Freedom Of Speech Is Not Freedom To Lie, Defame Or Incite Hatred And
Every man is entitled to reputation. Jurist Blackstone has added to this
proposition and indited that:
Every man is entitled to have his reputation
preserved inviolate. Defamation is injury to the reputation of a person. If a
person injuries the reputation of another, he does so at his own risk, as in the
case of interference with the property. Reputation is more valuable to
everyone than any other property. The word defamation is driven from Latin word
which means Spreading evil report about someone
Thus, Defamation is the act of damaging the good reputation of someone through
libel or slander.
Libel is representation made in some permanent form; it can be through
writing, printing, picture, effigy or statute.
Slander is the publication of a defamatory statement in a transient
form; it can be through spoken words or gestures.
Defamation is defined by Parke B. in Parmiter v. Coupland
as ‘A publication,
without justification or lawful excuse, which is calculated to injure the
reputation of another, by exposing him to hatred, contempt or ridicule.
The definition of defamation, so recommended by the Faulks Committee in
England in 1975 is:
Defamation shall consist of the publication to a third
party of matter which in all the circumstances would be likely to affect a
person adversely in the estimation of reasonable people generally.
As per Salmond, it can be defined as:
the wrong of defamation lies in the
publication of a false and defamatory statement about another person without
According to another thinker, Underhills, A statement becomes defamation if it
is made about another without just cause or excuse, whereby he suffers injury to
his reputation and not to his self-esteem.
Famous authors Blackburn and George defined Defamation as ‘the tort of
publishing a statement which tends to bring a person into hatred, contempt or
ridicule or to lower his reputation in the eyes of right thinking members of
Another definition of defamation can be traced in name of Winfield. He defines
the concept as Defamation is the publication of statement which tends to lower
a person in the estimation of right thinking members of society, generally, or
which tends to make them shun and avoid that person.
Defamation is Civil as well as Criminal wrong. On the part of its criminal wrong
it is dealt with the provisions mentioned in IPC under S.499 to 502. However,
defamation as a Civil Wrong is covered under Law of Torts. It is purely based on
precedential developments, i.e. through decisions pronounced by Courts. Rules
and principles of liability that are applied by our courts are mostly those
borrowed from common law.
Types Of Defamation
Defamation can be done in 2 ways i.e.; through speech and writing. The former is
described as SLANDER and the latter is LIBEL. Libel is representation made in
some permanent form; it can be through writing, printing, picture, effigy or
statute. Slander is the publication of a defamatory statement in a transient
form; it can be through spoken words or gestures.
The libelous statement must be in a printed form, e.g. writing, printing,
pictures, cartoons, statue, waxwork effigy etc. Lopes J., in Monson V. Tussauds
out that libels need not always be in writing. It may be conveyed in some other
permanent form as a statue, a caricature, chalk mark on a wall, sign or
Section 1 of Defamation Act, 1952 provides that broadcasting of words by means
of wireless telegraphy shall be treated as publication in permanent form. It can
also be seen that libel is addressed to the eye and slander is to ears. The
matter recorded on a gramophone disc is addressed to the ear and not to the eye,
but is at the same time a permanent form. According to Winfield, it is slander
but some other jurist claims it as libel.
There is distinction between the two concepts and it can be understood through
||Libel is defamation in some permanent form
e.g. a written or printed form
||Slander defamation in transient form e.g.
spoken words or gestures.
||At Common Law, a libel is a Criminal offence
as well as Civil wrong. Under Indian Law both libel and slander are
||At Common Law, a slander is a Civil Wrong
||A libel is by itself an infringement of a
right and no actual damage need to be proved in order to sustain an
action in the Court of Law.
||At Common Law, a slander is actionable only
when special damage can be proved to have been its natural consequences
or when in conveys certain imputation.
||A libel conduces to a breach of peace.
||A slander does not conduce to a breach of
peace. However, Indian legal Page 8 of 23 systems does not recognize
||The actual publisher of libel may be an
innocent person and therefore not liable.
||In every case of publication of slander, the
publisher acts consciously and voluntarily, and must necessarily guilty.
||Libel shows a greater deliberation and raises
a suggestion of malice.
||Slander may be uttering or words in the heat
of moments and under a sudden provocation.
In Hirabai Jehangir vs. Dinshaw Edulji
 and A.C. Narayana Sah vs. Kannamma
, the Bombay and Madras High Courts respectively held that when there was
imputation of unchastity to a woman by spoken words, the wrong was actionable
without proof of special damage. The Madhya Pradesh High Court has also
expressed the view that both libel and slander are actionable in civil courts
without proof of special damages.
Essentials Of Defamation
Defamation as a civil wrong requires certain essential conditions which are to
be fulfilled. They are:
- The statement must be defamatory.
- The particular statement must refer to the plaintiff.
- The statement must be published i.e., to say it must be communicated to
some person other than the plaintiff.
The Statement Must Be Defamatory
Defamatory statement is one which tends to injure the reputation of the
plaintiff. It is the publication of a statement which tends to lower a person in
the estimation of right thinking members of society. The statement could be made
in different ways; it can be oral, written, printed, statute or by some other
conduct. When the statement causes any one to be regarded with feelings of
hatred, contempt, fear, dislike then it is defamatory.
In case of Parvathi vs. Mannar
 it was held that mere hasty expression spoken
in anger or vulgar abuse to which no hearer would attribute any set purpose to
injure the character would not be actionable. Words which merely injure the
feelings or cause annoyance but which in no way reflect on character or
reputation or tend to cause one to be shunned or avoided are not libelous.
In Ram Jethmalani vs. Subramaniam Swamy
 examination of facts and
circumstances relating to assassination of Late Rajiv Gandhi was discussed. The
defendant passed certain unrelated statement towards the plaintiff, where they
are held to be ex facie defamatory. Actual malice on the part of defendant was
well established. And considering the points Delhi High Court awarded damages of
Rs. 5 Lacs.
A statement may be prima facie defamatory and that is so when its natural and
obvious meaning leads to that conclusion. Sometimes, the statement may prima
facie be innocent but because of some latent or secondary meaning, it may be
considered to be defamatory. When the natural and ordinary meaning in not
defamatory but the plaintiff wants to bring an action for defamation he must
prove the latent or the secondary meaning, i.e. the innuendo which makes the
Ex: Statement which mentions that A is like his father may be defamatory if it
is conveyed with the impression that he is a Cheat like his father.
The Statement Must Refer To The Plaintiff
In an action for defamation, the plaintiff has power to prove that the statement
of which he is complaining refers to him. 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 made referred to him then
the defendant is nevertheless liable.
In Newstead vs. London Express Newspapers Ltd
. the defendants published an
article stating that Harold Newstead, a Camberwell man had been convicted of
bigamy. The story was true. The action for defamation was brought by another
Harold Newstead, a Camberwell barber. As the words were considered to be
understood as referring to the plaintiff, the defendants were held liable.
Defamation Of A Class Of Persons
When the words refer to a group of individuals or a class of persons, no member
of that group or class can sue unless he can prove that the words could be
reasonably be considered to be referring to him. Thus, if a man wrote that all
lawyers were thieves, no particular lawyer could sue him unless there was
something to point to the particular individual.
In Dhirendra Nath Sen vs. Rajat Kanti Bhadra
 it has been mentioned that when
an editorial in a newspaper is defamatory of a spiritual head of a community, an
individual of that community does not have a right of action.
Defamation Of The Deceased:
Defaming a deceased person is no tort. Under
Criminal Law, it may amount to defamation to impute anything to a deceased
person if the imputation would harm the reputation of that person, if living and
is intended to be hurtful to the feelings of his family or other near
The Statement Must Be Published
Publication means making the defamatory matter known to some person other than
the person defamed. And unless this is done no civil action for defamation can
be said to be done. Dictating a letter to one's typist is amounting to
defamation. In Mahendra Ram vs. Harnandan Prasad
, it was mentioned that
sending the defamatory letter to the plaintiff in a language supposed to be
known to the plaintiff is no defamation. In Theaker vs. Richardson
 it was
written down that if a defamatory letter sent to the plaintiff is likely to be
read by somebody else, there is a publication.
When the libelous letter addressed to the plaintiff is, in the ordinary course
of business likely to be opened by the clerk or by his spouse there is
defamation when the clerk or the spouse opens and reads that letter.
Defences For Defamation
Following are the defences available in an action of civil liability in the case
- Truth or Justification: In case of a civil
action arising out for defamation, truth of the defamatory matter is a
complete defence. The defence is available even though the publication is
made maliciously. Under the Civil Law, merely proving of the fact that the
statement was true is generally a good defence. The reason for the defence
is that the law will not permit a man to recover damages in respect of an
injury to a character which he either does not or ought not to possess. 
And it is also noted that if the statement is substantially true but
incorrect with some minor particulars, the defence will still be available
- Fair Comment: Making of fair comment on any matters of public interests
is a defence to an action for defamation. For
this, following essentials are to be fulfilled:
- Comment: There must be comment i.e. to say that an expression of
opinion rather than assertion of fact. And it should be distinguished from
making a statement of facts.
- A fair comment: The comment must be fair. The comment cannot be
fair when it is based upon untrue facts. A comment that is based upon untrue
or invented facts is said not to be fair. It is also noted that, if the
facts are substantially true and justify the comments of the facts that are
true, then the defence of fair
comment can be taken even if some of the facts may not be proved. In case of R.K.
Karanjia vs. Thackersey it was mentioned that if in a newspaper, there is a
publication of a statement of facts making allegations of dishonesty and
corruption against the plaintiff and the defendants are unable to prove the
truth of these facts then the plea of the fair comment which is based upon those
untrue facts will also fail.
- The matter commented upon be of Public Interest: Public interest
matters are related to Administration of Govt. departments, public
companies, courts, public institutions, public meetings, pictures, etc.
- Privilege: Privilege means a person stands in such relations to
the fact of the case that he is justified in saying or writing what would be
slander or libel by anyone else. The general principle under laying the defence of privilege is the common convenience and welfare of
society or the general interest of society. Privileges can be absolute or
qualified. Absolute Privilege is the one where no action lies for defamatory
statement even though the statement is false or has been made maliciously. In
such cases, the public interest demands that an individual's right to reputation
should give way to freedom of speech. It is recognized in cases of
Parliamentary, Judicial proceedings and State Communications. Qualified
Privilege is the one when no action lies for it even though it is false and
defamatory, unless the plaintiff proves express malice. There are occasions and
circumstances when speaking ill of a person or uttering or writing words
defamatory is not regarded as defamatory in law and for the reason that public
interest demand it.
- Consent: Where the defendant has communicated or published
certain material with the consent of plaintiff or plaintiff himself has
invited the defendant to repeat the defamatory words, the defendant can
plead this defence of consent. If a person telephones a newspaper
with false information about himself, he would not be able to sue in defamation
when the newspaper publishes it.
Damages And Costs
Damages are of two kinds, general and special. General damages are such as the
law will presume to be the natural and probable consequences of the defendant's
words or conduct. They arise by inference of law and need not, therefore are
proved by evidence. Special damages, on the other hand, are such as the law will
not infer from the nature of the words themselves; they must, therefore, be
specially claimed on the pleadings and evidence of them must be given at the
In India, if words have been proved to be defamatory of the plaintiff,
general damages will always be presumed since all defamatory words are
actionable per se. Whether special damage has also been suffered, that will
remain a matter of proof, and if so proved, the plaintiff will be entitled to
recover on that score along with general damages.
The Court may come to the
conclusion that although the action was well founded, the damages claimed were
excessive or that it was extremely difficult for the plaintiff to have valued
his claim at a particular figure. The damages are to be determined and
quantified, depending upon various factors and circumstances.
Defamation as an offence is contained in IPC under Sec. 499 which describes
about what defamation is and about its exception and Sec. 500 contains the
punishment of the same.
Analyzing Sec.499, essentials concerning Defamation are:
- Making or publishing any imputation concerning any person.
- These imputation must be made by:
- Words which are either spoken or intended to be read, or
- Signs, or
- Visible representation.
- Imputation was made with intention of harming or with knowledge or
reason to believe that it will harm the reputation of the person concerning
to whom it is made.
Makes Or Publishes Any Imputation Concerning Any Person:
Every such person who
is engaged in composing, dictating, writing or in any way contributing to the
making of a libel will be regarded as the maker of the libel. Where the matter
is dictated by one person and written down by another person then both will be
held responsible for the offence. And similarly, if one person speaks, another
one writes and the third one approves it, then all the three shall be guilty of
For this offence publication of defamatory matter is essential i.e. it must be
communicated to some person other than the person to whom it concerns. Ex:
Dictating a letter to a clerk is publication.
In case of Thiagaraya vs.
 it was mentioned that defamatory matter, if written on a
postcard, or printed on a paper will constitute publication when it is
distributed or broadcasted. In the case of Raja Shah, a defamatory petition
presented to a superior public officer, if sent to a subordinate public officer
in due course of inquiry would constitute publication was held.
- The writer and the publisher are equally guilty. The publisher will not
be permitted to say that he did not write the imputation. But there are
certain communications which if made in the ordinary course of business do
not amount to publication because they are included in the category of
Hence a person exercising privilege may communicate matter to third person
in the ordinary course of business and he would escape penalty provided for
A solicitor or an advocate who dictates to his clerk a letter containing
defamatory statement regarding a person is not liable for defamation.
- A newspaper stands in matters of defamation in the same position as
members of the public in general. The publisher of the newspaper shall be
responsible for published defamatory matter whether he was aware of that or
not. But an editor's position is somewhat different. He can escape from his
liability by proving that defamatory matter was published in his absence and
without his knowledge and he had in good faith entrusted he temporary
management of the newspaper during his absence to a competent person.
Imputation Should Have Been Made By Words Which Are Either Spoken Or Intended To
Be Read, Or Signs, Or Visible Representation:
In India a person can be
defamed not only be writings he can also be defamed by spoken words. At this
point Indian law of defamation differs from English law of defamation. In
English law only writing, printing, engraving or some other process only can
constitute defamation. Spoken words never constitute defamation.
Intending To Harm Or Knowing Or Having Reason To Believe That Such Imputation
there must be an intention to harm the reputation of the complainant
or the knowledge that the imputation will harm the reputation of such person. It
is not necessary that actual harm should result.
Imputation of truth which public good requires to be made or
It is not defamation to impute anything which is true concerning any person, if
it be for the public good that the imputation should be made or published.
Whether or not it is for the public good is a question of fact.
A and B were two rival candidates to the Chairmanship. A objected to the
nomination of B on the ground that B was a drunkard. In a charge for defamation
A can plead that his statement was true and was made in good faith for public
good. Thus he can claim the defence under exception 1 to this section.
Public conduct of public servants.
It is not defamation to express in a good faith any opinion whatever respecting
the conduct of a public servant in the discharge of his public functions, or
respecting his character, so far as his character appears in that conduct.
In the case of Kartar Singh v. State
, It was observed that public men
should not be thin skinned with respect to comments made against them in
discharge of their official functions. So, this exception is always raised in
such kind of cases.
Conduct of any person touching any public question.
It is not defamation to express in good faith any opinion whatever respecting
the conduct of any person touching any public question, and respecting his
character, so far as his character appears in that conduct, and no further.
In case of U. Po Hugin, the Rangoon High Court has held that where the
editor of the newspaper not content with making a comment upon the happenings in
a municipal office observed that the respondents' conduct was inconsistent and topsy turvy, use of such expression was unjustified and he will be guilty under
the section 500 of IPC.
Publication of reports of proceedings of Courts.
It is not defamation to publish substantially true report of the proceedings of
a Court of Justice, or of the result of any such proceedings.
A correspondent of a newspaper made available material for publication to
the editor of a newspaper, including a complaint made by a complainant against a
person, the complainant in the aforesaid case, under sections 500 and 504 of the
Code along with the allegations contained therein. These were published in the
newspaper. On a complaint made by the complainant in the present case, it was
held that there was no liability for defamation since exception 4 is available
to the accused persons. The Court made it clear that this exception is also
applicable to complaints or pleadings made by the concerned parties to a dispute
besides being applicable to the judgments or order of the courts.
Merits of case decided in Court or conduct of witnesses and others
It is not defamation to express in good faith any opinion whatever respecting
the merits of any case, civil or criminal, which has been decided by a Court of
Justice, or respecting the conduct of any person as a partly, witness or agent,
in Page 21 of 23 any such case, or respecting the character of such person, as
far as his character appears in that conduct, and no further.
A journalist is supposed to discharge his duties fairly and if his comments
are fair no one will be permitted to complain.
Merits of public performance.
It is not defamation to express in good faith any opinion respecting the merits
of any performance which its author has submitted to the judgment of the public,
or respecting the character of the author so far as his character appears in
such performance, and no further. It basically deals with literary criticism of
public performance submitted to its judgment.
It covers criticism of book published on literature, art, painting, speeches
made in public, acting, singing, etc. the criticism must be fair and made in
Censure passed in good faith by person having lawful authority over
It is not defamation in a person having over another any authority, either
conferred by law or arising out of a lawful contract made with mat other, to
pass in good faith any censure on the conduct of that other in matters to which
such lawful authority relates.
Statements made by a person during public investigation merely expression
suspicion as to complicity of certain person in crime will not amount to
Accusation preferred in good faith to authorized person.
It is not defamation to prefer in good faith an accusation against any person to
any of those who have lawful authority over that person with respect to the
subject-matter of accusation.
Ex: A statement in FIR will fall under this exception only if there was good
faith of the person making the accusation.
Imputation made in good faith by person for protection of his or
It is not defamation to make an imputation on the character of another provided
that the imputation be made in good faith for the protection of the interests of
the person making it, or of any other person, or for the public good. It has
been held that the person alleging in good faith must establish the fact that
before making any allegations he had made an inquiry and necessary reasons and
facts given by him must indicate that he had acted with due care and attention
and that he was satisfied about the truth of the allegation
considerations must be kept in mind while establishing good faith and bonafide:
- The circumstances under which the letter was written or the words were
- Whether there was any malice;
- Whether the appellant made any inquiry before he made the allegations;
- Whether there are reasons to accept the version that he acted with care
and caution; and
- Whether there is preponderance of probability that the appellant acted
in good faith.
Where a notice was issued on behalf of a Hindu widow, charging the accused
with criminal breach of trust and the reply of the accused was that the widow
was living an immoral life, it was held that the exception applied.
Caution intended for good of person to whom conveyed or for public
It is not defamation to convey a caution, in good faith, to one person against
another, provided that such caution is intended for the good of the person to
whom it is conveyed, or of some person in whom that person is interested, or for
the public good. Chapter XXI, Section 500, 501, and 502 of the IPC deals with
the punishment for defamation.
describes Punishment for Defamation. The quantum of punishment
according to this section may extend to two years, whether with or without fine.
In Rekhbai vs. Dattatraya
, it was held that where an offence of defamation
is committed through a letter, the case can be tried either at the place where
the letter was written and posted or at the place where the letter was received
The law of defamation is very old and it seeks protect individual reputation.
Defamation is a gnarled issue; it is used and abused by some, and deeply
affecting professions and trades of others. Defamation law doesn't work well to
protect reputations. It prevents the dialogue and debate necessary to seek the
truth. More speech and more writing is the answer to the problem rather than
defamation law, which discourages speech and writing and suppresses even
information that probably wouldn't be found defamatory if it went to court.
most effective penalty for telling lies and untruths is loss of credibility.
Systems of communication should be set up so that people take responsibility for
their statements, have the opportunity to make corrections and apologies, and
lose credibility if they are repeatedly exposed as untrustworthy. Although
judicial precedent has tried to sort some questions out, there are fundamental
constitutional questions around the criminal offence and civil tort of
defamation that are as yet unresolved.
Defamation Shall Be Looked At With Different Viewpoint, Different Attitude
And With Differentiable Skill To Find Meanings Of Words.
- Dixon v. Holden (1869) 7 Eq. 488
- I.L.R. (1927) Bom. 167.
- I.L.R. (1932) 55 Mad. 727.
- Mst. Ramdhara vs. Mst. Phulwatibai; 1969 Jab. L.J. 582.
- Capital and Countries Bank vs. Henty and Sons (1882) 7 A.C. 741.
- I.L.R(1885) 8 Mad. 175.
- Gatley, Libel & Slander, 5th ed. Pg. 35.
- AIR 2006 Del. 300.
- (1939) 4 All E.R. 391.
- Eastwood vs. Homes, (1858) 1 F. 7 F. 347
- AIR 1970 Cal. 216.
- Section. 499, Explanation of IPC.
- Pullman vs. Hill (1891) 1 Q.B. 524.
- AIR 1958 Pat. 445.
- (1962) 1 All ER. 299.
- Pullman vs. Hill (1891) 1 Q.B. 524.
- Theaker vs. Richardson (1962) 1 W.L.R. 15.
- Mc. Pherson vs. Daniels, (1929) 10 B and C. 263, 272.
- AIR 1970 Bom. 424.
- V. Illath vs .K Keshavan (1900) I Weir 579.
- (1892) 15 Mad. 214
- (1889) P.R. No. 14 of 1889.
- J.D.Dixit (1894) Bom. 703
- Boxus vs. Goblet Freres (1894) 1 Q.B. 842.
- Rama Sami vs. Lokaneda (1886) 3 Mad. 387.
- T.G. Goswami, AIR 1952 Pepsu 165.
- AIR 1956 SC 541
- AIR 1940 Rang. 21
- Woodgate vs. Ridout (1865) 4 F&F 202, 216
- G.R.D. Agarwal, AIR 1950 Nag. 20
- Sankammna, AIR 1925 Mad.246
- 1986 Cri. L.J. 1797