tort for defamation

8/18/2019 Tort for Defamation

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University Of Petroleum and Energy Studies

College of Legal Studies

BBA.LLB(Hons.)

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SESS#O$% &A$UA!'% MA'

O!S O EAMAO$

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#ntrodu/tion*%

“Balance between one person’s right to freedom of speech and another’s right to protect their

good name.”1

The tort of defamation is one that has been heavily contested, developed, and detailed. It is an

admixtre of case law, stattory definitions, legislations, and the play of society that has left it

riddled with complex principle differences across states, and harrowing sbstantive and

procedral difficlties. The advent of the Internet as a new mode of pblication has frther

worsened the sitation.

!lthogh no exhastive definition of defamation emerges from common law, a broad

meaning of defamation mst be attached to it. "everal Indian cases # ta$e defamation as a false

and damaging statement, while "almond has defined it as a wrong that consists in the

publication of a false and defamatory statement respecting another without lawful

justification.% ! variety of other definitions have been provided, all of which may avoid

certain difficlties, bt may provide others.& Ths, a stattory definition is best avoided.'

(or the prpose of this pro)ect, the researchers are tili*ing the following definition+

Defamation is that which tends to injure reputation; to diminish the esteem, respect, goodwill

or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant

feelings or opinions against him6 .

0e /onstituents of t0e ort of efamation*%

egardless of whether a defamation action is framed in libel or slander, the plaintiff mst

1 http://www.legalservicesindia.com/article/article/defamation!"!#!.html . -alhotra, eha, #%+/#+

10

2 Paras Dass son of Jugal Kishor e v Shri Paras Dass 1969 Delhi LT 241 (Delhi High

Court); MC Verghese v T.J. Poonam (1969) 1 SCC 37 (Supreme Court of I!i")#

3 S"lmo!$ % &$ S'L*D+S L'& , T-TS$ (.th e!#$ 1934)

4 /#itter$ L'& , D0,''TI* '*D 'LICIS -S0CTI*$ (11th e!#$2.)

"r5ei De"5i$ T-T L'&$ (6th e!#$2.)

6 8L'C +S L'& DICTI*'-:$ (9th e!#$29)

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always prove that the words, pictres, gestres etc are defamatory. 2ally, the plaintiff mst

show that they refer to him. (inally he mst also prove that they were maliciosly pblished.

These are the three essential elements in a defamation action.

lements of 3efamation

0e statement must 1e defamatory

!ny imptation which exposes one to disgrace and hmiliation, ridicle or contempt, is

defamatory. It cold be made in different ways as in it cold be oral, in writing, printed or by

the exhibition of a pictre, effigy or state or by some condct. !s 4ord !t$ins 5 said “The

2estion, then, is whether the words in their ordinary signification are capable of being

defamatory . . 6dges and text boo$ writers ali$e have fond difficlty in defining with

precision the word 7defamatory7.The conventional phrase exposing the plaintiff to hatred,

ridicle, or contempt is probably too narrow”. 8hether a statement is defamatory or not

depends pon how the right thin$ing members of society the society are li$ely to ta$e it. 9et

the term right+thin$ing members of society is highly ambigos. The standard to be applied‟

is that of a right+minded citi*en, a man of fair average intelligence, and not that of a special

class of persons whose vales are not shared or approved by the fair minded members of that

society generally. If the li$ely effect of the statement is the in)ry to the plaintiff’s reptation,

it is no defence to say that it was not intended to be defamatory. 8hen the statement cases

anyone to be regarded with feelings of hatred, contempt, ridicle, fear, disli$e, or disesteem,

it is defamatory. In 3.:. ;hodhary v. -an)lata


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file a sit for defamation. (or instance in ;assidy @ 3aily -irror ewspapersA the newspaper

pblished a pictre of a lady and the race horse owner with the caption nderneath, “-r. -.

;orrigan, the race +horse owner and -iss whose engagement has been annonced”. The

newspaper was held liable in a sit that said that the lady was the lawfl wife of -r. ;orrigan

and complained that the words sggested that she had been living with him in immortality.

The liability of the defendants rested on their failre to ma$e independent in2iry. This also

brings forth another aspect of this tort that intention to defame is not necessary and if the

words are considered to be defamatory by the persons to whom the statement is pblished,

there is defamation.

0e efamatory statement must refer to t0e /laimant*%

The plaintiff has to prove that the statement which is claimed to be defamatory actally

refers to him?her. It is immaterial that the defendant did not intend to defame the plaintiff,

if the person to whom the statement was pblished cold reasonably infer that the

statement referred to the plaintiff, the defendant is nevertheless liable. In >lton ;o. @

6ones1/ 3efendant printed an article that accsed a man named !rtems 6ones of adltery.

In the article, !rtems was a chrchwarden who resided at :ec$ham. :laintiff was a

lawyer named Thomas !rtems 6ones of orth 8ales. :laintiff was not a chrchwarden

and did not reside at :ec$ham. 3efendant never heard of :laintiff and had sed the name

!rtems 6ones as a fictitios name. :laintiff prodced witnesses who said they had read

the article and thoght that it referred to :laintiff. 8hen the statement thogh generally

referring to a class can be reasonably considered to be referring to a particlar plaintiff,

his action will scceed. In (an v. -alcolmson11, in an article pblished by the

9 http://www.justcite.com/Document/b07n27m+aaa/cassidyvdailymirrornewspapersltd .

8ustcite, 0##1!6

1 http://www.casebriefs.com/blog/law/torts/torts$eyedtoepstein/defamation/ehultoncovjones/ .

;ase Briefs, #/+/%+10

11 http://www.eboo$sread.com/authorseng/johnwilliamsalmond/thelawoftortsatreatiseon

theenglishlawofliabilityforcivilinjuries24"/page3#thelawoftortsatreatiseontheenglish

lawofliabilityforcivilinjuries24".shtml . S"lmo!$ % &$ S'L*D+S L'& , T-TS$ 2316

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defamation in ngland dates bac$ to the middle ages 1', in the C"!, defamation in an ni2e

form started to ta$e form arond the time of the !merican evoltion, with the trial of 6ohn

:eter Denger in 15%&.10 This case laid down trth as an absolte defense against defamationE

an important defense not introdced by nglish law till before. This case mar$ed the

beginning of C" defamation law as an entity distinct in its identity from nglish 4aw.

efen/es for ort of efamation*%

rut0*%

In a civil action for defamation, trth is a complete defence. >owever nder criminal law,it mst also be proved that the imptation was made for the pblic good. Cnder the civil

law, merely proving that the statement was tre is a good defence the reason being that

“the law will not permit a man to recover damage s in respect of an in)ry to a character

which he either does no or oght not to possess”

Fften the most straightforward defence of defamation is to prove that the commnication in

2estion stated the trth. This will reslt in complete and absolte exoneration for the

defendant. ven if the defendant had malevolent intent when commnicating the information,

and regardless of whether it was in the pblic’s interest to ma$e it $nown, the veracity of a

claim will still provide a defence.

The brden of proof rests solely pon the defendant. The information that cases the

defamation, if damaging, will often be assmed to be ntre ntil the defendant proves

otherwise.

!n exception to sing trth as a defence is if the information concerned spent criminal

convictions, and the claimant can show that the defendant acted with pernicios intent against

1 /#/# /ee!er$ The History of the Law of Defamation i S0L0CT 0SS':S I* '*


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the claimant. This wold contradict the )stice system in its attempts to rehabilitate offenders,

who after having ta$en their pnishment still have the offence sed against them15.

Pu1li/ation on matter of Pu1li/ #nterest23*%

It is a defence to a defamation claim if the defendant can show that their comments were

made regarding a matter which is of pblic interest, and that they reasonably believed

that pblishing the statement was in the pblic interest.

This defence replaces G2alified privilegeG with the passing of the 3efamation !ct in

#/1%, and can be sed by someone who finds themselves in a position in which it seems

a necessity, either moral, legal, social, to impart certain information to another who has

an interest. This covers sitations where the information is false bt may not seem so at

the time to the person accsed of defamation, and that they had a dty to report it before

going into the process of verifying the information.

Privilage24*%

'Aolute rivilege

;ertain types of commnications are absoltely privileged. !bsolte privilege means that the

person ma$ing the statement has the absolte right to ma$e that statement at that time, even if

it is defamatory. In other words, the person ma$ing the defamatory statement is immne from

a defamation lawsit.

In general, absolte privilege exempts persons from liability for potentially defamatory

statements madeH

• dring )dicial proceedings

17 https://www.lawontheweb.co.u$/legalhelp/defencesofdefamation. 4awonthe8eb, #/+/%+10

1. Supr" ote 17

19 http://www.nolo.com/legalencyclopedia/privilegesdefensesdefamationcases.html . *5&5, 0##1!6

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• by high government officials

• by legislators dring legislative debates

• dring political broadcasts or speeches, and

• in between sposes.

"o, if someone ma$es an otherwise defamatory statement dring his?her testimony at a trial,

that statement is absoltely privileged, and that person cannot be sed for defamation. Bt if

that person ma$es a different allegedly defamatory statement in the hallway of the corthose

dring a brea$ in the trial, he?she cold be sed for defamation becase the statement wasmade dring a )dicial proceeding.

5ualified Privilege

Fther types of commnications are sb)ect to what is called a 2alified privilege, meaning

that the person ma$ing the allegedly defamatory statement may have had some right to ma$e

that statement.

If a 2alified privilege applies to a statement, it means that the person sing for defamation

mst prove that the person who made the defamatory statement acted intentionally,

rec$lessly, or with malice, hatred, spite, ill will or resentment, depending on yor state’s law.

6st some of the statements for which a 2alified privilege applies are

• statements made in governmental reports of official proceedings

• statements made by lower government officials sch members of town or local boards

• citi*en testimony dring legislative proceedings

• statements made in self+defense or to warn others abot a harm or danger

• certain types of statements made by a former employer to a potential employer

regarding the employee, and


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• pblished boo$ or film reviews that constitte fair criticism.

The employer review 2alified privilege is particlarly noteworthy. In order to avoid

defamation claims, some employers these days refse to confirm any details abot former

employees other than their dates of employment. Bt certain types of negative statements

might fit in nder the 2alified privilege category, If, for example, the employer fired the

employee for theft, a statement abot that to a potential employer might 2alify as a

statement made to warn others abot a harm or danger i.e., the danger of hiring someone

who might steal from yoJ.

Suggestions for #ndia*%

8e had fond two complications in his attempt to recommend a defamation system for India.

1. 3efamation is an extremely complex tort, with several )risprdential difficlties and

lac$ of clarity with respect to its treatment,#/

#. Both systems, that is, the !merican 7free speech’ and C= 7plaintiff+centric’ systems of

defamation law are riddled with problems on several levels, and assessing a sitable

model for India is a complex problem as societal factors play in on a mch higher

level. (rther, both models are constantly evolving, and their position remains forever

nclear.#1

(rther, the Indian defamation law is based primarily on common law. >owever, it varies

significantly as well when compared to modern defamation law of the C=. India ma$es no

distinction between 4ibel and "lander ##. !lso, defamation is both a civil wrong and a criminal

offence, as has been stated before. Indian case law indicates that the meaning of defamation

incldes several societal factors li$e 2estioning one’s professional capabilities#%, Indian

2 Street$ TH0 L'& , T-TS$ (11th e!#$23)#

21 "r5ei De"5i$ T-T L'&$ (6th e!#$2.)

22 /#itter$ L'& , D0,''TI* '*D 'LICIS -S0CTI*$ (11th e!#$2.)

23 Mitha $ustom%i v &usserwan%i &owro%i 'I- 1941 8om 27. (8omA" High Court)


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abses#&, calling someone a goonda02,etc. 3efenses li$e provision of apology are not easily

accepted and the wordings of the I:; also bring in problems, for example, the definition of

the word 7infirmity’.#0 (rther cases li$e . ajagopal v +tate of .*.09 indicate the

controversy arond the isse, and the government’s relctance to deal with sensitive isses

srronding defamation of pblic officials and matters of pblic importance.

In light of these additional complexities along with the initial problems stated in the first

chapter, we researchers feels that bringing abot changes in the Indian defamation wold

re2ire the creation of a ni2e defamation law that sits the Indian society rather than

simply emlating nglish or !merican lawE a law that also covers the gaping hole in Indian

defamation law concerning Internet defamation. In light of these factors, the researcher

proposes certain changes that cold impart clarity to the Indian scenario+

1. Classifi/ation of defamation as only a /ivil tort. K 3e to the advent of the Internet,

and the need for an Indian position for Internet defamation, limiting defamation to the

civil sphere of law wold be prdent, as a defendant in an Internet defamation case

cold end p in )ail simply for providing a form to pblish possibly libellosJ

statements on the Internet. ;riminal 3efamation severely hampers freedom of

speech, and defamation in itself is essentially between two individals. Ths

involvement of the "tate cold lead nnecessarily high pnishments, abse by

inflential persons, and lac$ of any compensation for the victims.#


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parties concerned.#A (rther, a codified civil law on defamation might, as per the

researcher, introdce more e2ity in to the crrent sitation, and prevent sitations

li$e the case of imes *ow v 8ustice .


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3espite having given these recommendations, the researcher mst warn that the changes

be made careflly and in a gradal manner, as one mst not forget the sheer complexity of

both defamation law, as well the ni2e Indian society.

Con/lusion*%

It is sbmitted that in this research paper researchers have noted three points. (irstly, that

defamation is a tort which varies greatly in theory, application, and principles. India’s

position is a confsed one, a mixtre of archaic stattes and case law. Ths, the main prpose

of sggesting a system for India to follow has been difficlt to implement, and the researcher

has proved his opinion on the isses to be dealt with and how to deal with them. The

researcher believes that India’s law mst develop a ni2e system that wor$s for its society

and media, while absorbing the positive aspects of defamation law from abroad, in order to

attain the central goals of )dicial stability and clarity.

tort for defamation

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