DEFAMATION UNDER LAW OF TORTS

MEANING & DEFINITION

Defamation refers to injuring a person’s reputation through false statements. It involves publishing defamatory content about someone that tends to lower them in the estimation of right-thinking members of society. The law of defamation aims to protect reputation while balancing freedom of expression. Defamation can occur through spoken words (slander) or written/published content (libel).

Types of Defamation

Defamation is classified into two main types:

Libel: This refers to defamation in a permanent form like writing printing pictures or statues. A defamatory statement in a newspaper article or book would constitute libel.

Slander: This involves defamation in a transient form like spoken words or gestures. Verbally calling someone a thief in public would amount to slander.

The key distinction is that libel is actionable per se while slander generally requires proof of special damages except in certain cases. However Indian law does not make this distinction for civil liability.

ESSENTIALS

For a statement to constitute defamation the following elements must be present:

  1. The statement must be defamatory
  2. It must refer to the plaintiff
  3. It must be published

Let’s examine each of these in detail:

The Statement Must Be Defamatory

A defamatory statement is one which tends to lower a person in the estimation of right-thinking members of society or causes them to be shunned or avoided. It must injure reputation and not merely hurt feelings. Whether a statement is defamatory depends on how reasonable members of society are likely to interpret it.

Some key points regarding defamatory statements:

  • The standard applied is that of fair-minded citizens with average intelligence not any special class.
  • If the likely effect is injury to reputation it is defamatory even if not intended as such.
  • Mere vulgar abuse or insults are generally not considered defamatory unless they cause ridicule or humiliation.
  • Even statements of praise may be defamatory depending on the context and innuendo.

The Innuendo

Sometimes a statement may be prima facie innocent but have a latent defamatory meaning known as innuendo. The plaintiff must prove this secondary meaning to establish defamation. For example stating an unmarried woman has given birth could be defamatory due to the innuendo.

The Statement Must Refer to the Plaintiff

The plaintiff must prove the defamatory statement referred to them specifically. It is immaterial if the defendant did not intend to defame that particular person. If reasonable people could infer the statement was about the plaintiff that is sufficient.

Key points on reference to plaintiff:

  • Referring to a group/class: No individual member can sue unless it can reasonably be considered to refer to them specifically.
  • Defamation of deceased persons: This is generally not actionable in tort law though it may be under criminal law.
  • Defamation of companies: A company can sue for defamation that harms its business reputation.

The Statement Must Be Published

Publication means communicating the defamatory matter to someone other than the person defamed. Mere communication to the plaintiff is not enough as defamation relates to injury to reputation in others’ estimation.

Key points on publication:

  • Even dictating to one’s typist amounts to publication.
  • Sending a defamatory letter only to the plaintiff is not publication.
  • If a third party wrongfully reads a private letter it is not publication by the writer.
  • Publication to spouse: Communication between spouses is generally not considered publication.

DEFENCES TO DEFAMATION

The main defences available in a defamation action are:

  1. Justification or Truth
  2. Fair Comment
  3. Privilege (Absolute and Qualified)

Justification or Truth

Truth is a complete defence to civil defamation. The defendant must prove the statement was substantially true. Even if published maliciously truth remains a valid defence. The rationale is that law will not allow damages for injury to a reputation one does not deserve.

Key points on the defence of truth:

  • Under criminal law truth alone is not sufficient – it must also be for public good.
  • If the statement is substantially true minor inaccuracies will not defeat the defence.
  • The defendant bears the burden of proving truth.

Fair Comment

Fair comment on matters of public interest is a defence to defamation. The essentials are:

  • It must be a comment/opinion not assertion of fact
  • The comment must be fair
  • It must be on a matter of public interest

Key points on fair comment:

  • The facts commented on must be true or privileged.
  • It is the honesty of the commentator’s opinion that matters not the court’s view on fairness.
  • Malice destroys this defence.
  • Public interest includes government administration public institutions courts etc.

Privilege

The law recognizes certain occasions as privileged where freedom of speech outweighs reputation rights. Privilege is of two types:

Absolute Privilege: Provides complete immunity from defamation liability even if false or malicious. Applies to:

  • Parliamentary proceedings
  • Judicial proceedings
  • State communications

Qualified Privilege: Provides conditional immunity defeated by proof of malice. Applies when there is:

  • A duty to make the statement
  • An interest in receiving it
  • Fair and accurate reporting of public proceedings

LEGAL PROVISIONS AND PROCEDURE

The law of defamation in India is governed by both civil and criminal laws:

Civil Law: Defamation is a tort actionable under common law principles. The plaintiff can file a civil suit claiming damages.

Criminal Law: Section 499 of the Indian Penal Code 1860 defines criminal defamation. Section 500 prescribes punishment of up to 2 years imprisonment and fine.

Key legal provisions:

  • Section 499 IPC: Defines criminal defamation and provides exceptions
  • Section 500 IPC: Prescribes punishment for defamation
  • Section 199 CrPC: Procedure for prosecution of defamation

The plaintiff in a civil defamation suit must prove:

  1. The statement was defamatory
  2. It referred to the plaintiff
  3. It was published

The defendant can then raise defences like truth fair comment or privilege.

CASE LAWS AND PRECEDENTS

Some landmark cases on defamation law in India:

  1. Subramanian Swamy v. Union of India (2016): The Supreme Court upheld the constitutional validity of criminal defamation under Sections 499 and 500 IPC.
  2. Rajagopal v. State of Tamil Nadu (1994): Established guidelines balancing freedom of press and right to privacy in defamation cases.
  3. Khushwant Singh v. Maneka Gandhi (2002): Held that truth is a complete defence even if the publication was not for public good.
  4. P. Choudhary v. Manjulata (1997): Awarded damages for defamatory news item published negligently without verification.
  5. Radheshyam Tiwari v. Eknath (1985): Rejected defences of justification fair comment and qualified privilege for malicious publication.