1.
Q.
Every person has a right to live with dignity. This right of reputation is acknowledged as an inherent personal right of every person as part of the right of personal liberty. A man's reputation is an invaluable property. If a person's reputation is being damaged then this loss exceeds far compared to the damaged property. But the law is there to protect the reputation of a person if it is being infringed by someone. Truth and privilege protect the freedom of speech. The law related to defamation is a reasonable restriction on the fundamental right of freedom of speech and expression conferred by Article 19(1)(a) of our Constitution and is saved by clause (2) of Article 19.
Defamation may be committed either by way of writing, or its equivalent or by way of speech.
Defamation committed through writing is called as 'libel'.
Defamation committed through speech is known as 'slander'.
A defamatory statement is a statement calculated to expose a person to hatred, contempt or ridicule or the person is injured in his trade, business, profession or he is defamed in such a way that he be shunned or avoided in the society.
2.
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Libel |
Slander |
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(i) A libel is a defamation which has been caused in permanent form i.e., in written or printed form. |
(i) Slander is a defamation in a transient form i.e., by speech or by gestures. |
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(ii) It is a criminal offence as well as a civil wrong. |
(ii) It is a civil wrong only but the words may be blasphemous, seditious or obscene and this is a criminal offence under section 499 of IPC. |
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(iii) It is an infringement of a right and there is no need to prove the actual damage to sustain an action. |
(iii) A slander is actionable only when special damage can be proved to have been its natural consequence, or when it conveys certain imputations. |
Under English law, there are exceptions, where slander is actionable without proof of special damage. These exceptions are when the slander contains imputation of-
(a) A criminal offence punishable with imprisonment; Simmons v. Mitchell, (1880) 6 AC 156: 43 LT 710 PC.
(b) Unchastity or adultery to any woman.1
To constitute an action for defamation following essentials are necessary:
(i) The statement must be false and defamatory,
(ii) It must be published, and
(iii) It must refer to the plaintiff.
False and Defamatory Statement
The statement must be false and defamatory. In Sim v. Stretch, (1936) 2 All ER 1237, it was observed that the defamatory statement must be such which tends to lower a person in the estimation of right thinking members of society generally. A right thinking man is a reasonable man who is neither unusually suspicious nor unusually naive and he does not always interpret the meaning of words as in case of a lawyer since "he is not inhibited by a knowledge of the rules of construction."2
Some examples (cases)-
Youssoup v. Metro-Goldwyn Mayer Pictures Ltd., MANU/TN/0369/2000 : AIR 2001 Mad 225.-The plaintiff, a Russian Princess, was falsely imputed by a cinematograph film that she had been raped or seduced by the notorious monk Rasputin. The court observed that this tended "to make the plaintiff be shunned and avoided" in the estimation of right thinking persons of the society generally.
Ramdhara v. Phulwatibai, 1969 Jab LJ 582.-The plaintiff was a widow aged 45 years. She was falsely imputated by the defendant that she is a keep of maternal uncle of plaintiff's daughter-in-law. The court held that this imputation of chastity was a defamation,
S.N.M. Abidi v. Profulla Kumar Mohanta, MANU/GH/0021/2002 : AIR 2002 Gau 75 (DB).-One of the articles published in a weekly magazine 'The Illustrated Weekly' alleged that the former Chief Minister, Profulla Kumar Mohanta had misused man and muscle power. The Court found the allegation false, baseless and defamatory which harmed the plaintiff's reputation and awarded a damage to the tune of
Rs. 5,00,000.
Innuendo-
It means a remark with double meaning. Sometimes it happens that a statement does not convey any defamatory imputation in its natural meaning, but it may convey a defamatory owing to the particular circumstances and these particular circumstances by the plaintiff, is called innuendo.
In Cassidy v. Daily Mirror, (1929) 2 KB 331, the newspaper, Daily Mirror published a news with a photograph of Mr. M and Ms. C together with the news caption that Mr. M the race horse owner and Ms. C has announced their engagement. But, this news was false as they were already married.
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1. S.I.C. 51 Slander of Women Act, 1891 (UK).
2. Winfield, Law of Tort, 10th Edn., p. 241.
Wife of M, the plaintiff brought an action against the daily on the ground that the publication was capable of conveying a meaning defamatory of the plaintiff. It meant that she was not lawful wife of Mr. M and she was living with Mr. M in immoral cohabitation. The defendants were held liable.
Q.
In Morrison v. Ritchie & Co., (1902) 4 F. 654 (Scotland), a statement was published in good faith by the defendant that the plaintiff had given birth to twins. But, the plaintiff was married only two months back and the defendant was unaware of this fact then even they were held liable.
In our country, whether intention to defame is necessary or not, has got different views. In T.V. Ramasubba Iyer v. Ahmad Mohideen, MANU/TN/0214/1972 : AIR 1972 Mad 398, the defendants published in their newspaper that a person from Tirunelveli, exporter of scented agarbattis to Ceylon instead smuggled opium into Ceylon in form of agarbattis and other news was that he was arrested in Ceylon and has been brought to Madras. On an action brought by the plaintiff, the defendants pleaded ignorance about the plaintiff and submitted that they had no intention to defame him. In this case, the Madras High Court did not follow the English cases (Morrison v. Ritchie & Co. and E. Hulton & Co. v. A. Jones), and held that there was no liability for the statements published innocently.
But in the case D.P. Chowdhery v. Manjulata, MANU/RH/0038/1997 : AIR 1997 Raj 170, a news was published in a local daily Dainik Navjyoti that the plaintiff Manjulata, a 17 years old girl, a student of B.A. belonging to a distinguished family based at Jodhpur has eloped with a boy named Kamlesh on the pretext of attending night classes at her college. It was found that the news was untrue and was published negligently and with irresponsibility. The Court found the defendant liable and awarded a damage of Rs. 10,000 to plaintiff. If the defendant has defamed the plaintiff's reputation although unintentionally, he is liable. The words are actionable if false and defamatory, although published accidentally or inadvertently.
To get the statement published is another essential ingredient in constituting defamation. Here, publication does not mean giving the publicity but to make the statement known to other person than the person defamed. For example, if X writes to Y that Z is a cheat, then it is a publication since X has told it to someone other than Z i.e., to Y. But, if X writes to Z in a closed envelope that you (Z) are a cheat, it is not a publication. To send something via telegram or postcard that could be read by others can be claimed as publication.
And, if a person knowingly sends something in writing to defame a person in a closed envelope that it will be opened by someone else, then this amounts to publication; Delacroix v. Thevenot, (1817) 2 Stark 63.
If an addressee does not know the language in which something has been written to him or he is too blind to read it then what would be the position? In a case Mahendra Ram v. Harnandan Pd., MANU/BH/0143/1958 : AIR 1958 Pat 445, the Patna High Court considered this dilemma. The defendant wrote a defamatory letter to the plaintiff in Urdu but the plaintiff did not know Urdu. The letter was then read by a third person. The court held that unless it was known to the defendant at the time of writing letter to plaintiff that Urdu was not known to him, he would not be held liable.
Q.
Husband and Wife-In the eyes of law, husband and wife are one entity hence something written defamatory by husband to his wife or vice-versa doesn't amount to publication. But communication of defamatory statement by a third party to either husband or wife are publication on the ground that although husband and wife are one person, they are not so for the purpose of having the honour and feelings of the husband assailed and injured by acts done or communication made to wife; Wenman v. Ash, (1953) 13 CB 844.
In T.J. Ponnen M.C. v. Verghese, MANU/SC/0054/1968 : AIR 1970 SC 1876: 1970 Cr LJ 1651: (1969) 1 SCC 37: (1969) 2 SCR 692, the husband wrote many letters to his wife which were defamatory, addressed to her father. Wife gave all the letters to her father M.C. Verghese. Verghese brought an action against his son-in-law. The court held that the letters were meant for defendant's wife and she or anybody else can't prove prejudice of her husband as such communication were precluded by the law to be disclosed under Section 122 of the Evidence Act. But, when the appeal reached the Supreme Court, it reversed the decision and Justice Shah said-"If the complainant seeks to support his case only upon the evidence of the wife of accused, he may be met with the bar of Section 122 of the Indian Evidence Act. Whether he will be able to prove the letters in any other manner is a matter which must be left to be determined at the trial and cannot be made the subject-matter of an enquiry at this stage".
In Shilpa S. Shetty v. Magna Publishing Co. Ltd., MANU/MH/0211/2001 : AIR 2001 Bom 176 the plaintiff, an actress filed a suit claiming damages for the articles, published in the magazine published by the appellants called stardust, are defamatory in nature and would affect her career and for injunction restraining the appellants from publishing defamatory articles. The learned single Judge was of the prima facie view that the articles deal with the personal life and are defamatory in nature and granted interim injunction restraining the defendants from republishing the articles and/or from publishing any defamatory article alleging that the plaintiff is having relationship with other actors or a married man.
Repetition of defamatory matter-In Duke of Brunswick v. Harmer, (1849) 14 QB 185, it was observed that each time the originator of a defamatory statement repeats it, it means he has published it anew and a fresh action arises for every repetition. Here, both the creator of defamatory statement as well as publisher who has repeated it will be liable.
It is upto plaintiff to prove that the defamatory statement for which he has brought the action was certainly referred to him or reasonably made so that it would be understood by the people as referred to him.
In E. Hulton & Co. v. Artemus Jones, 1910 AC 20, the appellants were newspaper proprietors of 'Sunday Chronicle'. A humorous article was published in their newspaper regarding motor festival at Dieppe - in which Artemus Jones, a church warden, was accused of living with a mistress of ill-repute in France. The article was like this...... "whist! There is Artemus Jones with a woman who is not his wife, who must be, you know..... the other thing! Whispers a fair neighbour of mine...... Here, in the atmosphere of Dieppe...... (Jones) is the life and soul of a gay little bond that haunts the casino." This character was fictitious (imaginary) and was just drawn to exemplify the naughtiness of a respectable Englishman on holiday abroad.
But the writer and owner of the article was unaware of the facts that a person - Artemus Jones - exists (lives) in real, who was a barrister and not a church warden. Artemus Jones brought an action against the newspaper. The House of Lords held that a person charged with defamation "cannot defend himself by showing that he did not intend to defend the plaintiff. He has nonetheless imputed something disgraceful, and has nonetheless injured the plaintiff. A man may publish a libel in good faith believing it to be true, and it may be found by the jury that he acted in good faith believing it to be true, but that in fact the statement was false. Under those circumstances he has no defence to the action, however his excellent indentation was". The defendants were held liable.
4.
Q.
If, a statement is made which is referred to a class or group of people sufficiently large to leave the reputation of each unsullied then one of them of the group cannot single out that he is a victim. Thus, if a man writes that all doctors are cheats, then a single doctor cannot bring an action against the writer, unless there is something pointed towards him individually-
e.g. If, it said that in Kewal Park, Delhi, all doctors are cheats and there are only three doctors in this small colony and if any of the doctors or all three file the suit then the defendant will be held liable.
In D.N. Sen v. R.K. Bhadra, MANU/WB/0040/1970 : AIR 1970 Cal 216: 1970 Cr LJ 662, an editorial of a daily newspaper contained defamatory statement about a spiritual head of a community. A person belonging to that community filed a petition for defamation, could not succeed in his individual capacity.
5.
To defame a dead person is not a tort. In All India Anna Dravida Munnetra Kazhagam, Madras v. K. Govindan Kutty, it was held that to defame a deceased person is not a tort and here the maxim 'actio personalis moritur cum persona' applies in such kind of cases. To succeed in such kind of cases, it is essential to prove that the offending words were referred to him. If someone makes a defamatory statement that X was a prostitute and if Y deceased X's daughter files a suit of defamation then Y will succeed on the ground that it affects (defamatory statement) her reputation adversely and not on the ground that this statement affected her mother's reputation.
6.
Q.
There are some specialized defences to an action for defamation which are as follows:
(i) Justification
(ii) Fair comment; and
(iii) Privilege
The law will not permit a man to recover damages in respect of an injury to a character which he does not or ought not to possess. In criminal law truth alone is not sufficient to make a defence. In the case Ashok Kumar v. Rakha K. Pandey, MANU/WB/0054/1967 : AIR 1967 Cal 178, it was held that it has to be proved that the publication of the defamatory statement was in public interest or for public benefit.
The accused is required to prove under exception 1 of section 499 of the Indian Penal Code that the statement which was contended was true and at the same time, it was made in public interest or for the benefit of public.
In Alexander v. N.E. Rly. Co., (1855) 6 B&S 340, the plaintiff was said to be convicted and sentenced to three weeks' of imprisonment but in fact, it was only for two weeks. So, the matter was substantially true and it is immaterial whether it was incorrect on some material details.
The Court found that there was sufficient justification.
Fair and bona fide comment is the second defence to an action for defamation. Essential requisites of fair comment are-
(a) there must be a comment and not a statement of facts,
(b) the comment must be fair and bona fide,
(c) the matter commented on must be of public interest.
(a) Comment-Comment usually means an expression of opinion which is based on certain facts. It is essential that the facts should be mentioned before making a comment. E.g. A takes/borrow money from others, does not return the same on time although he has money. He is a miser. Here the latter words are a comment based on the former facts.
(b) Comment must be fair-To bring the comment within the ambit of good defence, fair comment is necessary. Fair indicates here the meaning 'honest' at the same time relevant also. In the example given in sub-head (a) a miser is a fair comment. But instead of using the word 'miser' had we used 'dishonest man' then it would have been not a relevant comment.
In the case Tushar Kanti Ghosh v. Bina Bhowmic, 1953 CWN 378, the defence of fair comment has been explained as-
"(a) the comment must be fair in the sense that it must be honest and reasonably warranted by such facts;
(b) having stated the facts truly, some observations by way of comment may be added provided they consist an inference which might legitimately be drawn from the facts stated; and
(c) the exaggerations would be excused only if it is merely an excess of severity short of violent inventive and cannot take the form of an addition of untrue facts."
(a) Public interest-It is the third important essential of fair comment. The public interest usually covers the matter which is legitimately concerned with people at large. It is upto the judge to decide whether matter is of public interest or not. Public interest matters include affairs of State public acts of ministers and other officials of State, the administration of justice, public institutions, local authorities, theatres, concerts etc.
Q.
Besides defence of fair comment, on some other occasions on which freedom of communication without fear of an action for defamation is more important than the protection of an individual's reputation. These are privileged occasions and it may be either-
(a) absolute; and
(b) qualified.
(a) Absolute Privilege-Such privilege covers cases, in which complete freedom of communication is considered as of high importance and the actions for defamation is not entertained at all: a person who has been defamed on an occasion of absolute privilege has no redressal even when the statement made by the maker is so outrageous and malicious. It has following cases:
(i) Parliamentary proceedings.-Any statement made by any Member of Parliament or State Assembly is absolutely privileged and no action would lie against any member of the Legislature even in case of the statement what has been made is defamatory or malicious. Article 105(2) of the Constitution has got the provision that no Member of Parliament shall be liable to any proceedings in any court in respect of anything said by him in Parliament or any committee thereof. It is further provided in clause (2) of Article 105 that no person shall be so liable in respect the publication by or under the authority of either House of the Parliament of any report, paper, votes or proceedings. Article 194(2) has given the similar privileges to the State Legislatures.
(ii) Judicial proceedings.-Anything said or written in course of judicial proceeding is absolutely privileged even if the said thing is untrue and malicious. It is immaterial who is the maker - the judge, the jury, the parties, the witnesses or the advocates. If the words spoken by the counsel, witnesses, parties, or jury are entirely irrelevant to the subject-matter of judicial proceedings, the defence of privilege is not available to him. In Jiwan Mal v. Lachman Dass, AIR 1929 Lah 486, the defendant was a witness who remarked that so long as Jiwan Mal stands in the way, compromise cannot be effected. "He had looted the whole of Dinanagar and gets false case set up." The High Court found the above remark totally uncalled for as Jiwan Mal had nothing to do with the case. The Court therefore rejected the defence of privilege and held the defendant liable.
(iii) Communication by Public Officers.-Communications which have been made in the course of official duty by one officer of the State to another is also absolutely privileged on the ground of public policy.
(iv) Military and Naval Proceedings.-All acts which have been done by the military or naval authority, reports made in the course of official (military or naval) duty and statements, whether false or malicious made before a military or naval court-martial are absolutely privileged.
(b) Qualified Privilege.-If a defamatory statement maker proved untrue although he has acted honestly and without malice, then qualified privilege protects him. But, if plaintiff succeeds in proving his malice then the defendant would not be saved by the qualified privilege.
The defence of qualified privilege is available to defendant if he succeeds in proving two following points:
(i) Statement made in discharge of duty or in protection of common interest.-Sometimes duty is thursted upon the defendant to make communication to a third party. This duty may be legal, social or moral. Communications made pursuant to a duty owed to society may relate to the character of servants, confidential and private matters etc. In the case Boxsius v. Golbert, (1843) 1 KB 319, an advocate under instructions of his client, dictated to his typist, a letter addressed to B, containing defamatory statements about B. The letter was press copied by another clerk. B brought an action for defamation against the advocate. The Court observed that the privilege protecting a business communication made on a privileged occasion covers, "all incidents of its transmission and treatment which are in accordance with the reasonable and usual course of business." The Court further added that the publication to his clerks by the solicitor was covered by qualified privilege and, as such, Advocate was not held liable.
In Tushar Kanti Ghosh v. Bina Bhowmic, 1953 CWN 378, Mrs. Bina Bhowmic field a suit against the editor and others of Amrit Bazar Patrika for publishing a defamatory statement against her. The part of the defamatory statement was as-"Another day-light robbery was committed by Mrs. Bina Bhowmic's Union members and their hirelings early yesterday (Friday) morning when our van containing thousands of copies of Amrit Bazar Patrika and Jugantar were looted at the Hazara Road Junction distribution centre. As soon as the copies of two issues were taken out of the van, 20 to 25 men pounced upon them, destroyed some and carried away the rest presumably for selling them and pocketing the ill-gotten gains."
The Court, held that it was a defamatory statement, as the meaning of the libellous wordings was that an organization or men headed by the respondent had committed one or more day-light robberies in the past also.
The Court conceded that the matter was of common interest and the defence of fair comment could be availed of. It was observed-"It is one thing to comment upon, even with proved acts, of a public man and quite another to assert that he has been guilty of a particular act of misconduct. The publication of present case represents the plaintiff as a person who has also been guilty of trickery and employment of hirelings, and committing acts of violence including day-light robbery."
Judging by the facts, the Court held that it was not a fair comment but an assertion that the plaintiff was guilty of misconduct. So, the statement published in the paper was not defensible as protected by the right of fair comment.
Although the Court accepted the plea that the occasion was privileged but stated that the defence of qualified privilege could be granted only if it was of common interest and without express malice.
The court was of the view that there was common interest of the defendants, their subscribers and the advertisers because of the strike situation and consequent delay in newspaper. Chakravarti C.J. observed-"Common interest will apply in present case, because it was not another newspaper which had published the statement, but the 'Amrit Bazar Patrika' itself which and the readers of which were equally and directly interested in the activities of the union of its workers which was trying to bring about a suspension of the paper. To that extent the occasion was protected by qualified privilege." But C.J., further added that the protection of qualified privilege will not be available to the defendant if the statement was made with express malice.
The Court explained the express malice as-"A defamatory statement not germane in any way to the privileged occasion and not pertinent to defendant's vindication is itself evidence of malice. In the case of a qualified privilege, the plaintiff must prove malice in fact, that is the express malice as distinguished from implied malice." Express malice means an actual wrong state of mind in which the defendant acted i.e., an indirect and wrong motive, such as, spite, ill-will or prejudice or with knowledge that the statement was untrue or recklessly careless whether it was true or false.
The case R.K. Karanjia v. Krishna Raj M.D. Thackersey, MANU/MH/0073/1970 : AIR 1970 Bom 424: (1970) 72 Bom LR 94: ILR 1971 Bom 324, the Blitz, an English Weekly published an article in its September 24, 1960 issue which was directed against a Business House by the name of House Thackersey being headed by the plaintiff. The writer under the pen name of Blitz's Rocket Buster, intended to expose, how this Business House consisting of plaintiff, his brothers, their wives close relatives and friends amassed the wealth. The plaintiff who was then the chairman of the Textile Board used his position to get his company benefited and was involved in tax evasion on a colossal scales, financial jugglery, export-import rackets and customs and foreign exchange violations.
The action was brought by the plaintiff against the editor, owners and printer of the Blitz. The printer tendered an apology and the case was withdrawn against him. The defendant pleaded "qualified privilege". The Bombay High Court rejected this plea on the ground that the element of duty in communicating the statement was missing on the ground that even if the matter is of public interest, yet the person or the newspaper who wants to communicate to the general public must also have duty to communicate, and if no such duty, apart from the fact that the matter is one of the public interest can be spelt in the particular circumstances of the case, the publication could not be said to be upon a particular occasion. Secondly, it was also published maliciously. Here the intention was not to serve the public interest but to expose the plaintiff.
7.
If the Parliamentary or State Legislatures reports are published by or under authority of respective houses, then they are absolutely privileged.
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