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DEFAMATION[1]

QUESTION BANK

Q.1. What are a ‘Libel’ and ‘Slander’? Explain and distinguish libel from slander?

Q.2. What are the kinds of defamation? Give their ingredients an illustration.

Q.3. Discuss the defenses available in action for defamation.

Q.4. What is defamation? Distinguish libel from slander?

Q.5. What is defamation? What must be plaintiff prove in an action for defamation?

SHORT NOTES

1. Libel and slander.

SYNOPSIS

1. I) Defamation defined.
2. II) Kinds of defamation-
3. Libel:-

• Ingredients of libel.
• Actionable per se.

2. Slander:-

• When actionable per se.

III)    Distinction between libel and slander.

1. IV) Ingredients of defamation.
2. V)   –
3. Truth.
4. Fair and bonafide comment.
5. Privilege –
8. Apology.

I)       ‘Defamation’ Defined:-

                    Every man has a right to have his reputation preserved in-violated. It is a right in rem, i.e., against the whole world. A man’s reputation is his property more valuable than other property.

          “A defamatory statement is a statement planned to

1. Expose a person to hatred, contempt or ridicule, or
2. To injure him in his trade, business, profession, calling or office, or
3. To cause him to be shunned or avoided in society.

II)      Kinds Of Defamation:-

                    Defamation takes two forms:-

1. Libel:-
2. Slander:-

1) Libel[2]: –

                    Libel is the publication of a false and defamatory statement in some permanent form, tending to injure the reputation of another person without lawful justification or excuse.

          It must be in some permanent and visible form such as writing, printing, pictures, and effigies or even by means of a cinema film, etc.

In Youssoupof V/s. M.G.M. pictures[3]

Facts: – Princess Iranian of Russia was represented in the defendant’s film as Princess Natasha and was ravished and raped by a mad monk.

Held: – Plaintiff succeeded in a claim because defamation is libel and is in the permanent form of film.

Ingredients of libel: –

                    In order to succeed in an action for the tort of libel, the plaintiff must prove-

1. that the statement is
2. That such statement is in the permanent form, e.g., writing, printing, etc.
3. That statement is

Libel is actionable per-se –

 i.e., without any proof of actual damage.

2)       Slander[4]: –

                    Slander is a false and defamatory statement made by spoken words or gestures tending to injure another’s reputation.

          In other words, it is an oral, verbal statement in transitory (not permanent) form intending to injure the reputation of another person without lawful justification or excuse.

Ingredients of Slander: –

                    The plaintiff must prove to establish slander-

          That the words complained of are-

1. false
2. defamatory
3. published by the defendant orally

 Communicating defamatory matters to someone other than the person to whom it is written is ‘publication’ in its legal sense. So, the defamatory statement, even though made orally to another person than the plaintiff, amounts to publication.

3. Some special damage has resulted due to slander. However, slander is not actionable per se.

Slander when actionable per se:-

English Law: – Like libel, generally slander is not actionable per se, i.e., without any proof of actual damage, some special damage to the plaintiff needs to be proved.

          However, in the following exceptional circumstances cases, slander is even actionable per se, i.e., actionable, without showing special damage to reputation. Viz-

1. An accusation of a criminal offence[5]: –

                    An accusation of a criminal offence takes place if a criminal offence, such as murder, robbery, or theft, is attributed to the plaintiff and punishable with imprisonment rather than with a fine only.

2. An accusation of virulent disease[6]:-

If a contagious or infectious disorder tends to exclude the plaintiff from society, be imputed to him.

3. Imputation affecting the office, profession, trade, etc[7]:-

                    If any injurious imputation is made, affecting the plaintiff’s office, profession, trade, or business, which inputs the plaintiff’s unfitness for or misconduct in that calling?

4. Imputation of unchastity of woman or girl[8]:-

If a plaintiff is a woman or a girl, and the words impute unchastity or adultery to her.

5. Aspersion on the cast[9]:-

Aspersion on cast means calling by cost, calling somebody by other costs, etc.

In Gaya Din V/s. Mahabir Singh

Held: – to say to a high cast woman that she belongs to a lower caste is defamatory not only to her but also to her husband.

          Thus, in the above cases, the cast’s imputation is so injurious that the court will presume without any proof that his reputation has been thereby impaired.

Indian Law: –

          Unlike English law in India, libel and slander are criminal offences under S. 499 of the I.P.C. and are actionable in civil court without proof of special damage, i.e., actionable per se.

III)    Distinction Between Libel And Slander:-

                    There are the following differences between these two, viz.

1. Permanent or transient form[10]:-

                    Libel is defamation in a permanent form, such as written or printed, whereas slander is defamation in a transient form, such as spoken words and gestures.

2. Civil and Criminal:-

                    In common law, libel is a criminal offence and a tort, i.e., a civil wrong. But slander is only a civil wrong. In India, both are offences under S. 499 of I. P. C.

3. Whether actionable per se[11]:-

                    In common law, libel is actionable per se. i.e., without any proof of special damage to the plaintiff’s reputation, whereas slander is not actionable per se except in the circumstances mentioned above.

4. Presence of malice[12]:-

                    Libel shows greater deliberation (intention) and suggests malice, whereas slander may have been uttered in the heat of the movement and under sudden provocation.

5. Publisher:-

                    The actual publisher of a libel may be an innocent person and therefore not liable, e.g., a character is shown in a film if it coincides with an actual person without any intention of the publisher, whereas, in every case of publication of slander, the publisher acts consciously and voluntarily and must necessarily be guilty.

6. The limitation period for action:-

                    In England, a libel action is barred after six years. But that of slander after two years.

                    In India, a period of limitation for filing a suit is one year for both.

IV)     Ingredients Of Defamation:-

                    To constitute a tort of defamation, the plaintiff has to prove:-

1. That the statement is defamatory:-

Any statement will be deemed defamatory which –

1. expose the plaintiff to hatred, contempt, ridicule or obloquy, or
2. Tend to injure him in his profession or trade, or
3. This causes him to be shunned or avoided by his neighbours.

The real test is whether the words would tend to lower the plaintiff in the estimation of right-thinking members of society generally.

Innuendo[13]:-

                    A statement that seems innocent in its nature and ordinary sense may sometimes communicate defamatory meaning, e.g., If ‘X’ says that Mr. ‘Z’ is a very honest man, he never stole my watch. The statement is defamatory. The real meaning is that ‘Z’ did, in fact, steal the ‘watch’. So, in such circumstances, the person (plaintiff) attributing the defamatory meaning to such a statement has to explain in his claim how the statement is defamatory to him; such an explanatory statement in a claim is called ‘Innuendo’.

          An ‘Innuendo’ is an explanatory statement in the plaint that explains the meaning.-

1. Plaintiff assigns to the word or Specifies the plaintiff as the person to whom they apply. So, in the above case, Mr. ‘Z’ has to prove how the statement of ‘X’ is defamatory to him and how it contains defamatory means.

In Cassidy V/s. Daily Mirror Newspaper [14]

Facts: – The defendant’s newspaper published a photograph titled ‘Mr. M. Corrigan & Miss ‘X’ whose engagement is announced. In this case, the plaintiff is another woman known as Mr. Carrigan’s wife. Plaintiff based her claim on innuendo and stated in her pleading that the above statement implied that she was an immoral woman because she was cohabiting with Mr Carrigan.

Held: – Injury to her reputation was proved.

2. The statement must refer to the plaintiff’s title: –

                    In every action of defamation, the plaintiff must prove that the statement refers to him.

          However, it is not necessary to show that the defendant intended it to refer to the plaintiff.

In E. Hultan & Co. V/s. Jones[15]

Facts: – A newspaper published an article in which one Artemus Jones figured as a churchwarden and was accused of loving a mistress. The article’s author was absolutely unaware of the existence of a real person bearing the name of ‘Artemus Jones,’ and he used the name only as a fictitious character. But accidentally, the name chosen was that of the plaintiff, who was a Barrister and Journalist. Those who knew him thought that the newspaper article referred to him.

The court held that the newspaper was responsible for the libel, and the intention was immaterial.

3)       The statement must have been published:-

                    ‘Publication’ means making known the matter to some person other than the plaintiff. So, the oral statement made by a person other than the plaintiff is defamation, and the publication is said to have been completed.

V)      Defences: –

                    The main defences available in action for defamation are:-

2. That is a fair and bonafide comment.

1)       Truth: –

                    It is a complete defence in action for defamation that the words complained of are substantially true. It is because ‘truth’ shows that the plaintiff is not entitled to recover damages.

2)       Fair and bonafide comment[16]:-

                    Fair and bonafide comment on a matter of public interest is no defamation. Thus, legitimate criticism is no tort even though the plaintiff has suffered a loss. It would be damnum sine injuria, i.e., damage without injury to the plaintiff’s legal right.

In Shree Maheshwar Hydro Power Corpn. Ltd. V/s. C. Palit[17]

Facts—The construction of the Hydroelectric Project was assigned to the plaintiff company. The defendant (Organisation) issued a press note containing defamatory statements. These were severe defamatory statements against the Plaintiff Company, such as connivance, conspiracy, looting of public money, siphoning off funds, etc.

Held—apart from taking a plea of justification, the defendants will have to show that the statements were made bonafide and in the public interest and that they were based on sufficient material that could be tested for veracity.

          Following are some of the matters of public importance on which comments can be made –

1. Affairs of State, public acts of ministers and officers of the State.
2. The administration of justice.
3. Public institutions and local bodies.
4. Books, pictures, and works of art, etc.

                    The word ‘fair’ denotes the meaning of ‘honest’ and also ‘relevant’. So, the view expressed must be honest and must be such as can fairly be called criticism. But such a comment should not have been made with malice.

3)       Privilege[18]: –

                    Privilege means a special right granted to a person or group. It is a defence for defamation in the sense that some persons or groups of persons are excused from liability even from malicious, defamatory statements made on certain occasions. Such special occasions are called ‘Privileged occasions.’

          Such privileges are of two kinds.

1. Absolute Privilege, and
2. Qualified Privilege.

a) Absolute Privilege[19]:-

A statement is absolutely privileged when no action lies for it, even though it is false, defamatory, and made with express malice. But, on certain occasions, the interest of society requires that a man should speak his mind fully and frankly, without thought of consequences.

          Such occasions are –

1. Parliamentary proceedings.
2. Judicial Proceedings.
3. Military and Naval proceedings.
4. State proceedings.

a.       Parliamentary Proceeding[20] :-

                    No action lies for a statement made by either House of Parliament member in their place in the House, however injurious it may be to the other person’s interest.

In King V/s. Lord A[21]

Held: – Parliamentary privilege does not extend to anything said outside the walls of the House.

          Under Article 105(2) of the Indian constitution, no member of parliament shall be liable to any proceeding in any court regarding anything said by him in parliament. A similar provision applies to state legislators in Art. 194(1) and (2).

b.       Judicial Proceedings[22]:-

                    No action of defamation lies, whether against judges, counsel, witnesses, or parties, for words written or spoken in the course of any proceedings before any court recognised by the law, even though such words are used maliciously, without any justification or excuse, personal ill will, and anger against the person defamed.

c.       Military and Naval Proceedings:-

                    Proceedings of naval and military tribunals are absolutely privileged. A statement made before a naval or military court of inquiry by a military man is protected, however malicious it may be.

1. State Proceedings[23]:-

                    Communications relating to affairs of the State made by one officer or minister of State to another are absolutely privileged. Also, a government resolution is privileged on public policy grounds.

b)       Qualified Privilege[24]:-

                    A statement is said to have been protected by qualified privilege when no action lies for it, even though it is false and defamatory unless the plaintiff proves express malice.

          In other words, in certain matters, the speaker is protected if malice is absent.

          Such matters are:-

1. When the statement is made in the performance of the duty.
2. When the statement is made in self-defence.

• When the statement is made for the protection of a common interest.

1. A fair and accurate report of parliament, or court proceedings, or in a public meeting.
2. When the persons making such communication have a reciprocal interest.

i.        Statement made in the performance of duty:-

                    A statement made by a person in the conduct of his own affairs in a matter where his interest is concerned is privileged. So, the statement made in the protection of some lawful interest, a statement in self-protection, or one’s property is covered under qualified privilege. So, such a duty may be legal, social, or moral.

          Even a statement made in a confidential relationship is protected. Such relations may include Husband and wife, father and son, guardian and ward, etc.

ii.       Statement made in self-defence:-         i.e.

                    The statement made in self-defence means protection of one’s own business, etc.

iii.      Protection of common interest:-

                    Communication made for the public good is protected, e.g., A letter written by a lawyer on behalf of his client to a third person or communication made by a son to her mother about the character of his intended wife, etc.

iv.      Fair Reports: –

                    Fair reports of –

1. Judicial proceedings.
2. Parliamentary proceedings.
3. Quasi-judicial and other similar proceedings.
4. Proceedings of the public meeting are treated as privileged communications.

v.       Apology: –

                    An apology is a defence for defamation.

In S.N. Abdi V/s. Prafulla Kr. Mahant[25]

Facts: In this case, the petitioner was the former Chief Minister of the State of Assam. In a newspaper article, he was termed the most corrupt and inefficient Chief Minister.

The court held that if any statement tends to lower the plaintiff’s estimation of a person, defamation compensation of Rs. 500000 will be awarded.

 

*****

[1] बदनामी[बेअब्रु [ मानहानि ]

[2] लिखित स्वरुपात बदनामी [  लिखित में मानहानि ]

[3] 1934

[4] तोंडी बेअब्रु करणे [  मौखिक दुरुपयोग ]

[5] फौजदारी गुन्हयात गुंतल्याबद्दल  [  एक आपराधिक अपराध में शामिल होने के लिए ]

[6] संसर्गजन्य रोग असल्याबद्दल [  संक्रामक रोग होने के कारण ]

[7] कार्यालयद्ध व्यवसायद्ध उदयोगाबद्दल बदनामी [ कार्यालय व्यापार उद्यम के बारे में विवाद ]

[8] महिला पवित्र नसल्याबद्दल [ महिलाओं के पवित्र न होने के बारे में ]

[9] जातीवाचक आरोप [ जाति के आरोप ]

[10] कायम स्वरुपाचा [  स्थायी ]

[11] कोणत्याही प्रत्यक्ष नुकसानीशिवाय दावा करण्या सारखा  [ जैसे बिना किसी वास्तविक नुकसान के दावा करना ]

[12] दुष्ट बुध्दी पुरस्कृत [ दुष्ट बुद्धि पुरस्कृत ]

[13] एकादे वाक्य सुरवातीला जरी निष्पाप दिसत असले तरी ते बेअब्रू करणारे असू शकते [ अगर कोई वाक्य पहली बार में निर्दोष लगता है, तो वह ]

[14] 1929 K.B.

[15] 1910

[16] रास्त व सद्भावपूर्वक टिका [ अगर कोई वाक्य पहली बार में निर्दोष लगता है, तो वह ]

[17] (AIR 2004 Bom.143)

[18] विषेश अधिकार [  विशेष अधिकार ]

[19] संपूर्ण अधिकार [  पूर्ण अधिकार]

[20] संसदेतील कामकाज [ संसद की कार्यवाही ]

[21] 1794

[22] न्यायिक कामकाज [ न्यायिक प्रक्रियाएं ]

[23] राष्ट्रीय कामकाज  [  राष्ट्रीय मामले ]

[24] सशर्त अधिकार [ सशर्त अधिकार ]

[25] (AIR 2002 Gau.75)