• Lex Specialis

DEFAMATION UNDER LAW OF TORTS

- Monika Mehra


Defamation is 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.Any intentional false communication, either written or spoken, that harms a person's reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person, is called defamation.Right to reputation is a right in rem. ELEMENTS


To prove prima facie defamation, a plaintiff must show four things: 1) A false statement purporting to be fact: Truth of statement is complete defense in civil action. Falsity of a defamatory statement is presumed in favour of the plaintiff.


2) Statement must refer to Plaintiff a) Acting in good faith and without intention to defame Plaintiff is no defence b) Knowledge or intention is immaterial c)Not necessary that plaintiff should be referred to by name 3) Publication or communication of that statement to a third person: There shall be communication of words to at least one person other than the person defamed.

a) Mere printing and no publication is not actionable b) No publication between joint tortfeasor. c) No publication if third person wrongfully or with unauthorised access reads the letter d) Publication must be intentional or negligent e) Innocent dissemination is no publication 4) Damages, or some harm caused to the person or entity who is the subject of the statement. DEFAMATION AS WHOLLY DISTINCT FROM INSULT

Insult is treating someone with abuse or contempt i.e, gross indignity to another. Insult is not so actionable whereas defamation is. Defamation includes insult but every insult may not include defamation


CRIMINAL AND CIVIL DEFAMATION

Criminal Defamation: Criminal defamation is the act of offending or defaming a person by committing a crime or offence. For criminal defamations, you could always get the liable person or party prosecuted. It is studied in IPC as a criminal act.


Civil Defamation: Civil defamation involves no criminal offence, but on account of this kind of defamation, you could sue the person to get a legal compensation for your defamation. It is studied under law of torts i.e. as a civil wrong.


KINDS OF DEFAMATION


1. Libel: It is defamation that is written or communicated to a large audience. In such cases, the plaintiff can recover even without having to specifically demonstrate that he has suffered actual economic harm. If the defamatory statement is the kind of communication which generally results in harm to reputation, the law presumes such harm, and the plaintiff may recover.


2. Slander: It is not written or mass communicated.It is in some transient form whether visible or audible. In such cases, the plaintiff must prove that actual harm has resulted from the impact of the slander on his or her reputation.In most cases, actual harm is shown through economic loss attributable to the impact of the slanderous statements on business reputation. Courts have also allowed harm to be demonstrated by negative personal consequences of the statement.Examples of personal harm can be the loss of friends or a marriage engagement broken off due to the statement. There are a few exceptions to this requirement of “special damages” when it comes to slander. Certain types of defamatory statements are considered so egregious in their potential to destroy a reputation that the plaintiff does not need to present specific evidence of harm.

Exceptional cases where slander is actionable per se are:

  1. Imputation that plaintiff committed a criminal offence

  2. Imputation that plaintiff suffers from contagious disease

  3. Imputation of unfitness, dishonesty and incompetence in any office/profession

  4. Imputation of adultery, unchastity to a woman

Libel and slander differ in terms of when a plaintiff can recover


In Youssoupoff v. MGM Pictures Ltd. [1] the plaintiff (herself a Princess) complained that she could be identified with the character Princess Natasha in the film ˜Rasputin, the Mad Monk’. On the basis that the film suggested that, by reason of her identification with Princess Natashaâ, she had been seduced by Rasputin. The defendant contended that if the film indicated any relations between Rasputin and Natasha it indicated a rape of Natasha and not a seduction.


Held- In a cinema film, not only the photographic part of it is considered to be libel but also the speech which synchronises with it also. Slesser LJ said that defamation could include words which cause a person to be shunned or avoided: not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on the plaintiff’s part, but also if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on the plaintiff’s] part.Thus she was awarded with damages.


In D.P. Choudhary v. Kumari Manjulata [2] the plaintiff and respondent Manjulata about 17 years of age belonged to a distinguished family and studied B.A. There was a publication of a news item in a local daily Dainik Navjyoti that last night she ran away with a boy named Kamlesh; but she had gone to attend night classes. The news item was untrue and negligently published with utter irresponsibility. She was shocked and ridiculed by others. It was held that the action was defamatory and she was entitled with the damages of Rs 10000/- by way of general damages.


DEFENCES TO DEFAMATION


1. JUSTIFICATION OR TRUTH

In defamation there cannot be better defence than that of truth, as the law will not permit a man to recover damages in respect of any injury and character which he either does not or ought not to possess. The defence is still available even though the statement is made maliciously. Defence is available if the statement is substantially correct though incorrect in respect of certain minor details. In Alexender v. North Eastern Rly[3], a news article was published in the newspaper that X has been sentenced to one or three weeks imprisonment. In the alternative, while in fact X was sentenced to 1day or 14 days imprisonment. It was held that the statement in the press was substantially correct and no action lied. Obviously, if the defamer fails to prove the truth of the statement, he is liable.


2. FAIR AND BONAFIDE COMMENT

The second defence to an action for defamation is that the statement was a fair comment in public interest. Comment means expression of an opinion. The essentials of this defence are: a. It must be a comment, i.e. expression of opinion b. Comment must be fair c. Comment must be in public interest. Comment and statement of facts are different. Comment is an expression of opinion on certain facts and circumstances, and not statement of fact. No comment can be fair which is based on untrue facts.


3. PRIVILEGE


This is also one of the fundamental principles that there are circumstances when freedom of speech has privilege and even if it is defamatory it is protected. The individuals right to reputation is subordinate to the privilege of freedom of speech. This privilege may be; absolute or qualified

CONCLUSION


Defamation is tort resulting from an injury to one’s reputation. It is the act of harming the reputation of another by making a false statement to a thief person and is an invasion of the interest in reputation. The law of defamation is supposed to protect people’s reputation from unfair attack. In practice its main effect is to hinder free speech and protect powerful people from scrutiny. This law allows people to sue those who say or publish false and malicious comments.


Endnotes [1]Youssoupoff v Metro-Goldwyn-Mayer (1934) 50 TLR 581, CA [2] AIR 1997 Raj 170 [3] Alexender v. North Eastern Rly.,[(1885)6 B & S 340]


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