TORT LAW – I

UNIT 2: DEFAMATION & ITS DEFENCES

• As per Black’s Law Dictionary, defamation (‘de’ - ‘fame’) means-

“The offence of injuring a person’s character, fame, or reputation by false and malicious
statements”.
In layman’s language, it refers to any oral or written statement made by a person which damages
the reputation of another person amongst right-thinking members of society.

• A man’s reputation is considered valuable property, and every man has a right to protect his
reputation.
This right is acknowledged as an inherent personal right, and is a jus in rem i.e., a right holding
good against the world at large.

• Reputation is an integral and important part of the dignity of any individual, and the right to
reputation is an inherent right guaranteed by Article 21, thus also known as a ‘natural right’.
While the right of freedom of speech and expression is guaranteed by Article 19(1)(a) of the
Constitution of India as a fundamental right, it is not absolute and is subject to reasonable
restrictions in the interest of security of the State, friendly relations with foreign States, public
order, decency, morality, contempt of court, defamation.
The essential harm alleged in a defamation claim is often defined as something along the lines of
‘damage to the plaintiff's reputation in the community’.
Because reputation is such an intangible thing, and because of the tendency of some people to react
strongly to perceived insults, defamation has evolved—over centuries of legal decisions—into a
complex concept filled with safeguards and requirements designed to weed out weak or even
frivolous claims.
The right to free speech only adds to the complexity.
It may be a common misconception that anyone can say whatever they want (perhaps other than
shouting "fire" in a crowded theatre!), but the right to free speech is not an absolute right in all
situations.
Serious damage to a plaintiff’s reputation can cause real harm to their livelihood and well-being.
So the rules of defamation try to balance protection of reputation with the constitutional rules of
freedom of speech.
Summarily, defamation happens when a person's reputation is tarnished as a result of any such
communication made to a third party.
A piece of defamatory communication negatively affects the plaintiff's self-esteem, respect,
goodwill and/or societal confidence in him/her.
In addition, the communication could be defamatory even if it excites adverse, derogatory or
negative feelings or opinions about the person from right-thinking members of society.
And defamation law walks a fine line between the right to freedom of speech and the right of a
person to his/her reputation.
• Defamation is considered a civil wrong or a tort, but in India, is also categorized as an ‘offence’
under Indian Penal Code.
It may be understood as the writing, publication and speaking of a false statement which causes
injury to reputation and good name.
The remedy for civil defamation is covered under law of torts.
In civil defamation, a victim can move the concerned High Court or subordinate courts for seeking
damages in the form of monetary compensation from the alleged tortfeasor.
Damages are awarded on the basis of probabilities.
It is generally a slow process to seek relief in India.

On the other hand, Sections 499 and 500 of the IPC provide an opportunity to the victim to file a
criminal complaint case for defamation against the accused.
Punishment for the guilty person is simple imprisonment, whose term may extend to two years,
with or without fine.
Under the criminal law, it is bailable, non-cognizable and compoundable offence.
Under a criminal complaint case, the ‘intention to defame’ is an important element.
In the absence of intention, the ‘knowledge’ that the publication was likely to defame or is
defamatory by nature becomes essential.
All this is further subject to the normal standard of proof in criminal cases: ‘beyond reasonable
doubt’.
It seeks to punish the offender and send a message to the society not to commit such an offence.

• If the statement is made in writing and published, the defamation is called ‘libel’; whereas if the
hurtful statement is spoken, it is called ‘slander’.

The two main types of defamation, i.e., libel and slander may be understood as-

i) Libel is a type of defamation in which the communication is published and disseminated to a

third party (potentially permanent and visible form—addressed to the eye).
It is an actionable tort as well as a criminal offence.
It is actionable per se (in itself) i.e., without proof of actual damage.
Originally, libel was simply ‘the written word’, but this notion has been extended to include
pictures, signs, representations such as an effigy and such other means in which a third party would
be able to receive the information.
To prove the cause of action of libel, several elements must be met:
- there must be publication of the item to at least one person other than the plaintiff and the
statement-maker ofcourse
- identification of a particular person
- a defamatory or false statement about that person
- the party who published the statement must be at fault and have known the statement to be false,
and
- the plaintiff, in certain cases, must be able to demonstrate actual injury.
There are no additional requirements, as the law presumes that once the publication of a defamatory
statement has been made in written or other formats, the statement will remain in the public sphere
for a long time and continue to do harm.

Courts must consider the following while deciding the question of compensation in a defamatory
publication:
- The conduct of the plaintiff
- His position and standing in society
- The nature of libel
- The absence or refusal of any retraction or apology of libel
- The whole conduct of the defendant from the date of publication of the libel to the date of the
decree

ii) In general, slander differs from libel in that the communication is usually of an oral nature.
It requires the plaintiff to show ‘special damages’ resulting from the communication.
However, there are a few exceptions to the damages rule.
The following do not require proof of actual harm:
- the imputation of a crime, or of
- a loathsome disease; or
- communications affecting a person's business or profession; or
- the implication that a woman is "unchaste".
In these instances, proof of actual defamation will suffice to show the existence of damages.

Slander is addressed to the ear.

The defamatory statement is made by spoken words or some other transitory form of
communication, whether visible-audible or only audible, such as gestures, hissing, or such other
things.
It is a civil injury only, and usually not a criminal offence.
It is actionable only on proof of actual damage.

There are two types of slanders: slander, and slander per se.
- In the first kind of slander, the plaintiff must prove that the defendant made a defamatory statement
to at least one other person (i.e. the essential defamation ‘elements’) and that the plaintiff suffered
what are referred to as "special damages" as a result of the defamation.
Special damages are actual harm like loss of customers, being fired, or some other financial harm.
- On the other hand, a ‘slander per se claim’ does not require that the plaintiff prove special
damages.
This is because slander per se claims involve categories of defamatory statements that are presumed
to be damaging to the plaintiff.
While the categories may change a little from State to State, and evolve over the years, some of the
most common slander per se categories are:
= imputing criminal conduct to the plaintiff;
= saying that the plaintiff has certain types of communicable diseases;
= any harmful statement about the plaintiff's profession or business.
• In both libel and slander, proving that the information that was disseminated is true, is an absolute
defense to these causes of action.
In addition, citing the communication as ‘bonafide opinion’ may work as a possible defense.
However, courts are occasionally puzzled in determining what constitutes an ‘opinion’.
In both libel and slander, there is also a notable difference in the standard of proof if the plaintiff is
a ‘public figure’ instead of a ‘common man’.
A common man must only prove that the publisher acted negligently, and he would not be required
by the court to prove the more difficult "actual malice" standard.

• Due to social media in today’s times, it's now easier than ever to make a defamatory statement.
That's because social media services like Twitter and Facebook allow you to instantly "publish" a
statement that can reach millions of people.
Whether it's a disparaging blog post, Facebook status update, or YouTube video, online defamation
is treated the same way as more traditional forms, meaning that the alleged defamer can be sued
for any act of cyber defamation.
Hence, the contemporary relevance of this topic.

• Broadly speaking, the following statements can’t be considered to fall under ‘defamation’-
- Any true statement made in public interest;
- Any opinion given in respect of the conduct of a public servant in discharge of his functions, or
the conduct of any person touching a public question;
- Publication of any proceedings of courts of justice including any trial of court and judgment.

• The target of any defamatory statement may sue the statement-maker.

Such legal action would be called a defamation suit or complaint, depending on its nature being
that of a civil or criminal matter.
Generally, in order to win such a lawsuit, it must be shown that-
- Someone made a statement;
- The statement was published;
- The statement caused injury to the plaintiff;
- The statement was false; and
- The statement did not fall into any category of ‘defenses against defamation’.

i) Statement –
A ‘statement’ needs to be spoken (slander), written (libel), or otherwise ‘expressed’ in some
manner.
These statements are especially damaging if they involve a public office or allegation of sexual
misconduct.
As the spoken word often fades more quickly from memory, slander is often considered less
harmful than libel.
 ii) Publication –
For a statement to be published, a third party (someone other than the person making the statement
and the subject of the statement) must have seen, heard or read the defamatory statement.
Unlike the traditional meaning of the word ‘published’, a defamatory statement does not necessarily
need to be printed.
Rather, a statement heard over the television or even seen scrawled on someone's walls maybe
considered to be ‘published’.

iii) Injury –
To succeed in a defamation suit, the statement must be shown to have caused legal injury to the
subject of the statement.
This means that the statement must have hurt the reputation of the target person/plaintiff.
For example, a statement has caused injury if the subject of the statement lost work as a result
thereof.
Here, there may be noticed a blurred patch/overlap of ‘injuria’ and ‘damnum’.

iv) Falsity –
Defamation law will only consider statements defamatory if they are, in fact, false.
A true statement is not considered defamatory.
Additionally, because of their nature, statements of opinion are not considered false because they
are subjective expressions of thought of the concerned speaker.

v) Unprivileged –
Lastly, in order for a statement to be defamatory, it must be unprivileged.
For example, when a witness testifies at trial and makes a statement that is both false and injurious,
the witness will still be immune to a lawsuit for defamation because the act of testifying at trial is
‘privileged’.

• Generally, governments place a high priority on the public being allowed to speak their minds about
elected officials as well as other public figures (celebrities).
People in the public eye get less protection from defamatory statements, and thus face a higher
burden when attempting to win a defamation suit.
When an official is criticized in a false and injurious way for something that relates to their behavior
in office, the official must prove all of the above elements associated with normal defamation, and
must also show that the statement was made with ‘actual malice’.

• There are certain basic requirements for a successful defamation suit-

i) First, the presence of ‘defamatory content’ is required.

Defamatory content is defined as one calculated to injure the reputation of another by exposing him
to hatred, contempt or ridicule.
However, the test for such content is the ‘ordinary man test’ whereby the meaning of the content is
considered to be what a common, ordinary man will comprehend it to be.
 ii) Second, the claimant should be ‘identified’ in the defamatory statement.
The content must be clearly addressing a particular person or a very small group, for it to be
defamation.
General statements like, “All lawyers are thieves” or “All politicians are corrupt” are too broad a
classification, and hence no particular lawyer or politician can consider it to be personally attributed
to him.
Therefore, such statements are not ‘defamatory’.

iii) Third, there must be a ‘publication’ of the defamatory statement in either oral or written form.
Unless the content is published – i.e. made available to someone other than the claimant – there
can be no defamation.
Under a civil suit, once all these conditions are satisfied, a defamation suit subsists, and the
defendant has to plead a privilege or take up a defense.
If the defendant fails to do so satisfactorily, the defamation suit is successful, and damages are
awarded to the plaintiff.

• Once the plaintiff has successfully proved defamation, "general damages" are presumed.
The plaintiff is not simply limited to damages reflecting his or her economic losses, but also the
mental anguish and other emotional distress that the law presumes to result from having your
reputation harmed.
Depending on what the plaintiff proves about the defendant’s intentions, and the type of the
communication alleged to be defamatory, punitive damages may also be awarded to the plaintiff.

• Some common defenses to defamation-

i) truth
ii) statement of bonafide opinion
iii) consent to the publication
iv) (a) absolute privilege
(b) qualified privilege
v) retraction of the allegedly defamatory statement.
vi) fair comment

- Truth:
As a general rule, it is not defamation to impute anything, which is true, concerning any person.
In India, truth is an absolute defense in civil cases.
However; in criminal cases, the true statement must also be an imputation for public good.

- Privilege:
An individual may be protected from claims of defamation under tort, or even criminal defamation,
by a privilege conferred on him by law.
‘Absolute privilege’, irrespective of the intention to defame, is conferred upon Government
officials, judges and other such public officials in discharge of their public functions under law.
Journalists, however, are given ‘qualified privilege’, valid only if made without the intention to
defame.
(This is based on the distinction between reportage and re-publication. Under this, even digital
intermediaries/website operators may plead defense of reportage of certain statements if original
statement-maker’s identity has been posted)

(a) In general, absolute privilege exempts persons from liability for potentially defamatory
statements made:-
= during judicial proceedings
= by senior Government officials
= by legislators, during legislative debates
= during political broadcasts or speeches, and
= in-between spouses/lawyer-client (as mentioned under ‘privileged communication’ in the Indian
Evidence Act)
For instance, if someone makes an otherwise defamatory statement during his/her testimony at a
trial, that statement is absolutely privileged, and that person cannot be sued for defamation.
But if that person makes a different allegedly defamatory statement in the hallway of the courthouse
during a break in the trial or before/after the same, he/she could be sued for defamation.

(b) Qualified privilege indicates that the person making the allegedly defamatory statement may
have had some right to make that statement.
If a qualified privilege applies to a statement, it means that the person suing for defamation must
prove that the person who made the defamatory statement acted intentionally, recklessly, or with
malice, hatred, spite, ill will or resentment.
Just some of the statements for which a qualified privilege applies are:-
= statements made in government reports of official proceedings
= communication between traders and credit-agencies
= statements made by lower government officials such as members of town-committees or local
boards
= answering police-inquiries
= discussions on socio-political matters which are subjects of public debates
= communication between parents and teachers as regards a child
= citizen-testimony during executive proceedings
= statements made in self-defense or to warn others about a harm or danger
(Exception 10 under Section 499 IPC further expands on this, and allows exception for good faith
imputation to caution others or the public)
= communication between employers and employees
= certain types of statements made by a former employer to a potential employer regarding the
employee, and
= published book or film-reviews that constitute ‘fair criticism’
Basically, 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 defense of qualified privilege is allowed.
- Fair comment:
In case of defamatory opinions, the exception of fair comment is allowed.
The publication has to be clearly expressed as an opinion and should not be mixed up with facts.
Also, the opinion should be one that a fair-minded person is capable of holding, even if the
reasoning thereof is illogical.
The main principles relating to the defense of fair comment may be understood to be as follows-
= The comment should be on a matter of ‘public interest’;
= The comment must be based on facts;
= The comment, though it can include inferences of fact, must be recognizable as a comment;
= The comment must satisfy the following objective test- ‘Could any man honestly express that
opinion on the proved facts?’;
= Even though the comment satisfies the objective test, the defense can be defeated if the plaintiff
proves that the defendant was actuated by express malice.
(The plea of ‘fair comment’ is available only in respect of both facts and opinion, and it is not
necessary to prove the truth of the comment.
On the other hand, when ‘justification’ is pleaded in respect of matters of opinion, the defendant
must prove not only that he honestly held the views expressed, but also that they were accurate).

- Retraction of the allegedly defamatory statement:

If the defamer retracts the allegedly defamatory statement, that often serves as a defense to any
defamation suit, in many jurisdictions, especially if the defamer also publicly apologizes.

- 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.
Also, if this statement results in the actor losing work (and the statement made was false), then it
would be a fit 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, making it 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 or minor, then the same
would be invalid.

- Censure passed in good faith by a person having lawful authority:

It is not defamation of a person having over another, authority, either conferred by law or by societal
norm or as arising out of any 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 submitting a report to the municipality that the contractor had usurped some
building-material illegally.
Also, a parent rebuking a child for the latter’s well-being falls under this defense.
However, presence of malicious intent in any such communication may make the case a fit one for
defamation-claim.

- Accusation made in good faith to an 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.
For instance, if a person signs a reasonable petition to the Chairman of Delhi Development
Authority against defective construction of houses, along with several other residents of the
locality, he can say to have acted in good faith.
Also, a well-founded complaint of one student by another to the principal of the concerned
institution falls under this defense.

• Unique ancillary situations associated with defamation-

i) Publications by two or more persons:

When two or more persons agree together to write or utter defamatory words of another, and one
of them writes or utters the words in the presence of others, who have so agreed, all of them may
be sued as ‘joint tortfeasors’, provided the defamatory matter has been published to persons other
than those who were acting together and the plaintiff.

ii) Repetition of defamatory words:

Generally, the person who first makes a defamatory statement, is not liable if the statement is
republished by another person even though he expressly states that he is reproducing what he has
heard from some source.
However, no person has the right to repeat a slanderous statement without any justification.
If a person who is aware that a defamatory statement is false and still repeats or communicates it
further, then he can also be held liable for defamation.

iii) Defamation by omission:

There may be ‘publication by omission’.
Failure by a defendant authorized and able to remove defamatory matter (which may be the
malicious work of another) is publication by him.
For example, if X puts up a defamatory letter on the notice-board of a club, and Y, the person in-
charge does not remove the same within a reasonable time, then he/she would be accountable.