Every person faces injury, either for once or many, in his entire life but, certain injuries are categorized as injury to reputation or harm to reputation. This injury to reputation is known as defamation. Many statements can harm a person\’s reputation but do all statements come under the category of defamation, or there are some essentials of a defamatory statement? This question needs to be very clear because a statement cannot be called a defamatory statement if it does not fulfil all the essentials required.
What is defamation?
In simple terms, defamation is something that attacks the reputation of a person. The wrong of defamation consists of the publication of a false statement and defamatory statement respecting another person without lawful justification or excuse. For example, suppose in a society Ram is sharing false information about Shyam that he is a thief, and so, people started believing that Shyam is a thief. In this situation, Ram is defaming Shyam without lawful justification, and so, he can be held liable for defamation.
The simple test of the statement\’s defamatory nature is its tendency to excite other people with adverse feelings against the plaintiff.
Under English Law, defamation is defined as:
“Defamation is the publication of a statement which tends to lower a person’s reputation in the estimation of right-thinking members of the society generally or tends to make them shun or avoid him.”
Is defamation a civil or criminal wrong?
In many countries, like the UK, defamation is a civil wrong in which, if proven guilty, the judge can award significant damages to the plaintiff but, in India, defamation is both a civil and a criminal offence. In civil law, defamation falls under the Law of Torts in which there are no punishments. Instead, the defendant has to pay unliquidated damages to the plaintiff. In criminal law, defamation is a bailable, compoundable, and non-cognizable offence (police can neither register the FIR nor can investigate without permission from the court) and is defined under Section 499 of the Indian Penal Code.
Under criminal law, we are well aware of the fact that intention is the main ingredient of a crime, but, in the offence of criminal defamation, a person can be held liable without the intention to defame someone, and under civil action of defamation, the intention is generally immaterial.
Types Of Defamation
The wrong of defamation can be committed either in the form of writing or in the form of speech. Therefore, defamation can be essentially divided into two types:
Libel and Slander
Libel refers to a false and defamatory statement made in the form of writing, i.e., permanent form. This permanent form includes written notes, pictures, recorded words, etc. In simple words, libel is addressed to the eye. On the other hand, slander refers to a false and defamatory statement made in a brief form, such as spoken words and gestures. In simple words, slander is addressed to the ear.
Under English law, libel is considered as a tort as well as a criminal wrong and slander as a civil wrong, which means under the cases of slander, special damage has to be proved. However, there are certain exceptions under English law where slander is actionable without proving special damage. These exceptions are applied when slander contains imputations of:
- the punishable criminal offence;
- contagious or infectious disease likely to prevent other persons from associating with the plaintiff;
- unchastity or adultery to any women;
- unfitness, dishonesty, or incompetence in any office, profession, calling, trade, or business held or carried on by the plaintiff at the time when slander was published.[i]
However, our Indian law makes no difference between libel and slander. Section 499 of the Indian Penal Code talks about defamation, and both libel and slander are recognized as an offence under that section. Indian law provides a remedy in both civil as well as a criminal offence of defamation.
Since technology is developing in a day-to-day manner in the same way, crime is also increasing. Now, the criminals have started taking the help of these technologies to do the crime.
We now know very well that what is defamation. Similarly, defaming someone in cyberspace is known as cyber defamation. Nowadays, people take the help of the internet to defame someone, and social networking sites are the leading platforms for such crimes. Though cybercrime is performed on different mediums, the same law of defamation is applied to it.
With the rise in cyber defamation in India, the cybercrime investigation cell, a Crime investigation department unit, came forward to help such aggrieved parties who faced defamation in cyberspace.
Essential Elements Of Defamation
There are certain rules in law, and so, if a person believes that he has been defamed then, he has to prove the following. Otherwise, the statement will not be categorized under defamation:
- a false and defamatory statement;
- the said statement referring to the plaintiff;
- publication of the said statement.
Let us have a look over these essential elements in detail.
A False And Defamatory Statement
As we have already discussed, the types of defamation so, the defamatory statement can be either in spoken or writing, which tends to injure the plaintiff’s reputation. Also, this defamatory statement must be a false statement. Otherwise, the statement will not be considered damaging. Further, the intention of defaming the plaintiff or harm is his reputation is no defence. The defendant cannot say that the statement was not made with mala fide intention.
There might be a case that arises when the statement is innocent, but the statement’s receiver finds some secondary meaning to it, and the statement becomes defamatory (Innuendo).
A Statement Referring To The Plaintiff
The plaintiff must prove that the said defamatory statement (either written or spoken) referred to him. For showing reference, the plaintiff does not need to show that his name is attached to the statement. If the plaintiff is recognizable by hearing or reading the defamatory matter then, it can be said that the statement was referred to the plaintiff.
There is a famous case of E. Hulton & Co. v. Jonesin which the defendants published a fictional article that involves some statement on the character of the fictional person naming Artemus Jones. The plaintiff was a barrister with the same name as the fictional person. He filed a defamation complaint because his friends believed that the fictional person was the real Artemus Jones. Since his friends believed that the article was addressing the plaintiff and caused damage to the plaintiff, the defendants were held liable.[ii]
It is to be noted that in criminal law, defaming a dead person can be criminally prosecuted if that defamatory statement would have harmed his reputation if living.
Publication Of The Statement
The publication of the statement is one of the major components to make a statement defamatory. From the term “publication”, we mean that the defamatory matter should be communicated to a third party, other than the plaintiff and defendant. For example, A wrote a letter to B that C is a thief, and this is a publication because B got the knowledge of the letter. In the same way, if A wrote a defamatory letter for B in Urdu, but B does not know Urdu, and so he asked someone else to read the letter. Here, A will not be liable unless it was proved that at the time of writing the letter in Urdu, A knew that B does not know Urdu, and so he will ask someone else to read the letter for him.[iii]
There is a particular case of husband and wife that if there is a communication of defamatory matter between husband and wife, it will not amount to publication because, in the eyes of the law, husband and wife are considered a single person.[iv]
Defences Available For Defamation
There are certain defences available to protect the defamer. If the defamer gets successful in claiming any one of them then, he can save himself. Some of the significant defences available against defamation are:
Justification By Truth
The truth of the defamatory statement is a complete defence available to the defendant. We know that the defamatory statement is always a false statement so, if the statement itself is true then, the plaintiff cannot recover damage.
For example, if A says to B that C is a thief and he has stolen his watch. Now, in this case, A has to prove that the statement is true and C has stolen his watch. Only then A can save himself by taking the defence of truth.
Fair And Bona Fide Comment
This defence says that there will be no liability if the statement made is a fair comment on public interests matters. From the term “public interest”, we mean to say affairs related to state, public institutions, authority work, public entertainments, and other public affairs.
The statement must be a comment with proper justification or proof rather than just a statement of fact.
The term “privilege” means that a person has that privilege that he is justified in saying or writing defamatory statements.
Privilege can be of two types: Absolute privilege and Qualified privileged.
Sometimes the statement is privileged even though it is defamatory and made with malicious intent. These kinds of privileges are known as absolute privileges. For example, in Parliament, the member of Parliament makes many false allegations. These occasions are considered special cases because they have privileges. On the other hand, qualified privilege exempts the person making a defamatory statement from liability because the statement is made without malicious intention—for example, the Proceedings of public meetings and press conference.
This defence is available to the defendant when the plaintiff itself consented to publication. In such a case, the plaintiff cannot complain about defamation. For example, in the case of slander, the plaintiff itself permits the defendant to repeat the defamatory words before witnesses.
According to Bennett Coleman and Co. Ltd. v K. Sarat Chandra, an apology can be taken as a defence in action for libel against newspapers and other periodical publications. When there are an apology and acceptance thereof, the defendant can resist the plaintiff’s claim for defamation.[v]
The concept of defamation is so broad that most of us have faced it in our daily lives. Any person’s reputation is rated high, and harming someone’s reputation is a serious crime.
[i] Ratanlal and Dhirajlal Law of Torts 26 Edition
[ii]  A.C. 20[iii] Mahendra Ram v Harmandan Prasad, AIR 1958 Pat 445 [iv] T J Ponnen v M C Verghese, 1970 AIR 1876 [v] https://www.casemine.com/judgement/in/5e51062446571b56b1ea6199
This article is authored by Srishti Sinha student at Institute of Law Nirma University.
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