Defamation under the Law of Torts

The article 'Defamation under the Law of Torts' by Vanshika Malhotra represents a researched work about the meaning of defamation, various case laws, and its essentials. Defamation is the act of making a false statement and disseminating it, whether orally or in writing. It typically results in a civil or criminal offence. Indian Penal Code codifies defamation as a criminal offence, while defamation as a civil offence is not codified and is governed by tort law in India.

I. Introduction

Defamation is the publication of a statement which tends to lower a person in the estimation of a reasonable and prudent member of society generally; or which tends to make them Shun or avoid that person. As per Black's Law Dictionary, defamation means the offence of injuring a person's character, fame, or reputation by false and malicious statements. Thus, in simple words, defamation can be defined as the act of injuring the reputation of a person by the publication of false statements, without any lawful justification, with the aim of bringing the person into disrepute.

It is not only the injury to the person alone but to each and every person who is so closely related to the person that the injury suffered by them has a direct bearing on the reputation of the man who alleges to have suffered an injury. It is important to note that a person can bring a suit of defamation against the writer or the publisher either as a criminal proceeding or civil action for damages in torts for the suffered injury. Generally, defamation requires the publication to be made without the consent of the injured person. The published matter(s) are to be interpreted as per the common usage and the context in which the matter is published.

As stated in the case of Dixon v. Holden[1],

"A man's reputation is his property and, if possible, more valuable than other property".

If we try to break the statement, it simply implies that for a man, his reputation is the most important thing and if reputation is lost, he loses everything. A man loses the strength to face society and becomes the subject of social ridicule.

A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers, which tends, that so says, to lower him in the estimation of right thinking member of society generally and in particular to cause him to be regarded with a feeling of hatred contempt ridicule fear, dislike or disesteem reputation is that what people think about us, not our own opinion and view we think about our self because every person considers himself best personality constituting good qualities even not having single negativity.[2] So, defamation is a statement which has a tendency to lower our position in the estimation of right-thinking members of society.

II. Libel and Slander

English law has divided the action for defamation into two categories:

1. Libel, &
2. Slander.

A libel is the publication of a false and defamatory matter, by a third person, in a permanent format without any lawful justification for example writing, printing, effigy etc. For e.g., X printed some advertisement saying Y is bankrupt but Y was not thus it was representation in a specific form. A slander, on the other hand, is the publication of a false and defamatory matter, by a third person, in a transient format without any legal justification, for example, spoken words or gestures. For e.g., A questions the chastity of B in an interview, and A is slanderous. The recoverable damages in libel and slander are different. Lawsuits involving libel undertake redress for all kinds of injuries called general damages if they involve loss of reputation and called special damages if they involve specific economic loss. In a lawsuit of slander, one can only recover special damages. However, not all jurisdictions make such a distinction.

In Youssoupoff v. MGM Pictures Ltd.[3], the plaintiff (herself a Princess) complained that she could be identified with the character Princess Natasha in the film 'Rasputin, the Mad Monk'. On the basis that the film suggested that, by reason of her identification with 'Princess Natasha', she had been seduced by Rasputin. The defendant contended that if the film indicated any relations between Rasputin and 'Natasha' it indicated a rape of Natasha and not a seduction. It was held that in a cinema film, not only the photographic part of it is considered to be libel but also the speech which synchronizes with it also. Defamation could include words which cause a person to be shunned or avoided: 'not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on [the plaintiff's] part, but also if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on [the plaintiff's] part. Thus, she was awarded damages.

III. Essentials of Defamation

There are three main essentials of Defamation viz.,

1. The Statement must be made/published

A statement can be made by words either spoken or intended to be read, or by signs or visible representations. For example, A is asked who stole B's diamond ring. A pointed towards C, intending to cause everybody to believe that C stole the diamond ring. This is defamation. 

The standard to be applied is that of a reasonable citizen. A man of fair average intelligence, and not that of a special class of persons whose values are not shared or approved by the fair-minded members of the society generally. This aspect also contains the innuendo which means that sometimes the statement may be prima facie innocent but, because of some latent or secondary meaning, may be considered to be defamatory.

When the natural and ordinary meaning is not defamatory but the plaintiff wants to bring an action of defamation, he must prove the latent or secondary meaning i.e., innuendo which makes the statement defamatory. for e.g., the statement that a lady has given birth to a child is defamatory when the lady is unmarried.

In D.P. Choudhary v. Kumari Manjulata [4], i.e., the plaintiff and the respondent, Manjulata about 17 years of age belonged to a distinguished family and studied B.A. There was a publication of a news item in a local daily Dainik Navjyoti, that last night she ran away with a boy named Kamlesh, but she had gone to attend night classes. The news item was untrue and negligently published with utter irresponsibility. She was shocked and ridiculed by others. It was held that the action was defamatory and she was entitled to the damages of Rs 10,000/- by way of general damages.

In Ramdhara v. Phulwatibai [5], it has been held that the imputation by the defendant that the plaintiff, a widow of a 45-year age, is a keep of the maternal uncle of the plaintiff's daughter-in-law, is not a mere vulgar abuse but a definite imputation upon her chastity and thus constitutes defamation.

In South Indian Railway Co. v. Ramakrishna [6], A ticket checker of the railway asking for identity proof and other documents as a part of his duty is no defamation, as he has not published any defamatory statement.

In the case of Morrison v. Ritchie & Co. [7], where damages were recovered against the proprietors of a newspaper who in all innocence had announced in the paper that a lady, who had in fact been married only a month, had given birth to twins.

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. The defamatory statement must refer to the person, class of persons or the trustees of a company. The reference may be expressed or implied. It is not necessary that the plaintiff has to be mentioned by name if he can still be recognized. The person referred to in the defamatory statement can be living or dead. However, a defamation suit on behalf of a dead person can be filed only if the person filing the suit has an interest.

In Newstead v. London Express Newspapers Ltd.[8], The defendants published an article stating that 'Harold Newstead, a Camberwell man' had been convicted of bigamy. The story was true of Harold Newstead, a Camberwell barman. The action for defamation was brought by another, Harold Newstead, the barber. As the words were considered to be understood as referring to the plaintiff, the defendants were liable.

The Delhi HC in Harsh Mendiratta v. Maharaj Singh [9], said that an action for defamation was maintainable only by the person who was defamed and not by his friends or relatives.

In Jones v. Holton & Co. [10], it was observed that if libel speaks of a person by description without mentioning the name, in order to establish a right of action, the plaintiff must prove to the satisfaction of the jury that ordinary readers of the paper, who knew him, would have understood that it referred to him.

3. The Statement must be defamatory

Defamation starts with someone making a statement, and any person who makes a defamatory statement can be held liable for defamation. A defamatory statement tends to diminish the good opinion that others hold about the person and it has the tendency to make others look at him with a feeling of hatred, ridicule, fear or dislike. Abusive language may also be defamatory, for example, calling a man hypocrite or a habitual drunkard. A few illustrations to understand what is defamatory and what is not. To say a motorist drives negligently is defamatory. To criticize goods is not defamation. To say that a baker's bread is always unwholesome is defamatory. To state that a person has not that degree of skill which he holds himself as possessing is defamatory.

4. The Intention of the wrongdoer

The person making the defamatory statement knows that there are high chances of other people believing the statement to be true and it will result in causing injury to the reputation of the person defamed.

5. The Statement should be false

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, even if it is ugly.

6. The Statement should not be privileged

In some cases, the statements may be privileged i.e. the person who has made the statement is protected from such liability.

7. Defamation must be Published

Publication means making the defamatory matter known to some person other than the person defamed and unless that is done, no civil action for defamation lies. When two or more persons agree together to write or utter defamatory words of another, and one of them writes or utters the words in the presence of others, who have so agreed, all of them may be sued as a joint tortfeasor provided the defamatory matter has been published to persons other than those who were acting together or the plaintiff.

In the case of Mahender Ram v. Harnandan Prasad [11], it was said when a defamatory letter is written in Urdu to the plaintiff and he doesn't know Urdu, he asks a third person to read it, it is not defamation unless it was proved that at the time of writing letter defendant knew that Urdu was not known to the plaintiff.

In Gorantla Venkateshwarlu v. B. Demudu [12], the respondent was a bank officer and was sent on deputation to work as the Managing Director of the Cooperative society. The appellant, the President of the 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 claiming damages of Rs. 20,000. The court held that the allegations were per se defamatory and the appellant was liable to pay damages. However, the court considered the fact that the allegations were made known only to staff and the Bank and there was no wide publicity, so the appellant was liable to pay Rs. 5000 as damages.

8. The Third-party believes the defamatory matter to be true

The other people of the society believe that the defamatory matter said about the plaintiff is true.

9. The Statement must cause injury

The statement made should harm or injure the plaintiff in some way. For example, the plaintiff lost his job because of the statement made.

IV. Defences for the action of Defamation

1. Justification or truth: Under criminal law, merely proving that the statement was true is no defence but in civil law merely showing truth is a good defence.

In Alexander v. N.E. Rly [13], the plaintiff had been convicted of riding a train from Leeds without having purchased a valid ticket. The penalty was a fine and a period of imprisonment of fourteen days if he defaulted on the fine. However, following the conviction, the defendant published a notice that the plaintiff was convicted and issued a fine or three weeks imprisonment in case of default.

The plaintiff alleged that the defendant had committed libel by describing the penalty issued to him inaccurately. The defendants argued that the conviction was described with substantial and sufficient accuracy and the words so far as they differed in their literal meaning from the words of the conviction were not libellous. Judgment was given in favour of the defendants. The gist of the libel was that the plaintiff was sentenced to pay a sum of money and, in default of payment, to be imprisoned. Blackburn J noted that the substance of the libel was true but the question was whether what was stated inaccurately was the gist of the libel.

In Radheshyam Tiwari v. Eknath [14], the defendant was unable to prove the facts published by him and therefore was held liable for defamation.

2. Fair Comment: The Comment must be an expression of opinion rather than an assertion of facts. The comment must be fair i.e., without malice. The matter commented upon must be of public interest. Nothing is defamatory which is a fair comment in a matter of public interest. The defendant can avail of this defence when he has merely made a fair comment in a matter of public interest.

This defence is based on public policy which gives every person the right to comment and criticize without any malicious intention the work or activities of public offices, actors, authors and athletes as well as those whose career is based on public attention. Any fair and honest opinion on a matter of public interest is also protected even though it is not true. There is no definition of a matter of public interest. Generally, a matter of public interest can is a subject which invites public attention or is open to public discussion or criticism.

3. Privilege: There are certain occasions when the law recognizes the right to freedom of speech outweighs the plaintiff's right to reputation, the law treats those occasions as 'Privileged'. It is further of two types:

i. Absolute privilege- No action lies for the defamatory statement even though the statement is false or made maliciously. It applies to parliamentary privilege, judicial proceedings and state communication.

For example, X is a member of Parliament and he gives a speech in the parliamentary proceedings which defames Y. Here X is protected by absolute privilege. In the case of T.J. Ponnen v. M..C. Verghese [15], the court held that a letter sent by a husband to his wife which contains defamatory about the father-in-law is not a case of defamation. It is a privileged communication between spouses as per Section 122 of the Indian Evidence Act, of 1872. In Chatterton v. Secretary of State for India,[1895] 2 Q. B. 189, it was held that the letters from the Secretary of State of India to his Parliamentary Under-Secretary providing the materials for the answer to a parliamentary question was absolutely privileged.

ii. Qualified privilege- It is necessary that the statement must have been without malice. The defendant has to prove that statement was made on a privileged occasionally fair.

4. Statement of Opinion: If the statement made is an opinion and not a statement of fact, then it cannot be defamatory. For example, if a person says that he finds an actor ugly, the statement is just an opinion. However, if he says that the actor is a drug addict or has had multiple affairs, then it will be a defamatory statement. If this statement results in the actor losing work or his job and the statement made are false, then there will be a case for defamation.

5. Consent: If the plaintiff consents to the statement made, then there is no defamation. The consent of the plaintiff gives absolute privilege to the publisher, it is immaterial whether the plaintiff knew that the information approved for publication was defamatory or not. Consent may be given by words or actions, including inaction. If the consent is obtained fraudulently or from a person of unsound mind then it will be invalid.

6. Censure passed in good faith by the person having lawful authority: It is not defamation of a person having over another authority either conferred by law or arising out of the lawful contract made with another to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. For instance, a judge censuring the conduct of a witness or a banker censuring the cashier of his bank or, an engineer submits a report to the municipality that the contractor had taken away the stock of metal. If the engineer has made the report in good faith, then he will not be liable for defamation.

V. Comparative Analysis: English Law and Indian Law Pertaining to Libel and Slander

English law

The Defamation Acts of 1952 and 1996 are the important statutes in England that lay down the law related to defamation. Under English law, there is a distinction between libel and slander. Two reasons have been accorded. Firstly, libel not slander is punishable under Criminal law. In fact, slander is no offence. Thus, libel is always actionable per se. Secondly; in most cases of slander "special damage" must be shown. As far as the law of torts is concerned, slander is actionable, only in exceptional cases on proof of special damage. There are four exceptional instances in which proof of special damage has to be proved:

• Imputation of a criminal offence to the plaintiff.
• Imputation of a contagious (disease) or infectious disease to the plaintiff (which has the effect of preventing others from associating with the plaintiff).
• The imputation that a person is incompetent, dishonest or unfit in regard to the office, profession, calling or trade or business carried on by him.
• Imputation of unchastity or adultery to any woman or girl is also actionable per se. This exception was created by the Slander of Women Act, 1891.

Thus, in England slander is only a civil wrong. However, it is to be noted that civil action is more onerous than a criminal action.

Indian Law

In India, there is no such distinction between libel and slander. Both libel and slander are a criminal offence. For better understanding, it can be divided into two categories:

i. Criminal Law- Defamation as a Crime

The IPC under chapter XXI sections 499-502 protects an individual's / person's reputation. Defamation against the state is contained in section 124A [Sedition], Section 153 of the Code provides for defamation of a class i.e., community [Riot], while section 295A deals with hate speech with regards to outraging religious sentiments [Hate Speech].

Section 499 of the IPC defines 'defamation' as being committed:

i. Through words (spoken or intended to be read), signs, or visible representations;

ii. Which are a published or spoken imputation concerning any person;

iii. If the imputation is spoken or published with the intention of causing harm to the reputation of the person to whom it pertains, or knowledge or reason to believe that the imputation will harm the reputation of the person to whom it pertains will be harmed. This broad definition is subject to four explanations and ten exceptions.

If a person is found guilty of having committed defamation in terms of section 499 of the IPC, the punishment is stipulated in section 500, simple imprisonment for up to two years or a fine or both. The CrPC, which lays down the procedural aspects of the law, states that the offence is non-cognizable and bailable. Those who are accused of the offence would generally not be taken into custody without a warrant, and as such, an aggrieved person would not be able to simply file a police complaint but would, in most cases, have to file a complaint before a magistrate.

As far as the 'truth defence' is concerned, although 'truth' is generally considered to be a defence to defamation as a civil offence, under criminal law, the only truth is a defence to defamation as a crime (assuming, of course, that it is demonstrably true) only in a limited number of circumstances. This can make persons particularly vulnerable to being held guilty of having committed defamation under the IPC even if the imputations they made were truthful.

ii. Civil Law- Defamation as a Tort

As far as defamation under tort law is concerned, as a general rule, the focus is on libel (i.e., written defamation) and not on slander (i.e., spoken defamation). In order to establish that a statement is libellous, it must be proved that it is false, written, defamatory, and published. An interesting aspect of defamation as a tort is that it is only wrong if the defamation is of a nature which harms the reputation of a person who is alive.

In most cases, this translates to saying that it is not a tort to defame a deceased person since, as a general rule, the plaintiff needs to be able to prove that the defamatory words referred to him. However, this does not mean that there can be no cause of action if a dead person is defamed.

For example, if a defamatory statement negatively impacts the reputation of a deceased person's heir, an action for defamation would be maintainable. Further, if an action for defamation is instituted, and defamation is found to have been committed, damages will be payable to the plaintiff (usually, the person defamed). In addition to this, a person apprehensive of being defamed in a publication may seek the grant of an injunction to restrain such publication.[16]

However, prepublication injunctions are rarely granted as Indian courts have tended to follow the principle laid down in the 1891 case of Bonnard v. Perryman [17], which is as follows:

"The Court has jurisdiction to restrain by injunction, and even by an interlocutory injunction, the publication of a libel. But the exercise of the jurisdiction is discretionary, and an interlocutory injunction ought not to be granted except in the clearest cases—in cases in which, if a jury did not find the matter complained of to be libellous, the Court would set aside the verdict as unreasonable. An interlocutory injunction ought not to be granted when the Defendant swears that he will be able to justify the libel, and the Court is not satisfied that he may not be able to do so."

This principle has been followed by a division bench of the Delhi High Court in the 2002 case of Khushwant Singh v. Maneka Gandhi [18]. As such, even if there is an apprehension that content may be of a defamatory nature, it is likely that publication would not be restrained except in exceptional cases presumably, those cases where the later payment of damages would clearly not suffice to set right the wrong done to the person defamed. In nonexceptional circumstances, Indian courts have shown a tendency to support free speech, and have not displayed a tendency to grant injunctions which would have the effect of muzzling speech on the ground of possible defamation.

It is significant to mention that a defamation bill was proposed by the Rajiv Gandhi government to deal with the law pertaining to defamation. However, Defamation Bill, 1988 received widespread criticism from the media and opposition parties due to its draconian provisions; as a result, it was withdrawn.

VI. Conclusion

Reputation is those valuable assets a man earns during his whole life journey from birth to death, so no one has any authority to speak wrong about someone. Defamation is a harmful and injurious tool that can be used by any person, which may be proved injurious to the whole society. Hence, decriminalization of it proves an obstacle in the progress of society as well as for the country. Supreme Court in Subramanyam Swami v. Union of India [19], upheld the constitutional validity of section 499. The right to keep one's reputation is our fundamental right, and for that purpose, penal provisions are also enacted by our legislature.

The act of hurting someone's reputation by making a false statement to a third party is known as defamation. It violates the interests of reputation. The prohibition against defamation is meant to safeguard people's dignity against malicious assault. Its main practical effects are to restrain free speech and protect powerful people from public scrutiny. The prohibition against defamation protects people's reputations. How to balance this objective with the competing needs of freedom of expression is the main obstacle. As both of these interests are highly valued in contemporary culture, the former is arguably the most valuable quality of civilised people. At the same time, the latter is the very foundation of a democratic society.

According to defamation law, those who make false or malicious statements can be sued by individuals. The primary goal of rights balancing should be to allow people to practise their freedom of speech and expression without endangering their reputation in the eyes of the public. This law, in my opinion, also has some significant disadvantages. Defamation cases are typically treated as "luxury litigation" in nations like India and rarely result in a resolution.

References

[1] (1869) 7 Eq. 488

[2] ibid

[3] (1934) 50 TLR 581

[4]  AIR 1997 Raj 170

[5] 1970 CriLJ 286

[6] (1890) ILR 13 MAD 34

[7] (1902) 4 Fraser 645

[8] (1940)1 KB 377

[9] 95 (2002) DLT 78

[10] (1909) 2 KB 444

[11]  AIR 1958 Pat 445

[12] AIR 2003 AP 251, 2003 (2) ALD 649

[13] (1865) 6 B&S 340

[14]  AIR 1985 Bom 285

[15] 1970 AIR 1876, 1969 SCR (2) 692

[16] Shivi, Defamation Laws and Judicial Intervention: A Critical Study, Available Here

[17] (1891) 2 CH 269.

[18] AIR 2002 Delhi 58.

[19]  Writ Petition (Criminal) No. 184 of 2014

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