CHAPTER 5: DEFAMATION

Defamation is defined under section 499 of IPC as follows:

Whoever, by words either spoken or intended to be read, or by signs or by visible
representations, makes or publishes any imputation concerning any person
intending to harm, or knowing or having reason to believe that such imputation
will harm, the reputation of such person, is said, except in the cases hereinafter
expected, to defame that person. 

TYPES OF DEFAMATION

There are 2 types of defamation:

1. LIBEL:

It is a defamatory statement made in a permanent form such as writing, printing,

painting. It is actionable per se meaning, without proof of actual damage

2. SLANDER:

This form of defamation is temporary in nature such as spoken words, gestures,

and hissing. It is actionable only when there is proof of damage.

ESSENTIALS OF DEFAMATION:

1. THE STATEMENT MUST BE DEFAMATORY

A statement is defamatory if it injures the reputation of a person and makes him

vulnerable to fear, ridicule, or hatred. Abuses and opinions can also be defamatory.

2. THE STATEMENT MUST REFER TO THE PLAINTIFF

If the person to whom the statement was published could reasonably infer that the
statement referred to the plaintiff, the defendant is nevertheless liable.

3. THE STATEMENT MUST BE PUBLISHED (exposed to a third person)

Publishing means to make such a statement to a third party or if of permanent

nature must have been witnessed, heard, and distributed to a third party

WHAT IS THE DIFFERENCE BETWEEN DEFAMATION AND AN INJURIOUS

STATEMENT?
There is a difference between an injurious statement and a defamatory statement.
The former may cause damage but does not affect reputation while the latter
affects reputation.
Example: Declaring the stoppage of a business does not necessarily mean that it is
due to a flaw in a business and could simply mean that the business stooped due to
illness. On the other hand, making a statement that a business stopped because of
the use of adulterated products affects the reputation and is there for defamation

INNUENDO
When a statement is made it can have multiple interpretations. There can be a
difference between the interpretations made by the publisher of the statement and
that which is ascertained by the people to whom it is published. Thus the meaning
given by the publisher is immaterial. However, that which is perceived by the
persons to whom it is published is relevant. This is also known as innuendo

Hough vs London express newspaper:

The defendant published an article in a newspaper called the “curly-headed
wife” of a named boxer. The plaintiff, a woman who was in fact the wife of the
boxer, brought witnesses who gave evidence that they inferred the statement
was against the plaintiff. The court held the words from which an innuendo is to
be extracted should be such that it must create in their natural sense an
interpretation that is bad and gives a defamatory sense to the document and is
perceived by reasonable manner to whom it is published a libelous sense.

Slander is actionable per se if:

Cases where you do not need to give proof that slander has harmed your
reputation:
1. Imputation (allegation) of a crime: a crime that is punishable with corporal
punishment.
2. Imputation of a disease: venereal disease (STDs)
3. Imputation regarding business or trade: eg. he is a horrible lawyer.
4. Imputation as to unchastity of a woman: the virginity of a woman is
discussed

Protection to husband and wife:

Communication between husband and wife does not amount to defamation/

publication. But on the other hand, if a person makes a statement defamatory in
nature to the wife or husband of a person, such an act of a person is said to be
defamatory and publication of the statement is done.

Only publication is not sufficient, the reputation must be harmed

For claiming damages under defamation, the reputation of a person must be
harmed, mere publication is not sufficient.

Two or more people may defame together:

If two or more people are involved in making a defamatory statement against any
person, in such scenarios, each party is liable for the tort of defamation.

Republication of a published statement.

The original maker of a statement is not liable for its republication by another
person even if such person states that he is merely reproducing the said content.
In case of publication in defamation, the presumption is that the said work is
published and the burden of proof is on the defendant to prove otherwise

PRIMARY PUBLISHERS
A person may play a primary part in the defamation of another and thus is known
as a primary publisher. Such people are vulnerable to penalties. However, there are
certain publishers who may publish original work but may be considered
“innocent” on the following grounds:
1. Such a person was innocent of any knowledge of a libellous work
disseminated /distributed.
2. There were no circumstances that led him to suppose that it contained a
libel.
3. Or that the work distributed had no negligence on his part.

WHAT ARE THE MEASURES OF UNLIQUIDATED DAMAGES

1. Nature defamation.
2. Position and standing of the plaintiff.
3. The conduct of the defendant.
4. The absence or refusal to apologise.
5. The conduct of the plaintiff.

DEFENCES AVAILABLE:

1. JUSTIFICATION OF TRUTH:
An action for defamation can be defended by stating that the statement is true.

Alexzander vs N.E Railway

The defendant had published a notice stating that the plaintiff had been
convicted of travelling on a train without a ticket and had been fined a pound
along with 3 weeks of imprisonment. In fact, the punishment given to the
 plaintiff was only for 2 weeks. The court held that defence is the truth is
acceptable because the statement was substantially true

2. FAIR AND BONAFIDE COMMENT

3 essentials to prove fair and bonafide comment:
a. It must be a comment or criticism and not a statement of fact
b. Must be in the public interest (eg of public interest: administration of
justice, public institutions, local authorities, ecclesiastical matters, books
pictures and works of art, plays, and films)
c. The comment must be fair and honest.

3. PRIVILEGE STATEMENTS

statements and decisions made by governmental authorities are protected from

defamation for the smooth functioning of the administration

A. Absolute privileges:
● Parliamentary proceedings
● Judicial proceedings- judges, lawyers, witnesses, and even a party
● Military and Naval proceedings
● State proceedings

B. Qualified privileges:
Qualified privilege is a privilege, however, is taken away if constructed with malice
When malice is proved, qualified privilege is taken away. For eg- a person knowing
a statement to be false still reports it abuses qualified privilege and is punishable.
Generally, when a person makes a statement defamatory in nature knowingly or
unknowingly he is liable for defamation. However, in qualified privilege, the
person is liable only when he acts maliciously and is protected if he does so
unknowingly.
Eg: Reports of proceedings in courts, legislature and official records,
communications made to the public for the public good, misconduct of public
officers, etc.

4. APOLOGY
The offer of making an apology is not a defence in the common law. However, the
apology and its acceptance can resist the plaintiff’s claim for damages.