NATIONAL LAW INSTITUTE UNIVERSITY

LAW OF TORTS – I
TRIMESTER-I

DEFAMATION AS A TORT

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 TABLE OF CONTENTS

 CERTIFICATE
 ACKNOWLEDGEMENT
 TABLE OF STATUTE
 TABLE OF CASES
 INTRODUCTION
 LIBEL AND SLANDER
 ESSENTIALS OF DEFAMATION
 DEFENCES
 CONCLUSION
 BIBLIOGRAPHY

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 CERTIFICATE
This is to certify that research paper titled “Defamation as a Tort”, has been prepared and
submitted by Vatsla Shrivastava, who is currently pursuing her B.A. LL.B (Hons.) at National Law
Institute University, Bhopal in fulfilment of Torts – I course. It is also certified that this is her
original research report and this paper has not been submitted to any other University, nor
published in any journal.

Date : 5 Sept. 2018

Signature of the Student :

Signature of the Research Supervisor :

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 ACKNOWLEDGEMENT
This paper has been made possible by the unconditional support of many people. I would like to
acknowledge and extend my heartfelt gratitude to Prof. Kavita Singh for guiding me throughout
the development of this paper into a coherent whole by providing helpful insights and sharing
her brilliant expertise. I would also like to thank the officials of NLIU library, for helping me to
find the appropriate research material. I am deeply indebted to my parents, seniors and friends
for all the moral support and encouragement.

Vatsla Shrivastava

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 TABLE OF STATUTE
 Defamation Act, 1952 (England)
 Judicial Officers Protection Act, 1850
 Parliamentary Proceedings (Protection of Publication)Act, 1977
 Specific Relief Act, 1963


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 TABLE OF CASES
 Pollard v. Lyon 91 U.S. 225 (1875).
 Youssoupoff v. M.G.M Pictures Ltd. (1934) 50 T.L.R. 581
 Hirabai Jehangir v. Dinshaw Edulji I.L.R. (1927) Bom. 167.
 A.C. Narayan Sah v. Kannama Bai I.L.R. (1932) 55 Mad. 727.
 Bhooni Money Dossee v. Natobar Biswas I.L.R (1901) 28 Cal. 452.
 H.C.D. Silva v. E.M. Potenger I.L.R. (1946) Cal. 157
 D.P. Choudhary v. Manjulata A.I.R. 1997 Raj. 170
 Ramdhara v.Phulwatibai 1969 Jab. L.J. 528 : (1969) M.P.L.J. 438 : 1970 Cr. L.J. 286
(Madh. Pra.).
 Perkin v. Scott 554 So.2d 1220 (1990).
 Cassidy v. Daily Mirror Newspapers Ltd. (1929) 2 K.B. 331.
 Newstead v. London Express Newspapers Ltd. (1939) 4 All E.R. 391 : (1940) 1 K.B 377.
 T.V. Ramasubha Iyer v. A.M.A. Mohindeen A.I.R. 1972 Mad. 398 : (1972) 1 M.L.J. 508.
 Ratinand Balved Education Foundation v. Alok Kumar A.I.R. 2007 Del. 9.
 Dhirendra Nath Sen v. Rajat Kanti Bhadra A.I.R. 1970 Cal. 216.
 Mahender Ram v. Harnandan Prasad A.I.R. 1958 Pat. 445.
 Alexander v. North Eastern Ry. (1885) 6 B & S. 340.
 Jiwan Mal v. Lachhman A.I.R. 1929 Lah. 486.
 T.G.Nair v. Melepurath Sankunni A.I.R. 1971 Kerala 280.
 R.K. Karanjia v. Thackersey A.I.R. 1970 Bom. 424.
 Clark v. Molyneux (1877) 2 QBD 237


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 INTRODUCTION
Reputation is one of the valuable assets for a human in social and economic life. Even from the
ancient times, the law has always sought to ensure to protect individuals in their reputation as
in person and property. An injury to reputation can disturb the public peace and individual
comfort and happiness like an injury to person and property.

Defamation is the publication of a statement which refers on a person’s reputation and tends to
lower him in the estimation of right-thinking members of society generally or tends to make
then shun or avoid him. 1

The tort of defamation protects a person’s interest in his reputation. If the defendant had made
an untrue statement, or what amounts to a statement, which is defamatory of the plaintiff, the
plaintiff has a right of action against him unless the defendant can establish one of the special
defenses available to an action for defamation. Since the tort of defamation protects the
plaintiff’s reputation, and since reputation depends on what other people think of the plaintiff,
the publication of the statement by the defendant to persons other than the plaintiff himself is
an essential part of the tort –the purpose of the tort is not to protect the injured the feelings of
the plaintiff. The tort goes beyond protecting their mere personal reputation of the plaintiff and
extends to the protection of the reputation of his commercial and business undertakings. 2

The law seeks to strike balance between two competing interests, freedom of speech and
expression and protection of reputation.

The way of protecting reputation has been different for different era and regions. Ancient
Hindu law punished the defamer but did not compensate the defamed. While the Roman and
English laws did both. After the invention of the printing press, the law of defamation saw a
significant development that has been considerably intensified in modern times by the swift
development of journalism and the internet. The invention of the printing press led to the
development of the section of defamation by the written words, in the same line in the era of
broadcasting we can see the development of sections of defamation by spoken words. With the
advent of television, internet, 24-hour news channels on TV and radio the area covered under
the tort of defamation has expanded a lot.

1
Rogers, 1975, p.240.
2
Defamation is the publication of a statement, LAW TEACHER, (Sept., 1, 2018 10:40 PM),
https://www.lawteacher.net/free-law-essays/tort-law/defamation-is-the-publication-of-a-statement-law-
essays.php#ftn1.

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 LIBEL AND SLANDER
English Law:

Slander is the publication of defamatory statement in a transient form, e.g., spoken words or
gestures.

In Pollard v. Lyon3, Clifford J. observed, “Certain words, all admit, are in themselves actionable,
because the natural consequence of what they impute to the party is damage, as if they import
a charge that the party has been guilty of a criminal offence involving moral turpitude, or that
the party is infected with a contagious distemper, or if they are prejudicial in a pecuniary sense
to a person in office or to a person engaged as a livelihood in a profession or trade; but in all
other cases the party who brings an action for words must show the damage he or she has
suffered by the false speaking of the other party.”

Libel is representation made in some permanent form, e.g., writing, printing, picture, effigy or
statute.4

The speech besides the photographic part is considered libel if the content is defamatory. In
Youssoupoff v. M.G.M Pictures Ltd. 5, Slesser L.J. observed, “I regard the speech which is
synchronized with the photographic reproduction and forms part of one complex common
exhibition as an ancillary circumstance, part of the surrounding explaining that which is to be
seen”.

The matter recorded on gramophone disc is addressed to the ear and not to the eye, but it is at
the same time in a permanent form. According to Winfield, it is a slander but according to some
others, it is a libel.6

In English law the distinction between libel and slander is material because unlike slander, libel
is also a criminal offence. Moreover, libel is actionable per se while slander is generally not.

Indian law:

Under section 499 of IPC both slander and libel are criminal offence.

There has been a controversy whether slander, like libel is actionable per se in India or special
damages is required to proved, as in England. The weight of the authority is for making both
actionable per se.7
3
91 U.S. 225 (1875).
4
Monson v. Tussauds Ltd., (1894) 1 Q.B. 671.
5
(1934) 50 T.L.R. 581.
6
R.K. BANGIA, LAW OF TORTS, 149 (24 ed. 2017).
7
R.K. BANGIA, LAW OF TORTS, 149-150 (24d ed. 2017).

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In Hirabai Jehangir v. Dinshaw Edulji8 and A.C. Narayan Sah v. Kannama Bai9 , it was held by
Bombay and Madras High Court respectively that when spoken words impute unchastity to a
woman, the wrong is actionable per se.

In Bhooni Money Dossee v. Natobar Biswas 10, a contrary view was expressed by Harrington J.,
he observer, “Where it is proposed to depart from the rules of English Law, which have been
introduced into this country, it must be shown that those rules, if adhered to, in this country,
will work an injustice or hardship. Here no injustice is worked by an adherence to those rules,
because in cases where the person aggrieved is unable to prove that he has suffered actual
damage, he can call in the criminal law to punish the wrong-doer. Prima facie there is nothing
repugnant to justice, equity and good conscience in calling on a person, who is claiming
pecuniary compensation for damage caused by a wrongful act, to prove that some damage has
been caused to him by the act of which he complains.”

In H.C.D. Silva v. E.M. Potenger11, Gentle J. observed, “In my view the English rule regarding
rule of special damage in actions or slander does not apply in India.”

8
I.L.R. (1927) Bom. 167.
9
I.L.R. (1932) 55 Mad. 727.
10
I.L.R (1901) 28 Cal. 452.
11
I.L.R. (1946) Cal. 157.

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 ESSENTIALS OF DEFAMATION
1. Statement must be defamatory

A defamatory statement is the one which tends to injure the reputation of the plaintiff.
Defamation is the publication of a statement which tends to lower a person in the estimation of
right thinking members of society generally, or which tends to make them shun or avoid that
person.12

Whether the statement is defamatory or not depends upon how right thinking members of the
society perceives it. The standard to be applied is of a reasonable man.

In D.P. Choudhary v. Manjulata,13 there was publication in a local daily that Manjulata, a 17
year old girl from a highly reputed family, eloped with a boy. This publication negatively
affected her marriage prospects and she got ridiculed. Thus, the defendants were held liable.

Mere verbal abuses do not amount to defamation. Words which merely injure the feelings or
cause annoyance but which in no reflect on character or reputation or tend to cause one to be
shunned or avoided are not libellous.14 These words merely insults and hurt a person’s pride
but do not injure his reputation in the right thinking members of the society.

In Ramdhara v.Phulwatibai,15 it was held that the imputation by the defendant that the
plaintiff, a widow of 45 year years, is a keep of the maternal uncle of the plaintiff’s daughter in
law, is not a mere vulgar abuse but a definite imputation upon her chastity and thus it is
defamation.

In Perkin v. Scott,16 court held that vulgar abuses during fight are not defamatory.

The innuendo

A statement may not be prima facie defamatory but it may consist a hidden meaning i.e. the
innuendo that tends to lower the reputation of a person. When the statement appears to be
innocent on the face, the plaintiff must prove that it consist innuendo that makes it defamatory.
For instance, a simple statement that a lady has given birth to a child is defamatory if the lady
is unmarried.

Intention to defame is not necessary

12
WINFIELD, TORT, 293 (12d ed. 1984).
13
A.I.R. 1997 Raj. 170.
14
GATELEY, LIBEL AND SLANDER, 35 (5d ed. 1960).
15
1969 Jab. L.J. 528 : (1969) M.P.L.J. 438 : 1970 Cr. L.J. 286 (Madh. Pra.).
16
554 So.2d 1220 (1990).

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It must be noted here that intention is immaterial in tort of demotion. In Cassidy v. Daily Mirror
Newspapers Ltd.,17  A man named Cassidy, who also called himself Corrigan was married to a
lady who also called herself Mrs. Cassidy or Mrs. Corrigan. Her husband occasionally came and
stayed with her at her flat. Cassidy achieved some notoriety in racing circles and in
indiscriminate relations with women, and at a race meeting he posed, in company with a lady,
to a racing photographer, to whom he said he was engaged to marry the lady and the
photographer might announce it. The photographer, without any further inquiry, sent the
photograph to the Daily Mirror with an inscription: "Mr. M. Corrigan, the race horse owner, and
Miss X" - I omit the name - "whose engagement has been announced," and the Daily Mirror
published the photograph and inscription. This paper was read by the female acquaintances of
Mrs. Cassidy or Mrs. Corrigan, who gave evidence that they understood from it that that lady
was not married to Mr. M. Corrigan and had no legal right to take his name, and that they
formed a bad opinion of her in consequence. Mrs. Cassidy accordingly brought an action for
libel against the newspaper setting out these words with an innuendo, meaning thereby that
the plaintiff was an immoral woman who had cohabited with Corrigan without being married to
him. The defendants were held liable.18

2. The statement must be referred to the plaintiff

In an action for defamation, the plaintiff has to prove that the statement of which he complains
referred to him. It must be reasonably inferred that the statement was referred to the plaintiff.

In Newstead v. London Express Newspapers Ltd.,19 an article was published in the newspaper
stating, “Harold Newstead, a Camberwell man ” was a convict of bigamy. This was true for
Harold Newstead, a Camberwell barman. A suit for defamation was filed by another Harold
Newstead who was a Camberwell barber. Since the words were inferred to be referring to the
plaintiff, the defendants were held liable.

Since intention for defamation was immaterial, a lot of innocent authors, printers and
publishers faced hardships. Keeping this in view, Defamation Act, 1952 was passed in which
section 4 prevented innocent publishers from liability of defamation.

In T.V. Ramasubha Iyer v. A.M.A. Mohindeen 20 Madras H.C. referred to English authority and
Defamation Act, 1952 and held that in India there was no liability for defamatory statements
published innocently.
17
(1929) 2 K.B. 331.
18
Cassidy v. Daily Mirror Newspaper Ltd., LEXIS NEXIS COURTROOM CAST (Aug. 29, 2018, 10:04 AM),
http://courtroomcast.lexisnexis.com/acf_cases/10978-cassidy-v-daily-mirror-newspapers-ltd-.
19
(1939) 4 All E.R. 391 : (1940) 1 K.B 377.
20
A.I.R. 1972 Mad. 398 : (1972) 1 M.L.J. 508.

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In Ratinand Balved Education Foundation v. Alok Kumar,21 it was held that the defamatory
statement to constitute defamation must be directed against the plaintiff, and must be
injurious to the plaintiff’s reputation. Where the purported defamatory statements were
directed against the members of the executive board of the plaintiff’s society and not against
the plaintiff’s society, the plaintiff was held to have no cause of action to file the suit. 22

Defamation of a class of persons

When a statement is referred to a class of persons or a group of people, no individual of that

group or class can sue for defamation unless it is proved that the statement can be reasonably
inferred to refer to him.

In Dhirendra Nath Sen v. Rajat Kanti Bhadra,23 the court held that members of a community
do not have a right of action when a newspaper publishes defamatory words against spiritual
head of that community.

Defamation of a deceased

Defamation of a deceased person is not a tort.

3. The statement must be published

Publication means that the statement must be known to a third party i.e. to someone other
than the one who is defamed.

If the defendant writes a defamatory letter to plaintiff which is not likely to be read by others
does not constitute publication. For instance if the defendant writes a defamatory but sealed
letter to the plaintiff and the letter is read by someone, say plaintiff’s father, this would not give
rise to right of action because the publication was not made by the defendant.

If a defamatory letter is sent to the plaintiff is likely to be read by someone else, there is
publication. For example, the defendant sends defamatory material to plaintiff through post
card or telegram, the defendant writes a defamatory letter in a language that he knows cannot
be read by the plaintiff.

In the case of Mahender Ram v. Harnandan Prasad24 it was said when a defamatory letter is
written in Urdu to the plaintiff and he doesn’t know Urdu, he asks a third person to read it, it is
21
A.I.R. 2007 Del. 9.
22
R.K. BANGIA, LAW OF TORTS, 159 (24d ed. 2017).

23
A.I.R. 1970 Cal. 216.
24
A.I.R. 1958 Pat. 445.

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not defamation unless it was proved that at the time of writing letter defendant knew that Urdu
was not known to the plaintiff.

Repetition of a defamatory statement

The liability of a repeater is same as of the originator. Therefore for a defamatory material, not
only author but editor, printer and publisher are also liable. The law adopts a lenient attitude
towards the people like librarian, newspaper vendor, book sellers who might disseminate the
material without knowing the content. They are not liable if they did not know or in spite of
reasonable diligence couldn’t have known what they are circulating.

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 DEFENCES
1. Justification or Truth

Unlike in criminal law, truth is a complete defence in civil law. In tort, there is no liability even if
the statement is made maliciously if the statement is true.

In Alexander v. North Eastern Ry.,25 it was held that if the statement is substantially true and
incorrect in respect of certain minor particulars, the defence would still be available.

The Defamation Act, 1952 (England) provides that if there are several charges and the
defendant is successful in providing the truth regarding some of the charges only, the defence
of justification may still be available if the charges proved do not materially injure the
reputation.26 However, there is no such specification in Indian law.

2. Fair Comment

For this defence to be available following, essentials are required:

 It must be comment, i.e., an expression of opinion rather than assertion of fact.

This comment must be related to certain facts, it is also essential that the facts
commented upon must be either known to the audience addressed ot the commentator
should make it known along with his comment.
 The comment must be fair.
It must be based upon true facts. If the facts are substantially true and justify the
comment of the facts which are truly stated, the defence of fair comment is available
even if some of the facts may not be proved.
 The matter commented upon must be of public interest.
A comment upon administration of government, conduct of ministers, public
authorities, public companies, public entertainment, etc. is considered to be in public
interest.27
3. Privilege

There are certain occasions where law gives privilege to fully exploit the to right of free speech.
A defamatory statement made in such occasions doesn’t give rise to right of action.

Absolute Privilege

25
(1885) 6 B & S. 340.
26
R.K. BANGIA, LAW OF TORTS, 163 (24d ed. 2017).
27
R.K. BANGIA, LAW OF TORTS, 169 (24d ed. 2017).

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The communications in these occasions are absolutely privileged. Even if the statement is false
and malicious no action lies in it. It is given in following cases:

i. Parliamentary proceedings

Statements made by a member of either House of Parliament and the publication by or

under the authority of either House of Parliament of any report, paper, votes or
proceedings, can’t be questioned in court of law. A similar privilege exists in State
Legislatures too. Reports of Parliamentary proceedings published under the authority of
either House of Parliament or State Legislature are subject to absolute privilege. 28

ii. Judicial Proceedings

No action for defamation lies against judges, advocates, witnesses, or parties for statements
made in the course of proceeding, even if the statement is made maliciously without any
justification. This privilege is also given in the proceedings of tribunal possessing similar
attributes. Protection to judicial officers in India is granted under Judicial Officers Protection
Act, 1850. It must be noted that the words by counsel and witness should not be completely
irrelevant to the case for this defence to apply. In Jiwan Mal v. Lachhman das,29 the
defendant was held liable for making slanderous comment that was irrelevant to the case
against the plaintiff while testifying in the court.

A statement made to a police officer that the complainant is ready to substantiate upon
oath is also absolutely privileged.30

In T.G.Nair v. Melepurath Sankunni,31 it was held that necessary steps for judicial
proceeding (submission of petition to the Magistrate and the its copy to Sub-Inspector of
Police in this case) are absolutely privileged.

iii. State Communication

The communication between two state officials in course of the official duty is absolutely
privileged.

Qualified Privilege

Following are the essentials for defence of qualified privilege to be available.

28
Supra note 29.
29
A.I.R. 1929 Lah. 486.
30
K. Ramdass v. Samu Pillai, (1969) 1 M.L.J. 338.
31
A.I.R. 1971 Kerala 280.

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 i. The statement made was on a privileged occasion, i.e., discharge of duty or protection of
an interest; or a fair report of parliamentary or judicial or other public proceedings.

a) Discharge of duty or protection of an interest:

There must be a social, moral or legal duty make the statement or there must be
existence of some interest for the protection of which the statement is made.
In R.K. Karanjia v. Thackersey,32 a libelous article making serious allegations on the
plaintiff was published in newspaper. In action was brought against newspaper
authorities, the defence of qualified privilege was pleaded. The court held the
defendant liable because the element of “duty” in communicating the statement
was missing.
b) Fair report of parliamentary, judicial or other public proceedings:
The publication of judicial and quasi- judicial proceedings and proceedings of public
meetings enjoy qualified privilege. It has already been noted that reports of
Parliamentary proceedings published under the authority of either House of
Parliament or State Legislature are subject to absolute privilege. If the proceedings
are published without the authority of the House, qualified privilege can be claimed
if there is no malice and publication is made for public good [Parliamentary
Proceedings (Protection of Publication)Act, 1977]. Report of a commission set up to
enquire into the matter of public interest is also protected under this defence.
ii. The statement made should be without malice.

In Clark v. Molyneux,33 Brett, L.J. observed, “If the occasion is privileged it is so form some
reason, and the defendant is only entitled to the protection of the privilege, if he used the
occasion for that reason. If a person uses the occasion to gratify his anger or his malice, he
uses the occasion privileged, but for an indirect and wrong motive.”

32
A.I.R. 1970 Bom. 424.
33
(1877) 2 QBD 237.

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 REMEDIES
1. Injunction

The publication of defamatory statement may be restrained by injunction by either under s.38
or 39 of the Specific Relief Act, 1963.34 In Prameela Ravindran v. Lakshmikutty Amma35 the
Madras High Court held that if a statement regarding the validity of a marriage of a person is
uncalled forunder the circumstances of the case and is likely to injure the reputation of a
person, the person making such statement can be restrained from doing so.36

2. Damages

Monetary damages are intended to compensate plaintiff for injury to his reputation.

The damages can be aggravated, the violence of the defendant’s language, the nature of the
imputation conveyed, and the fact that the defamation was deliberate and malicious will
enhance the damages.37

Mitigation of damages is permissible to a defendant if the any of the following circumstances-

(1) Evidence falling short of justification, (2) absence of malice, (3) apology at the earliest
opportunity, (4) retaliation by defendant, plaintiff being in the habit of libeling the defendant,
(5) provocation by plaintiff, and (6) bad reputation of plaintiff.38

34
G.P. SINGH, LAW OF TORTS, 315 (25d ed. 2006).
35
A.I.R. 2001 Mad. 225.
36
R.K. BANGIA, LAW OF TORTS, 163 (24d ed. 2017).
37
G.P. SINGH, LAW OF TORTS, 315 (25d ed. 2006).
38
Supra note 37.

17
 CONCLUSION
Defamation is a broad topic of study under the law of torts. It was in existence from very olden
times but it has considerably developed with the advancement in communication technology.
The given research can be summarised as below:

Defamation is the publication of a statement which refers on a person’s reputation and tends to
lower him in the estimation of right-thinking members of society generally or tends to make
then shun or avoid him.

It can be in written (libel) or oral (slander) form.

For defamation, the statement must be defamatory; it must be referred to the plaintiff; it must
be published.

Defences to defamation include truth or justification, fair comment, and privilege.

Remedies can be in form of injunction and damages.

18
 BIBLIOGRAPHY
Books

 G.P. SINGH, LAW OF TORTS, (25d ed. 2006).

 R.K. BANGIA, LAW OF TORTS, (24d ed. 2017).
 CLEMENT GATELEY, LIBEL AND SLANDER, (5d ed. 1960).

Internet Articles

 Remedies for defamation, THE LAW HANDBOOK (Sept.02, 2018, 8:30PM),

http://www.lawhandbook.org.au/2018_11_02_05_remedies_for_defamation.
 Privilege Cases, DIGESTIBLE NOTES, (Aug.26, 2018, 5:30PM),
http://digestiblenotes.com/law/tort_cases/privilege.php.
 Defamation is the publication of a statement, LAW TEACHER, (Sept., 1, 2018 10:40 PM),
https://www.lawteacher.net/free-law-essays/tort-law/defamation-is-the-publication-of-
a-statement-law-essays.php#ftn1.

19