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Defamation: Think Before You Act, Be Thoughtful

Freedom Of Speech Is Not Freedom To Lie, Defame Or Incite Hatred And Abuse.

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.[1] Reputation is more valuable to everyone than any other property. The word defamation is driven from Latin word Diffamare  which means Spreading evil report about someone.

Thus, Defamation is the act of damaging the good reputation of someone through libel or slander.

Libel:

Libel is representation made in some permanent form; it can be through writing, printing, picture, effigy or statute.

Slander:

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 lawful justification.

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 society generally.

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 points 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 pictures.

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 the following:
 
No LIBEL SLANDER
1 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.
2 At Common Law, a libel is a Criminal offence as well as Civil wrong. Under Indian Law both libel and slander are criminal offences. At Common Law, a slander is a Civil Wrong only.
3 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.
4 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 this distinction.
5 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.
6 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[2] and A.C. Narayana Sah vs. Kannamma Bai[3], 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[4] has also expressed the view that both libel and slander are actionable in civil courts without proof of special damages.

Essentials Of Defamation

Civil Defamation

Defamation as a civil wrong requires certain essential conditions which are to be fulfilled. They are:
  1. The statement must be defamatory.
  2. The particular statement must refer to the plaintiff.
  3. 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.[5]

In case of Parvathi vs. Mannar[6] 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.[7]

In Ram Jethmalani vs. Subramaniam Swamy[8] 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.

The Innuendo

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 statement defamatory.
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.[9] 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.[10]

In Dhirendra Nath Sen vs. Rajat Kanti Bhadra[11] 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 relatives.[12]

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.[13] In Mahendra Ram vs. Harnandan Prasad[14], 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[15] 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[16] or by his spouse[17] 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 of Defamation.
  1. 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. [18] And it is also noted that if the statement is substantially true but incorrect with some minor particulars, the defence will still be available to them.
     
  2. 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:
    1. 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.
       
    2. 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[19] 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.
       
    3. 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.
       
  3. 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.
     
  4. 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 trial.

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.

Criminal Defamation

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:
  1. Making or publishing any imputation concerning any person.
  2. These imputation must be made by:
    • Words which are either spoken or intended to be read, or
    • Signs, or
    • Visible representation.
  3. 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 the offence.

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.[20]

In case of Thiagaraya vs. Krishnasami[21] 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[22], 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.[23] 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 privileged communication.

    Hence a person exercising privilege may communicate matter to third person in the ordinary course of business and he would escape penalty provided for this offence.

    A solicitor or an advocate who dictates to his clerk a letter containing defamatory statement regarding a person is not liable for defamation.[24]
     
  • 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.[25]

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 Will Harm:

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.[26]

Exceptions
Exception 1: Imputation of truth which public good requires to be made or published.
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.
Ex: 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.

Exception 2:
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.
Ex: In the case of Kartar Singh v. State[27], 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.

Exception 3: 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.

Ex: In case of U. Po Hugin[28], 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.

Exception 4: 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.

Ex: 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.

Exception 5:
Merits of case decided in Court or conduct of witnesses and others concerned.
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.
Ex: A journalist is supposed to discharge his duties fairly and if his comments are fair no one will be permitted to complain.[29]

Exception 6: 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.

Ex: 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 good faith.

Exception 7: Censure passed in good faith by person having lawful authority over another.
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.
Ex: Statements made by a person during public investigation merely expression suspicion as to complicity of certain person in crime will not amount to defamation.[30]

Exception 8: 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.

Exception 9: Imputation made in good faith by person for protection of his or other's interests.

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

Five important considerations must be kept in mind while establishing good faith and bonafide:
  1. The circumstances under which the letter was written or the words were uttered
  2. Whether there was any malice;
  3. Whether the appellant made any inquiry before he made the allegations;
  4. Whether there are reasons to accept the version that he acted with care and caution; and
  5. Whether there is preponderance of probability that the appellant acted in good faith.
Ex: 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.[31]

Exception 10: Caution intended for good of person to whom conveyed or for public good.
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.

Section 500 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[32], 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 and read.

Conclusion
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.

The 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.

End-Notes:
  1. Dixon v. Holden (1869) 7 Eq. 488
  2. I.L.R. (1927) Bom. 167.
  3. I.L.R. (1932) 55 Mad. 727.
  4. Mst. Ramdhara vs. Mst. Phulwatibai; 1969 Jab. L.J. 582.
  5. Capital and Countries Bank vs. Henty and Sons (1882) 7 A.C. 741.
  6. I.L.R(1885) 8 Mad. 175.
  7. Gatley, Libel & Slander, 5th ed. Pg. 35.
  8. AIR 2006 Del. 300.
  9. (1939) 4 All E.R. 391.
  10. Eastwood vs. Homes, (1858) 1 F. 7 F. 347
  11. AIR 1970 Cal. 216.
  12. Section. 499, Explanation of IPC.
  13. Pullman vs. Hill (1891) 1 Q.B. 524.
  14. AIR 1958 Pat. 445.
  15. (1962) 1 All ER. 299.
  16. Pullman vs. Hill (1891) 1 Q.B. 524.
  17. Theaker vs. Richardson (1962) 1 W.L.R. 15.
  18. Mc. Pherson vs. Daniels, (1929) 10 B and C. 263, 272.
  19. AIR 1970 Bom. 424.
  20. V. Illath vs .K Keshavan (1900) I Weir 579.
  21. (1892) 15 Mad. 214
  22. (1889) P.R. No. 14 of 1889.
  23. J.D.Dixit (1894) Bom. 703
  24. Boxus vs. Goblet Freres (1894) 1 Q.B. 842.
  25. Rama Sami vs. Lokaneda (1886) 3 Mad. 387.
  26. T.G. Goswami, AIR 1952 Pepsu 165.
  27. AIR 1956 SC 541
  28. AIR 1940 Rang. 21
  29. Woodgate vs. Ridout (1865) 4 F&F 202, 216
  30. G.R.D. Agarwal, AIR 1950 Nag. 20
  31. Sankammna, AIR 1925 Mad.246
  32. 1986 Cri. L.J. 1797

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