Defamation

However, the Law of Defamation like many other branches of tort law aims at balancing the interests of the parties concerned. These are the rights that a person has to his reputation vis--vis the right to freedom of speech. The Law of Defamation provides defences to the wrong such as truth and privilege thus also protecting right of freedom of speech but at the same time marking the boundaries within which it may be limited. n ndia tort law is obtained from !ritish "ommon Law and is yet uncodified. Therefore the e#isting law relating to defamation places reasonable restrictions on the fundamental right of freedom of speech and e#pression conferred by $rticle %&'%( 'a( of the "onstitution and is saved by clause ')( of $rticle %&. DEFINITION $ defamatory statement is one which in*ures the reputation of another by e#posing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of the society. The wrong of defamation may be committed by making defamatory statements which are calculated to e#pose a person to hatred, contempt or ridicule, or to in*ure him in his trade, business, profession, calling or office, or to cause him to be shunned or avoided in society. This is known as +publication, of the statement, which in its true legal sense means the communication of defamatory matter to some person other than the person of whom it is written. These statements can be made in the following two ways Libel: The publication of a false and defamatory statement tending to in*ure the reputation of another person without lawful *ustification or e#cuse. The statement must be in a printed form, e.g., writing, printing, pictures, cartoons, statue, wa#work effigy etc. Slander: $ false and defamatory statement by spoken words and.or gestures tending to in*ure the reputation of others. t is in a transient form. t also involves the sign language used by the physically disabled. DISTINCTION BETWEEN LIBEL AND SLANDER: The basic differences between the torts of libel and slander are as follows'%( Libel is a defamatory statement in permanent form, for e#ample, writing, wa# images '/onson v Tussaud0s Ltd 1%2&34 % 5! 67%(, films '8oussoupoff v /9/ :ictures Ltd '%&;3( <= TL> <2%(,

 radio and television broadcasts, and public performances of plays ?lander is a defamatory statement in a transient form. ')( Libel is actionable per se whereas damage must be proved for slander, e#cept in four instances @here there is an allegation that the claimant has committed an offence which is punishable with imprisonmentA @here there is an imputation that the claimant is suffering from a contagious disease, such as venereal disease, leprosy, plague and, arguably, H B.$ D?A @here there is an imputation that a woman has committed adultery or otherwise behaved in an 0unchaste0 fashion '?lander of @omen $ct %2&%(A or @here there is an imputation that the claimant is unfit to carry on his trade, profession or calling. ';( Libel may be prosecuted as a crime as well as a tort, whereas slander is only a tort.

Elements of Defamation (What has to be ro!ed": ?ub*ect to the differences between the two types of defamation, libel and slander 'e#plained below(, the claimant must prove'%( that the statement was defamatory, ')( that it referred to him, and ';( that it was published, ie communicated, to a third party. The onus will then shift to the defendant to prove any of the following three defences'%( truth 'or *ustification(, ')( fair comment on a matter of public interest, or ';( that it was made on a privileged occasion. n addition, some writers put forward the following as defences in their own right'3( unintentional defamation, and '<( consent.

ESSENTIALS OF DEFA#ATION: ($" T%E ?TATE#ENT #&ST BE DEFA#ATOR' The statement must be defamatory. $ccording to Lord $tkin, the statement must tend to lower the claimant in the estimation of right-thinking members of society generally, and in particular cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem. n D.P. Choudhary v. Manjulata there was publication of a statement in a local daily in Codhpur that /an*ulata on the prete#t of attending her evening !$ classes ran away with a boy named Damlesh. The girl belonged to a well educated respectable family. ?he was seventeen years of age. The news item was untrue and had been irresponsibly published without any *ustification. This was defamatory and the defendants, the newspaper publishers were held liable. #ere ab(se Bulgar abuse is not defamatory. /ansfield "C stated EFor mere general abuse spoken no action liesE 'Thorley v Derry '%2%)( 3 Taunt ;<< at ;6<, and also :ollock "! and @ilde ! in :arkins v ?cott '%26)( % HG" %<; at %<2, %<&(. @infield G ColowicH 'p3=6( states that spoken words which are prima facie defamatory are not actionable if it is clear that they were uttered merely as general vituperation and were so understood by those who heard them. Further, the same applies to words spoken in *est 'Donoghue v Hayes '%2;%( Hayes > )6<(.

Inn(endo
?ometimes a statement may not be defamatory on the face of it but contain an innuendo, which has a defamatory meaning. ?uch a statement may be actionable. The hidden meaning must be one that could be understood from the words themselves by people who knew the claimant 'Lewis v Daily Telegraph 1%&634 $" );3( and must be specifically pleaded by the claimant. For instance in Cassidy V Daily Mirror Newspapers the newspaper published a picture of a lady and the race horse owner with the caption underneath, +/r. /. "orrigan, the racehorse owner and /iss I whose engagement has been announced,. The newspaper was held liable in a suit that said that the lady was the lawful wife of /r. "orrigan and complained that the words suggested that she had been living with him in immortality. The liability of the defendants rested on their failure to make independent inJuiry. This also brings forth another aspect of this tort that intention to defame is not necessary and if the words are considered to be defamatory by the persons to whom the statement is published, there is defamation.

()" REFERENCE TO T%E CLAI#ANT The statement must refer to the claimant, ie, identify him or her, either directly or indirectly. The plaintiff has to prove that the statement which is claimed to be defamatory actually refers to him.her. t is immaterial that the defendant did not intend to defame the plaintiff, if the person to whom the statement was published could reasonably infer that the statement referred to the plaintiff, the defendant is nevertheless liable. n %(lton Co* + ,ones the defendants published a fictional article in their newspaper in which aspersions were cast on the morals of a fictitious character-$rtemus Cones, stated to be a "hurchwarden. Kn this basis one $rtemus Cones, a barrister, brought an action against the defendants. The defendants pleaded that $rtemus was a fictional character and the plaintiff was not known to them and thus they had no intention to defame him. Lotwithstanding this, they were held liable because a substantial number of persons who knew the plaintiff and had read the editorial would have assumed it to be referring to him. However, when the defamation refers to a class of persons, no member of that group can sue unless he can prove that the words could reasonably be considered to be referring to him. @hen the statement though generally referring to a class can be reasonably considered to be referring to a particular plaintiff, his action will succeed. n Fan( !* #al-omson, in an article published by the defendants, it was mentioned that cruelty was practised upon employees in some of the rish factories. From the article as a whole including a reference to @aterford itself, it was considered that the plaintiffMs @aterford factory was aimed at in the article and the plaintiff was, therefore, successful in his action for defamation. (." /&BLICATION The statement must be published, ie communicated, to a person other than the claimant. :ublication means making the defamatory matter known to some other third part and unless that is done, no civil action for defamation can lie in court. "ommunication to the plaintiff wont count because defamation is in*ury to the reputation which consists in the estimation in which others hold him and not a manMs own opinion of himself. However, if a third party wrongfully intercepts and reads a letter sent to the plaintiff it is not defamation. However when the defendant knows that the letter is likely to be read by someone else and it contains some personal information only meant for the recipient, then he will be liable. $lso, an in*unction can be issued against the publication of a defamatory statement which is likely to in*ure the reputation of one of the parties involved as was done in /rameela Ra!indran !* /* La0shmi0(tt1 Amma .

$lso, in the eyes of the law, husband and wife are one person and the communication of a defamatory matter from the husband to the wife or vice versa is no publication. @hen the repetition of the defamatory matter is involved, the liability of the person who repeats that defamatory matter is the same as that of the originator, because every repetition is a fresh publication giving rise to a fresh cause of action. Lot only the author is liable but the editor, printer or publisher would be liable in the same way.

DEFENCES: ($" TR&T% (OR ,&STIFICATION" Knly false statements are actionable, so if the statement made about the claimant is true, there can be no action for defamation. The burden of proof is on the defendant to prove that the statement made is true, rather than on the claimant to prove that it was false. Ale2ander +s* North Eastern Rail3a1 Co* ($456" $)) All E* R* $.$5 Wal0le1 +s* Coo0e ()" FAIR CO##ENT ON A #ATTER OF /&BLIC INTEREST The defence of fair comment is freJuently relied upon by the press, as it is designed to protect statements of opinion on matters of public concern. Lord Nsher, in /erivale v "arson '%227( )= 5!D )7<, stated that the test wasE@ould any fair man, however pre*udiced he may be, however e#aggerated or obstinate his views, have said that which this criticism has said of the work which is criticisedOE t involves making fair comments on matters of public interest. For this defence to be available, the following essentials are reJuired'i( t must be a comment, i.e., an e#pression of opinion rather than an assertion of fact 'ii( The comment must be fair, i.e., must be based on the truth and not on untrue or invented facts 'iii( The matter commented upon must be of public interest. f due to malice on the part of the defendant, the comment is a distorted one, his comment ceases to be fair and he cannot take such a defence. n Gregory V Duke of Brunswick the plaintiff, an actor, appeared on the stage of a theatre but the defendant and other persons in malice started hooting and hissing and thereby caused him to lose his engagement. This was held to actionable and an unfair comment on the plaintiffMs performance and the defendants were held to be guilty. (." /RI+ILE7E

a" Absol(te ri!ile8e There are certain occasions on which the law regards freedom of speech as essential, and provides a defence of absolute privilege which can never be defeated, no matter how false or malicious the statements may be. The following communications are 0absolutely privileged0 and protected from defamation proceedings ?tatements made in either House of :arliament. 'for parliament- $rticle %=< ')( and for ?tate Legislature- %&3 ')(( :arliamentary papers of an official nature, ie, papers, reports and proceedings which :arliament orders to be published ?tatements made in the course of *udicial proceedings. (b" 9(alified ri!ile8e 5ualified privilege operates only to protect statements which are made without malice 'ie, spitefully, or with ill-will or recklessness as to whether it was true or false(. The *udge must decide whether the situation is covered by Jualified privilege. f so the *ury must then decide whether the defendant acted in good faith or whether there was malice. The following communications will be protected by 0Jualified privilege0 ?tatements made in pursuance of a legal, moral or social duty, but only if the party making the statement had an interest in communicating it and the recipient had an interest in receiving it. ?tatements made in protection of an interest, eg public interests or the defendant0s own interests in property, business or reputation. Fair and accurate reports of parliamentary proceedings. Fair and accurate reports of public *udicial proceedings, eg when the report is not published contemporaneously with the proceedings. The S o(sal Testimonial /ri!ile8e The spousal testimonial privilege 'Espousal immunityE( can be used to prevent any party in a criminal case from calling the defendant0s spouse to testify against the defendant about any topic. This privilege does not survive the marriageA that is, after divorce, there is no right to refuse to testify against a defendant e#-spouse. This privilege may be restricted to testimony about events that occurred after the marriage, although in some *urisdictions it may apply to testimony about events occurring prior to the marriage 'giving rise to a Juestionable incentive for an individual to marry a potential witness in order to prevent the potential witness from testifying against the individual(. Se-tion $)) of Indian E!iden-e A-t $:;) Reads as (nder:

ELo person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been marriedA nor shall he be permitted to disclose any such communication unless the person who made it or his representative-in-interest, consents, e#cept in suits between married persons, or proceedings in which on married person is prosecuted for any crime committed against the other.E Here is thus, a prohibition against the disclosure of any communication between spouses made during the subsistence of marriage unless the person who made it or his representative-in-interest consents to the same. The bar is not only against a spouse being compelled to disclose the same but also e#tends to cases where the spouse may be inclined or willing to disclose the same. n the latter case, the disclosure can be permitted if the other spouse, who made the same, agrees to the disclosure. /rin-i le &nderl1in8 This Se-tion ?ection %)) of the ndian Nvidence $ct recogniHes the age-old concept of marital confidence that all communications between spouses during the wedlock are sacrosanct. #*C* +er8hese +s* T*,* /oonan and Anr* >athi, daughter of /. ". Berghese, was married to T. C. :oonan. :oonan wrote from !ombay, letters to >athi who was then residing with her parents at Trivandrum, which as it was claimed contained defamatory imputations concerning Berghese. Berghese then filed a complaint in the "ourt of the District /agistrate, Trivandrum, against :oonan charging him with offence of defamation. :oonan submitted an application raising two preliminary contentions P '%( that the letters which formed the sole basis of the complaint were inadmissible in evidence as they were barred by law or e#pressly prohibited by law from disclosureA and ')( that uttering of a libel by husband to his wife was not EpublicationE under the law of ndia and hence cannot support a charge for defamation, and prayed for an order of discharge, and applied that he may be discharged. n Nngland the rule there is a well-settled law that e#cept in certain well-defined matters, the husband and wife are regarded as one and in an action for libel, disclosure by the husband of the libel to his wife is not publication. !ut the rule that husband and wife are one in the eye of law has not been adopted in its full force under our system of law and certainly not in our criminal *urisprudence. n this case hence, :oonanMs contention that the letters addressed by him to his wife are not e#cept with his consent-admissible in evidence by virtue of ?ection %)) of the ndian Nvidence $ct, and since the only publication pleaded is publication to his wife, and she is prohibited by law from disclosing those letters, no offence of defamation could be made out were accepted.