Defamantion

A man’s reputation is property more valuable than other property. Every man has the right to protection of his reputation. Injury to one’s reputation has been termed as defamation.

Definition of Defamation

According to Dr Winfield, “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.”

The literal meaning of defamation is injury to the reputation of a person. Thus when a person makes any definite restatement containing some imputation in respect of another person which comes in the knowledge of others and which has the effect of lowering down or injuring the reputation of that person it is called defamation.

The easy words when the statement of such a nature is published by a person in respect of another person which causes injury to the such person in the eyes of others, it will be the definition of that person.

As a matter of fact, under Indian law, in respect of defamation this is no distinction between slander and libel .

Our law recognises that it is only the mode of making defamation and not substantive basis of starting action.

This under our law the defamation made via oral statement has the same effect and intensity as defamation made through a written statement.

Under Indian law the definition recognizes it as a tort, as an offence also.

Section 499 I.P.C. declares the defamation as a punishable offence.

A person who is victim by defamation is entitle to start the action either under criminal law or under civil law or both simultaneously.

Essential Conditions

1) Statement must be defamatory.

2) Such statement must be in reference to plaintiff.

3) There must be publication of such statement.

• Defamatory statement is made:

The tort of defamation arises by definite restatement therefore there must be the use of defamatory statement. The statement is defamatory if,it holds the capability to change the opinion of others, of the person to whom such statement refers. If the statement is capable to lower down the image or reputation of a person, in the eyes of another person or persons, it will be a defamatory statement.

Such statement made orally or in writing or it in print or in form of pictures, statute, gestures or through some conduct. Such statement maybe defamatory in its simple form, defamatory by meaning.

Tomorrow, A statement regards defamatory through meaning when the language of statement is simple, plain, innocent; its meaning is defamatory. We call such statements as INNVENDO.

In Capital and Countries Bank versus Henry and Sons the question raised relating to defamation via meaning . In this who case Henry and Sons give notice that they will not receive payment by cheque drawn by above stated Bank. The bank taking this notice as defamatory and started action giving argument that the people believe that Bank became insolvent. In this case the court held that words did not convey the suppose imputation therefore it is not a tort of defamation.

In Tally versus J.S.F.R.Y and Sons Limited is very good illustration on defamation. Here a golf champion brought a suit against a chocolate company. The chocolate company published a caricature of Mr Tolly in which he was giving a sound drive to shot and the chocolates were glimpsing out of his pocket.

Mr. Tolly is that this tiny creature is definitely for him because it gives message to the people that he has taken money for advertisement of chocolate and he plays for money. The appelate Court held that it is the tort of defamation.

Requisition of intention to Defame

It is noticeable point that intention is not a requirement to constitute the tort of defamation. It means in order to hold a statement to be defamatory,it is not necessary that such statement should be made with intention of causing defamation.

If this statement is defamatory it will constitute defamation whether made with the intention of defamation or not.

Thus, the defamatory statement a person makes is a defamation, even if made innocently. The view gains recognition in court of appeal in Casidy Vs Daily Mirror Newspaper Limited.

• The statement must refer to plaintiff

To attain success in an action for defamation, plaintiff is to prove that the defamatory statement refers to him. If the plaintiff fails in establishing this condition or by the circumstances, it appears that statement was not used in reference of the plaintiff; there shall be no defamation.

In New Street Vs London Express Newspaper Ltd. and Casidy Vs Daily Mirror Newspaper Limited.

The English Court has recognised this view.

Where defamatory statement is used for a class but not for a particular individual there may be. Which defamatory words are used to a class of person but not in reference of any particular person? In this situation the question arises whether a particular individual is belonging to that class is entitled to action for defamation or not?

It is a notable point that in this situation the defamatory words are not particularly referring or indicating a reference to a particular individual. Therefore, generally a person doesn’t qualify to bring an action for the tort of defamation. But if according to the defamatory statement it appears that these address a particular group of people, belonging to a class, they qualify to start an action for defamation. For Example- If defamatory statement alleges that all the advocates are dishonest, no individual advocate qualifies to start an action for the tort of defamation. But if the defamatory statement is that advocate who sit under a tree of barged, the advocates who daily sit under the tree of barged would qualify to start an action for defamation.

Defamation of deceased person

Vegetable list that the formation of deceased person cannot be committed. Reasoning behind this rule is that the personality of person starts with his birth and lapses as soon as he dies. Thus defamation in respect of deceased person do not arise. But if defamatory statement injures/ affects the family member of deceased person then an action can be brought by them.

• Publication of defamatory statement

In order to constitute a tort of defamation it is necessary that defamatory words must have been published. There shall be no tort of defamation unless there is publication of the defamatory words. The publication of defamatory word is necessary because defamation is an injury to reputation of a person. It is an estimation of personality by others; therefore no injury arises unless the defamatory words come in the knowledge of others. The word publication has very simple meaning in reference of defamation i.e., the coming of defamatory words in the knowledge of others.

No defamation when knowledge of defamatory matter lies only with plaintiff and defendant.

If the defamatory words said by defendant within a room where only plaintiff and defendant were present or a letter containing defamatory matter is address to plaintive, there shall be no defamation.

• BY A LETTER

 When the third person wrongfully read a letter. Letter is address to plaintiff about which the defendant knew that it would be read by plaintiff only; but a third person reads it wrongfully. This is not a tort of defamation because it is not a publication. The defendant isn’t liable for defamation in such situation; it received recognition with kings bench in case of Power Vs Gailston.

When there is possibility that letter may be read by third person. When the defendant was well known that definitely letter he sent to the plaintiff is likely to fall in the hands of a third person; and it becomes a publication once the third person reads it.

• IN OTHER LANGUAGE

The sending of defamatory content via postcard card or a telegram maybe of such nature, that when the defendant sends the defamatory letter to the plaintiff in a language without which he knows, that plaintiff is not having knowledge of that language; and he will take help of other person in knowing the contents of the letter, it is considerably a publication.

• TO BLIND PERSON

The sending of defamatory letter to a blind person is also a good illustration on this. Similarly, when defendant sends a defamatory letter knowing the plaintiff’s clerk or personal secretary will read it, it is a publication.

• EFFECTIVE PUBLICATION

When defamatory content used for a spouse come into the knowledge of other spouse, it will be an effective publication. Thus, referring to defamation the husband and wife are Independent and separate; not the same and single.

The English court has also recognised this view in Thekar Vs Richardson.

• COMMUNICATION BETWEEN HUSBAND AND WIFE

Section 122 of Indian Evidence Act protects the communication made between husband and wife; such communication fail admittance in evidence. Due to this factor, the question arises whether such communication can be the basis of action for defamation or not.

In J.J Punan Vs V.M.C Vergese, pincode has considered this question. Here, husband wrote a letter to his wife containing defamatory matter in respect of her father. His wife passes the letter to her father who initiated proceeding for defamation on the basis of contents of that letter. The Supreme Court has held that if the letter passes into the hands of third person, can be proved or presented on the basis of action for defamation.

• REPETITION OF DEFAMATORY MATTER

When the same defamatory matter repeats, via the defendant on different occasions, the question arises that whether he is liable for defamation for a time or for every time. It is notable that if the repetition of defamatory matter is on different occasions, it gives rise to a fresh cause of action for every time. Thus, every repetition gives birth to new defamation therefore, action for defamation can be brought.

DEFENSES

There are some certain differences on basis of which the defendant may avoid the liability of defamation. These are as following-:

1) Statement of truth

When the defendant proves successfully that the statement in use is true, a complete defense against an action for defamation. In Alexander North Eastern Railway, English Court has also recognized this view; it noted point that the difference does not require that the statement should exactly be true; but it requires that it should substantially be true.

Vs criminal law, the truthiness of statement is not a defense on its own unless it came in public knowledge for good.

2) Fair comment

A fair comment on a matter of public interest is a good defence against in action for defamation.

It must be a comment, criticism or an expression of opinion but not a statement or an assertion of fact.

It must be fair.

It must be on a matter of public interest

When the above conditions become fulfilled a comment becomes a fair comment. Therefore, it is considerably a comment against the tort of defamation. It is a notable point that the comment and statement of a fact must not be regarded as a same; and a distinction is drawn between them.

Distinction between comment and statement is as follows:

When a person expresses and interference a conclusion, in respect of a person on the basis of his work, it will be an expression of opinion, therefore a comment.

But when a person expresses the intention by his statement about another person as he knows everything about him; and on the basis of that he is value what’s the work of that person, it is an assertion or statement of fact.

3) Privileged statement

There is some certain occasion when the law does not regard this statement to be defamatory. A person who makes statement on this occasion is not made liable.

Such privilege may be of two types as following-:

1. Absolute privilege

2. Qualified privilege

• ABSOLUTE PRIVILEGE

       In case of absolute privilege, no tort of defamation arises even though statement is false or it is made with malice.

The absolute privilege is available in the following cases.

• parliamentary proceedings

• judicial proceedings

• state communications

Does when there is publication of parliamentary proceedings, judicial proceeding and state communication and such communication is under the authority or under the provision of law there is no defamation.

• QUALIFIED PRIVILEGE

  There are some certain occasions and if the statement is made on such occasion without malice in over for public good, the statement is not a defamation.

This occasion provides qualified privilege that is a conditional privilege. These conditions are making of statement without malice or for public good.

Restoration of qualified privilege are publication of parliamentary proceedings, judicial proceedings or publication of proceedings of public meeting etc. When the publication of any of such proceeding is made without the authority of law house, it will be a qualified privilege against the defamation; if such is made without malice or for public good.

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REFERENCES

• Law of Torts including Consumer Protection Laws and Compensation under Motor Vehicles Act‟ textbook by Dr. N.V. Paranjape (publisher- Central Law Agency).
• Law of Torts including Compensation under Motor Vehicles Act and Consumer Protection Laws‟ textbook by Dr. R.K. Bangia (publisher- Allahabad Law Agency).
• The Law of Torts‟ textbook by Ratanlal and Dhirajlal (updated 26th edition, publisher- LexisNexis).
• Cases have been referred from SCC OnLine and Manupatra (Legal Databases).