A

PROJECT ON
ELEMENTS OF DEFAMATION

Supervised by:
Ms. Purnima Gautam
Assistant Professor
Rajasthan School Of Law
For
Women

Submitted by:
Yashi Mishra
Semester - I
Roll no. 60

RAJASTHAN SCHOOL OF LAW FOR WOMEN

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 ACKNOWLEDGEMENT

I have written this project titled ‘Elements of Defamation’ under the supervision of
Ms. Purnima Gautam. He valuable suggestions herein have not only helped me
immensely in making this work but also developing an analytical approach to this
work.

I would like to express my gratitude towards my parents and teachers for their kind
co-operation and encouragement which help me in completion of this project.

I would like to express my special gratitude and thanks to the magazine publishers
and editors for providing me with fruitful information.

My thanks and appreciation also go to my colleagues in developing the project and

also people who have willingly helped me out with their abilities.

Yashi Mishra

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 CERTIFICATE

Ms. Purnima Gautam

Assistance Professor

Rajasthan School Of Law For Women

Jaipur

This is to certify that Yashi Mishra, student of Semester-I has carried out project
titled ‘Elements Of Defamation’ under my supervision. It is an investigation report of
a minor research project . The student has completed research work in stipulated time
and accordingly o the norms prescribed for the purpose.

Ms. Purnima Gautam

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 TABLE OF CONTENT

 Objective of study
5

Hypothesis
6

 Research Methodology
7

 Chapter I Introduction- TORT

8-11

4.1 Origin
4.2 Types
4.3Case laws

 Chapter II Introduction- Defamation

12-14

5.1 Origin
5.2 Case laws
5.3 Types

 Chapter III Elements Of Defamation

15-21

6.1 A Defamatory Statement

6.2Reference to the Claimant
6.3Publication
6.4Damage
6.5 Standing to sue

 ChapterIV Defences
22-26

7.1 Truth or Justification

7.2 Fair comment
7.3 Privilege

 Conclusion
27

 Bibliography
28

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4
 OBJECTIVE OF STUDY

The primary aim of defamation laws is to protect people from untrue, damaging
statements. They provide important recourse for people whose careers, reputations,
finances and/or health have been damaged by the harmful statements.

However, defamation law often intersects with laws that protect freedom of speech.
So, just as it is important to protect people from the harms that untrue statements may
cause, it is also important to protect speakers so that they may speak freely without
fear of reprisal. This is a delicate balance and it is often at the forefront in cases
involving libel (written defamation) or slander (oral defamation).

Elements of Defamation helped the plaintiff to prove the defamation. So, that the
same can be used for procuring damages.

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 HYPOTHESIS

The concept of defamation in India is defined under Section 499 of Indian Penal
Code. The concept is very old and is backed up by various judicial pronouncements.

It is pertinent to mark that what statements are defamatory and the span of defenses
varies from jurisdiction to jurisdiction but there is common agreement in all
jurisdictions that statements that are unflattering, annoying, irksome, embarrassing or
hurt one's feelings are not actionable.

Moreover, Court in various cases held that for proving the clause of defamation it is
pertinent to prove the mens rea of the defendant. Here, it is to be taken into
consideration that if a statement is made with a good intent and is for a good purpose,
it cannot be said to be a case of defamation even if it contains allegations against a
party.

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 RESEARCH METHODOLOGY

The approach followed is doctrinal as the project deals with the defamation and its
elements under the civil law. The methodology employed is both analytical and
explanatory as the basic concepts have been explained through the prism of the case
laws and various judicial decisions on the point so as to determine the scope and
complexities of the concept of defamation and to ascertain the position of law from
its initial stages and also the current status. Both primary and secondary sources of
information have been used in the making of this project.

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CHAPTER- I

TORT

ORIGIN OF TORT

Derived from the Latin word tortus which meant wrong. Also, in French (law
French), tort means a wrong but in civil law, what is generally defined by common
law as torts, is recognized as civil liability and called delict.

One substantial difference between a tort and a delict: the former is a product of the
common law albeit now somewhat modified by statute, whereas the delict, as with
most things civil law, is purely a creature of statute.

American jurist Edward Kionka writes:

"Tort is an elusive concept (and) has defied ... attempts to formulate a useful
definition.... The one common element is that someone has sustained a loss or harm
as the result of some act or failure to act by another.
"Tort is perhaps the last bastion of the common law.... Tort law remains uncodified
and in large part unaffected by statute."

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 WHAT IS TORT?

Tort law is the body of laws that enables people to seek compensation for wrongs
committed against them. When someone’s actions cause some type of harm to
another, whether it be physical harm to another person, or harm to someone’s
property or reputation, the harmed or injured person or entity may seek damages
through the court.

A tort can be a crime. However, tort law is not criminal law. Tort law gives a victim a
civil remedy in the courts. Sometimes, a tort is also a crime. Whether or not the state
pursues criminal charges, a person can pursue a civil remedy in the courts.

A litigant doesn’t need the permission of a prosecutor or a district attorney in order to

initiate a court action. Instead, they draft a complaint. That’s a document that lists
what the other party did wrong. It asks for the relief that’s allowed under the law. A
tort action begins when the person files the claim in a court.

Damages are a monetary award ordered by the court to be paid to an injured party, by
the party at fault. Damages may be awarded in compensation for loss of, or damage
to, personal or real property, for an injury, or for a financial loss.

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 Types of Tort

There are a number of specific types of tort that form the basis of the majority of civil
lawsuits.

Tort law divides most specific torts into three general categories:

 Intentional Torts – the causing of harm by an intentional act, such as

intentionally conning someone out of his money.

 Negligent Torts – the causing of harm through some negligent act, such as
causing a car accident by running a red light.

 Strict Liability Torts – the result of harm incurred due to the actions of another,
with no finding of fault by the defendant.

Additional and separate specific torts include:

 Defamation Torts

 Nuisance Torts

 Privacy Torts

 Economic Torts

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 CASE LAWS

The English case Hadley v. Baxendale (1854) EWHC J70, which was adopted in the
United States, split contract and tort damages by foreseeability of the damages when
the contract was made. In the United States, the pure economic loss rule was adopted
to further prevent negligence lawsuits in breach of contract cases.

In the landmark 1964 case of New York Times v. Sullivan, the U.S. Supreme Court
held that certain defamatory statements were protected by the First Amendment. The
case involved a newspaper article that said unflattering things about a public figure, a
politician.

Donoghue v. Stevenson [1932] UKHL 100 was a landmark court decision in Scots
delict law and English tort law by the House of Lords. It laid the foundation of the
modern law of negligence, establishing general principles of the duty of care.

Bourhill v. Young [1943] AC 92 is a Scottish delict case, on the subject of how

extensive an individual's duty is to ensure others are not harmed by their activities.
The case established important boundaries on the scope of recovery for bystanders, or
those uninvolved with physical harm.

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CHAPTER II

DEFAMATION
ORIGIN OF DEFAMATION

1300, defamacioun, "disgrace, dishonor, ill repute" (senses now obsolete), from Old
French diffamacion and directly from Medieval Latin deffamation, from Latin
diffamationem (nominative diffamatio), noun of action from past-participle stem of
diffamare "to spread abroad by ill report, make a scandal of," from dis- here probably
suggestive of ruination, + fama "a report, rumor

WHAT IS DEFAMATION?

Defamation (sometimes known as calumny, vilification, or traducement) is the oral or

written communication of a false statement about another that unjustly harms their
reputation, and usually constitutes a tort or a crime. In several countries, including
South Korea and Sweden, communicating a true statement can also be considered
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.

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 CASE LAWS

╬ D.P. v. Manjulata A.I.R. 1997 Raj. 170,

On 18-12-77, Dainik Navjyoti published a news regarding Manjulata with unfair

comments and false imputations. The news item was basically untrue and was
published negligently with utter irresponsibility and maliciously which created hatred
against Manjulata and she was ridiculed. The news item was published in order to
dishonour Manjulata and her family members.

╬ Parvathi v. Mannar I.L.R.(1885) 8 Mad.175,

In this case, the Bench held that the English law insisting upon proof of special
damage in a case of libel against a married woman would not apply under the
customs and social context of this country. In both cases, the Court looked at
the issue “standing in her shoes.”

╬ Lynch v.Knight (1861) 11 ER 854; 9 HLC 577,

The Court had the task to determine whether a wife could maintain an action against
a third person for words that caused her to leave her husband's house and return to
her father.

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 TYPES OF DEFAMATION

LIBEL

It is a method of defamation expressed by print, writing, pictures, signs, effigies, or

any communication embodied in physical form that is injurious to a person's
reputation, exposes a person to public hatred, contempt or ridicule, or injures a
person in his/her business or profession.

Monroe v. Hopkins was a 2017 libel case in the High Court of England and Wales. It
was brought by the food writer and activist Jack Monroe against the columnist Katie
Hopkins after Hopkins falsely alleged that Monroe supported vandalism of a war
memorial. Hopkins was ordered to pay hundreds of thousands of pounds in damage
and legal fees.

SLANDER

Oral or spoken defamation, slander is the act of harming one person’s reputation by
telling one or more other people something that is untrue about that person. Slander
can be the basis for a lawsuit and is considered a civil wrong (tort).

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CHAPTER III
ELEMENTS OF DEFAMATION

The elements of defamation are:-

 a defamatory statement,

 that refers to the claimant,

 that is published{that is, communicated to at least one person other than the
claimant},

 that causes damage to the claimant,

 the defendant is type of person who can bring proceedings in defamation.

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 A DEFAMATORY STATEMENT

General test. Comprehensive definition of the defamatory statement is a false

statement of fact that exposes a person to hatred, ridicule, or contempt, causes him to
be shunned, or injures him in his business or trade. In most jurisdictions, as a matter
of law, a dead person has no legally-protected reputation and cannot be defamed.

The issue of truth is irrelevant for the purposes of determining

whether a statement is defamatory. Truth is normally a complete defence to
an action for defamation. But the issue of whether a statement is true is separate from
the question of whether the statement is defamatory.

The issue of whether a statement is defamatory is determined

objectively. This rules out on the one hand those persons who are so cynical that
they would think none the worse of a person whatever was imputed to him, and on
the other hand those who are so censorious as to regard even trivial accusations as
lowering a person's reputation. In short the way in which the claimant or defendant
would regard the statement is also irrelevant for the purpose of determining whether
it is defamatory.

The statement must be defamatory in the eyes of persons generally

rather than in the eyes of a particular group of persons. It is not enough
in order for a statement to be defamatory that the words would tend only to disparge
the claimant in the eyes of a particular class or group of persons,; they must have that
effect in the eyes of persons "generally".

Statements that are defamatory be implications. As Lord Morris put it in

Jones v. Skeleton "The ordinary and natural meaning of words may include any
implication or interference which a reasonable reader guided not by any special but
only by general knowledge.

Mere vulgar abuse. It is commonly said that mere vulgar spoken abuse is not
defamation, but this needs some explanation. Spoken wors that are prima facie
defamatory are not actionable if it is cleared that they were uttered merely as general
vituperation.

Innuendo:- In ordinary English any implied or allusive meanings are called

"innuendoes" but the technical legal meaning is narrower. An innuendo in the legal

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sense arises only when the defamatory nature of the statement depends upon facts or
circumstances which are not part of general knowledge but which are known to the
persons to whom the statement is published.

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 REFERENCE TO THE CLAIMANT

The claimant need not be named:- The tort of defamation is not committed
unless the defamatory statement refers to the claimant. If the claimant is mentioned
by name there is usually no difficulty in establishing the requirement of reference to
the claimant, but the claimant need not be named, for the issue is whether the
statement may be understood by reasonable people as reffering to the claimant.

A statement may refer to more than one person. A reference to A may by

implication also amount to a reference to B, so that, a derogatory statement about the
conduct of a company may impute wrong doing.

The claimant may rely on innuendo to show that the reference

requirement is satisfied. In many cases there is at least some "peg or pointer" in
the article itself that pints to the claimant but this is not necessary

Circumstances in which recourse may be made to subsequent

publications for identification purposes. Where a defamatory publication
does not sufficiently identify the claimant, he may rely for identification purposes on
a subsequent publication by the same defendant, or on a forthcoming publication by
another to which the defendant draws attention.

The defendant intention is irrelevant. As in this case in relation to the

requirement that the statement is defamatory, the ultimate question with respect to
reference of the claimant is not what the defendant intended but what the words can
reasonably be understood as conveying . Therefore, the reference requirement may be
satisfied even if the defendant intended to write about a fictitious character.

References to a group of persons. A conundrum arises where a charge is

made in terms like “one of these people stole my watch”. It might be argued that the
statement does not impute the wrongdoing to any individual, but it is not clear that
this is the law and the statement would seem to impute suspicion, which is itself
defamatory, though to a lesser degree.

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PUBLICATION

Generally:- The tort of defamation is not committed unless the statement

concerened is communicated to at least one person other than the claimant. This is
the requirement of publication.

Any statement is capable of being a publication:-Publication in the

commercial sense, as in a book or newspaper or broadcast is not necessary, although
these are of course likely to attract larger damages.

The statement need not be published to more than a single person. It

is still the law that publication to one person will suffice but nowdays this must be
read in the light of the court's power to strike out the claim as a abuse of process and
the "serious harm" requirement.

The publication gives rise to a separate cause of action subject to

statutory exceptions. At common law, each time a defamatory statement is
published a separate cause of action arises. This rule is highly significant since every
time a statement was republished a new limitation period commenced.

Statements made to and by one's assistant. The handing back by a printer

or typist to the author of a defamatory document processed by them on the author's
instructions is not a publication by them, but there is, of course, publication to the
printer or typist when the author hands or send the document to them.

The statement must be published intentionally or negligently. Unless

the statement is communicated intentionally or negligently, the publication
requirement will not be satisfied. A defendant will publish a statement negligently if
he should have foreseen that it would be read by someone.

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 DAMAGE

Introduction:- The tort of defamation requires proof that the defamatory statement
caused the claimant to suffer damage, but damage is presumed in the case of libel and
in certain types of slander.

Consequences of the distinction:- The distinction between libel and slander

used to have in English criminal law. There libel is a crime but slander is not. Slander
is only a civil wrong in England.Criminal law in India does not make such distinction
between libel and slander. Both libel and slander are criminal offences under Section
499, I.P.C.

Republication:- It would be foreseable where, for example, D speaks at a press

conference. The starting position, however, is that D is not liable for the republication
by another person, by virtue of the general principle that the voluntary act of another
will break the chain of causation.

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 STANDING TO SUE

Any living human being may be the claimant in a defamation action. There is no
doubt that a trading corporation may sue for defamation in respect of words affecting
its trading corporation insofar as they raise funds and own property.However a
governmental property cannot sue even if the statement in no way concerns its
"governing" reputation. The reason for this is that in a democratic society it is
important that people be free to criticize the government. The principle has been
applied to a political party and it is probably not necessary that the "governmental
body" should be popularly elected, but it remains to be seen whether it will be
applied, for example, to public utility suppliers, which in legal form are now
generally ordinary trading companies, although regulated in their activities. On the
other hand, an attack on a governmental body may be defamatory of individual
members or officers. There is no restriction on an individual who manages a
governmental body suing in respect of a statement that is defamatory of him in
relation to his work for the governmental body.

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CHAPTER IV
DEFENCES

It's All True, I Swear It!

In Chapter IV, the essential elements of a defamation action are explained. Once the
plaintiff has proven the essential elements of defamation - the defendant intentionally
or negligently published the statement; the statement referred to the plaintiff; the
statement is capable of being defamatory, and the statement was defamatory of the
plaintiff - the onus shifts to the defendant to prove a defence. The main defences
include the following.

JUSTIFICATION OR FAIR COMMENT

TRUTH

DEFENCES

PRIVILEGE

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Truth or Justification.

Truth is a defence. The defendant has the onus to displace the presumption that the
defamatory words used are false by establishing the words are true in substance, that
is, they convey an accurate impression even if there are slight inaccuracies in the
details of the expression. If the words published are capable of having more than one
defamatory meaning, the defendant is permitted to plead and try to justify an
alternate, or lesser, defamatory meaning than that alleged by the plaintiff. The court
will determine the natural and ordinary meaning to be given to the words at issue. If
the truth defence fails, the court may increase the damages claimed by the plaintiff.

Radheshyam Tiwari v. Eknath (AIR 1985 Bom 285)

In this case, the defendant who was the editor of a local Marathi Weekly published a
series of articles mentioning that the plaintiff, who was a BDO, issued false
certificates, accepted bribe, adopted corrupt and illegal means to mint money and was
a 'Mischief Monger'.

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Fair comment

This defence, as it has been recently analyzed and defined by the courts, illustrates
that defamatory statements do not automatically override freedom of expression. The
fair comment defence is available when the alleged defamatory words are comments
(expressions of opinion) on matters of public interest. The comment must be based
on true facts.

Silkin v. Beaverbrook Newspapers Ltd., [1958] 1 W.L.R. 743

In this case , a House of Lords case, the famous speech of Lord Diplock states
succinctly the principle that freedom of speech is subject to the law and like any other
freedom there is a balancing.

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Privilege

The defence of privilege is available where the "common convenience and welfare
of society" requires it. It is not the content of the communication on which the
existence of a privilege generally depends, but rather on the circumstances under
which the communication is occurring.

The Patne High Court in Pandey Surinder Sinha v. Bageshwari Prasad,

distinguished the absolute and qualified privilege in the following words:-

ABSOLUTE PRIVILEGE QUALIFIED PRIVILEGE

The defendant can avail the defence, The defendant can avail the defence of
even though he made the false and qualified privilege, even though he made
defamatory statement deliberately and the false and defamatory statement
with malice deliberately, but without malice.

It can be used as a defence in the It can be used as a defence in the

Parliamentary, judicial, naval, military or communications made (a) in the course of
State proceedings. legal, social or moral duty, (b) for self-
protection, (c) for protection of common
interest, (d) for public good; (2) reports of
Parliamentary and judicial proceedings;
and (3) proceedings at public meetings.

Certain occasions and their nature are
prefixed, enabling to grant the absolute
privilege. Once the nature and occasions
are decided, every statement made in
such occasion and nature, is protected
under absolute privilege.
In qualified privilege, no such occasion
or nature are pre-fixed. In this the
defendant does not prove privilege until
he has shown how that occasion was
used.

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 “Salus populi est suprema” is
considered more in granting the absolute
privilege.
A speech of a Member of Parliament in
the Parlimamentary proceedings is
protected by absolute privilege.
Jiwan Mal v. Lalchhman Das
Rajinder Kishore v. Durga Sahi
T.G. v. Melepurath Sankunni
V.Narayana v. E. Subanna
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“Salus populi est suprema” is considered
in relation to personal relations, duties,
interests, etc., while allowing qualified
privilege.
A speech given by a Member of
Parliament in a public meeting is not
covered under absolute privilege.
However, if the Member of Parliament
can prove the nature and occasion; he can
avail the defence of qualified privilege.
R.K. Karanjia v. Thackersey
Radheshyam v.Eknath
Cook v. Alexander
Clark v. Molyneux
 CONCLUSION

Next to life, man cares and loves most for his reputation. If any injury causes to his
reputation, he psychologically suffers to a great extent. Some persons may commit
suicide due to defamation.

We learnt in History, Rajput women and men committed suicides when they were
defeated in the wars. In such circumstances, they felt it would be better to end their
lives than falling into the hands of their enemies, and being compelled to live in
shame and slavery.

In certain rape cases, a few raped women, even though there is no fault from their
side, commit suicide due to shameful attitude of the societyDefamation is an injury to
the reputation of a person. Rightly, law gives protection to man’s reputation as it
gives protection to his life and property.

“Defamation” has been recognised as a civil wrong in the Law of Torts.

“Defamation” has been recognised as a criminal wrong in the Law of Crimes.

In the Law of Torts, the aggrieved person is given compensation. In the Criminal
Law, the wrong-doer is punished with imprisonment or with fine or with both. In
Indian Penal Code, the Section 499 defines

“Defamation”, and also gives ten exceptions for it, along with fifteen illustrations.
Section 500 imposes punishment for defamation. Sections 501 and 502 also deal with
printed defamatory matter.

“The taking from another’s reputation; a false publication calculated to bring one in
disrepute. Defamation is when a person speaks scandalous words of others, whereby
they are injured in their reputation.”

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 BIBLIOGRAPHY

 Dr. R.K. Bangia, Law of Torts, Allahabad Law Agency, 24Edition, 2017

 Winfield and Jolowicz on Tort {Classics} Paperback - 21 Aug 2014 by Edwin

Peel {Editor}, James Godukamp [Contributor]

 Salmond and Heuston on the Law of Torts, R.F.V. Heuston, Sir John William
Salmond, R.A. Buckley, 21 illustrated, Sweet & Maxwell, 1996

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