Defence of absolute and qualified privileges in defamation .

Submitted by:
Vaibhav Vishal, BBA. L.L.B (Hons)
Submitted to:
Ms. Sneha,
Faculty of Torts.
Co-ordinator at Child Right Centre.
This rough draft is submitted in the partial fulfilment of the
defence of absolute and qualified privileges in defamation.

9th of August, 2019.

Chanakya National Law University, Patna
 Contents

1) Introduction
2) Essential ingredients of defamation.
3) Privilege and defences in defamation cases.
4)
5) Absolute Privilege
6) Qualified Privilege
7) Distinction Between absolute and qualified privileged
8)
INTRODUCTION

The right of each man during his lifetime to the unimpaired possession of his reputation andname
is recognised by the law. Reputation depends upon opinion in the main on thecommunication of
thought and information from one individual to another. A person’s ownopinion about himself is
not his reputation. It means rather than opinion of others about him.The good name one bears or
the esteem in which one is held in society is one’s reputation.The law of defamation is based
upon the fundamental principle that the reputation of amember of society, the esteem in which he
is held by it, the and credit and trust it reposes onhis intelligence, honour and integrity, all these
constitute a valuable assent for him and itdeserves protection at the hands of law. Defamation is
injury to the reputation of a person. If a person injures the reputation of another, he does so at his
own risk, as in the case of aninterference with the property, A man’s reputation in his property,
and if possible, morevaluable than other property.

There is always a delicate balance between one person's right to freedom of speech and another's
right to protect their good name. It is often difficult to know which personal remarks are proper
and which run afoul of defamation law. Defamation is both a civil and criminal wrong. Mischief
to a private individual is the basis of the law of civil of defamation while mischief to the society
is the basis of criminal defamation.

Defamation: It is injury to the reputation of a person. If a person injures the reputation of

another, he does so at his own risk.

Privilege: There are certain occasions when the law recognizes that the right of the free speech
outweighs the plaintiff’s right to reputation: the law treats such occasions to be “privileged” and
a defamatory statement made on such occasion is not actionable. Privilege is of two kinds:
Absolute privilege and qualified privilege.

Absolute privilege: In matters of absolute privilege, no action lies for the defamatory statement
even though the statement is false or has been made maliciously,. In such cases, the public
interest demands that an individual’s right to reputation should give way to the freedom of
freedom of speech. Absolute privilege is recognized in the following cases.
1. Parliamentary proceedings.
2. Judicial proceedings
3. State communication.

Qualified Privilege: Unlike the defence in absolute privilege, in this case it is necessary that
statement must have been made without malice. There must be an occasion to make this type of
statement. Such a privilege is available either when the statement is made in discharge of a duty
or protection of interest, to the publication is in the form of report of parliamentary, judicial or
other public proceedings.

ESSENTIAL INGREDIENTS OF DEFAMATION

The essential ingredients of the tort of defamation which are applicable both to libel and slander
are the following:

 The statement must be defamatory: innuendo

Defamatory statement is one which tends to injure the reputation of the plaintiff. Defamatory
statement are three types. They are

 Words prima facie defamatory.

 Words capable of an innocent or defamatory meaning .
 Words prima facie non defamatory.

Whether a statement is defamatory or not depends upon how the right thinking members of the
society are likely to take it. The standard to be applied is that of a right minded, a man of fair
average intelligence, and not that of a special class of persons whose values are that of a special
class of persons whose values are not shared or approved by the fair minded members of the
society generally.

Deepak Kumar Biswas v. national insurance co. Ltd.,

Ram jethmalani v. subramaniam swamy

 The said statement must be refer to the plaintiff

To succeed in an action of defamation the plaintiff must not only prove that the words were
defamatory, but also that they refer to him. He must identify himself as the person defamed.

It is not necessary that the words should refer to the plaintiff by name. If from the circumstances
of the publication, reasonable people would think that the passages refers to the plaintiff then the
defendant will be liable. It is sufficient if the plaintiff be referred to by his initial letters, or by the
first and last letters of his name, or even by asterisks or blanks or if
he referred to under the guise of an allegorical, historical, fictitious or fanciful name, or by
means of description of his physical peculiarities or by the places which he has visited on his
travels.

 The statement must be published

Publication means making the defamatory matter known to some person other than the person
defamed, and useless that is done, no civil action for defamation lies. Communication to the
plaintiff himself is not enough because defamation is injury to the reputation and reputation
consist in the estimation in which others hold him and not a man’s own opinion of himself.
Dictating a letter to one’s typist is enough publication. Sending the defamatory letter to the
plaintiff in a language supposed to be known to the plaintiff no defamation.

Mahendra Ram v. Harnandan Prasad, A.I.R. 1998 Pat. 445

If a third person wrongfully reads a letter meant for the plaintiff, the defendant is not liable.

Arumuga Mudalir v. Annamalai mudaliar, A.I.R. (1966) 2 M.L.J. 225

If a defamatory letter sent to the plaintiff is likely to be read by somebody else, there is a
publication. When the defamatory matter is contained in a postcard or a telegram, the defendant
is liable even without a proof that somebody else read it, because a telegram is read by post
office officials who transmit and receive it, and there is a high probability of the postcard being
read by someone.

Privileges and Defenses in Defamation Cases

Simply because someone defames another person does not mean that
a lawsuit will be successful. There are a number of defenses to
defamation claims. If the defamer can successfully claim one of these
defenses, he/she might be able to win the case despite the
defamation.
The major defenses to defamation are:

 truth
 the allegedly defamatory statement was merely a statement of
opinion
 consent to the publication of the allegedly defamatory statement
 absolute privilege
  qualified privilege
 retraction of the allegedly defamatory statement.

 Fair comment

 Privilege which may be either absolute or qualified.

 JUSTIFICATION OR TRUTH

Truth is an absolute justification to a civil action for defamation. The

defendant will succeed if he shows that what he has spoken of the
plaintiff is substantial true. The law has recognised this defence for
the reason that since defamation is essentially van injury to a man’s

reputation, when it is what is spoken of a person is true it means only

that his reputation has been brought down to its proper level and there
is no reason for him to complain.

If the is available even though the publication made maliciously. If the

statement is substantially true but incorrect but incorrect in respect of
certain particulars, the defence will available.

Alexander v. North Eastern Ry., (1885) 6 B & S. 340.

 COMMENT

Comment means an expression of opinion on certain facts. It should be

distinguished from making of facts.

 THE COMMENT MUST BE FAIR:

The comment cannot be true, fair when it is based upon untrue facts.
A comment based upon invented and untrue facts is not fair. Thus, in
the review of a play when immorality is imputed by suggesting that it
contained an incident of adultery, when in fact there is no such
incident in the play, the plea of fair comment cannot be taken .If the
facts substantial true and justify the comment of the which are truly
stated, the defence of fair comment can be taken even though some
the facts stated may not be proved.

Gregory v. Duke of Brunswick (1843) 6 M. & G. 205. The plaintiff, an

actor, appeared on the stage of a theatre but the defendant and other
persons actuated by malice hissed and hooted at the plaintiff and
there by caused him to lose him engagement. Hissing and hooting
after conspiracy was held to be actionable and that was not a fair
comment on the plaintiff’s performance.

 THE MATTER COMMENTED UPON MUST BE OF PUBLIC

INTEREST
Administration of Government departments, public companies, courts,
conduct of public men like ministers or officers of the state, public
institutions and local authorities, public meetings, pictures, theatres,
public entertainment, text books, novels etc. are considered to be
matters of public interest
Absolute Privilege

Certain types of communications are absolutely privileged. Absolute

privilege means that the person making the statement has the
absolute right to make that statement at that time, even if it is
defamatory. In other words, the person making the defamatory
statement is immune from a defamation lawsuit.
In general, absolute privilege exempts persons from liability for
potentially defamatory statements made:

 during judicial proceedings

 by high government officials
 by legislators during legislative debates
 during political broadcasts or speeches, and
 in between spouses.
So, if someone makes an otherwise defamatory statement during
his/her testimony at a trial, that statement is absolutely privileged, and
that person cannot be sued for defamation. But if that person makes a
different allegedly defamatory statement in the hallway of the
courthouse during a break in the trial, he/she could be sued for
defamation because the statement was made during a judicial
proceeding.
I. Parliamentary Proceedings Article 105(2) of our constitution
provides that: (a) Statements made by a member of either House of
parliament in parliament, (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 respect of State Legislatures, according to Articles 194 (2) .
II. Judicial Proceedings No action for libel or libel or slander lies,
whether against judges, counsels, witness or parties, for words
written or spoken in the course of any proceeding before any court
recognized by the law, even though the words written or spoken were
written or spoken maliciously, without any justification or excuse, and
from personal ill will and anger against the person defamed.
III. State communications
A statement made by one officer of the state to another in the course
of official duty is absolutely privileged for the reasons of public policy.
Such privileges also extends to reports made in the course of military
and naval duties. Communications relating to state matters made by
one minister to another or by a minister to the crown is also absolutely
privilege.

Qualified Privilege
Other types of communications are subject to what is called a
qualified privilege, meaning that the person making the allegedly
defamatory statement may have had some right to make that
statement.
If a qualified privilege applies to a statement, it means that the person
suing for defamation must prove that the person who made the
defamatory statement acted intentionally, recklessly, or with malice,
hatred, spite, ill will or resentment, depending on your state’s law.
Just some of the statements for which a qualified privilege applies are

 statements made in governmental reports of official proceedings

  statements made by lower government officials such members of
town or local boards
 citizen testimony during legislative proceedings
 statements made in self-defense or to warn others about a harm
or danger
 certain types of statements made by a former employer to a
potential employer regarding the employee, and
 published book or film reviews that constitute fair criticism.

In order to show that a qualified privilege protects a certain

statement, the defendant must show that:

 The defendant had a good-faith reason to believe the

statement was true,
 The defendant had a personal or professional interest in
knowing the information in the statement.
 The defendant shared the statement only with others who also
had a personal or professional interest in knowing the
information in the statement.
The employer review qualified privilege is particularly noteworthy. In
order to avoid defamation claims, some employers these days refuse
to confirm any details about former employees other than their dates
of employment. But certain types of negative statements might fit in
under the qualified privilege category, If, for example, the employer
fired the employee for theft, a statement about that to a potential
employer might qualify as a statement made to warn others about a
harm or danger
Malice will destroy qualified privilege. In certain cases, the defence of
qualified privilege is also available. Unlike the defence of absolute
privilege, in this case it is necessary that the statement must have
been made without malice. For such a defence to be available, it is
further necessary that there must be an occasion for the making the
statement. Generally, such a privileges is available either when the
statement is made in discharge of a protection of an interest, or the
publication is in the form of parliament, judicial or other public
proceedings.
 Thus, to avail this defence, the defendant has to prove the following
two points:
 The statement should be made in discharge of a duty or
protection of an interest The occasion when there is a qualified
privileges to make defamatory statement without malice are
either when there is existing of a legal duty, social or moral to
make such a statement or, existence of some interest for the
protection of which the statement is made. R.K. Karanjia v.
Thackersey And other famous case Radheshyam Tiwari v.
Eknath
 The statement should be without malice In the matters of
qualified privilege, the exemption from liability for making
defamatory statement is granted if the statement was made
without malice. The presence of malice destroys this defence.
The malice in relation to qualified privilege means an evil
motive. Clerk v. Malyneux Horrocks v. Lawe

. DISTINGUISH BETWEEN ABSOLUTE AND QUALIFIED

PRIVILEGE
The Patna high court in the pandey Surinder Sinha v. Bageshwari
Prasad distinguished between the following the absolute and qualified
privilege in the following:
A. In these it is the occasion A. The occasion is not
which is privileged and privileged, until the
when once the nature of defendant has shown how
occasion is shown, it that occasion was made. It
follows, as a necessary is not enough to have an
inference, that every interest or a duty in making
communication on that a statement the necessity
Occasion is protected. of the existence of an
B. In absolute liability, the interest of duty in making
defendant gets absolute the statement complained.
exemption from the liability. B. In qualified privilege, the
C. Statements are protected in defendant gets a
all circumstances conditional exemption from
irrespective of the presence liability.
of good or bad motives. C. Qualified privileges has
 been established by the
defendant, it may be met
by the proving in reply
improper or evil motive on
the part of the defendant,
in such case defence of
qualified privilege vanishes
and the plaintiff succeeds.

Aims and objectives

The main objective of the research is to find out the defence of absolute and qualified
privilege taken by the people in defamation. And to find out how far this defence is
impactful in the recent scenario.

Research Questions
 What is the concept of absolute and qualified privilege?
 What is the subtle difference between absolute and qualified privilege?
 How often this privilege has been exercised by the people?

Hypothesis
“This study is designed to access the hypothesis the defence of absolute and qualified privilege
in defamation is bad for the society”.

Research Methodology
Content analysis of available data (doctrinal research). Through this research I will get to know
the near picture of the problem in questions.

Tentative chapterisation
1. Introduction
2. Historical Background
3. Section wise discussion
4. Cases and their analysis
5. Conclusion.