Defamation consists in injury to the reputation of a person. If a man injures the reputation of another, he does so at his own risk. English law divides actions for defamation into Libel and Slander. Libel is a representation made in some permanent form, e.g., writing, printing, picture, effigy or statute. In a cinema film, not only the photographic part is considered to be a libel but also the speech which synchronizes with it is also a libel. (Yousoupoff v. M.G.M. Pictures Ltd.). Slander is the publication of a defamatory statement in a transient form. Examples of it may be spoken words or gestures. Another test which has been suggested for distinguishing libel and slander is that libel is addressed to the eye, slander to the ear.

In English law, the distinction is material for two reasons :

(1) Slander is only a civil wrong whereas a libel is both a crime and a tort.

(2) Slander is actionable, save in exceptional cases, only on proof of special damage. Libel is actionable per se.

The above stated distinctions do not find any place in India. Unlike English law, under Indian criminal law, libel and slander are treated alike, both of them are considered to be an offence. Moreover, weight of various decisions in India is to make slander like libel, actionable per se.

Essentials of Defamation

1. The statement must be defamatory;

2. The said statement must refer to the plaintiff; and,

3. The statement must be published.

1. The statement must be defamatory.—

Defamatory statement is one which tends to injure the reputation of the plaintiff. Whether a statement is defamatory or not depends upon how the right thinking members of the society are likely to take it. If the likely effect of the statement is the injury to the plaintiff's reputation, it is no defence to say that it was not intended to be defamatory.

The Innuendo

A statement may be-prima facie defamatory and that is so when its natural and obvious meaning leads to that conclusion. Sometimes, a statement may be prima facie innocent but because of some latent or secondary meaning, it may be considered to be defamatory. When the natural and ordinary meaning is not defamatory but the plaintiff wants to bring an action for defamation, he must prove the latent or the secondary meaning, i.e., the innuendo which makes the statement defamatory. To say that X is a honest man and he never stole my watch may be a defamatory statement if the persons to whom the statement is made understand from this that X is dishonest man having stolen the watch. When the words are considered to be defamatory by the persons to whom the statement is published, there is defamation, even though the persons making the statement believed it to be innocent. In Cassidy v. Daily Mirror Newspapers Ltd., Mr. C was married to a lady who called herself Mrs. C. She was known as the lawful wife of Mr. C, who did not live with her but occasionally came and stayed with her at her flat. The defendants published in their newspaper a photograph of Mr. C and one Miss X with the following words underneath : "Mr. C and one Miss X, whose engagement has been announced." Mrs. C sued the defendants for libel alleging that the innuendo was that Mr. C was not her husband but he lived with her in immoral cohabitation. Some female acquaintances of the plaintiff gave evidence that they had formed a bad opinion of her as a result of the publication. The Jury found that those words conveyed defamatory meaning and awarded damages. The Court of Appeal held that the innuendo was. established. Obvious innocence of the defendants was no defence.

2. The statement must refer to the plaintiff.—

If the statement is taken to be referring to the plaintiff, the defendant will be liable and it will be no defence that the defendant did not intend to defame the plaintiff. In Hulton & Co. v. Jones (1910), the defendants, newspaper proprietors, published a fictional article in their newspaper by which imputations were cast on the morals of a fictitious person, Artemus Jones. A real person of the same name, i.e., Artemus Jones, brought an action for libel. His friends, who read that article, swore that they believed that the article referred to him. The defendants were held liable. In Newstead v. London Express Newspapers Ltd. (1939), 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 and the action for defamation was brought by another Harold Newstead, a Camberwell barber. The words were understood as referring to the plaintiff and the defendants were held liable.

When the words refer to a group of individuals or a class of persons, no member of that group or class can sue unless he can prove that the words could reasonably be considered to be referring to him.

3. The statement must be published.—

Publication means making the defamatory matter known to some person other than the person defamed. Communication °to the plaintiff himself is not enough because defamation is injury to the reputation and reputation consists in the estimation in which others hold him and not a man's own opinion of himself. Sending the defamatory letter to the plaintiff is no defamation. If a third person wrongfully reads a letter meant for the plaintiff, the defendant is not liable. However, if a defamatory letter sent to the plaintiff is likely to be read by somebody else, there is publication. When the defamatory matter is contained in a postcard or a telegram, the defendant is liable even without a proof that somebody else read it, because a telegram is read by the post office officials who transmit and receive it and there is a high probability of the postcard being read by someone. Moreover, when the libellous letter addressed to the plaintiff is, in the ordinary course of business, likely to be opened by his clerk or by his spouse, there is defamation, when the clerk or the spouse opens and reads the letter. In the eyes of law, husband and wife are one persons and the communication of a defamatory matter from one spouse to the other is no publication. But communication of a matter defamatory of one spouse to the other spouse is publication. (Theaker v. Richardson).

A statement disputing marital status of a lady is defamatory. An injunction can be issued to prevent making such statements. [P. Ravindran v. P.L. Amma, A.I.R. 2001 Mad. 225.]

Every person who repeats the defamatory matter is liable in the same way as the originator, because every repetition is a fresh publication giving rise to fresh cause of action.

DEFENCES

1. Justification (or Truth).—

In a civil action for defamation, the truth of the defamatory matter is a complete defence because by such publication, the reputation of an individual is brought to the level he deserves. The defence is available, even though the publication was made maliciously. If the statement is substantially true but incorrect in certain minor particulars, the defence will still be available. [See Alexander v. North Eastern Rly. Co. and Sec. 5, Defamation Act, (1952).]

2. Fair Comment.—

Making fair comment on matters of public interest is a defence to an action for defamation.

What is permitted is a comment, i.e., an expression of opinion rather than statement of fact. It is, however, necessary that the facts on which the comment is based must be either known to the audience addressed or the commentator should make it known along with his comment.

It is also essential that the comment shall be fair. The comment cannot be fair if it is based on untrue facts. If the facts are substantially true and justify the comment on the facts which are truly stated, the defence of fair comment can be taken even though some of the facts stated may not be proved. (Sec. 6, Defamation Act, 1952). Whether a comment is fair or not depends upon whether the defendants honestly held that particular opinion. If the comment is distorted due to malice on the part of the defendant, his comment ceases to be fair and such a defence cannot be taken.

It is essential that the matter commented upon must be of public interest. Administration of Govt. departments, public companies, courts, conduct of public men like ministers or officers of State, public institutions and local authorities, public meetings, pictures, entertainment, textbooks, theatres, public novels, etc. are considered to be matters of public interest.

3. Privilege.—

There are certain occasions when the law recognizes that the right of free speech outweighs the plaintiff's right to reputation; the law treats such occasions to be privileged and a defamatory statement made on such occasions is not actionable. Privilege may be either 'Absolute' or 'Qualified'.

Absolute Privilege.—In matters of absolute privilege, no action lies for the defamatory statement even though the statement is false or has been made maliciously. In such cases the public interest demands that an individual's right to reputation should give way to the freedom of speech. Absolute privilege is recognized in respect of 'Parliamentary Proceedings', 'Judicial Proceedings' and 'State Communications'.

Qualified Privilege.—

There are certain occasions when the defendant is exempted from liability for making defamatory statement but the exemption is granted if the statement was made without malice. These are matters of qualified privilege. The presence of malice negatives the defence. Malice here means an evil motive.

Such a privilege exists when statements are made in discharge of a duty or protection of an interest. For example, a former employer has a moral duty to state a servant's character to a person who is going to employ the servant. The person receiving the information has also an interest in the information. But if a former employer, without any enquiry, publishes the character of his servant with a motive to harm the servant, the defence of qualified privilege cannot be taken. Similar protection is granted to a creditor who makes a statement about the. debtor's financial position to another creditor.

Such communication may be made in cases of confidential relationships like those of husband and wife, father and his son and daughter, guardian and ward, master and servant or principal and agent. Thus, a father may acquaint his daughter about the character of a man whom she is going to marry.

Reports of Parliamentary, Judicial or other public proceedings are also a subject of qualified privilege.

Reference - The Law of Tort's, R K Bagia