Defamation

Author: Monazza Sajid

Defamation

• What do you mean by defamation?

Every person has an inherent personal right to have his reputation protected. In the case, Dixon v. Holden, it was held in the judgment that “a man’s reputation is his property, more valuable than other property” It is a jus in rem which means that it is a right good against the world.

In the case, Ram Jethmalani v Subramaniam Swamy, the definition of defamation was discussed, and it was held that “Defamation is a public communication which tends to injure the reputation of another” 

According to Dr.Winfeild, defamation is defined as “the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally or which tends to make them shun or avoid that person”.

Defamation is essentially a defamatory statement communicated to a third person by a person in order to ruin or injure the reputation of a person in his business, or profession, or to cause him to be avoided by the others.

Section 499 of the Indian Penal Code, 1860 states that, “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” 

• What are the types of defamation?

There are two types of defamation and they are as follows:

1. Libel: Libel is a publication of a false and derogatory statement made by a person other than the other for whom it is made. It should be in a nature that is threatening to a person’s reputation and should be without any lawful justification.

It is important for a libel to be in a permanent form. Illustrations: In writing, recorded audio, in typing, pictures, etc. 

2. Slander: It is a false and derogatory statement made by a person to a third person either by spoken words, or gestures intending to injure his reputation. It is not in a permanent form but expressed in some temporary form. 

• What is the difference between Slander and Libel?

Libel	Slander
It is a derogatory statement in a permanent form.	It is a derogatory statement that is transitory, and not in a permanent form.
In common law, libel is a civil wrong as well as a criminal offence.	In common law, slander is only a civil wrong but not a criminal offence.
It is actionable per se which means that the plaintiff may not show any proof of the damage that he incurred due to libel.	In common law, it is actionable only when the plaintiff has incurred and proved special damages. However, there are certain exceptions.

• What are the essentials of defamation?

To make the defendant liable for the tort of defamation, the plaintiff must prove the three essential elements, and they are as follow:

1. The plaintiff must prove that the statement made was false and derogatory.
2. That the said statement was referring to the plaintiff.
3. That the defamatory statement was published.

The statement must be false and derogatory:

A derogatory statement can be split into two categories:

1. The statement made by the defendant was false and defamatory to the plaintiff in its natural and ordinary sense. 
2. The statement made by the defendant was innocent in its primary sense but with already known and existing facts that were known to the person to whom the statement was conveyed, it was can be defamatory. This type of statement is known as an Innuendo.

In the case, Shoobhagee Koeri v. Bokhori Ram, The defendant wrote letters to the husband of the plaintiff stating that the plaintiff was a witch and that the plaintiff was the cause of the deaths of the husband’s relatives. It was held by the court the defendant was liable for defamation as the statement made by his was false and injured the reputation of the plaintiff. 

In the case Shoobhagee Koeri v. Bokhori Ram, there were allegations that the plaintiff who was the managing director of a co-operative society indulged in illegal activities and was having various affairs with many ladies in his company. These statements were considered defamatory, and the defendant was held liable. 

The statement must refer to the plaintiff:

To claim action for defamation, it is very important for the plaintiff to prove that the statements were made against him, and not someone else. But it is not mandatory to prove that the statement had the plaintiff’s name in it so long as it is proved that the statements made were talking about him. 

In Morgan v. Odham’s Press Ltd, here a newspaper published about a child who was kidnapped by a group of gang members and was kept in a flat at Kilburn during a specified week. The plaintiff brought a suit against the publishing house that published the newspaper that the article was defamatory to him as anyone who would read the article would think that the plaintiff was related to the said gang. 

The House of Lords held that “t it is not essential that the plaintiff should be named or there should be some key or pointer referring to him and that the jury could reasonably hold that readers of the articles would ignore the discrepancies of place and time and think of the plaintiff while reading the article.” Hence, the defendant company was made liable for defamation.

The statement must be published:

Here, publication, in its legal sense, refers to the communication of a defamatory statement to any other person apart from the person for whom the statement was made.

In the case, Mahendar Ram v. Harnandan Prasad, The defendant sent a defamatory statement to the plaintiff, but the letter was written in the Urdu language, the plaintiff did not know how to read the language. Therefore, he asked another person to read the letter to him. When he found out about the statements made by the defendant were derogatory, he brought an action for defamation against the defendant. 

The court of law held that the defendant was not liable as long as it was proved that the defendant knew that the plaintiff did not know how to read Urdu, in which the letter was written and therefore, he will another person to read the letter to defame the plaintiff. 

In the case, Huth v.Huth, the defendant sent a letter to the plaintiff alleging that they were not married and their children were illegitimate. The plaintiff’s butler read the envelope before handing it over to the plaintiff, hence, the suit. 

It was held in the court that it was not the duty of the butler to read the letters that were addressed to his employers. And that the defendant had no reason to believe that the butler would read the letter that was written by him. Hence, there was no publication and the defendant was not held liable for defamation. 

• What are the various defences available in an action for Defamation?

There are essentially four defences available to the defendant in an action for a suit for the defendant, and they are as follows:

1. Justification by Truth
2. Fair and Bona Fide comment
3. Privilege
4. Apology

Justification by Truth:

In civil all, a defamatory statement made by the defendant is a complete defense in an action for defamation but not so in criminal law. In civil law, even if the defendant maliciously made for comments to injure the reputation, and they turn out to be true, the plaintiff cannot be entitled to damages. 

In Bata India Limited v. A. M. Turaz and Other, the court held that “Truth, or justification, is a complete defense. The standard of proof of truth is not absolute but is limited to establishing that what was spoken was ‘substantially correct’”.

In the case, Cookson v. Horwood, it was held by the court of law that if one repeats a rumor, then that person cannot take defence by showing that the rumor, In fact, existed but the person would be asked to prove that the subject matter of the rumor is true.

Fair and Bona Fide comment:

Fair comments are the comments that are made by the person who honestly believes it to be true, and it is not motivated by any malice. 

In the case, Bata India Limited v. A. M. Turaz and Others, the court explained the difference between the defence of fair comment and defence of truth. The courts stated that the defence of fair comment offers protections to anyone who expresses his thoughts and opinions, and they believe it to be true without it being hidden by any malicious motives.

The court does not have to agree with the comment, but the court is limited to determine whether this comment could have been held by a reasonable man. On the other hand, the defence of truth is not based on an opinion, but on facts that are not false. However, unlike the defence of truth, the defence that is based on fair comments can be defeated by the plaintiff if he proves that the defendant made those comments with hidden malicious intent. 

There are essentially three elements that the defendant must prove to take the defence of fair and bona fide comment, and they are as follow:

1. That the statement he defendant made was his own opinions and not a statement of fact. 
2. The comment made by the defendant was a fair comment. 
3. The matter on which the statement was made was of public interest.
4. The comment that was made was not made with a malicious motive.

Privilege

Privilege means that a person stands in such a relation to the facts that he will not be held liable for defamation for saying such statements and that he is justified in saying or writing those statements. 

The general principle that can be seen lying under this defence is the general interest of society. 

Privilege can be compartmentalized into two categories, and they are as follows:

1. Absolute  Privilege: 

Absolute privilege means that any statement made that is false, defamatory, and made with malice is absolutely privileged and no action would lie against the person who made it. The privilege extends to not only spoken words, but well-documented proceedings. 

The following occasions are absolutely privileged. 

1. Parliamentary Proceedings
2. Judicial Proceedings
3. Military and Naval Proceedings
4. State Proceedings

2. Qualified Privilege:

Here, a person can only take advantage of this privilege if it can be proved that he made his statement without any malicious intention. 

The following are examples of qualified privilege:

1. A Statement made in the performance of a duty.
2. A Statement made by a person in self-defense.
3. When the communications are made in the matter of public interest.

Apology

“This is the statutory defence available only in an action for libel contained in a public newspaper or other periodical publication. The defendant must prove, firstly, absence of malice and gross negligence, and secondly, an apology at the earliest opportunity inserted in the newspaper or the periodical.”

Conclusion:

In conclusion, defamation refers to a statement made by a person to another person other than the person to whom it was made for, it must be false and derogatory and must injure the reputation of the plaintiff. Defamation can be either a civil wrong or a criminal offence. There are essentially three essential elements the plaintiff must prove in order to make the defendant liable. And there are four defences that the defendant may take to defend himself in the suit.