Defamation in Tort Law

What is Defamation in Tort Law?

Meaning of Defamation: – Defamation in tort law refers to any oral or written statement made by a person that damages the reputation of another person. Defamation is a public communication which tends to injure the reputation of another. A person’s reputation is considered a valuable asset and every person has the right to protect his reputation. This right has been accepted as an inherent individual right. Defamation in tort law, means attacking another person’s reputation by a false publication (communication to a third party), tending to bring the person into disrepute.

As per Merriam–Webster Dictionary, defamation means the act of communicating false statements about a person that injure the reputation of that person.

Black’s Law Dictionary records that Defamation in tort law means offence of injuring a person’s character, fame, or reputation by false and malicious statements. According to Black Law Dictionary, defamation means “the crime of causing injury to the character, fame or reputation of a person by false and malicious statements”. If the given statement is written and published, it is a “libel”. If a defamatory statement is made, it is “defamatory”.

Section 499 of Indian Penal Code, 1860 defines defamation as, “Whoever, 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 imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.”

What are the types of defamation?

There are two ways through which we can transmit the defamatory statement. One is through slander and another one is through libel. Libel is done through text or graphic and it is permanent in nature. Defamation can also be done through slander. Here, slander is referred to as transient or non-permanent in nature.

The two types of defamation are follows: –

1. Slander: – The defamatory statement is made by spoken words or some other transitory form, whether visible or audible, such as gestures, hissing or such other things. It is addressed to the ears. It is a civil injury only and not a criminal offence except in certain cases. It is actionable only on proof of actual damage.

2. Libel: – The defamatory statement is made in some permanent and visible form, such as writing, printing, pictures and effigies. It is addressed to the eyes. It is an actionable tort as well as a criminal offence. It is actionable per se (in itself) i.e., without proof of actual damage.

What are the elements of defamation in tort law?

The elements of defamation in tort law are as follows: –

1. A Statement should be Made: – A statement can be made either by spoken or intended to be read, or by signs or by visual representation. For example, ‘A’ is asked who stole B’s diamond ring. ‘A’ point to C, whose aim is to make everyone believe that ‘C’ has stolen the diamond ring. This is defamation.

2. Statement must mention Plaintiff: – The defamatory statement must mention the person, class of persons or trustees of the company. The context may be express or implied. The person referred to in the defamation statement may be alive or dead, however, a defamation suit can be filed on behalf of the deceased person only if it is in the interest of the person filing the suit.

3. The Statement must be Defamatory: – Defamation begins with someone making a statement, and any person who makes a defamatory statement can be held liable for defamation. A defamatory statement diminishes the good opinion the good opinion others have about the person and tends to view others with a sense of hatred, ridicule, fear or dislike. Abusive language can also be defamatory, for example, calling someone a hypocrite or a habitual alcoholic.

4. Intent of the Wrongdoer: – The person making the defamatory statement knows that there is a high probability of others believing the statement to be true and that it will hurt the reputation of the person defamed.

5. Statement must be False: – Defamatory statement must be false because truth is a defence to defamation. If the given statement is true then there is no defamation because the statement being false is an essential component of defamation in tort law. The law does not punish anyone for speaking the truth, even if it is ugly.

6. Statement must be Published: – In order to be defamatory, the statement must be published. The statement must be reported to the third party. Any statement written in a personal diary or sent as a personal message does not amount to defamation, but if the sender knows that it is likely that a third person may read it, it amounts to defamation.

7. Third Party considers the Defamation to be True: – Others in the society believe that the defamatory thing said about the plaintiff is true.

8. Statement must cause Injury: – The statement made must cause harm or injury to the plaintiff in some way. For example, the plaintiff lost his job because of the statement made.

Measures of Damages in Defamatory Publication

The Court must take the following things into consideration while deciding the question of compensation in a defamatory publication: –

1. The conduct of the plaintiff.
2. His position and standing in society.
3. The nature of libel.
4. The absence or refusal of any retraction or apology of libel.
5. The whole conduct of the defendant from the date of publication of libel to the date of the decree.

Defamation vs. Freedom of Speech

The defamation law acts as a counter-balance to the constitutional right to freedom of expression [guaranteed by Article 19(1)(a) of the Constitution of India]. This article has been widely read through judicial interpretations to include “freedom of the press”. But this freedom is not absolute, as Article 19(2) allows the state to make laws that place “reasonable restrictions” on such freedoms. The restrictions are wide-ranging, including circumstances, among other things, in national interest; for maintaining public order; or in relation to contempt of court, or defamation.

The exemption given under Article 19(2) allows prosecution of both civil and criminal defamation in India with criminal provisions (under Sections 499 and 500 of the Indian Penal Code). The offense of defamation occurs when a person “makes or publishes” something about another person with the intention, knowledge of, or reason to believe that it would harm the reputation of the other.

An allegation “damages” a person’s reputation if it lowers the person’s character or credit. A dead person may also be affected if an imputation would have caused damage to the person’s reputation, if they were alive, and intended to hurt that dead person’s family. The allegations relating to a company are also defamatory.

What are the defences available against defamation in tort law?

The defences available against defamation in tort law are as follows: –

1. Justification by Truth: – Truth is a perfect defence. If the statement given is genuine then it does not constitute defamation. The burden of proof is on the defendant who is claiming the defence. For example, ‘X’ makes a statement in an interview about ‘Y’ indulging in gambling and ‘Y’ files suit against him. If ‘X’ is able to justify or prove it, then Y’s claim will be rejected. In Radheshyam Tiwari vs. Eknath, the respondent was unable to prove the facts published by him and hence was held liable for defamation.

2. Fair and Bonafide Comment: – Nothing is defamatory which is a fair remark in a matter of public interest. The respondent can take advantage of this defence when he has made only reasonable remarks in a matter of public interest. This defence is based on public policy that gives everyone the right to comment and criticize without malicious intent the work or activities of public offices, actors, writers and athletes, as well as those whose careers are based on public attention. Any fair and honest opinion on a matter of public interest is also protected, even if it is not true. There is no definition of a matter of public interest. Generally, a matter of public interest is a topic that attracts public attention or is open to public discussion or criticism. Duncan and Neill state the main principles related to the defence of fair commentary as follows: –
   1. The comment should be on a matter of public interest;
   2. The comment should be based on facts;
   3. The comment, although it may contain presumptions of fact, must be recognizable as a comment;
   4. The comment must satisfy the following objective test; could any man honestly express that opinion on the proved facts;
   5. Even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.

3. Fair Comment and Justification Distinguished: – The argument for unbiased remarks is available only with respect to both facts and opinions, the truth of the remarks need not be proved. When justification is requested with respect to matters of opinion, the defendant must prove not only that he honestly held the views expressed, but also that they were accurate.

4. Absolute Privilege: – It gives full right to the person to make a statement, even if it is defamatory, freeing the person from liability arising out of a defamation suit. Generally, full privilege waives defamatory statements given that: –
   1. During judicial proceedings;
   2. By government officials;
   3. By legislators during debates in Parliament;
   4. During political speeches in parliamentary proceedings; and
   5. Communication between spouses.

5. Qualified Privilege: – When the person making the statement has a legal, social or moral duty to make it and the listener is interested in it, the defence of qualified privilege is permitted. The following are examples where this defence can be taken advantage of: –
   1. Reference for a job applicant;
   2. Answering the police inquiries;
   3. A fair criticism of a published book or film in a review;
   4. Communication between parents and teachers;
   5. Communication between employers and employees;
   6. Communication between traders and credit agencies are all relationships that are protected by qualified privilege.
6. Statement of Opinion: – If the statement made is an opinion and is not a statement of fact, it cannot be defamatory. For example, if a person says that he finds an actor unattractive, that statement is simply an opinion. However, if he says that the actor is a drug addict or has had multiple affairs, that would be a defamatory statement. If the actor loses his job as a result of this statement and the statement made is false, then there will be a case of defamation.

7. Consent: – If the plaintiff agrees with the statement made, there is no defamation. The plaintiff’s consent gives the publisher full privileges, it is immaterial whether the plaintiff knew that the information accepted for publication was defamatory or not. Consent may be given by words or actions. If consent is obtained fraudulently or from a person of unsound mind, it shall be invalid.

8. Censure passed in Good Faith by the Person having Lawful Authority: – It is not defamation of a person having over another authority either conferred by law or arising out of the lawful contract made with another to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. For instance, a judge censuring the conduct of a witness or a banker censuring the cashier of his bank or, an engineer submits a report to the municipality that the contractor had taken away the stock of metal. If the engineer has made the report in good faith, then he will not be liable for defamation.

6. The Accusation made in Good Faith to the Authorized Person: – An accusation made in good faith against a person who has lawful authority over that person is not defamation. It is not necessary for the person making allegations to prove that his allegations were true but he must prove that there were reasonable grounds for him to believe in the allegation. If a person signs a petition to the chairman of Lucknow Development Authority against defective construction of houses, along with several other residents of the locality, he can say to have acted in good faith.

Difference Between Civil Defamation and Criminal Defamation

Difference between Civil Defamation and Criminal Defamation is as follows: –

S.No.	Civil Defamation	Criminal Defamation
1.	It is a civil wrong.	It is a criminal offence, which is bailable, non-cognizable and compoundable.
2.	It is based on tort law – an area of law which has no statutes to define wrongs and relies completely on case laws to define wrongs.	It has been defined as an offence under Section 499 and the punishment for the same is given in Section 500 of the Indian Penal Code, 1860.
3.	It provides redressal to the plaintiff by awarding damages in the form of monetary compensation from the accused.	It seeks to punish the offender and send a message to the society not to commit such an offence.
4.	Damages are awarded on the basis of probabilities.	The offence of defamation has to be established beyond a reasonable doubt.
5.	It is generally a slow process to seek relief in India.	The plaintiff can move to criminal court and ask the offender to take cognizance of his complaint.
6.	A person found guilty can be penalized only by making him pay damages.	A person found guilty can be punished with imprisonment up to two years or fine or with both.

Case Laws under Defamation in Tort Law

1. Shreya Singhal vs. Union of India on 24 March, 2015

Facts of the case: – The petitioners challenged the validity of Section 66A of the Information Technology Act (ITA), saying it was not a reasonable restriction on the freedom of speech and expression guaranteed under Art. 19(1)(a) of the Constitution. They argued that the impugned section was unconstitutional as it provides protection against annoyance, inconvenience, insult, injury or criminal intimidation which is not covered in Article 19(2).

Judgment of the Case: – The court found Section 66A of the ITA ambiguous and invalidated it on the ground that it violated the right to freedom of speech and expression.

2. Newstead vs. London Express Newspapers Ltd [1940] 1 KB 377

Facts of the case: – The defendants published an article stating that ‘Harold Newstead, a Camberwell man’ had been convicted of bigamy. The story was true of Harold Newstead, a Camberwell barman. The action for defamation was brought by another Harold Newstead, the barber.

Judgment of the case: – As the words were considered to be understood as referring to the plaintiff, the defendants were liable.

3. Subramanian Swamy vs. Union of India
   1. Dr. Swamy challenged the constitutionality of the criminal defamation law in India. A two-judge bench of the Supreme Court comprising Justices Dipak Misra and Justice P. C. Pant approved the Constitutional validity of sections 499 and 500 (criminal defamation) in the Indian Penal Code, highlighting that an individual’s fundamental right to live with dignity and reputation “cannot be ruined solely because another individual can enjoy his freedom”.
   2. The presiding noted that “the right to freedom of speech and expression provided to people is not an absolute right but is absolutely sacrosanct” and has to be “balanced with the right to reputation” which is secure under Article 21 of the Indian Constitution” and it cannot be allowed to be crucified at the altar of the other’s right of free speech.
   3. The court held that to protect individual dignity of life and reputation it is important to criminalize defamation and it comes under the “reasonable restriction” on the fundamental right of free speech and expression. Therefore, the criminal provisions of defamation are constitutionally valid and do not conflict with the right to free speech.