Law of Torts and Consumer Protection Act

Defamation
Introduction

 Every man has a right to have his reputation preserved inviolate.

 This right of reputation is acknowledged as an inherent personal

right of every person as part of the right of personal security.

 It is a jus in rem, a right, a right good against the world.

 In Dixon v. Holden, (1869) LR 7 Eq 488, it was held that a man’s

reputation is his property, more valuable than other property.
 Dr. Winfield defines defamation as “the publication of a 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”. In other words, a defamatory statement is a
statement calculated to expose a person to hatred, contempt or
ridicule, or to injure him in his trade, business, profession, calling or
office, or to cause him to be shunned or avoided in society.
Types of Defamation

 The word “defamation” is the generic name for the wrong; ‘libel’ and
‘slander’ are particular forms of it.

 A libel is a publication of a false and defamatory statement tending

to injure the reputation of another person without lawful justification
or excuse. The statement must be expressed in some permanent
form, e.g. writing, typing, printing, pictures, statue, waxwork effigy,
cinema, film, model etc.

 A slander is a false and defamatory statement by spoken words or

gestures tending to injure the reputation of another. It is always
expressed in some temporary form, e.g. a nod, wink, shake of head,
smile, hissing, sky writing.
Distinction between Libel and Slander

 1. A libel is defamation in some permanent form whereas a slander

is defamation in a transient form.

 2. At common law, a libel is a criminal offence as well as a wrong,

but a slander is a civil wrong only. Under the Indian Law, as per
section 499 of the Indian Penal Code both libel and slander are
criminal offences.

 “Section 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”
 3. A libel is actionable per se i.e. without proof of damage. At
common law, a slander is actionable only when special damage can
be proved to have been its natural consequence, or when it conveys
certain imputations. However there are following exceptions under
common law when slander is actionable without proof of special
damage. These exceptions are when the slander contains
imputation of:

 A. a criminal offence punishable with imprisonment;

 B. a contagious or infectious disease likely to prevent other persons

from associating with the plaintiff;

 C. Unchastity or adultery to any woman;

 D. Unfitness, dishonesty, or incompetence in any office, profession

calling, trade or business held or carried on by the plaintiff at the
time when the slander was published.
Essentials of Defamation

 To make one liable for the tort of defamation, one must prove the
following essentials:

 a. the statement must be false and defamatory;

 b. the statement must refer to the plaintiff; and

 c. the statement must be published.

 d. It was not reasonably and legally justified.

a. the statement must be false and defamatory

 The statement may be divided into two categories;

 1. The statements which are defamatory in their natural and ordinary

meaning; and

 2. The statements which are innocent in their primary sense but may
communicate defamatory meaning, if it is likely to be understood and
in fact, understood in the light of certain existing facts known to the
person to whom the statement has been made i.e. Innuendo.
 1. A statement is defamatory, if in its natural and ordinary sense it
tends:

 i. To expose the plaintiff to hatred, contempt, ridicule, or obloquy;

 ii. To tend to injure him in his profession or trade;

 iii. To cause him to be shunned or avoided by his neighbours.

 Pitumber Dass v. Dwarka Prashad, (1870) 2 NWP 435

 Making and publicly exhibiting an effigy of a person, calling it by the

person’s name, and beating it with shoes, are acts amounting to
defamation.

 Shoobhagee Koeri v. Bokhori Ram, (1906) 4 CLJ 393

 A wrote letters to the husband of X, in which he alleged X was a

witch and had by her sorcery caused the death of some relations of
A. He also made similar statements to their castemen. It was held
that A was liable.
 Morrison v. Retichie and Co. (1902) 4 F. 645

 A proprietor of a newspaper published erroneously, which he

believed to be true, that the plaintiff had given birth to twin although
she was married only a month ago. He was held liable for
defamation.

 Ramakant v. Devilal, 1969 MPLJ 805

 A statement alleging that the plaintiff got elected as President of the

District Congress Committee by paying money to the voters was
held to be defamatory.
 Noor Mohd. V. Mohd. Jiauddin, AIR 1992 MP 244

 Bridegroom and his father refused to take the bride after marriage
with them before a number of guests. The act was considered to be
defamatory and both were held liable.

 Gourantla Venkateshwarlv v. B. Demudu, AIR 2003 AP 252

 Allegations that the plaintiff managing director of a co-operative

Society indulged in malpractices and was having illicit intimacy with
several ladies were held to be per se defamatory.
 2. Innuendo

 Capital and Counties Bank v. Henty, (1882) 7 App. Case 741

 The defendants, H and Sons, having had a dispute with one of the
branch managers of the plaintiff bank, send a circular notice to their
own customers-“H and Sons hereby give notice that they will not
receive in payment cheques drawn on any of the branches of C and
C Bank.” The circular was followed by a run on the bank and it
suffered loss. In an action brought by the bank alleging that notice
was libellous, inasmuch as it amounted to an imputation of
insolvency, held that the natural meaning was not libellous, and the
inference suggested by the innuendo to the effect that the plaintiffs
were insolvent was not the inference which reasonable persons
would draw. Hence, the circular was not libellous.
b. the statement must refer to the plaintiff

 In an action for defamation the plaintiff must show that the

defamatory statement refers to him. It is not necessary for this
purpose that the plaintiff should have been described by his own
name.

 Morgan v. Odham’s Press Ltd. (1971) 1 WLR 1239

 In a newspaper it was published that a girl had been kidnapped by a

dog-doping gang and kept in a flat at Kilburn during a specified
week. The Plaintiff produced witnesses who deposed that on
reading the article, they understood that he was in someway
connected with the gang. The jury awarded damages to the plaintiff.
 The Court of Appeal dismissed the claim on the ground that the
article contained no key or pointer which referred to the plaintiff.

 The House of Lords reversed the Court of Appeal and held that it is
not essential that the plaintiff should be named or there should be
some key or pointer referring to him and that the jury could
reasonably hold that readers of the articles would ignore the
discrepancies of place and time and think of the plaintiff while
reading the article.
 Newstead v. London Express, (1940) 1 KB 377

 The statement was published in a newspaper that “Harold

Newstead, thirty year old Camberwell man” had been found guilty of
bigamy. This statement was true of a barman of that name of the
Camberwell. The plaintiff bearing the same name and aged about
thirty, who carried on hair dressing business at Camberwell and
about whom the statement was untrue succeeded in recovering
damages in an action for defamation.
c. the statement must be published

 Communicating defamatory matter to some person other than the

person of whom it is written is publication in its legal sense. In other
words, publication means making known the matter to some person
other than the plaintiff.

 B v. Adamas, (1888) 22 QBD 66

 The defendant wrote a letter to virtuous and modest woman

soliciting an immoral intercourse with her. He enclosed it in an
envelope properly fastened and addressed to her. The defendant
was held not liable for defamation, because there had been no
publication.
 Arumuga Mudaliar v. Annamali Mudaliar, (1966) 2 MLJ 223

 Two persons jointly wrote a letter containing defamatory matter

about the plaintiff and sent the same to the plaintiff by registered
post. The Court held that there was no publication by one tort-
feasors to the other as there could be no publication between joint
tort-feasors. It would not amount to publication even in that case
where the registered letter addressed to the plaintiff goes in the hand
of a third person, who reads it out in an unauthorised manner.
 Boxsius v. Goblet Freres, (1894) 1 QB 842

 A solicitor, acting on behalf of his client, wrote and sent to the

plaintiff a letter containing defamatory statements regarding her. The
letter was dictated to a clerk in the office, and was copied into the
letter-book by another clerk. In an action against the solicitor for libel
it was held that the publication to his clerks was necessary and
usual in the discharge of his duty to his client, and was made in the
interest of the client.
 Mahendar Ram v. Harnandan Prasad, AIR 1958 Pat 445

 The defendant sent a defamatory letter in Urdu to the plaintiff. The

plaintiff did not know Urdu and therefore asked some other person to
read it and tell him the contents. The plaintiff brought an action for
defamation against the defendant is not liable in this case so long it
is not proved that the defendant knew it that the plaintiff was unable
to read the letter in Urdu and therefore, he will have to ask someone
else to read it for him.
Communication between Husband and Wife

 The uttering of a libel by a husband to his wife is no publication

because under the common law in England, the husband and wife
are deemed one person.

 Jones v. Williams, (1885) 1 TRL 572

 Sending a defamatory letter to a wife about her husband, or to a

husband about his wife, is sufficient publication, the husband and the
wife being regarded as distinct and different persons for such
purposes.
 Wennhak v. Morgan, (1888) 20 QBD 635

 Uttering of a libel by a husband to his wife is no publication on the

common law principle that husband and wife are one.

 M.C. Varghese v. T. J. Poonan, AIR 1970 SC 1876

 In a criminal prosecution for defamation under the Penal Code, the

Supreme Court of India has held that this rule of common law has no
application in the Indian Penal Law and that a letter written by the
husband to the wife containing a libel against the wife’s father and
passed on by the wife to him can be admitted into evidence if it can
be proved without calling the wife as a witness.
Defences

 Following are the main defences available in an action for

defamation:

 a. Justification by Truth

 b. Fair and bona-fide comment

 c. Privilege

 d. Apology
a. Justification by Truth

 The truth of defamatory words is a complete defence to an action of

libel or slander though it is not so in a criminal trial.

 Truth is an answer to the action, not because it negatives the charge

of malice but because it shows that the plaintiff is not entitled to
recover damages.

 McPherson v. Daniels, (1829) 10 B and C 263

 The defendant wrote: “A said that B had been convicted of theft”. It

will be no defence for the defendant to prove that A did tell him so,
that he honestly believed that A said and he only repeated it. He
must prove as a fact that B was convicted of theft.
 Cookson v. Horwood, (1932) 2 KB 485

 If you repeat rumour you cannot say it is true by proving that the
rumour in fact existed you have to prove that the subject matter of
the rumour is true.

 Alexander v. N.E. Railway, (1865)

 The defendant published at their station a notice stating that the

plaintiff had been convicted of travelling in a train without ticket and
sentenced to a fine of £1 with an alternative of three weeks
imprisonment. In fact, the alternative was two week’s imprisonment.

 The Court held that the matter should be left to the jury to decide
whether the inaccuracy of the statement made is substantially true or
untrue. The defendants were held not liable, as the statement has
been substantially true.
b. Fair and bona fide comment

 Fair comment means comments honestly believed to be true and not

inspired by any malicious motive.

 Dainik Bhaskar v. Madhusudan Bhaskar, AIR 1991 MP 162

 A fair and bona fide comment on a matter of public interest is no

libel.
 Some matters of public interest are: -

 1. Affairs of State. Public acts of ministers and officers of State

can be commented on, [Watson v. Walter, (1868) LR 4 QB 73;
Davis v. Shepstone, (1886) 11 App Cas 187];

 2. The administration of justice [Lewis v. Levy, (1858) EB & E 537]

 3. Public institutions and local authorities [Purcell v. Sowler
(1877 2 CPD 215)]

 4. Ecclesiastical matters [Kelly v. Tinling, (1865) LR 1 QB 699]

 5. Books, pictures, and works of art [Strauss v. Francis (1866)4 F

& F 1107; Thompson v. Shackell, (1828) Mood and Malk 187]

 6. Theatres, concerts and other public entertainments [Gregory

v. Duke Brunswick, (1843) 1 C & K 21; Green v. Chapman, (1837) 4
Bing NC 92]
 To claim the defence of fair and bona fide comment the defendant
must establish:

 1. That the statement complained of is a comment and not the

statement of fact.

 A says of a book published by Z, “Z’s book is foolish; Z must be a

weak man, book is indecent, Z must be a man of impure mind”.
These are comments and will be protected if they are not malicious.

 A says “I am not surprised that Z’s book is foolish and, indecent, for
he is a weak man and libertine”. This is not a comment but a
statement of fact and A cannot plead the defence of air comment but
must prove his words true.
 2. That the comment is fair

 A comment, in order to be fair, must be based upon facts. It is not

possible, first to invent a fact and then to comment upon. The fact
must exist.
 3. That matter is of public interest

 A fair and bona fide comment on matters of public interest is not

liable. A writer in newspaper may comment on the conduct of a
public man but if he imputes dishonestly, he must be prepared to
justify it.
 4. That the comment has not been published maliciously

 The comment must also be bona fide and must not be made a cloak
for malice.
c. Privilege

 Privilege means that a person stands in such relation to the facts of

the case that he is justified in saying or writing what would be
slanderous or libellous in any one else.

 The general principle underlying the defence of privilege is the

common convenience and welfare of society or the general
interest of society.

 Privilege is of two kinds: a. Absolute Privilege; b. Qualified

Privilege
1. Absolute Privilege

 A statement is absolutely privileged when no action lies for it even

though it is false and defamatory, and made with express malice.

 Occasions absolutely privileged may be grouped under four heads:

 i. Parliamentary Proceedings;

 ii. Judicial Proceedings;

 iii. Military and Naval Proceedings;

 iv. State Proceedings.

i. Parliamentary Proceedings

 Statements made by members of either House of Parliament or

Legislators in their places in the House, though they might be untrue
to their knowledge, could not be made the foundation of civil of
criminal proceedings, however, injurious they might be to the interest
of a third person. [Articles 105 and 194 of the Constitution of
India]
 Under Article 105(2) of the Constitution of India no Member of
Parliament shall be liable to any proceedings in any Court in respect
of anything said by him in the Parliament or in any committee
thereof. [See Tejkiran Jain v. Sanjiva Reddy, AIR 1970 Sc 1573]

 The Article further provides that no person shall be liable in respect

of the publication by or under the authority of either House of
Parliament of any report, paper, votes or proceedings.
 Article 194(2) has similar provision applying to the Legislatures of
States.
 C.K. Daphtary v. O.P. Gupta, AIR 1971 SC 1132

 No privilege under these articles i.e. 105 and 194, can be obtained in
respect of a publication not under the authority of Parliament or
Legislature.

 Lake v. King, (1780) 1 Saund 131

 Statements of witnesses before Parliamentary Select Committee of

either House are also privileged.
ii. Judicial Proceedings

 Every statement made in the course of judicial proceedings with

whatever motive, by judge or juror, party, witness or advocate is
absolutely privileged.

 Jagat Mohannath Sha Deo v. Kalipado Ghose, (1922) ILR 1 Pat

371

 A lawyer, while pleading his client’s case in a Court, characterised B,

the opposite party as a liar, a swindler and forgerer without any
justification and with a view to disgracing B and to feed fat his
grudge upon him. B instituted a suit against the lawyer for damages.
It was held with regard to the counsel, that the question of malice,
bona fide and relevancy could not be raised.
iii. Military and Naval Proceedings

 Proceedings of naval and military tribunals are absolutely privileged.

 Dawkins v. Lord Rokeby, (1875) LR 7 HL 744

 Statements made before a naval or military Court of Inquiry by a

military man are protected.

 Dawkins v. Lord Pauler, (1869) LR 5 QB 94

 Reports made in the course of military or naval duty, such as

adverse opinions expressed by one officer of the conduct of another,
are absolutely privileged, even if made maliciously and without
reasonable and probable cause.
 iv. State Proceedings

 Communications made by one officer of state to another are

absolutely privileged. For reasons of public policy, absolute
protection is given to every communication relating to State matters
made by one minister to another, or to the Crown.

 Communications relating to State matters are not confined to cases

where the Secretaries of State or Under-Secretaries of State are
communicating with one another.

 State matters mean public matters, particularly matters connected

with the administration of justice and a state officer must include a
police officer whose duty it is to make enquiries and investigations
into allegations of commission of criminal offences.
 Beni Nadho Prasad v. Wajid Ali, (1937) ILR 390

 Report made by a police officer to a Magistrate under Section 202,

Criminal Procedure Code, fall within the category of State matters
and is absolutely privileged.
2. Qualified Privilege
 The law presumes or implies malice in all cases of defamatory
words; this presumption may be rebutted by showing that the words
were uttered on a privileged occasion which are made in normal
course of business such as dictations to a typist.

 The following are the chief instances of qualified privileges:

 i. When the statement has been made in performance of a duty;

 ii. When the statement has been made in self-defence;
 iii. When the communications are made in the interest of public;
 iv. Fair and accurate reports of proceedings; in Parliament, or any
Court of Justice or in any public meeting.
 G. T. Thomas v. E. M. Simmons, (1898) 4 Burma LR 152

 A public officer may send to his superior a report, pertinent to a

matter which it is his duty to investigate, even though the report
contains defamatory statements regarding an individual, such a
report is confidential and is privileged.

 London Assn. for Protection of Trade v. Greenlands Ltd. (1916)

2 AC 15

 If a person, thinking of dealing with another in any matter of

business, asks a question about his character from someone who
has means of knowledge, it is for the interests of society that the
question should be answered; and if answered bona fide and without
malice, the answer is a privilege communication.
 Tarapada Majumdar v. K.B. Ghosh & Co. AIR 1979 Cal 68

 If a lawyer bona fide acts in his professional capacity on the

instructions of his client he will have the protection of qualified
privilege.
d. Apology

 This is the statutory defence available only in an action for libel

contained in public newspaper or other periodical publication.

 The defendant must prove, firstly, absence of malice and gross

negligence, and secondly, apology at the earliest opportunity
inserted in the newspaper or the periodical.
Remedies

 As to the remedies for defamation, a suit for damages may be

brought.

 The publication of defamatory statements may be restrained by

injunction either under Section 38 or 39 of the Specific Relief Act,
1963.
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