Defamation in Tort Law

Introduction

Defamation, in the law of torts, means the publication of a false statement or imputation concerning a person which tends to lower that person in the estimation of right-thinking members of society, or which exposes him to hatred, contempt, ridicule, or social avoidance. In simple words, it is an injury to a person’s reputation.

The law of defamation protects reputation, because reputation is not treated as something trivial in law. In Dixon v Holden (1869), the court held that a man's reputation is his property, and if possible, more valuable, than other property. In the Indian constitutional context, the Supreme Court has recognized reputation as an aspect of dignity and an integral part of Article 21.

Object of the Law of Defamation

The object of the law of defamation is to balance two important interests:

• On one side is the individual’s right to reputation;
• On the other side is freedom of speech and expression.

Tort of defamation intervenes where freedom of speech crosses the permissible limit and unlawfully injures another’s reputation. Causing defamation of a person is a reasonable restriction under Article 19(2) on the exercise of freedom of speech and expression.

Kinds of Defamation:

Traditionally, English law divides defamation into two forms:

1. Libel

Libel is defamation in a permanent form, such as writing, printing, pictures, signs, caricature, effigy, or other visible representation. Because it is in a lasting form, the law has historically treated it as more serious.

2. Slander

Slander is defamation in a transient or temporary form, usually spoken words or gestures. Under old English law, slander was generally not actionable without proof of special damage, except in certain exceptional categories.

Position in English Law

Under English common law, a clear distinction developed between libel and slander. Libel, being in permanent form, was generally actionable per se, which means the plaintiff need not prove actual special damage in the ordinary case. Slander, on the other hand, was generally actionable only on proof of special damage, except in certain recognized exceptions.

Position in Indian Law

In India, this strict English distinction between libel and slander has not been given the same importance.

Indian courts have taken a broader and more practical approach. Both written and spoken defamatory statements may be actionable if they harm the reputation of a person.

In Parvathi v. Mannar (1884), the Court refused to apply the strict English rule that slander requires proof of special damage. The Court considered such technical distinction unsuitable for Indian conditions.

Thus, in India, the main focus is not on whether defamation is written or spoken, but on whether the statement has harmed the reputation of the plaintiff.

Essentials of Defamation

For a civil action in defamation, the plaintiff must ordinarily establish three basic essentials:

1. the statement must be defamatory;
2. the statement must refer to the plaintiff; and
3. the statement must be published.

1. The Statement Must Be Defamatory

A statement is defamatory when it tends to lower a person’s reputation in the eyes of reasonable and right-thinking members of society.

It may be defamatory if it exposes the plaintiff to:

• hatred,
• ridicule,
• contempt,
• social avoidance, or
• loss of professional, moral, or social reputation.

The law of defamation is not concerned merely with hurt feelings. It protects reputation, not personal sensitivity. Therefore, the test is objective. The court considers how ordinary reasonable people would understand the statement, not how the plaintiff personally felt about it.

Illustrations :

A statement may be defamatory if it falsely imputes:

• Unchastity against a woman as it damages social reputation and marriage prospects,
• Dishonesty against a businessman as it affects trade and credibility,
• Incompetence against a professional as it lowers his professional standing,
• Criminality against any person as it exposes him to hatred and contempt,
• Etc.

D.P. Choudhary v. Manjulata

A newspaper falsely published that a young unmarried girl had eloped with a boy. The Rajasthan High Court held the publication to be defamatory because it had a clear tendency to damage her reputation, social standing, and marriage prospects.

Ram Jethmalani v. Subramanian Swamy

An allegation was made that Ram Jethmalani, a senior advocate, had received money from the LTTE, a banned organisation, while appearing in proceedings connected with the Rajiv Gandhi assassination inquiry.

The court treated the statement as defamatory on its face because it directly affected his moral and professional reputation.

Innuendo

Sometimes the defamatory meaning is not visible on the face of the statement. The words may appear innocent to the general public, but to persons having special knowledge of certain facts, they may convey a defamatory meaning. This is called innuendo. The law recognizes that a person’s reputation may be injured not only by direct accusation but also by indirect suggestion, insinuation, or hidden meaning.

Example 1 - “She frequently visits Mr. X’s house late at night.” On the face of it, this may appear harmless. But if people in that locality know that Mr. X is a man of immoral reputation, the statement may imply an unchaste or improper relationship. In that situation, the words may become defamatory by innuendo.

Example 2 - “He is a regular guest at the police station.” Literally, this may simply mean that he often goes there. But if people understand it to mean that he is habitually involved in criminal activities, the statement may carry a defamatory innuendo.

This principle is well illustrated by Cassidy v. Daily Mirror Newspapers Ltd. a newspaper published the photograph of a man with a woman and described that woman as his fiancée. In reality, the man was already married, although he was living separately from his wife.

The wife sued for defamation. Her argument was that people who knew she was his wife might understand from the publication that she was not his lawful wife but merely his mistress.

The court held the newspaper liable. The case is important because the words were not directly defamatory to every reader. However, because of the surrounding facts known to some people, the publication carried a defamatory implication against the wife.

This case also shows that intention to defame is not necessary. If the publication is in fact understood in a defamatory sense and damages a person’s reputation, liability may arise.

2. The Statement Must Refer to the Plaintiff

The second essential is that the defamatory statement must concern the plaintiff. It is not necessary that the plaintiff’s name should be expressly mentioned. It is enough if the words would lead reasonable persons, or some identifiable section of persons, to understand that the plaintiff is the person referred to. Thus, identification may be direct or indirect.

A classic illustration from English law, often cited, is Hulton v. Jones. There, a newspaper published a humorous article referring to a fictional person named “Artemus Jones,” but there existed a real person of that name who was identified by readers and whose reputation was affected. The court held that liability could arise even though the publisher did not intend to refer to the actual plaintiff, because the statement was in fact understood as referring to him. The importance of this case is that intention to defame a particular person is not necessary if reasonable readers identify the plaintiff from the publication.

Defamation of a Class of Persons

A difficult issue arises where the defamatory statement refers not to one named individual but to a class or group of persons. The general rule is that where the class is so large, vague, or indefinite that no particular individual can reasonably say that the words were directed against him personally, an individual action does not lie. But where the class is sufficiently small, definite, and identifiable, and the words can reasonably be understood as referring to each member of that class, a member of that body may sue.

Example 1 - If a person says, “All lawyers in India are dishonest,” no individual lawyer can ordinarily sue, because the class is too large and indefinite.

Example 2 - If a newspaper publishes that “the five members of the managing committee of XYZ School have misappropriated funds,” each of those five members may sue, because the body is small, definite, and clearly identifiable.

In Knupffer v. London Express Newspaper Ltd., defamatory allegations were made against a political group. The claimant, being a member of that group, sued for defamation. The House of Lords held that an individual member cannot sue unless reasonable persons would understand the words as referring to him personally. Defamation of a class is not automatically defamation of every member.

Similarly, in Dhirendra Nath Sen v. Rajat Kanti Bhadra, the Calcutta High Court held that where an imputation is made against a spiritual head or an indefinite body, an individual member cannot maintain an action unless the statement refers to him personally or to a definite and limited group of which he is clearly a member.

Defamation of a Deceased Person

As a rule, in civil defamation, the plaintiff must show that the defamatory statement refers to him and has injured his own reputation. Therefore, a mere imputation against a dead person does not ordinarily give a living person a civil cause of action, because the tort protects the reputation of the person defamed, and the dead cannot sue.

However, if the statement about the deceased is of such a nature that it also reflects upon the family or near relatives and lowers their reputation in the eyes of society, a living person may complain of the injury to his own reputation.

3. The Statement Must Be Published

In the law of defamation, publication does not mean publication only in a newspaper, book, or magazine. It simply means that the defamatory matter must be communicated to at least one person other than the plaintiff.

If defamatory words are spoken or written only to the plaintiff, and no third person comes to know about them, there is no actionable defamation. This is because defamation protects reputation, and reputation means the opinion which others have about a person.

Therefore, unless the defamatory statement reaches a third person, injury to reputation is not complete.

Mahendra Ram v. Harnandan Prasad

In Mahendra Ram v. Harnandan Prasad, the defendant sent a letter written in Urdu to the plaintiff. The plaintiff did not know Urdu, so he got the letter read by another person.

The Court explained that the writer of a letter will be responsible only when he knew, or could reasonably foresee, that the letter would probably be read by someone other than the plaintiff.

T.J. Ponnen v. State of Kerala

A husband wrote defamatory statements about his father in law in a letter addressed to his wife. The letters were sent directly to the wife and were not meant to be read by others.

The Kerala High Court held that communication of defamatory matter by one spouse to the other does not amount to publication, because the statement falls under Privileged Communication.

Defences to Defamation

In an action for defamation, even if the plaintiff proves that the statement is defamatory, refers to him, and has been published, the defendant can still avoid liability by establishing a recognized defence.

1. Truth or Justification

The first and strongest defence is truth, also called justification. The reason is simple: the law protects reputation, but it does not protect a reputation which is undeserved in respect of the imputation complained of. Therefore, if the defendant proves that the defamatory imputation is substantially true, the plaintiff cannot succeed.

Furthermore, the defendant need not prove perfect verbal accuracy in every detail. What the law requires is substantial truth. This is well illustrated by Alexander v. North Eastern Railway Co. In that case, the plaintiff had been convicted for travelling without a proper ticket and was in fact sentenced to pay a fine, with fourteen days’ imprisonment in default. The defendants published a notice stating, in substance, that he had been sentenced to a fine or imprisonment in the alternative, though the term of imprisonment mentioned in the notice was not exactly the same as in the actual sentence. The court held that the defendants were not liable, because the publication was substantially accurate in substance. The slight inaccuracy in the length of imprisonment did not alter the real sting of the imputation, namely that the plaintiff had been convicted and punished for travelling without a proper ticket.

2. Fair Comment

The second important defence is fair comment. This defence is based on the principle that in a free society, matters affecting the public should remain open to discussion, criticism, and comment. The law of defamation protects reputation, but it does not intend to silence honest opinion on subjects in which the public has a legitimate interest. That is why fair comment on a matter of public interest is a good defence to an action for defamation.

Essentials of Fair Comment

For this defence to succeed, three requirements are ordinarily emphasized:

1. it must be a comment
2. it must be fair; and
3. it must be a matter of public interest.

It must be a comment

The first requirement is that the statement complained of must really be a comment, that is, an expression of opinion, criticism, inference, deduction, or judgment. It must not be a false statement of fact disguised as a comment. This is a very important distinction. If the defendant merely says, “In my opinion this public officer acted irresponsibly,” that may be a comment. But if he says, “This officer took a bribe,” that is a statement of fact, and unless it is proved true, it cannot be protected merely by calling it opinion. The defence of fair comment protects opinion on facts, not invented facts themselves.

It must be fair

The second requirement is that the comment must be fair. Fairness here does not mean that the comment must be polite, mild, or generous. The law allows strong, severe, and even exaggerated criticism. What it requires is that the comment must be honest, based on facts, and made without malice in the legal sense. If the comment is a genuine opinion that a fair-minded person could honestly hold on the proved facts, it may be protected even if it is harsh. But if the so-called comment is merely a mask for personal spite, or is based on facts that are false, or is made dishonestly, it ceases to be a fair comment.

It must be on a matter of public interest

The third requirement is that the comment must relate to a matter of public interest. This is the foundation of the defence. The law grants this protection because public discussion on such matters is socially valuable. Matters of public interest include the conduct of public officials, administration of public institutions, legislative and judicial functioning, public performances, books, newspapers, art, sports, and other subjects in which the public has a legitimate concern. If the matter is purely private and has no public significance, the defence of fair comment is not ordinarily available.

3. Privilege

The defence of privilege is based on public policy. The law recognizes that on certain occasions a person must be allowed to speak or write freely, even at the risk of harming another’s reputation, because the social importance of that occasion is considered greater than the private interest in reputation.

Privilege is of two kinds:

1. Absolute privilege
2. Qualified privilege

A. Absolute Privilege

Absolute privilege gives complete immunity from civil liability for defamation. If the occasion is absolutely privileged, the defendant is protected even if the statement is false and even if it was made maliciously. The law grants this complete protection because certain public functions cannot be performed fearlessly if participants are constantly exposed to defamation suits.

Indian authority has grouped the main occasions of absolute privilege under parliamentary proceedings, judicial proceedings, and State communications.

(i) Parliamentary proceedings

Statements made in the course of parliamentary proceedings are treated as absolutely privileged. The reason is that members of the legislature must be free to speak in discharge of their legislative duties without fear of civil actions. This is one of the classic heads of absolute privilege expressly noted in Indian decisions summarizing the law of defamation.

(ii) Judicial proceedings

Statements made in the course of judicial proceedings are also absolutely privileged, provided they are made in the course of and with reference to those proceedings. This protection covers judges, parties, advocates, and witnesses speaking or writing in the due administration of justice.

(iii) State communications

State communications means communications between officers of State in relation to affairs of State. The policy here is that high governmental communication on State matters must be protected in order to ensure proper discharge of public functions.

B. Qualified Privilege

It protects a person who makes a statement in the performance of a duty, protection of an interest, or on an occasion where communication is legally or socially justified.

It is called qualified because the protection is not absolute. The defendant gets protection only when the statement was made honestly and without malice.

Conditions for Qualified Privilege

For this defence to apply, two conditions must be satisfied:

1. Statement Must Be Made on a Privileged Occasion

A privileged occasion means a situation where the person making the statement has a duty or interest to communicate it, and the person receiving it has a corresponding interest or duty to receive it.

Examples:

• Employer giving character report of an employee
• Complaint made to a lawful authority
• Communication between officers in official duty
• Parent warning school authority about misconduct
• etc.

2. Statement Must Be Made Without Malice

Even if the occasion is privileged, the defence will fail if the plaintiff proves malice.

Here, malice means that the defendant did not act honestly for the purpose of the privilege, but used the occasion to harm the plaintiff out of spite, ill-will, or some improper motive.

For example, if an employer gives a false negative report about an ex-employee only to ruin his future career, qualified privilege will not protect him.

 

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