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Stretch. The phrase ―right thinking members of society‖ excludes a lay or morally blunt men or hypersensitive and conscious persons. contempt or ridicule or to lower his reputation in the eyes of right thinking members of society generally‖3. that harms a person's reputation. Thereafter. or to cause him to be shunned or avoided in society. or to expose him to contempt. ―would the words tend to lower the plaintiff in the estimation of right thinking members of the society generally‖. or confidence in which a person is held. He considers defamatory statement as one which imputes conduct or qualifies tending to disparage or degrade any person. calling or office. whereby he suffers injury to his reputation (not to his self-esteem)2. Defamation is a unique tort. 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‖. Fraser thinks that a statement becomes defamatory if it exposes on to hatred. 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. The wrong of defamation may be committed by making defamatory statements which are calculated to expose a person to hatred. 1. general jurisdiction over defamation was exercised by the clergy. hostile. or induces disparaging. contempt or ridicule. Winfield does not agree with this definition. KUNAL BASU LLB SEM. profession or trade. However.4 Defamation may thus be defined as any intentional false communication. decreases the respect. 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. profession or trade. or disagreeable opinions or feelings against a person5. SUMITI AHUJA DATE: SEP 25. Until the 16th century in England. ridicule or contempt or which causes him to be shunned or avoided.-I LAW OF TORTS FACULTY: Ms. the common law courts developed an action on the case for slander . viz. business. regard. According to Underhills. 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. especially when understood in its historical context. either written or spoken. or which has a tendency to injure him in his office.5 1 of 20 Defamation Law in India Transcript of "Defamation Law in India" 1. According to him. profession. ridicule or public hatred or to prejudice him in the way of his office. Blackburn and George define defamation as the tort of publishing a statement which tends to bring a person into hatred. such a statement becomes defamation if it is made about another without just cause or excuse. or to injure him in his trade.

SUMITI AHUJA DATE: SEP 25. In India tort law is obtained from British Common Law and is yet uncodified. P361 th Law Torts. However. against the media.13 1961 edition. as distinct from ‗spiritual‘ damage 1 th Salmond on Torts. In English Common Law.g. reputation is the most clearly protected and is remedied almost exclusively in civil law by an award of damages after trial by a jury. 2013 statement must be in a printed form. trying to salvage their reputation. writing. which stressed upon the fundamentality of the right to freedom of speech.18 1946 edition p 23 3 nd Elements of the Law of Torts by Blackstone and George. the Law of Defamation like many other branches of tort law aims at balancing the interests of the parties concerned. 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.where ‗temporal‘. in Reynolds V Times Newspapers Ltd. now after the media revolution in this country. the Court of Appeal was mindful of the fact that the European Rights Convention. Defamation is a relatively new tort for Indian Law. Recently. 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.. Tussauds points out that libels need not always be in writing or writing. 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. 7 edition 1963. and with people becoming more aware of their rights. However. 2. KUNAL BASU LLB SEM.. J. the frequency of defamation suits being filed is increasing. statue.-I LAW OF TORTS FACULTY: Ms. 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. e. P. printing.‖ Defamatory statements can be made as libel or as slander as discussed in the succeeding paragraphs. KUNAL BASU LLB SEM. Tort. pictures. except for few areas. However. popular press with its mass circulation. The defamatory matter may be conveyed . 2013 could be established. SUMITI AHUJA DATE: SEP 25. Lopes.thefreedictionary. 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 person‘s reputation and tends to lower him in the estimation of rightthinking members of society generally or tends to make them shun or avoid him. In Derbyshire County Council v Times Newspapers Ltd the press scored a notable victory.574 5 http://legal-dictionary. 167 4 th Winfield. The 2 3. waxwork effigy etc. distorting completely the religious principles they are supposed to uphold and by misuse the authority vested in him/her.-I LAW OF TORTS FACULTY: Ms. These are the rights that a person has to his reputation vis-à-vis the right to freedom of speech. in Monson V. Libel: The publication of a false and defamatory statement tending to injure the reputation of another person without lawful justification or excuse. Underhills. 2 1 2. In the late nineteenth and early twentieth centuries. 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.2 1949 edition p. liability in defamation was extended because of the menace to reputations occasioned by the new. 3.

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

if it tends to provoke the breach of the peace is a crime as well as tort. not merely suspicion of it and it is not enough if the offence imputed is punishable with fine. imputation of unchastity to a woman and aspersion of caste. 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. Where the imputation of crime is accompanied by an express reference to a transaction which merely amounts to a civil wrong. 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 plaintiff‘s moral character. Daily Mirror Newspapers Ltd. Indian decisions relating to slander may be classified under three heads. Imputation of disease: Imputation that the plaintiff is suffering from an unpleasant. slander is not actionable per se.special damage has not been recognized. and blasphemous or the like. The words imputing a suspicion of a crime. convey a defamatory meaning owing to the circumstances in which they are spoken.L. However both are criminal offences. there is no such imputation as can be made the basis of a suit without proof of special damage. Phulwatibai7. This distinction between libel and slander is not recognized in India. vulgar abuse. 5. Here.. it is sufficient if it is punishable corporal. but in the following exceptional cases slander is actionable per se or without proof of special damage. for you forged my name‖ are not mere imputation of a suspicion and are actionable per se. P. Nor it is necessary that the words should specify any particular offence. In general slander is actionable only on proof of special damage.446 8 4 5. and it was held that the phrase was capable of meaning the exact opposite of what it said or light therefore be libelous. The crime imputed need not be indictable. In India. even though the offence is punishable corporal. 2013 rogue. nevertheless. slander is only a civil wrong. while the libel implies grater deliberation and raises a suggestion of malice. Imputation of unfitness or incompetence: An imputation of . seditious. Slander as such is never criminal although spoken words may be punishable as being reasonable. 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. But the words ―you are a rogue and I will prove you are 7 1969 Jab. Ramdhara v. contagious or infectious disease tending likely to exclude the plaintiff from society is actionable per se. there must be direct imputation of the offence. viz.4M&W.J. 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. where the defendant said to the plaintiff‖ Thou has killed by wife and she was then alive within the knowledge of all. are not actionable without proof of special damage. Imputation of Criminal Offence: When the slander imputes that the plaintiff has committed a crime punishable with imprisonment.. In England while libel is both a crime and civil wrong. Where the crime imputed is impossible and has not been committed with the knowledge of all parties etc.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25.582 1838. 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. KUNAL BASU LLB SEM. Such words are actionable if it is proved that would be understood as defamatory by the persons to whom they were published. Slander may be the result of a sudden provocation uttered in the heat of the moment. In Boydell V. Words which are not defamatory in their ordinary sense may. In Cassidy V. Libel.

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

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

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

or knowing or having reason to believe that such imputation will harm. by words either spoken or intended to be read. or by signs or by visible representations. However communication of matter defamatory of one spouse to the other is sufficient publication. Under Section 499 of the Indian Penal Code. communication of the defamatory matter from the husband to the wife or vice versa is no publication. which has been decided by a Court of Justice. P.wrongfully intercepts and reads a letter sent to the plaintiff it is not defamation. or the conduct of any person as a party.  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. Not only the author is liable but the editor. in such case. to defame that person. It is not defamation to convey a caution. the liability of the person who repeats that defamatory matter is the same as that of the originator. or the witness or the agent. the reputation of such person. because every repetition is a fresh publication giving rise to a fresh cause of action. 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.‖ The aim of the law of defamation is to protect 9 10. Therefore communicating to the plaintiff himself is not enough for defamation.  It is not defamation to express in good faith any opinion regarding the merits of any case. Lakshmikutty Amma. 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. is said.  It is not defamation if a person having any authority over another person. defamation is committed by ―Whoever. then he will be liable. makes or publishes any imputation concerning any person intending to harm. A father opening the son‘s letter or a butler opening and reading a sealed letter meant for his employer is not defamation since there was no publication. Every person who repeats the defamatory matter is liable in the same way as the originator. intended for the good of a person to whom conveyed or for public good. because every repetition is a fresh publication giving rise to a fresh cause of action. 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. A husband and wife being one person under the eyes of the law. except in the cases hereinafter expected. to pass in good faith any censures on the conduct of that other in matters to which such lawful authority relates. If a third party wrongfully reads a letter meant for the plaintiff. 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. Publication means making a defamatory matter known to some person other than the person defamed. 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. In India. Also. provided it is made in good faith by person for protection of his or other‘s 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.  Any expression in good faith on the conduct or character of a public servant on a public . the defendant is not liable. printer or publisher would be liable in the same way. When the repetition of the defamatory matter is involved.  Publication of a substantially true report. 10. either conferred by law or arising out of a lawful contract.

it must also be proved that the imputation was made for the public good. it has been long settled in the country that an action for damages would lie in proper cases. Under the civil law. the dicta may be helpful in that they can be applied to Indian cases as principles of equity. by virtue of Section 79 of the Information Technology Amendment Act 2008 which became a law on February 5. (iii) defamatory. 2013 upto three (3) years. the reputation of an individual is brought to the level he deserves.-I LAW OF TORTS FACULTY: Ms. If a statement is substantially true but incorrect in certain minor particulars. defamation shall be punished with simple imprisonment for a term which may extend to two years. the truth of the defamatory matter is a complete defense because by such publication. or both. 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.  Truth published for public interest. A large number of artificial and technical rules have grown around this branch of law in England. there are defenses to the Tort of Defamation that are discussed in the succeeding paragraphs.question. (ii) select the receiver of the transmission. Under Section 500 of the Indian Penal Code. The following are some defenses which may be invoked against the crime of defamation: 11. SUMITI AHUJA DATE: SEP 25. 2009. In a civil action for defamation. There is no statutory law of defamation in India except Chapter XXI (Section 499-502) of the Indian Penal Code. 2013 one‘s reputation. written defamation) and not on slander (i. truth is a complete defense. Under Section 199(5) of the Criminal Procedure Code. and (iii) select or modify the information contained in the transmission. . integrity. Minister of a Union or of a State. or with fine. it must be proved that it is (i) false. if the offense for defamation is committed against the President/Vice President of India. However. Governor of the State. the focus is on libel (i. Defamation is both a crime and a civil wrong. Justification by truth: In a civil action for defamation. (ii) written. spoken defamation). An aggrieved person may file a criminal prosecution as well as a civil suit for damages for defamation. 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. However under criminal law. KUNAL BASU LLB SEM. Section 468 (2) (c ) of the Criminal Procedure Code. As far as defamation under tort law is concerned. 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.-I LAW OF TORTS FACULTY: Ms. 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. justice and good conscience. data. However.e. KUNAL BASU LLB SEM. The defense is available even if the publication was made maliciously. social networking websites or known as intermediaries ―shall not be liable for any third party information. 11. and (iv) published. As far as civil liability of defamation is concerned. character and dignity in the society. 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. or (b) the intermediary does not— (i) initiate the transmission. and a fine.e. Though courts in India are not bound by them however. In order to establish that a statement is libelous. SUMITI AHUJA DATE: SEP 25. as a general rule. honor.

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

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

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

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

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

treating the case as a regular trade libel lawsuit. Times Now (2011)27 that courts have awarded damages. Several high profile cases filed against or on behalf of politicians like Arvind Kejriwal. which is the intentional disparagement of a business' goods and the President of NGO National Council for Civil Liberties (NCCL)26. In 2005. 2013. on her show to talk about mad cow disease and the dangers of beef production.timesofindia. Damages awarded by Indian courts too have been equally conservative. However.htm 24 Extracted on Sep 14. Vanity Fair printed a piece alleging that Roman Polanski. in the form of a Rs.000 from Rs 15. from http://www.rediff. 2013. Naveen Jindal v. 2013. 2013.000 (US $81. The judge ruled that the cattlemen couldn't sue under this act. (Polanski's wife was murdered by Charles Manson's cult followers).com/India-news/NewDelhi/Courtdismisses-defamation-caseagainst-Shinde/Article1-1085938. Shah Rukh 18 19. Oprah stated that she wouldn't eat a burger ever again. Polanski. It is only in very few cases such as Justice PB Sawant v. KUNAL BASU LLB SEM. movie actors like Vijaykanth24. V K Saxena. propositioned a woman on his way to his wife's funeral in 1969. prompting a group of Texas cattlemen to sue Winfrey and Lyman under the False Disparagement of Perishable Food Products Act of 1995. Manoj Kumar v. Similarly. a Delhi court reduced to Rs 9. 20 crore surety from Times Now to be invested and returned to the winner of this case. from http://www. SUMITI AHUJA DATE: SEP 25. Likewise. 2013. a United Kingdom high court awarded Polanski £50.23. the director of such films as Rosemary's Baby. received permission to testify from France. Indian courts have been conservative in awarding damages for defamation. 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. from 25 Extracted on Sep 14.eventually winning all but one18.tree.indiatimes.19 However. from Outlook magazine22 and Zee News v. in July 2002. Sheila Dixit20.aspx 20 Extracted on Sep 14. from http://www. 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.indiatimes. on April 16. 21 Extracted on Sep 14. http://www.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. and Home Minister Shinde21. who left the United States because of a child sex charge.hindustantimes. 2013 NGO. in the interim.aspx 22 Extracted on Sep 14. http://www. 19. 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 .com/legal/learning-about-famous-libelcases.tree. from 23 Extracted on Sep 14.aspx 19 Extracted on Sep 14. industry like Tata Sons v. 1996.timesofindia.-I LAW OF TORTS FACULTY: Ms. Smriti Irani.380) in damages after the magazine admitted that some details about the event were inaccurate. Oprah Winfrey had Howard Lyman. For instance. 2013. At one point. a vegetarian activist.

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