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“DEFAMATION AS A TORT”

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ABSTRACT

In a democratic set up, free speech and expression is considered to be a fundamental right which is not absolute but subject to certain reasonable restrictions, defamation being one of them. In this paper researcher explores the term defamation and a comparative analysis of the defamation laws. The  recent development in the legal arena have brought the fore the defamation  debate; the central theme of which is decriminalizing defamation . The paper, therefore examines the defamation debate in the light of many cases.

INTRODUCTION

Scrutton LJ, an English judge defined defamation as, “a false statement about a man to his discredit.”

Alongside life, reputation is the most cherished entity of a man. A man’s reputation is considered a valuable property and every individual has a right to protect his reputation. This right is acknowledged as an inherent personal right and is a jus in rem or right in rem i.e., a right good against all persons in the world.[1] Defamation refers to any oral or written statement made by a person which damages the reputation of another person. Black’s Law Dictionary defines defamation as an offence of injuring a person’s character, fame, or reputation by false and malicious statements.[2] Defamation is injury to the reputation of a person. A man’s reputation is his property, and if possible, more valuable, than any other property.[3]

It is widely recognised that defamation has its roots and origins from the English Law system. In Roman Law, abusive chants were capitally punishable. In early English and Germanic Law, insults were punished by cutting out the tongue. French defamation laws historically have been more severe. An act of 1881, which inaugurated modern French defamation law, required conspicious retraction of libelous material in newspapers and allowed truth as a defense only when publications concerned public figures. Modern German defamation is similar but generally allows truth as a defense. In Italy, truth seldom excuses defamation, which is criminally punishable there.[4] Generally, defamation requires that the publication be false and without the consent of the allegedly defamed person. Words or pictures are interpreted according to common usage and in the context of publication. Injury only to feelings is not defamation; there must be loss of reputation. The defamed person need not be named but must be ascertainable. Generally speaking, libel is defamation in written words, pictures, or any other visual symbols in a print or electronic (online or Internet -based) medium. Slander is spoken defamation. The advent of early broadcast communications (radio and television) in the 20th century complicated this classification somewhat, as did the growth of social media beginning in the early 21st century.[5]

HYPOTHESES

The researcher has after a thorough research came to draw the following hypotheses:

  • That Defamation is a tort as well as crime. 
  • Since, tort means a conduct which is not a straight or lawful, and for constituting a tort the wrongdoer violates some legal rights vested in another person. Similarly, defamation qualifies as a tort on the account that it is a violation of a duty not to injure the reputation of someone else.

RESEARCH METHODOLOGY

The researcher will be relying on Doctrinal method of research to complete the project. These involve various primary and secondary sources of literature and insights.

REVIEW OF LITERATURE

  1. TITLE: Law of Torts including Compensation under Motor Vehicles Act and Consumer Protection Laws by R.K Bangia (Twenty-fifth edition, 2020)

Law of Torts including Compensation under Motor Vehicles Act and Consumer Protection Laws by R.K Bangia is an excellent book which explains Defamation in a concise and most coherent manner. Defamation is dealt in a separate chapter apart from the other Torts in the book. Defamation is explained using definitions and various subheads like its essentials, defences etc. This edition thoroughly covers all aspects relating to defamation with updated case laws and judgements. Each and every concept is explained with utmost clarity through  judgements to elucidate the concept being derived by the book.

  • TITLE: Law of Torts by Ratanlal & Dhirajlal (Twenty- Sixth Edition, 2010)

Law of Torts by Ratanlal & Dhirajlal, is yet another outstanding source for acquiring even more knowledge on the topic of Defamation. This book takes a different aspect in defining Defamation with relevant judgement, commentaries and case laws. It also fills in the gaps which other sources fail to touch on this topic.

  ESSENTIALS OF DEFAMATION

Defamation may be defined as being any intentional false communication, either written, spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person. There are certain prerequisites for the recognition of a wrong.

Similarly, there are some essentials which must occur to constitute defamation:

  • The statement must be defamatory; 
  • The said statement must refer to the plaintiff. The statement must be understood by right-thinking or reasonable-minded persons, as referring to the plaintiff.
  • The statement must be published, i.e., to say, it must be communicated to some person other than the plaintiff himself.
  • In case of slander, either there must be proof of special damage or the slander must come within the serious classes of cases in which it is actionable per se.[6]

(1) 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. Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally,[7] or which tends to make them shun or avoid that person.[8] An imputation which exposes one to disgrace and humiliation, ridicule or contempt, is defamatory. Abusive language may also be defamatory, for example, to call a man hypocrite or a habitual drunkard.[9] The defamatory statement could be made in different ways. Defamation can be manifested orally, in writing, printed or by the exhibition of a picture, statue or effigy or by some conduct. Few illustrations, like calling someone a thief without justification while sitting in a group of people, calling all lawyers liar and untrustworthy publicly in front of a lawyer, etc. The degree of defamation depends upon how the right-thinking members of the society are likely to take it. The standard to be applied is that of a right-minded citizen, a man of fair average intelligence, and not that

of a special class of persons whose values are not shared or approved by the fair-minded members of the society generally[10]. If the right-thinking people of the society deem a statement as defamatory, only then would it be said so. If the outcome of such defamation is a scratch or injury to reputation, then the defence of intention cannot be pleaded or cannot be said that such actions weren’t intended to be defamatory. It is because once legal injury to the plaintiff is established, the intention of the defendant becomes immaterial as here we are studying defamation as a tort. When the statement causes anyone to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem, it is defamatory.[11] The essence of defamation is injury to a person’s character or reputation. 

In “Salmond on the Law of Torts” the following proposition on the nature of defamatory statement has been made [12]— A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right-thinking members of society generally and in particularly to cause him to be regarded with feelings of hatred contempt ridicule, fear, dislike or disesteem.

In Ram Jethmalani v. Subramaniam Swamy,13 while a Commission of Inquiry was examining the facts and circumstances relating to the assassination of late Shri Rajiv Gandhi, the defendant, at a press conference, alleged that the then Chief Minister of Tamil Nadu had prior information that LTTE cadre would make an assassination bid on the life of late Shri Rajiv Gandhi. The plaintiff was engaged as a senior counsel to represent the then Chief Minister of Tamil Nadu. In discharge of his professional duties, the plaintiff cross-examined the defendant. During the proceeding, the defendant in the written conclusive submission, alleged that the plaintiff had been receiving money from LTTE, a banned organization. The statement made by the defendant was held to be ex facie defamatory. It was held to be a case of exceeding the privilege and that by itself was held to be evidence of malice. The statement made by the defendant against the plaintiff was held to be quite unconnected with and irrelevant to the situation, actual malice on the part of the defendant was well established. Counting the professional standing of the plaintiff and his stature in social life, the Delhi High Court awarded damages of Rs. 5 lacs.

In South Indian Railway Co. v. Ramakrishna,[13] the railway guard, who was an employee of the defendant, South Indian Railway Co., went to a carriage for checking the tickets and while calling upon the plaintiff to produce his ticket said to him in the presence of the other passenger :”I suspect you are travelling with a wrong (or false) ticket.” The plaintiff produced the ticket which was in order. He then sued the railway company contending that those words uttered by the railway guard amounted to defamation. It was held that the words spoken by the guard were spoken bona fide and under the circumstances of the case, there was no defamation and the railway company could not be made liable for the same.

In S.N.M. Abdi v. Prafulla Kumar Mohanta,[14] it was held that it is not necessary that the statement need not show a tendency of imputation to prejudice the plaintiff in the eye of everyone in the community or all of his associates. It is suficient to establish that the publication tends to lower him in the eyes of substantial, respectable group, even though they are minority of the total community or of the plaintiff’s associates. In the present case an article published in the Illustrated Weekly of India dated 8-9-1990 made certain allegations of misuse of man and muscle power by deposed Chief Minister of Assam, Prafulla Kumar Mohanta.

Sometimes the statement may be prima facie innocent but because of some latent or secondary meaning may be considered to be defamatory. When the natural and ordinary meaning is not defamatory but the plaintiff wants to bring an action of defamation, he must prove the latent or secondary meaning i.e., innuendo, which makes the statement defamatory. for e.g., the statement that a lady has given birth to a child is defamatory when the lady is unmarried because from a societal point of view and from the right-thinking members of the society, it is looked down upon.[15]

Intention to defame is not necessary—When the words are considered to be defamatory by the persons to whom the statement is published, there is defamation, even though the person making the statement believed it to be innocent. It is immaterial that the defendants did not know of the facts because of which a statement otherwise innocent, is considered to be defamatory.[16]

 In Cassidy v. Daily Mirror Newspapers Ltd.,[17] Mr. Cassidy (also known as Mr. Corrigan) was married to a lady who called herself Mrs. Cassidy or Mrs. Corrigan. She was known as the lawful wife of Mr. Cassidy who did not live with her but occasionally came and stayed with her at her flat. The defendants published in their newspapers a photograph of Mr. Corrigan and Miss ‘X’, with the following words underneath: “Mr. M. Corrigan, the race horse owner, and Miss ‘X’, whose engagement has been announced.” Mrs. Corrigan sued the defendants for libel alleging that the innuendo was that Mr. Corrigan was not her husband and he lived with her in immoral cohabitation. Some female acquaintances of the plaintiff gave evidence that they had formed a bad opinion of her as a result of the publication. The jury found that the words conveyed defamatory meaning and awarded damages. The Court of Appeal held that the innuendo was established. Obvious innocence of the defendants was no defence. The defendants were held liable. 

(2) The said statement must refer to the plaintiff. The statement must be understood by right-thinking or reasonable-minded persons, as referring 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. [18]If the person to whom the statement

was published could reasonably infer that the statement referred to the plaintiff, the defendant is nevertheless liable.[19] According to Lord Alverstone, C.J.,[20] “If the libel speaks of a person by description without mentioning the name in order to establish a right of action, the plaintiff must prove to the satisfaction of a jury that the ordinary readers of the paper who knew him would have understood that it referred to him. There is abundant authority to show that it is not necessary for everyone to know to whom the article refers; this would in many cases be an impossibility; but if, in the opinion of jury, a substantial number of persons, who knew the plaintiff, reading the article, would believe that it refers to him, in my opinion an action, assuming the language to be defamatory, can be maintained; and it makes no difference whether the writer of the article inserted the name or description unintentionally, by accident, or believing that no person existed corresponding with the name or answering the description. If upon the evidence the jury are of the opinion that ordinary sensible readers, knowing the plaintiff, would be of opinion that the article referred to him, the plaintiff’s case is made out.” As stated earlier, defamation being viewed as a tort, intention becomes immaterial. Therefore, acting in good faith and without any intention to defame the plaintiff is no defence and is irrelevant in considering whether the alleged matter is defamatory or not or even in considering whether it is defamatory of the plaintiff. Defamation of a class of persons when the words refer to a group of individuals or a class of persons, no member of that group or class can sue unless he can prove that the words could reasonably be considered to be referring to him.

In Dhirendra Nath Sen v. Raj at Kanti Bhadra,[21] it has been held that when an editorial in a newspaper is defamatory of a spiritual head of a community, an individual of that community does not have a right of action.

In Newstead v., London Express Newspapers Ltd.[22]

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. As the words were considered to be understood as referring to the plaintiff, the defendants were liable.

(3)  The statement must be published

For defamation to occur, the statement should be published. The statement should be communicated to a third party.[23] Publication means making the defamatory matter known to some person other than the person defamed, and unless that is done, no civil action for defamation lies.[24] Communication to the plaintiff himself is not enough because defamation is injury to the reputation consists in the measure of what others hold for him and not a man’s own opinion of himself. 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. Dictating a letter to one’s typist is enough publication.[25]Sending the defamatory letter to the plaintiff in a language supposed to be known to the plaintiff is no defamation.[26] If a third person wrongfully reads a letter meant for the plaintiff, the defendant is not liable.[27] When the father opened his son’s letter,[28] or a butler opened and read a sealed letter meant for his employer,[29] there was no publication by the defendant and he was not liable. If a defamatory letter sent to the plaintiff is likely to be read by somebody else, there is a publication.[30] When the defamatory matter is contained in a postcard or a telegram, the defendant is liable even without a proof that somebody else read it, because a telegram is read by the post office officials who transmit and receive it,33 and there is a high probability of the postcard being read by someone. If, however, the matter contained in the postcard could not be understood as defamatory by a stranger unacquainted with certain circumstances not mentioned in the postcard, there was no publication to the postman or other persons through whose hands the postcard passed34. Similar would be the

position if the matter is in a language which the addressee does not understand or he is too blind to read it or he could not hear, being a deaf man. When the libellous letter addressed to the plaintiff is, in the ordinary course of business, likely to be opened by his clerk,[31] or by his spouse,[32] there is defamation when the clerk or the spouse opens and reads that letter. There is also publication when the defendant knew or ought to have known that the letter, although sent to the plaintiff, will be read by some third person, e.g., it is written in a language which the plaintiff does not understand. In the eyes of law, husband and wife are one person and the communication of a defamatory matter from the husband to the wife or vice versa is no

(4) In case of slander, either there must be proof of special damage or the slander must come within the serious classes of cases in which it is actionable per se.

The statement made should harm or injure the plaintiff in some way. For example, the plaintiff lost his job because of the statement made.

 TYPES OF DEFAMATION

Under common law, to constitute defamation, a claim must generally be false and must have been made to someone other than the person defamed. Some common law jurisdictions also distinguish between-

  • spoken defamation, called slander, 
  • and defamation in other media such as printed words or images, called libel.[33]

Slander is the publication of a defamatory statement in a transient form. Examples of it may be spoken by words or gestures.

Libel is representation made in some permanent form, e.g., writing, printing, picture, effigy or statute, or any other visual symbols in a print or electronic (online or Internet-based) medium.[34] The law of libel originated in the 17th century in England. With the growth of publication came the growth of libel and development of the tort of libel. Although both libel and slander embrace the essentials of defamation, classifications are important because different liabilities arise under each. These differences generally reflect a policy of holding people less stringently to what they say than to what they write—so as to discourage trivial lawsuits—and a policy of preserving the credibility of the written word by stiffer penalties.

The law also recognizes that written defamation is more likely to be injurious than “just talk.” [35]In a cinema film, not only the photographic part of it is considered to be libel but also the speech which synchronizes with it is also a libel.

 DEFENSES

When the plaintiff brings an action against the defendant for a particular tort, providing the existence of all the essentials of that tort, the defendant would be liable for the same. However, the defendant can avoid his liability by taking the plea of some defence. As the scope of this project is studying defamation as a tort, therefore defences against defamation are also available. The defences to an action for defamation are:

  1. Justification or Truth,
  2. Fair comment,
  3. Privilege, which may be either absolute or qualified[36]

(1)  Justification or 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.[37] In a civil action for defamation, truth of the defamatory matter is complete defence[38]. Under Criminal Law, merely proving that the statement was true is no defence. First exception to sec. 499, I.P.C. requires that besides being true, the imputation must be shown to have been made for public good.[39] Under the Civil Law, merely proving that the statement was true is a good defence. The reason for the defence is that “the law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess.”[40] The defence is available even though the publication is made maliciously. If the statement is substantially true but incorrect in respect of certain minor particulars, the defence will still be available. Alexander v. North Eastern Ry.,[41] explains the point. There the plaintiff had been sentenced to a fine of £1 or 14 days’ imprisonment, in the alternative, for travelling

on a train without appropriate ticket. The defendants published a notice stating that the plaintiff had been sentenced to a fine of £1 or three weeks’ imprisonment in the alternative. Held, the defendants were not liable, the statement being substantially accurate. If the defendant is not able to prove the truth of the facts, the defence cannot be availed in a civil action for defamation, truth of the defamatory matter is complete defence.[42] 

In Radheshyam Tiwari v. Eknath,[43] the defendant was unable to prove the facts published by him and therefore was held liable for defamation.

In Salenadandasi v. Gajjala Malla Reddy,[44] the plaintiff, an advocate, was involved in offence of raping a Harijan woman. Relying upon the FIR registered by the police, the news item was published in a Telugu daily. The publication, however, gave an exaggerated versions with several deviations and improvements, with comments as though the plaintiff was in a way misfit to be continued as legal professional. Holding the plaintiff entitled to, the Andhra Pradesh High Court said that such publication virtually reduced true episode to its lowest bottom, should always be deprecated.

The Defamation Act, 1952 (England) provides that if there are several charges and the defendant is successful in proving the truth regarding some of the charges only, the defence of justification may still be available if the charges not proved do not materially injure the reputation. Sec. 5 of the Act provides: “In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of remaining charges.” Although there is no specific provision in India regarding the above, but the law possibly the same as prevailing in England.55                                                           

FAIR COMMITMENT

Arguments made with an honest belief in their soundness on a matter of public interest (such as regarding official acts) are defendable against a defamation claim, even if such arguments are logically unsound; if a reasonable person could honestly entertain such an opinion, the statement is protected. 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:

  1. the comment should be on a matter of public interest;
  2. The comment must be based on facts;
  3. The comment, though it can include inferences of fact, must be recognizable as a comment;
  4. The comment must satisfy the following objective test; could any man honestly express that opinion on the proved facts;
  5. 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.[45]  

Comment means an expression of opinion on certain facts. It should be distinguished from making a statement of fact. A fair comment is a defence by itself whereas if it is a statement of fact that can be excused only if justification or privilege is proved regarding that. Whether a statement is a fact or a comment on certain facts depends on the language used or the context in which that is stated. For example, A says of a book published by Z—”Z’s book is foolish : Z must be a weak man. Z’s book is indecent; Z must be a man of impure mind.”57 These are only comments based on Z’s book and A will be protected if he has said that in good faith. But if A says—”I am not surprised that Z’s book is foolish and indecent, for he is a weak man and a libertine.”58 It is not a comment on Z’s book but is rather a statement of fact, and the defence of fair comment cannot be pleaded in such a case.59

The comment cannot be fair when it is based upon untrue facts. A comment based upon invented and untrue facts is not fair. Thus, in the review of a play when immorality is imputed by suggesting that it contained an incident of adultery, when in fact there was no such incident in the play, the plea of fair comment cannot be taken.60 Similarly, if in a newspaper, there is publication of a statement of facts making serious allegations of dishonesty and corruption against the plaintiff, and the defendant is unable to prove the truth of such facts, the plea of fair comment, which is based upon those untrue facts, will also fail.61

Administration of Govt. departments, public companies, courts, conduct of public men like ministers or officers of State, public institutions and local authorities, public meetings, pictures, theatres, public entertainments, textbooks, novels, etc. are considered to be matters of public interest.62

(3) Privilege, which may be either absolute or qualified

Privilege provides a complete bar and answer to a defamation suit, though conditions may have to be met before this protection is granted. Privilege is any circumstance that justifies or excuses

  • Ill. (d) to Sixth Exception, sec. 499, I.P.C.
  • Illustration (c) to Sixth Exception, sec. 499, I.P.C
  • R.K BANGIA, LAW OF TORTS 167 (Allahabad Law Agency 2020).
  • Merivale v. Carson, (1887) 20 Q.B.D. 275 : Hunt v. Sitar Newspapers Co. Ltd., (1908) 2 K.B. 309
  • See R.K. Karanjia v. Thackersey, A.I.R. 1970 Bom 424; Radheshyam Tiwari v. Eknath, A.I.R. 1985 Bom. 285. 62 R.K BANGIA, LAW OF TORTS 169 (Allahabad Law Agency 2020)

a prima facie tort. It can be said that privilege recognizes a defendant’s action stemmed from an interest of social importance – and that society wants to protect such interests by not punishing those who pursue them. Privilege can be argued whenever a defendant can show that he acted from a justifiable motive. While some privileges have long been recognized, the court may create a new privilege for particular circumstances – privilege as an affirmative defense is a potentially ever-evolving doctrine. Such newly created or circumstantially recognized privileges are referred to as residual justification privileges. There are certain occasions when the law recognizes that the right of free speech outweighs the plaintiff’s right to reputation: the law treats such occasions to be “privileged” and a defamatory statement made on such occasions is not actionable. Privilege is of two kinds: ‘Absolute’ privilege and ‘Qualified’ privilege.63

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:

  1. during judicial proceedings,
  2. by govt. officials,
  3. by legislators during debates in the parliament,
  4. during political speeches in the parliamentary proceedings and,
  5. 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,64 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

  • R.K BANGIA, LAW OF TORTS 169 (Allahabad Law Agency 2020).
  • 1970 AIR 1876, 1969 SCR (2) 692

State of India to his Parliamentary Under-Secretary providing the materials for the answer to a parliamentary question was absolutely privileged.  

  1. Parliamentary Proceedings: Article 105 (2) of our Constitution provides that: (a) statements made by a member of either House of Parliament in Parliament, and (b) the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings, cannot be questioned in a court of law. A similar privilege exists in respect of State Legislatures, according to Article 194 (2).
    1. Judicial Proceedings: No action for libel or slander lies, whether against judges, counsels, witnesses, or parties, for words written or spoken in the course of any proceedings before any court recognized by law, even though the words written or spoken were written or spoken maliciously, without any justification or excuse, and from personal ill will and anger against the person defamed.65 Such a privilege also extends to proceedings of the tribunals possessing similar attributes.66 Protection to the judicial officers in India has been granted by the Judicial Officers Protection Act, 1850. The counsel has also been granted absolute privilege in respect of any word, spoken by him in the course of pleading the case of his client. If, however, the words spoken by the counsel are irrelevant, not having any relevance to the matter before the court, such a defence cannot be pleaded.67The privilege claimed by a witness is also subject to a similar limit. A remark by a witness which is wholly irrelevant to the matter of enquiry is not privilege. In Jiwan Mal v. Lachhman Das,68 on the suggestion of a compromise in a petty suit by trial court, Lachhman Dass, a witness in the case, remarked, “A compromise cannot be effected as Jiwan Mai stands in the way. He had looted the whole of Dinanagar and gets false cases set up.” Jiwan Mal about whom the said remark was made, was a Municipal Commissioner of Dinanagar but he had nothing to do with the suit under question. In an action against Lachhman Das for slander, the defence pleaded was that there was absolute privilege as the statement was made before a court of law. The High Court considered the remark of the defendant to be wholly irrelevant to the
  • Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson, (1892) 1 Q.B. 431; per Lopes, L.J. 66 Dawkins v. Lord Rokeby, (1875) L.R. 7 H.L. 744; Haggard v. Pelicier Freres, (1892) A.C. 61; Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson, (1892) 1 Q.B. 431; Attwood v. Chapman, (1914) 3 K.B. 275; Addis v. Crocker, (1906) 2 All E.R. 629; 1 Q.B. 11; Lincoln v. Daniels, (1961) 3 All E.R. 740: (1962) 1 Q.B. 237; Barrat v. Kearns, (1905) 1 K.B. 504.

56 Rahim Bakhsh v. Bachha Lal, A.I.R. 1929 All. 214. 68 A.I.R. 1929 Lah. 486

matter under enquiry and uncalled for, it rejected the defence of privilege and held the defendant liable.

(iii) State Communications A statement made by one officer of the State to another in the course of official duty is absolutely privileged for reasons of public policy. Such privilege also extends to reports made in the course of military and naval duties. Communications relating to State matters made by one Minister to another or by a Minister to the Crown is also absolutely privileged.[46]

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: 

  1. Reference for a job applicant, 
  2. Answering the police inquiries,  
  3. A fair criticism of a published book or film in a review, 
  4. communication between parents and teachers, 
  5. communication between employers and employees, 
  6. 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 govt. 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.[47]

Reports of Parliamentary, Judicial or other public proceedings It has already been noted above that reports of Parliamentary proceedings published by or under the authority of either House of Parliament (or State Legislatures) are subject of absolute privilege. If, however, the proceedings are published without the authority of the House, qualified privilege can be claimed, provided the publication is made without malice and for public good.[48] Apart from that, publication of judicial and quasi-judicial proceedings and proceedings of public meetings enjoy qualified privilege. Although the conduct of private individual may be subject of such proceedings, his interest is considered to be subordinate to the public interest of making known the matters of public importance, and the general public interest more than counter-balances the inconvenience to such a private individual.[49] Report of a commission which is set up to enquire into a matter of public interest can also be similarly published if it appears that it is in the public interest that particular report should be published.[50] The privilege does not extend to the report of court proceedings which are not of public interest or to the proceedings to which the public is not admitted.[51]

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.[52]

  CONCLUSION

                                                                                                                                                                      After having a thorough research at the topic in hand, the research can safely conclude our hypothesis formulated at the beginning of the drafting of project that defamation is a tort as well as crime. The other hypothesis so formed stands true that as tort means a conduct which is not a straight or lawful, and for constituting a tort the wrongdoer violates some legal rights vested in another person. Similarly, defamation qualifies as a tort on the account that it is a violation of a duty not to injure the reputation of someone else. Additionally, the research sufficiently answers the research questions.

 The defamation laws serve the purpose of protecting people from having their reputation injured resulting from false statements made against them. This area of law seeks to protect a person’s reputation from being hurt by preventing unfair speech. It also said that the right to life under Art. 21 includes the right to reputation of a person and it cannot be violated at the cost of the freedom of speech of another. Therefore, underscoring the relevance of Defamation laws as a tort as well as crime and its detailed analysis through the use of books, judgements, case laws and comparative studies.

[1] Saumya Saxena, Law of Defamation in India, iPleaders, (Oct. 20, 2021, 4:30 PM), https://blog.ipleaders.in/lawof-defamation-in-india/.

[2] Shivi, DEFAMATION LAWS AND JUDICIAL INTERVENTION: A CRITICAL STUDY, ILI Law Rev. 1, 1

(2016).

[3] Dixon v. Holden, (1869) 7 Eq. 488.

[4] The      Editors   of           Encyclopaedia     Britannica,           Britannica,               (Oct.      20,         2021,     4:45       PM), https://www.britannica.com/topic/defamation.

[5] 5 Ibid.

[6] R.K BANGIA, LAW OF TORTS 151 (Allahabad Law Agency 2020).

[7] Sim v. Stretch, (1936) 52 T.L.R. 669, 671.

[8] Winfield, Tort, 12th ed., 293.

[9] Saumya Saxena, Law of Defamation in India, iPleaders, (Oct. 20, 2021, 4:30 PM), https://blog.ipleaders.in/lawof-defamation-in-india/.

[10] Mst. Ramdhara v. Mst. Phulwatibai, 1969 Jab. L.J. 582: 1969 M.P.L.J. 48: 1970 Cr. L.J. 286 (Madh Pra.).

[11] Capital and Counties Bank v. Henty & Sons, (1882) 7 A.C. 741.

[12] Quoted in Deepak Kumar Biswas v. National Insurance Co. Ltd., AIR 2006 Gau. 110. 13 A.I.R. 2006 Del. 300.

[13] I.L.R (1890) 13 Mad. 34.

[14] A.I.R.  2002 Gauhati 75.

[15] Saumya Saxena, Law of Defamation in India, iPleaders, (Oct. 20, 2021, 4:30 PM), https://blog.ipleaders.in/lawof-defamation-in-india/. 17 (1882) 7 A.C 741.

[16] R.K BANGIA, LAW OF TORTS 155 (Allahabad Law Agency 2020).

[17] (1929) 2 K.B. 331 : Also see Hough v. London Express Newspapers Ltd., (1910) 2 K.B. 507.

[18] Saumya Saxena, Law of Defamation in India, iPleaders, (Oct. 20, 2021, 4:30 PM), https://blog.ipleaders.in/lawof-defamation-in-india/.

[19] R.K BANGIA, LAW OF TORTS 156 (Allahabad Law Agency 2020).

[20] Jones v. Hulton & Co., (1909) 2 K.B. 444, at 454.

[21] A.I.R  1970  Cal. 216

[22] 1939) 4 All E.R. 391 : (1940) 1 K.B. 377

[23] Saumya Saxena, Law of Defamation in India, iPleaders, (Oct. 20, 2021, 4:30 PM), https://blog.ipleaders.in/law-of-defamation-in-india/.

[24] In the Criminal Law of Libel in England, even publication to the person defamed will be enough, if it is likely to provoke a breach of peace, R. v. Adams, (1888) 22 Q.B.D. 66. Sec. 505, I.P.C. makes a similar provision and makes insult with intent to revoke breach of public peace an offence although it is not deemed to be an offence of defamation.

[25] Pullman v. Hill, (1891) 1 Q.B. 524.

[26] Mahendra Ram v. Harnandan Prasad, A.I.R. 1958 Pat. 445.

[27] Arumuga Mudaliar v. Annamalai Mudaliar, (1966) 2 M.L.J. 225.

[28] Powell v. Gelston, (1916) 2 K.B. 615.

[29] Huth v. Huth, (1915) 3 K.B. 532.

[30] Theaker v. Richardson, (1962) 1 All E.R. 299 33 Williamson v. Freer, (1874) L.R. 9 C.P. 593. 34 Sadgrov v. Hole, (1901) 2 K.B. 1.

[31] Pullman v. Hill, (1891) 1 Q.B. 524.

[32] Theaker v. Richardson, (1962) 1 W.L.R. 15. 37 A.I.R. 1958 Pat. 445.

[33] Saumya Saxena, Law of Defamation in India, iPleaders, (Oct. 20, 2021, 4:30 PM), https://blog.ipleaders.in/lawof-defamation-in-india/.

[34] The    Editors   of           Encyclopaedia     Britannica,           Britannica,               (Oct.      20,         2021,     4:45       PM), https://www.britannica.com/topic/defamation.

[35] Supra note 39

[36] R.K BANGIA, LAW OF TORTS 165 (Allahabad Law Agency 2020).

[37] Saumya Saxena, Law of Defamation in India, iPleaders, (Oct. 20, 2021, 4:30 PM), https://blog.ipleaders.in/lawof-defamation-in-india/.

[38] Under English Criminal Law, truth was no defence. Rather the rule was greater than the truth, more the libel. Libel Act, 1943 made a change and according to sec. 6 of the Act, truth is defence to an action for criminal libel provided the publication was for public benefit. Similar provision is also contained in Exception 1 to S. 499, I.P.C.

[39] Asoke Kumar v. Radha Kanto Pandey, A.I.R. 1967 Cal. 178.

[40] Mc. Pherson v. Daniels, (1929) 10 B. and C. 263, 272, per Littiedate, J.

[41] (1885) 6 B & S. 340

[42] R.K BANGIA, LAW OF TORTS 166 (Allahabad Law Agency 2020).

[43] A.I.R. 1985 Bom. 285.

[44] See Salenadandasi v. Gajjala Malla Reddy, A.I.R. 2009 (NOC) 299 (A.P.). 55 R.K BANGIA, LAW OF TORTS 167 (Allahabad Law Agency 2020).

[45] Saumya Saxena, Law of Defamation in India, iPleaders, (Oct. 20, 2021, 4:30 PM), https://blog.ipleaders.in/law-of-defamation-in-india/.

[46] Chatterton v. Secy, of State for India in Council, (1895) 2 Q.B. 189.

[47] Saumya Saxena, Law of Defamation in India, iPleaders, (Oct. 20, 2021, 4:30 PM), https://blog.ipleaders.in/lawof-defamation-in-india/.

[48] The Parliamentary Proceedings (Protection of Publication) Act, 1977 (India).

[49] The King v. J. Wright, (1799) 8 T.R. 293, 298. 

[50] Perara v. Peiris, (1949) A.C. 1, 21.

[51] Lewis v. Levy, (1858) E.B. & E. 537, 538.

[52] Saumya Saxena, Law of Defamation in India, iPleaders, (Oct. 20, 2021, 4:30 PM), https://blog.ipleaders.in/law-of-defamation-in-india/. 76 A.I.R. 1961 Pat. 164.

SUBMITTED BY:

GOPAL KUMAR 

1st year student at chanakya national law university