Introduction

Defamation is a tort which injures reputation without justification or lawful excuse by exposing a
person to hatred, contempt or ridicule, and is therefore actionable. If a person injures the reputation
of another he does so at his own risk as in the case of an interference with the property. “ A man’s
reputation is his property, and if, possible, more valuable, than other property.” 1

Some defintion of Defamation by eminent jurist:

(1) Prof. Salmond: “The wrong of defamation consists in the publication of a false and
defamatory statement respecting another person without lawful justification or excuse.”

(2) Underhill: “Defamation means publication of false and defamatory statement about any
person without any proper cause.”

(3) Blackburn and George: “Publication of false statement which destroys some ones
reputation in the sence of right thinking members of the society it creates defamation.”

(4) Prof. Winfield: “Defamation is the publication of 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.”

(5) Neville Vs. Fine Arts Inst. (1987)AC 68 (72): “A statement is said to be defamatory when
it was a tendency to injure the reputation of the person to whom it refers. Such a statement is
one which exposes him to hatred, ridicule or contempt or which cause him to be shamed /
shunned or avoided or which has a tendency to injure him in his office, profession or
calling.”

(6) Lord Atkin: Defamatory words must tend to lower the claimant in the estimation of right-
thinking members of society generally.2

(7) Oxford English Dictionary3: The act of damaging somebody’s reputation by saying or
writing bad or false things about them.

1 Dixon v. Holden (1869) 7 Eq. 488

2 Sim v. Stretch (1936) 52 T.L.R. 669
 (8) Dipak Misra J4: Reputation is “not only salt of life but the purest treasure and the most
precious perfume of life.”

Types of Defamation

There are two ways through which we can transmit the defamatory statement. One is through
slander and another one is through libel. Libel is done through text or graphic and it is permanent in
nature. Thus, it can be said that it will stay as long as the graffiti or statue or picture stays on.
Defamation can also be done through slander. Here, slander is referred to as transient or non-
permanent in nature. Thus, in this case, the effect of defamation is considered to subsist for the time
period of comment or action.

 CRIMINAL DEFAMATION: It is the act of offending or defaming an individual by

committing a criminal offense. For criminal defamation, we’ll always get the person liable or party
prosecuted. It is mentioed in I.P.C. as criminal act.

 CIVIL DEFAMATION: It involves no criminal offence, but on account of this type of

defamation, we may sue the person to urge a legal compensation for our defamation. It is mentioned
under law of torts i.e. as a tort.

 LIBEL : A libel is a publication of false and defamatory statement, in some permanent

form, tending to injure the reputation of another person, without lawful justification or excuse.
Some permanent forms of libel are in writing, printing, picture, effigy5 or statute. It is addressed to
eyes..

 SLANDER : Slander is the publication of a defamatory statement in a a transient form. It is

like rumours and gossips addressed to the ears of the listeners. Examples of slander are, spoken
words or gestures.

Under English Law, the distinction between libel and slander is material for two reasons:

3 Established by the members of the Philosophical Society of London in 1857.

4 See Vishwanat v. Sau. Sarla Vishwanath Agrawal, (2012) 7 SCC 288-D
5 Monson v. Tussauds Ltd., (1894) 1 Q.B. 671.
a) Under criminal law, only libel has been recognized as an offence. Slander is no offence.

b) Under the law of torts, slander is actionable, save in exceptinal cases, only on proof of
special damage. Libel is always actionable per se, i.e., without the proof of any damage.

In the following four exceptional cases, slander is also actionable per se :

i. Imputation of criminal offence to the plaintiff;

ii. Imputation of a contagious disease to the plaintiff, which has the effect of preventing other
from associating with the plaintiff;

iii. Imputation that a person is incompetent, dishonest or unfit in regard to the office,
profession, calling, trade or business carried on by him;

iv. Imputation of unchastity or adultery to any women is also actionable per se6

IN INDIAN LAW: Criminal law in India does not make any distinction between libel and slander.
Both libel and slander are criminal offences under Section 499 of I.P.C.7

Essentials of Defamation8

(a) There must be a defamatory statement.

(b) The defamatory statement must be understood by right-thinking or reasonable-minded

persons as referring to the plaintiff.

(c) There must be publication of the defamatory statement, that is to say, it must be
communicated to some person other than the plaintiff himself.

(d) In case of slander, either there must be proof of special damage or the slander must come
within the serious classes of cases in which it is actionable per se.

6 Created by the Slander of Women Act, 1891.

7 499. Defamation. —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 reason to believe that such imputation will harm, the reputation of
such person, is said, except in the cases hereinafter expected, to defame that person.
8 B.M. Thimmaiah v. T.M. Rukimini, A.I.R. 2013 Kar. 81.
(1) STATEMENT OF FACT : The statement given by the person must be the statement of fact not
a statement of opinion. If a person is giving his opinion in the statement whether it is true or false, it
will not be considered as defamation. The statement passed by the person must be in the nature of
defamation and must be a false statement. The statement which is true cannot be taken as a
defamatory statement. Let’s take the example to understand the difference between the statement of
fact and statement of opinion.

>Rohit says that I think Mohit is a criminal. Here, he is giving his opinion, this is a statement of
opinion. It will not be considered as defamation whether it is true or false.

>Rohit says in an interview that Mohit is a criminal he had committed theft. It is a statement of fact.
It will be considered as defamation if the statement given by Rohit is false. But if the statement
given by Rohit is true, it will not be considered as defamation.

 Ram Jethmalani v. Subramaniam Swamy9, while a Commission of Inquiry was

examining 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
late Shri Rajiv Gandhi. The plaintiff was engaged as a senior counsel to represent the then
Chief Ministeri of Tamil Nadu. In discharge of his professional duties, the plaintif cross-
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. 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. Counting the professional standing of the plaintiff and his stature in
social life, the Delhi High Court awarded damages Rs. 5 lacs.

THE INNUENDO: In ordinary English, any implied or allusive meanings are called “inuendoes”
but the technical legal meaaning is narrower. An innuendo in the legal sense arises only when the
defamatory nature of the statement depends upon facts and circumstances which are not part of
General Knowledge but which are known to the persons to whom the statement is published. When

9 A.I.R. 2006 Del. 300.

the natural and ordinary meaning is not defamatory but the plaintiff wants to bring an action for
defamation, he must proove the latent or the secondary meaning, i.e. the innuendo.
 Capital and Counties Bank v. Henty & Sons10, 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 follows : "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. 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.

(2) THE STATEMENT MUST REFER TO PLAINTIFF: The statement must be referring directly
to the person who is claiming the defamation. There must be a specific person who is targeted.

 Hulton Co. v. Jones11 : The defendants published a fictional article in their newspaper ,
Sunday Chronicle, written by the Paris correspondent, purporting to describe a motor
festival at Dieppe. In the article aspersions were the cast of the morals of a fictious person-
Artemus Jones, stated to be a Churchwarden at Pekham and being present in the festival.
On the basis of the above quoted defamatory statement, one Artemus Jones, who was a
barrister, brought an action against the defendants. His case was referred to him. The
defendants pleaded that 'Artemus Jones was an imaginary or a fictional name invented only
for the purpose of the article and they never knew the plaintiff and they did not intend to
defame him. Notwithstanding this contention of the defendants, they were held liable.
According to Lord Alverstone, C.J., “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.”

10 (1882) 7 A.C. 741.

11 (1910) A.C. 20
(3) THERE MUST BE PUBLICATION12: There must be the publication of the false statement
passed by the person. Publication does not mean that it should be published in the newspaper only,
it means the statement is communicated other than the defamed party. If the person gives his
statement only to the person who is wanted to blame will not be considered as defamation.

For Example- A said B in the personal chat that you are a criminal, here, there is no communication
with other persons. It will not be considered as defamation. But if B passes the same statement by
posting it on the Whatsapp group where there are lots of members in the group it will come under
the definition of defamation.

 Mahendra Ram v. Harnandan Prasad13, the defendant sent a defamatory letter written in
Urdu to the plaintiff. The plaintiff did not know Urdu and therefore the same was read over
to him by a third person. It was held that the defendant was not liable unless it was proved
that at the time of writing the letter in Urdu script, the defendant knew that the Urdu script
was not known to the plaintiff and it would necessitate reading of the letter by a third
person.

(4) MUST CAUSE SPECIAL DAMAGE: The false statement must have an effect on the reputation
or financial growth of the plaintiff. If there is no harm to the reputation or financial growth, the
person cannot claim the defamation. For example, if a person losses his job due to the false
statement given by a person is considered as the financial loss to the person and that person can
claim the defamation.

DEFENCES TO DEFAMATION

It is extraordinarily easy for the elements of the tort of defamation to be satisfied. The fact that the
tort is so easily committed means that defences to liability in defamation are particularly important.
Defences play a very major role in delimiting liability.

(1) TRUTH

12 In the Criminal Law of Libel in England, even publication to the person defamed will be enough, if it is
likely to provoke a breach of peace, R. v. Adams, (1888) 22 Q.B.D. 66. Sec. 505, I.P.C. makes a similar
provison and makes insult with intent to revoke breach of public peace an offence although it is not
deemed to be an offence of defamation.
13 A.I.R. 1958 Pat. 445
Falsity of the statement in question is not an element of the action in defamation. However, truth is
a defence. This defence used to be known by the label “justification”. This defence is concerned
simply with whether the statement was true. The motive of the defendant is utterly irrelevant in
relation to the question of whether the defence applies. It is immaterial, therefore, that the defendant
published the statement out of ill-will or spite, provided that the statement is true. It is not that the
law has any special relish for the indiscriminate infliction of truth on other people, but defamation is
an injury to a person’s reputation, and if people think the worse of him when they hear the truth
about him that merely shows that his reputation has been reduced to its proper level.

The burden is on the defendant to demonstrate that the statement in question is true. The fact that
the burden of proof is allocated to the defendant in respect of the issue of truth is often expressed by
saying that it is assumed that defamatory statements are false. Although the burden of proof rests on
the defendant, it is routine for claimants to seek to establish that the statement about which they
complain is false. The reason why thisis done is that unless it is shown that the statement is false
they are unlikely to be awarded a remedy, and especially not substantial damages.14

In Subramaniam Swami v. Union of India15, it was said by the honourable judge that “Even
‘truth’ is not a complete defence. It needs to be proved that the statement was made for public good.

The Defamation Act, 1952 (England) provides that if there are several charges and the defendant
is successful in proving the truth regarding some of the charges only, the defence of justification
may still be available if the charges not proved do not materially injure the reputation. Sec. 5 of the
Act provides: "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 iniure the plaintiff's
reputation having regard to the truth of remaining charges."

Although there is no specific provision in India regarding the above, but the law is possibly the
same as prevailing in England.
(2) Fair Comment
Making fair comment on matters of public interest is a defence to an action for defamation. For this
defence to be available, the following essentials are required :

(i) It must be a comment, i.e., 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

14 For discussion see Adelson v. Anderson (2011) EWHC 2497 (QB) at [76]-[78]
15 A.I.R. 2016 S.C. 2728.
of fact. A fair comment is a defence by itself whereas if it is a statement of fact that can be excused
only if justification or privilege is proved regarding that. Whether a statement is a fact or a comment
on certain facts depends on the language used or the context in which that 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, in the review of a play when
immorality is imputed by suggesting that it contained an incident of adultery, when in fact there was
no such incident in the play, the plea of fair comment cannot be taken16. Similary, if in a newspaper,
there is publication of a statement of facts making serious allegations of dishonesty and corruption
against the plainlift, and the defendant is unable to prove the truth of such facts, the plea of fair
comment, which is based upon those untrue facts, will also fail17.

(iii) The matter commented upon must be of public interest. Administration of Govt.
Departments, public companies, courts, conduct of public men like mininsters or officers of State,
public institutions and local authorities, public meetings, pictures, theatres, public entertainments,
textbooks, novels, etc., are considered to be matters of public interest.

(3) Priivilege

There are certain occasions when the law recognizes that the right of free speech outweighs the
plaintiff'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 kinds : Absolute' privilege
andl Qualified' privilege.

(A) 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 In certain situations, it is
thought to be so important that people can speak freely that the law confers complete protection
from liability in defamation, including in respect of false statements. The logic is that unless total
protection is given, people might be fearful of speaking in case what they say turns out to be untrue

16 Merivale v. Carson, (1887) 20 Q.B.D. 275 : Hunt v. Sitar Newspaper Co. Ltd., (1908) 2 K.B. 309
17 See R.K. Karanjia v. Thakersey, A.I.R. 1970 Bom. 424
and they are consequently unable to avoid liability on the basis of the defence of truth. When the
law of defamation confers such protection it gives what is known as “absolute privilege”. The term
privilege is apt to be misleading. For the moment it prevails, but in the future it might be replaced
by “immunity”.
Absolute privilege is recognized in the following cases:

(i) Parliamentary Proceedings

Article 105 (2) of Constitution of India provides that:
(a) statements made by a member of either House of Parliament in Parliament, and
(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 in respect of State Legislatures, according to Article 194 (2)18
(ii) Judicial Proceedings
No action for libel or slander lies, whether against judges, counsels, witnesses, or parties, for words
written or spoken in the course of any proceedings betore any court recognized by 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.19 Such a privilege also extends to
proceedings of the tribunals possessing similar attributes.20
In T.G. Nair v. Melepurath Sankunni21, the question arose whether a petition to Executive
Magistrate for starting judicial proceedings under section 107. Cr. PC22. for the maintenance of
peace and also simultaneously forwarding a copy thereof to the Sub-Inspector of Police for taking
executive action, came within the purview of the defence of absolute privilege. In that case, thei
defendant filed a petition in the court of the Executive Magistrate, First Class alleging that the
plaintiff and his brother were two notorious bad characters and they indulged in blackmailing and
criminal breach of trust and they were making efforts to encroach upon his property with the help of
some other bad character. He requested in that petition for an action to maintain peace. The
Executive Magistrate, First Class was not in the station, he (the petitioner) submitted a copy of his
petition before the Sub-Inspector of Police. The Sub-Inspector took an undertaking from the
plaintiff that he would not takel the law in his own hands. Subsequently, the Executive Magistrate
on the basis of the police report dropped the proceedings.
The plaintiff sued the defendant for defamation, which was said to be there in the form of above

18 See also Article 361-A added by the Constitution (Fourty-fourth Amendment) Act, 1978.
19 Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson, (1892) 1 Q.B. 431; per
Lopes, LJ.
20 Dawkins v. Lord Rokeby, (1875) L.R. 7 H.L. 744
21 A.I.R. 1971 Kerala 280.
22
stated petition, and the publication thereof to the Sub-Inspector of Police. It was held that not only
the judicial proceedings but also the necessary steps in that process (as the petition and the
submission of its copy to the Sub-Inspector of Police in the present case) were also absolutely
privileged. Thus, the statements made by the defendant in the petition he presented to the magistrate
and in the copy thereof which he presented to the Sub-Inspector of Police are both absolutely
privileged.5 The plaintiff's action for defamation, therefore, failed.
(iii) State Communications
A statement made by one officer of the State to another in the course of official duty is
absolutely privileged for reasons of public policy. Such privilege 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
privileged.23

(B) 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 making the statement. Generally, such a privilege is available either
when the statement is made in discharge of a duty or protection of an interest, or the
publication is in the form of report of parliamentary, judicial or other public proceedings.
Thus, to avail this defence, the defendant has to prove the following two points:

(1) The statement was made on a privileged occasion, i.e., it was in discharge of duty
or protection of an interest; or it is a fair report of parliamentary, judicial or other public
proceedings.

(2) The statement was made without any malice.

(1) Statements should be made in discharge of a duty or protection of an interest

The occasion when there is a qualified privilege to make defamatory statement without malice are
either when there is existence of a duty, legal, social or moral to make such a statement or,
existence of some interest for the protection of which the statement is made.

23 Chatterton v. Secy, of State for India in Council, (1895) 2 Q.B. 189.

"......a privileged occasion is, in reference to qualified privilege, an occasion where the person who
makes a communication has an interest or a duty legal, social, or moral, to make it to the person to
whom it is made, and the person to whom it is made has corresponding interest or duty to receive it.
This reciprocity is essential."24

Sec. 499, I.P.C. also contains such a privilege in its Ninth Exception, which provides :
"It is not defamation to make an imputation on the character of another, provided that the
imputation be made in good faith for the protection of the interest of the person making it,
or for any other person, or for the public good."

Reports of Parliamentary, Judicial or other public proceedings

Reports of Parliamentary proceedings published by or under the authority of either House of
Parliament (or State Legislatures) are subject of absolute privilege. If, however, the proceedings are
published without the authority of the House, qualified privilege can be claimed, provided the
publication is made without malice and for public good.25 Apart from that, publication of judicial
and quasi-judicial proceedings and proceedings of public meetings enjoy qualified privilege.
Although the conduct of private individual may be subject of such proceedings, his interest is
considered to be subordinate to the public interest of making known the matters of public
importance, and the general public interest more than counter-balances the inconvenience to such a
private individual.26 Report of a commission which is set up to enquire into a matter of public
interest can also be similarly published if it appears that it is in the public interest that particular
report should be published.27 The privilege does not extend to the report of court proceedings which
are not of public interest or to the proceedings to which the public is not admitted.28

(2) 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. In Clark v. Malyneux29, Brett,
L.J. explained the position as under:

24 Adam v. Ward, (1917) A.C. 309, at 334, per Lord Atkinson; also see Toogood v.
Spyring, (1934) 1 Cr. M. & R. 181, 193.
25 The Parliamentary Proceedings (Protection of Publication) Act, 1977 (India).
26 The King v. J. Wright, (1799) 8 T.R. 293, 298.
27 Perara v. Peiris, (1949) A.C. 1, 21.
28 Lewis v. Levy, (1858) E.B. & E. 537, 538.
29 (1877) 2 Q.B.D. 237, at 246-247.
If the occasion is privileged it is so for some reason, and the defendant is only entitled to the
protection of the privilege, if he used the occasion for that reason. He is not entitled to the
protection if he uses the occasion for some indirect and wrong motive. If he uses the occasion to
gratify his anger or his malice, he uses the occasion not for the reason which makes the occasion
privileged, but for an indirect and wrong motive....Malice does not mean malice, in law.....but actual
malice, that which is popularly called malice. If a man is roved to have stated that which he knew to
be false, no one need enquire further.....so if it be proved that out of anger, or for some other wrong
motive, the defendant has stated as that which he does not know to be true... recklessly, by reason of
his anger or other motive, the jury may infer that he used the occasion, not for the reason which
justifies it, but for gratification for his anger or other indirect motive.

The Patna High Court in Pandey Surinder Sinha v. Bageshwari Prasad,30 distinguished
between the absolute and qualified privilege in the following words :

Absolute Privilege Qualified Privilege

1. It is the occasion which is privileged
and when once the nature of the
occasion is shown, it follows, as a
necessary inference, that every
communication on that occasion is
protected.
2. The defendant gets absolute exemption
from liability,
3. Statements are protected in
circumstances irrespective of
presence of good or bad motives.
4. The defendant has to prove his plea of
privilege, but here the defence is
absolute and refutable by plaintiff.
1. The occasion is not privileged, until the
defendant has shown how that occasion
was made. It is not enough to have an
interest or a duty in making a statement
the necessity of the existence of an
interest of duty in making the statement
complained of, must also be shown.
2. Here The defendant gets a
conditional exemption from liability.
all 3. Even after a case of qualified privilege
the 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 which case defence of
qualified privilege vanishes and the
plaintiff succeeds.
4. The defendant has to prove his plea of
privilege, but here the defence is not
absolute but refutable by the plaintiff.

30 A.I.R. 1961 Pat. 164.

 CONCLUSION

Defamation, which has been the vital issue for the past couple few decades. While the basic core
idea behind the defamation is “injury to reputation of a person.”as we have seen in the above
mentioned assingment that it has been divided/classified into two types viz. Libel and Slander.

Libel deals with the injury that has been done to a person in permanent form, for example, in
writing, painting, printing, picture or statute while slander deals with the injury that has been done
to a person in the transient form, for example, in spoken words or gesture.

As we have seen, Slander is only civil wrong in England and Libel, being the criminal wrong. But
in India, there is no such bar, both, libel and slander is considered criminal offence as per Section
499 of Indian Penal Code.

For defamation to occur, it requires certain essentials that must fulfill. i.e., the statement must be
defamatory; the statement must refer to plaintiff and it must be understood by the right-thinking
persons, as referring to plaintiff; the statement must be published and it must be communicated to
some person other than plaintiff.

There are three defences to defamation as well, under which a person may get relief (depending
upon the mentioned act he has committed). They are as follows :

1. Justification or Truth;

2. Fair Comment;

3. Privilege, which may be either absolute or qualified.

 BIBLIOGRAPHY

 Books Referred

1. Dr. R.K. Bangia’s Law of Tort, Twenty Fifth Edition, Chapter-8, Pg No. 148-178

2. Dr. A.K. Jain’s Law of Torts, Eighth Edition, Chapter-8, Pg No. 216-248

3. Winfield & Jolowicz on Tort, Nineteenth Edition, Chapter-13, Pg No. 1037-1139

4. Ratanlal & Dhirajlal’s The Law of Torts, 28th Edition, Chapter-10, Pg No. 179-221

 Online Sources

1. www.indiankanoon.org

2. www.scconline.com

3. swww.legalbites.in/law-of-defamation-kinds-essentials-and-defences

4.