Assignment Topic -

Defamation
Session – 2020-2021

Submitted to Submitted by
Eman Hayaat Siddiqui Mahak Jain
Mam

Content
1) Introduction

 what is defamation
 Definition of defamation
 Wrongful act or Defamation
 Insult or Defamation

2) Kinds of defamation

 Libel
 Slander

3) Elements of defamation

 The statement must be defamatory

 The statement must refer to the plaintiff
 The statement must be published

4) Defences for defamation

 Justification of truth
 Fair comment
 Privileged statement

5) Conclusion
 1. Introduction –
In introduction at first we are talking about what is defamation so the ans. Is, Defamation is a
injury to the reputation of a person. Defamation may be defined as a communication to some
person , other than the person defamed , of matter which tends to lower the plaintiff in the
estimation of right thinking persons or to deter them from associating or dealing with him.
Defamation is wrong to done by a person to another's reputation by words , written or spoken ,
sign or other visible representation.

If a person injuries 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.

It is an statement that injures someone's reputation. Defamation is the act of saying false things
in order to make people have a bad opinion of someone. In simple words , any international false
communication , either written or spoken , that harms a persons reputation decreases the respect ,
regard or confidence in which a person is held ; or induces disparaging , hostile or disagreeable
opinions or feelings against a person is known as defamation.

 Definition of defamation

According to Winfeild , ' Defamation is the publication of a statement which tends to lower a
person in the estimation of right thinking members of right thinking members of the society ,
generally or , which tends to make them shun or avoid that person.'1

 Wrongful act and Defamation

Defamation must be distinguished from wrongful acts which injure reputation. If a person is
assaulted in a public place or if he is arrested unlawfully he may feel disgraced but these acts can
not come under the category of defamation as in these cases the reputation has been injured by
acts and defamation deals with injury of reputation by words.

 Insult and Defamation

There is another kind of injury done to another by means of words or representation called insult.
Defamation differs from insult also. The former is a wrong done to regard or esteem in which
one is held by others while the latter is an injury only to ones dignity or self – respected.
Therefore defamation requires publication to the third person, whereas insult may consist in
abusing a person only in his presence.

1
WINIFIELD AND DOLWIEZ , 9TH EDN.
For exam. – A gets a berth reserved in a second class compartment. B enters the compartment
and takes his seat on the reserved birth. A compels B to leave the seat , here B being a
respectable man and a man of position feel insulted. But this does not injure his reputation.

2. KINDS OF DEFAMATION -

English Law -: Mainly because of historical reasons , English law divides actions for
defamation into two types –

 Libel
 Slander.

LIBEL – Libel is representation made in some permanent and visible form , such as writing ,
printing , pictures or effigies or statute.

In a cinema film , not only the photographic part of it is considered to be liable but also the
speech which synchronizes with it is also a libel.

In the case , Youssoupoff vs. Metro Goldwyn Mayor Pictures Ltd. [1934]2

Facts : Metro-Goldwyn-Mayer Limited produced a film in which a man named Rasputin

brought about the destruction of Russia but was subsequently murdered by prince
Chegodieff ,and others. In the film, Princess Natasha had sexual relations with Prince Chegodieff
, one the murderers of Rasputin , but yououpoff , the man who assisted in the murder of
Rasputin. The film was a combination of both fiction real life facts. The imputation is that
Princess Irina Yousoupoff was raped by Rasputin.

Held : The house of Lord Slesser L.J. observed that ' there can be no dought that , so far as the
photo graphic part of the exhibition is concerned , that is a permanent matter to be seen by the
eye , and is the proper subject of an action for libel , if defamatory. I regard the speech which is
synchronized with the photographic reproduction and forms part of the surroundings explaining
that which is to be seen. '

SLANDER - slander is the publication of a defamatory statement in a transient form.

Examples of it may be spoken by words or gestures. In slander, the statement is made by some
spoken words or some transitory form , whether visible or audible such as gestures , hissing or
such other things. Any medium through which thoughts and ideas can be expressed or conveyed
may constitute publication of a defamation.

In action for slander, the plaintiff, has to prove some special damages. A mere injury caused to a
man's reputation does not entitle him to initiate an action for defamation. The defamatory

2
1934 50 TLR 581 (CA )
statement must have caused a real damage to the plaintiff which may either be pecuniary or
which can be determined in money value.

For exam. – A says to B's master that B had left the house of his land lord without paying rent
of the house and C relying on this statement dismisses B from his employment then A cannot file
an action against B because such damage or injury is remote.

When slander is actionable per se

IN the following circumstances slander is actionable per se i.e. without prove of any special
damages –

 Imputation of Crime
 Imputation of some decease
 Imputation regarding business or office in competency of plaintiff
 Unchastity of a Women

Distinction between libel and slander

Libel Slander
1. It is addressable to the eyes. It is addressable to the ears.
2. Defamatory statement is made by Is made by spoken words & transitory form
permanent & Visible form
3. Actionable tort as well as a criminal Actionable only for civil injury not for
offence criminal offence except in certain cases.
4. It is actionable per se i.e. , without proof of It is actionable only on proof of actual
actual damages. damage.

3. Essential elements of defamation

Inaction for defamation the plaintiff has to prove the following essentials –

 The word must be defamatory

 The word / statement must refer to the plaintiff
 The words / statement must be published.

 The statement / word must be defamatory

The defamatory words or statement are those which cause an injury to reputation. Reputation is
injured when one is lowered in the estimation of member of the society generally or when one is
avoided by others or others shun his company. Such a statement tends to diminish the good
opinion that others hold about the person, and it has a tendency to make others to look others
hold about the person, and it has a tendency to make others to look at him with a feeling of
hatred , contempt , ridicule , fear or dislike or to injure him in his profession or trade. Sometime
an abuse may also become a defamatory. The test to be applied to words of abuse is exactly the
same as for other allegedly defamatory statements. Thus it has been held that it maybe
defamatory to call a man hypocrite , a villain a black-sheep and a habitual drunkard.

In short , An imputation which exposes the aggrevieved person to disgrace , humilitation ,

ridicule or contempt , is defamatory.

According to Lord Halsbury ,

''A defamatory statement is a statement which , if published

concerning a person , is calucated to lower him in the estimation of right thinking men or causes
him to be shunned or to expose him to hatred or contempt or ridicule or injurious to him in his
office , profession , business calling or trade , ''

Whether a statement is defamatory or not depends on how the right thinking men of the society
are going to take it. If the statement is injurious to the reputation of the plaintiff from the stand
point of the right thinking of men – men of fair average intelligence – it is no defence to say that
such statement was not intended to be defamatory.

A statement may nonetheless be defamatory, although the maker states it not as a fact but as a
mere opinion.3 Whether such statement is defamatory, one must take into account the
circumstances, time and place. Thus in slazenders Ltd. Vs. Gibbs,4 to state during the war with
Germany that the plaintiffs were a German firm and likely to be closed down , was defamatory.

Case Laws –
I. Capital & Country Bank vs. Hentry & Sons
II. Mst. Ramdhara vs. Mst. Phulwatibai
III. Byrne vs. Deaned [ 1937 ]
IV. Sim vs, Startch [1936]
V. Praddock vs. Benins [ 1938]

Innuendo -:
Sometimes a statement might appear to be quite innocent prima facie. However,
because of some latent or secondary meaning it may be considered to be defamatory. When the
ordinary meaning of a statement is not defamatory but the latent or secondary meaning to be so,
it is called innuendo and as such the plaintiff must prove the latent or secondary meaning which
constitutes the innuendo.
3
Praddock v. bennis , 1938 1 ALL ER 480 (CA)
4
[1916] 33 TLR 35
Even a statement which sounds commendator , prime facie , may be defamatory.

Eg. – A statement made about a lady having given birth to a child may be defamatory if she is
unmarried.

Case law

Capital & Country Bank vs. Henty & Sons.5

Facts -: There was some dispute between the defendant and one of the branch managers of the
plaintiff bank. The defendants issued a circular to the effect that they would not accept cheques
drawn upon the said bank. The circular became known to various other persons and there was a
run on the bank. The plaintiff bank said that the statement meant in essence that the bank had
become insolvent and hence, as such was defamatory.

Held -: The statement was not defamatory because it did not convey the supposed imputation.
Reasonable people could not have taken it in the sense of innuendo.

Hough vs. London Express Newspaper Ltd.6

Facts -: In this case, the defendant published an account and photograph of the ''curly-headed
wife'' of a named boxer. The plaintiff, another woman, in fact the boxer's wife, produced
witnessed who gave evidence that they had read statement to mean that the plaintiff was not the
wife of the boxer ; but the so mislead the produced as a witness.

Held -: It was held that it was unnecessary to prove more than that the there are people who
know the special facts and so might understand the words in a defamatory sense , and that there
was no need for evidence that some person , did so understand them , the plaintiff therefore
succeeded.

Lakshminarian vs. Sambhu Nath [1931]7

Facts : The defendants published a notice which read as follows – under the instructions from
M/s. Jainly Brothers , the under-signed will sell by public auction the following goods near the
shop of M/s. Umrao on account and risk of M/s. Lal Shankar Lal of Kanpur who in spite of
repeated demands and notice , have failed to pay for and take delivery of the goods they had
purchased. Lakshminarian , the plaintiff , alleged that the notice was libelous upon them. It was
contended that the words 'have failed to pay for and take delivery of the goods they had
purchased' , imputed insolvency or that the plaintiff were bad pairs and so were libelous.

5
[1882] 7 AC 741 (I)
6
[1940] 3 ALL ER 31 CA
7
AIR 1931 ALLD 126; Travellion & Clark vs. A. Minch , 1934 Alld 203 upheld the view taken in Lakshminarian's case
Held : It was held that it did not amount to libel the court said that it is true that the words are
capable of bearing that the meaning but we must take all circumstances into account.

 The word 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. In
other words, defamatory statement was such that the defamed person would reasonably infer that
the statement was directed against him. It is a necessary in every action for defamation to prove
that the defamatory statement referred to the plaintiff. The reference may be express or implied.
The person referred to in the defamatory statement can be living or dead, however , defamation
suit on behalf a dead person can be filed only if the person filling the suit has an interest. It is
also not necessary that the plaintiff be mentioned by name in the statement, if he can still be
identified.

Case law

Newstead vs. London Express Ltd. [ 1939]8

Facts -: In this case, All in the newspaper a news item appeared thus : ' Harold Newstead , a
Camberwell Bar man, has been convicted for bigamy' . The news was true to Harold Newstead ,
Camberwell Barman. Another Harhold Newstead , Camberwell barber and his friend thought
that it referred to him and brought a suit for defamation.

Held :- In this case , the defendant were held liable. The court of Appeal noted that it is
established law that liability for libel does not depand on the intention of the defamer; but on the
fact of the defamation. Accordingly, in a case such as this it may be right to direct the jury that a
reasonable man, and, in particular, a newspaper publisher, must be assume that the words
published will be read by a reasonable man with reasonable care.

The court held that the evidence justified a finding by the jury that a reasonable man may have
understood the words complained of to refer to the plaintiff, The fact that the words were true of
another person was not a valid defence against a claim of libel.

Hulton & co. vs. Jones [1910 ]9

In this case a newspaper published an article in which some Artemus Jones was described as a
church warden. He was accused of living with a mistress in France. The writer did not know that
there was any person as Artemus Jones. He was invented an imaginary name for his article . But
unfortunately for him there existed one person bearing the same name. He was an English

8
[1939] 1 KB 377
9
1910 AC 20
Barrister. And those who knew him supposed that the articles referred to him. It was held that the
newspaper was libel.

Defamation of a class of a person –

Where the defamatory words refer to a group of individuals or a class of persons, no member of
that group or class can sue unless he can prove that the words could reasonably be considered to
be referring to him.

 Statement must be published

Publication of defamatory matter is essential. If there is no publication there is no injury to
reputation and no action will arise. The term publication, in general , means making a thing
publicly known. No defamation will be constituted unless defamatory statement or material is
published. Publication does not mean publication in press or by leaflets. If it is brought to the
notice or knowledge of persons or even to a single person other than the defamed person,
amounts to publications. If a defamatory matte enclosed in an envelop is not publication.
Dictating a defamatory letter to stenographer or typist is publication, but not to the private
secretary. If a third person opens the letter not meant for him wrongly , for instance father reads
the latter meant for his son or servant reads letter meant for his master , there is no publication.
But if defamatory letter is written on a post card or telegram , it will amount to communication
of defamation , irrespective of the fact whether someone has read it or not. If a letter is written in
a language which the defamer does not understand and, therefore has to be read by someone else,
it amounts to communication.

4. Defences of Defamation –
The following are the defences generally taken in an action of defamation:

 Justification of truth
 Fair comment
 Privileged statement

a. Justification of Truth - In an action for defamation truth of the defamatory

statement is a complete defence . But under the criminal law truth of the statement is no
defence. If the defendant proves that the defamatory statement is true, no action will lie
for it, even if he had published the statement maliciously. The reason for the defence is
that ' the law will not permit a man to recover damages in respect of any injury and
character which he either does not or ought not to possess'.

If the statement is false, it is no justification that the defendant honestly and on reasonable
grounds believed it to be true.
In case Radheshyam Tiwari vs. Eknath [1985] ,10

Facts - the defendant, who was editor, printer and publisher of a newspaper published a series of
articles against the plaintiff , a block development officer , alleging that the plaintiff had issued
false certificates , accepted bribe and adopted illegal means in various matters.

Held - In an action for defamation, the court held that the publication was made with malicious
intention and there was no prove about the truth of the allegations and therefore the defendant
was liable.

b. Fair Comment - A fair comment on a matter of public interest is a good defence in an

action for defamation. Every person is entitled to express his opinion on matters of public
interest. A statement is privileged if it is a fair comment on a matter which of public
interest , or is submitted to public criticism comments and criticism must be distinguished
from mere statements of facts.

It is a generally a defence available to the authors, editors , critics etc. It is critical appreciation of
existing facts and not invention of new facts. Further, the comment must be 'fair ' i.e. without
malice. Finally this comment must be in public interest. Administration of Government
departments , public companies , public institutions and local authorities , public meetings and
local authorities , public meetings , pictures , theatres , public entertainment , text books , novels
are considered to be matters of public interest.

Comment -: Comment means an expression of opinion on certain facts rather than making a
statement of fact. A fair comment is a defence by itself whereas if it is a statement of a fact that
can be excused only if justification or privilege is proved regarding that.

For ex. – A says of a book published by Z – 'Z's book is foolish: Z must be a weak man.' It is a
comment based on Z's book and A will be protected if he has said that in good faith. But if A
says – ' L am not surprised that z's book is foolish, for he is a weak man. 'It is not a comment but
a statement of fact , and cannot be called a fair comment.

The burden of proof proving that the statement is true lies on the defendant. It is the duty of
defendant to prove that the statement is true and not that the plaintiff to prove that it is false.11

In Mcquire vs. Western Morning News Co. [1903]12

The comment in question was '' A three act musical absurdity, written and composed by T.C.
Mcquire is composed of nothing but nonsence of a not very humorous character , whilst the
music is far from attractive.'' Held that the words may be fairly called criticism, However,
criticism could not be used as a clok for mere invective ; an art critic's opinion of a prominent
10
AIR 1985 BOM 285
11
Mitha Rustanji vs. Nasserwanji Engineer , AIR 1941 BOM 278
12
[1903] 2 KB 100
dancer's performance that the world would be happier place if her feet had ambitious other
dancing amounts to sarcasm.

The comment could not be fair when it is based upon untrue facts. In Tusar Kanti Ghosh vs.
Bhowmic [1953]13 , the Amrit Bazar Patrika published a new item which contained statements
like ' day light robbery ' which factually incorrect. As they were untrue statement of fact , the
defence of fair comment was defeated.

The essential of fair comment are –

 That is a comment or criticism and not a statement of fact

 That the comment is on a matter of public interest
 That the comment is fair and honest

c. Privilege
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 as occasion is not actionable. This is also one of the fundamental
principles that there are circumstances when freedom of speech has privilege and even if it is
defamatory it is protected. The individual right to reputation is subordinate to the privilege of
freedom of speech.

The privilege is of two kinds –

 Absolute privilege
 Qualified privilege

Absolute Privilege –
It is an absolute defence as under it no action lies for the defamatory statement even though the
statement is false or has been made maliciously. The following are the absolute privileges:

 Parliamentary proceedings
 Judicial proceedings
 State communication
 Judicial Proceedings –
In judicial proceedings, there can be no action against judges , counsels , witnesses , or parties
for words in course of any proceedings before any court , even though the words were written or

13
[1953] 57 CWN 378
spoken maliciously , without any justification or excuse. However, remark by a witness which is
wholly irrelevant to the matter of enquiry is not privileged.

In case Junnila Lal vs. Narsing Das [1918]14 , It was held that an action for defamation cannot
be maintained against a judge for the words used by him while trying a case in court even though
are alleged to be false , malicious and without reasonable cause.

 Parliamentary Proceedings –
In this , statement made by members of either house of parliament in course of parliamentary
proceedings are absolute privileged. The privilege is strictly confined o the floors of the houses
of parliament and does not extend outside not even to the lobbies, the smoking room or the
visitor's gallery. All the reports, papers, votes and proceedings published by or under the
authority of either house are also absolutely privileged.

In case , Chatterton vs. Secretary of state for India [1895]15 It was held that letters from the
secretary of state of India to his parliamentary under secretary providing the materials for the
answer to a parliamentary question was absolutely privilege. It is impossible to say how high in
the hierarchy of civil servants a defendant must be before he enjoys this privilege.

Qualified Privilege –
In certain circumstances, it is thought desirable that reflection on the reputation of others
although untrue, should not give rise to tortious liability, provided that they were not published
with malice. It is different from the defence of absolute privilege in two respect -

First, in the case it is necessary that the statement must have been without malice.
Second, there must be an occasion for making the statement.

Generally, such a privilege is available either when the statement is made in discharge of duty or
protection of an interest or the publication is in the form of report of parliamentary, judicial or
other public proceedings. A privileged occasion is an occasion where the person who makes a
communication has an interest or a duty and the person to whom it is made has a corresponding
interest or a duty to receive it. Three statement must be co-exist to make it a case of qualified
privilege:

 There must be a fit occasion to make the statement.

 The statement must not be uncalled for, but must have reference to the occasion.
 It must be made with a proper motive and not maliciously.

14
(1918) ILR 40 ALL 341
15
[1895] 2 QB 189 CA
 5. Conclusion
Defamation is a tort resulting from an injury to ones reputation. It is the act of harming the
reputation of another by making a false statement to third person. Defamation is an invasion of
the interest in reputation. The law of defamation is supposed to protect people's reputation from
unfair attack. In practice its main effects hinder free speech and protect powerful people from
scrutiny. Defamation law allows people to sue those who say or publish false and malicious
comments.

The law of defamation in India is a relic of the British Raj. Firstly, it imposes unreasonable
restriction on free speech and expression and has emerged as a means to censor journalists,
writers, social activists etc. Large corporations use SLAAPS to intimidate and censor the critics.
SLAAPS are used to silence and harass critics by forcing them to spend money to defend those
baseless suits. Defamation may be civil charge or a criminal charge under sec. 499 and 500 of
IPC.

Section 499 of IPC – 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 to be defame that person.

Section 500 of IPC – Whoever defames another shall be punished with simple imprisonment for
a term which may extend to two years or with fine or both.

The defamation law serves the purpose of protecting people from having their reputation injured
resulting from false statements made against them. 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. The apex court has stated in various cases that the ambit of freedom of speech and
expression is ' sacrosanct ' but is not ' absolute '. It also said that the right to life under Art. 21
includes the right to reputation of a person and it can not be violated at the cost of the freedom of
speech of another.

That's All……….Thank you

Bibliography
1. Law of torts with consumer protection by Dr. J. N. Pandey
2. Law of Torts by R. K. Bangia 22th edition
3. https://www.legalservicesindia.com