Defamation



Every man has a right to have his reputation preserved inviolate. This right of reputation is acknowledged as an inherent personal right of every person as pat of the right of personal security. It is a jus in rem, a right, a right good against the world. In Dixon v. Holden, (1869) LR 7 Eq 488, it was held that a man¶s reputation is his property, more valuable than other property.    

Dr. Winfield defines defamation as ³the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally or which tends to make them shun or avoid that person´. In other words, a defamatory statement is a statement calculated to expose a person to hatred, contempt or ridicule, or to injure him in his trade, business, profession, calling or office, or to cause him to be shunned or avoided in society. 

The word ³defamation´ is the generic name for the wrong; µlibel¶ and µslander¶ are particular forms of it. A libel is a publication of a false and defamatory statement tending to injure the reputation of another person without lawful justification or excuse. The statement must be expressed in some permanent form, e.g. writing, typing, printing, pictures, statue, waxwork effigy, cinema, film, model etc. A slander is a false and defamatory statement by spoken words or gestures tending to injure the reputation of another. It is always expressed in some temporary form, e.g. a nod, wink, shake of head, smile, hissing, sky writing.   

1. A libel is defamation in some permanent form whereas a slander is defamation in a transient form. 2. At common law, a libel is a criminal offence as well as a wrong, but a slander is a civil wrong only. Under the Indian Law, as per section 499 of the Indian Penal Code both libel and slander are criminal offences. ³Section 499 Defamation: -Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person´   

3. A libel is actionable per se i.e. without proof of damage. At common law, a slander is actionable only when special damage can be proved to have been its natural consequence, or when it conveys certain imputations. However there are following exceptions under common law when slander is actionable without proof of special damage. These exceptions are when the slander contains imputation of: A. a criminal offence punishable with imprisonment; B. a contagious or infectious disease likely to prevent other persons from associating with the plaintiff; C. Unchastity or adultery to any woman; D. Unfitness, dishonesty, or incompetence in any office, profession calling, trade or business held or carried on by the plaintiff at the time when the slander was published.     

To make one liable for the tort of defamation, one must prove the following essentials: a. the statement must be false and defamatory; b. the statement must refer to the plaintiff; and c. the statement must be published.    

The statement may be divided into two categories; 1. The statements which are defamatory in their natural and ordinary meaning; and 2. The statements which are innocent in their primary sense but may communicate defamatory meaning, if it is likely to be understood and in fact, understood in the light of certain existing facts known to the person to whom the statement has been made i.e. Innuendo.   

1. A statement is defamatory, if in its natural and ordinary sense it tends: i. To expose the plaintiff to hatred, contempt, ridicule, or obloquy; ii. To tend to injure him in his profession or trade; iii. To cause him to be shunned or avoided by his neighbours.    

Pitumber Dass v. Dwarka Prashad, (1870) 2 NWP 435 Making and publicly exhibiting an effigy of a person, calling it by the person¶s name, and beating it with shoes, are acts amounting to defamation.  

Shoobhagee Koeri v. Bokhori Ram, (1906) 4 CLJ 393 A wrote letters to the husband of X, in which he alleged X was a witch and had by her sorcery caused the death of some relations of A. He also made similar statements to their castemen. It was held that A was liable.  

Morrison v. Retichie and Co. (1902) 4 F. 645 A proprietor of a newspaper published erroneously, which he believed to be true, that the plaintiff had given birth to twin although she was married only a month ago. He was held liable for defamation.  

Ramakant v. Devilal, 1969 MPLJ 805 A statement alleging that the plaintiff got elected as President of the District Congress Committee by paying money to the voters was held to be defamatory.  

Noor Mohd. V. Mohd. Jiauddin, AIR 1992 MP 244 Bridegroom and his father refused to take the bride after marriage with them before a number of guests. The act was considered to be defamatory and both were held liable.  

Gourantla Venkateshwarlv v. B. Demudu, AIR 2003 AP 252 Allegations that the plaintiff managing director of a co-operative Society indulged in malpractices and was having illicit intimacy with several ladies were held to be per se defamatory.  

2. Innuendo Capital and Counties Bank v. Henty, (1882) 7 App. Case 741 The defendants, H and Sons, having had a dispute with one of the branch managers of the plaintiff bank, send a circular notice to their own customers-³H and Sons hereby give notice that they will not receive in payment cheques drawn on any of the branches of C and C Bank.´ The circular was followed by a run on the bank and it suffered loss. In an action brought by the bank alleging that notice was libellous, inasmuch as it amounted to an imputation of insolvency, held that the natural meaning was not libellous, and the inference suggested by the innuendo to the effect that the plaintiffs were insolvent was not the inference which reasonable persons would draw. Hence, the circular was not libellous.   

Cassidy v. Daily Mirror Newspaper Ltd. (1929) 2 KB 231 The defendants published a photograph entitled ³Mr. M. Corrigan, the race horse owner and Miss µX¶ whose engagement is announced´ Mr. C had authorised this title. The defendant did not know the plaintiff¶s existence. She was, and was known by her friends as the wife of Mr. C. She pleaded that the statement implied that she was an immoral woman cohabiting with Mr. C, proved injury to her reputation on that ground and recovered 500 Sterling Pound a damages.  

Tolly v. J.S.Fry and Sons Ltd. 1931 AC 333 

An amateur gold champion recovered damages because the defendants, a firm of chocolate manufacturers, had published a caricature on him-a packet of their chocolate protruding form his pocket, as an advertisement of their goods. The innuendo was in effect that he had consented to the use of his portrait as an advertisement for reward and had prostituted his reputation as amateur golfer. The caricature of the plaintiff, innocent in itself as the caricature, lent itself to an adverse construction, being embodied in an advertisement. 

In an action for defamation the plaintiff must show that the defamatory statement refers to him. It is not necessary for this purpose that the plaintiff should have been described by his own name. 

Morgan v. Odham¶s Press Ltd. (1971) 1 WLR 1239 In a newspaper it was published that a girl had been kidnapped by a dog-doping gang and kept in a flat at Kilburn during a specified week. The Plaintiff produced witnesses who deposed that on reading the article, they understood that he was in someway connected with the gang. The jury awarded damages to the plaintiff.  

The Court of Appeal dismissed the claim on the ground that the article contained no key or pointer which referred to the plaintiff. The House of Lords reversed the Court of Appeal and held that it is not essential that the plaintiff should be named or there should be some key or pointer referring to him and that the jury could reasonably hold that readers of the articles would ignore the discrepancies of place and time and think of the plaintiff while reading the article.  

Newstead v. London Express, (1940) 1 KB 377 The statement was published in a newspaper that ³Harold Newstead, thirty year old Camberwell man´ had been found guilty of bigamy. This statement was true of a barman of that name of the Camberwell. The plaintiff bearing the same name and aged about thirty, who carried on hair dressing business at Camberwell and about whom the statement was untrue succeeded in recovering damages in an action for defamation.  

Communicating defamatory matter to some person other than the person of whom it is written is publication in its legal sense. In other words, publication means making known the matter to some person other than the plaintiff. 

B v. Adamas, (1888) 22 QBD 66 The defendant wrote a letter to virtuous and modest woman soliciting an immoral intercourse with her. He enclosed it in an envelope properly fastened and addressed to her. The defendant was held not liable for defamation, because there had been no publication.  

Arumuga Mudaliar v. Annamali Mudaliar, (1966) 2 MLJ 223 Two persons jointly wrote a letter containing defamatory matter about the plaintiff and sent the same to the plaintiff by registered post. The Court held that there was no publication by one tort- feasors to the other as there could be no publication between joint tort-feasors. It would not amount to publication even in that case where the registered letter addressed to the plaintiff goes in the hand of a third person, who reads it out in an unauthorised manner.  

Boxsius v. Goblet Freres, (1894) 1 QB 842 A solicitor, acting on behalf of his client, wrote and sent to the plaintiff a letter containing defamatory statements regarding her. The letter was dictated to a clerk in the office, and was copied into the letter-book by another clerk. In an action against the solicitor for libel it was held that the publication to his clerks was necessary and usual in the discharge of his duty to his client, and was made in the interest of the client.  

Mahendar Ram v. Harnandan Prasad, AIR 1958 Pat 445 The defendant sent a defamatory letter in Urdu to the plaintiff. The plaintiff did not know Urdu and therefore asked some other person to read it and tell him the contents. The plaintiff brought an action for defamation against the defendant is not liable in this case so long it is not proved that the defendant knew it that the plaintiff was unable to read the letter in Urdu and therefore, he will have to ask someone else to read it for him.  

The uttering of a libel by a husband to his wife is no publication because under the common law in England, the husband and wife are deemed one person. Jones v. Williams, (1885) 1 TRL 572 Sending a defamatory letter to a wife about her husband, or to a husband about his wife, is sufficient publication, the husband and the wife being regarded as distinct and different persons for such purposes.   

Wennhak v. Morgan, (1888) 20 QBD 635 Uttering of a libel by a husband to his wife is no publication on the common law principle that husband and wife are one.  

M.C. Varghese v. T. J. Poonan, AIR 1970 SC 1876 In a criminal prosecution for defamation under the Penal Code, the Supreme Court of India has held that this rule of common law has no application in the Indian Penal Law and that a letter written by the husband to the wife containing a libel against the wife¶s father and passed on by the wife to him can be admitted into evidence if it can be proved without calling the wife as a witness.  

Following are the main defences available in an action for defamation: a. Justification by Truth b. Fair and bona fide comment c. Privilege d. Apology     

The truth of defamatory words is a complete defence to an action of libel or slander though it is not so in a criminal trial. Truth is an answer to the action, not because it negatives the charge of malice but because it shows that the plaintiff is not entitled to recover damages.  

McPherson v. Daniels, (1829) 10 B and C 263 The defendant wrote: ³A said that B had been convicted of theft´. It will be no defence for the defendant to prove that A did tell him so, that he honestly believed that A said and he only repeated it. He must prove as a fact that B was convicted of theft.  

Cookson v. Horwood, (1932) 2 KB 485 If you repeat rumour you cannot say it is true by proving that the rumour in fact existed you have to prove that the subject matter of the rumour is true.  

Alexander v. N.E. Railway, (1865) The defendant published at their station a notice stating that the plaintiff had been convicted of travelling in a train without ticket and sentenced to a fine of £1 with an alternative of three weeks imprisonment. In fact, the alternative was two week¶s imprisonment. The Court held that the matter should be left to the jury to decide whether the inaccuracy of the statement made is substantially true or untrue. The defendants were held not liable, as the statement has been substantially true.   

Fair comment means comments honestly believed to be true and not inspired by any malicious motive. 

Dainik Bhaskar v. Madhusudan Bhaskar, AIR 1991 MP 162 A fair and bona fide comment on a matter of public interest is no libel.  

Some matters of public interest are: 1. Affairs of State. Public acts of ministers and officers of State can be commented on, [Watson v. Walter, (1868) LR 4 QB 73; Davis v. Shepstone, (1886) 11 App Cas 187]; 2. The administration of justice [Lewis v. Levy, (1858) EB & E 537]   

3. Public institutions and local authorities [Purcell v. Sowler (1877 2 CPD 215)] 4. Ecclesiastical matters [Kelly v. Tinling, (1865) LR 1 QB 699] 5. Books, pictures, and works of art [Strauss v. Francis (1866)4 F & F 1107; Thompson v. Shackell, (1828) Mood and Malk 187] 6. Theatres, concerts and other public entertainments [Gregory v. Duke Brunswick, (1843) 1 C & K 21; Green v. Chapman, (1837) 4 Bing NC 92]    

To claim the defence of fair and bona fide comment the defendant must establish: 1. That the statement complained of is a comment and not the statement of fact. A says of a book published by Z, ³Z¶s book is foolish; Z must be a weak man, book is indecent, Z must be a man of impure mind´. These are comments and will be protected if they are not malicious. A says ³I am not surprised that Z¶s book is foolish and, indecent, for he is a weak man and libertine´. This is not a comment but a statement of fact and A cannot plead the defence of air comment but must prove his words true.    

2. That the comment is fair A comment, in order to be fair, must be based upon facts. It is not possible, first to invent a fact and then to comment upon. The fact must exist.  

3. That matter is of public interest A fair and bona fide comment on matters of public interest is not liable. A writer in newspaper may comment on the conduct of a public man but if he imputes dishonestly, he must be prepared to justify it.  

4. That the comment has not been published maliciously The comment must also be bona fide and must not be made a cloak for malice.  

Privilege means that a person stands in such relation to the facts of the case that he is justified in saying or writing what would be slanderous or libellous in any one else. The general principle underlying the defence of privilege is the common convenience and welfare of society or the general interest of society.  

Privilege is of two kinds: a. Absolute Privilege; b. Qualified Privilege 

A statement is absolutely privileged when no action lies for it even though it is false and defamatory, and made with express malice. Occasions absolutely privileged may be grouped under four heads: i. Parliamentary Proceedings; ii. Judicial Proceedings; iii. Military and Naval Proceedings; iv. State Proceedings.      

Statements made by members of either House of Parliament or Legislators in their places in the House, though they might be untrue to their knowledge, could not be made the foundation of civil of criminal proceedings, however, injurious they might be to the interest of a third person. [Articles 105 and 194 of the Constitution of India] 

Under Article 105(2) of the Constitution of India no Member of Parliament shall be liable to any proceedings in any Court in respect of anything said by him in the Parliament or in any committee thereof. [See Tejkiran Jain v. Sanjiva Reddy, AIR 1970 Sc 1573] The Article further provides that no person shall be liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.  

Article 194(2) has similar provision applying to the Legislatures of States. Suresh Chandra v. Punit Goola, (1951) 55 CWN 745 The privilege under these Articles does not extend to the publication in a private newspaper of a speech made by a member within the four walls of the House, which contains defamatory matter and which is published at the instigation of such member.   

C.K. Daphtary v. O.P. Gupta, AIR 1971 SC 1132 No privilege under these articles i.e. 105 and 194, can be obtained in respect of a publication not under the authority of Parliament or Legislature. Lake v. King, (1780) 1 Saund 131 Statements of witnesses before Parliamentary Select Committee of either House are also privileged.    

Every statement made in the course of judicial proceedings with whatever motive, by judge or juror, party, witness or advocate is absolutely privileged. Jagat Mohannath Sha Deo v. Kalipado Ghose, (1922) ILR 1 Pat 371 A lawyer, while pleading his client¶s case in a Court, characterised B, the opposite party as a liar, a swindler and forgerer without any justification and with a view to disgracing B and to feed fat his grudge upon him. B instituted a suit against the lawyer for damages. It was held with regard to the counsel, that the question of malice, bona fide and relevancy could not be raised.   

Narayan Bhat v. Subbonna Bhat, AIR 1975 Kut 162 The plaintiff brought an action for damages against the defendant. The defendant presented a complaint to the police officer imputing the plaintiff of an offence under Section 392 of the Indian Penal Code. The plaintiff contended that by this complaint to the police he has been brought into disrepute and infamy in the society. It was held by the Court that the defamatory statements made in complaint to a police officer are absolutely privileged and no action in damages can be regarded as such statements.   

Govind Ramchandra v. Gangadhar Mahadev, (1943) 46 Bom LR 417 No action lies against a man for a statement made by him in an affidavit in the course of a judicial proceeding, even though it be alleged to have been made falsely and maliciously, and without any reasonable or probable cause.  

Proceedings of naval and military tribunals are absolutely privileged. Dawkins v. Lord Rokeby, (1875) LR 7 HL 744 Statements made before a naval or military Court of Inquiry by a military man are protected. Dawkins v. Lord Pauler, (1869) LR 5 QB 94 Reports made in the course of military or naval duty, such as adverse opinions expressed by one officer of the conduct of another, are absolutely privileged, even if made maliciously and without reasonable and probable cause.     

iv. State Proceedings Communications made by one officer of state to another are absolutely privileged. For reasons of public policy, absolute protection is given to every communication relating to State matters made by one minister to another, or to the Crown. Communications relating to State matters are not confined to cases where the Secretaries of State or Under-Secretaries of State are communicating with one another. State matters mean public matters, particularly matters connected with the administration of justice and a state officer must include a police officer whose duty it is to make enquiries and investigations into allegations of commission of criminal offences.    

Beni Nadho Prasad v. Wajid Ali, (1937) ILR 390 Report made by a police officer to a Magistrate under Section 202, Criminal Procedure Code, fall within the category of State matters and is absolutely privileged.  

The law presumes or implies malice in all cases of defamatory words; this presumption may be rebutted by showing that the words were uttered on a privileged occasion which are made in normal course of business such as dictations to a typist. 

The following are the chief instances of qualified privileges: i. When the statement has been made in performance of a duty; ii. When the statement has been made in self-defence; iii. When the communications are made in the interest of public; iv. Fair and accurate reports of proceedings; in Parliament, or any Court of Justice or in any public meeting. 

   

G. T. Thomas v. E. M. Simmons, (1898) 4 Burma LR 152 A public officer may send to his superior a report, pertinent to a mater which it is his duty to investigate, even though the report contains defamatory statements regarding an individual, such a report is confidential and is privileged. London Assn. for Protection of Trade v. Greenlands Ltd. (1916) 2 AC 15 If a person, thinking of dealing with another in any matter of business, asks a question about his character from someone who has means of knowledge, it is for the interests of society that the question should be answered; and if answered bona fide and without malice, the answer is a privilege communication.    

Tarapada Majumdar v. K.B. Ghosh & Co. AIR 1979 Cal 68 If a lawyer bona fide acts in his professional capacity on the instructions of his client he will have the protection of qualified privilege.  

This is the statutory defence available only in an action for libel contained in public newspaper or other periodical publication. The defendant must prove, firstly, absence of malice and gross negligence, and secondly, apology at the earliest opportunity inserted in the newspaper or the periodical.  

As to the remedies for defamation, a suit for damages may be brought. The publication of defamatory statements may be restrained by injunction either under Section 38 or 39 of the Specific Relief Act, 1963. 

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