Types of Defamation

Sunita Adhikari
21 ‘A’
A man’s reputation is his property, and if, possible,
more valuable than other property : - Dixon V. holden
Defamation ???
• Defamation is a generic legal term that refers to the unmerited
undermining of a person’s reputation.
• Defamation, in law, attacking another’s reputation by a false
publication (communication to a third party) tending to bring the
person into disrepute. The concept is an elusive one and is limited in
its varieties only by human inventiveness.
Statement of fact V. statement of Opinion
• To qualify as defamatory a statement must be factual , not a opinion .

• Eg. Saying, “I think …….. is annoying” is an opinion and is something

that can’t ever really be empirically proven true or false. Saying “I
think ……stole a car” is still an opinion but implies she committed a
crime. If the accusation is untrue, then it will defame her.
Different terms
• A defamatory statement is a false statement of fact that causes injury or damage to
someone
• Defamation Per Se refers to defamatory statements that are so vicious and the harm is so
obvious, that malice is assumed, and proof of intent is not required for general damages eg.
falsely accusing someone of committing a crime involving immorality;
claiming someone has a repugnant, contagious disease;
or statements claiming that the individual is unfit or unable to perform his employment
duties.
• Most states specifically recognize these categories of false statements as defamatory per se.  
• Defamation Per Quod is the opposite of per se, in that it is not obvious and extrinsic proof is
required to demonstrate that the communication was damaging.
Elements of defamation
• The law of defamation varies from state to state, but there are some generally
accepted. Victim Need to Prove following elements to Establish Defamation?
• The word must be false and defamatory
• The said words must refer to the plaintiff
• The words must be published.
• Damage to the plaintiff reputation.

• If the matter of public concern

• Falsity
• Fault
1. Words or the statement must be false
and defamatory
• A statement or the word must be defamatory statement.
Innuendo – sometimes the statement may prima facie be innocent but
because of some latent or secondary meaning it may be considered to
be defamatory .
No civil action lies for publishing a true statement, because the theory
is that a plaintiff cannot claim to have a better reputation than what
he deserves.
 2. Words must refer to the plaintiff
• Defamation consists in the publication of a statement (concerning
plaintiff) to a third person, exposing the plaintiff to hatred, ridicule or
contempt or which causes him to be shunned or avoided or which has
a tendency to injure him in his office, profession or calling.
• For example: to say that a woman was raped or that a person was
impotent is defamatory.
Exception:
• Defamation of the deceased (relative or family – reputation )

• Cassidy Vs. Daily Mirror Newspapers ltd. (1929)

3. Harm caused to the plaintiff
• What matters is the harm caused to the plaintiff and not the intention of the
defendant. This has been mentioned in the case of Thir Prasad Pokhrel VS Harihar
Birahi.
• Further it has also been mentioned in the case of Laxmi Khadka (student of Nepal
law campus) VS Nagendra Sharma and T.B. Dahal which consisted of the
republishing of the cartoon which was the subject matter in the case of Thir Prasad
Pokhrel.
• The question of intention is immaterial. What matters is that whether the right-
thinking members of the society or the community would understand the
statement in a defamatory sense.
• Winfield – Defamation is the publication of a statement which tends to lower a
person in the estimation of right of thinking member of the society .
Example:
• Hulton and Co. V Jones
The court held that it was not necessary to show that the defamation was
intended to refer to the claimant, only that people who knew him might easily
believe that the article was true.
a person named “Artemus Jones” and accused that person of cheating on his
wife with another woman. Stating Artemus Jones with a woman not his wife
who must be you know – the other thing.’  Jones brought suit for defamation
against Hulton.
Court held The court held that it was not necessary to show that the
defamation was intended to refer to the claimant, only that people who knew
him might easily believe that the article was true .
4. The words must be published.
• The statement must be published by the defendant to a third person.
Types of defamation
1. Libel or Slander
Libel
• Libel is a types of defamation.
• Libel is an untrue defamatory statement that is made in writing.
• Libel is permanent form E.g. Writing, printing , picture etc
• Libel addressed to eye
• Libel is actionable per se ( actionable without the proof of damages :
postures , publication etc )
• Government of Nepal on behalf of Bipendra Raj Batashe V. Arjun Giri
News published in Tandav News stating Bipendra Raj Batashe as “Thag Badmas Bipendraraj Batas”.
Filed the case in Kathmandu District Court under the Electronic Transaction Act 2063.
The court quashed the case because the case was to be filed under the provisions of Press Council
Act, 2048 and Press and Publication Act, 2048 since the online news was registered under the Press
Council Act.
• National penal code 2017,
Chapter-2 Offence Relating to Defamation
Section 306:- Prohibition of committing libel
307:- Punishment for libel
• Electronic transaction act 2063
Section 47. Publication of illegal materials in electronic form:
Slander
• Slander is also a type of defamation.
• slander is an untrue defamatory statement that is spoken orally.
slander is temporary form. Eg. Spoken, words or gestures
• slender addresses to ear exception: (finger languages of deaf and
dumb)
• slander is non actionable per se ( proof is essential )
• There are two types of slander: slander and slander per se. 
• 305. Prohibition of committing slander:
Defense of Defamation

1. Truth
2. Publication and justification
3. Absolute and Qualified privilege
4. Fair comment
Truth
Truth is an absolute defense to defamation. Remember that defamation
is a false statement of fact. So, if the statement was accurate, then by
definition it wasn’t defamatory.
Radheyshyam Tewari Vs. Eknath (1985)
(newspaper writer – about defendant : he is corrupted , illegal activity ,
invasion to tax etc
Defendant didn’t response and proved with evidence these defamation
was proved.
Court held : defendant didn’t tried to prove thus its intentional
defamation
Publication and justification
• Justification, which really should be called a defense of “truth”.
• The burden of proof of the defense of justification lies on the
defendant and it would in no case shift upon the plaintiff.
• But, what needs to be taken into consideration is the fact that in cases
of criminal nature, mere truth only wont amount to defense. It must
be further proved that the publication was for the public good.
• Salmond – Defamation is the publication of a false and defamatory
statements concerning another person without lawful justification.
Absolute and Qualified Privilege
• Absolute privilege means that the person making the statement has
the absolute right to make that statement at that time, even if it is
defamatory. In other words, the person making the defamatory
statement is immune from a defamation lawsuit. Eg.
• during judicial proceedings
• by high government officials
• by legislators during legislative debates
• during political broadcasts or speeches, and
• in between spouses.
Qualified privilege
• Qualified privilege, meaning that the person making the allegedly defamatory statement
may have had some right to make that statement.
statements made in governmental reports of official proceedings
statements made by lower government officials such members of town or local boards
citizen testimony during legislative proceedings
statements made in self-defense or to warn others about a harm or danger
certain types of statements made by a former employer to a potential employer regarding
the employee, and
published book or film reviews that constitute fair criticism.
• If a qualified privilege applies to a statement, it means that the person suing for defamation
must prove that the person who made the defamatory statement acted intentionally,
recklessly, or with malice, hatred, spite, ill will or resentment, depending on your state’s law.
Fair comment
• “Fair” i.e. without malice and must be public
• Fair comment is one of the defenses to libel. Sir Frederick pollock-
Nothing is a libel which is fair comment on a subject open to public
interest.
• “comment” ,means an expression of opinion on certain facts rather
than making a statement of fact .
The following ingredients must be satisfied for
successfully raising the defense of fair comment:
• The comment must be on a matter of public interest. Matters of
government and politics are of public interest: so is anything which
the general public is invited to purchase, to listen to or to attend.
• The comment must be based on facts
• The comment must be fair, i.e. it must be made in bona fide belief
that it is a true assessment and not made maliciously.
Reference case
• Film V ( Amazon ) bomboy high cout
• Newyork times company Vs. Mr. Sulliven
• Sumargi Vs. Kailash Sirohiya
Thank you