FOR THE STUDENT OF LAW DEFEMATION

1. DEFAMATION
DR. MAYURAKHI SONOWAL

2. • Defamation is injury to the reputation of a person
Dixon v. Holden , (1869) 7 Eq. 488.
A man’s reputation is his property, and if possible, more
valuable, than other property
Winfield: Publication of statement which tends to lower a
person in the estimation of right thinking members of society
generally or which makes them shun or avoid that person.
Note: Defamation can both a civil and a criminal wrong. A
person can institute criminal proceedings against the
wrongdoer or he can sue him in a civil action for damages in
tort for the injury he suffered.

3. English Law:
Libel and Slander
Libel is representation made in some permanent form, e.g.,
writing,
printing, picture or statute.
Slander is the publication of a defamatory statement in a
transient
form. Examples of it may be spoken by words or gestures.
Indian Law:
Criminal law in India does not make any such distinction between
libel and slander. Both libel and slander are criminal offences under

4. Essentials of Defamation
1. The statement must be defamatory and false;
2. The said statement must refer to the plaintiff;
3. The statement must be published.

5. 1. The Statement Must Be Defamatory And False
Defamatory statement: Depends upon how the right thinking
members of the society are likely to take it.
Defamatory statement:
If most citizen would shun or avoid a person in
consequence of the statement
If a substantial and respectable proportion of society would
think less of a person
When a statement causes anyone to be regarded with
feelings of hatred, contempt, ridicule, fear, dislike, it is
defamatory.

6. South Indian Railway Co. v. Ramakrishna LLR (1890) 13
Mad 34
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 wrong (or 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. 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

7. The Innuendo [a statement which indirectly
suggests that someone has done something
immoral, improper, etc.]
Sometimes, the statement may prima facie be innocent but because
of some latent or secondary meaning, it may be considered to be
defamatory
The plaintiff wants to bring an action for defamation, he must prove
the latent or the secondary meaning, i.e., the innuendo, which makes
the statement defamatory
Example: X is an honest man and he never stole my watch may be a
defamatory statement if the persons to whom the statement is made

8. Intention to defame is not necessary.—When the words are
considered to be defamatory by the persons to whom the statement is
published, there is defamation, even though the person making the
statement believed it to be innocent. It is immaterial that the defendants
did not know of the facts because of which a statement otherwise
innocent, is considered to be defamatory.

9. Cassidy v. Daily Mirror Newspapers Ltd (1929) 2 K B 331
Mr. Cassidy or Mr. Corrigan was married to a lady named Mrs. Cassidy or Mrs.
Corrigan. She was a lawfully wedded wife of Mr. Cassidy who did not live with
her with occasionally came to live with her in her flat. The Daily Mirror
Newspaper published in their newspaper a photograph of Mr. Cassidy with
Miss 'X' and underneath the photograph, it was written that the racehorse
owner (Mr. Corrigan) and Miss. 'X' are getting engaged.
The statements made by the defendant were obviously not true. Mrs. Corrigan
sued the daily mirror newspaper for libel alleging that the innuendo was that
Mr. Corrigan wasn't her husband and he lived together with her in immoral
cohabitation. Due to this a bad reputation was formed of her in front of her
acquaintances and other people because of the publication of the defamatory
statement. Held that the innuendo was established.

10. 2. The said statement must refer to the plaintiff
In an action for defamation, the plaintiff has to prove that the statement which
he complains referred to him.
It is immaterial that the defendant did not intend to defame the plaintiff
Hulton Co. v. Jones (1910) A C 20
The defendants published a fictional article in their newspaper, Sunday
Chronicle, written by the Paris correspondent, purporting to describe a motor
festival at Dieppe. In the article aspersions were cast on the morals of a
fictitious person-Artemus Jones. A real person of the same name brought an
action for libel. His friends, who read that article, swore that they believed that
the article referred to him. The defendant was held liable.[For such situation
the defendant must prove that the words which had been published by
him was published innocently, and that soon as soon as came to know
that these words published by him resulted in defamation of the plaintiff,
an offer of amends (a suitable correction and an apology)was made]

11. Defamation of a class of persons: Defamation is an injury to
a man’s reputation, which is a right in rem. By its virtue,
reputation for the purpose of the law of torts is that of an
individual and not a class of persons.
When the words refer to a group of individuals or a class of
persons, no member of that group or class can sue unless he
can prove that the words could reasonably be considered to
be referring to him.
If a man wrote that all lawyers were thieves, no particular
lawyer could sue him unless there was something to point to
the particular individual.

12. Defamation of the deceased: —Defaming a deceased person
is no tort. Under Criminal Law, however, it may amount to
defamation to impute anything to a deceased person, if the
imputation would harm the reputation of that person, if living,
and is intended to be hurtful to the feelings of his family or
other near relatives.[Section 499, Explanation, I PC]

13. 3. The statement must be published
Publication means making the defamatory matter known to some
person other than the person defamed
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.
Communication between husband and wife
In the eyes of law, husband and wife are one person and the
communication of a defamatory matter from the husband to the
wife or vice versa is no publication

14. T.J. Ponnen v. M.C. Verghese A I R 1970 S C 1876
Issue: “question which had arisen was whether a letter from the husband to
the wife containing defamatory matter concerning the father-in-law (wile’s
father) could be proved in an action by the father-in-law against his son-in-
law.
Facts: T.J. Ponnen wrote a number of letters to his wife, Rathi, containing
some defamatory imputations concerning Rathi’s father, M.C. Verghese.
Rathi passed on those letters to her father. The father-in-law launched a
prosecution against his son-in-law complaining the defamatory matter
contained in those letters. Ponnen contended that the letters addressed
by him to his wife are not, except with his consent, admissible in evidence
by virtue of Section 122, Indian Evidence Act, and since the wife is not
permitted to disclose those letters, no offence of defamation could be
made out.

15. Observation given by the Supreme Court (T.J. Ponnen v. M.C.
Verghese ):
The Supreme Court reversed the decision of the Kerala High
Court. It was held that even though in view of Section 122,
Indian Evidence Act, the complainant cannot seek to support his
case upon the evidence of the wife of the accused, but if the
communication between the husband and the wife have fallen to
his hands, the same can be proved in any other way.

16. Defences
1. Justification or Truth,
2. Fair comment,
3. Privilege, which may be either absolute or qualified

17. 1. Justification or Truth,
In a civil action for defamation, truth of the defamatory matter is
complete defence
Criminal law: Truth + Public benefit (Exception 1 of Sec. 499 of
IPC)
Radheshyam Tiwari v. Eknath A I R 1985 Bom 285
The defendant, who was editor, printer and publisher of a
newspaper published a scries of articles against the plaintiff, a
Block Development Officer, alleging that the plaintiff had issued
false certificates, accepted bribe and adopted corrupt and illegal
means in various matters. In an action for defamation, the
defendant could not prove that the facts published by him were

18. 2. Fair Comment
For this defence to be available, the following essentials are
required :
i. It must be a Comment, i.e., an expression of opinion rather
than assertion of fact;
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. And
iii. The matter commented upon must be of public interest

19. Fair Comment: For instance, after reading A’s book, B
says ‘it is a foolish book.’ ‘It is an indecent book.’ ‘A’
must be a man of impure mind.’ These are
comments.
But if he says, ‘I am not surprised that A’s book is foolish
and indecent and he is weak and of impure mind.’ In
former case, it is a comment and in the latter case , it
is a statement of fact.

20. 3. Privilege
There are certain occasions when the law recognises that
the right of free speech outweighs the plaintiff’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 kinds : ‘Absolute’ privilege and
‘Qualified’ privilege.

21. Absolute Privilege
the public interest demands that an individual’s right to reputation
should give way to the freedom of speech. Absolute privilege is
recognised in the following cases :
(i) Parliamentary Proceedings
Article 105 (2) of our Constitution provides that : (a) statements
made by a member of either House of Parliament in Parliament,
and
(b) the 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).

22. (II) JUDICIAL PROCEEDINGS
No action for libel or slander lies, whether against judges, counsels,
witnesses, or parties, for words written or spoken in the course of any
proceedings before any court recognised by law, even though the
words written or spoken were written or spoken maliciously, without any
justification or excuse, and from personal ill-will and anger against the
person defamed. Such a privilege also extends to proceedings of the
tribunals possessing similar attributes. Protection to the judicial officers in
India has been granted by the Judicial Officers Protection Act, 1850.
The counsel has also been granted absolute privilege in respect of any
word, spoken by him in the course of pleading the case of his client. If,
however, the words spoken by the counsel are irrelevant, not having any
relevance to the matter before the court, such a defence cannot be
pleaded.

23. State communications are also privileged. Statements made by
one government officer to another in the course of official duty
are privileged communications. So are the statements made by
the ministers in the course of their official duty.

24. Qualified Privilege
To avail this defence, the defendant has to prove the following
two points :
1. The statement was made on a privileged occasion, i.e., it
was in discharge of duty or protection of an interest; or
2. It is a fair report of parliamentary, judicial or other public
proceedings.
3. The statement was made without any malice
Criminal Law: Sec. 499, I.P.C has the same provision

25. Examples:
a. A, a shopkeeper, says to B, who manages his business,
"Sell nothing to Z unless he pays you ready money, for I
have no opinion of his honesty." A is within the exception, if
he has made his imputation on Z in good faith for the
protection of his own interests.
b. A, a Magistrate, in making a report to his own superior
officer, casts an imputation on the character of Z. Here, if the
imputation is made in good faith and for public good, A is
within the exception."

26. Burden of Proof
The burden of proof lies on the plaintiff
For defence it lies on the defendant
In case of defamatort statement is repeated i.e. published
again and again, a fresh cause of action arises every time.

27. Remedies for Defamation
Damages
Injunction
Defamation is both a civil and criminal wrong. Therefore, a
person aggrieved by defamation can file a plaint in the civil
against defamation as tort or can file a complaint under IPC.
Section 500 of Ipc grants a punishment of 2 years of
imprisonment along with fine for defamation of a person.
However the amount of fine or damages depends upon
case to case.