This article is written by Rishabh soni, 3rd-year law student Amity law school Delhi. He discusses the concept of defamation in detail.

Introduction

Defamation as the meaning of the word suggests is an injury to the reputation of a person resulting from a statement which is false. A man’s reputation is treated as his property and if any person poses damage to property he is liable under the law, similarly, a person injuring the reputation of a person is also liable under the law. Defamation is defined in section 499 of Indian Penal Code 1860 and section 500 provides that a person committing an offense under this section is liable with simple imprisonment for a term of 2 years or fine or with both.

Essentials of Defamation

A. The statement must be defamatory

The very first essential of the offense of defamation is that the statement must be defamatory i.e. which tends to lower the reputation of the plaintiff. The test to check if a particular statement is defamatory or not will depend upon how the right thinking members of society are likely to take it. Further, a person cannot take a defense that the statement was not intended to be defamatory, although it caused a feeling of hatred, contempt or dislike.

In the Case of Ram Jethmalani v. Subramanian Swamy court held Dr. Swamy to be liable for defaming Mr. Jethmalani by saying that he received money from a banned organization to protect the then CM of Tamil Nadu in the case of the assassination of Rajiv Gandhi. In another recent case of Arun Jaitley v Arvind Kejriwal, the court held the statement said by Arvind Kejriwal and his 5 other leaders to be defamatory. However, the matter was finally disclosed after all the defendants apologized for their actions.

Illustration

A publishes an advertisement in a local newspaper stating false information that the company of B has committed fraud of Rs 20,00,000. Now, this statement will amount to defamation as this newspaper will be read by many readers and will surely injure the reputation of B’s company.

However, it is to be noted that mere hasty expression spoken in anger, or vulgar abuse to which no hearer would attribute any set purpose to injure the character would not amount to defaming a person.

Illustration

If A an employer scolds his employee B for not coming on time in front of the whole staff, then B cannot take the plea that A has injured the reputation of B.

B. The statement must refer to the plaintiff

In an action for defamation, the plaintiff has to prove that the statement of which he Complains referred to him, it will be 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 him, the defendant will then be liable      

Illustration- If A, a bank publishes a notice to all its branches to not give the loan to any person from xyz as the people of xyz are more often repeated defaulters. Now due to this B, a resident of xyz has suffered a huge loss. Now B can hold A liable for defaming him although the bank did not directly focus on him.

In the case of T.V., Ramasubha Iyer v. A.M.A Mohindeen Court held the defendants liable for publishing a statement without any intention to defame the defendants. The statement mentioned that a particular person carrying business of Agarbathis to Ceylon has been arrested for the offense of smuggling. The plaintiff was also one of the person carrying on a similar business, and as a result of this statement his reputation also severely damaged.

C. The statement must be published

Publication of defamatory statement to some person other than the person defamed is a most important aspect for making any person liable, and unless that is done, no action for defamation will lie.

However, if a third person wrongfully reads a letter meant for the plaintiff, then the defendant likely to be liable. But if the defamatory letter sent to the plaintiff is likely to be read by somebody else, there will be a valid publication.

In the case of Mahendra Ram v. Harnandan prasad the defendant was held liable for sending a defamatory letter to plaintiff written in Urdu knowing that the plaintiff did not knew Urdu and the letter will very likely be read over by another person.

Forms of Defamation

1.  Slander– It is the publication of a defamatory statement in a transient form           For example- Defaming a person by way of words or gestures.
2.  Libel– It is the representation made in some permanent form.

For example- Defaming a person through a representation made in some permanent form like writing, printing etc.

English law on libel and slander

Under English criminal law, libel is treated as a crime but slander is not. Slander is only a civil wrong. This distinction between libel and slander is mainly on two reasons-

1. Under Criminal law, only libel has been recognized as an offense. Slander is no offense.
2. Under the law of torts, slander is actionable, except in few cases where special damage has to be proved. Libel is always actionable i.e. without any proof. However, slander is also actionable in the following 4 cases:

•  Imputation of a criminal offense to the plaintiff.
•  Imputation of an infectious disease to the plaintiff which has the effect of preventing others from associating with the plaintiff. Example A makes a statement in his office that his colleague is suffering from AIDS. He can here be liable for defaming his colleague.
• The imputation that a person is incompetent, dishonest or unfit in regard to the office, profession, trade or business carried on by him.
•  Imputation of unchastity or adultery to any woman or girl.  

Indian law on Libel and Slander

Unlike English law, Indian law does not make any distinction between libel and slander and both are treated as criminal offenses under section 499 IPC. In the case of Hirabai Jehangir v. Dinshawdulji the Bombay and Madras high court both held that no distinction needs to be made between treating libel and slander as criminal offenses.

Innuendo

A statement is prima facie defamatory when its natural and obvious meaning leads to that conclusion. Sometimes it may happen that the statement was prima facie innocent but because of some secondary meaning, it may be considered to be defamatory. For this secondary instance plaintiff must prove the secondary meaning i.e. innuendo which makes the statement defamatory.

Illustrations

Z makes a statement that X is an honest man and he never stole my watch. Now this statement is at first instance may be innocent, but it can be defamatory if the person to whom it was made, interprets from this that X is a dishonest man having stolen the watch.

Defamation of class of persons

When particular words spoken are referred to a group of individuals or a class of persons, then no single person of that group or class can sue unless he proves that the words could reasonably be considered to referring him.

Illustration- If a person wrote that all doctors were thieves, then no particular doctor could sue him unless there was something that pointed out that the person actually intended to defame him individually.

This situation will be different if the person wrote that all doctors of Ganga ram hospital are thieves and then doctors of Ganga ram hospital can sue him for defaming them.

Communication between husband and wife

In the eyes of law, both 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 and will not come within the purview of section 499. Section 122 of the Indian Evidence Act 1872 deals with privileged communications between husband and wife and makes them out of the scope of section 499 except in suits between married persons, or in a proceeding in which one married person is prosecuted for any crime committed against the other.

In a leading case of T.J. Ponnen v. M.C Verghese the court held that the letter from husband to his wife containing defamatory matter concerning the father-in-law will not amount to defamation. It will very much be covered within the scope of privileged communications between husband and wife as laid in section 122 of the Indian Evidence Act 1872.

Defenses  defamation

The defenses to an action for defamation are

1. Justification of truth
2. Fair comment
3. Privilege

Justification of truth

In a civil action for defamation, the truth of the defamatory matter is a complete defense and the reason for this is that “ Law will not permit a man to recover damages for something being true about him “.

Under criminal law on the other hand merely proving that the statement was true is not a good defense and besides this, the defendant has to show that it was made for public good also.

If the defendant is not able to prove the truth of the facts, the defense cannot be availed. In the case of Radheyshyam Tiwari v. Eknath court held the defendants for publishing defamatory matter against the defendants. Later the defendants were not able to prove that the facts published by him were true and, therefore he was held liable.

Fair comment

Making a fair comment on matters public interest is a valid defense to an action for defamation. For this, the following must be proved

• It must be a comment i.e, an expression of opinion rather than an assertion of fact

For example, If X says that A has been guilty of breach of trust and therefore he is a dishonest man. Here the latter words are a comment on the former. But if A did not commit any breach of trust and X still says to him as a dishonest man. Then it will not be a comment and will amount to an assertion of fact.

• The comment must be fair

The comment should be fair i.e. should not be based upon untrue facts.

For example, X publishes serious allegations of bribery against Y in a newspaper. Later X is not able to prove the truthness of these allegations and therefore his comment will not amount to fair comment.

•  The matter commented upon must be of public interest-

The matter on which the defendant has commented must be of public interest. Matters like administration of government departments, courts, ministers, public meetings, textbooks, etc are considered to be matters of public interest.

Privilege

As the word suggests itself i.e. giving special status. These special occasions when the law recognizes that the right of free speech outweighs the plaintiffs right to defamation and a defamatory statement made on such occasion is not actionable. Privileges are of two types.

1. Absolute privileges–  In matters of these complete immunity is given to person speaking and no action for defamation can lie against him. It includes 3 aspects

• Parliamentary proceedings– Article 105(2) of the Indian constitution gives immunity to parliamentarians to speak anything during the course of business of parliament and no action would lie against them.
• Judicial proceedings– This protection has been given to judges under judicial officers protection act of 1850. It also extends to counsels, witnesses, and parties to a suit.

2. Qualified privilege– This privilege is also available and under this, it is necessary that the statement must have been made without a malice i.e a wrongful intention.

For example, A, a shopkeeper, says to B, who manages his business, “ Sell nothing to Z unless he pays you ready money, as I am doubtful of his honesty. Now A will fall under this exception if he has made his imputation on Z in good faith for the protection of his own interest.

Conclusion

After analyzing all the key aspects of defamation as laid in section 499 IPC, we have found that the essence of defamation lies in the injury to the reputation of a person. And for this injury, he can very much sue the defendants. Defamation is of two types libel and slander. Both are considered as criminal offenses in India. There are certain exceptions to this known as privilege.