Scope Of Libel And Slander

(Assignment towards fulfillment of assessment in the subject of Law of Torts)

SUBMITTED TO: SUBMITTED BY:

Mr. S. Kaushik Karan Salvi

Faculty of Law 1166
II Semester
B.B.A. LL.B. (Hons.)

NATIONAL LAW UNIVERSITY, JODHPUR

 TABLE OF CONTENTS
ABSTRACT ..............................................................................................................3

Defamation, Libel and Slander Law ......................................................................4

What Are The Elements Of Defamation, Libel and Slander? .............................5

What Is Slander? ......................................................................................................6

What Is Libel? ..........................................................................................................6

Scope In India ...........................................................................................................7

What Defenses Are Available To People Accused of Defamation?.....................8

 ABSTRACT
In India the difference 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 .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 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.

Why Commencing A Defamation Action Is Not Aways A Good Idea?

While people who are targeted by lies may well be angry enough to file a lawsuit, there are some
very good reasons why actions for defamation may not be a good idea.
The publicity that results from a defamation lawsuit can create a greater audience for the false
statements than they previously enjoyed. For example, if a newspaper or news show picks up the
story of the lawsuit, false accusations that were previously known to only a small number of
people may suddenly become known to the entire community, nation, or even to the world. As
the media is much more apt to cover a lawsuit than to cover its ultimate resolution, the net effect
may be that large numbers of people hear the false allegations, but never learn how the litigation
was resolved.
Another big issue is that defamation cases tend to be difficult to win, and damage awards tend to
be small. As a result, it is unusual for attorneys to be willing to take defamation cases on a
contingent fee basis, and the fees expended in litigating even a successful defamation action can
exceed the total recovery.
Another significant concern is that, even where the statements made by the defendant are
entirely false, it may not be possible for a plaintiff to prove all of the elements of defamation.
Most people will respond to news that a plaintiff lost a defamation lawsuit by concluding that the
allegations were true.
In other words, the plaintiff in a defamation action may be required to expend a considerable
amount of money to bring the action, may experience significant negative publicity which
repeats the false accusations, and if unsuccessful in the litigation may cement into the public
consciousness the belief that the defamatory accusations were true. While many plaintiffs will be
able to successfully prosecute defamation actions, the possible downside should be considered
when deciding whether or not such litigation should be attempted.
 Defamation, Libel and Slander Law
 Salmond defines the wrong of defamation as the publication of a false and defamatory statement
about another person without lawful justification

 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)
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
generally

 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 person
 What Are The Elements Of Defamation, Libel and
Slander?
Generally speaking, defamation is the issuance of a false statement about another person, which
causes that person to suffer harm. Slander involves the making of defamatory statements by a
transitory (non-fixed) representation, usually an oral (spoken) representation. Libel involves the
making of defamatory statements in a printed or fixed medium, such as a magazine or
newspaper.

Typically, the elements of a cause of action for defamation include:

1. A false and defamatory statement concerning another;

2. The unprivileged publication of the statement to a third party (that is, somebody other
than the person defamed by the statement);

3. If the defamatory matter is of public concern, fault amounting at least to negligence on

the part of the publisher; and

4. Damage to the plaintiff.

In the context of defamation law, a statement is "published" when it is made to the third party.
That term does not mean that the statement has to be in print.

Damages are typically to the reputation of the plaintiff, but depending upon the laws of the
jurisdiction it may be enough to establish mental anguish.

Most jurisdictions also recognize "per se" defamation, where the allegations are presumed to
cause damage to the plaintiff. Typically, the following may consititute defamation per se:

 Attacks on a person's professional character or standing;

 Allegations that an unmarried person is unchaste;

 Allegations that a person is infected with a sexually transmitted disease;

 Allegations that the person has committed a crime of moral turpitude;

 What Is Slander?
Slander involves verbally maligning the reputation or activities of another individual or entity,
using information that is known to be false or misleading. Typically, this will involve not only
the use of specific words to damage a reputation, but also actions such as hand gestures or facial
expressions in order to reinforce the misinformation that is being distributed. Any defamation
that is "transitory" — in other words, not fixed in a permanent medium — is usually considered
slander.

One of the easiest ways to understand slander is to consider the example of actions of an
employee who is unhappy with his company's policies and procedures. At an event including
employees with their spouses and partners, the disgruntled employee begins to spread untrue
information about the business and its owners. As part of his remarks, the employee may state
that the company owners engage in business activities that are illegal as well as unethical. Unless
the employee has reliable evidence to back up these claims against the specific people identified
in the statements, he could be held liable for slander.

What Is Libel?
Like slander, libel refers to statements that damage another person's reputation. The difference is
that libel takes the form of printed — or otherwise "fixed" — material rather than verbal assaults.
Typically, libel in the United States can involve untrue words or images that are published in
print publications as well as material published on a web site.

Continuing with the example of the disgruntled employee, he may choose to leave the company
and write an exposé of the owners and the company operations. The exposé includes not only the
untrue information that was previously deployed verbally, but also may include photographs that
were taken and then used out of context to reinforce the purported validity of the lies. This type
of activity would likely constitute libel.
 Scope In India
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.

Libel and slander, both forms of defamation, are creatures of English common law, but they are
not treated as distinct from each other in Indian jurisprudence. India offers the defamed a remedy
both in civil law for damages and in criminal law for punishment. This is highly 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
Indian Penal Code (section 499 creates a criminal offence of defamation.)

In a civil action, the claimant needs to prove that the statements injured the person’s 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 10 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 it’s 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.
 What Defenses Are Available To People Accused of
Defamation?
The most important defense to an action for defamation is "truth", which is an absolute defense
to an action for defamation.

n order to prove defamation, an injured plaintiff has to show that:

 The defendant made a statement (spoken or written).

 The statement was false.

 The defendant published the statement to a third person.

 The publication of the false statement injured the plaintiff’s reputation, making the
plaintiff entitled to damages.

 If a plaintiff is a public figure, he also has to show the defendant acted with actual
malice.

Since a defamation claim has so many elements, a defendant in a defamation case has several
opportunities to assert an affirmative defense. Although many affirmative defenses can be used
in a wide variety of personal injury cases, several are unique to defamation claims.

DEFENCES

1. Justitification (Truth)

2. Fair Comment

3. Privilege