Defamation
Basic Concept “Property once lost can be re-gained but reputation of a man once lost cannot be recovered” “Reputation” means as to how the society where such a man moves or lives, thinks or opines about him and not what that man thinks about himself Law of Defamation is based on fundamental principle that everyone has a right to freedom of thought, expression, right to hold opinions and to receive and impart information and views without interference by others
Meaning It is an injury to reputation of a person Winfield – It is the publication of a statement which tends to lower the reputation of a person in the eyes of right thinking persons of society, or which tends to make the society shun or avoid that person It is an injury to reputation of a person
Meaning It is recognized as an inherent personal right of every person against the world at large (jus in rem) Standard applied in determining whether a statement is defamatory or not – whether a right minded citizen, a person of fair, average intelligence finds a statement defamatory or not?
Meaning An imputation is defamatory, if it exposes one to disgrace or humiliation, ridicule or contempt “Imputation” means an accusation against a person and implies an allegation of fact and not merely a term of abuse or insult To say something of a person which holds him to contempt will be an imputation Examples: - imputing unchastity of a woman; calling a person an illegitimate son; calling a person a black marketer; calling a person a dishonest man etc.
Meaning Section 499, IPC: - “Whoever by words, spoken or intended to be read, or by signs, or by visual representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, is said to defame that person”
Examples Charges of rape and kidnapping levelled against Rahul Gandhi (2012 case) Supreme Court threw out the petition saying that the charges are false, frivolous and possibly politically motivated & asked CBI to investigate the case These charges damaged his reputation Earlier the petition was before the Allahabad HC & on 7th March 2011, the HC dismissed the petition & imposed a fine of Rs 50 lakh on the party filling the case, of which Rs 20 lakh was to be given to Rahul for damage to his reputation
Kinds of Defamation
Under English law, only writing, printing, engraving constitutes defamation; spoken words never constitute defamation, they only furnish grounds for civil action Under Indian law, libel & slander both can constitute defamation Defamation may be in - a) permanent form (called Libel); or b) only through words or gestures (called Slander)
1) Libel: - is the publication of a false and defamatory statement tending to injure the reputation of another person without lawful justification or excuse. It may be expressed in some permanent form, ie., in writing, print, pictures, waxwork or the like. It is both a criminal offence as well as civil wrong. No actual damage need be proved, as it is itself an infringement of a right.
2) Slander: - only through words or gestures or speech tending to injure the reputation of another person It is a civil wrong alone. It is actionable only when special damage is proved to have its natural consequences or when it conveys certain imputation (accusation or complaint or charge) E.g., whispering, nod, gestures etc. But Indian law under IPC does not distinguish between libel & slander
Libel becomes actionable per se under the following circumstances: - where there is imputation/accusation of a criminal charge against the plaintiff (eg, ‘A’ has committed rape or murder); accusation of an infectious disease against the plaintiff which has the effect of preventing others from associating with him (eg, ‘A’ is suffering from HIV/AIDS); accusation that the plaintiff is dishonest, unfit or incompetent in his profession, business, trade etc. carried on by him; accusation of unchastity or adultery against any woman or a girl.
Difference Between Libel & Slander 1) It is a publication or statement in a permanent form It is a statement in transient form 2) It is both a crime as well as a tort It is only a civil wrong, unless it is seditious, rebellious 3) It is expressed to the eyes, i.e., can be read It is expressed to the ears, i.e., can be heard 4) It is actionable per se For its actionability, it is required to prove “special damages”
Using abusive language against a person is not defamation until the words used cause injury to the reputation of the plaintiff Production of speech by a gramophone record, a talking film, broadcasting on radio or television, theatrical performance etc. are all treated as libel being representations on a permanent form
Defamation as an offence is defined under Section 499, IPC and punishable under Section 500, IPC, 1860 Section 499, IPC: - “Whoever by words, spoken or intended to be read, or by signs, or by visual representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, is said to defame that person” Punishment under Section 500, IPC – simple imprisonment for a term which may extend to 2 years or with fine or with both
Test Applied Test applied in determining defamation is that of a right minded citizen, a man of fair average intelligence and not that of a special class of persons whose values are not shared or approved by fair minded members of society in general.
Shatrughna Prasad Sinha v Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi, (1997) CrLJ 212 (SC): - The contents of an interview published in a film magazine was alleged to be defamatory against the Marwari community, lowering them in the estimation of the public or lowering their reputation in society. The statement that Marwari had no faith or love towards India or their motherland was not sufficient to constitute the defence of defamation. Hence, there was no defamation
Ramdhara v. Phulwatibai, (1970) CrLJ 286: - words uttered maliciously or in circumstances tending to lower the person addressed in the estimation of the people present and to bring him to ridicule, disgrace, humiliation or contempt, will constitute defamation and will be actionable.
Essentials of Defamation
Essentials of Defamation 1) That the statement was defamatory; 2) That the said statement or words were with reference to the plaintiff; and 3) That the statement was published.
Essentials of Defamation Eg., A says “Z is an honest man; he never stole B’s watch”; intending to cause it to be believed that Z did steal B’s watch. This is defamation, unless it fall within one of the exceptions. A is asked who stole B’s watch. A points to Z, intending to cause it to be believed that Z stole B’s watch. This is defamation unless it fall within one of the exceptions.
Essentials of Defamation In Cassidy v. Daily Mirror Newspaper Ltd., (1929) 2 LB 331), the defendants published a photograph stating that Mr. Cassidy & one Miss X’s engagement has been announced. Mrs. Cassidy did not live with him but her husband occasionally came and stayed with her in her flat. Mrs. Cassidy sued the defendant for innuendo alleging that the news of her husband’s engagement with Miss X carried a message that the plaintiff was living with her husband in immoral cohabitation and this ruined her reputation and image among her friends and the society. The Court of Appeal held the defendant liable for defamation of the plaintiff.
Essentials of Defamation In Sodhi Gurubachan Singh v. Babu Ram, (AIR 1968 PH 201) The Punjab & Haryana HC held that it is the duty of the newspaper editor to check that the news or the information supplied to him is true before publishing the same in his newspaper, especially when the news relates to a matter which might be defamatory in nature, because ultimately it is the editor who would be held liable for publishing any defamatory material in his newspaper.
Defences of Defamation
Defences of Defamation Justification or Truth: - if the defendant successfully proves that the statement alleged to be defamatory by the plaintiff are in fact true, it will be a complete defence to absolve the defendant from liability. However, under Section 499, IPC truth will be available as a defence only when the statement is made in public good.
Defences of Defamation 2) Fair or Bonafide Comment: - it implies the comments honestly believed to be true and not motivated by ill intention or untrue facts Here the defendant to succeed must show: a) that the facts alleged are true; b) that the expression of opinion is such that an honest man having strong views would make; c) subject matter of comment is of public interest; and d) the fact made was in defendant’s mind when he made it.
Defences of Defamation 3) Privilege: - it denotes an excuse or immunity conferred by law on statement or communication made on certain occasions. This defence is provided to enable a person to freely and frankly express his views on matters which are in public interest or national interest Privilege may be of two kinds: - a) Absolute Privilege; and b) Qualified Privilege
Defences of Defamation Privilege may be of two kinds: - a) Absolute Privilege: includes something said during - i) Parliamentary proceedings; ii) Fair and Accurate Report of Parliamentary Proceedings; iii) Judicial Proceedings; (extends only in Civil Proceedings) and b) Qualified Privilege: relates to Moral, Legal, Social duty of the person concerned
Conditions necessary for action for Defamation
Whether the harm has actually been caused is immaterial. a) the statement must be defamatory: - his reputation, honour, honesty, or integrity, his reputation in trade, business, profession or office all ruined. Intention to cause harm to reputation of a person is sufficient for an offence u/IPC. Whether the harm has actually been caused is immaterial. A
Vulgar abuses may hurt a person’s pride, yet they do not disparage/harm his reputation. It is of the essence of defamation that the words must tend to be injurious to a person’s character or reputation. A
not necessary that he should have been described by his own name b) The Statement must refer to the Plaintiff: - in an action for defamation the plaintiff must show that the defamatory statement refers to him not necessary that he should have been described by his own name sufficient if described by initials of his name or fictitious name, provided he satisfies the court that he was the person referred to. The liability here is strict. A
N. L. Shah v. Patel Maganbhai Revabhai (1984 CrLJ 1790 Gujarat HC) there was an agitation of lawyers in Gujarat in connection with appointment and transfer of CJ of HCs. On account of agitation, the lawyers ceased to participate in court proceedings and resorted to ‘satyagraha’. An editorial in a newspaper criticized as to whether it is correct on the part of the lawyers as a class to resort to strike? A
A suit was filed for defamation against the editor of the newspaper Lawyers were described as “Kajia dalal”, ie., dispute broker in the editorial. A suit was filed for defamation against the editor of the newspaper Gujarat HC held that the editorial did not refer to the complainant personally or to any other individual but referred to the lawyers as a class. It was not referable to a determinate section of lawyers, ie., lawyers who were participating in the agitation, but referred to the lawyers community as a whole. A
The thrust of the article was that the agitating lawyers should not have gone on strike. If the imputation is defamatory per se, necessary mens rea will be presumed. The maker of the statement must know that it will harm the reputation of the one concerned in the statement. A
The writer & printer of an imputation are equally guilty. The intention of the writer is immaterial also equally irrelevant that he did not mean to refer to the plaintiff at all. The question is not who aimed at but rather, who was injured; reason being that a person publishing a libel does so at his own risk. A
c) the statement must be published by the defendant: - publication shows the gist of wrong of defamation. Communication is actionable because it is an injury to the reputation of the person and reputation is made up of estimation in the eyes of others & not plaintiff’s own opinion about himself. A
It is also not necessary that the entire world must understand the libel. It is sufficient if those who know the alleged defamed person can make out that he is the person who has been defamed. The mere dictation of defamatory matter to a clerk or typist is publication of slander; dictating a letter to one’s acquaintance may also constitute defamation. A
THANK YOU Register with legaldesire.com to access more course material