NATIONAL LAW UNIVERSITY, JODHPUR

LAW OF TORTS

PROJECT WORK

GENERAL DEFENCES IN DEFAMATION

Submitted to :
Ajay N.B
Roll No: Submitted to :

B.A(hons) L.LB (hons)

Ms. Gunjan Chawla
2nd semester faculty of law
Acknowledgment
I take this opportunity to express my gratitude and personal regards to Ms. Gunjan Chawla
for inspiring and guiding me during the course of this project work.

I also owe my sincere thanks to our library staff for their cooperation and facility extended
from time to time during the progress of my project work.

I would also like to thank my family and friends for always believing in me and instilling in
me the confidence to finish the assignments to the best of my abilities.

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Contents
Acknowledgment.......................................................................................................................2
INTRODUCTION......................................................................................................................4
DEFENCES................................................................................................................................6
ABSOLUTE PRIVILEGE.........................................................................................................8
Application of the Defence........................................................................................................9
FAIR COMMENT...................................................................................................................11
STATUTORY DEFENCE FOR PRINTERS, DISTRIBUTORS AND OTHER
SECONDARY PUBLISHERS................................................................................................11
THE STATUTORY DEFENCE OF OFFER OF AMENDS...................................................13
LEAVE AND LICENCE.........................................................................................................14
LIMITATION..........................................................................................................................15
CONCLUSION........................................................................................................................16
Bibliography.............................................................................................................................17

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INTRODUCTION

DEFINITIONS AND DISTINCTIONS

Defamatory Statement: - A defamatory statement is a statement which tends to lower a

person in the estimation of right thinking members of society generally or to cause him to be
shunned or be avoided or to expose him to hatred, contempt or ridicule, or disparage him in
his office, profession, calling, trade or business.

Actionable libel: - A libel for which an action will lie is a defamatory statement made or
conveyed by written or printed words or in some other permanent form published of and
concerning the plaintiff, to a person other than the plaintiff.

Actionable slander: - A slander for which an action will lie is a defamatory statement, made
or conveyed by spoken words, sounds, looks, signs, gestures or in some other non permanent
form, published of and concerning the plaintiff, to a person other than the plaintiff, by which
the plaintiff has suffered actual damage, often referred as special damage, which he must
allege and prove, or which is actionable per se at common law, or where the words are
calculated to disparage the plaintiff in any office, profession, calling, trade or business carried
on by him at the time of publication.

Distinction between libel and slander: - There are two chief distinctions in practice
between libel and slander, or, broadly speaking, between written and spoken defamation:

1. An actionable libel can in certain circumstances be dealt with by criminal

proceedings, whereas no slander, even though civilly actionable, is as such a criminal
offence, unless it contravenes the law as being, for example, obscene, blasphemous or
seditious or a contempt of court.
2. No special damage need be alleged or proved in an action for libel, whereas, unless
the defamatory words complained of are actionable per se at common law or by
statute, no action of slander will lie if the plaintiff does not both allege and prove that
he has suffered actual damage.

Falsity and Malice: - in an action for libel and slander it was formerly the practice to allege
in the statement of claim that the words were published falsely and maliciously 1. However,
1
Bromage v. Prosser (1825) 4 B&C 247
4
the plaintiff does not have to prove falsity or malice to establish his cause of action, if the
words are defamatory, the law presumes that they are false, and it is for the defendant to
plead and prove that the words are true. In other words, the onus of proving justification is on
the defendant.

Intention: - The intention with which the words were written or spoken and published is
irrelevant to the determination of the questions whether or not the words were understood to
refer to the plaintiff, and whether they were understood to bear a meaning defamatory of
him2. The defendant’s intention will become relevant if the defendant relies on the defence of
a statutory offer of amends, or qualified privilege or fair comment where malice is alleged
against the defendant, and may be relevant on the issue of damages. It may also be relevant in
particular circumstances to whether a person is responsible for a publication so as to be liable.

Damage in Libel: - If a person has been libelled without any lawful justification or excuse,
the law presumes that some damage will flow in the ordinary course of events from the mere
invasion of his right to reputation, and such damage is known as ‘general damage’. Thus, a
plaintiff in a libel action is not required to prove his reputation, nor to prove that he has
suffered any actual loss or damage. The plaintiff is not obliged to testify, although it is
customary for him to do so, but, having proved a statement defamatory of him and not
excused by any available defence, he is always entitled at least to nominal damages.
However, it is open to a plaintiff in a libel action to plead and prove special damage which he
is entitled to recover in addition to general damage. In appropriate circumstances he may also
seek aggravated or exemplary damages.

Publication of slander: - a person publishes a slander who speaks words defamatory of the
plaintiff to or in the presence of a third person who hears them. Where the words are
broadcast, or spoken in a theatre, or recorded in permanent form and retransmitted, the
publication is treated as libel.

2
E Hulton & Co v. Jones [1910] AC 20, HL
5
DEFENCES
Truth as a defence: - The defence of justification as that the words complained of were true
in substance and in fact.

Since the law presumes that every person is of good repute until the contrary is proved, it is
for the defendant to plead and prove affirmatively that the defamatory words are true or
substantially true. If a defendant pleads justification, where the words complained of consist
of statements of fact and comment, he must prove that the defamatory statements of fact are
true or substantially true and that the defamatory inferences borne by the comment are true 3.
Truth may be pleaded as a defence to the whole of the defamatory statements or in the
alternative as a defence to a severable part of them.

Failure to establish the defence at trial may properly be taken into account in aggravation of
damages4. In Radheshyam Tiwary v. Eknath, the defendant, in an action for defamation could
not prove that the facts published by him were true and, therefore he was held liable.

The defence may be pleaded in the alternative to a defence which denies publication.

Defence of justification; the words to be justified: - The defence of justification asserts that
the sting of the defamatory statement in its proper context is true and correct in substance and
in fact5. Where a plaintiff complains of words in part of a publication the defendant may refer
to the whole publication in order to avert that in their context the words bore a different
meaning from that alleged by the plaintiff and that in that meaning they are true 6. The
defendant may not otherwise assert a version of the words which differs materially from the
plaintiff’s version and justify that version7.

Defence of justification; meanings that may be justified: - The defendant may seek to
justify the words complained of in their proper context in any meaning which they are
capable of bearing, whether or not that meaning is alleged by the plaintiff 8. He may also
justify the words complained of in their natural and ordinary meaning or any innuendo
meaning that has been pleaded, whether it is a natural and ordinary meaning or an innuendo
meaning.
3
Broadway Approvals Ltd v. Odhams Press Ltd [1965] 2 All ER 523
4
Associated Leisure (Phonographic Equipment Co Ltd) v. Associated Newspapers Ltd [1970] 2 All ER 754
5
Edwards v. Bell (1824) 1 Bing 403
6
Polly Peck (Holdings) plc v. Trelford [1986] 2 All ER 84
7
Rassam v. Budge [1893] 1 QB 571
8
Cadam v. Beaverbrook Newspapers Ltd [1959] 1 All ER 453
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If the plaintiff has pleaded a meaning wider than was necessary, he will enable the defendant
to justify that wider meaning and to include in his particulars matters which he might not
otherwise have been entitled to plead.

Where a publication contains two or more separate and distinct defamatory statements, the
plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the
truth of the others by way of justification. If the several allegations have a common sting,
they are not to be treated as separate and distinct and the defendant may justify any of them.

A defendant is not entitled to defend a specific defamatory charge of wrongdoing by seeking

to justify such wrongdoing generally unless the words bear that wider general meaning9.

9
Bookbinder v. Tebbit [1989] 1 All ER 1169
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ABSOLUTE PRIVILEGE
Nature of defence

Privilege generally: - The doctrine of privilege in the law of defamation must be

distinguished from evidential privilege. In defamation, privilege constitutes a defence. Its
rationale is that, unless the general principle of strict liability for the publication of
defamatory material is relaxed in relation to certain occasions, the public interest and the
common convenience and welfare of society will suffer because persons will be deterred by
the fear of suit from expressing themselves freely on matters of importance, and the public
will be denied information about parliamentary and court proceedings 10. Even when the
defence of absolute privilege does not apply, public policy may in exceptional cases preclude
upon the bringing of an action upon defamatory words11.

Absolute and qualified privilege: - Both at common law and by statute, and the law
recognises two levels of privilege: -

1. Absolute privilege, which applies only to occasions and reports of high public
importance, words published or reported on such occasions can never be the subject
of suit, even if the defendant was actuated by express malice.
2. Qualified privilege, which applies to a far wider range of occasions and reports, if the
defendant establishes that his words are protested by qualified privilege, strict
liability ceases to apply and the plaintiff must prove that the defendant was actuated
by express malice.

The occasions of absolute privilege: - The occasions of absolute privilege may be classified
as: -

1. The administration of justice;

2. Reports of court proceedings;
3. Parliamentary proceedings and papers;
4. Affairs of state; and
5. Other express statutory instances.

10
Trapp v. Mackie [1979] 1 All ER 489
11
Hasselblad (GB) Ltd v. Orbinson [1985] 1 All ER 173
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Application of the Defence

Administration of justice and reports

Absolute privilege: - No action lies, whether against judges, counsel, jury, witnesses or
parties, for words spoken in the ordinary course of any proceedings before any court or
judicial tribunal recognised by law. The evidence of all witnesses or parties speaking with
reference to the matter before the court is privileged, whether oral or written, relevant or
irrelevant, malicious or not. The privilege extends to documents properly used and regularly
prepared for use in the proceedings. Advocates, judges and juries are covered by this
privilege. However, a statement will not be protected if it is not uttered for the purposes of
judicial proceedings by someone who has a duty to make statements in the course of the
proceedings.

A separate action for malicious prosecution or the malicious institution or abuse of civil
proceedings may lie independently of the law of defamation.

Parliamentary proceedings and reports

Proceedings in Parliament: - Words spoken by a Member of Parliament in Parliament are

absolutely privileged, and the court has no jurisdiction to entertain an action in respect of
them. When Parliament is sitting and statements are made in either House, the member
making them is not amenable to the civil or criminal law, even if the statements are false to
his knowledge, and a conspiracy to make such statements would not make the members
guilty of it amenable to the criminal law. However, this privilege does not extend to a
statement published by a member outside the house, even where it is a reproduction of what
was said in the House, and made in the consequence of the appearance of an incorrect
publication in the newspapers, and a letter from a member to a minister, even on a matter of
public concern, is probably not entitled to absolute privilege.

Affairs of State

Absolute privilege in affairs of state: - For reasons of the highest policy and convenience,
Ministers cannot be called to account in any action for any advice which they think right to
tender to the Sovereign, however prejudicial such advice may be to the individuals. Similarly
an action will not lie against a military officer, at the suit of a military employee, in respect of

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a report published or any act done in the course of his duty as such officer, even if the report
is made or act done maliciously and without reasonable or probable cause. Official
communications relating to state affairs, made between officers of state in the course of their
duty, will be protected by absolute privilege, even if the subject matter of the communication
is a commercial one. It is uncertain whether a report by one senior police officer to another is
absolutely privileged.

QUALIFIED PRIVILEGE

Defence of qualified privilege: - On grounds of public policy the law affords protection on
certain occasions to a person acting in good faith and without any improper motive who
makes a statement about another person even when that statement is in fact untrue and
defamatory. Such occasions are called occasions of qualified privilege. The principal
categories of qualified privilege are: -

1. Limited communication between persons having a common and corresponding duty

or interest to make and receive the communication.
2. Communications to the public at large, or to a section of the public, made pursuant to
a legal, social or moral duty to do so or in reply to a public attack.
3. Fair and accurate reports, published generally, of the proceedings of specified
persons and bodies.

Since the common law doctrine of qualified privilege is policy based, it is not possible to list
exhaustively all privileged occasions.

It is for the defendant to prove that the occasion of publication is one of qualified privilege.

The defence of qualified privilege attaches to the occasion on which the words are published,
rather than to the words themselves. It would be contrary to the purposes for which qualified
privilege exists if the law an objective test of relevance to every part of the defamatory
matter, as a precondition of the existence of privilege. Words wholly unconnected and with
and irrelevant to the occasion may not be privileged, but generally, irrelevant and
unnecessary words having some relation to the occasion will be within the privilege but will
constitute evidence of express malice.

A defamatory statement published by or on behalf of a candidate in any local government or

Parliamentary election is not deemed to be published on a privileged occasion on the ground

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that it is material to a question in issue in the election, whether or not the publisher is
qualified to vote at the election. Defamatory statements otherwise made by any person, such
as an elector, are privileged if they are made to the electors and are relevant to the matters
which the electors must consider in deciding which way to vote.

Other occasions of qualified privilege: - other examples of limited communications which

have been held protected by qualified privilege include: -

1. Statements made at committees and council meetings;

2. Agenda of certain public meetings;
3. Communications by a solicitor on his client’s behalf;
4. Statements made in the protection of a person’s own interests;
5. Statements made during the investigation of crime;
6. Communications on family or private matters,

And many other instances of the application of the general principles set out above.

FAIR COMMENT
The defence of fair comment: - In the nineteenth century the defence of fair comment came
to be recognised as distinct from the law of privilege. The defence of fair comment is in the
nature of a general right, and enables any member of the public to express defamatory
opinions on matters of public interest. Such opinions must be based on true facts or facts
stated on a privileged occasion and the defence only applies to statements which are
recognisable by the reader or listener as expressions of opinion rather than statements of fact.
Fair comment may be pleaded in the alternative to justification. The defence is defeated on
proof by the plaintiff the defendant made the defamatory comment maliciously.

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STATUTORY DEFENCE FOR PRINTERS, DISTRIBUTORS AND
OTHER SECONDARY PUBLISHERS
Responsibility for publication: - In defamation proceedings a person has a defence if he
shows that: -

1. He was not the author, editor or publisher of the statement complained of;
2. He took reasonable care in relation to its publication; and
3. He did not know, and had no reason to believe, that what he did caused or
contributed to the publication of a defamatory statement.

In determining for these purposes, regard must be had to: -

(a) The extent of his responsibility for the content of the statement or the decision to
publish it;
(b) The nature or circumstances of the publication; and
(c) The previous conduct or character of the author, editor or publisher.

Employees or agents of an author, editor, or publisher are in the same position as their
employer or principal to the extent that they are responsible for the content of the statement
or the decision to publish it.

Authors, editors and publishers: - for the purposes of the statutory defence for printers,
distributors and other secondary publishers, ‘author’, ‘editor’ and ‘publisher’ have the
following meanings. ‘Author’ means the originator of the statement, but does not include a
person who did not intend that his statement be published at all. ‘Editor’ means a person
having editorial or equivalent responsibility for the content of the statement or the decision to
publish it. ‘Publisher’ means a commercial publisher, that is, a person, whose business is
issuing material to the public, or a section of the public, who issues material containing the
statement in the course of that business. A person is not however, to be considered the author,
editor or publisher of a statement if he is only involved: -

(1) In printing, producing, distributing or selling printed material containing the

statement;
(2) In processing, making copies of, distributing, exhibiting or selling a film or sound
recording containing the statement;
(3) In processing, making copies of, distributing or selling any electronic medium in or
on which the statement is recorded, or in operating or providing any equipment,
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 system or service by means of which the statement is retrieved, copied, distributed or
made available in electronic form;
(4) As the broadcaster of a live programme containing the statement in circumstances in
which he has no effective control over the maker of the statement;
(5) As the operator of or provider of access to a communication system by means of
which the statement is transmitted, or made available, by a person over whom he has
no effective control.

In a case not within heads (1) to (5) above, the court may have regard to those provisions by
way of analogy in deciding whether a person is to be considered the author, editor or
publisher of a statement.

THE STATUTORY DEFENCE OF OFFER OF AMENDS

Offer to make amends: - A person who has published a statement alleged to be defamatory
of another may offer to make amends. The offer may be in relation to the statement generally
or in relation to a specific defamatory meaning which the person making the offer accepts
that the statement conveys.

An offer of amends: -

(1) Must be in writing;

(2) Must be expressed to be an offer to make amends under the relevant provision of the
Defamation Act 1996; and
(3) Must state whether it is a qualified offer and, if so, set out the defamatory meaning in
relation to which it is made.

Such an offer to make amends is an offer: -

(a) To make a suitable correction of the statement complained of and a sufficient apology
to the aggrieved party;
(b) To publish the correction and apology in a manner that is reasonable and practicable
in the circumstances; and
(c) To pay the aggrieved party such compensation (if any), and such costs, as may be
agreed or determined to be payable.
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The fact that the offer is accompanied by an offer to take specific steps does not affect the
fact that an offer to make amends under these provisions is an offer to do all the things
mentioned in heads (a) to (c) above.

Such an offer to make amends may not be made by a person after serving a defence in
defamation proceedings brought against him by the aggrieved party in respect of the
publication in question. It may be withdrawn before it is accepted; and a renewal of an offer
which has been withdrawn is treated as a new offer.

Statutory defence of apology and payment into court: - In an action for a libel contained
in a public newspaper or other periodical publication, the defendant may plead (1) that the
libel was inserted in it without actual malice and without gross negligence; and (2) that before
the action, or at the earliest opportunity afterwards, he inserted in it a full apology for the
libel, or, if the newspaper or periodical publication in which it appeared was ordinarily
published at intervals exceeding one week, he had offered to publish the apology in any
newspaper or periodical to be selected by the plaintiff. However, the defendant may not plead
such a defence without at the same time making a payment of money into court by way of
amends; and every such defence so pleaded without payment of money into court is deemed,
and may be treated by the plaintiff as, a nullity. This defence still exists, but has fallen wholly
into disuse, being replaced by the statutory defence of offer of amends and the modern
practice of payment into court together with a published apology or offer of apology if the
defendant so elects.

LEAVE AND LICENCE

It is a defence to an action for libel or slander for the defendant to plead and prove that the
plaintiff has authorised or assented to the publication of the words complained of. The
defence is based on the maxim volenti non fit injuria by which no act is actionable as a tort at
the suit of any person who has expressly or impliedly assented to it.

In certain circumstances a libel or slander published with the plaintiff’s assent will also be
protected by the defence of qualified privilege, such as where the plaintiff invites or procures
the publication to give himself a cause of action or where the defamatory statement originated
elsewhere and was repeated at the plaintiff’s request. In such cases the defendant may plead
both qualified privilege and leave and licence.

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LIMITATION
The time limit applicable to actions for libel or slander, slander of title, slander of goods or
malicious falsehood is one year term from the date on which the cause of action accrued or,
in the case of a person under a disability, one year from the date on which he ceased to be
under a disability.

If it appears to the court that it would be equitable to allow an action to proceed having regard
to the degree to which: -

(1) The operation of the statutory time limit prejudices the plaintiff or any person whom
he represents, and
(2) Any decision of the court under this provision would prejudice the defendant or any
person whom he represents,

the court may direct that that time limit is not to apply to the action or is not to apply to any
specified cause of action to which the action relates. In so acting the court must have regard
to all the circumstances of the case and in particular to: -

(a) The length of, and reason for, the delay on the part of the plaintiff;
(b) Where the reason or one of the reasons for the delay was that all or any of the facts
relevant to the cause of action did not become known to the plaintiff until after the
end of the statutory limitation period:
(i) The date on which any such facts did become known to him; and
(ii) The extent to which he acted promptly and reasonably once he knew whether
or not the facts in question might be capable of giving rise to an action; and
(c) The extent to which, having regard to the delay, relevant evidence is likely to be
unavailable or to be less cogent than if the action had been brought within the
statutory limitation period. The expiry of this statutory time limit is no bar to
equitable relief.

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CONCLUSION
Every man has a right to have his reputation preserved inviolate. The existing law relating to
defamation is a reasonable restriction on the fundamental right of freedom of speech and
expression conferred by article 19(1)(a) of the Indian Constitution and is saved by clause (2)
of article 19.

Bibliography
[Books]

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1. Clerk and Lindsell, Clerk and Lindsell on Torts, (Sweet and Maxwell Ltd., UK, 19th
Edn., 2005)
2. Ratanlal and Dhirajlal, The Law of Torts, (Wadhawa and Co., Nagpur, 1st Edn., 2007)
3. Winfield and Jolowicz, Winfield and Jolowicz on Torts, (Sweet and Maxwell Ltd.,
UK, 16th Edn., 2002)
[Journals and Legal Manuals]
1. All England Reporter
2. American Jurisprudence
3. Halsbury’s Laws of England
4. Halsbury’s Laws of India
[Legal databases and Websites]
1. www.law.stanford.edu
2. www.manupatra.com
3. www.oxfordjournals.org
4. www.westlaw.com

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