Defamation

Anwesha Pathak
 • Defamation is a legal term that refers
to any statement or communication
that harms the reputation of a
person, business, or organization. It is
a common type of tort law that
protects individuals from false or
harmful statements that can cause
them to suffer economic or
reputational damages.

Introducti • Defamation under Law of Torts is

tarnishing the reputation of someone.

on
Defamation is defined under Section
499 of Indian Penal
Code (IPC) 1860as whoever, if any
person 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 words will be imputation
and can harm, the reputation of such
person is said to defame that person.
 Defamati
on

Libel Slander
Defamation may be committed either by way of writing, or its
equivalent or by way of speech.
• Defamation committed through writing is called as 'libel'.
• Defamation committed through speech is known as 'slander'.

A defamatory statement is a statement calculated to expose a

person to hatred, contempt or ridicule or the person is injured in his
trade, business, profession or he is defamed in such a way that he be
shunned or avoided in the society.
Libel Slander
(i) A libel is a defamation which has been (i) Slander is a defamation in a transient form
caused in permanent form i.e., in written or i.e., by speech or by gestures.
printed form.
(ii) It is a civil wrong only but the words may
(ii) It is a criminal offence as well as a civil be blasphemous, seditious or obscene and
wrong. this is a criminal offence under section 499 of
IPC.
(iii) It is an infringement of a right and there is (iii) A slander is actionable only when special
no need to prove the actual damage to damage can be proved to have been its
sustain an action. natural consequence, or when it conveys
certain imputations.
Essentials of Defamation

The
statement It must be It must refer
must be false published, to the
and and plaintiff.
defamatory,
 • The Statement should be made- A statement can be made by words either spoken
or intended to be read, or by signs or by visible representations. For example, A is
asked who stole B’s diamond ring. A points to C, intending to cause everybody to
believe that C stole the diamond ring. This is defamation.

• The Statement must refer to the plaintiff- The defamatory statement must refer
to the person, class of persons or the trustees of a company. The reference may be
express or implied. It is not necessary that the plaintiff has to be mentioned by name,
if he can still be recognized. The person referred to in the defamatory statement can
be living or dead, however, defamation suit on behalf of a dead person can be filed
only if the person filing the suit has an interest.

• The Statement must be defamatory- Defamation starts with someone making a

Elements of
statement, and any person who makes a defamatory statement can be held liable for
defamation. A defamatory statement tends to diminish the good opinion that others
hold about the person and it has the tendency to make others look at him with a
feeling of hatred, ridicule, fear or dislike. Abusive language may also be defamatory,

Defamation
for example, to call a man hypocrite or a habitual drunkard. A few illustrations to
understand what is defamatory and what is not. To say a motorist drives negligently is
defamatory. To criticize goods is not defamation. To say that a baker’s bread is always
unwholesome is defamatory. To state that a person has not that degree of skill which
he holds himself as possessing is defamatory.

• The intention of the wrongdoer- The person making the defamatory statement
knows that there are high chances of other people believing the statement to be true
and it will result in causing injury to the reputation of the person defamed.

• The Statement should be false- A defamatory statement should be false because

the truth is a defence to defamation. If the statement made is true then there is no
defamation as the falsity of the statement is an essential ingredient of defamation.
The law does not punish anyone for speaking the truth, even if it is ugly.
• The Statement should not be privileged- In some
cases, the statements may be privileged i.e. the person
who has made the statement is protected from such
liability.
• The Statement must be published- For defamation to
occur, the statement should be published. The statement
should be communicated to a third party. Any statement
written in a personal diary or sent as a personal message
does not amount to defamation, but if the sender knows
that it is likely that a third person may read it, then it
amounts to defamation.
• The third party believes the defamatory matter to
be true- The other people of the society believe that the
defamatory matter said about the plaintiff is true.
• The Statement must cause injury- The statement
made should harm or injure the plaintiff in some way. For
example, the plaintiff lost his job because of the
statement made.

In Mahendra Ram v. Harnandan Prasad, the defendant was

held liable because he had sent a defamatory letter written
in Urdu despite knowing the fact that the plaintiff could not
read Urdu and ultimately the letter will be read by someone
else.
 • Justification by truth

Truth is an absolute defence. If the statement made is authentic then it does not constitute
defamation. The burden of proof is on the defendant who is claiming the defence. For instance, X makes a
statement in an interview about Y indulging in gambling and Y files a suit against him. If X is able to justify

Defences
or prove it, then Y’s claim will be dismissed. In Radheshyam Tiwari v. Eknath, the defendant was unable to
prove the facts published by him and therefore was held liable for defamation.

• Fair and bonafide comment

available
Nothing is defamatory which is a fair comment in the matter of public interest. The defendant can avail this
defence when he has merely made a fair comment in a matter of public interest. This defence is based on
public policy which gives every person the right to comment and criticize without any malicious intention
the work or activities of public offices, actors, authors and athletes as well as those whose career is based

against
on public attention. Any fair and honest opinion on a matter of public interest is also protected even though
it is not true. There is no definition of a matter of public interest. Generally, a matter of public interest can
is a subject which invites public attention or is open to public discussion or criticism.

The main principles relating to the defence of fair comment have been stated by Duncan and Neill as

Defamatio
follows:

a) the comment should be on a matter of public interest;

n
b) b) The comment must be based on facts;

c) c) The comment, though it can include inferences of fact, must be recognizable as a comment;

d) d) The comment must satisfy the following objective test; could any man honestly express that
opinion on the proved facts;

e) e) Even though the comment satisfies the objective test the defence can be defeated if the plaintiff
proves that the defendant was actuated by express malice.
• Fair comment and justification distinguished
The plea of fair comment is available only in respect of both facts and opinion, it is not necessary to prove the truth of the comment. When
justification is pleaded in respect of matters of opinion, the defendant must prove not only that he honestly held the views expressed but also
that they were accurate.
• Absolute Privilege
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:
1. during judicial proceedings,
2. by government officials,
3. by legislators during debates in the parliament,
4. during political speeches in the parliamentary proceedings and,
5. communication between spouses.
T.J. Ponnen v. M..C. Verghese:The court held that a letter sent by a husband
to his wife which contains defamatory about the father-in-law does is not a
case of defamation. It is a privileged communication between the spouses
as per Section 122 of the Indian Evidence Act, 1872.

In Chatterton v. Secretary of State for India, it was held that the letters
from the Secretary of State of India to his Parliamentary Under-Secretary
providing the materials for the answer to a parliamentary question was
absolutely privileged.
No. Defamation as a Tort Defamation as a crime
It is a criminal offence, which is bailable, non-cognizable and
1. It is a civil wrong.
compoundable.
It is based on tort law- an area of law which has no statutes to It has been defined as an offence under Section 499 and the
2. define wrongs and relies completely on case laws to define punishment for the same is given in Section 500 of the Indian
wrongs. Penal Code, 1860.
It provides redressal to the plaintiff by awarding damages in the It seeks to punish the offender and send a message to the
3.
form of monetary compensation from the accused. society not to commit such an offence.
The offence of defamation has to be established beyond a
4. Damages are awarded based on probabilities.
reasonable doubt.
The plaintiff can move to criminal court and ask the offender to
5. It is generally a slow process to seek relief in India.
take cognizance of his complaint.
A person found guilty can be penalized only by making him pay A person found guilty can be punished with imprisonment up to
6.
damages. two years or fine or with both.
The defamation law serves the purpose of protecting people
from having their reputation injured resulting from false
statements made against them. 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. The
apex court has stated in various cases that the ambit of
freedom of speech and expression is “sacrosanct” but is not
“absolute”. It also said that the right to life under Art. 21
includes the right to reputation of a person and it cannot be
violated at the cost of the freedom of speech of another.