Defamation

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defamation

Defamation refers to the injury caused by the person over other on his reputation. It is an action considered as a great evil. Reputation is often considered as a most valuable property of a man, which he never wants to lose, therefore publication of any defamatory statement about a person may result in cases which is equal to the unlawful interference of one’s property. Everyone is having the right to freedom of speech but that right doesn’t include publishing wrong and a defamatory statement against other.

There are different provisions in Indian constitution which provide its citizens with the right to life under article 21, in which it gives its citizens right not to be defamed unnecessary and without any lawful justification by other. Along with article 21,article 19(1) (a) gives its citizen the right to freedom of speech with its one of the exception that, the statement so publish should not be defamatory.

Defamation can be of two types i.e. libel and slander. Where libel refers to writing, publishing, or printing any defamatory statement against any person whereas when any wrongful defamatory statement is published in a transit form i.e. orally then that kind of defamation can be termed as slanderous defamation.

In the case of D.P. Choudhary Vs Manjulata[1] the plaintiff-respondent was a 17-year-old college student. There was a publication in the local news report of daily, Dainik Navjyoti, dated 18/12/77 that she ran away with a boy namely Kamlesh at 11 a.m.after she went out of the house by saying she was having lectures. The news item so published was wrong and was published negligently. She was shocked and was having bad effects on her known one and marriage prospects. It was therefore held that the words so published were defamatory and were actionable per se. she has entitled with an award Rs. 10000/- by way of general damages.

Essentials for Defamation

The statement must be defamatory:

Defamation refers to the publication of a statement which tends to lower the reputation of a person in the eyes of the right – thinking members of society[2]or which tends to make them avoid that person[3]. Like for instance, whereby the ill will of Municipal Council and without any justification served a warrant to practising advocate and seized his furniture and books, then the act of Municipal Council would lead to defamation of that advocate.

The statement is defamatory or not depends upon the right-minded members of society. By the term, Right-minded members of society refer to those members who are of fair average intelligence. If according to them the statement so published, injures the reputation of the other then that statement would be considered defamatory.

As in the case of S.N.M. Abdi vs. Prafulla Kumar Mohanta[4] the article was published in Illustrated Weekly of India, made certain allegations for the wrongful use of man and muscle power by the then Chief Minister of Assam, Prafulla Kumar Mohanta. The article so published was considered defamatory and the plaintiff was awarded damages up to Rs. 5,00,000/-.

It must refer to the plaintiff:

For proving defamation, it is on the plaintiff to show that the statement so published refers to him and injures his reputation. It is thus immaterial that the defendant did not intend to defame the plaintiff if it is proven that the defamatory statement intended to him.

It is to be noted that for holding the defendant liable for defamation, the intention is not necessary. Mere publishing of defamatory statement against someone which is also true but while publishing if it negligently refers to someone else then also the defendant could be held liable for defamation of other. As was held in the case of Newstead Vs. London Express Newspapers Ltd.[5] in this case, defendants published an article that “Harold Newstead, a Camberwell man” has been convicted for bigamy. The statement was true but it was about Newstead Camberwell barman. The action for the same was bought by another Newstead, a Camberwell barber. It was held that as the words were considered to be understood as referring to the plaintiff, therefore the defendant was held liable for defamation.

It should be published:

For making someone liable for defamation it is necessary that the statement so made should be communicated to other people other than the person referred. As defamation is an injury to the reputation of the person and therefore until it is communicated to someone else there can be no case of defamation. If the defamatory statement so made only to the person in presence of on one then there can’t be any defamation, the statement made in such a language that can only be understood by the person so defamed then also no case for defamation lies. Thus, in short, it can be said that where there is a reasonable chance of the defamed statement can be heard or seen by others, other than the person so defamed then only the person can be made liable for defamation.  

As in case of, Mahendra Ram vs. Harnandan Prasad[6], the publication was made of a defamatory statement written in Urdu to the plaintiff by the way of written letter. Plaintiff did not know Urdu and therefore needs another person to read it. It was held that the defendant can’t be made liable until it is proven that the defendant knew that the plaintiff is unaware of the Urdu language and would need someone else to read it.

Defences for Defamation:

Justification or Truth:

The defendant can’t be held liable if the statement so published is true. Therefore, if he in case the statement is published against someone, which is true then it can be a good defence for the defendant to run out of liability. It is so because the law doesn’t permit someone to recover damages for the injury of reputation which he either does not or ought to have possessed. However, even if there is some statement which is true but there are certain minor changes have been done then also there can be no liability for the defendant.

As in the case of, Alexander vs. North Eastern Ry.[7] The plaintiff was punished for travelling by train without tickets with fine or 14 days imprisonment. The publication was made by the defendant that the plaintiff has got sentenced either for fine or with 3 weeks imprisonment. It was held that the defendant was not liable because the statement so published have minor wrongs only.

However, if the defendant is not able to prove that the statement published is true then he can be liable for defamation. As in the case of Radheshyam Tiwari vs. Eknath[8] the defendant who was an editor, publisher andprinter of a newspaper published some article about the plaintiff who was Block Development officer, stating that he has issued false certificates, accepted bribe and adopted corrupt means in various ways. Therefore, the plaintiff filed an action for defamation, it was held that the defendant failed to prove his statement was true and therefore he was liable for defamation.

Fair Comment:

In a defence to defamation if the statement so made is fair comment and is if public interest then it can serve as a good defence to the defendant. Fair comment constitutes that there should be a comment, the comment so made should be fair, and it should be in public interest. There should be comment refers to the condition where the publication made should be like comment and not based on facts. Facts can save the defendant from liability only if it is justified is proved.

Comments based upon untrue facts can never be said as the true comment. As because the statement made out of those comments which are not justified then the comment so made will also fail as its base out of which such comment is untrue. Like where in the newspaper publication is made putting allegations over plaintiff, for which the defendant fails to prove that the comment made on such untrue fact will also not be fair.The matter so published must be for the benefit of public interest, i.e. the comments must be based on like courts, public administration etc.

Privilege:

There are certain occasions where it is considered that the right of freedom of speech should overweight right to reputation. That is even if some wrongful or defamatory statement is being spoken, then also under certain circumstances person won’t be held liable for it.

Such occasions include any statement made by a member of either house of Parliament, publication by or under either authority of House of Parliament, any comment made about judges, counsel or anyone else which is relevant to the ongoing proceedings etc, can get exempted from the defamation proceeding. However, any statement made irrelevant to the proceeding even if it is made during the proceeding then also the defendant would be made liable for defamation.

Like in the case of Jiwab Mal vs. Lachhman Das[9], where the there was a petty suit going on, on which there was a suggestion by Trial Court for compromise. On this suggestion, LachhmanDass who was a witness to the proceeding remarked that there can be no compromise done as Jiwan Mal stands in middle and has looted the whole of Dinanagar and gets false cases set up. Jiman Mal, in fact, doesn’t even have any relation to the ongoing case. It was held by the High Court that the comment so made was irrelevant to the ongoing case and therefore defendant was held liable.   

Frequently Asked Questions:

  • How does defamation qualify as a tort?

Defamation qualifies Tort, as both are civil suits and are moreover filed for recovering damages so suffered from the injury caused by the wrongful act of the defendant. As tort refers to a civil wrong arising out of the act done by the wrongdoer for which the injury is suffered by the plaintiff, against which plaintiff claims damages. Similar is the case with Defamation, under which the cases are filed because of injury which is in the form of harming reputation is being caused by the defendant for which the plaintiff seeks damages. Therefore,defamation qualifies tort.

  • How can defamation be proven?

Defamation is of two types of Slander i.e. the defamatory statement made is in oral form whereas the other is Libel where the publication of words is in written form. In England Libel is actionable per se but for Slander it is required to prove that the words spoken are defamatory for which plaintiff requires the witness to prove so. But considering the case in India both the forms are actionable per se. the plaintiff only requires to prove that there was the publication of the defamatory statement, which was not true and has harmed the reputation of the plaintiff.

  • Whether defamation is a Criminal or Civil offence?

Defamation can be both Civil as well as Criminal offence. As in civil offence, the plaintiff can seek compensation from the defendant for the injury so suffered, while there is ore harsher and up to 2 years punishment can be given to the defendant if the offence was proven. Moreover, in the criminal offence of it, the plaintiff has to prove beyond a reasonable doubt for the act being done but for the civil lower level of proves can be presented for the injury being suffered. It depends on the plaintiff under which offence he has to sue the defendant.

  • Are Slander and Defamation same?

Slander and defamation are not the same, as slander is a kind of defamation. Defamation is of two kinds Libel and Slander. Libel is for the written publication of the defamatory statement whereas slander is for oral publication of the statement. Therefore, when A says to B in presence of C that he is a corrupt person, then A would be held for defamation which is of Slander category.

  • What are damages under Defamation?

Damages are the relief that the plaintiff gets from the judiciary for the injury being suffered. For defamation plaintiff can relief from either criminal suit or civil suit. Under the criminal law, the plaintiff can get damages in the form of punishment for 2 years to the defendant, whereas civil law the plaintiff can get monetary relief from the court.

[References]

[1] A.I.R. 1997 Raj. 170.

[2] Sim Vs. Stretch, (1936) 52 T.L.R. 669, 671.

[3] Winfield, Tort, 12th ed., 293.

[4] A.I.R. 2002 Gauhati 75.

[5] (1939) 4 All E.R. 391: (1940) 1 K.B. 377.

[6] A.I.R. 1958 Pat. 445.

[7] (1885) 6 B & S. 340.

[8] A.I.R. 1985 Bom. 285.

[9]A.I.R. 1929 Lah. 486.