You are on page 1of 17

5

1 of 20

Defamation Law in India


Transcript of "Defamation Law in India"
1. 1. KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013 Overview of Evolution of the Law of Defamation and its Practice
in India S almond defines the wrong of defamation as the publication of a false and
defamatory statement about another person without lawful justification1. According to
Underhills, such a statement becomes defamation if it is made about another without just
cause or excuse, whereby he suffers injury to his reputation (not to his self-esteem)2. He
considers defamatory statement as one which imputes conduct or qualifies tending to
disparage or degrade any person, or to expose him to contempt, ridicule or public hatred
or to prejudice him in the way of his office, profession or trade. Blackburn and George
define defamation as the tort of publishing a statement which tends to bring a person into
hatred, contempt or ridicule or to lower his reputation in the eyes of right thinking
members of society generally3. The words to lower his reputation in the eyes of right
thinking members of society generally are taken from the test suggested by Lord Atkin in
Sim v. Stretch, viz. would the words tend to lower the plaintiff in the estimation of
right thinking members of the society generally. Fraser thinks that a statement becomes
defamatory if it exposes on to hatred, ridicule or contempt or which causes him to be
shunned or avoided, or which has a tendency to injure him in his office, profession or
trade. However, Winfield does not agree with this definition. According to him,
defamation is the publication of a statement which tends to lower a person in the
estimation of the right thinking members of society generally or which tends to made
them shun or avoid that person. He thinks that a statement may possibly be defamatory
even if it does not excite in reasonable people feelings quite so strong as hatred contempt
or ridicule. The phrase right thinking members of society excludes a lay or morally
blunt men or hypersensitive and conscious persons.4 Defamation may thus be defined as
any intentional false communication, either written or spoken, that harms a person's
reputation; decreases the respect, regard, or confidence in which a person is held; or
induces disparaging, hostile, or disagreeable opinions or feelings against a person5. The
wrong of defamation may be committed by making defamatory statements which are
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. Defamation is a unique tort, especially when understood in its historical context.
Until the 16th century in England, general jurisdiction over defamation was exercised by
the clergy. Thereafter, the common law courts developed an action on the case for slander

where temporal, as distinct from spiritual damage 1 th Salmond on Torts,13 1961


edition. P361 th Law Torts, Underhills,18 1946 edition p 23 3 nd Elements of the Law of
Torts by Blackstone and George,2 1949 edition p. 167 4 th Winfield, Tort, 7 edition 1963,
P.574 5 http://legal-dictionary.thefreedictionary.com/defamation 2 1
2. 2. KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013 could be established. In the late nineteenth and early twentieth
centuries, liability in defamation was extended because of the menace to reputations
occasioned by the new, popular press with its mass circulation. In Derbyshire County
Council v Times Newspapers Ltd the press scored a notable victory. The House of Lords
ruled that a democratically elected body should be open to uninhibited public criticism
and that the threat of a defamatory action would surely inhibit the freedom of speech of
the press. However, in Reynolds V Times Newspapers Ltd, the Court of Appeal was
mindful of the fact that the European Rights Convention, which stressed upon the
fundamentality of the right to freedom of speech, was destined to become a part of
common law and that thus there should be allowed the defense of qualified privilege to
be raised by the press when commenting on public figures. Defamation is a relatively
new tort for Indian Law. Not many defamation suits were filed in the country until
recently and the only ones that were filed were those by film stars and the rich and the
famous, against the media, trying to salvage their reputation. However, now after the
media revolution in this country, and with people becoming more aware of their rights,
the frequency of defamation suits being filed is increasing. Recently, there have been a
few cases where a few journalists have exposed the corrupt side of the politicians by
discreetly filming a politician with a hidden camera when he was taking a bribe for
posing questions in parliament or religious heads discreetly accepting bribes in order to
go ahead and declare something about their religion, distorting completely the religious
principles they are supposed to uphold and by misuse the authority vested in him/her. In
English Common Law, reputation is the most clearly protected and is remedied almost
exclusively in civil law by an award of damages after trial by a jury. However, the Law of
Defamation like many other branches of tort law aims at balancing the interests of the
parties concerned. These are the rights that a person has to his reputation vis--vis the
right to freedom of speech. The Law of Defamation provides defenses to the wrong such
as truth and privilege thus also protecting right of freedom of speech but at the same time
marking the boundaries within which it may be limited. In India tort law is obtained from
British Common Law and is yet uncodified, except for few areas. Therefore the existing
law relating to defamation places reasonable restrictions on the fundamental right of
freedom of speech and expression conferred by Article 19(1) (a) of the Constitution and
is saved by clause (2) of Article 19. Defamation is defined as the publication of a
statement which reflects on a persons reputation and tends to lower him in the estimation
of rightthinking members of society generally or tends to make them shun or avoid him.
Defamatory statements can be made as libel or as slander as discussed in the succeeding
paragraphs. Libel: The publication of a false and defamatory statement tending to injure
the reputation of another person without lawful justification or excuse. The 2
3. 3. KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013 statement must be in a printed form, e.g., writing, printing, pictures,
cartoons, statue, waxwork effigy etc. Lopes, J., in Monson V. Tussauds points out that
libels need not always be in writing or writing. The defamatory matter may be conveyed

in some other permanent form as a statue, a caricature, an effigy, chalk mark on a wall,
sign or pictures. Conversely, the spoken work is the most obvious example of a form of
expression which is slander; other examples are gestures, and perhaps, inarticulate
expressions of disapproval such as hissing or booing, or cat calls and significant gestures,
such as winking etc., In Manson V. Tussauds case, the defendants, who kept a wax works
exhibition, had exhibited a wax model of the plaintiff with a gun, in a room adjoining the
Chamber of Horrors (a room in the basement, in which the wax models of notorious
criminals were kept). The plaintiff has been tried for murder in Scotland and released on
a verdict of Not proven and a representation of the scene of the alleged murder was
displayed in the chamber of horrors. The Court of Appeal held that the exhibition was
libel. 6 Thus it is libelous to write and publish of a man that he is a rogue or a rascal, a
swindler, a crook, a coward, a liar, a hypocrite, a villain, a blackguard, a blackleg, a
libeller, a scandalmonger or a habitual drunkard, or that he is dishonest or immoral or
wanting ingratitude. It is libelous to write that man has been guilty of oppressive
insulting, intolerant or unbrotherly conduct. In such cases the onus lies on the defendant
to prove from the context in which the words were used or from the manner of their
publication, e.g., in slander the tone in which the words were uttered or other facts known
to those to whom the words were published, that words could not be understood by
reasonable men to convey the imputation suggested by the mere consideration of the
words themselves i.e., they were understood merely as a joke or (in an action for slander)
a mere abuse or as in no sense defamatory of the plaintiff. In the second class of cases the
language is ambiguous as where it is equally capable on the face of it of two meanings,
the one defamatory and the other innocent. In Tolley vs. Fry, Tolley was a champion
amateur golfer and member of a sports club. The rules of the club prohibited members
from associating themselves with any advertisement media. The defendants, Fry, who
were manufacturers of chocolates caused to appear in certain newspapers an
advertisement of their chocolate, and a caricature of the plaintiff playing a stroke at golf
with defendants chocolate protruding from his pocket. It was held by the House of Lords
that the innuendo was proved in view of the circumstances and therefore, the defendants
were liable. Slander: A false and defamatory statement by spoken words and/or gestures
tending to injure the reputation of others. It is in a transient form. It also involves the sign
language used by the physically disabled. While libel is actionable per se without proof of
special damage, the slander is actionable only on proof of special damage. Special
damage signifies that no damages are 6 1895 1 Q..B. 671) 3
4. 4. KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013 recoverable merely for loss of reputation by reason of the slander,
and that the plaintiff must prove loss of money or of some temporal or material advantage
estimable in money. If there is only loss of the society or consortium of ones friends, that
is not enough. Where there is no need to prove special damage in defamation, the plaintiff
can recover general damages or the injury to his reputation without adducing any
evidence that it has in fact been harmed, for the English law presumes that some damage
will arise in the ordinary course of things. It is enough that the immediate tendency of the
words is to impair his reputation. If the plaintiff contends that special damage has been
suffered in addition to general damages, he must allege it in his pleadings and prove it at
the trial but even if he breaks down on this point, he can still recover general damages. In
India the between libel and slander on the point whether it is actionable without proof of

special damage has not been recognized. Here, both libel and slander are criminal
offences under the Indian Penal Code and both of them are actionable in civil law without
proof of special damage as in Ms. Ramdhara v. Phulwatibai7. Slander may be the result
of a sudden provocation uttered in the heat of the moment, while the libel implies grater
deliberation and raises a suggestion of malice. Libel is likely to cause more harm to the
person defamed than slander because there is a strong tendency everywhere on the part of
most people to believe anything they see in print. In general slander is actionable only on
proof of special damage, but in the following exceptional cases slander is actionable per
se or without proof of special damage. Words which are not defamatory in their ordinary
sense may, nevertheless, convey a defamatory meaning owing to the circumstances in
which they are spoken. Such words are actionable if it is proved that would be understood
as defamatory by the persons to whom they were published. In Boydell V. Jones8 a
lawyer even took objection to the description of an honest lawyer which was applied
to him in the heading of a paragraph containing some details of a case in which he was
concerned; and it was held that the phrase was capable of meaning the exact opposite of
what it said or light therefore be libelous. In Cassidy V. Daily Mirror Newspapers Ltd., a
majority of the court of Appeal held the innuendo was established and the Jury entitled
her to damages as they held that the publication conveyed to reasonable person an
aspersion on the plaintiffs moral character. Imputation of Criminal Offence: When the
slander imputes that the plaintiff has committed a crime punishable with imprisonment,
there must be direct imputation of the offence, not merely suspicion of it and it is not
enough if the offence imputed is punishable with fine. The words imputing a suspicion of
a crime, even though the offence is punishable corporal, are not actionable without proof
of special damage. But the words you are a rogue and I will prove you are 7 1969
Jab.L.J.582 1838.4M&W. P.446 8 4
5. 5. KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013 rogue, for you forged my name are not mere imputation of a
suspicion and are actionable per se. Again the words you are guilty (innuendo) of the
murder of D have been held to amount to a charge of murder and are actionable without
proof of actual damage. The crime imputed need not be indictable; it is sufficient if it is
punishable corporal. Nor it is necessary that the words should specify any particular
offence. Where the imputation of crime is accompanied by an express reference to a
transaction which merely amounts to a civil wrong, slander is not actionable per se.
Where the crime imputed is impossible and has not been committed with the knowledge
of all parties etc., where the defendant said to the plaintiff Thou has killed by wife and
she was then alive within the knowledge of all, there is no such imputation as can be
made the basis of a suit without proof of special damage. Libel, if it tends to provoke the
breach of the peace is a crime as well as tort; Slander as such is never criminal although
spoken words may be punishable as being reasonable, seditious, and blasphemous or the
like. This distinction between libel and slander is not recognized in India. In England
while libel is both a crime and civil wrong, slander is only a civil wrong. In India,
However both are criminal offences. Indian decisions relating to slander may be
classified under three heads, viz. vulgar abuse, imputation of unchastity to a woman and
aspersion of caste. Imputation of disease: Imputation that the plaintiff is suffering from an
unpleasant, contagious or infectious disease tending likely to exclude the plaintiff from
society is actionable per se. Imputation of unfitness or incompetence: An imputation of

unfitness, dishonesty or incompetence in any office, profession, calling, trade or business


held or carried on by the plaintiff at the time when slander is published is actionable per
se. The words sala, haramjada, sooar and bapar beta were held to be mere abuse.
Where however, an abusive language is not only insulting but amounts to defamation as
well as action will lie even without proof of special damage. It has been held by the Oudh
Chief Court that to say of a high caste woman that she belongs to a low caste is a slander
which is actionable per se not only at the instance of the woman herself, but also at the
instance of her husband.9 Imputation of Unchastity: Imputation of unchastity or adultery
to a woman or girls is also actionable per se. It has been held that imputation of
unchastity includes that of lesbian or homosexual vice. Formerly imputation of
unchastely to women or girls was not actionable per se, except in the City of London
Slander of Women Act 1891 that extended its purview to all over the Country. In Parvathi
V. Manner the defendant abused the plaintiff and said that she was not the legally married
wife of her husband, but a woman who had been ejected from several 9 Gaya Din Singh v
Mahabir Singh, 1. Luck 386 5
6. 6. It has been published, i.e. is communicated to at least one person other than the
claimant. Regardless of whether a defamation action is framed in libel or slander, the
plaintiff must always prove that the words, pictures, gestures etc are defamatory. Equally,
the plaintiff must show that they refer to him. Finally he must also prove that they were
maliciously published. These are the three essential elements in a defamation action that
are discussed in detail in the succeeding paragraphs. The statement must be defamatory:
Any imputation which exposes one to disgrace and humiliation, ridicule or contempt, is
defamatory. It could be made in different ways as in it could be oral, in writing, printed or
by the exhibition of a picture, effigy or statue or by some conduct. According to Lord
Atkins, whether a statement is defamatory or not depends upon how the right thinking
members of society the society are likely to take it. Yet the term right-thinking members
of society is highly ambiguous. 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 not shared or approved by the fair minded members of that society generally. If
the likely effect of the statement is the injury to the plaintiffs reputation, it is no defense
to say that it was not intended to be defamatory. When the statement causes anyone to be
regarded with feelings It refers to the plaintiff, i.e. identifies him; The statement (the
technically correct term is imputation) is defamatory; KUNAL BASU LLB SEM.-I
LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 places for
unchastely. It was held that the defendant was liable. The Common Law rule that slander
is not actionable per se has not been followed in India. The reason given is that the rule is
not founded in any obvious reason or principle and that it is not in consonance with
Justice, equity and good conscience English law itself underwent a change by the
Slander of Women Act. In Common law, a libel is a criminal offence as well as a civil
wrong, but a slander is a civil wrong only. However in Indian law, both are criminal
offences under Sec. 499 of the I.P.C. Libel is more favorable to the claimant because it is
actionable per se and injury to reputation will be presumed. However, whether the case is
one of libel or slander, the following elements must be proved by the claimant in order
for the defendant to be liable for the tort of defamation: of hatred, contempt, ridicule,
fear, dislike, or disesteem, it is defamatory. In D.P. Choudhary v. Manjulata there was
publication of a statement in a local daily in Jodhpur that Manjulata on the pretext of

attending her evening BA classes ran away with a boy named Kamlesh. The girl belonged
to a well-educated respectable family. She was seventeen years of age. The news item
was untrue and had been irresponsibly published without any justification. This was
defamatory and the defendants, the newspaper publishers were held liable. However,
words spoken in anger or annoyance or in the heat of the moment are not defamatory as
they no way reflect on the character of the one 6
7. 7. KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013 being abused. The standard applied in determining whether or not a
statement is defamatory is that of a right minded citizen, a man of fair intelligence, and
not that of a special class of persons whose values are not shared or approved by the fair
minded members of society generally. If the likely effect of that statement is injury to the
plaintiffs reputation, it is no defense to say that it was not intended to be defamatory.
Mere hasty expression spoken in anger, or vulgar abuse to which no hearer would
attribute any set purpose to injure character would not be actionable. Words which merely
injure the feelings or cause annoyance but in no way reflect on character or reputation are
not libelous. Sometimes the statement being used to defame may be prima facie innocent
but becomes defamatory because of some latent or hidden meaning. In such a scenario
the plaintiff must prove the hidden meaning, which is the innuendo if s/he wants to file a
suit for defamation. For instance in Cassidy V Daily Mirror Newspapers the newspaper
published a picture of a lady and the race horse owner with the caption underneath, Mr.
M. Corrigan, the race-horse owner and Miss X whose engagement has been announced.
The newspaper was held liable in a suit that said that the lady was the lawful wife of Mr.
Corrigan and complained that the words suggested that she had been living with him in
immortality. The liability of the defendants rested on their failure to make independent
inquiry. This also brings forth another aspect of this tort that intention to defame is not
necessary and if the words are considered to be defamatory by the persons to whom the
statement is published, there is defamation. Another feature of the law of defamation is
that innuendo is also penalized if it is defamatory. This is illustrated by the case of
Sumatibai v. Nandkumar Deshpande. In this case there was a newspaper article about
how the bowls brought by kindergarten children were not returned after they left the
institution. There was an innuendo that there was no account for the unreturned bowls
and the only person who knew what became of them was Sumatibai. It was held that the
article was abusive and reprehensible and the suggestion of misappropriation of the bowls
by Sumatibai was defamatory.10 In Liberace v Daily Mirror Newspapers Ltd (1959), the
American pianist Liberace, who at the time was very famous for his glittering costumes
and effeminate manner, sued the Mirror over an article which described him as a deadly,
winking, niggering, chromium-plated, scent-impregnated, luminous, quivering, giggling,
fruit-flavoured, mincing, icecovered heap of mother-love.11 Liberace claimed that the
article implied he was homosexual, which he denied. Similarly, in 1986 the Star
published a gossip column story about Lord Gowrie, an ex-Cabinet Minister, who had
stepped down from his post the year before. Questioning why he had resigned, the story
referred to expensive habits, and said that Lord Gowrie would snort at the idea 10 11
Extracted on Sep 13, 2013 from http://www.indiankanoon.org/doc/1352591/ Extracted on
Sep 14, 2013, from catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearson... 7
8. 8. KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013 that he had been born with a silver spoon round his neck. Lord

Gowrie sued, arguing that references to expensive habits, snorting and a silver spoon
implied that he habitually took cocaine. He won his case.12 A statement is prima facie
defamatory when its natural and obvious meaning leads to that conclusion. At times
though a statement may be prima facie innocent but some latent or secondary meaning
may be considered defamatory, the burden to prove the latent meaning lies on the
plaintiff. For example, saying even A is an angel may be slander if the statement was
understood to refer to a criminal gang known as The Angels. In 1988 the business
magazine Stationery Trade News carried an article about counterfeit stationery products
which were being imported into the UK. Towards the end of the story, it mentioned a
different problem, involving envelopes which were not made in the UK being marketed
under a brand name which sounded British. The makers of these envelopes sued the
magazine, claiming that the story implied that they were selling counterfeit envelopes. 13
They won their case. The statement must refer to the plaintiff: The plaintiff has to prove
that the statement which is claimed to be defamatory actually refers to him/her. It is
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 the
plaintiff, the defendant is nevertheless liable. In R.K.Karanjia Vs. KMD Thackaresey14 it
was observed that the burden of proving malice in law for every false and defamatory
statement, is always on the plaintiff. In Sadosiba Panda Vs. Bansidhar Sadhu15, it was
held that proof of actual loss of reputation is not necessary. It is sufficient to establish that
the defamatory statement made would damage one's reputation. In Hulton Co. V Jones
the defendants published a fictional article in their newspaper in which aspersions were
cast on the morals of a fictitious character-Artemus Jones, stated to be a Church warden.
On this basis one Artemus Jones, a barrister, brought an action against the defendants.
The defendants pleaded that Artemus was a fictional character and the plaintiff was not
known to them and thus they had no intention to defame him. Notwithstanding this, they
were held liable because a substantial number of persons who knew the plaintiff and had
read the editorial would have assumed it to be referring to him. However, when the
defamation refers to a class of persons, no member of that group can sue unless he can
prove that the words could reasonably be considered to be referring to him. When the
statement though generally referring to a class can be reasonably considered to be
referring to a particular plaintiff, his action will succeed. In Fanu v. Malcomson, in an
article published by the defendants, it was mentioned that cruelty was practiced upon 12
Extracted on Sep 14, 2013, from
catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearson... Extracted on Sep 14, 2013,
from catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearson... 14 AIR 1970 Bom. 424
15 AIR 1962 Orissa 115 13 8
9. 9. KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013 employees in some of the Irish factories. From the article as a
whole including a reference to Waterford itself, it was considered that the plaintiffs
Waterford factory was aimed at in the article and the plaintiff was, therefore, successful in
his action for defamation. The statement must be published: Publication means making
the defamatory matter known to some other third party and unless that is done, no civil
action for defamation can lie in court. Communication to the plaintiff wont count
because defamation is injury to the reputation which consists in the estimation in which
others hold him and not a mans own opinion of himself. However, if a third party

wrongfully intercepts and reads a letter sent to the plaintiff it is not defamation. However
when the defendant knows that the letter is likely to be read by someone else and it
contains some personal information only meant for the recipient, then he will be liable.
Also, an injunction can be issued against the publication of a defamatory statement which
is likely to injure the reputation of one of the parties involved as was done in Prameela
Ravindran v. P. Lakshmikutty Amma. When the repetition of the defamatory matter is
involved, the liability of the person who repeats that defamatory matter is the same as that
of the originator, because every repetition is a fresh publication giving rise to a fresh
cause of action. Not only the author is liable but the editor, printer or publisher would be
liable in the same way. Publication means making a defamatory matter known to some
person other than the person defamed. Therefore communicating to the plaintiff himself
is not enough for defamation, however it will be defamation if the defendant knew or
ought to have known that the letter although sent to the plaintiff will be read by a third
person for example writing in a language not known to the plaintiff which would required
a translator. Dictating a defamatory letter to the typist or sending it via postcard or
telegram is defamation since it is likely to be read by someone else. A father opening the
sons letter or a butler opening and reading a sealed letter meant for his employer is not
defamation since there was no publication. If a third party wrongfully reads a letter meant
for the plaintiff, the defendant is not liable. A husband and wife being one person under
the eyes of the law, communication of the defamatory matter from the husband to the
wife or vice versa is no publication. However communication of matter defamatory of
one spouse to the other is sufficient publication. Every person who repeats the
defamatory matter is liable in the same way as the originator, because every repetition is a
fresh publication giving rise to a fresh cause of action. Under Section 499 of the Indian
Penal Code, defamation is committed by 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. The aim of the law of defamation is to
protect 9
10. 10. It is not defamation to convey a caution, intended for the good of a person to whom
conveyed or for public good. In India, defamation through the internet is punishable
under Article 66A of the Information Technology Act of 2000 and may be punishable for
imprisonment 10 It is not defamation to make an imputation on the character of another
person, provided it is made in good faith by person for protection of his or others
interests. It is not defamation to prefer in good faith an accusation against any person
to any of those who have lawful authority over that person with respect to the subject
matter of accusation. It is not defamation if a person having any authority over another
person, either conferred by law or arising out of a lawful contract, to pass in good faith
any censures on the conduct of that other in matters to which such lawful authority
relates. It is not defamation to express in good faith any opinion regarding the merits of
any performance which an author has submitted to the judgment of the public. It is not
defamation to express in good faith any opinion regarding the merits of any case, which
has been decided by a Court of Justice, or the conduct of any person as a party, or the
witness or the agent, in such case. Publication of a substantially true report. Any
expression in good faith on the conduct or character of a public servant on a public

question. Truth published for public interest; KUNAL BASU LLB SEM.-I LAW OF
TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 ones reputation, honor,
integrity, character and dignity in the society. Defamation is both a crime and a civil
wrong. An aggrieved person may file a criminal prosecution as well as a civil suit for
damages for defamation. There is no statutory law of defamation in India except Chapter
XXI (Section 499-502) of the Indian Penal Code. Under Section 500 of the Indian Penal
Code, defamation shall be punished with simple imprisonment for a term which may
extend to two years, or with fine, or both. As far as civil liability of defamation is
concerned, it has been long settled in the country that an action for damages would lie in
proper cases. A large number of artificial and technical rules have grown around this
branch of law in England. Though courts in India are not bound by them however, the
dicta may be helpful in that they can be applied to Indian cases as principles of equity,
justice and good conscience. The following are some defenses which may be invoked
against the crime of defamation:
11. 11. KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013 upto three (3) years, and a fine. However, by virtue of Section 79 of
the Information Technology Amendment Act 2008 which became a law on February 5,
2009, social networking websites or known as intermediaries shall not be liable for any
third party information, data, or communication link made available by him and
provided the following requisites are present (a) the function of the intermediary is
limited to providing access to a communication system over which information made
available by third parties is transmitted or temporarily stored; or (b) the intermediary does
not (i) initiate the transmission, (ii) select the receiver of the transmission, and (iii)
select or modify the information contained in the transmission. Section 468 (2) (c ) of the
Criminal Procedure Code, stipulates that the limitation for prosecution of offenses
punishable with imprisonment for a term more than one (1) year but not exceeding three
(3) years shall be three (3) years. Under Section 199(5) of the Criminal Procedure Code,
if the offense for defamation is committed against the President/Vice President of India,
Governor of the State, Minister of a Union or of a State, or any other public servant
employed in connection with the affairs of the Union or of a State in respect of his
conduct in the discharge of his public functions, the action shall prescribe if the
Complaint to be initiated in writing by the Public Prosecutor shall not be made within a
period of six (6) months from the time of the commission of the offense. As far as
defamation under tort law is concerned, as a general rule, the focus is on libel (i.e. written
defamation) and not on slander (i.e. spoken defamation). In order to establish that a
statement is libelous, it must be proved that it is (i) false, (ii) written; (iii) defamatory, and
(iv) published. However, there are defenses to the Tort of Defamation that are discussed
in the succeeding paragraphs. Justification by truth: In a civil action for defamation, truth
is a complete defense. However under criminal law, it must also be proved that the
imputation was made for the public good. Under the civil law, merely proving that the
statement was true is a good defense the reason being that the law will not permit a man
to recover damages in respect of an injury to a character which he either does no or ought
not to possess. In a civil action for defamation, the truth of the defamatory matter is a
complete defense because by such publication, the reputation of an individual is brought
to the level he deserves. The defense is available even if the publication was made
maliciously. If a statement is substantially true but incorrect in certain minor particulars,

the defense will still be available. In Subhash Chandra Bose V. Knight & Sons, The
Statesman published in its issue of 26th November,1924, passage commenting on the
speech of Lord 11
12. 12. The matter commented upon must be of public interest. If due to malice on the part
of the defendant, the comment is a distorted one, his comment ceases to be fair and he
cannot take such a defense. In Gregory V Duke of Brunswick the plaintiff, an actor,
appeared on the stage of a theatre but the defendant and other persons in malice started
hooting and hissing and thereby caused him to lose his engagement. This was held to
actionable and an unfair comment on the plaintiffs performance and the defendants were
held to be guilty. For example, a former employer has a moral duty to state a servants
character to a person who is going to employ the person. But if the former employer
without any enquiry publishes the character of his servant with a motive to harm the
servant, the defense of qualified privilege cannot be taken. Such communications may
also be made in the case of confidential relationships like those of husband and wife,
father and son and daughter, guardian and ward, master and servant, principal and agent.
In modern times it includes everything relating to national or local government, the
administration of public institutions whether of State or Private aided, or charitable or
educational institutions; the public conduct not only of all public officials but of all
persons as priests, clergyent, judges, barristers, political candidates, and agitations who
take part in public affairs, in short it includes the conduct of every man and institution of
public concern. Privilege: It is of two kinds, viz. absolute and qualified as discussed in
the succeeding paragraphs. Absolute Privilege: Certain statements are allowed to be made
when the larger interest of the community overrides the interest of the individual. No
action 12 The comment must be fair, i.e., must be based on the truth and not on untrue
or invented facts It must be a comment, i.e., an expression of opinion rather than an
assertion of fact KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms.
SUMITI AHUJA DATE: SEP 25, 2013 Lytton, the then Governor of Bengal, where-in it
was stated that the Governor said Mr. Subhash Chandra Bose was arrested under
Regulation 3 and alleged that he was the brain behind the terrorist conspiracy. The
plaintiffs complaint was that the writer stated a fact that he was a member and a
directing brain of a terrorist movement. The Court held that although the defendants were
entitled to refer to the fact that the Viceroy and the Governor, had caused the arrest of the
plaintiff because they were satisfied that he was a terrorist, but in a matter of so great
importance to the plaintiff it was very necessary that they should refrain from conveying
to the ordinary reader an opinion of their own which was in effect the reiteration of a
charge of criminal conspiracy. A fair and bona fide comment on a matter of public
interest: It involves making fair comments on matters of public interest. For this defense
to be available, the following essentials are required:
13. 13. KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013 lies for the defamatory statement even though it may be false or
malicious. In such cases, the public interest demands that an individuals right to
reputation should give way to the freedom of speech. This privilege is provided to
Parliamentary, judicial proceedings, Military and Naval and State proceedings. Art.
105(2) of our Constitution provides that (a) statements made by a member of either
House of Parliament in Parliament, and (b) the publication by or under the authority of
either House of Parliament of any report, paper, votes or proceedings, cannot be

questioned in a Court of law. A similar privilege exists in respect of State Legislatures,


according to Art. 194(2). No action for libel or slander lies whether against Judges,
Counsels, Witnesses, or Parties, for words written or spoken in the course of any
proceedings before any court recognized by law, even though the words written or spoken
were written or spoken maliciously, without any justification of excuse, and from
personal ill-will, and anger against the person, defamed. Such a privilege also extends to
proceedings of the tribunals possessing similar attributes. Protection to the judicial
officers in India has been granted by the Judicial Officers protection Act, 1850. The
counsel has also been granted absolute privilege in respect of any words spoken by him
in the course of pleading the case of his client. If, however the words spoken by the
counsel are irrelevant not having any relevance to the matter before the Court, such a
defence cannot be pleaded. The privilege claimed by a witness is also subject to a similar
limit. 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. Such privilege also extends to
reports made in the course of military and naval duties in the publication. Qualified
Privilege: For communications made in the course of legal, social or moral duty, for selfprotection, protection of common interest, for public good and proceedings at public
meetings, provided the absence of malice is proved. Also, there must be an occasion for
making the statement. Indian Penal Code The statement should be made without any
malice. In India, the Parliamentary Proceedings (Protection of Publication) Act, 1977,
grants qualified privilege to the publication of reports of proceedings of parliament.
According to Sec. 3 (1) no person shall be liable to any proceedings, civil or criminal,
if any court in respect of the publication in a newspaper of a substantially true report of
any proceedings, of either House of Parliament unless the publication is proved o have
been made with malice. Art. 361-A which was inserted by Amendment in 1978 provides
protection of publication of 13 Or, it is a fair report of parliamentary, judicial or other
public proceedings The statement should be made in discharge of a public duty or
protection of an interest contains such a privilege in its ninth exception to Section 499.
To avail this defense, the following things must be kept in mind:
14. 14. KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013 proceedings of Parliament and State Legislatures. The above stated
protection is not available unless the publication has been made for public good. Thus, to
claim qualified privilege in respect of parliamentary proceedings the publication should
be without malice, and for public good. While courts have awarded damages broadly in
consonance with the principles enumerated above, they have also resorted to legal
precedent and created newer case law and legal precedent. In Byrne v Deane (1937), the
claimant was a member of a golf club, whose owners illegally kept gambling machines
on the premises. Someone reported them to the police and afterwards a poem was posted
up in the club, implying that the claimant had been the informant. He sued, and won the
original case, but on appeal the courts held that the suggestion was not defamatory,
because a right-thinking member of society (or as it might be expressed today, an
ordinary, reasonable person) would not think less well of someone for telling the police
about a crime. In 1997, a columnist on the Express on Sundays magazine mentioned a
newspaper story which had stated that the film star Nicole Kidman had insisted that
builders working on her house should face the wall whenever she walked past. A judge
initially found that the story, though unpleasant, was not capable of being defamatory, but

Ms Kidman appealed. The Court of Appeal agreed with her that the statement was
capable of being defamatory. In the event the case was settled out of court. Section 499 of
the Indian Penal Code (IPC) defines defamation as: 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 excepted, to defame that person. Explanation 1 states that it may
amount to defamation to impute anything to a deceased person, if the imputation would
harm the reputation of that person if living, and is intended to be hurtful to the feelings of
his family or other near relatives. Explanation 2 states that it may amount to defamation
to make an imputation concerning a company or an association or collection of persons as
such. Explanation 3 provides that an imputation in the form of an alternative or expressed
ironically, may amount to defamation. Explanation 4 states that no imputation is said to
harm a person' s reputation, unless that imputation directly or indirectly, in the estimation
of others, lowers the moral or intellectual character of that person, or lowers the character
of that person in respect of his caste or of his calling, or lowers the credit of that person,
or causes it to be believed that the body of that person is in a loathsome state, or in a state
generally considered as disgraceful. 14
15. 15. KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013 Section 499 of the IPC also provides ten exceptions to
defamation16 that are broadly in consonance with the generic principles and exceptions
discussed above. The first is the imputation of truth which public good requires be
making or publishing. It is not defamation to impute anything which is true concerning
any person, if it be for the public good that the imputation should be made or published.
Whether or not it is for the public good is a question of fact. The second relates to public
conduct of public servants. It is not defamation to express in good faith any opinion
whatever respecting the conduct of a public servant in the discharge of his public
functions, or respecting his character, so far as his character appears in that conduct, and
no further. The third exception relates to the conduct of any person touching any public
question. It is not defamation to express in good faith any opinion whatever respecting
the conduct of any person touching any public question, and respecting his character, so
far as his character appears in that conduct, and no further. Thus, it is not defamation in A
to express in good faith any opinion whatever respecting Zs conduct in petitioning
Government on a public question, in signing a requisition for a meeting on a public
question, in presiding or attending at such meeting, in forming or joining any society
which invites the public support, in voting or canvassing for a particular candidate for
any situation in the efficient discharge of the duties of which the public is interested. The
fourth exception relates to the publication of reports of proceedings of courts. It is not
defamation to publish a substantially true report of the proceedings of a Court of Justice,
or of the result of any such proceedings. The fifth exception relates to merits of cases
decided in Court or conduct of witnesses and others concerned. It is not defamation to
express in good faith any opinion whatever respecting the merits of any case, civil or
criminal, which has been decided by a Court of Justice, or respecting the conduct of any
person as a party, witness or agent, in any such case, or respecting the character of such
person, as far as his character appears in that conduct, and no further. Thus, A says-" I
think Z' s evidence on that trial is so contradictory that he must be stupid or dishonest." A

is within this exception if he says this in good faith, inasmuch as the opinion which he
expresses respects Z' s character as it appears in Z' s conduct as a witness, and no farther.
However, if A says that "I do not believe what Z asserted at that trial because I know him
to be a man without veracity"; A is not within this exception, inasmuch as the opinion
which expresses of Zs character, is an opinion not founded on Zs conduct as a witness.
The sixth exception states that it is not defamation to express in good faith any opinion
respecting the merits of any performance which its author has submitted to the judgment
of the public, or respecting the character of the author so far as his character appears in
such performance, and no farther. A performance may be submitted to the judgment of
the public expressly or by acts 16 Extracted on Sep 14, 2013, from
http://www.indiankanoon.org/doc/1041742/ 15
16. 16. KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013 on the part of the author which imply such submission to the
judgment of the public. Thus, a person who publishes a book submits that book to the
judgment of the public. Similarly, a person who makes a speech in public submits that
speech to the judgment of the public. Likewise, A says of a book published by Z-" Zs
book is foolish; Z must be a weak man. Zs book is indecent; Z must be a man of impure
mind." A is within the exception, if he says this in good faith, inasmuch as the opinion
which he expresses of Z respects Z' s character only so far as it appears in Z' s book, and
no further. However, if A says-" I am not surprised that Zs book is foolish and indecent,
for he is weak and a libertine." A is not within this exception, inasmuch as the opinion
which he expresses of Z' s character is an opinion not founded on Z' s book. The seventh
exception relates to censure passed in good faith by person having lawful authority over
another. It is not defamation in a person having over another any authority, either
conferred by law or arising out of a lawful contract made with that other, to pass in good
faith any censure on the conduct of that other in matters to which such lawful authority
relates. Thus, a Judge censuring in good faith the conduct of a witness, or of an officer of
the Court; a head of a department censuring in good faith those who are under his orders;
a parent censuring in good faith a child in the presence of other children; a schoolmaster,
whose authority is derived from a parent, censuring in good faith a pupil in the presence
of other pupils are within this exception. The eighth exception states that it is not
defamation to prefer in good faith an accusation against any person to any of those who
have lawful authority over that person with respect to the subject- matter of accusation.
Thus, if A in good faith accuses Z before a Magistrate; if A in good faith complains of the
conduct of Z, a servant, to Z' s master; if A in good faith complains of the conduct of Z, a
child, to Z' s father- A is within this exception. The ninth exception states that it is not
defamation to make an imputation on the character of another provided that the
imputation be made in good faith for the protection of the interest of the person making
it, or of any other person, or for the public good. Thus, A, a shopkeeper, says to B, who
manages his business-" Sell nothing to Z unless he pays you ready money, for I have no
opinion of his honesty." A is within the exception, if he has made this imputation on Z in
good faith for the protection of his own interests. Likewise, A, a Magistrate, in making a
report to his own superior officer, casts an imputation on the character of Z. Here, if the
imputation is made in good faith, and for the public good, A is within the exception. The
last and tenth exception states that it is not defamation to convey a caution, in good faith,
to one person against another, provided that such caution be intended for the good of the

person to whom it is conveyed, or of some person in whom that person is interested, or


for the public good. Libel and slander are creatures of English common law, but they are
not treated as distinct from each other in Indian jurisprudence. India offers the 16
17. 17. KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013 defamed a remedy both in civil law for damages and in criminal
law for punishment. This is unusual since defamation as a crime is almost nonexistent
anywhere in the world. While civil law for defamation is not codified as legislation and
depends on judge-made law, criminal law is in the IPC (section 499 creates a criminal
offence of defamation). In a civil action, the claimant needs to prove that the statements
injured the persons reputation and were published. The onus then shifts to the defendant
to prove that the imputations or statements were either true, or amounted to fair comment,
or were uttered or stated in circumstances offering absolute or qualified privilege like
Parliamentary or judicial proceedings. In criminal law, the burden rests on the
prosecution to prove beyond reasonable doubt that there was an offence of defamation
committed and there was intent to do so. Then it is up to the accused to substantiate that
they are protected by one of the ten exceptions listed under Section 499. These exceptions
are extremely wide. They offer protection including: stating a true fact against a person
for public good; expressing an opinion in good faith about an act of a public servant; or
even making imputations on the character of another provided its in good faith and for
the public good. The Indian Constitution protects freedom of speech as a facet of
fundamental rights under Article 19, subject to reasonable restrictions, including decency
and defamation. However, in R. Rajagopal vs State Of Tamil Nadu on 7 October, 1994,
the Supreme Court lay down certain principles17: The right to privacy is implicit in the
right to life and liberty guaranteed to the citizens of this country by Article 21. It is a
"right to be let alone". A citizen has a right to safeguard the privacy of his own..none
can publish anything concerning the above matters without his consent whether truthful
or otherwise and whether laudatory or critical. If he does so, he would be violating the
right to privacy of the person concerned and would be liable in an action for
damages..So far as the Government, local authority and other organs and
institutionsare concerned, they cannot maintain a suit for damages for defaming
them. Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar
enactment or provision having the force of law does not bind the press or media. There is
no law empowering the State or its officials to prohibit, or to impose a prior restraint
upon the press/media. As is evident from the foregoing discussion, the definition of
defamation is wide-ranging and constantly expanding, though not for practice,
particularly in India. Majorly, defamation in contemporary times is coterminous with the
rapid rise of the media industry. Needless to add, many, if not most, defamation suits have
been filed by celebrities as far back as over a century ago. In Annie Oakley's libel case,
Annie Oakley was a female sharpshooter who traveled with Buffalo Bill's Wild West
show in the late 19th century. In 1903, William Randolph Hearst ran a 17 Extracted on
Sep 14, 2013, from http://www.indiankanoon.org/doc/501107/ 17
18. 18. KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013 story in 55 newspapers alleging that Oakley stole a man's pants in
order to buy cocaine, when in fact the woman arrested for the crime falsely gave her
name as Annie Oakley. Even though most of the papers printed a retraction, Oakley sued
all 55 newspapers for libel. She spent the next six years pursuing these lawsuits,

eventually winning all but one18. Similarly, on April 16, 1996, Oprah Winfrey had
Howard Lyman, a vegetarian activist, on her show to talk about mad cow disease and the
dangers of beef production. At one point, Oprah stated that she wouldn't eat a burger ever
again, prompting a group of Texas cattlemen to sue Winfrey and Lyman under the False
Disparagement of Perishable Food Products Act of 1995. The judge ruled that the
cattlemen couldn't sue under this act, treating the case as a regular trade libel lawsuit,
which is the intentional disparagement of a business' goods and services. Winfrey
emerged victorious because the judge said that the plaintiff didn't prove that Winfrey and
Lyman acted out of a flagrant disregard for the truth. Likewise, in July 2002, Vanity Fair
printed a piece alleging that Roman Polanski, the director of such films as Rosemary's
Baby, propositioned a woman on his way to his wife's funeral in 1969. (Polanski's wife
was murdered by Charles Manson's cult followers). Polanski, who left the United States
because of a child sex charge, received permission to testify from France. In 2005, a
United Kingdom high court awarded Polanski 50,000 (US $81,380) in damages after the
magazine admitted that some details about the event were inaccurate.19 However, Indian
courts have been conservative in awarding damages for defamation. Several high profile
cases filed against or on behalf of politicians like Arvind Kejriwal, Smriti Irani, Sheila
Dixit20, and Home Minister Shinde21, industry like Tata Sons v. Outlook magazine22
and Zee News v. Naveen Jindal v.23, movie actors like Vijaykanth24, Manoj Kumar v.
Shah Rukh Khan25. Damages awarded by Indian courts too have been equally
conservative. For instance, a Delhi court reduced to Rs 9,000 from Rs 15,000 costs
imposed on Narmada Bachao Andolan (NBA) activist Medha Patkar for her failure to
appear in the 13-year-old crosscases lodged against each other by her and the head of an
Ahmedabad-based 18 Extracted on Sep 14, 2013, from
http://www.tree.com/legal/learning-about-famous-libelcases.aspx 19 Extracted on Sep 14,
2013, from http://www.tree.com/legal/learning-about-famous-libelcases.aspx 20
Extracted on Sep 14, 2013, http://www.dnaindia.com/india/1862619/report-no-relief-fordelhibjp-leader-in-sheila-dikshit-s-defamation-case 21 Extracted on Sep 14, 2013,
http://www.hindustantimes.com/India-news/NewDelhi/Courtdismisses-defamation-caseagainst-Shinde/Article1-1085938.aspx 22 Extracted on Sep 14, 2013, from
http://articles.timesofindia.indiatimes.com/keyword/defamation 23 Extracted on Sep 14,
2013, from http://www.rediff.com/news/report/zee-editor-filesdefamation-case-againstjindal/20121221.htm 24 Extracted on Sep 14, 2013, from
http://articles.timesofindia.indiatimes.com/2013-0904/chennai/41764553_1_vijayakanthpublic-prosecutor-writ 25 Extracted on Sep 14, 2013, from
http://www.indianexpress.com/news/manoj-kumar-files-caseagainst-shah-rukh-khan-fordefamation/1096678/ 18
19. 19. KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013 NGO, V K Saxena, the President of NGO National Council for
Civil Liberties (NCCL)26. It is only in very few cases such as Justice PB Sawant v.
Times Now (2011)27 that courts have awarded damages, in the interim, in the form of a
Rs. 20 crore surety from Times Now to be invested and returned to the winner of this
case. Defamation law is gradually evolving in India with demands being made to remove
the criminal liability arising from defamation in line with global best practice. However,
rampant delays in courts have somewhat caused dilution of the law of defamation with
parties remaining mostly content with administering threats of criminal defamation and

filing suits for damages accordingly as a punitive measure rather than with any real
expectation of damages being eventually awarded by courts, unlike their UK
counterparts. 26 Extracted on Sep 14, 2013, from
http://zeenews.india.com/news/delhi/defamation-cases-fineimposed-on-medhapatkar_862878.html 27 Extracted on Sep 14, 2013, from
http://indiatoday.intoday.in/story/times-now-defamation-casers-100-cr-fine-justicesawant/1/161563.html 19
20. 20. KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013 Bibliography Books David Price and Korieh Duodu, Defamation:
Law, Procedure and Practise, Sweet and Maxwell, Third Edition, 2004, London Justice
G.P. Singh, Ratanlal and Dhirajlal, The Law of Torts, Wadhwa and Company Nagpur,
Twenty-Fourth Edition, 2007, Delhi Margaret Brazier and John Murphy, Street on Torts,
Butterworths, Tenth Edition, 1999, London R. K. Bangia, Law of Torts, Allahabad Law
Agency, Nineteenth Edition, 2006, Haryana S.K. Desai and Kumud Desai, Ramaswamy
Iyers The Law of Torts, Seventh Edition, 1975, Bombay W. V. H. Rogers, Winfield and
Jolowicz on Tort, Sweet and Maxwell, Seventeenth Edition, 2006, London 20