Tortious Liability for Defamation

What is defamation?

Defamation can be explained as damaging someone’s good reputation. Therefore any person who commits an act that may damage the reputation of a person can be said to have committed defamation. Reputation can be termed as the opinions that others hold towards a person. Reputation is a legal right according to Article 21 and thus damage to one’s reputation is the violation of one’s absolute right.

English Law

Under English Law, defamation has been classified under 2 heads, these being Libel and Slander.

Libel: Libel is a defamatory statement that is in written form and is permanent in nature. Examples include books, articles, movies, etc. This is a criminal offence and is actionable per se.

Slander: Slander is a defamatory statement that is in verbal form and temporary in nature. This is a civil wrong and is actionable under the law of torts.

Indian Law

The Indian Law does not make any such distinction between libel and slander. Defamation under Indian Law is both a civil wrong as well as a criminal wrong. It is defined under Section 499 of the Indian Penal Code as a criminal offence and is also a tort.

It depends on the plaintiff as to what kind of action he wants to bring against the defendant. If the plaintiff wants imprisonment for the defendant, he shall initiate criminal proceedings. If the plaintiff, however, wants to sue for damages, he shall initiate civil proceedings.

We shall only discuss tortious liability in this Article.

Essentials

There are a few essentials that must be fulfilled for a person to be held liable for committing defamation. These are as follows:

A defamatory and false statement must be made

The first essential to constitute defamation is that the defendant must have made a statement that is false, and publication of that statement shall lead to injury to the reputation of the plaintiff. Whether or not a statement is defamatory depends on how a person of reasonable mind shall take it to be.

In D.P. Choudhary v. Manjulata, a statement had been published in a local daily, according to which the plaintiff had eloped with a boy during the night, on the pretext of going for night classes. The statement was found to be true, but the plaintiff had to suffer a lot and also her marriage prospects were affected due to this. Therefore the defendants were held liable.

The statement must be made with respect to the plaintiff

The defamatory statement must be made with respect to the plaintiff. What this means is that the statement made by the defendant must refer to the plaintiff. Whether the defendants had ill intent or awareness of the truth is immaterial. If a defamatory statement has been made with respect to the plaintiff (whether prima facie or innuendo), the defendants shall be held liable.

In Morrison v. Ritihie and Company, the defendants had mistakenly published a statement that the plaintiff had given birth to twins. The defendants were unaware that the plaintiff had been married for only 2 months at that time. They were held liable for defamation.

The statement must be published

The third and final essential to constitute defamation is its communication to a third party. Even though a false and defamatory statement made with respect to the plaintiff was made, if it is not communicated to a third person, it does not amount to defamation.

Thus if a defamatory article is published in a local daily, it amounts to defamation. Similarly, making defamatory statements in presence of various other persons amounts to defamation.

Therefore if a letter that consists of defamatory statements for a person is not read by a third person, it cannot amount to defamation. However, if the letter gets into the hands of a third person and they read it, without the knowledge of the defendant, the defendant cannot be held liable.

In Arumuga Mudaliar v. Annamalai Mudaliar, it was held that when a letter containing defamatory statements is sent and it gets into the hands of a third person and is read in the presence of multiple people, the defendants cannot be held liable for defamation.

Defences

Now that the meaning of defamation and also the essentials which constitute defamation have been covered, we shall now take a look at the defences through which the defendant can avoid being liable. These are as follows:

Truth

If the defamatory statement is true, it is a valid defence. That is if it has been proved that the defamatory statement that was made against the plaintiff is true, the defendant shall not be held liable. The burden of proof that the statements are true lies on the defendant.

In Radheshyam Tiwari v. Eknath, the defendant had published a series of articles. These articles were against the plaintiff. The plaintiff alleged that these were false statements. The defendant was unable to prove that the articles published were true and thus was held liable.

Bonafide Comment

The defence of bonafide or fair comment is available to the defendant if the statement made by him is fair and made in the interest of the public. The 3 essentials of this defence are:

Comment: A comment is the expression of one’s opinion. It is NOT an assertion of fact, but instead, the opinion one holds about a matter.
Fair/Bonafide: For a comment to be fair, it needs to based on true facts. It cannot be a fair comment if it has malicious intent behind it or is based on untrue facts. The comment should be made by the defendant on the basis of his opinions.
Public Interest: Administration of the current government, law, public property and places are all matters of public interest. A fair comment made about these cannot amount to defamation.
Privileges

There are instances where the law recognizes the fact that the right of free speech outweighs the right of reputation. These instances or occasions are treated as privileges. Therefore even defamatory statements made in presence of such privileges cannot amount to defamation.

Conclusion

From the above discussion, it can be concluded that defamation is an actionable offence under both civil and criminal laws. For an offence to constitute defamation, several essentials need to be fulfilled. Also one can rely on a few defences in order to avoid being held liable for the tort of defamation.

The author is Om Gupta, a first-year law student pursuing BBA-LLB from the University School of Law and Legal Studies.

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