University Of Petroleum and Energy Studies

College of Legal Studies

BBA.LLB(Hons.)
SEMESTER 2

SESSION- JANUARY- MAY

TORTS OF DEFAMATON

NAME:

PRAKHAR & RACHIT

ROLL NO:

42 & 45

Introduction:Balance between one persons right to freedom of speech and anothers right to protect their
good name.1
The tort of defamation is one that has been heavily contested, developed, and detailed. It is an
admixture of case law, statutory definitions, legislations, and the play of society that has left it
riddled with complex principle differences across states, and harrowing substantive and
procedural difficulties. The advent of the Internet as a new mode of publication has further
worsened the situation.
Although no exhaustive definition of defamation emerges from common law, a broad
meaning of defamation must be attached to it. Several Indian cases2 take defamation as a false
and damaging statement, while Salmond has defined it as a wrong that consists in the
publication of a false and defamatory statement respecting another without lawful
justification.3 A variety of other definitions have been provided, all of which may avoid
certain difficulties, but may provide others.4 Thus, a statutory definition is best avoided.5
For the purpose of this project, the researchers are utilizing the following definitionDefamation is that which tends to injure reputation; to diminish the esteem, respect, goodwill
or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant
feelings or opinions against him6.

The constituents of the Tort of Defamation:Regardless of whether a defamation action is framed in libel or slander, the plaintiff must
1 http://www.legalservicesindia.com/article/article/defamation-1910-1.html. Malhotra, Neha, 23-0216
2 Paras Dass son of Jugal Kishore v Shri Paras Dass 1969 Delhi LT 241 (Delhi High
Court); MC Verghese v T.J. Poonam (1969) 1 SCC 37 (Supreme Court of India).
3 Salmond, J W, SALMONDS LAW OF TORTS, (8th edn., 1934)
4 V.Mitter, LAW OF DEFAMATION AND MALICIOUS PROSECUTION, (11th edn.,2008)
5 Markesins & Deakins, TORT LAW, (6th edn.,2008)
6 BLACKS LAW DICTIONARY, (9th edn.,2009)

always prove that the words, pictures, gestures etc are defamatory. Equally, the plaintiff must
show that they refer to him. Finally he must also prove that they were maliciously published.
These are the three essential elements in a defamation action.
Elements of Defamation

The statement must be defamatory

Any imputation which exposes one to disgrace and humiliation, ridicule or contempt, is
defamatory. It could be made in different ways as in it could be oral, in writing, printed or by
the exhibition of a picture, effigy or statue or by some conduct. As Lord Atkins 7 said The
question, then, is whether the words in their ordinary signification are capable of being
defamatory . . Judges and text book writers alike have found difficulty in defining with
precision the word defamatory.The conventional phrase exposing the plaintiff to hatred,
ridicule, or contempt is probably too narrow. Whether a statement is defamatory or not
depends upon how the right thinking members of society the society are likely to take it. Yet
the term right-thinking members of society is highly ambiguous. The standard to be applied
is that of a right-minded citizen, a man of fair average intelligence, and not that of a special
class of persons whose values are not shared or approved by the fair minded members of that
society generally. If the likely effect of the statement is the injury to the plaintiffs reputation,
it is no defence to say that it was not intended to be defamatory. When the statement causes
anyone to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem,
it is defamatory. In D.P. Choudhary v. Manjulata 8 there was publication of a statement in a
local daily in Jodhpur that Manjulata on the pretext of attending her evening BA classes ran
away with a boy named Kamlesh. The girl belonged to a well educated respectable family.
She was seventeen years of age. The news item was untrue and had been irresponsibly
published without any justification. This was defamatory and the defendants, the newspaper
publishers were held liable. However, words spoken in anger or annoyance or in the heat of
the moment are not defamatory as they no way reflect on the character of the one being
abused. However, sometimes the statement being used to defame may be prima facie
innocent but becomes defamatory because of some latent or hidden meaning. In such a
scenario the plaintiff must prove the hidden meaning, which is the innuendo if s/he wants to
7 http://dululainsekaranglain.com/undang-undang/defamatory-meaning-sim-v-stretch.
DHLULAINSEKARANGLAIN, 20-03-2016
8 http://indiankanoon.org/doc/295448/. INDIANKANOON, 20-03-16

file a suit for defamation. For instance in Cassidy V Daily Mirror Newspapers9 the newspaper
published a picture of a lady and the race horse owner with the caption underneath, Mr. M.
Corrigan, the race -horse owner and Miss X whose engagement has been announced. The
newspaper was held liable in a suit that said that the lady was the lawful wife of Mr. Corrigan
and complained that the words suggested that she had been living with him in immortality.
The liability of the defendants rested on their failure to make independent inquiry. This also
brings forth another aspect of this tort that intention to defame is not necessary and if the
words are considered to be defamatory by the persons to whom the statement is published,
there is defamation.

The Defamatory statement must refer to the claimant:-

The plaintiff has to prove that the statement which is claimed to be defamatory actually
refers to him/her. It is immaterial that the defendant did not intend to defame the plaintiff,
if the person to whom the statement was published could reasonably infer that the
statement referred to the plaintiff, the defendant is nevertheless liable. In Hulton Co. V
Jones10 Defendant printed an article that accused a man named Artemus Jones of adultery.
In the article, Artemus was a churchwarden who resided at Peckham. Plaintiff was a
lawyer named Thomas Artemus Jones of North Wales. Plaintiff was not a churchwarden
and did not reside at Peckham. Defendant never heard of Plaintiff and had used the name
Artemus Jones as a fictitious name. Plaintiff produced witnesses who said they had read
the article and thought that it referred to Plaintiff. When the statement though generally
referring to a class can be reasonably considered to be referring to a particular plaintiff,
his action will succeed. In Fanu v. Malcolmson11, in an article published by the
9 http://www.justcite.com/Document/b2CZn5CZmSaaa/cassidy-v-daily-mirror-newspapers-ltd.
Justcite, 20-03-16
10 http://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/defamation/e-hulton-co-v-jones/.
Case Briefs, 20-03-16
11 http://www.ebooksread.com/authors-eng/john-william-salmond/the-law-of-torts--a-treatise-onthe-english-law-of-liability-for-civil-injuries-589/page-40-the-law-of-torts--a-treatise-on-the-englishlaw-of-liability-for-civil-injuries-589.shtml. Salmond, J W, SALMONDS LAW OF TORTS, 20-0316

defendants, it was mentioned that cruelty was practised upon employees in some of the
Irish factories. From the article as a whole including a reference to Waterford itself, it
was considered that the plaintiffs Waterford factory was aimed at in the article and the
plaintiff was, therefore, successful in his action for defamation.

Publication12:Publication means making the defamatory matter known to some other third part and
unless that is done, no civil action for defamation can lie in court. Communication to the
plaintiff wont count because defamation is injury to the reputation which consists in the
estimation in which others hold him and not a mans own opinion of himself. However, if
a third party wrongfully intercepts and reads a letter sent to the plaintiff it is not
defamation. However when the defendant knows that the letter is likely to be read by
someone else and it contains some personal information only meant for the recipient,
then he will be liable. Also, an injunction can be issued against the publication of a
defamatory statement which is likely to injure the reputation of one of the arties involved
as was done in Prameela Ravindran v.P. Lakshmikutty Amma 13 .Also, in the eyes of the
law, husband and wife are one person and the communication of a defamatory matter
from the husband to the wife or vice versa is no publication. When the repetition of the
defamatory matter is involved, the liability of the person who repeats that defamatory
matter is the same as that of the originator, because every repetition is a fresh publication
giving rise to a fresh cause of action. Not only the author is liable but the editor, printer
or publisher would be liable in the same way.

However, these elements again fall under the broad meaning. When we speak of the treatment
of defamation under English Law, or Law in the US, or even Indian Law, the scope of
defamation differs greatly in terms of both basic principles and nuances, despite the fact that
essentially the origin of all three dates back to common law.14 However, while the origins of
12 Markesins & Deakins, TORT LAW, (6th edn.,2008)
13 http://indiankanoon.org/doc/1489727/. Indian Kanoon, 20-03-16
14 V.Mitter, LAW OF DEFAMATION AND MALICIOUS PROSECUTION, (11th edn.,2008)

defamation in England dates back to the middle ages 15, in the USA, defamation in an unique
form started to take form around the time of the American Revolution, with the trial of John
Peter Zenger in 1734.16 This case laid down truth as an absolute defense against defamation;
an important defense not introduced by English law till before. This case marked the
beginning of US defamation law as an entity distinct in its identity from English Law.

Defences for Tort of Defamation:

Truth:-

In a civil action for defamation, truth is a complete defence. However under criminal law,
it must also be proved that the imputation was made for the public good. Under the civil
law, merely proving that the statement was true is a good defence the reason being that
the law will not permit a man to recover damage s in respect of an injury to a character
which he either does no or ought not to possess
Often the most straightforward defence of defamation is to prove that the communication in
question stated the truth. This will result in complete and absolute exoneration for the
defendant. Even if the defendant had malevolent intent when communicating the information,
and regardless of whether it was in the publics interest to make it known, the veracity of a
claim will still provide a defence.
The burden of proof rests solely upon the defendant. The information that causes the
defamation, if damaging, will often be assumed to be untrue until the defendant proves
otherwise.
An exception to using truth as a defence is if the information concerned spent criminal
convictions, and the claimant can show that the defendant acted with pernicious intent against

15 V.V. Veeder, The History of the Law of Defamation in SELECT ESSAYS IN ANGLOAMERICAN HISTORY, Vol .3, Part VII, (Association of American Law Schools, 1909)
16 D. Linder, The Trial of John Peter Zenger: An Account (2001). Available at
SSRN: http://ssrn.com/abstract=1021258 (Last visited on February 20 th 2016)

the claimant. This would contradict the justice system in its attempts to rehabilitate offenders,
who after having taken their punishment still have the offence used against them17.

Publication on matter of Public Interest18:-

It is a defence to a defamation claim if the defendant can show that their comments were
made regarding a matter which is of public interest, and that they reasonably believed
that publishing the statement was in the public interest.
This defence replaces 'qualified privilege' with the passing of the Defamation Act in
2013, and can be used by someone who finds themselves in a position in which it seems
a necessity, either moral, legal, social, to impart certain information to another who has
an interest. This covers situations where the information is false but may not seem so at
the time to the person accused of defamation, and that they had a duty to report it before
going into the process of verifying the information.

Privilage19:-

Absolute Privilege
Certain types of communications are absolutely privileged. Absolute privilege means that the
person making the statement has the absolute right to make that statement at that time, even if
it is defamatory. In other words, the person making the defamatory statement is immune from
a defamation lawsuit.
In general, absolute privilege exempts persons from liability for potentially defamatory
statements made:

during judicial proceedings

17 https://www.lawontheweb.co.uk/legal-help/defences-of-defamation. LawontheWeb, 20-03-16

18 Supra note 17
19 http://www.nolo.com/legal-encyclopedia/privileges-defenses-defamation-cases.html. NOLO, 2003-16

by high government officials

by legislators during legislative debates

during political broadcasts or speeches, and

in between spouses.

So, if someone makes an otherwise defamatory statement during his/her testimony at a trial,
that statement is absolutely privileged, and that person cannot be sued for defamation. But if
that person makes a different allegedly defamatory statement in the hallway of the courthouse
during a break in the trial, he/she could be sued for defamation because the statement was
made during a judicial proceeding.
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 states 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-defense 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).

Suggestions for India:We had found two complications in his attempt to recommend a defamation system for India.
1. Defamation is an extremely complex tort, with several jurisprudential difficulties and
lack of clarity with respect to its treatment,20
2. Both systems, that is, the American free speech and UK plaintiff-centric systems of
defamation law are riddled with problems on several levels, and assessing a suitable
model for India is a complex problem as societal factors play in on a much higher
level. Further, both models are constantly evolving, and their position remains forever
unclear.21
Further, the Indian defamation law is based primarily on common law. However, it varies
significantly as well when compared to modern defamation law of the UK. India makes no
distinction between Libel and Slander22. Also, defamation is both a civil wrong and a criminal
offence, as has been stated before. Indian case law indicates that the meaning of defamation
includes several societal factors like questioning ones professional capabilities 23, Indian

20 Street, THE LAW OF TORTS, (11th edn.,2003).

21 Markesins & Deakins, TORT LAW, (6th edn.,2008)
22 V.Mitter, LAW OF DEFAMATION AND MALICIOUS PROSECUTION, (11th edn.,2008)
23 Mitha Rustomji v Nusserwanji Nowroji AIR 1941 Bom 278 (Bombay High Court)

abuses24, calling someone a goonda25,etc. Defenses like provision of apology are not easily
accepted and the wordings of the IPC also bring in problems, for example, the definition of
the word infirmity.26 Further cases like R. Rajagopal v State of T.N.27indicate the
controversy around the issue, and the governments reluctance to deal with sensitive issues
surrounding defamation of public officials and matters of public importance.
In light of these additional complexities along with the initial problems stated in the first
chapter, we researchers feels that bringing about changes in the Indian defamation would
require the creation of a unique defamation law that suits the Indian society rather than
simply emulating English or American law; a law that also covers the gaping hole in Indian
defamation law concerning Internet defamation. In light of these factors, the researcher
proposes certain changes that could impart clarity to the Indian scenario1. Classification of defamation as only a civil tort. Due to the advent of the Internet,
and the need for an Indian position for Internet defamation, limiting defamation to the
civil sphere of law would be prudent, as a defendant in an Internet defamation case
could end up in jail simply for providing a forum to publish (possibly libellous)
statements on the Internet.

Criminal Defamation severely hampers freedom of

speech, and defamation in itself is essentially between two individuals. Thus

involvement of the State could lead unnecessarily high punishments, abuse by
influential persons, and lack of any compensation for the victims. 28 Further, the
criminal system does not regard absolute privileges or vicarious liability, and also
creates complications with respect to violation of a grave via defamation.
2. Codification of civil law- In order to accommodate a comprehensive stance, civil law
must be codified, in a manner that suits the Indian media, as they are the primary
24 Harakh Chand v Ganga Prasad AIR 1925 All 371, (Supreme Court Of India)
25 Sadaiba v Banisdhar AIR 1962 Orissa 115 (Orissa High Court)
26 Hamsa v Ibrahim, (1993) 2 Ker LJ 698. (Kerala High Court)
27 R. Rajagopal v State of T.N 1995 AIR 264 (Supreme Court of India)
28 D.Simons, Defamation ABC, ARTICLE 19 (November 2006) available at
http://www.article19.org/data/files/pdfs/tools/defamation-abc.pdf

parties concerned.29 Further, a codified civil law on defamation might, as per the
researcher, introduce more equity in to the current situation, and prevent situations
like the case of Times Now v Justice P.B. Sawant where a media house was forced to
pay Rs 100 Crore for a five-second lapse.30
3. Adoption of the single publication rule- The US single publication rule is both
practically more efficient and jurisprudentially more respectful of justice and
imposition of liability. Thus the researcher advocates adoption of this rule.
4. Clarity with respect to the role of Internet Service Providers- This aspect is
heavily disputed in many countries including Canada, the US, and the UK 31, and thus,
the researcher feels that the issue must be adequately addressed in the shortest time
possible, as the Internet grows on an exponential rate.32
5. A balance with respect to the burden of proof- The English concept of defamatory
statements being presumed false has been heavily criticised as favouring the plaintiffs,
and making it easier to restrict free speech. 33 In light of India, and the influence of the
media, a balance needs to be found between the desire to respect private reputation
and the desire to protect free speech.

29 B. Manna, MASS MEDIA AND RELATED LAWS IN INDIA, 62, (1st edn.,1998) at 63.
30 ET Bureau., Times Now verdict appalling, says International Press Institute,
ECONOMIC TIMES, (Nov. 22, 2011) available athttp://economictimes.indiatimes.com/news/politics/nation/times-now-verdictappalling-says-international-press-institute/articleshow/10823312.cms
31 V.Mitter, LAW

OF

DEFAMATION

AND

MALICIOUS PROSECUTION, (11th edn.,2008)

32 Anon. ,Unruly world of Internet leads to rise in libel cases, CANWEST

MEDIAWORKS PUBLICATIONS INC., ( MARCH 17, 2006) available at
http://www.canada.com/saskatoonstarphoenix/news/story.html?id=44633f5a6d26-422c-be8b-53a785a6d6dd&k=37041
33 Cohen v Marx, 211 P.2d 320 (California Dist. Ct.)

Despite having given these recommendations, the researcher must warn that the changes
be made carefully and in a gradual manner, as one must not forget the sheer complexity of
both defamation law, as well the unique Indian society.

Conclusion:It is submitted that in this research paper researchers have noted three points. Firstly, that
defamation is a tort which varies greatly in theory, application, and principles. Indias
position is a confused one, a mixture of archaic statutes and case law. Thus, the main purpose
of suggesting a system for India to follow has been difficult to implement, and the researcher
has proved his opinion on the issues to be dealt with and how to deal with them. The
researcher believes that Indias law must develop a unique system that works for its society
and media, while absorbing the positive aspects of defamation law from abroad, in order to
attain the central goals of judicial stability and clarity.