October 19, 2021

Defamation Under Law of Torts

Law of torts

Introduction

A man’s reputation is his property and is more valuable than any other tangible asset. Every man has the right to have his reputation preserved. It is acknowledged as an inherent personal right of every person. It is a jus in rem, a right good against all the people in the world. The degree of suffering caused by loss of reputation far exceeds that caused by loss of any material wealth.

Definition- Defamation is the publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him.

Kinds- Libel: The publication of a false and defamatory statement tending to injure the reputation of another person without lawful justification or excuse. The statement must be in a printed form, e.g., writing, printing, pictures, cartoons, statue, waxwork effigy etc.

Slander: A false and defamatory statement by spoken words and/or gestures tending to injure the reputation of others. It is in a transient form. It also involves the sign language used by the physically disabled.

What Has To Be Proved- Subject to the differences between the two types of defamation, libel and slander (explained below), the claimant must prove:

  • that the statement was defamatory,
  • that it referred to him, and
  • that it was published, ie communicated, to a third party.

The onus will then shift to the defendant to prove any of the following three defences:

(1) truth (or justification),

(2) fair comment on a matter of public interest, or

(3) that it was made on a privileged occasion.

In addition, some writers put forward the following as defences in their own right:

(4) unintentional defamation, and

(5) consent.

Distinction between Libel and Slander

The basic differences between the torts of libel and slander are as follows:

(1) Libel is a defamatory statement in permanent form, for example,

  • writing,
  • wax images
  • films
  • radio and television broadcasts , and
  • public performances of plays
  • Slander is a defamatory statement in a transient form.

(2) Libel is actionable per se whereas damage must be proved for slander, except in four instances:

  • Where there is an allegation that the claimant has committed an imprisonable offence;
  • Where there is an imputation that the claimant is suffering from a contagious disease, such as venereal disease, leprosy, plague and, arguably, HIV/AIDS;
  • Where there is an imputation that a woman has committed adultery or otherwise behaved in an ‘unchaste’ fashion; or
  • Where there is an imputation that the claimant is unfit to carry on his trade, profession or calling.

(3) Libel may be prosecuted as a crime as well as a tort, whereas slander is only a tort.

Defences to the Tort of Defamation

(A) Justification by truth- In a civil action for defamation, truth is a complete defence. However under criminal law, it must also be proved that the imputation was made for the public good. Under the civil law, merely proving that the statement was true is a good defence the reason being that “the law will not permit a man to recover damages in respect of an injury to a character which he either does no or ought not to possess”

(B) A fair and bona fide comment on a matter of public interest- It involves making fair comments on matters of public interest. For this defence to be available, the following essentials are required:

  • It must be a comment, i.e., an expression of opinion rather than an assertion of fact
  • The comment must be fair, i.e., must be based on the truth and not on untrue or invented facts
  • The matter commented upon must be of public interest.

(C) Privilege – It is of two kinds- Absolute Privilege: Certain statements are allowed to be made when the larger interest of the community overrides the interest of the individual. No action lies for the defamatory statement even though it may be false or malicious. In such cases, the public interest demands that an individual’s right to reputation should give way to the freedom of speech. This privilege is provided to:

  • Parliamentary proceedings,
    • Judicial proceedings,
    • Military and Naval proceedings and
    • State proceedings.

Qualified Privilege: For communications made in the course of legal, social or moral duty, for self-protection, protection of common interest, for public good and proceedings at public meetings, provided the absence of malice is proved. Also, there must be an occasion for making the statement. To avail this defence, the following things must be kept in mind:

  • The statement should be made in discharge of a public duty or protection of an interest
    • Or, it is a fair report of parliamentary, judicial or other public proceedings
    • The statement should be made without any malice.
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