By:-Tanvi Chopra
Introduction
The term defamation is the act of causing injury or harm to the reputation of a person. If a person’s reputation in society is harmed, it is said that the person has been defamed. A person can cause defamation either orally or by writing. If a person has been called something which is not related to their personality and that causes other people to think ill of that person, it would be called defamation. On the other hand, even if someone writes something wrong about a person and circulates it among different people, it would still be defamation. There is no bar that defamation always has to be spoken, it can be both spoken or written. A man has the inherent right to protect his reputation which is a very valuable property and this right has been recognized under law as a right in rem, which means a right against all persons in the world.
Types of Defamation
Professor Winfield defined defamation as— Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or which tends to make them shun or avoid that person.
There are majorly two types of defamation- Libel and Slander.
- Libel —
Libel is usually the form of defamation which is in some permanent form. It includes written words, paintings, text, etc. For example, if someone has painted a picture of some and wrote an abusive word about him, it would fall under libel.
- Slander —
Slander is generally the form of defamation which is in a transitory form, i.e., not permanent. It includes spoken words and gestures. For example, calling a person using some abusive word in front of some people who now avoid that person would fall under the category of slander defamation.
In DP Chaudhary v. Kumari Manjulata[1], a girl had gone to attend her night class but it was published in a local daily that he had ran away with a boy. She was ridiculed by other people after they read this news. The courts held that this was defamatory and she was granted damages for the same. This was a case of libel defamation.
In the case of MC Manus v. Beckham[2], the defendant was visiting a memorabilia shop where she saw autographed photos of her husband for sale. She thought they were forged so warned other customers not to buy them. Her words were reported in the press and, as a result, the business went insolvent. The defendant was held to be liable for her statement and the repeated words in the press because the claimant suffered a measurable economic loss and it was foreseeable that her words would be published (due to her status) and therefore damage is likely to occur.
Essential Ingredients of Defamation
There are certain essential ingredients or elements of defamation which need to be present for any act or statement to be called defamation.
These ingredients are:
- The statement should be a defamatory statement—
It means that a general statement cannot constitute defamation, the statement which is complained about has to be defamatory in nature and should be harming the reputation of the person. A defamatory statement is a statement that would make an ordinary person think less of a person, avoid or shun the person or consider the person as a figure to be ridiculed.
In Berkoff v Burchill (1996)[3], the journalist Julie Burchill described actor Steven Berkoff as ‘hideous-looking and compared him to Frankenstein’s monster. The court, in this case, said that these remarks are usually not defamer but since the claimant was earning his living as an actor, it became defamatory for him.
- The statement should be false—
The statement made should also be false causing the reputation of the person to be affected. If the statement is true, it acts as a defence against defamation.
- The statement should be referred to the claimant—
The defamatory statement which is made should be referred to the claimant and not to any other person. This tort involves hampering a reputation of a person which would take place only if the statement is referred to that particular person only.
It was held by the hon’ble court in the case of Harsh Mendiratta v. Maharaj Singh[4], that a suit for defamation can be brought only by the plaintiff and not by his friends or relatives.
- The statement should be published—
Published here means that a third person other than the claimant ad defendant should be aware of the statement made. If the statement is only known to the claimant, then it can’t be defamation since it has not been published.
Defences of Defamation
There are the following defences available against defamation:
- Plea of truth—
Truth is a total defence in the sense that it rebuts the presumption that what the defendant said was false, and its falsity is an essential part of the plaintiff’s case. In the case of Radheshyam Tiwari v. Eknath[5], The defendant, who was the editor, printer and publisher of a newspaper published a series of articles against the plaintiff, a block development officer, alleging that the plaintiff had issued false certificates, accepted bribes and adopted corrupt and illegal means in various matters. It was held that in an action for defamation, the defendant could not prove that the facts published by him were true and therefore he was held liable.
- Fair comment —
The right of fair comment on a matter of public interest is a right which is the duty of courts carefully to guard and literally to interpret.
The defence of fair comment involves that:
- It must be a comment
- The comment must be fair and bonafide
- The subject or matter of comment must be one of public interest.
In the case of Gregory v. Duke of Brunswick[6] the plaintiff who was an actor appeared on the stage of a theatre but the defendants and the other persons actuated by malice, hissed and hooted at the plaintiff and thereby caused him to lose his engagement. It was held that hissing and hooting were held to be actionable and that was not a fair comment backed by malice on the plaintiff’s performance.
- Privilege –
A privilege is when the law recognizes that freedom of speech and expression of some people outweighs the reputation of the plaintiff.
There are two types of privileges:
- Absolute: Here, the occasion itself is privileged and the person gets absolute exemption from the liability. Parliamentary privileges and judicial communications are included in this.
- Qualified privilege: the occasion here is not privileged until the defendant proves it to be. The defendant has to prove that the statement was made without any ill intention.
- Consent—
Consent means the consent of the plaintiff. If the plaintiff has consented to the statement being made, then that statement cannot be called defamatory. If the consent is taken fraudulently, then would be considered invalid. It is on the basic idea that a defamatory statement affects the reputation of a person and no person would consent to that. So, if a person is consenting to a statement, that statement cannot be called defamatory.
Defamation as a Crime
Defamation is not only a tort but also an offence as mentioned in the Indian Penal Code, 1860. Section 499 of the IPC defines definition. In tort, only damages are provided to the plaintiff who has suffered an injury to his reputation whereas in criminal defamation, punishments are given to the defendant. Tort law is a major sphere pf civil law and defamation as a tort is a part of civil law but defamation as defined in IPC is a criminal offense. The punishment for defamation is prescribed in section 500 of IPC which provides that a person may be punished for a term not exceeding two years or with fine, or both.
Conclusion
It is a tort that basically damages the reputation of a person. Reputation is a very valuable property of a person as it takes years for a person to build his reputation in the society for which he is proud and is respected by others. So, if a statement has been passed or published against him, it makes other people think ill of him and some people then try to avoid that person depending on the type of statement that is published.
In the author’s opinion, the damages should be provided to the plaintiff as soon as possible as the plaintiff goes through a lot of damage in a suit for defamation. They are socially affected and sometimes, even financial losses can occur to people because of defamatory statements based on their profession or their means of living.
Author Tanvi Chopra is a second-year law student from Bennett University, Greater Noida. She believes that such socio-legal issues should be handled with utmost care and caution as they are very delicate matters.
[1] Gregory v. Duke of Brunswick (1843) 6 M&G 205.
[2]Radheshyam Tiwari v. Eknath AIR 1985 BOM 285.
[3] Berkoff v Burchill (1996) [1996] 4 All ER 1008.
[4] Harsh Mendiratta v. Maharaj Singh AIR 1958 Pat 445.
[5] DP Chaudhary v. Kumari Manjulata AIR 1997 Raj 170.
[6] MC Manus v. Beckham (2002) 4 AII ER 497.
