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Introduction:

Every person has a right to live with dignity. This right of reputation is acknowledged as an

inherent personal right of every person as part of the right of personal liberty. A man's reputation

is an invaluable property. If a person's reputation is being damaged then this loss exceeds far

compared to the damaged property. But the law is there to protect the reputation of a person if it

is being infringed by someone. Truth and privilege protect the freedom of speech. The law

related to defamation is a reasonable restriction on the fundamental right of freedom of speech

and expression conferred by Article 19(1)(a) of our Constitution and is saved by clause (2) of

Article 19.

Defamation may be committed either by way of writing, or its equivalent or by way of speech.

Defamation committed through writing is called as 'libel'.

Defamation committed through speech is known as 'slander'. A defamatory statement is a

statement calculated to expose a person to hatred, contempt or ridicule or the person is injured in

his trade, business, profession or he is defamed in such a way that he be shunned or avoided in

the society.

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Essentials of Defamation

To constitute an action for defamation following essentials are necessary:

(i) The statement must be false and defamatory,

(ii) It must be published, and

(iii) It must refer to the plaintiff.

Q. What are the essentials of a defamation? Discuss with the help of some relevant cases.

The statement must be false and defamatory.

Sim v. Stretch, it was observed that the defamatory statement must be such which tends to

lower a person in the estimation of right thinking members of society generally. A right thinking

man is a reasonable man who is neither unusually suspicious nor unusually naive and he does not

always interpret the meaning of words as in case of a lawyer since "he is not inhibited by a

knowledge of the rules of construction.

Youssoup v. Metro-Goldwyn Mayer Pictures Ltd -The plaintiff, a Russian Princess, was

falsely imputed by a cinematograph film that she had been raped or seduced by the notorious

monk Rasputin. The court observed that this tended "to make the plaintiff be shunned and

avoided" in the estimation of right thinking persons of the society generally.

Ramdhara v. Phulwatibai.-The plaintiff was a widow aged 45 years. She was falsely imputated

by the defendant that she is a keep of maternal uncle of plaintiff's daughter-in-law. The court

held that this imputation of chastity was a defamation, sustain an action. Conveys certain

imputations.

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S.N.M. Abidi v. Profulla Kumar Mohanta, .-One of the articles published in a weekly

magazine 'The Illustrated Weekly' alleged that the former Chief Minister, Profulla Kumar

Mohanta had misused man and muscle power. The Court found the allegation false, baseless and

defamatory which harmed the plaintiff's reputation and awarded a damage to the tune of Rs.

5,00,000.

Shilpa S. Shetty v. Magna Publishing Co. Ltd., the plaintiff, an actress filed a suit claiming

damages for the articles, published in the magazine published by the appellants called stardust,

are defamatory in nature and would affect her career and for injunction restraining the appellants

from publishing defamatory articles. The learned single Judge was of the prima facie view that

the articles deal with the personal life and are defamatory in nature and granted interim

injunction restraining the defendants from republishing the articles and/or from publishing any

defamatory article alleging that the plaintiff is having relationship with other actors or a married

man.

Innuendo

It means a remark with double meaning. Sometimes it happens that a statement does not convey

any defamatory imputation in its natural meaning, but it may convey a defamatory owing to the

particular circumstances and these particular circumstances by the plaintiff, is called innuendo.

Cassidy v. Daily Mirror, the newspaper, Daily Mirror published a news with a photograph of

Mr. M and Ms. C together with the news caption that Mr. M the race horse owner and Ms. C has

announced their engagement. But, this news was false as they were already married.

Reference to the plaintiff:

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It is upto plaintiff to prove that the defamatory statement for which he has brought the action was

certainly referred to him or reasonably made so that it would be understood by the people as

referred to him.

In E. Hulton & Co. v. Artemus Jones, the appellants were newspaper proprietors of 'Sunday

Chronicle'. A humorous article was published in their newspaper regarding motor festival at

Dieppe - in which Artemus Jones, a church warden, was accused of living with a mistress of ill-

repute in France. The article was like this...... "whist! Thereis Artemus Jones with a woman who

is not his wife, who must be, you know..... the other thing! Whispers a fair neighbour of mine......

Here, in the atmosphere of Dieppe...... (Jones) is the life and soul of a gay little bond that haunts

the casino."

This character was fictitious (imaginary) and was just drawn to exemplify the naughtiness of a

respectable Englishman on holiday abroad. But the writer and owner of the article was unaware

of the facts that a person - Artemus Jones - exists (lives) in real, who was a barrister and not a

church warden. Artemus Jones brought an action against the newspaper.

The House of Lords held that a person charged with defamation "cannot defend himself by

showing that he did not intend to defend the plaintiff. He has nonetheless imputed something

disgraceful, and has nonetheless injured the plaintiff. A man may publish a libel in good faith

believing it to be true, and it may be found by the jury that he acted in good faith believing it to

be true, but that in fact the statement was false. Under those circumstances he has no defence to

the action, however his excellent indentation was". The defendants were held liable.

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Publication of the statement

To get the statement published is another essential ingredient in constituting defamation. Here,

publication does not mean giving the publicity but to make the statement known to other person

than the person defamed. For example, if X writes to Y that Z is a cheat, then it is a publication

since X has told it to someone other than Z i.e., to Y. But, if X writes to Z in a closed envelope

that you (Z) are a cheat, it is not a publication. To send something via telegram or postcard that

could be read by others can be claimed as publication.And, if a person knowingly sends

something in writing to defame a person in a closed envelope that it will be opened by someone

else, then this amounts to publication;

Delacroix v. Thevenot, (1817) 2 Stark 63.If an addressee does not know the language in which

something has been written to him or he is too blind to read it then what would be the position?

In a case Mahendra Ram v. Harnandan Pd., MANU/BH/0143/1958 : AIR 1958 Pat 445, the

Patna High Court considered this dilemma. The defendant wrote a defamatory letter to the

plaintiff in Urdu but the plaintiff did not know Urdu. The letter was then read by a third person.

The court held that unless it was known to the defendant at the time of writing letter to plaintiff

that Urdu was not known to him, he would not be held liable.

Knowledge or intention of defendant and its impact:

Morrison v. Ritchie & Co: A statement was published in good faith by the defendant that the

plaintiff had given birth to twins. But, the plaintiff was married only two months back and the

defendant was unaware of this fact then even they were held liable.

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D.P. Chowdhery v. Manjulata, a news was published in a local daily Dainik Navjyoti that the

plaintiff Manjulata, a 17 years old girl, a student of B.A. belonging to a distinguished family

based at Jodhpur has eloped with a boy named Kamlesh on the pretext of attending night classes

at her college. It was found that the news was untrue and was published negligently and with

irresponsibility. The Court found the defendant liable and awarded a damage of Rs. 10,000 to

plaintiff. If the defendant has defamed the plaintiff's reputation although unintentionally, he is

liable. The words are actionable if false and defamatory, although published accidentally or

inadvertently.

Dissenting View:

T.V. Ramasubba Iyer v. Ahmad Mohideen: the defendants published in their newspaper that a

person from Tirunelveli, exporter of scented agarbattis to Ceylon instead smuggled opium into

Ceylon in form of agarbattis and other news was that he was arrested in Ceylon and has been

brought to Madras. On an action brought by the plaintiff, the defendants pleaded ignorance about

the plaintiff and submitted that they had no intention to defame him. In this case, the Madras

High Court did not follow the English cases (Morrison v. Ritchie & Co. and E. Hulton & Co. v.

A. Jones), and held that there was no liability for the statements published innocently.

Class Defamation:

• Sukumar Azhikode Vs.Respondent: State of Kerala and Anr.

• Petitioner, an orator made a statement in a public meeting that the Public Prosecutor

should not only be terminated from service but his hands and legs should be broken and

taken to the hospital. The speech was made at a meeting demanding enquiry into

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retraction of statement by prosecution witnesses in the Ice Cream Parlour Sex Racket

Case. Complainant, who was the Public Prosecutor, filed a private complaint against

Petitioner and another person alleging that Petitioner had defamed the complainant.

Petitioner approached the High Court to quash the complaint on the ground that the

reference is not to the complainant but only general in nature and the reference will in no

way defame the complainant. The Honourable Court, after a meticulous analysis of the

alleged defamatory material and precedents, repelled the contention and found that any

reasonable man will understand that the reference in the speech was only to the

complainant and not to anyone else.

• Dismissing the petition, the court; If the Petitioner did make the above statement, then,

the sentence which read "the Public Prosecutor who aided the treachery should not only

be terminated from the service but his hands and legs should be twisted and broken and

taken to the hospital" can obviously refer to the complainant only since the complainant

was the only Special Public Prosecutor who was in-charge of the case and whose services

were terminated. Any prudent or reasonable reader of the news item can easily

understand that the reference in the statement was not to any class or indeterminate body

of persons but to the complainant and to the complainant only. Hence, the complainant is

the aggrieved person within the meaning of Section 199 Code of Criminal Procedure.

• Though defamatory matter may appear only to apply to a class of individuals, yet if the

descriptions in such matter are capable of being, by inuendo, shown to be directly

applicable to any one individual of that class, an action may be maintained by such

individual in respect of the publication of such matter. 

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• The essence of the offence of defamation consists in calling that

description of pain which is felt by a person who knows himself to

be the object of the unfavourable sentiments of his fellow creatures

and those inconveniences to which a person who is the object of

such unfavourable sentiment is exposed. The words or visible

representation, therefore, complained of must contain an

imputation concerning some particular person or persons whose

identity can be established. If they contain no reflection upon a

particular individual or individuals, but equally apply to others

although belonging to the same class, an action for defamation will

not lie. Further, although the word 'person' in Section 499 of the

Code includes a company or an association or a collection of

persons as well as provided in explanation 2 of Section 499, but

the class of person attributed to must be a small determinate body.

Advocates as a class are incapable of being defamed. If any

publication can be shown to refer specifically to particular

individuals then alone an action for defamation may lie, not

otherwise.

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• In the case of Asha Parekh and Ors. v. The State of Bihar MANU/BH/0112/1975, the

Hon'ble Patna High Court dealt with a case where a group of lawyers had filed a

defamation case against the actors, the actress, the director, the producer, the script.

writer, etc., of the movie Nadan. The case before this Court is, in fact, much similar to

that one. In that case, the complainant alleged that one of the characters had played the

role of an advocate and that there were defamatory statements made against the lawyers

as a class. The Hon'ble Patna High Court observed as under:

• Shah Rukh Khan vs. State of Rajasthan and Ors. (20.08.2007 - RAJHC) :

MANU/RH/0664/2007Thus, the law requires that the defamatory statement, in order to

be actionable, be made against a definite and an identifiable group. However, lawyers

taken as a class cannot be identified with any particular individual-indeterminate,

indefinite, and unidentifiable as the members are: Firstly, the members of this class are

too varied to be reduced to a few traits. Their is not a homogenous class, but a

heterogeneous one, made up of wonderfully different individuals. Secondly, they are

spread over the length and the breadth of the land. Thirdly, the class is always in flux,

ever changing, as new lawyers enter and old ones depart the profession. The entire

members of the class are clearly unidentifiable and indeterminable. Moreover, it is not

the case of the respondent No. 2 to 7, that the Petitioner said anything specific about the

lawyers of Kota, who arguably would form a definite collection of persons. The remark

made by the petitioner was applicable to the lawyers as a community. Thus, a group of

lawyers could not file a complaint against the petitioner for offence Under Section s 499

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and 500 IPC. Therefore, the complaint is not even maintainable. This aspect, too, has

escaped the notice of the learned Magistrate in passing the impugned order.

Defences:

There are some specialized defences to an action for defamation which are as follows:

(i) Justification-Truth.

(ii) Fair comment; and

(iii) Privilege

Truth:

The law will not permit a man to recover damages in respect of an injury to a character which he

does not or ought not to possess. In criminal law truth alone is not sufficient to make a defence.

In the case Ashok Kumar v. Rakha K. Pandey, it was held that it has to be proved that the

publication of the defamatory statement was in public interest or for public benefit. The accused

is required to prove under exception 1 of section 499 of the Indian Penal Code that the statement

which was contended was true and at the same time, it was made in public interest or for the

benefit of public.

Alexander v. N.E. Rly. Co., , the plaintiff was said to be convicted and sentenced to three

weeks' of imprisonment but in fact, it was only for two weeks. So, the matter was substantially

true and it is immaterial whether it was incorrect on some material details.The Court found that

there was sufficient justification.

Fair Comment

Essential requisites of fair comment are

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(a) there must be a comment and not a statement of facts,

(b) the comment must be fair and bona fide,

(c) the matter commented on must be of public interest.

(a) Comment-

Comment usually means an expression of opinion which is based on certain facts. It is essential

that the facts should be mentioned before making a comment. E.g. A takes/borrow money from

others, does not return the same on time although he has money. He is a miser. Here the latter

words are a comment based on the former facts.

(b) Comment must be fair-To bring the comment within the ambit of good defence, fair comment

is necessary. Fair indicates here the meaning 'honest' at the same time relevant also. In the

example given in sub-head (a) a miser is a fair comment. But instead of using the word 'miser'

had we used 'dishonest man' then it would have been not a relevant comment.

Tushar Kanti Ghosh v. Bina Bhowmic, the defence of fair comment has been explained as

"(a) the comment must be fair in the sense that it must be honest and reasonably warranted by

such facts;

(b) having stated the facts truly, some observations by way of comment may be added provided

they consist an inference which might legitimately be drawn from the factsstated; and

(c) the exaggerations would be excused only if it is merely an excess of severity short of violent

inventive and cannot take the form of an addition of untrue facts."

(d) Public interest-It is the third important essential of fair comment.

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The public interest usually covers the matter which is legitimately concerned with people at

large. It is upto the judge to decide whether matter is of public interest or not. Public interest

matters include affairs of State public acts of ministers and other officials of State, the

administration of justice, public institutions, local authorities, theatres, concerts etc.

Absolute and Qualified Privilege.

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