Defamation
However, the Law of Defamation like many other branches of tort law aims at balancing
the interests of the parties concerned. These are the rights that a person has to his reputation
vis-à-vis the right to freedom of speech. The Law of Defamation provides defences to the
wrong such as truth and privilege thus also protecting right of freedom of speech but at the
same time marking the boundaries within which it may be limited. In India tort law is
obtained from British Common Law and is yet uncodified. Therefore the existing law
relating to defamation places reasonable restrictions on the fundamental right of freedom of
speech and expression conferred by Article 19(1) (a) of the Constitution and is saved by
clause (2) of Article 19.
DEFINITION
A defamatory statement is one which injures the reputation of another by exposing him to
hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking
members of the society.
The wrong of defamation may be committed by making defamatory statements which are
calculated to expose a person to hatred, contempt or ridicule, or to injure him in his trade,
business, profession, calling or office, or to cause him to be shunned or avoided in society.
This is known as “publication” of the statement, which in its true legal sense means the
communication of defamatory matter to some person other than the person of whom it is
written. These statements can be made in the following two ways:
Libel: The publication of a false and defamatory statement tending to injure the
reputation of another person without lawful justification or excuse. The statement
must be in a printed form, e.g., writing, printing, pictures, cartoons, statue, waxwork
effigy etc.
Slander: A false and defamatory statement by spoken words and/or gestures tending
to injure the reputation of others. It is in a transient form. It also involves the sign
language used by the physically disabled.
DISTINCTION BETWEEN LIBEL AND SLANDER:
The basic differences between the torts of libel and slander are as follows:
(1) Libel is a defamatory statement in permanent form, for example,
• writing,
• wax images (Monson v Tussaud's Ltd [1894] 1 QB 671),
• films (Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581),
• radio and television broadcasts, and
• public performances of plays
Slander is a defamatory statement in a transient form.
(2) Libel is actionable per se whereas damage must be proved for slander, except in four
instances:
• Where there is an allegation that the claimant has committed an offence which is
punishable with imprisonment;
• Where there is an imputation that the claimant is suffering from a contagious disease,
such as venereal disease, leprosy, plague and, arguably, HIV/AIDS;
• Where there is an imputation that a woman has committed adultery or otherwise
behaved in an 'unchaste' fashion (Slander of Women Act 1891); or
• Where there is an imputation that the claimant is unfit to carry on his trade,
profession or calling.
(3) Libel may be prosecuted as a crime as well as a tort, whereas slander is only a tort.
Elements of Defamation (What has to be proved):
Subject to the differences between the two types of defamation, libel and slander (explained
below), the claimant must prove:
(1) that the statement was defamatory,
(2) that it referred to him, and
(3) that it was published, ie communicated, to a third party.
The onus will then shift to the defendant to prove any of the following three defences:
(1) truth (or justification),
(2) fair comment on a matter of public interest, or
(3) that it was made on a privileged occasion.
In addition, some writers put forward the following as defences in their own right:
(4) unintentional defamation, and
(5) consent.
ESSENTIALS OF DEFAMATION:
(1) THE STATEMENT MUST BE DEFAMATORY
The statement must be defamatory. According to Lord Atkin, the statement must tend to
lower the claimant in the estimation of right-thinking members of society generally, and in
particular cause him to be regarded with feelings of hatred, contempt, ridicule, fear and
disesteem.
In D.P. Choudhary v. Manjulata there was publication of a statement in a local daily in
Jodhpur that Manjulata on the pretext of attending her evening BA classes ran away with a
boy named Kamlesh. The girl belonged to a well educated respectable family. She was
seventeen years of age. The news item was untrue and had been irresponsibly published
without any justification. This was defamatory and the defendants, the newspaper
publishers were held liable.
Mere abuse
Vulgar abuse is not defamatory. Mansfield CJ stated "For mere general abuse spoken no
action lies" (Thorley v Kerry (1812) 4 Taunt 355 at 365, and also Pollock CB and Wilde B
in Parkins v Scott (1862) 1 H&C 153 at 158, 159).
Winfield & Jolowicz (p406) states that spoken words which are prima facie defamatory are
not actionable if it is clear that they were uttered merely as general vituperation and were so
understood by those who heard them. Further, the same applies to words spoken in jest
(Donoghue v Hayes (1831) Hayes R 265).
Innuendo
Sometimes a statement may not be defamatory on the face of it but contain an innuendo,
which has a defamatory meaning. Such a statement may be actionable. The hidden meaning
must be one that could be understood from the words themselves by people who knew the
claimant (Lewis v Daily Telegraph [1964] AC 234) and must be specifically pleaded by the
claimant.
For instance in Cassidy V Daily Mirror Newspapers the newspaper published a picture of a
lady and the race horse owner with the caption underneath, “Mr. M. Corrigan, the race-
horse owner and Miss X whose engagement has been announced”. The newspaper was held
liable in a suit that said that the lady was the lawful wife of Mr. Corrigan and complained
that the words suggested that she had been living with him in immortality. The liability of
the defendants rested on their failure to make independent inquiry. This also brings forth
another aspect of this tort that intention to defame is not necessary and if the words are
considered to be defamatory by the persons to whom the statement is published, there is
defamation.
(2) REFERENCE TO THE CLAIMANT
The statement must refer to the claimant, ie, identify him or her, either directly or
indirectly.
The plaintiff has to prove that the statement which is claimed to be defamatory actually
refers to him/her. It is immaterial that the defendant did not intend to defame 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.
In Hulton Co. V Jones the defendants published a fictional article in their newspaper in
which aspersions were cast on the morals of a fictitious character-Artemus Jones, stated to
be a Churchwarden. On this basis one Artemus Jones, a barrister, brought an action against
the defendants. The defendants pleaded that Artemus was a fictional character and the
plaintiff was not known to them and thus they had no intention to defame him.
Notwithstanding this, they were held liable because a substantial number of persons who
knew the plaintiff and had read the editorial would have assumed it to be referring to him.
However, when the defamation refers to a class of persons, no member of that group can
sue unless he can prove that the words could reasonably be considered to be referring to
him.
When the statement though generally referring to a class can be reasonably considered to be
referring to a particular plaintiff, his action will succeed. In Fanu v. Malcomson, in an
article published by the defendants, it was mentioned that cruelty was practised upon
employees in some of the Irish factories. From the article as a whole including a reference
to Waterford itself, it was considered that the plaintiff’s Waterford factory was aimed at in
the article and the plaintiff was, therefore, successful in his action for defamation.
(3) PUBLICATION
The statement must be published, ie communicated, to a person other than the claimant.
Publication means making the defamatory matter known to some other third part and unless
that is done, no civil action for defamation can lie in court. Communication to the plaintiff
wont count because defamation is injury to the reputation which consists in the estimation
in which others hold him and not a man’s own opinion of himself. However, if a third party
wrongfully intercepts and reads a letter sent to the plaintiff it is not defamation. However
when the defendant knows that the letter is likely to be read by someone else and it contains
some personal information only meant for the recipient, then he will be liable.
Also, an injunction can be issued against the publication of a defamatory statement which is
likely to injure the reputation of one of the parties involved as was done in Prameela
Ravindran v. P. Lakshmikutty Amma.
Also, in the eyes of the law, husband and wife are one person and the communication of a
defamatory matter from the husband to the wife or vice versa is no publication.
When the repetition of the defamatory matter is involved, the liability of the person who
repeats that defamatory matter is the same as that of the originator, because every repetition
is a fresh publication giving rise to a fresh cause of action. Not only the author is liable but
the editor, printer or publisher would be liable in the same way.
DEFENCES:
(1) TRUTH (OR JUSTIFICATION)
Only false statements are actionable, so if the statement made about the claimant is true,
there can be no action for defamation. The burden of proof is on the defendant to prove that
the statement made is true, rather than on the claimant to prove that it was false.
Alexander Vs. North Eastern Railway Co. (1865) 122 All E. R. 1316
Walkley Vs. Cooke
(2) FAIR COMMENT ON A MATTER OF PUBLIC INTEREST
The defence of fair comment is frequently relied upon by the press, as it is designed to
protect statements of opinion on matters of public concern. Lord Esher, in Merivale v
Carson (1887) 20 QBD 275, stated that the test was:
"Would any fair man, however prejudiced he may be, however exaggerated or obstinate his
views, have said that which this criticism has said of the work which is criticised?"
It involves making fair comments on matters of public interest. For this defence to be
available, the following essentials are required:
(i) It must be a comment, i.e., an expression of opinion rather than an assertion of fact
(ii) The comment must be fair, i.e., must be based on the truth and not on untrue or invented
facts
(iii) The matter commented upon must be of public interest.
If due to malice on the part of the defendant, the comment is a distorted one, his comment
ceases to be fair and he cannot take such a defence. In Gregory V Duke of Brunswick the
plaintiff, an actor, appeared on the stage of a theatre but the defendant and other persons in
malice started hooting and hissing and thereby caused him to lose his engagement. This
was held to actionable and an unfair comment on the plaintiff’s performance and the
defendants were held to be guilty.
(3) PRIVILEGE
a) Absolute privilege
There are certain occasions on which the law regards freedom of speech as essential, and
provides a defence of absolute privilege which can never be defeated, no matter how false
or malicious the statements may be. The following communications are 'absolutely
privileged' and protected from defamation proceedings:
• Statements made in either House of Parliament. (for parliament- Article 105 (2) and
for State Legislature- 194 (2))
• Parliamentary papers of an official nature, ie, papers, reports and proceedings which
Parliament orders to be published
• Statements made in the course of judicial proceedings.
(b) Qualified privilege
Qualified privilege operates only to protect statements which are made without malice (ie,
spitefully, or with ill-will or recklessness as to whether it was true or false).
The judge must decide whether the situation is covered by qualified privilege. If so the jury
must then decide whether the defendant acted in good faith or whether there was malice.
The following communications will be protected by 'qualified privilege':
• Statements made in pursuance of a legal, moral or social duty, but only if the party
making the statement had an interest in communicating it and the recipient had an
interest in receiving it.
• Statements made in protection of an interest, eg public interests or the defendant's
own interests in property, business or reputation.
• Fair and accurate reports of parliamentary proceedings.
• Fair and accurate reports of public judicial proceedings, eg when the report is not
published contemporaneously with the proceedings.
The Spousal Testimonial Privilege
The spousal testimonial privilege ("spousal immunity") can be used to prevent any party in
a criminal case from calling the defendant's spouse to testify against the defendant about
any topic. This privilege does not survive the marriage; that is, after divorce, there is no
right to refuse to testify against a defendant ex-spouse. This privilege may be restricted to
testimony about events that occurred after the marriage, although in some jurisdictions it
may apply to testimony about events occurring prior to the marriage (giving rise to a
questionable incentive for an individual to marry a potential witness in order to prevent the
potential witness from testifying against the individual).
Section 122 of Indian Evidence Act 1972 Reads as under:
"No person who is or has been married shall be compelled to disclose any communication
made to him during marriage by any person to whom he is or has been married; nor shall he
be permitted to disclose any such communication unless the person who made it or his
representative-in-interest, consents, except in suits between married persons, or proceedings
in which on married person is prosecuted for any crime committed against the other."
Here is thus, a prohibition against the disclosure of any communication between spouses
made during the subsistence of marriage unless the person who made it or his
representative-in-interest consents to the same. The bar is not only against a spouse being
compelled to disclose the same but also extends to cases where the spouse may be inclined
or willing to disclose the same. In the latter case, the disclosure can be permitted if the
other spouse, who made the same, agrees to the disclosure.
Principle Underlying This Section
Section 122 of the Indian Evidence Act recognizes the age-old concept of marital
confidence that all communications between spouses during the wedlock are sacrosanct.
M.C. Verghese Vs. T.J. Poonan and Anr.
Rathi, daughter of M. C. Verghese, was married to T. J. Poonan. Poonan wrote from
Bombay, letters to Rathi who was then residing with her parents at Trivandrum, which as it
was claimed contained defamatory imputations concerning Verghese. Verghese then filed a
complaint in the Court of the District Magistrate, Trivandrum, against Poonan charging him
with offence of defamation. Poonan submitted an application raising two preliminary
contentions –
(1) that the letters which formed the sole basis of the complaint were inadmissible in
evidence as they were barred by law or expressly prohibited by law from disclosure; and
(2) that uttering of a libel by husband to his wife was not "publication" under the law of
India and hence cannot support a charge for defamation, and prayed for an order of
discharge, and applied that he may be discharged.
In England the rule there is a well-settled law that except in certain well-defined matters,
the husband and wife are regarded as one and in an action for libel, disclosure by the
husband of the libel to his wife is not publication. But the rule that husband and wife are
one in the eye of law has not been adopted in its full force under our system of law and
certainly not in our criminal jurisprudence.
In this case hence, Poonan’s contention that the letters addressed by him to his wife are not
except with his consent-admissible in evidence by virtue of Section 122 of the Indian
Evidence Act, and since the only publication pleaded is publication to his wife, and she is
prohibited by law from disclosing those letters, no offence of defamation could be made out
were accepted.
