January 25, 2021

Concept of Defamation under Law of Torts

Law of Torts

Defamation is defined under Section 499 of Indian Penal Code (IPC) 1860 as 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.

We have two types of defamation which the first is Libel and second is Slander.

  • Libel this is a defamatory statement that has been published in a written form, this written form of statement comes under defamation libel category. There are two condition that needs to be seen when we file case of libel against: –
  1. Defender published the defamatory statement about the plaintiff
  2. Other people also have been exposed to the statement.

In the case of libel there is not other further requirement, law itself presumes once the statement is published the defamatory statement will remain in written format or any other, and this will remain in public for long time and will continue to do harm.

  • Slander it refers to the statement that is defamatory but is present in public in verbal form (spoken) this is little difficult to prove as there is no particular proof of the presented fact so in this the plaintiff may suffer some issues. There are two types of slander and slander per se.
  1. In the first the plaintiff must prove the stamen has been flown to at least one other parson (i.e. the essential for defamation case) and because of that the plaintiff suffered what are referred as special damage. This can be like loss of customer, being fired, or other financial harm.
  2. Slander per se does not require that the plaintiff prove the special damage. This is because slander per se claims involves the statement that is in itself presumed to be damaging plaintiff. Slander per say category include-
  • Imputing criminal conduct of the plaintiff
  • Saying that plaintiff has communicated some type of disease which is communicable in nature.
  • Any statement that can affect the plaintiff business or profession comes under this category of slander per se.

Essentials of Defamation

The statement must be published- the statement should lower the reputation in right thinking member of society generally or which tends to make them shun or avoid that person.

Ram Jethmalani v. Subramaniam Swamy inquiry commission was setup for examination the facts and circumstances related to assassination of late Shri Rajiv Gandhi. The dependent in press conference said the chief minister of Tamil Nadu has prior knowledge of assassination. And the statement was found ex facie defamatory as that lowered down the reputation of plaintiff.

The statement must refer to the plaintiff, if the statement that is reasonably infer that the statement referred to the plaintiff, it this is not the case the defendant is not liable.

Newstead v. London Express Newspaper Ltd. The defendant published newspaper article that mentioned that particular person XYZ has been convicted for bigamy. The story was true but with same name in that same area another person who was barber was getting defamed after, as the words were considered to be understanding as referring to the plaintiff, the defendant was held liable.

Defamatory statement must be published- publication means that statement should be known to the other person other then the plaintiff or the defendant. It no other person except the plaintiff knows about this then there is no defamation.

Mahender Ram v. Harnandan Prasad in this the defamatory letter was written in Urdu script, the plaintiff was not aware of this script, so he asked third person to read, this was held as defamation as the defendant was aware of the fact that plaintiff do not know Urdu.

Defenses available in Defamation are: –

  1. Justification of truth– under criminal law proving statement which was made was true does not comes under defense but under civil law, merely showing the statement mentioned is a true statement then person. The defendant argued that conviction was described with substantial and sufficient accuracy with words so far.
  2. Fair Comment– the comment must be expression of opinion rather that assertion of fact, the comment must be fair without any malice, the matter commented upon should be in the public interest.
  3. Privilege– in certain occasion where law also recognized the right to freedom of speech, where plaintiff has right of reputation, law treats those occasions as the privileged, these are further two types-

Absolute privilege is that no action, lies for defamatory statement even though the statement is false or made maliciously. This has been given in parliament privilege, judicial proceeding and state communication.

Qualified privilege is necessary and it must be provided for without malice. The defendant has to prove the statement was made on a privileged occasion fairly.


Author Details: Prachi Agnihotri (UPES)

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