Concept of Defamation

Defamation is an injury to the reputation of a person. If a person injures the reputation of another, he does so at his own risk, as in the case of an interference with the property. A man’s reputation is his property, and if possible, more valuable, than other property.

According to Winfield, “Defamation is the publication of a statement which reflects on a person's reputation and which tends to lower a person in the estimation of right thinking members of society generally, or, which tends to make him shun or avoid that person.”

Classification of Defamation in English Law:

Under English Law, defamation is divided into two forms: -

1. Libel – It is the representation made in some permanent form, e.g., writing, printing, picture, effigy, or statute.

2. Slander – It is the publication of a defamatory statement in a transient form; spoken words or gestures etc.

Essentials of Defamation:

Essentials of defamation are as follows: -

1. The statement must be defamatory.
2. The said statement must refer to the plaintiff. The statement must be understood by right-thinking or reasonable-minded persons, as referring to the plaintiff.
3. The statement must be published, i.e., to say, it must be communicated to some person other than the plaintiff himself.

1. The statement must be defamatory:

Whether a statement is defamatory or not depends upon how the right-thinking members of the society are likely to take it. The standard to be applied is that of a right-minded citizen, a man of fair average intelligence, and not that of special class of persons whose values are not shared or approved by the fair minded members of the society generally.

If the likely effect of the statement is the injury to the plaintiff’s reputation, it is no defence to say that it was not intended to be defamatory. When the statement causes anyone to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem, it is defamatory. The essence of defamation ins injury to a person’s character or reputation.

Relevant Case Laws:

1. South India Railway Co. v. Ramakrishna – In this case the railway guard, who was an employee of the defendant, South Indian Railway Co. went to a carriage for checking the tickets and while calling upon the plaintiff to produce his ticket said to him in the presence of the other passenger: “I suspect you are travelling with a wrong/false ticket.” The plaintiff produced the ticket which was in order. He then sued the railway company contending that those words uttered by the railway guard amounted to defamation. It was held that the words spoken by the guard were spoken bona fide and under the circumstances of the case, there was no defamation and the railway company could not be made liable for the same.

The concept of 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 is 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.

1. Capital and Counties Bank v. Henty and Sons (1882) – In this case, there was a dispute between the defendants, Henty and Sons, and one of the branch managers of the plaintiff bank. The defendants who use to receive cheques drawn on various branches of the Capital and Counties Bank sent a circular letter to a large number of their customers as follows: “Henty & Sons hereby give notice that they will not receive payment in cheques drawn on any of the branches of the Capital and Counties Bank.” The circular became known to various other persons also and there was a run on the bank. The bank sued Henty and Sons for libel alleging that the circular implied an insolvency of the Bank.

Held, that the words of the circular taken in their natural sense did not convey the supposed imputation and the reasonable people would not understand it in the sense of the innuendo suggested. There was, therefore, no libel. 

Intention to defame is not necessary:

When the words are considered to be defamatory by the persons to whom the statement is published, there is defamation, even though the person making the statement believed it to be innocent. It is immaterial that the defendant didn’t know of the facts because of which a statement otherwise innocent, is considered to be defamatory.

1. Cassidy v. Daily Mirror Newspapers Ltd. (1929) – In this case, Mr. Cassidy (also known as Mr. Corrigan) was married to a lady who called herself Mrs. Cassidy or Mrs. Corrigan. She was known as the lawful wife of Mr. Cassidy who did not live with her but occasionally came and stayed with her at her flat. The defendant published in their newspapers a photograph of Mr. Corrigan and Miss ‘X’, with the following word underneath: “Mr. M. Corrigan, the race horse owner, and Miss ‘X’, whose engagement has been announced.”

Mrs. Corrigan sued the defendants for libel alleging that the innuendo was that Mr. Corrigan was not her husband and he lived with her in immoral cohabitation. Some female acquaintances of the plaintiff gave evidence that they had formed a bad opinion of her a result of the publication.

The jury found that the words conveyed defamatory meaning and awarded damages. The Court of Appeal held that the innuendo was established. Obvious innocence of the defendants was no defence. The defendants were held liable.

2. The statement must refer to the plaintiff:

In an action for defamation, the plaintiff has to prove that the statement of which he complains referred 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 referred to the plaintiff, the defendant is nevertheless liable.

Relevant Case Law:

1. Hulton Co. v. Jones (1910) – In this case, E. Hulton & Co. published an article in a newspaper that described a fictional "Artemus Jones" engaging in scandalous behavior. The plaintiff, a real person named Thomas Artemus Jones, sued for libel because his acquaintances read the article and reasonably believed it was about him. The core question was whether the newspaper could be held liable for defamation if it had no intent to defame the plaintiff and believed the name was fictional.

The court ruled in favour of the plaintiff, finding the newspaper liable for defamation. The court determined that the defendant's intent is irrelevant if the defamatory statement is understood by reasonable readers to refer to the plaintiff. The newspaper was held responsible for the foreseeable consequences of its publication.

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 reasonably be considered to be referring to him. Thus, “If a man wrote that all lawyers are thieves, no particular lawyer could sue him unless there was something to point to the particular individual.”

1. Knupffer v. London Express Newspapers Ltd. (1944) – In this case, the appellant was the member of a party, the membership of which was about two thousand, out of which twenty-four members including the plaintiff were in England. The respondents published a statement of the party as a whole. Some of the appellant’s friends considered the article to be referring to him. It was, however, held that since the article referred to such a big class, most of the members of which were resident abroad, it could not reasonably be considered to be referring to the appellant and the respondents were not liable.

Defamation of the Deceased:

Defaming a deceased person is no tort. Under criminal law, however, 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.

3. The statement 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. Communication to the plaintiff himself is not enough because defamation is injury to the reputation and reputation consists in the estimation in which others hold him and not man’s own opinion of himself.  

Relevant Case Laws:

1. Mahendra Ram v. Harnandan Prasad (1958) – In this case, the defendant sent a letter written in Urdu to the plaintiff. The plaintiff did not know Urdu and therefore the same was read over to him by a third person. It was held that the defendant was not liable unless it was proved that at the time of writing the letter in Urdu script, the defendant knew that the Urdu script was not known to the plaintiff and it would necessitate reading of the letter by a third person.

1. T.J. Ponnen v. M.C. Verghese (1970) – In this case, M.C. Verghese filed a defamation suit against his son-in-law, T.J. Ponnen, based on defamatory letters Ponnen had written to his wife, Verghese's daughter.

The main question was whether the letters, as communications between husband and wife, were protected from disclosure under Section 122 of the Indian Evidence Act and if the act of sending them constituted "publication" for defamation under Indian law.

The Supreme Court decided that the communications were not privileged and could be admitted as evidence. The court stated that the letters were "published" by being sent to the wife, making the husband liable for defamation.

The judgment established that the "husband and wife are one in the eye of the law" principle from English common law does not apply to Indian defamation law, clarifying that a spouse's communication to another spouse can be grounds for a defamation charge.

Defences

The defences to an action for defamation are as follows:

1. Justification or Truth;
2. Fair Comment;
3. Privilege, which may be either absolute or qualified.

1. Justification or Truth:

Justification, also known as the defence of Truth, is a complete defence to an action for defamation (libel or slander). The core principle is that the law will not protect a reputation based on falsehood, nor will it allow a person to recover damages for something that is true about them.

If successfully proven, it leads to the complete dismissal of the defamation claim. The defendant bears the burden of proving that the defamatory statement is true.

Relevant Case Law:

1. Radheshyam Tiwari v. Eknath (1985) – In this case, the defendant, who was editor, painter, 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 bribe and adopted corrupt and illegal means in various matters. In an action for defamation, the defendant could not prove that the facts published by him were true and, therefore, he was held liable.

2. Fair Comment:

For this defence to be available, the following essentials are required:

1. It must be a comment, i.e., an expression of opinion rather than assertion of fact;
2. The comment must be fair; and
3. The matter commented upon must be of public interest.

Relevant Case Law:

1. McQuire vs. Western Morning News Co. (1903) – In this case, the newspaper published a review of McQuire's play that described it as a "three act musical absurdity" and "nothing but nonsense". The court held that the play was a matter of public interest, and the review was a matter of fair comment, even if it was harsh and the plaintiff disagreed with it.

The case established that newspapers have the right to criticize public performances, provided the criticism is honest and relates to a matter of public interest. The court reasoned that a reasonable person would understand the review as an opinion rather than a factual assertion of fact, making it a privileged defense against a libel claim.

1. Gregory v. Duke of Brunswick (1843) – In this case, the plaintiff, an actor, appeared on the stage of a theatre but the defendant and other persons actuated by malice hissed and hooted at the plaintiff and thereby caused him to lose his engagement. Hissing and hooting after conspiracy was held to be actionable and that was not a fair comment on the plaintiff’s performance.

3. Privilege:

It refers to certain occasions where free speech rights outweigh defamation claims.

Privilege is of two kinds:

a. Absolute Privilege - No liability even for false or malicious statements on certain occasions like parliamentary or judicial proceedings. It is recognised in the following cases:

i. Parliamentary Proceedings: Article 105(2) of our Constitution provides that: (a) statement made by a member of either house of parliament in parliament, and (b) the publication by or under the authority of either house of parliament of any report, paper, votes or proceedings, cannot be questioned in a court of law. A similar privilege exists in respect of State Legislatures, according to Article 194(2).

ii. Judicial Proceedings: No action for libel or slander lies, whether against judges, counsels, witnesses, or parties, for words written or spoken maliciously, without any justification or excuse, and from personal ill will and anger against the person defamed. Such a privilege also extends to proceedings of the tribunals possessing similar attributes.

A remark by a witness which is wholly irrelevant to the matter of enquiry is not privilege.

Relevant Case Law:

1. Jiwan Mal v. Lachhman Das (1929) – In this case, on the suggestion of a compromise in a petty suit by trial court, Lachhman Das, a witness in the case, remarked, “A compromise cannot be affected as Jiwan Mal stands in the way. He had looted the whole of Dinanagar and gets false cases set up.” Jiwan Mal about whom the said remark was made, was a municipal commissioner of Dinanagar but he had nothing to do with the suit under question.

In an action against Lachhman Das for slander, the defence pleaded was that there was absolute privilege as the statement was made before a court of law. The High Court considered the remark of the defendant to be wholly irrelevant to the matter under enquiry and uncalled for, it rejected the defence of privilege and held the defendant liable.

iii. State Communications: A Statement made by one officer of the state to another in the course of official duty is absolutely privileged for reasons of public policy. Such privilege also extends to reports made in the courts of military and naval duties. Communications relating to State matters made by one Minister to another or by a Minister to the Crown is also absolutely privileged.

b. Qualified Privilege – In certain cases, the defence of qualified privilege is also available. Unlike the defence of absolute privilege, in this case it is necessary that the statement must have been made without malice. For such a defence to be available, it is further necessary that there must be an occasion for making the statement.

To avail this defence, the defendant has to prove the following two points:

1. The statement was made on a privileged occasion, i.e., it was in discharge of a duty or protection of an interest; or it is a fair report of the parliamentary, judicial, or other public proceedings 
2. The statement was made without any malice.

Distinction between Absolute Privilege and Qualified Privilege:

Absolute privilege provides a complete and unqualified defence to a defamation claim.

1. Immunity: It grants a speaker absolute immunity from liability for a defamatory statement, even if the statement was false and made with malice (i.e., known to be false or published with an improper motive like spite or ill-will).

1. Rationale: The law grants this high level of protection because the interest in free and uninhibited communication in certain vital public contexts is considered paramount.

1. Applicable Occasions:Absolute privilege is limited to a narrow set of circumstances, including:
2. Judicial Proceedings:Statements made by judges, lawyers, witnesses, and parties during court proceedings, as well as communications necessary to prepare for litigation.
3. Legislative Proceedings:Statements made by legislators during debates or proceedings in the legislature (e.g., Parliament, Congress).
4. Certain Executive/Official Communications:Statements made by high-ranking government officials in the course of their duties.

Qualified privilege, also known as conditional privilege, is a more limited defense that protects a defamatory statement only if it was made without malice and on a "privileged occasion."

1. Condition: The defense can be defeated if the plaintiff proves that the defendant acted with malice (a lack of honest belief in the truth of the statement, or using the privileged occasion for an improper purpose).

1. Rationale: This privilege is founded on the public interest in promoting the exchange of information where there is a legal, social, or moral duty to speak and a corresponding interest in receiving the communication.

1. Applicable Occasions: Qualified privilege applies in a broader range of situations, such as:
2. Duty/Interest Relationship: Communications made by a person who has a duty (legal, moral, or social) to make a statement to a person who has a corresponding interest in receiving it. (e.g., a former employer giving a job reference, or a communication between company management and employees about misconduct).
3. Fair and Accurate Reports: Fair and accurate reports of public proceedings (e.g., court, legislative).
4. Public Interest: In some jurisdictions, publication on a matter of public interest, provided the publisher reasonably believed it was in the public interest to publish the statement.