Defamation

Defamation, calumny, vilification, or traducement is
the communication of a false statement that harms
the reputation of, depending on the law of the
country, an individual, business, product, group
government, religion or nation. In South Korea and
some other countries, communicating a true
statement can also be considered defamation.
Defamation is injury to the reputation of a person
Freedom of speech article 19(1)(a)
one should maintain Balance between one person’s
right to freedom of speech and another’s right to
protect their good name.”
Criminal and Civil Defamation–
Criminal Defamation: Criminal defamation is
the act of offending or defaming a person by
committing a crime or offence. For criminal
defamations, you could always get the liable
person or party prosecuted. It is studied in IPC
as a criminal act. Section 499

Civil Defamation: Civil defamation involves no

criminal offence, but on account of this kind of
defamation, you could sue the person to get a
legal compensation for your defamation. It is
studied under law of torts i.e. as a civil wrong.
In India, defamation is both civil and criminal offence. The remedy for civil
defamation is covered under the Law of Torts. In a civil defamation case, a person
who is defamed can move either High Court or subordinate courts and seek
damages in the form of monetary compensation from the accused. Also, under
sections 499 and 500 of the IPC, a person guilty of criminal defamation can be
sent to jail for two years.
What is the difference between a civil wrong and criminal offence?
Criminal offences and civil offences are generally different in terms of their
punishment. Criminal cases will have jail time as a potential punishment, whereas
civil cases generally only result in monetary damages or orders to do or not do
something. But a criminal case may involve both jail time and monetary
punishments in the form of fines.
The standard of proof is also different in a criminal case than a civil case. Crimes
must generally be proved “beyond a reasonable doubt”, whereas civil cases are
proved by lower standards of proof such as “the preponderance of the evidence”
(which essentially means that it was more likely than not that something occurred
in a certain way).
Libel and Slander
slanderThe common law origins of defamation lie in the torts of "slander"
(harmful statement in a transient form, especially speech) and "libel", each of
which gives a common law right of action Libel
Libel is defined as defamation by written or printed words, pictures, or in any form
other than by spoken words or gestures. The law of libel originated in the 17th
century in England. With the growth of publication came the growth of libel and
development of the tort of libel
Youssoupoff v Metro-Goldwyn-Maher Pictures Ltd (1934):
Ra Ra Rasputin – Not the Lover of this Russian Queen

. Distinction between Libel and Slander–

- -Libel is addressed to the eye while slander to the ear.
- -In English Criminal law, only libel has been recognized as an offence, slander is
no offence. -In Indian law, both are criminal offences under Section 499 and 500
of IPC.
-Under law of torts, slander is actionable and libel is actionable per se.
Following Statements can’t be considered as
defamation
•Any true statement made in public interest;
•Any opinion given by the public in respect of conduct
of a public servant in discharge of his functions, his
character appears;
•Conduct of any person touching any public question;
•Publication of any proceedings of courts of justice
including any trial of court and judgment.
 
1.The statement must be defamatory
It must injure the reputation.
Where a statement is defamatory or not depends upon
how the right thinking persons of the society are likely to
take it. The standard to be applied is that of a right
minded citizen, a man of fair avarage intelligence, and not
that of a special class of persons whose values are not
sharedc or approved by a fair minded members of the
society generally
South Indian Railway Co. v. Ramakrishna,1997
D.P. Choudhary v. Kumari Manjulata
Ram Jethmalani v. Subramaniam Swamy
S.N.M. Abdi v Prafulla Kumar Mohanta, 2002
THE INNUENDO –
Sometimes the statement may be prima facie innocent but
because of some latent or secondary
meaning may be considered to be defamatory.
When the natural and ordinary meaning is not defamatory
but the plaintiff wants to bring an
action of defamation, he must prove the latent or
secondary meaning i.e.,Innuendowhich makes the statement
defamatory.
for e.g., the statement that a lady has given birth to a child is
defamatory
when the lady is unmarried.
Capital and countries bank v Henty & sons, 1882
Intention to defame is not necessary
In the Scottish case of
Morrison v. Ritchie & Co.1902
Cassidy v Daily Mirror Newspapers Ltd, 1929
Newstead v., London Express Newspapers Ltd, 1939
exceptions
Offer of amend
Apoplogy through the same media with in reasonable
time
2.The statement must refer to the plaintiff
At common law this was called colloquium.  What this is
means is that the average reasonable person must
understand that the statement is about the Plaintiff.
Hulton co v Jones, 1910
Newstead v., London Express Newspapers Ltd, 1939.
Defamation of a class of persons
A group or class of people cannot sue for defamation. However, if
a defamatory statement is made about a group or class of people
and the group is small enough or the statement is presented in
such a way that it is understood to refer to an individual or
individuals who are members of the group or class, the
individuals may have a claim.
Whether a defamatory statement identifies a particular person or
persons is determined by the understanding of the recipient of
the statement.
 Knuffer v London Express News Papers ltd, 1944
P . K. Oswal Hosierymill v Tilak Chand, 1969
Dhirendranath Sen v Rajat Kanti Bhadra, 1970

Defamation of the deceased

3.Defamation must be published
Publication means making the defamatory matter
known to some person other than the person defamed
and unless that is done, no civil action for defamation
lies.
 
Mahender Ram v. Harnandan Prasad, 1958
Arumuga Mudaliar v Annamalai Mudaliar, 1966
Injunction against publication of a defamatory
statement
Prameela Ravindran v P.Lakshmikutty Amma, 2001
Communication between wife and husband
M. C. Vergheese v T.J. Ponnem, 1970
Theaker v Richardson, 1962

Repetition of the defamatory matter

Emmens v Pottle, 1885
Slander
words not acceptable without a special damage
Imputation of crime
Vulgar abuse
Parvathi v Mannar, 1884
Imputing unchastity of a women
Defences available under defamation
The following are the defences taken in an
action for defamation:-
1)Justification of truth
2) Fair and bonafide comment
3) Privileged statement-
1) Justification of truth-
If the defendant proves that the defamatory statement is true, no action will
lie for it, even if the statement is published maliciously. It is not necessary
to prove that the statement is literally true, it is sufficient if it is true in
substance. The defence is available even
1)If there are several charges and only few charges are proved, the
defence is still available if the charges not proved do not materially injure
the reputation and
2)if they are substantially accurate but incorrect in in respect of certain
minor particulars
Alexander v. N.E. Rly, 1885
Radheshyam Tiwari v Eknath 1985
The defence of fair comment could not be taken when
there was a statement of fact rather than the expression
of opinion
2) Privileged statement-
There are certain ‘occasions’ when the law recognizes
that the right of free speech overweighs the plaintiff’s
right to reputation. Law makers have decided that one
cannot sue for defamation in certain instances when a
statement is considered privileged. Whether a statement
is privileged or unprivileged is policy decision that rests
on the shoulders of the lawmakers.
Two kinds of privileges recognized by law
Absolute privilege is recognized in
1) Parliamentary proceedings. article 105(2) statements
and publications made by the members and
authorities Any report, paper, votes or proceedings
cannot be questioned in a court of law.
Parliamentary proceedings protection of publications Act
1977. And for State legislature article 194(2)
2)Judicial proceedings
no action for libel or slander lies, whether against
judges, counsels, witnesses, for words written or
spoken in the course of any proceedings before any
court recognized by law, even though the words written
or spoken maliciously, without any justification or
excus, and from personal ill-will
and anger against the person defamed.

The defamatory remark by a witness may be considered to

be relevant if it is an attack on the character of a counsel
who also happens to be involved in criminal
proceedings under section 107 CrPC
Rajinder Kishore v Durga Sahi, 1967
T.G. Nair v Melepurath Sankunni, 1971
107. Security for keeping the peace in other cases.(1) When an
Executive Magistrate receives information that any person is likely
to commit a breach of the peace or disturb the public tranquillity
or to do any wrongful act that may probably occasion a breach of
the peace or disturb the public tranquillity and is of opinion that
there is sufficient ground for proceeding, he may, in the manner
hereinafter provided, require such person to show cause why he
should not be ordered to execute a bond, 1 with or without
sureties,] for keeping the peace for such period, not exceeding one
year, as the Magistrate thinks fit.
(2) Proceedings under this section may be taken before any
Executive Magistrate when either the place where the breach of
the peace or disturbance is apprehended is within his local
jurisdiction or there is within such jurisdiction a person who is
likely to commit a breach of the peace or disturb the public
tranquillity or to do any wrongful act as aforesaid beyond such
jurisdiction.
3)State communications
Chatterton v secy. Of state for India in council, 1895
4)Military and Naval proceedings
Qualified privilege
Statements should be made in discharge of a duty or a
protection of an interest
R.K.Karanjia Thackersey, 1970

Reports of parliamentary, judicial or other public proceedings

The parliamentary proceedings protection of publications Act,
1977
Cook v Alexander, 1973
Publication of statement without malice
Clark v Malyneux
1877
Horrocks v Lawe, 1964
3) Fair and bonafide comment-
A fair and bonafide comment on a matter of public interest is
a defence in an action for defamation. The essentials of a
fair comment are:
(i) That it is comment or criticism and not a statement of fact,
(ii) That the comment is on a matter of public interest.
Administration of govt departments, public companies
courts, conduct of public men like ministers or officers
of state, public institutions and local authorities, public
meetings, pictures, theatres, public entertainments, text
books, novels.
(iii) That the comment is fair and honest.
Silkin v Beaverbook Newspapers, 1956
Gregory v Duke of Brunswick,
No-one should be convicted for criminal defamation unless the party
claiming to be defamed proves, beyond a reasonable doubt, the
presence of all the elements of the offence, as set out below;
The offence of criminal defamation shall not be made out unless it has
been proven that the impugned statements are false, that they were
made with actual knowledge of falsity, or recklessness as to whether or
not they were false, and that they were made with a specific intent to
cause harm to the party claiming to be defamed;
Public authorities, including police and public prosecutors, should take
no part in the initiation or prosecution of criminal defamation cases,
regardless of the status of the party claiming to have been defamed,
even if he or she is a senior public official;
Prison sentences, suspended prison sentences, suspension of the right
to express oneself through any particular form of media, or to practise
journalism or any other profession, excessive fines and other harsh
criminal penalties should never be available as a sanction for breach of
defamation laws, no matter how egregious or blatant the defamatory
statement. (Reference: Article19.org)
(Qn for UPSC Mains) Criminal defamation is considered as a restriction
on the right to freedom of speech and expression. Critically examine if
this should be made a civil offence? What are the implications of this
debate?