1.

ELEMENTS OF DEFAMATION

Whether the statements made by Payal Panauti in “Parda Faash” satisfy the elements
of defamation.

a communication of the defamatory matter to a third party, for it is the opinion held of the
person defamed by others that matters.1 lowers the claimant in the estimation of reasonable,
right-thinking members of society, or causes such citizens to shun or avoid the claimant.

- definition of defamation, following are the essential ingredients of the tort of

defamation2:

1. They must be defamatory.

Section 2 of the Defamation Act 1952 now recasts this most important of circumstances
in which slander is actionable per se. It provides: In an action for slander in respect of
words calculated to disparage the [claimant] in any offi ce, profession, calling, trade or
business held or carried on by him at the time of the publication, it shall not be
necessary to allege or prove special damage, whether or not the words are spoken of the
[claimant] in the way of his offi ce, profession, calling, trade or business.
A statement may be defamatory, even though the maker states it, not as fact, but as mere
opinion.3 One must take into account circumstances of time and place.4
An imputation which disparages a person in his profession, calling, trade or business is
bound to be stigmatic, and therefore any imputation which is disparaging in the way of a
person's occupation would be stigmatic. The test whether an imputation against a person is
disparaging /stigmatic would be: whether the words used tend to lower the person in the
estimation of right thinking members of the society. 5
An innuendo is an explanatory averment in the statement of claim defining the meaning
which the plaintiff assigns to the words complained of or specifying the plaintiff as the
person to whom they apply. It is the office of an innuendo to define the defamatory meaning
which the plaintiff sets on the words; to show how they come to have that defamatory

1
Gibbons (1996) 16 OJLS 587
2
The Publisher and Editor of Divya Himachal and Ors. vs. Parkash Chand and Ors. (11.12.2017 - HPHC) :
MANU/HP/0974/2017
3
Braddock v Bevins [1948] 1 KB 580.
4
Dolby v Newnes (1887) 3 TLR 393
5

2015 SCC OnLine Del 12393

Himanshu Bhatt v. Indian Railway Catering and tourism corporation & Ors.
 meaning; and also to show how they relate to the plaintiff 273 whenever that is not clear on
the face of them6
there may be circumstances where the claimant alleges that the statement is defamatory
because specific facts known to the reader give to the statement a meaning other than, or
additional to, its ordinary meaning. This is known as a ‘true’ or ‘legal’ innuendo.

2. The words must have reference to the plaintiff.

It is sufficient if he is described by the initial letters of his name, or even by a fictitious name,
provided he can satisfy the court that he was the person referred to. It is immaterial whether
the defendant intended the defamatory statement to apply to the plaintiff, or knew of the
plaintiff's existence, if the statement might reasonably be understood by those who knew the
plaintiff to refer to him.7
The intention or motive with which the words are used is immaterial, and, if the matter
complained of does refer, or would be deemed by reasonable people to refer, to the plaintiff,
the action can be maintained8

3. They must be published.

What is publication? Making a defamatory matter known after it has been written to some
person other than the person for whom it is written is a publication in its legal sense. A
defamatory matter must therefore be communicated to some person other than the person
concerning whom it is written. Communicating a defamatory matter to the person concerned
only cannot be said to be a publication.9
the making known the defamatory matter after it has been written to some person other than
the person of whom it is written. If the statement is sent straight to the person of which it is
written, there is no publication of it; for you cannnot publish a libel of a man to himself.”
publication of defamation, to a person other than the person defamed is sine quo non for
initiation of action.10
A man who knows that reporters are present when he is making a speech is not thereby
responsible for its publication in the press, but he is answerable if he gives the information to
them with a view to publication11

6
Baturina v Times Newspapers Ltd
[2011] 1 WLR 1526

7
Ritnand Balved Education Foundation v. Alok Kumar, AIR 2007 Del 9
8
T.V. Ramasubba Iyer, v.A.M. Ahamed Mohideen. 1971 SCC OnLine Mad 238
9
. Gurusamy Reddiar Versus Dr. Jayachandran (2012) 5 Mad LJ 982
10
F.A Poncha …Versus M. Meherjee 1993 SCC OnLine Mad 390 : 1995 Cri LJ 352
11
McManus and others v Beckham
[2002] 1 WLR 2982
 2. DEFENCES IN DEFAMATION

What are the possible defences that Payal Panauti can avail in this case?

3. DEFENCE AGAINST COMICAL DEPICTION AS

DEFAMATION.

Advice Jadoo Andhera, if he has any recourse against the comical depiction by the newspaper
“Blah Blah Times”.