JAMIA MILLIA ISLAMIA

FACULTY OF LAW

LAW OF TORTS PROJECT REPORT ON:

TORT OF DEFAMATION

SUBMITTED BY: Saima gous

B.A.L.L.B(H)Regular
1st year,2nd Semester
Roll no-51
Student Id-201901961

SUBMITTED TO: Dr. Faizan Rahman

Professor(Law of Torts)
JMI(Faculty of Law)
 INDEX

1.Introduction
2.Tort of defamation-Meaning and Defamation
3.Interpretation
4.Kinds of Defamation
5.Essentials of Defamation
6.The Innuendo
7.Repitition of defamatory matter
8.Injunction against publication of a defamatory statement
9.Defences
10.origin
11.Statutory provision
12.Case laws
13.Conclusion
14.bibliography
 INTRODUCTION

The word tort has been derived from the latin term''tortum'', which means 'to twist'.
Thus,''tort'' means ''a conduct which is not straight or lawful, but,on the other hand,
twisted, crooked or unlawful''.It is equivalent to the english term 'wrong'.The law of
torts consists of various 'torts' or wrongful acts whereby the wrongdoer violates some
legal right vested in another person.1

''Tort is a civil wrong for which the remedy is a common law action for unliquidated
damages and which is not exclusively the breach of a contract or the breach of a trust or
other merely equitable obligation.''-Salmond

''Tortious liability arises from the breach of a duty primarily fixed by the law,this duty is
towards persons generally and its breach is redressible by an action for unliquidated
damages.''-Winfield

SPECIFIC TORT-A Intentional tort is when an individual or entity purposely engages

in conduct that causes injury or damage to another.For example,lowering someone's
reputation in the estimation of right thinking members of society or which tends to make
them shun or avoid that person is Defamation.Although it may seems like an intentional
tort can be categorized as a criminal case,there are important differences between the
two.Intentional torts are wrongful acts that injure or interfere with an individual's well-
being or property.While criminal charges are brought by the government and can result
in a fine or jail.Examples of Intentional torts are
Assault,battery,fraud,defamation,trespass,false imprisonment etc.2

TORT OF DEFAMATION

MEANING-Defamation also called calumny, vilification, slander and libel is the

communication of a statement that makes a claim, expressly stated or implied to be

1 R.K. Bangia, The Law of Torts 3 (Allahabad Law Agency, Haryana, 24th
edition, 2017)

2 https://www.injurylawcolorado.com/ (last visited on 25th April, 2020)

factual, that may give an individual, business, product, group, government, or nation a
negative image. The tort of defamation protects a person’s interest in his reputation. If
the defendant had made an untrue statement, or what amounts to a statement, which is
defamatory of the plaintiff, the plaintiff has a right of action against him.3

DEFINITION

''Defamation is 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.''-Winfield

''Defamation means publication of false and defamatory statement about any person
without any proper cause.''-Underhill

''publication of false statement which destroys some one’s reputation in the sence of
right -thinking members of the society it creates defamation.''-Blackburn and George

According to section 499 of the Indian penal code,'' 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 reasons to
believe that such imputation will harm, the reputation of such person, is said except in
specified cases, to defame the person.4

INTERPRETATION-:

Kinds of Defamation-

ENGLISH LAW-According to english law,defamation is of two types-:

1.SLANDER-Slader is the publication of a defamatory statement in a transient

form.Examples of it may be spoken by words or gestures.

2.LIBEL-libel is representation made in some permanent form,example may be

writing,printing,picture,effigy or statute.

Section 1,Defamation act,provides that broadcasting of words by means of wireless

telegraphy shall be treated as publication in permanent form.Another test which has
been suggested for distinguishing libel and slander is that libel addressed to the

3 https://www.bartleby.com/ (last visited on 25th April,2020)

4 https://www.indiankanoonorg (last visited on 25th April, 2020)
eye,slander to the ear.

Under Criminal law,only libel has been recognized as an offence.Slander is no

offence.Under the law of torts,Slander is actionable,save in exceptional cases,only on
proof of special damage.Libel is always actionable per se that is without the proof of
any damage.5

INDIAN LAW-There is no statutory law of defamation in India except what is

contained in chapter 21,Indian Penal code.The criminal law in India does not make any
distinction between libel and slander.Both libel and slander are criminal offfences under
section 499 of the Indian penal code.6

ESSENTIALS OF DEFAMATION

1.The statement must be defamatory-Defamatory statement is one which tends to

injure the reputation of the plaintiff.An imputation which exposes one to disgrace and
humiliation,ridicule or contempt,is defamatory.The defamatory statement could be
made in different ways.For instance,it may be oral,in writing, printed or by the
exhibition of a picture, statue or effigy or by some conduct.

Whether the statement is defamatory or not depends upon how the right thinking
members of the society are likely to take it.The standard to be applied is that of a right-
minded citizen,a man of fair intelligence, and not that of a special class of persons
whose values are not shared or approved by the fair minded members of the society
generally.If the likely effect of the statement is the injury to the plaintiff's reputation,it is
no defence to say that it was not intended to be defamatory.

According to Salmond ''A defamatory statement is one which has a tendency to injure
the reputation of the person to whom it refers;which tends to lower him in the
estimation of right thinking members of society and to cause him to be regarded with
feelings of hatred,contempt,ridicule,fear,dislike or disesteem.''

THE INNUENDO

5 R.K. Bangia, The Law of Torts 148-149 (Allahabad Law Agency, Haryana, 24th
edition,2017)

6 Sir Frederick Pollock, The Law of Torts 219 (Stevens and Sons, Limited,
London, 1895)
A statement may be prima facie defamatory and that is so when its natural and obvious
meaning leads to the conclusion.Sometimes, the statement may prima facie be innocent
but because of some latent or secondary meaning, it may be considered to be
defamatory.When the natural and ordinary meaning is not defamatory but the plaintiff
wants to bring an action for defamation, he must prove the latent or the secondary
meaning,that is, the innuendo, which makes the statement defamatory.Even a statement
of commendation may be defamatory in the context in which it is said.For example,
even ''Y is a Saint'' might be slander if the statement was understood to refer to a
criminal gang known as''The Saints''.

2.The statement 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.If the person to whom the
statement was published could reasonably infer that the statement referred to the
plaintiff, the defendant is nevertheless liable

Acting in good faith and without any intention to defame the plaintiff is no
defence.Intention of the writer is quite immaterial in considering whether the alleged
matter is defamatory or not or even in considering whether it is defamatory of the
plaintiff.7

3.The statement must be published-Publication means making the defamatory matter

known to some person other then the person defamed, and unless that is done, no civil
action for defamation lies.Communication to the plaintiff himself is not enough because
defamation is injury to the reputation and reputation consists in the estimation in which
others hold him and not a man's own opinion of himself.Dictating a letter to one's typist
is enough publication.Sending the defamatory letter to the plaintiff in a language
supposed to be known to the plaintiff is no defamation.If a third person wrongfully
reads a letter meant for the plaintiff,the defendant is not liable.

If a defamatory letter sent to the plaintiff's likely to be read by somebody else,there is a

publication.When the defamatory matter is contained in a postcard or a telegram, the
defendant is liable.When the libellous letter addressed to the plaintiff is, in the ordinary

7 Winfield and Jolo Wicz, Law of Torts 243(Sweet and Maxwell, UK, 20th
edition, 2010)
course of business,likely to be opened by his clerk, or by his spouse, there is defamation
when the clerk or the spouse opens and reads that letter

REPITITION OF DEFAMATORY MATTER

The liability of the person who repeats a defamatory matter arise in the same way as that
of the originator, because every repitition is fresh publication giving rise to a fresh cause
of action.Not only the author of the defamatory matter is liable but its editor, printer or
publisher would also be liable in the same way.Their liability is strict.There is another
class of persons who might disseminate the matter without knowing its contents,
example,booksellers,newspaper-vendors or librarians.The law adopts a lenient attitude
towards them.

INJUNCTION AGAINST PUBLICATION OF A DEFAMATORY

STATEMENT-

An injunction can be issued to prevent the person from making defamatory statements if
the court is satisfied that there is a likelihood of immediate and pressing injury to the
person's reputation.[P. Ravindran vs Lakshmikutty Amma, {A.I.R. (2001)Madras225}]

DEFENCES

1.Justification or truth-In a civil action for defamation, truth of the defamatory matter
is complete defence.Under Crminal Law, merely proving that the statement was true is
no defence.First Exception to section 499, I.P.C requires that besides being true, the
imputation must be shown to have been made for public good.Under the civil law,
merely proving that the statement was true is a good defence.The reason for the defence
is that''the law will not permit a man to recover damages in respect of an injury to a
character which he either does not or ought not to possess.''The defence is available
even though the publication is made maliciously.If the statement is substantially true but
incorrect in respect of certain minor particulars, the defence will still be available.8

Section 5-''In an action for libel or slander in respect of words containing two or more
distinct charges against the plaintiff, a defence of justification shall not fail by reason
only that the truth of every charge is not proved if the words proved to be true do not

8 Durga Das Basu, Law of Torts 123 (Prentice- Hall of India Pvt. Ltd., Delhi, 18th
edition, 1977)
materially injure the plaintiff's reputation having regard to the truth of remaining
charges.''9

2.Fair comment-For this defence to be available, the following essentials are required:

I) It must be a comment,that is, an expression of opinion rather than assertion of fact-

Comment means an expression of opinion on certain facts.It should be distinguished
from making a statement of fact.whether a statement is a fact or a comment on certain
facts depends on the language uesd or the context in which it is stated.

ii)The comment must be fair-The comment cannot be fair when it is based upon untrue
facts.A comment based upon invented and untrue facts is not fair.Thus, if in the
newspaper, there is publication of a statement of facts making serious allegations of
dishonesty and corruption against the plaintiff,and the defendant is unable to prove the
truth of sach facts,the plea of fair comment will fail.

iii)The matter commented upon must be 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,theaters,public entertainments,
textbooks,novels etc. are considered to be matters of public interest.

3.Privilege-There are certain occasions, when the law recognizes that the right of free
speech outweighs the plaintiffs's right to reputation: the law treats such occasions to be
''privileged'' and a defamatory statement made on such occasions is not actionable.

Privilege is of two types:

1.Absolute privilege-In matters of absolute privilege, no action lies for the defamatory
statement even though the statement is false or has been made maliciously.In such
cases, the public interest demands that an individual's right to reputation should give
way to the freedom of speech. It gives the person an absolute right to make the
statement even if it is defamatory, the person is immune from liability arising out of
defamation lawsuit. Generally, absolute privilege exempts defamatory statements
made,during judicial proceedings, by government officials, by legislators during debates
in the parliament, during political speeches in the parliamentary proceedings and,
communication between spouses.

9 https://www.legislation.gov.uk (last visited on 25th April)

2.Qualified privelege-When a person making the statement has a legal, social or moral
duty to make it and the listener has an interest in it, then the defence of qualified
privilege is allowed.These privileged communications must relate to the business at
hand, even if what was said was untrue. However, this does not give a licence to say
false statements, the person making the statement must believe it to be true. This
defence can fail if it is proved that the defamatory statement was made with a malicious
intention.The instances where this defence can be availed of:Reference for a job
applicant, Answering the police inquiries,A fair criticism of a published book or film in
a review,communication between parents and teachers, communication between
employers and employees, communication between traders and credit agencies are all
relationships that are protected by qualified privilege.10

ORIGIN-

Before the early 1300s, actions for the predecessor of defamation were obscure and
purely within the jurisdiction of the Church courts, it was not until much later that the
King’s courts allowed an action for defamatory words. The often physically-based
nature of the common law was not in favour of creating an offence which rested on
mere words. It was much more concerned with the tangible actions and results of, for
example, assault, theft and murder.The Church courts tried Defamation as a criminal
offence and could only sentence the offender to penance, admittedly quite a light
punishment. However, before this time, there were occasional actions that touched upon
issues of defamation and the tarnishing of someone’s character or reputation. For
example, in the 14th Century, there were actions brought by nobles who had been
slandered in the King’s open courts. A judge in 1358 recovered a sizable sum of money
for being called a traitor at court. Moreover, some actions were brought regarding false
statements about men having second marriages, a very damaging accusation that could
ruin their reputations.11

STATUTORY PROVISION-Article 105(2) of our constitution provides that: a

statement made by a member of either house of parliament in parliament, and the

10 R.F.V Heuston, Salmond on the Law of Torts 67 (Sweet and Maxwell, UK, 21st
edition, 1996)
11 Anish Dayal, “Inside Law:How Defamation Works in India” 1 The Wall Street
Journal 57 (2012)
publication by or under the authority of either house of parliament of any
report,paper,votes or proceedings, cannot be questioned in a court of law.A similar
privilege exists in respect of state legislatures,according to article 194(2).

According to section 3(1) of the act, ''No person shall be liable to any proceedings, civil
or criminal, in any court in respect of the publication in a newspaper of a substantially
true report of any proceedings of either house of parliament unless the publication is
proved to have been made with malice.''

CASE LAWS-

1.D.P. Choudhary vs Manjulata12

FACTS-The plaintiff, Manjula, about 17 years of age, belonged to a distinguished

educated family of Jodhpur.She was a student of B.A.There was publication of a news
item in a local daily, Dainik Navjyoti, that last night Manjulata had run away with a boy
named Kamlesh, after she went out of her house on the pretext of attending night classes
in her college.The news was untrue and was published negligently with utter
irresponsibility. She was shocked and rediculed by persons who knew her and her
marriage prospects were adversely affected thereby.

JUDGEMENT-It was held that all defamatory words are actionable per se and in such
a case, general damages will be presumed.She was held entitled to an award of Rs
10,000/- by way of general damages.

2.Ram Jethmalani vs Subhramaniam Swamy13

FACTS-While a commision of inquiry was examinig the facts and circumstances

relating to the assassination of late Shri Rajiv Gandhi, the defendant, at a press
conference, alleged that the then chief minister of Tamil Nadu had prior information
that LTTE cadre would make an assassination bid on the life of Rajiv Gandhi.The
plaintiff was engaged as a senior counsel to represent the then chief minister of Tamil
Nadu.In discharge of his professional duties, the plaintiff crosss-examined the
defendant.During the proceeding, the defendant in the written conclusive submission,
alleged that the plaintiff had been receiving money from LTTE, a banned

12 A.I.R. 1997 Raj. 170

13 A.I.R. 2006 Del. 300
organization.The statement made by the defendant was held to be ex facie defamatory.

JUDGEMENT-It was held to be a case of exceeding the privilege and that by itself was
held to be evidence of malice.The statement made by the defendant against the plaintiff
was held to be quite unconnected with and irrelevant to the situation, actual malice on
the part of the defendant was well established.

3.Hulton Co. vs Jones14

FACTS-Hulton & Co. (Hulton) (defendant) operated a newspaper in England. Thomas

Artemus Jones (Jones) (plaintiff) allegedly contributed signed articles to the paper. One
day, Hulton ran accused that person of cheating on his wife with another woman. Jones
brought suit for defamation against Hulton. At trial, Hulton stated it had never heard of
Jones and had used the name “Artemus Jones” as a fictitious name. Jones accepted this
contention as true. However, he argued Hulton was still liable for defamation because it
issued a statement that could be interpreted as true and harmful to Jones. In fact, Jones
produced several witnesses who said they believed the article was referring to him.

JUDGEMENT-If the libel speaks of a person by description without mentioning the

name in order to establish a right of action, the plaintiff must prove to the satisfaction of
a jury that the ordinary readers of the paper who knew him would have understood that
it referred to him.It was, therefore,held that there was no liability for the statements
published innocently.The defendants were,therefore, not liable.

4.Capital and Counties Bank vs Henty & Sons15

FACTS-There was a dispute between the defendants, Henty & Sons, and one of the
branch managers of the plaintiff bank.The defendants who used to receive cheques
drawn on various branches of the capital and counties bank sent a circular letter to a
large number of their customers as''Henty & Sons hereby give notice that they will not
receive payment in cheques drawn on any of the branches of the capital and counties
bank.'' The circular became known to various other persons also and there was a run on
the bank.The bank sued Henty & Sons for libel alleging that the circular implied an

14 https://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/defamation/e-
hulton-co-v-jones/ (last visited on 30th April,2020)

15 (1882) 7 A.C. 741

insolvency of the bank.

JUDGEMENT-It was held that the words of the circular taken in their natural sense did
not convey the supposed imputation and the reasonable people would not understand it
in the sense of the ''innuendo'' suggested.There was, therefore, no libel.

5.South Indian Railway Co. vs Ramakrishnan16

FACTS-The railway guard, who was an employee of the defendant, south Indian
Railway Co. went to a carriage for checking the tickets and while calling upon the
plaintiff to produce his ticket said to him in the presence of the other passenger:''I
suspect you are travelling with a false ticket.'' The plaintiff produced the ticket which
was in order.He then sued the railway company contending that those words uttered by
the railway guard amounted to defamation.

JUDGEMENT-It was held that the words spoken by the guard were spoken bona fide
and under the circumstances of the case, there was no defamation and the railway
company could not be made liable for the same.

6.K.S. Sundram vs S. Vishwanathan17

FACTS-The defendants had published articles relating only to the performance of the
company of which the plaintiff was President. The articles discussed the deterioration in
performance by management of the company by the plaintiff.

JUDGEMENT-It was held that the court dismissed the defamation suit filed by the
plaintiff seeking permanent injunction and said that the articles could not be termed as
defamatory against the plaintiff.

7.Cook vs Alexander18

FACTS-The daily telegraph gave a fair and accurate summary of parliamentary debate
giving extract from all the eleven speeches, in three columns of an inside page of the
newspaper. On the back page of the newspaper, there was one further column on the
debate in the form of ''parliamentary sketch'', being a selective report of that part of the
debate which appeared to the reporter to be of special public interest.In the sketch

16 I.L.R (1890) 13 Mad.34

17 A.I.R. 2013 (NOC) 216 (Mad)
18 (1973) 2 All E.R 1037(C.A)
prominence was given to one of the speeches which is said to be a libel on Mr Cook.

JUDGEMENT-It was held that the sketch was protected by the qualified privilege
because it gave fair representation of the impression of the hearers of the speech
prominently reported on the back page.The column on the back page the parliamentary
sketch gave specific reference to the inner page which contained full report of the whole
debate.

Comparison between civil and criminal defamation-

In India, defamation can both be a civil wrong and a criminal offence.The difference
between the two lies in the objects they seek to achieve.While a civil wrong tends to
provide for a redressal of wrongs by awarding compensation, a criminal law seeks to
punish a wrongdoer.In Indian laws, Criminal defamation has been specifically defined
as an offence under the Indian penal code whereas the civil defamation is based on tort
law-an area of law which does not rely on statutes to define wrongs but takes from the
ever increasing body of case laws to define what would constitute a wrong.Moreover, in
a criminal case, defamation has to be established beyond a reasonable doubt but in a
civil defamation suit, compensatory damages is awarded.19

CONCLUSION

Defamation means publication of such statement, which tends to injure the reputation of
other person.In modern society, every person is entitled to his good name and has a
right to claim that his reputation will not be injured by any person by making
defamatory statements about him to a third person without any lawful justification.The
primary aim of the law of defamation is to prevent a person from indulging in
unnecessary or false criticism arising possibly out of malice and thereby laying down
standards of speech and wrting .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.In other words, the law of defamation protects reputation and
the defences to the wrong such as justification, fair comment and privilege protects
freedom of speech.20

19 https://www.legistify.com/ (last visited on 26th April,2020)

20 https://www.newworldencyclopedia.org/ (last visited on 26th April,2020)
BIBLIOGRAPHY

BOOKS

1.R.K Bangia, The Law of torts(Allahabad law agency,Haryana,24th edition,2017)

2.Sir Frederick Pollock, The law of torts(stevens and sons ltd,London,1895)

3.Winsfield and Jolowicz, Law of torts( Sweet and Maxwell, UK, 20th edition,2010)

4.R.F.V Heuston(Salmond on the law of torts, Sweet & Maxwell, U.K, 21 st

edition,1996)

5.Durga Das Basu(Law of torts, Prentice-Hall of India pvt ltd, Delhi, 18th edition,1977)

JOURNALS

1.Neil foster, ''Tort of defamation'' 10 Cambridge law journal 216(2011)

2.Ian Malkin, ''defences of defamation'' 8 The journal of legal studies 200(2014)

3.Anis Dayal, ''Inside law: How defamation works in india'' 1 The wall street journal 57
2012

4.Jane Stapleton, ''The defamation act,1952'' 14 texas law review141(1953)

5.Des Butler, ''Civil and Criminal defamation'' 12 journal of tort law 215 (1966)

WEBSITES

1.https:// www.bartleby.com

2.https://www.injurylawcolorado.com

3.https://www.indiankanoon.org

4.https://www.legislation.gov.uk

5.https://www.newworldencyclopedia.com

6.https://www.legistify.com

7.www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/defamation/e-hulton-co-v-
jones/