You are on page 1of 12

1 | Page

According to Vivienne Harpwood, defamation consists of publishing a
defamatory statement which refers to an identifiable claimant, without lawful
justification. According to Winfield, defamation is the publication of a
statement which reflects on a person’s reputation and tents to lower on a
person’s reputation of right thinking members of society generally or tends
to make him shun or avoid him. So whenever there is an injury to the
reputation of a person, he may institute civil proceedings for damages
against the wrongdoer.
Libel and Slander
Defamation consists of the torts of libel and slander. Libel is representation
made in some permanent form e.g. writing, printing, picture or statue etc.
slander is the publication of a defamatory statement in a transient form e.g.
it may be spoken by words or gestures.
Distinction between Libel and Slander
1. Libel is a written defamation addressed to the eye. Slander is a spoken
defamation addressed to the ear.
2. Libel is in some permanent form produced with deliberations. Slander
is defamation in transient form.
3. At common law a libel is a criminal offence as well as a civil wrong but
a slander is a civil wrong only. Under the Indian Law both are
considered as criminal offences.
4. A libel is a tort of actionable per se. A slander is actionable only when
special damage can be proved to have been its natural consequences
or it conveys certain imputations.
In exceptional cases slander is actionable without proof of special damage.
They are a) imputation of criminal offence punishable with imprisonment b)
imputation of disease c) imputation of unchastity d) imputation of unfitness
of incompetence.
The important reasons are assigned for the above distinctions are
a. In a libel the defamatory matter is in some permanent form, a slander
is in its nature transient
b. A slander may be uttered in the heat of the moment and a sudden
provocation, the reduction of the charge into writing and its

A libel conduces to breach of peace a slander does not. .2 | Page subsequent publication in a permanent form show greater deliberation and raise a suggestion of malice. c.

X published a statement Miss Y had given birth to a child.g. The standard to be applied is that of a right minded citizen a man of fair average intelligence and not that of a special class of persons whose values are shared or approved by the fair minded members of the society generally. For e. Innuendo A statement may be prima facie defamatory and that is so when its natural and obvious meaning leads to that conclusion. Whether a statement is defamatory or not thus depends upon how the right thinking members of the society are likely to take it.e. Manju Lata. In DP Choudhary v. It must not only be false but also defamatory. MGM Picture Ltd. When the natural and ordinary meaning is not defamatory but the plaintiff wants to bring an action for defamation he must prove the latent or the secondary meaning i. The statement must be defamatory: Defamatory statement is one which tends to injure the reputation of the plaintiff. The defamatory statement could be made in different ways: it may be oral. the innuendo which makes the statement defamatory. In Yousoupoff v. contempt or tends to injure him in his profession or trade or causes him to be shunned or avoided by the right thinking members of society generally. printed or by the exhibition of a picture. ridicule. it may be considered to be defamatory. The court found that the statement was false so held liable in an action. statue of by some conduct. a Russian Princes was falsely imputed by a cinematograph film that she had been raped or seduced by the notorious monk.3 | Page Essentials of Defamation 1. Here the statement in its natural . had run away with a boy named Kamalesh on the pretext of attending night classes in her college. Thus any statement may be defamatory which exposes the plaintiff to hatred. The court held that this tendered to make the plaintiff be shunned and avoided in the estimation of right thinking person’s of the society generally. Rasputin. the plaintiff. the statement may prima facie be innocent but because of some latent or secondary meaning. Sometimes. a local daily published a statement that Manjulata a girl of 17 years and a student of BA. The statement must be such which tends to lower a person in the estimation of the right thinking members of society generally or which tends to make them shun or avoid that person. in writing.

no member of that group or class can sue unless he can prove that the words would reasonably be considered to be referring to him.4 | Page meaning is not defamatory. In Cassidy v. M and was living with him in immoral cohabitation. M the race horse owner and Miss C whose engagement has been announced. the defendant published in a news paper a photograph of Mr. a chaberwell man had been convicted of bigamy. As the words were considered to be understood as referring to the plaintiff. An individual unless the group in question has legal identity for example is a company and can therefore sue for loss of the groups reputation. a Camberwell barman. It is immaterial that the defendant did not intend to defame the plaintiff. When the words are considered to be defamatory by the persons to whom the statement is published. M and Miss C together with the words. The statement must refer to the plaintiff: In an action for defamation the plaintiff has to prove that the statement of which he complaints referred to him. So held in Cassidy case. The story was true of Harold Newstaed. London Express Newspaper Ltd. the defendants published an article stating that Harold Newstead. If the person to whom the statement was published could reasonably infer that the statement referred to the plaintiff. that she was not lawful wife of Mr. the defendants were held liable. . Thus if a man wrote that all lawyers were thief’s no particular lawyer could sue him unless there was something to point to the particular individual. Daily Mirror News Paper Ltd. Mr. But it may become defamatory Y pleads that she was not married yet. In an action by the plaintiff. the wife of Mr. no action will stand unless a) the class is so small that the claimant can establish that the statement must apply to every member of the class or b) the claimant can show that the statement refers to him or her directly. The defendants were therefore held liable. The action for defamation was brought by another Harold Newstead. M it was held that the publication was capable of conveying a meaning defamatory of the plaintiff viz. In Newsted v. a Camberwell Barber. there is defamation even though the person making the statement believed it to be innocent. 2. This statement was false as they were already married. When the words refer to a group of individual or a class of persons. the defendant is nevertheless liable.

In Mahendra Ram v. It was held that unless the defendant knew at the time of writing letter that the plaintiff did not know Urdu language and it would necessitate reading of the letter by a third person he would not be liable.. Some of the appellant’s friends considered the article to be referring to him. an individual of that community does not have a right of action. The same was read over to him by a third person as the plaintiff did not know Urdu. the Court held that to defame a dead person is not a tort and the maxim actio personalis moritur cum persona will applies in such kind of cases. most of the members of which are resident abroad. it could not reasonably be considered to be referring to the appellant and the respondents were not liable. The court held that there was no publication. 3. London Express Newspaper ltd. Harnam Prasad. it was held that communication between husband and wife or vice versa is not amount to publication.g. Madrs v.5 | Page The leading case is Knuppfer v. Annamalai Mudhaliar. A writes to B and tells him falsely that C is a cheat. In Arumuga Mudhaliar v. Govindan Kutty. the defendant wrote a defamatory letter in Urdu to the plaintiff. it was held that when an editorial in a newspaper is defamatory of a spiritual head of a community. Communication to the plaintiff himself not enough because defamation is injury to the reputation and reputation consists in the estimation in which others hold him and not a man’s own opinion of himself. It was however held that since the article referred to such a big class. In TJ Ponnen v. this is a publication but if A write to C and tells him that he is a cheat. K. In AIADMK. this is not a publication. In this case the husband wrote a letter containing defamatory statements against her father . In Dhirendra Nath v. The respondents published a statement of the party as a whole. For e. The statement must be published Publication means making defamatory statement known to some person other than the person defamed and unless that is done no civil action for defamation lies. where two persons jointly write a letter containing defamatory matter concerning the plaintiff and sent the same by registered post. the appellant was the member of a party the membership of which about two thousand out of which twenty four members including the plaintiff were in England. Rajat Kanti. MC Varghese.

In Vimal Kumar v. a Minister was arrested for causing nuisance in management of school and he also took share from salary of teachers. truth of the defamatory matter is a complete defence. Justification by truth: In a civil action for defamation. Desdwikar. Fair Comment: The second defence to an action for defamation is that of fair and bonafide comment. the law treats such occasions to be privileged and a defamatory statement made on such occasions is not actionable. It must be a comment and not statement of facts: comment means an expression of opinion based on certain facts. case. it was a privileged communication. b. If the facts are not true. The facts must be true. The allegations found to be correct by evidence of students and teachers. Thus the act of the defendant was held to be non-libelous. The principle is that the law will not permit a person to recover damages in respect of an injury to a character which he does not or ought not to possess. So held in Alexander v. the plaintiff alleged that the defendant published a circular wherein it was stated that the plaintiff. NE Rly Co. DEFENCES 1. 2. i. Comment must be fair and bonafide: the word fair means honest and also of relevant comment or in other words it must be genuine or real comment c. it does not matter if it is incorrect on some immaterial detail. Following are the essential requisites of fair comment: a. the comment thereon will not come within the ambit of good defence.122 of Indian Evidence Act.6 | Page in law. An action by MC Varghese was rejected on the basis of sec. MC Varghese. the court held that if the statement is proved to be substantially true. Privilege There are certain occasions when the law recognizes that the right of free speech outweighs the plaintiff’s right to reputation.e. In cases where the defamatory statement contains several charges and some of them are found true and some not. These privileges are of two categories: . The matter commented upon must be of public interest: whether it amounts to a public interest or not will depend upon the facts and circumstances of each case 3.

REMEDIES a. ii. 1850 iii.e. while in the latter the defendant hurts the dignity or self esteem of the plaintiff or what the plaintiff thinks about himself.7 | Page a. State communications: a statement made by one officer of the state to another in the course of official duty is absolutely privileged for reasons of public policy. To avail this defence the defendant has to prove the following a) the statement was made on a privileged occasion i. Difference between absolute and qualified privilege. b. was in discharge of duty or protection of interest or it is a fiar report of parliamentary or other public proceedings b) the statement was made without malice. The former requires publications while in the latter it is not necessary. 1. Absolute Privilege In matters of absolute privilege no action lies for the defamatory statement even though the statement is false or has been made maliciously. Injunction . 2. Qualified Privilege In certain cases the defence of qualified privilege is also available. but in the latter it is relevant. Judicial proceedings . In absolute privilege the occasion itself is privileged but in the latter occasion is not privileged unless and until the defendants proves it. In absolute privilege the malice is irrelevant. These cases are i. In such cases public interest demands that an individual’s right to reputation should give way to the freedom of speech. DEFAMATION AND INSULT The words of defamation is distinct from insult caused by words. Absolute privilege is irrebuttable but the latter is rebuttable. 3. signs or representations in that in the former the defendant injures the plaintiffs estimation of reputation by others or what others think about him. Parliamentary Privilege: Article 105 of Indian Constitution provides this. The former is an actionable wrong while the latter is not so actionable unless accompanied by defamatory provides under the Judicial Officers Protection Act.

8 | Page b. Damages .

light. All three torts have the same characteristics. If the invasion is unintended though direct resulting from a positive act. No anger or hostility is essential to liability. If the invasion was indirect though foreseeable or if the invasion was from an omission as distinguished from a positive act. For e. Thus to constitute a tort of battery two things are essential.9 | Page TRESPASS Tort of trespass is one of the oldest torts in English law. cause direct and immediate harm and are actionable per se. they must be committed intentionally. North West RHA. Intention: the intention which is required in battery is not the intention to hurt the claimant but the intention to apply physical force. or to pull a chair from under him whereby he falls to the ground or to apply a tone-rinse to his scalp. Recent development has led to further limitation. TRESPASS TO PERSON BATTERY According to Winfield a battery is the intentional and direct application of force to another. The basis of this tort is that any direct invasion of protected interest from a positive act was actionable subject to justification. there could be no liability in trespass though the wrongdoer might have been liable in some other form of action.g. In Potts v. Thus intentionally to bring any material object into contact with another’s person is sufficient application of force to constitute a battery for example to throw water upon him. without proof of damages. See Flower v. it was held that a surgeon was performs an operation or . It is also probably a battery to project heat. there will still be no liability if the conduct of the defendant was reasonable or even if it was unreasonable if the invasion was an unforeseeable consequence.e. Maxwell case the term defined as the application of force to the person of another without lawful justification amounts to the wrong of battery. Lanning and Letang v Cooper In modern law the trespass takes three forms: trespass to person. an unwanted kiss may be a battery. they are: 1. noise or vapours to cause physical injury or personal discomfort. i. to land and to goods. This is however trivial the amount or nature of the force may be and even though it neither does nor is intended nor is likely or able to do any manner of him. In Eisener v. So even to touch a person without his consent or some other lawful reason is actionable.

Application of Force: The application of force against another person without lawful justification is another necessary ingredient of battery. the intent to do violence must be expressed in threatening acts not merely in threatening speech. A conditional threat is no assault nor is a mere verbal threat unless there is an immediate . Even if the defendant is intended to injure someone other than the claimant.10 | P a g e other medical procedure without the consent of the patient commits tort of battery though in such cases there may be an intention of the well being of the patient. Physical touching or impact is not needed in the case of assault. was stopped by churchwarden who sat next by one to the claimant. The court held that it amount to an assault. So held in O’ Brien v. Any physical contact with the body of or his clothing of a claimant is sufficient to amount to force. It is an unlawful attempt to do a bodily hurt to another coupled with the present ability and intention to do the act. Probably mere words do not constitute an assault however insulting or even menancing. Gunard. to shake it at a man who by his distance from the scene of action is inaccessible to such violence is not an assault. this could be still amount to battery if as a consequence the claimant suffers some application of force. the claimant succeeded in battery when he was hit by a bullet intended by a soldier for someone else. It has been held that immediate intention to carry out his threat into effect is the most important factor. Minister of Defence. the defendant advancing with clenched fist upon the claimant at a parish meeting. 2. If there is a forcible contact no damage is necessary for trespass is actionable perse. The touching which is needed is that there must be reasonable apprehension of immediate injury or violence to the plaintiff. ASSAULT Assault is putting a person in fear of an immediate battery. Thus to shake ones fist in a man’s face is an assault. According to Winfield assault is an act of the defendant which causes the claimant reasonable apprehension of the infliction of a battery on him by the defendant. In Stephens v Mayors. Where there is consent to the contact there is no battery and the same is true where the claimant though not in fact consenting so conducts himself as to lead the defendant reasonably to believe that consent exists. In Livingstone v.

Fear or reasonable apprehension of force as harm on the part of plaintiff is a necessary ingredient of assault.g. but it is not always true. But there need be no actual intention or power to use violence for it is enough if the plaintiff on reasonable grounds believes that he is in danger of it. In such a case battery does not include assault. A blow from behind inflicted by an unseen assailant. George case. St. So held in R v. He then told the plaintiff that his ear rings would be detrained for default in the payment of land revenue and called a gold smith to take out plaintiff’s ear rings. Nandipati. Lawful correction: Assault or battery may be justified on the ground that it was done in exercise of parental authority i. for the correction of a pupil.11 | P a g e intention and a present ability to do the act. On demand the plaintiff pleaded his inability to pay. child. But where battery is committed without fear or apprehension of force or harm on the part of the plaintiff then battery does not include assault.11. So whenever fear or reasonable apprehension of force or harm on the part of the plaintiff results in battery then assault is included in the battery. Thus it is actionable to point a gun at a man in a threatening manner even though to the knowledge of the defendant but not to the plaintiff it is unloaded. apprentice or a soldier.e. An Indian case on this point is Bavisetti V S Rao v. in this case the plaintiff was in arrears of land revenue amounting to rs. Does battery include assault? Many authorities are of the opinion that battery includes assault. The court held that it was not the case of assault since after the arrival of gold smith the defendant said nothing and did nothing and that the threat of use of force by the gold smith to the plaintiff was too remote a possibility to have put the plaintiff in fear of immediate or instant violence. On arrival of the gold smith another person paid off the amount of arrears. The village munsiff vent to his residence to collect the land revenue. DEFENCES AGAINST ASSAULT AND BATTERY Expulsion of trespass: when a person enters upon the property of another with force without permission and refuses to go out quietly the owner is permitted to use force as may be reasonably necessary but if the trespasser enters quietly the owner must request him to retire before using force. For e. Retaking of goods: when a person wrongfully takes the goods out f the possession of rightful owner or any other person authorized on his behalf .60.

Preservation of pubic peace: if any person disturbs a public meeting. Statutory Authority: an assault may be justified on the ground that it was done in serving legal process or searching any premises under any law. a lawful game or a public worship he may be lawfully removed.12 | P a g e may first request the wrong doer to deliver the property and if he refuses the owner or his authorized agent may use reasonable force as necessary. .