Defences to Defamation under

Law of Torts
Meaning of defamation

 Defamation is defined 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. It harms a
person’s reputation
 Classified into libel and slander. Libel is representation of defamatory material in a permanent form such as
written words, caricatures etc whereas slander is statement of a temporary nature such as written words,
gestures.
 Essentials of defamation
1. The statement must be defamatory
2. The statement must refer to the plaintiff
3. The statement must be published
4. The statement must be false.
Defenses to tort of defamation
1) Truth

1. In an action for defamation, the truth of the defamatory material is a complete defense. This is because one
of the primary requisites for bringing an action for defamation is that the defamatory material must be false.
2. It is immaterial whether the person making or publishing the statement knew at the time of making or
publishing that the statement is true. However, mere belief in the truth of the statements is no defence in case
the statements are not actually true.
3. In Radhesham Tiwari v Eknath, the defendant who was the editor of a local Marathi weekly published a
series of articles where it was alleged that the plaintiff was engaged in corrupt practices. In an action for
defamation, those facts could not be proved to be true and thus the defendant could not avail the defense.
2)Fair and Bonafide comment

 Fair and bonafide comment on matters of public interest is a defense for defamation and does not attract any
liability provided it is not written intemperately and maliciously.
 In the words fair comment fair is representative of being honest and relevant and thus the views expressed
should be such so they can be labelled as criticism. The comment in order to be fair must be based on true
facts and not be misstated otherwise he defence cannot be availed.
 The comment should not be under the cloak of malice.
 Liberty of criticism is allowed in order to not endanger freedom of speech and expression.
 Any writer can write regarding a public person even in the strongest terms provide that he is prepared to
justify it.
 A journalist right to comment freely and severely in matters related o public interest is something which has
been recognized by law. This recognition in turn also raises an obligation that the journalist should take that
the comments must be based on facts which are true so that he is able to prove them and public interest is
better served.(Rustom Karanjia v Krishnaraj)
3)Privilege

 When a person stands in relation to the facts of the case that he is justified in saying or writing what would
be slanderous or libelous in case of anyone else, he is said to have a privilege and the occasion on which he
exercises his privilege is called a privileged occasion.
 Privileged occasions are of two types
1. Absolute privilege occasions- A statement where no action lies for it even if it is of a false, defamatory
nature and made with a malice.
2. Qualified privilege occasions- No suit will lie upon the statement even though it is false and defamatory
unless the plaintiff proves express malice.
Occasions under absolute privilege

 1) Parliamentary proceedings- No action lies for statements made by members of both houses of the
parliament however injurious to the third persons. This privilege does not extend to anything out of the
house.(Case law-Church of Scientology v Johnson Smith)
 2) Judicial proceedings- Every statement in the course of judicial proceedings is absolutely privileged. The
privilege extends to all pleadings and affidavits and all statements made by an advocate, solicitor, counsel or
he party in person no matter how false, malicious or irrelevant the words complained of may be. Every
statement made in the witness box is also privileged even if it is voluntary provided it is relevant to the
enquiry of the court. No privilege if unconnected to the matter and made entirely to serve witness own needs.
 3) Military and naval proceedings- All acts done in honest exercise of military or naval authority , reports
made in case of military or naval duty and statements before a military or naval courts( whether false or
malicious ) are absolutely privileged.
 4) State proceedings- Communication relating to state affairs made by one officer of state to other in course
of duty are likewise absolutely privileged on grounds of public policy.
Occasions under qualified privilege

1. Statement made under the performance of a duty- The circumstances of any case may cast a duty upon
the defendant to make the required communication to a third party. This duty my be social, legal or moral. It
is not sufficient to attract he provisions of qualified privilege that the subject matter is of general public
interest. The person or newspaper who wants to communicate to the general public must have a duty to
communicate and he person to whom the communication is made has a corresponding duty to receive such
communication.
2. Statement made in protection of common interest- Any communication made bonafide upon any subject
matter with the intention of protecting one’s interest common to the writer or speaker and to the person to
whom it is made is privileged. Thus, a master warning his servants against undesirable companions is
protected by his interest in their honesty.
 3) Fair and accurate reports- Reports of judicial proceedings, extracts or abstracts from report of
parliamentary proceedings, fair report of parliamentary proceedings, reports of quasi judicial proceedings
posess qualified privilege. All of the above documents must be fair and accurate.
CONCLUSION

 Brief analysis of the components of defamation and keeping current events in perspective, the topic of
defamation ultimately boils down to defamation versus free speech.
 It has been observed by the apex court that the ambit of freedom of speech and expression is sacrosanct and
not absolute. The provision of defamation is multifaceted and thus it is important to strike a balance between
implementation of the defamation provision and protection of freedom of speech and expression under the
Indian Constitution.
 Criminal defamation should not become a tool for powerful people to harass and silence the speech of
people. To curb or avoid misuse of defamation, superfluous complaints should not be registered unless there
is prima facie evidence.