NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI

DEFENCES TO DEFAMATION

SUBMITTED TO: SUBMITTED BY:

DR. SUBIR KUMAR VINCENT ROHIT

MARKI

ASSISTANT PROFESSOR SEMESTER: 1

ROLL NO: 1084

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 ACKNOWLEDGEMENT

I would like to thank my faculty Dr. Subir Kumar, whose assignment of such a relevant and
current topic made me work towards knowing the subject with a greater interest and
enthusiasm and moreover he guided me throughout the project.

I owe the present accomplishment of my project to my friends, who helped me immensely

with sources of research materials throughout the project and without whom I couldn’t have
completed it in the present way.

I would also like to extend my gratitude to my parents and all those unseen hands that helped
me out at every stage of my project.

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 Contents

1. INTRODUCTION
1.1 AIM AND OBJECTIVE
1.2 HYPOTHESIS
1.3 RESEARCH QUESTION
1.4 LITERATURE REVIEW
1.5 RESEARCH METHODOLOGY

2. NOW WE WILL SEE THESE THREE DEFENCES IN DETAIL

2.1 FAIR COMMENT OR HONEST OPINION

2.2 FAIR COMMENT OR HONEST OPINION

2.3 PRIVILEGE

3. CONCLUSION AND SUGGESTION

4. BIBLIOGRAPHY

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 CHAPTER 1 : INTRODUCTION

Defamation means the publication of a statement which reflects on a person’s reputation and
tends to lower him in the eyes of a right thinking members of the society. Defamation can
also define as wrong done by a person to another’s reputation by words signs or visible
representation. There are four primary components of defamation and these are as following,

1: The statement must be defamatory.

2: The said statement must refer to the plaintiff. The statement must be understood by right
thinking or reasonable minded person, as a referring to the plaintiff.

3: The statement must be published i.e., it must be communicated to the third person, other
than plaintiff himself or it must come in the knowledge of a third person.

4: Which has caused or is likely to cause serious harm to the claimant’s reputation?

These are four primary components of defamation.

The aim of the law of defamation is to protect one’s reputation, honor, integrity, character
and dignity in the society.

Defamation is a crime as well as a civil wrong. An aggrieved person may file a criminal
prosecution as well as a civil suit for damages for defamation.

A person may suffer damage to their reputation but may not win a defamation action, if the
defamer uses certain defenses. By using certain defenses defendant can protect himself from
liability and there are three defenses available against defamation and these are as following,

1: Justification or Truth.

2: Fair comment or honest opinion.

3: Privilege, which may be either absolute or qualified.

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AIM AND OBJECTIVE:

1: To Know the various defenses to Tort of defamation and whether they arise in a range of
factual scenarios.

2: To be able to apply these rules to a range of different problem, scenarios, and peculiar
aspects of Tort of defamation.
3: To discuss the concept of defenses to defamation and various case laws related to defenses
to defamation.
HYPOTHESIS:

Defenses Justification of truth, Fair comment and Privilege are the base all the time
acceptable with respect to fixing the liability.

RESEARCH QUESTION:
What are the defenses available against the defamation?

LITERATURE REVIEW:

Some studies have been conducted on the Defenses to defamation; some of them are
elucidated below.

 The writer Dr. R.K. Bangia in his book “Law of Torts describes about Defenses to
defamation In Chapter 8 “Law of Torts” on page no.166-178. In this describes about
the defenses Justification or Truth, Fair comment and Privilege and all the essential
condition for apply these defenses.
 The writer Ratanlal & Dhirajlal in his book “Law of Torts” describe about Defenses
to Defamation In Chapter 12 “Law of Torts” on page no.292-306. In this describes
about the all the three defenses and various case laws.
 The researcher has collected primary data with the help of different website for
understanding the Defenses to defamation and required condition for applying these
defenses against defamation and understating the case laws.

RESEARCH METHODOLOGY:

In this research the researcher has adopted the doctrinal method of research for the
researcher has consulted various books, articles, generals, and newspaper.

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 CHAPTER 2

NOW WE WILL SEE THESE THREE DEFENCES IN DETAIL.

CHAPTER 2.1 : JUSTIFICATION OR TRUTH

Truth is an absolute defense against defamation, what is true can never be defamatory. Under
the civil law merely proving the statement was true is a good defense. The reason for the
defense is that the law will not permit a man to recover damages in respect of an injury to a
character which he either does not or ought not to possess. The defense is available even
though the publication is done with maliciously. If the statement is substantially true but
incorrect in respect of certain minor particulars, the defense will be available yet. The
defendant does not have to show that every single characteristics of the statement made is
true, merely that is substantially true.

In ALEXANDER V NORTH EASTERN RAILWAY 1 explains the point; there the plaintiff had
been sentenced to a fine of 1 euro or 14 days imprisonment in the alternative, for travelling
on a train without appropriate ticket. The defendants published a notice stating that the
plaintiff had been sentenced a fine of 1euro or three weeks imprisonment in the alternative.
Held, the defendants were not liable, the statement being substantially true.

If the defendant is not able to prove the truth of the facts, the defense can not be availed.

In RADHESHYAM TIWARI V EKNATH2 The defendant, who was editor, printer and
publisher of a newspaper ,published a series of Articles against the plaintiff, a Block
development officer, alleging that the plaintiff had issued false certificates, accepted bribe
and adopted corrupt and illegal means in various matters. In an action for defamation, the
defendant could not prove that the facts published by him were true and therefore the
defendant held liable. In SALENA DANDASI V GAJJALA MALLA REDDY 3 the plaintiff, an
advocate was involved in offence of raping a Harijan woman. Relying upon the FIR
registered by the police the new item was published in a Telgu daily. The publication how
ever gave an exaggerated version with several deviations and improvements with comments
1
(1885) 6 B & S. 340
2
A.I.R. 1985 Bom. 285.
3
Selena Dandasi v. Gajjala Malla Reddy, A.I.R. 2009 (NOC) 299 (A.P.)

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as though the plaintiff entitled to damages the Andhra Pradesh High court said that such
publication virtually reduced true episode to its lowest bottom should always be deprecated.
Public may not be able to draw any distinction whatever between that portion which may be
untrue. “If such distorted or deviated versions are made without any basis or without any
material or at least without taking minimum care in a reckless and negligent manner under
the guise of freedom of expression or freedom of press”, the respondent-defendants could not
escape, the court ruled.

CHAPTER 2.2: FAIR COMMENT OR HONEST OPINION

Honest opinion will not be considered defamation. Making fair comment on matters of
public interest is a defense to an action for defamation. For this defense to available the
following essentials are required.

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

2- The comment must be fair.

3- The matter commented upon must be of public interest.

Whether the comment is fair or not depends upon whether the defendant honestly held that
particular opinion. It is not the opinion of the court as to the fairness of the comment but the
opinion of the commentator which is material. As stated by Diplok, j. in SILKIN V
BEAVERBOOK NEWSPAPER LTD.4 “the basis of our public life is that the enthusiast may
say what the honesty thinks just as much as the reasonable man or woman who sits on a jury
and it would be a sad day for freedom of speech in this country. If a jury were to apply the
test of whether it agrees with the comment instead of applying the true test: was this an
opinion, however exaggerated, obstinate or prejudiced which was honestly held by the
writer?” In K.S.SUNDRAM V S.VISWANATHAN5 The defendant had published Articles
relating only to the performance of the company of which the plaintiff was president. The
article discussed the deterioration in performance by management of the company by the
plaintiff. Dismissing the defamation suit filed by the plaintiff seeking permanent injunction
and damages, The madras high court held that the articles could not be termed as defamatory
against the plaintiff, since there was no personal animus established for writer to write
defamatory articles against the plaintiff. In the absence of the same, it was said that the

4
(1965) A All E.R. 361; Also see Turner v. M.G.M. Pictures Ltd. (1950) 1 All E.R. 449, 461
5
A.I.R. 2013 (NOC) 216 (Mad).

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articles contained only fair comment on performance of the company and not defamatory
statement. If due to malice on the part of defendant, the comment is distorted one, his
comment ceases to be fair and he cannot take such a defense. In GREGORY V DUKE OF
BRUNSWICK6, The plaintiff an actor appeared on the stage of a theatre but the defendant and
other persons actuated by malice hissed and hooted at the plaintiff and there by caused him to

Lose his engagement. Hissing and hooting after conspiracy was held to be actionable and that
was not a fair comment on the plaintiff performance.

CHAPTER 2.3 : PRIVILEGE

There are certain occasion when law recognizes that the right of free speech outweighs the
plaintiff’s right to reputation the law treats such occasion to be privileged an a defamatory
statement made on such occasion is not actionable. Privilege is of two kinds: 1-Absolute
Privilege, 2- Qualified Privilege

First we will see ABSOLUTE PRIVILEGE: In matters of absolute privilege no action lies for
the defamatory statement even though the statement is false or has been made maliciously.
Absolute privilege is enjoyed by the Parliamentarians or in Parliamentary proceedings and
members of the Judiciary or in judicial proceedings. Protection to the judicial officers in India
has been granted by the judicial officers’ protection Act 1850.

A remark by a witness which is wholly irrelevant to the matter of enquiry is not Privilege.
Remark should be relevant to the matter of enquiry. The defamatory remark by a witness
may be considered to be relevant, if it is an attack to character. In RAJINDRA KISHOR V
DURGA SAHI7, The appellant a practicing lawyer had strained relations with the respondent,
Durga Sahi. The dispute between them resulted in two cross cases in which the appellant and
his brother were the accused and the other in which the respondent and his party were the
accused. In the case against the appellants when he also appeared as counsel for himself and
his brother while cross-examining the respondent, Durga Sahi [who gave evidence as a
prosecution witness] was asked whether he had ever been convicted of theft. Durga Sahi
replied that he was not a thief and then stated that the appellant himself was a thief. Soon
thereafter he explained that he did not mean that the-. Appellant himself was a thief but he
harbored thieves and patronized all the bad character in the village. In an action for
defamation by the appellant the High court held that since the appellant, who was the cross-
6
(1843) 6 M. & G. 205;
7
A.I.R. 1967 All. 476

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examining counsel, was himself a party to criminal proceedings. Such an answer defamatory
of the counsel’s character cannot be said to be irrelevant to the enquiry.

2- QUALIFIED PRIVILEGE: It covers the situations in which an individual is obliged

morally or statutorily to communicate information. The defendant has to prove the following
two points - 1: Statement was made on privilege occasion i.e. it was in discharge of duty or
protection of an interest; or it is a fair report of parliamentary, judicial or other public
proceedings.

2- The statement was made without malice. The malice in relation to qualified privilege
means an evil motive. In CLARK V MOLYNEUX8 it was said if the occasion is privileged it is
so for some reason and the defendant is only entitled to the protection of privilege, if he used
the occasion for that reason. He is not entitled to the protection, if he uses the occasion for
some indirect and wrong motive. So if it be proved that out of anger or for some other wrong
motive, the defendant has stated true that which he does not know to be true, recklessly by
reason of his anger or other motive, the jury may infer that he used the occasion, not for the
reason which justifies it, but for gratification for his anger or other indirect motive.

8
(1877) 2 Q.B.D. 237, at 246-247.

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 CONCLUSION AND SUGGESTION:

Thus we can see these three types of defenses Truth, Fair comment or honest opinion and
Privilege are available against the defamation.

Truth is an absolute defense against defamation what is true can never be defamatory. Under
the civil law merely proving the statement was true is a good defense.

Fair comment will not be considered as defamation, for this Fair comment defense there
should be comment i.e. expression of opinion rather than assertion of fact. The matter
commented upon must be of public interest.

Privilege is also a defense against defamation, individual in certain roles is protected from
defamation claims. This takes two forms the first being Absolute privilege, this is enjoyed by
Parliamentarians and member of judiciary, and the second is Qualified privilege it covers the
situations in which an individual obliged morally or statutorily to communicate information.

The defendant can use these defenses against defamation to protect himself from liability.

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 BIBLIOGRAPGHY

BOOKS REFERRED

 THE LAW OF TORT by R.K. Bangia

 THE LAW OF TORT by Ratanlal and Dhirajlal
 THE LAW OF TORT by S.P. Singh

ELECTRONICS SOURCES

 http://www.manupatra.com
 http:www jstor.org/
 http://www ssconline.com

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