JAMIA MILLIA ISLAMIA

FACULTY OF LAW

LAW OF TORTS PROJECT REPORT ON:

TORT OF DEFAMATION

SUBMITTED BY: Saima gous

B.A.L.L.B(H)Regular
1st year,2nd Semester
Roll no-51
Student Id-201901961

SUBMITTED TO: Dr. Faizan Rahman Sir

Professor(Law of Torts)
JMI(Faculty of Law)
 INDEX

1.Introduction
2.Tort of defamation-Meaning and Defamation
3.Interpretation
4.Kinds of Defamation
5.Essentials of Defamation
6.The Innuendo
7.Repitition of defamatory matter
8.Injunction against publication of a defamatory statement
9.Defences
10.origin
11.Statutory provision
12.Case laws
13.Conclusion
14.bibliography
 NTRODUCTION

The word tort has been derived from the latin term''tortum'', which means 'to twist'.
Thus,''tort'' means ''a conduct which is not straight or lawful, but,on the other hand,
twisted, crooked or unlawful''.It is equivalent to the english term 'wrong'.The law
of torts consists of various 'torts' or wrongful acts whereby the wrongdoer violates
some legal right vested in another person. 1

''Tort is a civil wrong for which the remedy is a common law action for unliquidated
damages and which is not exclusively the breach of a contract or the breach of a
trust or other merely equitable obligation.''-Salmond

''Tortious liability arises from the breach of a duty primarily fixed by the law,this
duty is towards persons generally and its breach is redressible by an action for
unliquidated damages.''-Winfield

SPECIFIC TORT-A Intentional tort is when an individual or entity purposely

engages in conduct that causes injury or damage to another.For example,lowering
someone's reputation in the estimation of right thinking members of society or
which tends to make them shun or avoid that person is Defamation.Although it may
seems like an intentional tort can be categorized as a criminal case,there are
important differences between the two.Intentional torts are wrongful acts that injure
or interfere with an individual's well-being or property.While criminal charges are
brought by the government and can result in a fine or jail.Examples of Intentional
torts are Assault,battery,fraud,defamation,trespass,false imprisonment etc. 2

TORT OF DEFAMATION

MEANING-Defamation also called calumny, vilification, slander and libel is the

communication of a statement that makes a claim, expressly stated or implied to be
factual, that may give an individual, business, product, group, government, or

1
R.K. Bangia, The Law of Torts 3 (Allahabad Law Agency, Haryana, 24th
edition, 2017)
2
https://www.injurylawcolorado.com/ (last visited on 25th April, 2020)
nation a negative image. The tort of defamation protects a person’s interest in his
reputation. If the defendant had made an untrue statement, or what amounts to a
statement, which is defamatory of the plaintiff, the plaintiff has a right of action
against him.3

DEFINITION

''Defamation is the publication of a statement which tends to lower a person in the

estimation of right thinking members of society generally; or which tends to make
them shun or avoid that person.''-Winfield

''Defamation means publication of false and defamatory statement about any person
without any proper cause.''-Underhill

''publication of false statement which destroys some one’s reputation in the sence
of right -thinking members of the society it creates defamation.''-Blackburn and
George

According to section 499 of the Indian penal code,'' 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 reasons to believe that such imputation will harm, the reputation of such
person, is said except in specified cases, to defame the person.4

INTERPRETATION-:

Kinds of Defamation-

ENGLISH LAW-According to english law,defamation is of two types-:

1.SLANDER-Slader is the publication of a defamatory statement in a transient

form.Examples of it may be spoken by words or gestures.

2.LIBEL-libel is representation made in some permanent form,example may be

writing,printing,picture,effigy or statute.

3
https://www.bartleby.com/ (last visited on 25th April,2020)
4
https://www.indiankanoonorg (last visited on 25th April, 2020)
Section 1,Defamation act,provides that broadcasting of words by means of wireless
telegraphy shall be treated as publication in permanent form.Another test which has
been suggested for distinguishing libel and slander is that libel addressed to the
eye,slander to the ear.

Under Criminal law,only libel has been recognized as an offence.Slander is no

offence.Under the law of torts,Slander is actionable,save in exceptional cases,only
on proof of special damage.Libel is always actionable per se that is without the
proof of any damage.5

INDIAN LAW-There is no statutory law of defamation in India except what is

contained in chapter 21,Indian Penal code.The criminal law in India does not make
any distinction between libel and slander.Both libel and slander are criminal
offfences under section 499 of the Indian penal code. 6

ESSENTIALS OF DEFAMATION

1.The statement must be defamatory-Defamatory statement is one which tends

to injure the reputation of the plaintiff.An imputation which exposes one to
disgrace and humiliation,ridicule or contempt,is defamatory.The defamatory
statement could be made in different ways.For instance,it may be oral,in writing,
printed or by the exhibition of a picture, statue or effigy or by some conduct.

Whether the 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 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
the society generally.If the likely effect of the statement is the injury to the plaintiff's
reputation,it is no defence to say that it was not intended to be defamatory.

According to Salmond ''A defamatory statement is one which has a tendency to

5
R.K. Bangia, The Law of Torts 148-149 (Allahabad Law Agency,
Haryana, 24th edition,2017)
6
Sir Frederick Pollock, The Law of Torts 219 (Stevens and Sons, Limited,
London, 1895)
injure the reputation of the person to whom it refers;which tends to lower him in
the estimation of right thinking members of society and to cause him to be regarded
with feelings of hatred,contempt,ridicule,fear,dislike or disesteem.''

THE INNUENDO

A statement may be prima facie defamatory and that is so when its natural and
obvious meaning leads to the conclusion.Sometimes, the statement may prima facie
be innocent but because of some latent or secondary meaning, it may be considered
to be defamatory.When the natural and ordinary meaning is not defamatory but the
plaintiff wants to bring an action for defamation, he must prove the latent or the
secondary meaning,that is, the innuendo, which makes the statement
defamatory.Even a statement of commendation may be defamatory in the context
in which it is said.For example, even ''Y is a Saint'' might be slander if the statement
was understood to refer to a criminal gang known as''The Saints''.

2.The statement must refer to the plaintiff-In an action for defamation, the
plaintiff has to prove that the statement of which he complains referred to him.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

Acting in good faith and without any intention to defame the plaintiff is no
defence.Intention of the writer is quite immaterial in considering whether the
alleged matter is defamatory or not or even in considering whether it is defamatory
of the plaintiff.7

3.The statement must be published-Publication means making the defamatory

matter known to some person other then the person defamed, and unless 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 consists
in the estimation in which others hold him and not a man's own opinion of

7
Winfield and Jolo Wicz, Law of Torts 243(Sweet and Maxwell, UK, 20 th
edition, 2010)
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
is no defamation.If a third person wrongfully reads a letter meant for the
plaintiff,the defendant is not liable.

If a defamatory letter sent to the plaintiff's 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.When the libellous letter addressed to the plaintiff
is, in the ordinary course of business,likely to be opened by his clerk, or by his
spouse, there is defamation when the clerk or the spouse opens and reads that letter

REPITITION OF DEFAMATORY MATTER

The liability of the person who repeats a defamatory matter arise in the same way
as that of the originator, because every repitition is fresh publication giving rise to
a fresh cause of action.Not only the author of the defamatory matter is liable but its
editor, printer or publisher would also be liable in the same way.Their liability is
strict.There is another class of persons who might disseminate the matter without
knowing its contents, example,booksellers,newspaper-vendors or librarians.The
law adopts a lenient attitude towards them.

INJUNCTION AGAINST PUBLICATION OF A DEFAMATORY

STATEMENT-

An injunction can be issued to prevent the person from making defamatory

statements if the court is satisfied that there is a likelihood of immediate and
pressing injury to the person's reputation.[P. Ravindran vs Lakshmikutty Amma,
{A.I.R. (2001)Madras225}]

DEFENCES

1.Justification or truth-In a civil action for defamation, truth of the defamatory

matter is complete defence.Under Crminal Law, merely proving that the statement
was true is no defence.First Exception to section 499, I.P.C requires that besides
being true, the imputation must be shown to have been made for public good.Under
the civil law, merely proving that the statement was true is a good defence.The
reason for the defence is that''the law will not permit a man to recover damages in
respect of an injury to a character which he either does not or ought not to
possess.''The defence is available even though the publication is made
maliciously.If the statement is substantially true but incorrect in respect of certain
minor particulars, the defence will still be available. 8

Section 5-''In an action for libel or slander in respect of words containing two or
more distinct charges against the plaintiff, a defence of justification shall not fail by
reason only that the truth of every charge is not proved if the words proved to be
true do not materially injure the plaintiff's reputation having regard to the truth of
remaining charges.''9

2.Fair comment-For this defence to be available, the following essentials are

required:

I) It must be a comment,that is, an expression of opinion rather than assertion of

fact-Comment means an expression of opinion on certain facts.It should be
distinguished from making a statement of fact.whether a statement is a fact or a
comment on certain facts depends on the language uesd or the context in which it
is stated.

ii)The comment must be fair-The comment cannot be fair when it is based upon
untrue facts.A comment based upon invented and untrue facts is not fair.Thus, if in
the newspaper, there is publication of a statement of facts making serious
allegations of dishonesty and corruption against the plaintiff,and the defendant is
unable to prove the truth of sach facts,the plea of fair comment will fail.

iii)The matter commented upon must be of public interest-Administration of govt

departments,public companies,courts,conduct of public men like ministers or
officers of state, public institutions and local authorities,theaters,public
entertainments, textbooks,novels etc. are considered to be matters of public interest.

8
Durga Das Basu, Law of Torts 123 (Prentice- Hall of India Pvt. Ltd.,
Delhi, 18th edition, 1977)
9
https://www.legislation.gov.uk (last visited on 25th April)
3.Privilege-There are certain occasions, when the law recognizes that the right of
free speech outweighs the plaintiffs's right to reputation: the law treats such
occasions to be ''privileged'' and a defamatory statement made on such occasions is
not actionable.

Privilege is of two types:

1.Absolute privilege-In matters of absolute privilege, no action lies for the

defamatory statement even though the statement is false or has been made
maliciously.In such cases, the public interest demands that an individual's right to
reputation should give way to the freedom of speech. It gives the person an absolute
right to make the statement even if it is defamatory, the person is immune from
liability arising out of defamation lawsuit. Generally, absolute privilege exempts
defamatory statements made,during judicial proceedings, by government officials,
by legislators during debates in the parliament, during political speeches in the
parliamentary proceedings and, communication between spouses.

2.Qualified privelege-When a person making the statement has a legal, social or

moral duty to make it and the listener has an interest in it, then the defence of
qualified privilege is allowed.These privileged communications must relate to the
business at hand, even if what was said was untrue. However, this does not give a
licence to say false statements, the person making the statement must believe it to
be true. This defence can fail if it is proved that the defamatory statement was made
with a malicious intention.The instances where this defence can be availed
of:Reference for a job applicant, Answering the police inquiries,A fair criticism of
a published book or film in a review,communication between parents and teachers,
communication between employers and employees, communication between
traders and credit agencies are all relationships that are protected by qualified
privilege.10

ORIGIN-

10
R.F.V Heuston, Salmond on the Law of Torts 67 (Sweet and Maxwell,
st
UK, 21 edition, 1996)
Before the early 1300s, actions for the predecessor of defamation were obscure and
purely within the jurisdiction of the Church courts, it was not until much later that
the King’s courts allowed an action for defamatory words. The often physically-
based nature of the common law was not in favour of creating an offence which
rested on mere words. It was much more concerned with the tangible actions and
results of, for example, assault, theft and murder.The Church courts tried
Defamation as a criminal offence and could only sentence the offender to penance,
admittedly quite a light punishment. However, before this time, there were
occasional actions that touched upon issues of defamation and the tarnishing of
someone’s character or reputation. For example, in the 14th Century, there were
actions brought by nobles who had been slandered in the King’s open courts. A
judge in 1358 recovered a sizable sum of money for being called a traitor at court.
Moreover, some actions were brought regarding false statements about men having
second marriages, a very damaging accusation that could ruin their reputations.11

STATUTORY PROVISION-Article 105(2) of our constitution provides that: a

statement made by a member of either house of parliament in parliament, and 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 article 194(2).

According to section 3(1) of the act, ''No person shall be liable to any proceedings,
civil or criminal, in 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 to have been made with malice.''

CASE LAWS-

1.D.P. Choudhary vs Manjulata12

FACTS-The plaintiff, Manjula, about 17 years of age, belonged to a distinguished

11
Anish Dayal, “Inside Law:How Defamation Works in India” 1 The Wall
Street Journal 57 (2012)
12
A.I.R. 1997 Raj. 170
educated family of Jodhpur.She was a student of B.A.There was publication of a
news item in a local daily, Dainik Navjyoti, that last night Manjulata had run away
with a boy named Kamlesh, after she went out of her house on the pretext of
attending night classes in her college.The news was untrue and was published
negligently with utter irresponsibility. She was shocked and rediculed by persons
who knew her and her marriage prospects were adversely affected thereby.

JUDGEMENT-It was held that all defamatory words are actionable per se and in
such a case, general damages will be presumed.She was held entitled to an award
of Rs 10,000/- by way of general damages.

2.Ram Jethmalani vs Subhramaniam Swamy13

FACTS-While a commision of inquiry was examinig the facts and circumstances

relating to the assassination of late Shri Rajiv Gandhi, the defendant, at a press
conference, alleged that the then chief minister of Tamil Nadu had prior information
that LTTE cadre would make an assassination bid on the life of Rajiv Gandhi.The
plaintiff was engaged as a senior counsel to represent the then chief minister of
Tamil Nadu.In discharge of his professional duties, the plaintiff crosss-examined
the defendant.During the proceeding, the defendant in the written conclusive
submission, alleged that the plaintiff had been receiving money from LTTE, a
banned organization.The statement made by the defendant was held to be ex facie
defamatory.

JUDGEMENT-It was held to be a case of exceeding the privilege and that by itself
was held to be evidence of malice.The statement made by the defendant against the
plaintiff was held to be quite unconnected with and irrelevant to the situation, actual
malice on the part of the defendant was well established.

3.Hulton Co. vs Jones14

13
A.I.R. 2006 Del. 300
14
https://www.casebriefs.com/blog/law/torts/torts-keyed-to-
epstein/defamation/e-hulton-co-v-jones/ (last visited on 30th April,2020)
FACTS-Hulton & Co. (Hulton) (defendant) operated a newspaper in England.
Thomas Artemus Jones (Jones) (plaintiff) allegedly contributed signed articles to
the paper. One day, Hulton ran accused that person of cheating on his wife with
another woman. Jones brought suit for defamation against Hulton. At trial, Hulton
stated it had never heard of Jones and had used the name “Artemus Jones” as a
fictitious name. Jones accepted this contention as true. However, he argued Hulton
was still liable for defamation because it issued a statement that could be interpreted
as true and harmful to Jones. In fact, Jones produced several witnesses who said
they believed the article was referring to him.

JUDGEMENT-If the libel speaks of a person by description without mentioning

the name in order to establish a right of action, the plaintiff must prove to the
satisfaction of a jury that the ordinary readers of the paper who knew him would
have understood that it referred to him.It was, therefore,held that there was no
liability for the statements published innocently.The defendants were,therefore, not
liable.

4.Capital and Counties Bank vs Henty & Sons15

FACTS-There was a dispute between the defendants, Henty & Sons, and one of the
branch managers of the plaintiff bank.The defendants who used to receive cheques
drawn on various branches of the capital and counties bank sent a circular letter to
a large number of their customers as''Henty & Sons hereby give notice that they
will not receive payment in cheques drawn on any of the branches of the capital and
counties bank.'' The circular became known to various other persons also and there
was a run on the bank.The bank sued Henty & Sons for libel alleging that the
circular implied an insolvency of the bank.

JUDGEMENT-It was held that the words of the circular taken in their natural sense
did not convey the supposed imputation and the reasonable people would not
understand it in the sense of the ''innuendo'' suggested.There was, therefore, no
libel.

15
(1882) 7 A.C. 741
5.South Indian Railway Co. vs Ramakrishnan16

FACTS-The railway guard, who was an employee of the defendant, south Indian
Railway Co. went to a carriage for checking the tickets and while calling upon the
plaintiff to produce his ticket said to him in the presence of the other passenger:''I
suspect you are travelling with a false ticket.'' The plaintiff produced the ticket
which was in order.He then sued the railway company contending that those words
uttered by the railway guard amounted to defamation.

JUDGEMENT-It was held that the words spoken by the guard were spoken bona
fide and under the circumstances of the case, there was no defamation and the
railway company could not be made liable for the same.

6.K.S. Sundram vs S. Vishwanathan17

FACTS-The defendants had published articles relating only to the performance of

the company of which the plaintiff was President. The articles discussed the
deterioration in performance by management of the company by the plaintiff.

JUDGEMENT-It was held that the court dismissed the defamation suit filed by the
plaintiff seeking permanent injunction and said that the articles could not be termed
as defamatory against the plaintiff.

7.Cook vs Alexander18

FACTS-The daily telegraph gave a fair and accurate summary of parliamentary

debate giving extract from all the eleven speeches, in three columns of an inside
page of the newspaper. On the back page of the newspaper, there was one further
column on the debate in the form of ''parliamentary sketch'', being a selective report
of that part of the debate which appeared to the reporter to be of special public
interest.In the sketch prominence was given to one of the speeches which is said to
be a libel on Mr Cook.

16
I.L.R (1890) 13 Mad.34
17
A.I.R. 2013 (NOC) 216 (Mad)
18
(1973) 2 All E.R 1037(C.A)
JUDGEMENT-It was held that the sketch was protected by the qualified privilege
because it gave fair representation of the impression of the hearers of the speech
prominently reported on the back page.The column on the back page the
parliamentary sketch gave specific reference to the inner page which contained full
report of the whole debate.

Comparison between civil and criminal defamation-

In India, defamation can both be a civil wrong and a criminal offence.The difference
between the two lies in the objects they seek to achieve.While a civil wrong tends
to provide for a redressal of wrongs by awarding compensation, a criminal law
seeks to punish a wrongdoer.In Indian laws, Criminal defamation has been
specifically defined as an offence under the Indian penal code whereas the civil
defamation is based on tort law-an area of law which does not rely on statutes to
define wrongs but takes from the ever increasing body of case laws to define what
would constitute a wrong.Moreover, in a criminal case, defamation has to be
established beyond a reasonable doubt but in a civil defamation suit, compensatory
damages is awarded.19

CONCLUSION

Defamation means publication of such statement, which tends to injure the

reputation of other person.In modern society, every person is entitled to his good
name and has a right to claim that his reputation will not be injured by any person
by making defamatory statements about him to a third person without any lawful
justification.The primary aim of the law of defamation is to prevent a person from
indulging in unnecessary or false criticism arising possibly out of malice and
thereby laying down standards of speech and wrting .However , it is still in
accordance with the right to freedom of speech and expression, as people can make
true statements and give their opinions.This area of law seeks to protect a person's
reputation from being hurt by preventing unfair speech.In other words, the law of
defamation protects reputation and the defences to the wrong such as justification,

19
https://www.legistify.com/ (last visited on 26th April,2020)
fair comment and privilege protects freedom of speech.20

BIBLIOGRAPHY

BOOKS

1.R.K Bangia, The Law of torts(Allahabad law agency,Haryana,24th edition,2017)

2.Sir Frederick Pollock, The law of torts(stevens and sons ltd,London,1895)

3.Winsfield and Jolowicz, Law of torts( Sweet and Maxwell, UK, 20th
edition,2010)

4.R.F.V Heuston(Salmond on the law of torts, Sweet & Maxwell, U.K, 21st
edition,1996)

5.Durga Das Basu(Law of torts, Prentice-Hall of India pvt ltd, Delhi, 18th
edition,1977)

JOURNALS

1.Neil foster, ''Tort of defamation'' 10 Cambridge law journal 216(2011)

2.Ian Malkin, ''defences of defamation'' 8 The journal of legal studies 200(2014)

3.Anis Dayal, ''Inside law: How defamation works in india'' 1 The wall street journal
57 2012

4.Jane Stapleton, ''The defamation act,1952'' 14 texas law review141(1953)

5.Des Butler, ''Civil and Criminal defamation'' 12 journal of tort law 215 (1966)

WEBSITES

1.https://www.bartleby.com

2.https://www.injurylawcolorado.com

3.https://www.indiankanoon.org

4.https://www.legislation.gov.uk

20
https://www.newworldencyclopedia.org/ (last visited on 26th April,2020)
5.https://www.newworldencyclopedia.com

6.https://www.legistify.com

7.www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/defamation/e-hulton-
co-v-jones/