DEFAMATION UNDER LAW OF TORTS
Author : Monalisha Singh
The most valuable thing which a person possesses is his reputation and everyone is entitled to shield his reputation. Defamation is recognized as a right in rem (a right good against all persons in the world). According to Black’s law dictionary (i), defamation means any offence which can harm a person’s fame, reputation or character by the use of any malicious statement. There are two types of defamation, first one is libel and another is slander. The statement which is made in written form and that is published is said to be libel.
But any statement which is defamatory and is in transient form is considered as slander. As per the definition of Scrutton LJ, defamation is any wrong and false statement about a man to his discredit.
Ingredients of Defamation:-
- The statement must causes injury to the reputation of any person.
- The third party believes the defamatory matter to be true.
- The statement should be published.
- Any statement which is not privileged.
- The statement should not be true.
- The intention of the wrongdoer.
- The statement made must be referred to the plaintiff.
- statement should be made.
- The statement should be defamatory.
Civil Defamation:- Civil defamation is the injury to the reputation and the person whose reputation is injured demands compensation.
Criminal Defamation:- Criminal Defamation is the injury to the reputation and the person whose reputation and damaged demands punishment for the accused.
As per the English law, libel and slander are different concepts and both are not punishable under English law.
But under Indian law, both libel and slander are punishable under Section 500 of the Indian Penal Code, 1860. As per the law of torts, slander is actionable and libel is actionable per se.
When any statement which on the first impression appears innocent but there is a hidden meaning or secondary meaning which is defamatory is called as Innuendo.
The basic meaning of such statements are not injurious to reputation but if the statement turns out to be defamatory on the proof of plaintiff, then the person guilty of publishing such statements are liable under the law.
A is a married person and he is living with a lady B who is not her wife. If this will be published in the newspaper, then the publisher of the same is liable for punishment. In the case of D.P. Choudhary v. Kumari Manjulata (ii), Manjulata was a 17 years old girl who was pusuing B.A. In the local newspaper, news was published in her name that a girl called Manjulata ran away with a boy named Kamlesh. But she went for the night classes.
The news was published without any due care and this led to the harm in her reputation. In this case, it was held that the publication was defamatory and she had a right to claim a compensation of Rs. 1000. In the case of South Indian Railway Co. v. Ramakrishna (iii), a ticket checker of railway was asking for the identity proof and other documents. He was doing so as a part of his duty, so it is not defamatory. In the case of Harsh Mendiratta v. Maharaj Singh (iv), The Delhi High Court held, that action for defamation was maintainable only by the person who was defamed and not by his friends and relatives.
Defamation or injury to the reputation can never happen without the content being published. In the case of Mahender Ram v. Harnandan Prasad (v), a letter was written in Urdu language to the plaintiff but he did not have the knowledge of Urdu, and he asks some other person to let him know about the content of the letter.
In the case it was held that it was not a case of defamation unless it was proved that when the letter was written, the defendant was of the view that the urdu language is not known to the plaintiff.
Defamation and Right to Expression
Right to speech and expression explicitly gives the right to every person to express them in the way they want without any intervention from anyone. This right is the most fundamental of all other rights which guarantee everyone the right to present themselves without any restriction. But if any statement which is made by a person causes harm to any other person and is in contravention with public order, morality, and health; then restriction is there to protect the rights provided to each and every individual.
If anyone expresses in a way which harms the rights entitled to other person, then the other person is entitled to claim compensation for the same. In the case of Subramanian Swamy v. Union of India (vi), it was held by the Supreme Court that Section 499 and Section 500 of IPC did not abrogate Article 19 (1) (a) as restriction are also there under Article 19 (2) of the Constitution which provides a restriction to freedom of speech and expression to protect public order, morality and health.
The injury to the reputation attaches criminal liability under IPC and civil liability under law of torts. But under certain conditions, the tort of defamation will not be there.
conditions mentioned below:-
- Truth- Truth is good justification to free oneself from liability. But the position is different in the case of criminal and civil law. Under criminal law, the mere fact that the statement is true is no defence but in the case of civil law merely the fact that the statement is true is a good defence.
- Fair Comment-
- The statement made must be of public interest.
- The statement must be an expression of opinion rather than assertion of fact.
- The comment should not be malicious but it should be fair.
- Qualified Privilege- Under this defence, the defendant has to prove that statement made should be made on a privilege occasion without any kind of malice.
- Absolute Privilege- No statement is defamatory despite the fact that it is made with a malicious intent. These are moments of state communication, parliamentary privileges, and judicial proceedings.
The defamation law is very crucial in shielding the reputation of any person who is a person of good character as right to freedom of speech and expression is not an arbitrary and absolute right. Reputation is the most important possession which a person owns and breach of the same will attach liability to protect the integrity of the person concerned in the society.
D.P. Choudhary v. Kumari Manjulata, AIR 1997 Raj. 170
South Indian Railway Co. v. Ramakrishna, (1890) ILR 13 MAD. 34
Harsh Mendiratta v. Maharaj Singh, 95 (2002) DLT 78
Mahender Ram v. Harnandan Prasad, AIR 1958 Pat. 445
Subramanian Swamy v. Union of India, Writ petition (Criminal) No. 184 of 2014 (i)