Defamation and its defences

Author: Rishi V Tibrewal, Damodaram Sanjivayya National Law University

Introduction:

A false statement, either spoken or written, which injures the reputation of a person by lowering the respect of the person on the society or creates negative feelings or hostility towards a person, is said to constitute defamation.

Defamation can be criminal or civil, Section 499 of the Indian Penal Code defines criminal defamation by stating 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.”^[1] while the punishment for defamation is given in Section 500 – “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”^[2]

Libel and Slander

Libel and Slander are both forms of defamation. The difference between the two is the form in which the defamatory statement is published. If the defamatory statement is published in a permanent form such as writing or pictures, it is called libel. If the defamatory statement is published in a transient form like speech or gestures, it is called slander.

In Youssoupoff v. M.G.M. Pictures Ltd., it was held that speech synchronizing with the photographic part of a film will also be considered libel.^[3]

In English law, libel and slander are treated differently. While libel is actionable, the plaintiff must prove special damages in the case of slander. But no such distinction is made in India. Both libel and slander are treated equally defamatory. In Ramdhara And Anr. vs Mst. Phulwatibai, the Madhya Pradesh High Court held that both libel and slander are actionable in a civil court without proof of special damages.^[4]

Essentials of Defamation

Not all statements made against a person can be classified as defamation. In order to be considered a defamatory statement, it should meet 3 criteria. These are –

The statement must be defamatory

A statement is defamatory when it harms the reputation of a person. It should either lower the respect and create a negative image of the person exposing him to disgrace, humiliation or contempt or it should incite feelings of hostility which makes the society shun and avoid the person. There is no defence that a statement was not intended to be defamatory if the statement is defamatory in nature.

In the case of S.N.M. Abdi v. Prafulla Kr. Mahanta, the plaintiff filed a suit of defamation claiming that his reputation was harmed and injured by an article that stated that he was a corrupt and immoral minister. The court held the defendant guilty and established that “the plaintiff need not show a tendency of the imputation to prejudice him in the eye of everyone in the community or all of his associates, but it suffices to establish that the publication tends to lower him in the estimation of a substantial, respectable group, even though they are a minority of the total community or of the plaintiff’s associates.”^[5] This means that a statement can be considered defamatory even if it does not lower the respect of the person in the eyes of everyone, a damage of reputation in the eyes of a substantial group is enough to deem it defamatory.

The Andhra Pradesh High Court held that insult or intimidation does not amount to defamation in the case of Venkata Surya Rao v Nandipati Muthayya.^[6] A vulgar abuse does not constitute defamation if it does not damage the reputation of the person.

A statement might be innocent upon the first impression, but because it may contain a latent or secondary meaning, it is considered to be defamatory. Such secondary meaning is also called an innuendo.

The statement must refer to the plaintiff

The defendant can only be liable if the person to whom the statement was published can reasonably infer that it refers to the plaintiff. It is immaterial that the defendant did not intend to defame the plaintiff.

In the case of Hulton and Co. v. Jones, the defendant was the author of a fictional story published in a newspaper. The story spoke, in a defamatory manner, of a character named Artemus Jones which was the same as the name of the plaintiff. The writer did not intend to defame the plaintiff, but the court held that people who knew the plaintiff could understand the story as being referred to him. Acting in good faith and without any intention to defame the plaintiff is no defence. Therefore the plaintiff was awarded compensation.^[7]

However, a conflicting opinion can be seen in Madras High Court’s judgment in T.V. Ramasubba Iyer v. A.M. Ahamed Mohideen where the court overturned the judgment of the trial court which found the defendants guilty of defamation.^[8] The statement published by the defendants accused a person of a crime. But the statement could also refer to the plaintiff in the eyes of the people who knew him. The defendants had published a correction in good faith and apologized to the plaintiff. The court ruled that the judgment in Hulton and Co. v. Jones was not “in accordance with justice, equity and good conscience”.

In Harsh Mendiratta v. Maharaj Singh, the plaintiff filed a case of defamation against the defendants alleging that the defendants’ acts had been defamatory towards her husband. The Delhi High Court dismissed the suit stating that no act of defamation had taken place. It also iterated that only the person who has been defamed can file a suit for defamation and family, friends, relatives, etc can not seek damages.^[9]

When a defamatory statement is made against a group of people, no person of that group can bring a suit of defamation unless the person is able to prove that the statement could reasonably be considered as addressed to him. Since a partnership firm does not have a separate legal entity, the defamation of the firm can be considered the defamation of the partners.

Defamation of a dead person can not be actionable under tort law. However, if the defamatory statement hurts the feelings of a relative then it can be considered a crime.

The statement must be published

The defamatory statement must be communicated to a person other than the person defamed in order for it to constitute the tort of defamation. This is because the reputation of the person must be harmed to qualify as defamation. Even dictating a letter to a typist can be considered a publication. But if a third person reads a letter meant for the person defamed or eavesdrops on a conversation between the two parties, it can not be considered publication. However if the defamatory letter is likely to be read and understood by someone else, it can be considered publication. For example, a telegram read by post officials or a letter is read and understood by a clerk or a spouse it amounts to publication.

Defamatory matter communicated from one spouse to another is not considered publication, But communication of a matter defamatory of one spouse to the other is sufficient publication.

The person who repeats a defamatory matter is liable for defamation since it is considered a fresh publication. In Emmens v. Pottle,^[10] it was held that a vendor will not be liable for defamation if he does not know, and he is not expected to know, that the material he is selling is defamatory.

Defences for Defamation

Justification or Truth

While criminal law requires the defendant to prove that the defamatory statement was made for public good besides being true, the truth of the defamatory matter is a complete defence in civil law. The defendant can take this defence even if his intentions were malicious. But the defendant should be able to prove the truth of the facts to be able to avail the defence of truth.

In the case of Radheshyam Tiwari v. Eknath, the defendant was the editor of a newspaper who published a series of articles which contained defamatory matter against the plaintiff alleging that the plaintiff took bribes, committed sexual atrocities and was a corrupt officer.^[11] While the defendant contested that the allegations were true, he could not prove the same and was directed to compensate the victim and issue an apology.

In another case, Salena Dandasi v. Gajjala Malla Reddy and Ors., a complaint was lodged by a woman against an advocate accusing him of sexually assaulting her.^[12] This was published as a news item in a newspaper. The newspaper referred to the advocate as shameless and called him an advocate for injustice. It distorted the facts and implied that the advocate is not deserving of living in the country. The court ruled that it is the responsibility of news media to give true and accurate facts and that defamation had occurred since the newspaper could not prove that the matter it has published is true.

It is necessary that the defendant proves the truth of all charges if the defamatory matter contains two or more distinct allegations which harm the plaintiff’s reputation to be able to tale the defence of justification.

Fair Comment

The defendant can take the defence of fair comment if the defamatory matter published is an expression of opinion that can be reasonably inferred from true facts and is made in the public interest.

It is necessary, to tale the defence of fair comment, that the statement made is an opinion based on certain facts and that those facts are known to the audience while reading the statement. If an opinion can not be reasonably drawn out from the facts commented upon, then it will be treated as an assertion of a fact instead of a comment.

The comment should also be based on facts that are true and if the facts turn out to be false, then the defendant will be guilty of defamation. the defence of fair comment can be taken if the facts are substantially true and justify the comment even though some of the facts stated may not be proved. In Silkin v. Beaverbook Newspapers Ltd.,^[13] the court stated that “Any person is entitled to say, by way of comment on a matter of public interest, what he honestly thinks, however exaggerated, obstinate or prejudiced that may be; such comment is fair and sustainable as a defence to a libel action unless it is so strong that no fair-minded person could have made it honestly.” Therefore, a comment is considered fair if the defendant honestly holds a particular opinion. If a comment is made out of malice towards the plaintiff, it ceases to be fair.

“The matter commented about must be of public interest. An issue of pubic interest relates to health or safety; environmental, economic, or community well-being; Government; a public figure; or a good, product, or service in the marketplace.

Privilege

On certain occasions, the law treats defamatory statements as made under privilege when the right to free speech outweighs the right to reputation. Privilege is of two types, absolute privilege and qualified privilege.

Absolute Privilege

Under absolute privilege, defamatory statements are not actionable regardless of whether they are false or are made out of malice. These statements are protected by the right to freedom of speech since the matter relates to the public interest.

Parliamentary proceedings – During the proceedings of the Parliament, statements that are defamatory in nature made by members of the Parliament in spoken or written form during the proceedings of either House of Parliament are protected by the defence of absolute privilege. Similarly, members of State Legislations are also protected by absolute privilege for statements made during the proceedings of the body.

Judicial proceedings – Judges, counsels, witnesses or parties are not liable for their words either spoken or written during the proceeding of any case or trial before any court or tribunal recognized by law. However, if a counsel or a witness makes a defamatory statement that is irrelevant to the matter of enquiry, then they will not be able to use the defence of absolute privilege. In Jiwan Mal v. Lachhman Das,^[14] the defendant made a defamatory claim about the plaintiff during a suit in a trial court that had no relation to the plaintiff. The plaintiff sued the defendant for defamation and the defendant took the defence of absolute privilege. But the High Court of Lahore since the plaintiff had nothing to do with the suit, the defence of absolute privilege could not be taken and the defendant was held liable.

If a person makes a statement to the police which he would substantiate under oath in a court of law, then that statement is covered by absolute privilege. In the case of V. Narayana Bhat v. E. Subbanna Bhatt,^[15] the Karnataka High Court stated that even though the defendant filed a false complaint against the plaintiff to the police, he could not be made liable for defamation since his complaint is protected by absolute privilege.

Statements, communications and reports by one government office to another, or one military officer to another, during the course of their official duty, is immune to defamation under the defence of absolute privilege.

Qualified Privilege

If a person makes a defamatory statement in good faith on a privileged occasion, then the person can take the defence of qualified privilege. Unlike absolute privilege, the defendant has to prove two points to be able to take the defence of qualified privilege.

The statement should be made on a privileged occasion

A privileged occasion refers to a discharge of a duty or the protection of an interest. A defamatory statement made while discharging a legal, social or moral duty without any malice is covered under the defence of qualified privilege. The person receiving the information has to have an interest in the information.

If a defamatory matter has been published in mass media such as newspapers or television, then a duty to the public has to be proved. In R.K. Karanjia v. Thackersey, the Bombay High Court ruled that even if the matter is of public interest, it can not be considered a privileged occasion if the person communicating the matter does not have the duty to communicate it.^[16]

It is essential that there exists reciprocity of duty or interest. This means that both the publisher and the receiver of the information must have an interest or duty regarding that information.

Reports of parliamentary proceedings published with the authority of either House of the Parliament are covered under absolute privilege. But if these reports are published without the authority of the House, the defence of qualified privilege can be taken. The defendant should be able to prove that the reports were published without malice and in good faith.

A sketch or summary of parliamentary reports can be covered under the defence of qualified privilege if it can be considered a fair representation of what took place as it was understood by the listeners and if the sketch gives a reference to the full report.

The statement should be without malice

If malice is present while making the defamatory statement, then the defence of qualified privilege can not be taken. Therefore it is of utmost importance that there is no malice on the part of the defendant. The rationale behind this is that the defendant should only be allowed to use the defence on a privileged occasion. If the defendant uses the occasion for some false or indirect motive, then the occasion ceases to be privileged.

In Horrocks v. Lawe, it was established that even if the defendant published a defamatory matter against the plaintiff if he is of the honest opinion that the statement said by him is true, then he can take the defence of qualified privilege.[17] Even if there is reason to believe that the defendant had malicious intentions, if he is of an honest opinion then he has used the occasion to discharge a duty or protect interest and therefore the occasion is deemed privileged.

Freedom of Press

Freedom of the press represents the liberty of people in a country. In Pandit M.S.M. Sharma Versus Sri Krishna Sinha the Supreme Court of India held that the freedom of the press is an essential part of a free and democratic state, but it is accompanied by reasonable restrictions. The court stated, “Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the Press; but if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity.”^[18]

If the facts of a case are accurately reported, then a range of adverse comments are permissible under the defence of fair comment. But if the published information, which is defamatory in nature, is false, then the publisher may be held liable for defamation. In the case of Sardar Charanjit Singh v. Arun Purie,^[19] the Delhi High Court established that the defence of fair comment or privilege can be taken even if a false statement has been published. The statement published should not be without justification.

“Reputation of the concerned aggrieved parties on one hand and freedom of the press on the other, have to be equally balanced.”

Conclusion

Right to reputation is enshrined in Right to life and dignity under Article 21. The Constitution of India gives its citizens the right to freedom of speech and expression. But this right comes with reasonable restrictions. It is not acceptable if a person lowers the respect of another person in society by using false claims.

The law of defamation allows a person to be able to uphold his Right to reputation. But this law is only applicable if the statement is false because truth is a defence for defamation. Defamation can be allowed if it is reasonably inferred from certain facts which are known to be true.

Defamation can also be allowed in certain circumstances or by certain people. During parliamentary or judicial proceedings it is necessary that the Right to speech is given importance so that public interest is served. Also if defamatory remarks are made in governmental or military communications, they are not actionable because they are not made out of malice and their purpose is the transmission of information in official matters.

“He that filches from me my good name robs me of that which enriches him and makes me poor indeed.” – William Shakespeare

References

[1] Indian Penal Code, Section 499.

[2] Indian Penal Code, Section 500.

[3] Youssoupoff v. M.G.M. Pictures Ltd., (1934) 50 T.L.R. 581.

[4] Ramdhara And Anr. vs Mst. Phulwatibai, (1970) CriLJ 286 (India).

[5] S.N.M. Abdi v. Prafulla Kr. Mahanta, (2001) AIR 2002 Gau. 75 (India).

[6] Venkata Surya Rao v Nandipati Muthayya, (1964) AIR AP 382.

[7] Hulton and Co. v. Jones, (1910) AC 20 (HL) (appeal taken from Eng.).

[8] T.V. Ramasubba Iyer v. A.M. Ahamed Mohideen, (1972) AIR Mad. 398 (India).

[9] Harsh Mendiratta v. Maharaj Singh, (2002) Crim LJ 1894 (India).

[10] Emmens v. Pottle, (1885) 16 QBD 354 (Eng.).

[11] Radheshyam Tiwari v. Eknath, (1985) AIR Bom. 285 (India).

[12] Salena Dandasi v. Gajjala Malla Reddy and Ors., (2009) AIR (NOC) 299 (A.P.) (India).

[13] Silkin v. Beaverbook Newspapers Ltd., [1958] 1 WLR 743 at 744 (Eng.).

[14] Jiwan Mal v. Lachhman Das, (1929) AIR Lah. 486 (India).

[15] V. Narayana Bhat v. E. Subbanna Bhatt, (1975) AIR Kar. 162 (India).

[16] R.K. Karanjia v. Thackersey, (1970) AIR Bom. 424 (India).

[17] Horrocks v. Lawe, (1975) AC 135 (HL) (Eng.).

[18] Pandit M.S.M. Sharma Versus Sri Krishna Sinha. (1959) AIR SC 395 (India).

[19] Sardar Charanjit Singh v. Arun Purie, (1982) ILR Delhi 953 (India).