Ahsan Rashid

Assistant Professor (Law)

M.S. College, Motihari

B.R.A. Bihar University

Introduction

“Every man is entitled to have his reputation preserved inviolate” (J. Blackstone)

Every man is entitled to have his reputation. A man's reputationis his property more valuable than other property. Reputation isthe state of being held in high esteem and honor or the generalestimation that the public has for a person. Reputation dependson opinion, and opinion is the main basis of communication ofthoughts and Information amongst humans. In simpler words,reputation is nothing but enjoyment of good opinion on the partof others. So, the right to have reputation involves right to havereputation inviolate or intact.

The law of defamation like many other branches of the law oftorts provides for balancing of interests. The competing interestwhich has to be balanced against the interest which a person hasin his reputation is the interest which every person has infreedom of speech. The fundamental right to freedom of speech& Expression under article 19 (1)(a) of the indian constitutionand is saved by clause 2 of Article 19.

Origin of Law of Defamation Although defamation is a creation of English law, similar doctrines existed

several thousand years ago. In early English and German law, insults were punished by cutting out the

tongue. As late as the 18th century in England, only imputation of crime orsocial disease and casting aspersions on professional competenceconstituted slander, and no offences were added until the Slander ofWomen Act in 1891, made imputation of unchastity illegal. TheDefamation Acts of 1952 and 1996 are the important statutes in Englandthat lay down the law related to defamation.

French defamation law, required conspicuous retraction of libellousmaterial in newspapers and allowed truth as a defence only whenpublicationsconcerned public figures.

In Roman law, abusive chants were capitallypunishable. In India, there is no such distinction between libel and slander. Both libel

and slander are criminal offence. It is divided into two categories:i. Criminal ii. Civil.

Defamation as a crime: The IPC under chapter XXI sections 499-502protects an individual’s / person’s reputation. Defamation against the stateis contained in section 124A [Sedition], Section 153 of the Code provides fordefamation of a class i.e., community [Riot], while section 295A deals withhate speech with regards tooutraging religioussentiments. [Hate Speech]

Meaning & Concept

The word defamation is driven from Latin word ‘Diffamare’. Etymologyof the Latin word ‘Diffamare’ provides that it means 'Spreading evil reportabout someone'. Thus, defamation is nothing but causing damage toreputation of another. Thus the question of defamation is primarily linkedup with one’s reputation. But the concept is nowhere defined in books oflaws. Though many definitionshave been attempted.

Black’s Law Dictionary- Defamation is the act of harming the reputationof another by making a false statement to a third person.

Salmond- The wrong of defamation consists in the publication of a falseand defamatory statement respecting another person without lawfuljustification orexcuse.

Winfield- defamation is the publication of a statement which reflects on aperson’s reputation and tends to lower him in the estimation of rightthinking members of the society generally or tends to make them shun oravoid that person.

defamationcan be divided into the following categories:Libel – Representation in a permanent form, e.g., writing, printing,picture, effigy or statutewhich are exposed to view.Slander – Depiction in transient form. It is basically through words spokenor gestures.

Essential Requirements1. The statement must be defamatory.2. The statement must be published i.e., communicated to at least one

person other than the claimant.3. The said statement must refer to the plaintiff. Defamatory Statement: Defamatory statement must be such which tends to lower a person in

the estimation of right thinking members of society generally, or whichtends to make them shun or avoid that person.

The standard to be applied is that of a right minded citizen. Winfieldsays it is the reasonable man. A man of fair average intelligence, andnot that of a special class of persons whose values are not shared orapproved by the fair minded members of the society generally.D.P. Chaudhary v. Km. Manjulata (AIR 1997, Raj 170)- a local dailypublished a statement that Manju lata, a girl of 17 yrs and a studeny ofB.A. had eloped with aboy named kamlesh on the pretext of attendingnight classes. The court found that statement false and defamatory andheld the defendants liable for damages.

Ram Jethmalani v. Subramaniyam Swamy (AIR 2006 Delhi300)An inquiry commission was setup for examining the facts andcircumstances relating to assassination of late Shri Rajiv Gandhi.The defendant, at a press conference alleged that the then ChiefMinister of Tamil Nadu had prior information that LTTE cadrewould make an assassination bid on the life of Rajiv Gandhi. Theplaintiff was engaged as a sr. counsel to the then CM of TN. Indischarge of his professional duties, the plaintiff cross examinedthe defendant. During the proceeding, the defendant in thewritten conclusive submission, alleged that the plaintiff had beenreceiving money from LTTE, a banned organization. Thestatement by defendant was ex facie defamatory.Ramdhara v. Phulwatibai (1969 Jab LJ 582)It has been held that the imputation by tge defendant that theplaintiff, a widow of 45 year age, is a keep of the maternal uncle ofthe plaintiff ’s daughter-in-law, is not a mere vulgar abuse but adefinite imputation upon her chastity and thus constitutesdefamation.

In South Indian Railway Co. v. Ramakrishna (1890 ILR 13Mad 34)

A ticket checker of railway asking for the identity proof andother documents as a part of his duty is no defamation, as he hasnot published any defamatory statement.

THE INNUENDO Sometimes the statement may be prima facie innocent but

because of some latent or secondary meaning may be consideredto be defamatory. When the natural and ordinary meaning is notdefamatory but the plaintiff wants to bring an action ofdefamation, he must prove the latent or secondary meaning i.e.Innuendo which makes the statement defamatory. for e.g., thestatement that a lady has given birth to a child is defamatorywhen the lady is unmarried. (Cassidy v Daily Mirror, (1929) 2kB 331)

Intention to defame is not necessaryThe Scottish case of Morrison v. Ritchie & Co (1902) 4F. 654.(Scotland). where damages were recovered against theproprietors of a newspaper who in all innocence had announcedin the paper that a lady, who had in fact been married only amonth, had given birth to twins.

2. Publication of the statement: if the defamatory statement has not been published, the

defendant will not be liable. Publication means making thedefamatory matter known to some person other than the persondefamed.

Huth v. Huth (1915) KB 52, The court held that there was nopublication, for there was no evidence that to the defendant’sknowledge the letter would in the ordinary course be likely to beopened by the butler or by any other person at the plaintiff ’shouse, before it was delivered to her.

In A. Mudaliar v. A. mudaliar ((1996) MLJ 233)it was saidwhen a defamatory letter is written in urdu to the plaintiff andhe doesn’t know urdu, he asks a third person to read it , it is notdefamation unless it was proved that at the time of writing letterdefendant knew that urdu was not known to the plaintiff.

If the defamatory statement is repeated, a fresh cause of actionarises every time. Not only the author but also the person whorepeats is liable. So editor, printer or publisher would be liable.However the book seller, news paper vendors or librarians arenot liable

3. The statement must refer to the plaintiff:The plaintiff must prove that the statement of which hecomplains might reasonably be understood by people that itrefers to the plaintiff, and that they were infact understood todo so. Intention does not matter here.In Newstead v. London Express Newspapers Ltd. (1939) 4All ER 391, The defendants published an article stating that‘Harold Newstead, a Camberwell man’ had been convicted ofbigamy. The story was true of Harold Newstead, a Camberwellbarman. The action for defamation was brought by anotherHarold Newstead, the barber. As the words were considered tobe understood as referring to the plaintiff, the defendants wereliable.Musk v Unworth 2:18-CV-8048A US libel claim over a tweet referring to the plaintiff as“pedo-guy”. The defendant’s arguments on “public figure”failed but the jury rejected the claim, apparently on the basisthat the tweet had not referred to the plaintiff by name.

The Delhi HC in Harsh Mendiratta v. Maharaj Singh saidthat an action for defamation was maintainable only by theperson who was defamed and not by his friends or relatives.

Defamation of a class of persons- If a defamatorystatement is made with respect to a community in general,then unless the person alleging the defamation can provethat the statement could reasonably be considered to referto him, he cannot bring forth a claim for damages. Forexample, if a person makes a statement that all lawyers arethieves, a lawyer cannot bring forth a claim unless he canprove that it is intended to defame him individually.

Defamation of a deceased person- it is not a tort todefame a dead person.AIADMK, Madras v. K. Govindan kutty, (1996)2 ALD139(158)(AP), However, in criminal law, a person defaminga dead person may be criminally prosecuted if theimputation would have harmed the reputation of thatperson if living, and is intended to be harmful to thefeelings of his family or other near relatives.

Defences1. Justification or truth 2. Fair comment3. Privilege

1. Justification or truth – Under criminal law, merely proving that the statement was true is no defence but in

civil law merely showing truth is a good defence. It is necessary to prove that thepublication of the defamatory statement was in public interest or for public benefit.

In Alexander v. N.E. Rly (1855) 6 B&S 340, the plaintiff had been convicted of ridinga train from Leeds without having purchased a valid ticket. The penalty was a fineand a period of imprisonment of fourteen days if he defaulted on the fine. However,following the conviction, the defendant published a notice that the plaintiff wasconvicted and issued a fine or three weeks imprisonment if in default. The plaintiffalleged that the defendant had committed libel by describing the penalty issued tohim inaccurately. The defendants argued that the conviction was described withsubstantial and sufficient accuracy.

Judgment was given in favour of the defendants. Blackburn J. noted that if thesubstance of the libel is proved to be substantially true, it does not matter if it isincorrect on some immaterial detail.

Defence is not available if the truth of the fact is not proved. Radhey Shyam Tiwariv. Eknath (AIR 1985 Bom 285)- def. published in his news paper that BDO hadissued ceritificates by accepting bribes and corrupt means.

2. Fair & Bonafide Comment-

a. The comment must be an expression of opinion based on certain factsrather than assertion of fact & the fact must be true. The fact shouldbe mentioned before making a comment. Fro ex. ‘A does not takebath, wears dirty clothes, and does not clean his teeth in the morning.He is therefore, a dirty man.’ here the latter words are a comment basedon former facts.

b. The comment must be fair, honest & relevant i.e. without malice. As inthe above example “a dirty man” is a fair comment. If suppose thecomment would have been ‘a dishonest man’ instead of dirty man onthe basis of facts already mentioned, then it is not a relevantcomment.

c. The matter commented upon must be of public interest. Publicinterest covers matters in which the public is legitimately interested.Matters of public interest include affairs of state, public acts ofministers and other officials of state, the administration of justice,public institutions, local authorities, theatres, concerts and otherpublic entertainments etc.

3. Privilege-There are certain occasions on which freedom of communication withoutfear of an action for defamation is more important than the protection ofan individual’s reputation. Such occasions are said to be privileged. Theseare of two types –

Absolute privilege- It covers cases in which complete freedom ofcommunication is regarded as of such paramount importance that actionsfor defamation cannot be entertained at all. No action lies for thedefamatory statement even though the statement is false or mademaliciously. It applies to :Parliamentary Privilege (Articles 105 & 194), Judicial proceeding,communication by public officers, military & Naval Proceedings,communication between solicitorand client and Statecommunication.

Qualified privilege- It is necessarya. That the statement must have been without malice.b. That statement was made on a privileged occasion fairly. Generally, such a privilege is available when the statement is made in

discharge of duty or protection of an interest, or the publication is in thefrom of report of parliamentary, judicial or other public proceedings orstatements in protection of one’s private interest or property or statementsmade to the authorities for redress of public grievances, or statementsmade in pursuance of legal or moral duty.

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