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torts:defamation_tort

Defamation under Law of Torts

According to Winfield Defamation is the publication of a statement which reflects on a person's reputation and which tends to lower a person in the estimation of right thinking members of society generally, or, which tends to make him shun or avoid that person . This definition is wider than those, which define, defamation to mean the publication of a statement which tends to bring a person into hatred, contempt or ridicule.

Imputations of insincerity or insolvency etc., which may arouse only sympathy or pity in the minds of reasonable people, are also covered by the above definition.

Essentials of Defamation

The statement or words must be :

  1. False
  2. Spoken (slander) or written (libel)
  3. Defamatory and
  4. published.

False

The words used must be false. In fact, truth is a clean justification. It must be shown that the imputation was false and malicious.

Spoken or written

The words may be spoken as in slander or may be in writing i.e., in a permanent form as in libel. Any writings, publication in a newspapers, sky writing, cinematograph film, etc., are covered under libel.

The leading case is Youssoupoff V. M.G.M. Pictures. The defendant D, produced a film named “Rasputin, the mad monk”. In that film, one princess “Natasha” had been raped by Rasputin, the mad monk. The princess Irina of Russia, the wife of prince Youssoupoff (plaintiff)claimed compensation on the ground that it was clearly understood that the reference was to prince Irina. The jury awarded 25,000 pounds as compensation and this was confirmed by the Court of Appeal.

Statement must be defamatory and refer to the plaintiff

The test is whether the words used tend to lower the plaintiff in the estimation of the right thinking members of the society generally (Winfield). If the words expose a person to contempt, ridicule or hatred or injures his profession or trade, or makes others shun or avoid his company, then the words are defamatory e.g. imputation of unchastity to a woman. The plaintiff must prove that the defamatory words have a reference to him. Intention is not material.

If the reference is to a Class or group of persons, then the plaintiff must prove that the reference is to himself. A writes that “lawyer are thieves”, no particular lawyer can sue (Eastwood V. Holmes).

When words have a latent meaning or a double meaning (pun), then it is defamatory, i.e, a remark with double meaning. Sometimes it happens that a statement does not convey any defamatory imputation in its natural meaning, but it may convey a defamatory owing to the particular circumstances and these particular circumstances by the plaintiff, is called innuendo. Leading Cases.

  • Mrs. Cassidy V. Daily Mirror.
  • Tolley V. Fry and Sons.

The words must be published

Publication is an essential requirement. Whether a statement tends to lower a person's reputation is decided by the standard of a reasonable man. Publication means publishing a particular item of news or information to a person, other than the person to whom it is addressed.

  1. If A writes to B, defaming B and sends the letter by registered post, there is no publication and therefore A is not liable.
  2. If A writes a post-card defaming B, and sends by post, there is publication if an inquisitive postman reads and publishes. A is liable in such a case. (Robinson V. Jones)
  3. If A dictates to his steno defaming B and if the steno pub- lishes it, there is publication.
  4. In Huth V. Huth, A sent a defamatory letter in an unsealed cover to B. B's butler, without authority opened and read it, held, that there was no publication as B had no authority to see.

Differences between Libel and Slander

English Law

Defamation occurs when the defendant makes a defamatory statement of and concerning the plaintiff with publication to a third party. In matters of public concern, there are additional requirements of fault and falsity. Damages only need to be proven in certain types of slander cases; otherwise, damages are presumed.

  1. Slander (Defamatory statement): A statement that will adversely affect the plaintiff’s reputation. The statement must be either alleging factual information or stating an opinion that is likely to be interpreted as having a factual basis (e.g., merely calling someone mean and nasty would not generally be considered a defamatory statement).
  2. Libel(Publication): For publication to occur, someone other than the plaintiff (a third party) must hear or read the defamatory statements. Intent is not a factor; publication can occur through the defendant’s negligence.
LibleSlander
A libel is a defamation which has been caused in permanent form i.e., in written or printed form.Slander is a defamation in a transient form i.e., by speech or by gestures.
It is a criminal offence as well as a civil wrong. It is a civil wrong only but the words may be blasphemous, seditious or obscene
It is an infringement of a right and there is no need to prove the actual damage to sustain an action. A slander is actionable only when special damage can be proved to have been its natural consequence, or when it conveys certain imputations.

Exception for actionable slander

  • Imputation of criminal offence to someone.
  • Imputation of contagious or an infectious disease to the plaintiff, which has the effect of preventing other form associating with the plaintiff.
  • Imputation that of a person is incompetent, dishonest or unfit in regard to office, profession calling trade etc.
  • Imputation of unchastety or adultery to any woman.

Indian Law

It has been noted above that under English criminal law, a distinction is made between libel and slander. There, libel is a crime but slander is not. Slander is only a civil wrong in England. Criminal law in India does not make any such distinction between libel and slander. Both libel and slander are criminal offences under Section 499, I.P.C. It has also been noted above that though libel and slander both are considered as civil wrongs, but there is a distinction between the two under English Law. Libel is actionable per se, but in case of slander, except in certain cases, proof of special damage is required. There has been a controversy whether, slander like libel, is actionable per se in India, or special damage is required to be proved, as in England.

The weight of the authorities is for discarding between libel and slander in India and making slander and libel both actionable per se. In Parvathi v. Mannar, it was held by Turner C.J. and Muthuswami Ayyar, J. that English Law which, except in certain cases, requires the proof of special damage in the case of oral defamation, being founded on no reasonable basis, should not be adopted by the courts of British India. They also quoted certain authorities where it was observed that the law of England was itself unsatisfactory.

Matters of public concern

It can either involve defamatory statements made about public figures and officials (e.g., famous actors or politicians) or private figures regarding events that are a public concern (e.g., a private citizen involved in a public demonstration).In addition to the normal requirements for a defamation claim, matters of public concern have:

  • Fault: The plaintiff must prove that the defendant acted with a certain level of fault. For public figures and officials, the standard is reckless disregard for the truth. For private figures regarding events that are a public concern, a simple negligence standard applies.
  • Falsity: The plaintiff must prove that the defamatory statements are false.

Defences to Defamation

There are three major defences to defamation.

Truth

Truth is always a defence in matters of private concern. For matters of public concern, the plaintiff has the burden to prove falsity as an element of the claim.In a civil action for defamation, truth of the defamatory matter is complete defence. Under Criminal Law, merely proving that the statement was true is no defence. First exception to sec. 499, I.P.C. requires that besides being true, the imputation must be shown to have been made for public good. Under the Civil Law, merely proving that the statement was true is a good defence. The reason for the defence is that “the law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess. The defence is available even though the publication is made maliciously. If the statement is substantially true but incorrect in respect of certain minor particulars, the defence will still be available

Fair Comment

Making fair comment on matters of public interest is a defence to an action for defamation. For this defence to be available, the following essentials are required :

  1. It must be a Comment, i.e., an expression of opinion rather than assertion of fact;
  2. The comment must be fair; and
  3. The matter commented upon must be of public interest.

Privilege

Absolute privilege

Applies in very limited circumstances. In general, absolute privilege exempts persons from liability for potentially defamatory statements made:

  • during judicial proceedings
  • by legislators during legislative debates
  • during political broadcasts or speeches, and
  • in between spouses.

Liability for Defamatory statements made in statutory proceedings : It is to be noted that absolute privilege is available in statutory proceedings only if the statement made is absolutely necessary for the proceedings.

In the eyes of law, husband and wife are one entity hence something written defamatory by husband to his wife or vice-versa doesn't amount to publication. But communication of defamatory statement by a third party to either husband or wife are publication on the ground that although husband and wife are one person, they are not so for the purpose of having the honour and feelings of the husband assailed and injured by acts done or communication made to wife; Wenman v. Ash1).

Qualified privilege

Other types of communications are subject to what is called a qualified privilege, meaning that the person making the allegedly defamatory statement may have had some right to make that statement.

If a qualified privilege applies to a statement, it means that the person suing for defamation must prove that the person who made the defamatory statement acted intentionally, recklessly, or with malice, hatred, spite, ill will or resentment, depending on your state’s law. Just some of the statements for which a qualified privilege applies are:-

  • statements made in governmental reports of official proceedings
  • statements made by lower government officials such members of town or local boards
  • citizen testimony during legislative proceedings
  • statements made in self-defence or to warn others about a harm or danger
  • certain types of statements made by a former employer to a potential employer regarding the employee, and
  • published book or film reviews that constitute fair criticism.

The employer review qualified privilege is particularly noteworthy. In order to avoid defamation claims, some employers these days refuse to confirm any details about former employees other than their dates of employment. But certain types of negative statements might fit in under the qualified privilege category, If, for example, the employer fired the employee for theft, a statement about that to a potential employer might qualify as a statement made to warn others about a harm or danger (i.e., the danger of hiring someone who might steal from you).

Good Faith is not a defence

In the case D.P. Chowdhery v. Manjulata2), a news was published in a local daily Dainik Navjyoti that the plaintiff Manjulata, a 17 years old girl, a student of B.A. belonging to a distinguished family based at Jodhpur has eloped with a boy named Kamlesh on the pretext of attending night classes at her college. It was found that the news was untrue and was published negligently and with irresponsibility. The Court found the defendant liable and awarded a damage of Rs. 10,000 to plaintiff. If the defendant has defamed the plaintiff's reputation although unintentionally, he is liable. The words are actionable if false and defamatory, although published accidentally or inadvertently.

Summary

Defamation is the communication of a false statement that harms the reputation of an individual. The law of defamation protects a person’s reputation and good name against communications that are false and derogatory. Defamation consists of two torts: libel and slander. Libel consists of any defamation that can be seen, most typically in writing. Slander is a form of defamation that consists of making false oral statements about a person which would damage that person’s reputation. If I spread a rumor that my neighbour has been in jail and this is not true, I could be held liable for slander.

A person is liable for the defamation of another. In order to prove defamation, the plaintiff must prove:

  • that a statement was made about the plaintiff’s reputation, honesty or integrity that is not true;
  • there was publication to a third party (i.e., another person hears or reads the statement); and
  • the plaintiff suffers damage as a result of the statement.

Public figures have a more difficult time proving defamation. Politicians or celebrities are understood to take some risk in being in the public eye and many of them profit by their public persona. A celebrity must prove that the party defaming them knew the statements were false, made them with actual malice (intent to harm), or was negligent in saying or writing them. Proving these elements can be an uphill battle. However, an outrageously inaccurate statement that’s harmful to one’s career can be grounds for a successful defamation suit, even if the subject is famous.For example, some celebrities have won suits against tabloids for false statements regarding their ability to work, such as an inaccurate statement that the star had a drinking problem.

Another important aspect of defamation is the difference between fact and opinion. Statements made as “facts” are frequently actionable defamation. Statements of opinion or pure opinion are not actionable. Some jurisdictions decline to recognize any legal distinction between fact and opinion. To win damages in a libel case, the plaintiff must first show that the statements were “statements of fact or mixed statements of opinion and fact” and second that these statements were false. Conversely, a typical defence to defamation is that the statements are opinion. One of the major tests to distinguish whether a statement is fact or opinion is whether the statement can be proved true or false in a court of law. If the statement can be proved true or false, then, on that basis, the case will be heard by a jury to determine whether it is true or false. For example, your statement of opinion is just an opinion, and does not contain specific facts that can be proved untrue. “The waiters and waitresses at the Tivoli Restaurant are too slow and the food is too spicy.” This is a statement of opinion. “I got food poisoning at the Tivoli Restaurant” is potentially a defamatory statement if, in fact, the restaurant can prove that you never contracted food poison.”

Some statements, while libelous or slanderous, are absolutely privileged in the sense that the statements can be made without fear of a lawsuit for slander. The best example is a statement made in a court of law. An untrue statement made by a witness about a person in court which damages that person’s reputation will generally not be held to be liability to the witness as far as slander is concerned.

1)
1953 13 CB 844
2)
AIR 1997 Raj 170


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Created on 2020/10/19 23:15 by • Last modified on 2021/01/02 13:17 by LawPage