DEFAMATION

BB.A LL.B First Year (Sem I) 2021-2022

Law of Torts
Introduction

Every man is entitled to have his reputation. A man's reputation is his property. Reputation is
nothing but enjoyment of good opinion on the part of others. Depending upon perception of
that man, reputation is more valuable to him than any other property.

Defamation is civil as well as criminal wrong. The criminal law on the topic is contained in
sectioned 499 to 502 of Indian Penal Code, 1860. However, defamation as a Civil Wrong is
covered under Law of Torts.
Meaning of Defamation

The word defamation is driven from Latin word ‘Diffamare’ which means 'Spreading evil
report about someone’. Thus, defamation is nothing but causing damage to reputation of
another.
Definition of Defamation

As per Salmond, it can be defined as ‘the wrong of defamation lies in the publication of a false
and defamatory statement about another person without lawful justification’

Blackburn and George defined defamation as ‘the tort of publishing a statement which tends to
bring a person into hatred, contempt or ridicule or to lower his reputation in the eyes of right
thinking members of society generally’.
Kinds of Defamation

Defamation may be committed in two ways viz.,

(i) Speech (Slander) , or
This is a spoken defamation. Slander is a false and defamatory statement by spoken words or
gestures tending to injure the reputation of another.

ii)by writing and its equivalent modes (Libel)

This is written defamation which may assume various forms, like physical symbols, statues,
effigies, picture, caricature, wax model, etc.
Libel need not always be in writing. It may be conveyed in some other permanent form as a
statue, a caricature, an effigy, chalk mark on a wall, sign or pictures.
Case Law: Monson V. Tussauds
Facts:
the defendants, who kept a wax works exhibition, had exhibited a wax model of the plaintiff
with a gun, in a room adjoining the ‘Chamber of Horrors’ (a room in the basement, in which
the wax models of notorious criminals were kept). The plaintiff has been tried for murder in
Scotland and released on a verdict of ‘Not proven’ and a representation of the scene of the
alleged murder was displayed in the chamber of horrors.
Held:
The Court of Appeal held that the exhibition was libel.
 ESSENTIALS OF DEFAMATION

2.IN
1.FALSE WRITING/SPOKE
3. DEFAMATORY 4. PUBLICATION
STATEMENT N REFERRED TO
THE PLAINTIFF
ESSENTIALS OF DEFAMATION

1. There must be a false statement

A defamatory statement should be false because the truth is a defence to
defamation. If the statement made is true, then there is no defamation as
the falsity of the statement is an essential ingredient of defamation. The
law does not punish anyone for speaking the truth.
ESSENTIALS OF DEFAMATION

2. SUCH STATEMENT MUST BE IN WRITING/SPOKEN REFERRED TO THE

PLAINTIFF

It may be spoken /written/through gestures/various other forms. It should be referred to the

Plaintiff. It is sufficient if he is described by initial letters or even fictitious name, provided
that he can satisfy the court that he was the person referred to. It is immaterial whether the
defendant intended the defamatory statement to apply to the plaintiff, or knew of the plaintiff's
existence, if the statement might reasonably be understood by those who knew the plaintiff to
refer him.
Case law: Newstead v/s London Express
E Hulton & Co V/s Jones
ESSENTIALS OF DEFAMATION

Newstead v/s London Express

A statement was that “Harold Newstead, thirty year old Camberwell man” had been found
guilty of bigamy. This statement was true of a barman of that name of Camberwell. The
plaintiff bearing the same name and aged about thirty, who carried on hair dressing business at
Camberwell and about whom the statement was untrue succeeded in recovering damages in an
action for defamation.
ESSENTIALS OF DEFAMATION

 E Hulton & Co V/s Jones

Facts:
An article was written by a correspondent of an English newspaper reporting that at a large
and well attended motor vehicle show in France there on the terraces was ‘Artemus Jones with
a woman not his wife who must be you know – the other thing.’ The writer did not know an
Artemus Jones and had made the name up for the purposes of the story. In fact, there really
was an Artemus Jones a barrister in practice in North Wales.
Held: The plaintiff was entitled to maintain the action. The newspaper and its publishers were
liable: A person charged with libel cannot defend himself by showing that he did not intend to
defame the plaintiff.
ESSENTIALS OF DEFAMATION

3. Such statement/representation should be defamatory

Any words will be deemed defamatory which-
a) Expose the plaintiff to hatred, contempt, ridicule or
b) Tend to injure him in his profession or trade or
c) Cause him to be shunned/avoided by his neighbours.
ESSENTIALS OF DEFAMATION

4. Publication
Publication is equally important essential. There must be publication of the defamatory
statement, that is to say, it must be communicated to some person other than the plaintiff himself.
The statement should be communicated to a third party. Any statement written in a personal
diary or sent as a personal message does not amount to defamation, but if the sender knows that
it is likely that a third person may read it, then it may amount to defamation.

Case law: Mahendra Ram v. Harnandan Prasad,

The defendant was held liable because he had sent a defamatory letter written in Urdu despite
knowing the fact that the plaintiff could not read Urdu and ultimately the letter will be read by
someone else.
ESSENTIALS OF DEFAMATION

Case law: Gorantla Venkateshwarlu v. B. Demudu

The respondent was a bank officer and was sent on deputation to work as
the Managing Director of Co-operative society. The appellant, the
President of Society sent a complaint to the Bank alleging that the
respondent had illicit connections with ladies which affected the image of
the society during his tenure as the Managing Director. The respondent
sent a reply denying the allegations made against him. The branch
manager of the bank conducted an inquiry and found out that the
allegations were false and were made only with a view to see that the
respondent is not deputed to inspect the affairs of the society. The
respondent filed a suit of defamation.
Held:
The court held that the allegations were per se defamatory and the
appellant was liable to pay damages
Innuendo

Where the statement does not refer to plaintiff directly, the doctrine of innuendo may be
pressed into service.
Where the words alleged to be defamatory do not appear to be such on their face, the plaintiff
must make out the circumstances which made them actionable, and he must set forth in his
pleading the defamatory sense he attributes to them. Such explanatory statement is called an
innuendo. Thus innuendo means the words which are not defamatory in their ordinary sense,
but may nevertheless convey a defamatory meaning owing to the circumstances.
Defences

Following are the defences available in an action of civil liability in the case of defamation –
1. Justification of truth
2. Fair comment
3. Privilege
4. Consent
5. Apology
Defences

1. Justification of truth
Truth of the statement is a complete defence in an action for defamation. The burden is on the
Defendant to prove the truth.
If the matter is true, the purpose or motive with which it was published is irrelevant.
Simi Garewal v T.N. Ramachandran
Defences

 Simi Garewal v T.N. Ramachandran

A still from a US film was proposed to be published by a magazine owned by the
defendant. It was against this proposed publication that the plaintiff sought for
the issue of an injunction restraining the defendant form doing that. She alleged
that the defendant wanted to defame her in the Indian society and among the
Indian people. The defendant pleaded among other things that the photo was a
true photo of a scene in the film.
Held: Once it is established that the representation or statement in question is
true in substance and in fact, it is totally irrelevant to judge whether it is
defamatory or not.
Defences

2. Fair comment
A fair and bona fide comment on a matter of public interest is not defamation. For the
purposes of the defense of fair comment on a matter of public interest such matters must be –

(a) in which the public in general have a legitimate interest, directly or indirectly, nationally
or locally, e.g. matters connected with national and local government, public services and
institutions and
(b) There must be an expression of opinion and not the allegation of fact
(c) They must not exceed the limit of fair comment
(d) They must not be published maliciously
Defences

Case : Kokan Unnati Mitramandal and Others v/s Bennett Coleman & Company Limited ,
Hon’ble Bombay High Court while dismissing suit for defamation filed by plaintiff has held
that “defendants have shown and proved the truthfulness of the statements and fair comment
made by them in public interest.
Defences

3. Privilege
'Privilege' means a person stands in such relations to the fact of the case that he is justified in
saying or writing what would be slander or libel by anyone else.
Privileges can be absolute or qualified.
a) Absolute Privilege: A statement is said to have absolute privilege when no action lies
whether against Judges, Counsel, Jury, Witnesses or Parties, for words spoken in the
ordinary course of any proceedings before any Court or Tribunal recognized by law.
e.g Court proceedings, parliamentary proceedings etc
b) Qualified Privilege: A statement is said to have a qualified privilege when no action lies
for it even though it is false and defamatory, unless the plaintiff proves express malice.
It is regarded sometimes right and in the interest of the public that a person should plainly state
what he honestly believes about a certain person and speak out his mind fully and freely about
him. Such occasions are regarded as privileged and even when the statement is admitted or
proved to be erroneous; its publication will be excused on that ground.
Defences

4. Consent of the Plaintiff

Where the defendant has communicated or published certain material with the consent of
plaintiff or plaintiff himself has invited the defendant to repeat the defamatory words, the
defendant can plead this defence of consent.
Defences

5. Apology:
Apology is available as a defence in actions for libel against newspapers and another periodical publication,
if the newspaper inserts a sufficient apology and adheres to certain other conditions. When there is an
apology and an acceptance thereof, the defendant can resist plaintiff's suit for reimbursement for
defamation.
In past judgments it is been held that even if the plaintiff accepted an apology and withdraw a criminal
prosecution for defamation, he can still sue the defendant in a civil suit.

In case of L. D. Jaikwal v/s State of Uttar Pradesh, the Supreme Court has commented on apology and
observed that,
“We are sorry to say we cannot subscribe to the ‘slap-say sorry-and forget’ school of thought in
administration of contempt jurisprudence. Saying sorry does not make the slapper poorer, nor does the
cheek which has taken the slap smart less upon the said hypocritical word being uttered through the very
lips which not long ago slandered a judicial officer without the slightest compunction…. Apology shall not
be paper apology and expression of sorrow should come from the heart and not from the pen. It is one
thing to say sorry, and it is another to feel sorry.”
Defamation v. Free Speech

Freedom of Speech and Expression, as provided by the Constitution under Article

19 (1) (a), provides that all citizens shall have the right to freedom of speech and
expression. However, such freedom is subject to reasonable restriction. The
protection of reputation of another person falls within the ambit of reasonable
restriction and any comment or remark which hampers the reputation of another
person (unless the statement is true) would invite liability under the law of
defamation
Cyber Defamation

Cyber Defamation has become a major issue because of its repercussions

rising up out of the wide-spread Coverage, Instantaneous Communication,
Anonymity and Impersonation.
Cyber defamation occurs when an electronic device connected to the internet is
used as a tool, or a medium to defame a person or an entity. 
For example: Publishing of a defamatory statement against a person on a social
networking site such as Facebook, Twitter, etc., or sending of emails to other
persons containing defamatory content about a person
Cases on Cyber Defamation

SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra

wherein a disgruntled employee sent derogatory, defamatory, vulgar and abusive
emails to the company's fellow employees and to its subsidiaries all over the
world with an intent to defame the company along with its managing director, the
High Court of Delhi granted injunction restraining the defendant from defaming
the Plaintiff in both the physical and in the cyber space.
Cases on Cyber Defamation

 Further, in the case of Kalandi Charan Lenka v. State of Odisha, the Petitioner
was stalked online and a fake facebook account was created in her name.
Additionally, obscene messages were sent to the friends by the culprit with an
intention to defame the Petitioner. The High Court of Orissa held that the said
act of the accused falls under the offence of cyber defamation and the accused
is liable for his offences of defamation through the means of fake obscene
images and texts.
Invasion of Privacy and Defences

 Privacy was not explicitly declared as a fundamental right under the right to life and liberty
before the historic Supreme Court judgment in Puttaswamy Vs. the Union of India (2017).
Thus, the historic Supreme court judgement has strengthened the existing defamation laws
and given the Indian citizen further and wider scope for protection of privacy.
 In Justice K.S. Puttaswamy (Retd.) and another V. Union of India, the Supreme Court
held that right to privacy is a fundamental right under article 21 and should be included
under the right to live with dignity.
 Right To Privacy As Per International Instruments And Conventions
 Universal Declaration of Human Rights, 1948- A person's home, family, privacy can't be
infringed or intrude arbitrarily and a person's honor and reputation can't be attacked. Every
person has the right to be protected by law from such intrusion.
 The International Convention on Civil and Political Rights, 1966- A person's privacy,
home and family shouldn't be subjected to arbitrary intrusion and his/her reputation can't
be harmed. It is the law which must protect every person from such infringement.
Privacy With Respect To Defamation In India

 Right to Privacy is now a fundamental right guaranteed as the right to

live a life with dignity under Article 21 of the Constitution which
mandates that no one should be deprived of his right to life and
personal liberty. Thus, privacy entitles one to protect his reputation and
also guarantees him to keep his private life outside the purview of
inquisitiveness and undue attention or harm.
 R. Rajagopal v/s State of Tamil Nadu
 Privacy With Respect To Defamation In India
R. Rajagopal v/s State of Tamil Nadu

 A Tamil sensational Weekly ‘Nakheeran’ had proposed to publish autobiography of a

condemned prisoner, by name Auto Shankar. He was convicted in six cases of murder and
was sentenced to death penalty. His Advocate had delivered the autobiography to the news
weekly, for publication as a serial. As it contained a narration about nexus between criminals
and authorities, especially between the prisoner and several IAS, IPS and other officers, the
newspaper decided to commence publication and announced that in advance. It was alleged
that the police authorities extracted some letters from prisoner applying third degree methods,
addressed to top authorities in the government requesting stoppage of publication of the
autobiography. The Inspector General of Prisons in a letter to the editor, asked to stop the
publication as the prisoner denied that he had written any such autobiography.
 Held: Supreme Court said that the newspaper could publish the life story so far as it appears
from the public records. But if they go beyond the public record and publish, they may be
invading the privacy.
Privacy With Respect To Defamation In India

 The Supreme Court observed that-

 The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of
this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard
the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and
education among other matters. None can publish anything concerning the above matters
without his consent whether truthful or otherwise and whether laudatory or critical. If he
does so, he would be violating the right to privacy of the person concerned and would be
liable in an action for damages. Position may, however, be different, if a person voluntarily
thrusts himself into controversy or voluntarily invites or raises a controversy.
Conclusion

Defamation means causing damage to reputation of another. Defamation is civil as well as

criminal wrong. The criminal law on the topic is contained in sectioned 499 to 502 of Indian
Penal Code, 1860. However, defamation as a Civil Wrong is covered under Law of Torts.