation from unfair attack. In practice its main effect is to hinder free speech and protect powerful people from scrutiny. Defamation law allows people to sue those who say or publish false and malicious comments.