Slander Defamation and Current Legal Solution

-Submitted by:
Achlesh Mishra
Division: C

BA. LLB.

PRN - 14010223001

Batch of 2019
Of
Symbiosis Law School, NOIDA
In
March 2015
Under the guidance of :
Dr. Kiran Kale and Prof. Nitya Thakur

Symbiosis Law School, Noida

Symbiosis International University, Pune

CERTIFICATE
The Project titled Slander Defamation and Current Legal
Solution for Law of Torts, MV Accident and Consumer Protection
Laws as part of Internal assessment is based on my original work
carried out under the guidance of Dr. Kiran Kale and Prof. Nitya
Thakur from December to March 2015. The research work has not
been submitted elsewhere for award of any degree. The material
borrowed from other sources and incorporated in the thesis has
been duly acknowledged. I understand that I myself could be held
responsible and accountable for plagiarism, if any, detected later
on.

Signature of the candidate

Date

ACKNOWLEDGEMENT
It is a great pleasure for me to put on records my appreciation
and gratitude towards Dr. Kiran Kale and Prof. Nitya Thakur, my
faculty (Project Guide) for their valuable support and suggestions
for the improvement and editing of this project report and
immense support and encouragement all through the preparation
of this report. Last but not the least I would like to thank all the
persons who directly or indirectly helped me in completing this
project report.

Contents
Introduction................................................................................................................ 5
Origin of Defamation.................................................................................................. 5
DEFAMATION.............................................................................................................. 6
Damages for Defamation............................................................................................ 7
Defenses to Defamation.......................................................................................... 7
Types of Defamation: Slander vs. Libel......................................................................8
The Elements of Slander............................................................................................ 8
Slander of title......................................................................................................... 9
slander of goods :-.................................................................................................. 9
Legislative provision................................................................................................... 9
Judicial Decision....................................................................................................... 10
Suggestions.............................................................................................................. 12
A. Modern Remedies in Lieu of a Cause of Action for Defamation of the Dead.....12
B. Legislative Solutions for Defamation of the Dead.............................................12

Introduction
Sticks and stones will break my bones, but words will never hurt me so
goes the popular adage. The law of defamation though, would beg to differ.
If every sanction in this module can be imagined as a tussle between free
expression and a competing value, then that value in the instance of
Defamation law is the right to Reputation. Multiple understandings of the
idea of reputation permeate and guide the development of Defamation law.
The course material aims to unpack those variegations before proceeding to
engage with the struggle between free expression and reputation. Lawrence
Friedman categorizes reputation as being integrally a question of information
flow.1 A study of reputation is a study of the flow of information about other
people, and the power to control that flow. Reputation for many people is as
much a product of what others do not know about them, as it is about
publicly available information. Truth is a defense to a claim of defamation,
but only in civil cases is it an absolute one, while in criminal defamation,
there is a question of public interest involved. To that extent, the law clearly
privileges a certain ambit of privacy claimed by an individual, acting as a
deterrent from it crossing over into the public domain.
Defamation is an area of law that provides a civil remedy when someone's
words end up causing harm to your reputation or your livelihood. Libel is a
written or published defamatory statement, while slander is defamation that
is spoken by the defendant. In this section, we'll explain what you need to
prove if you're bringing a defamation lawsuit, and what to expect at each
step of your case, including common defenses to a defamation claim.

Origin of Defamation
With the introduction of mass media, mass media had both positive and
negative aspects. Mass Media systems differ from country to country on the
basis of polity, economy, culture and religion of different societies. In the
Indian scenario and its Parliamentary Democracy, the media is free but
subject to some reasonable restrictions provided by the Indian Constitution.
Before the Indian economic liberalization in 1991, the mass media was under
governmental control to a large extent. It allowed the media to project only
that image, things and happenings which the Govt. wanted the public to see.
With the beginning of privatization and globalization, the situation has
undergone a big change.
Before the era of communication satellite,

communication was mostly in the form of national media public and private
in India as well as abroad. Then, transnational media arrived bringing in
an evolution of communication technologies like Satellite delivery and ISDN
(Integrated services digital network) Consequently, local TV, global films and
global information systems made the national and international media scene
very complex and sophisticated. Due to this unprecedented media upsurge,
it becomes unavoidable to put certain legal checks and balances on the
transmission and communication of public content. Legal checks and
balances slander, libel, sedition, obscenity, censorship and the contempt of
court cases appeared.

DEFAMATION
Defamation is a legal wrong emerging from an act of injuring a persons
reputation and sullying their character without lawful justification or excuse.
Libel and slander, both forms of defamation, are creatures of English
common law, but they are not treated as distinct from each other in Indian
jurisprudence. India offers the defamed a remedy both in civil law for
damages and in criminal law for punishment. This is highly unusual since
defamation as a crime is almost nonexistent anywhere in the world. While
civil law for defamation is not codified as legislation and depends on judgemade law, criminal law is in the Indian Penal Code (section 499 creates a
criminal offence of defamation.)
In a civil action, the claimant needs to prove that the statements injured the
persons reputation and were published. The onus then shifts to the
defendant to prove that the imputations or statements were either true, or
amounted to fair comment, or were uttered or stated in circumstances
offering absolute or qualified privilege like Parliamentary or judicial
proceedings.
In criminal law, the burden rests on the prosecution to prove beyond
reasonable doubt that there was an offence of defamation committed and
there was intent to do so.
Then it is up to the accused to substantiate that they are protected by one of
the 10 exceptions listed under Section 499. These exceptions are extremely
wide. They offer protection including: stating a true fact against a person for

public good; expressing an opinion in good faith about an act of a public

servant; or even making imputations on the character of another provided
its in good faith and for the public good. The Indian Constitution protects
freedom of speech as a facet of fundamental rights under Article 19, subject
to reasonable restrictions, including decency and defamation.
Indian courts have been relatively mild in dealing with issues of defamation,
unlike U.K. courts, which are notorious for awarding astronomical damages
for libel.
Tardiness in the Indian legal process also leads to more criminal complaints
being filed than civil actions for damages because a criminal case followed
by a summons from the magistrates court is often perceived as a greater
threat and nuisance than a civil remedy that may take an age to come to
fruition.
Indeed, just the threat of punitive criminal action can be enough to serve as
an effective deterrent to the publishing of future allegations. Of course,
along the way it also scuttles legitimate criticism and opinion. Only the thickskinned will point fingers at public figures, since the uninitiated would want
to avoid getting involved in court proceedings.

Damages for Defamation

Once the plaintiff has successfully proved defamation, "general damages"
are presumed. The plaintiff is not simply limited to damages reflecting his or
her economic losses, but the mental anguish and other emotional harm that
the law presumes to result from having ones reputation harmed. Depending
on what the plaintiff proves about the defendants intentions, and the type of
defendant, punitive damages may also be awarded to the plaintiff. For more,
see our section on damages in a personal injury case.

Defenses to Defamation
Generally, if the defendant can prove that what he or she said or published
about the plaintiff was true, the plaintiff will lose the case. In the case of
defendants like certain media outlets (e.g. newspapers), the plaintiff must
prove the statement was untrue -- the media defendant is not required to
prove its publication was true to defend the case.
Another defense to defamation is privilege. When the defendant is a certain
type of public official or the statement was during certain official

proceedings, the statement was privileged and therefore the plaintiff

cannot successfully sue for defamation.

Types of Defamation: Slander vs. Libel

Before the advent of modern media, there were only two kinds of
communication available, spoken and written. Slander pertained to spoken
defamation and libel to written. Where defamatory statements published via
radio, television or the internet fit into these categories is not a clear-cut
matter. For now, it is easiest to think of slander as spoken defamation to a
small audience (or just one other person) and libel as any written
defamation or spoken or video defamation to a large audience. Generally, it
is up to the judge, and not the jury, in a defamation case to determine which
category the defamation fits into.
Slander:- Slander is the act of making a false, negative spoken
statement about someone.
Libel
:- Libel is a method of defamation expressed by
pictures, signs, effigies, or any communication embodied in
that is injurious to a person's reputation, exposes a person to
contempt or ridicule, or injures a person in his/her business or

print, writing,
physical form
public hatred,
profession

The Elements of Slander

There are two types of slander: slander and slander per se. In the first kind
of slander, the plaintiff must prove the defendant made a defamatory
statement to at least one other person (i.e. the essential defamation
elements) and that the plaintiff suffered what are referred to as special
damages as a result of the defamation. Special damages are actual harm
like loss of customers, being fired, or some other financial harm.
A slander per se claim does not require that the plaintiff prove special
damages. This is because slander per se claims involve categories of
defamatory statements that are presumed to be damaging to the plaintiff.

While the categories may change a little for state to state, and evolve over
the years, some of the most common slander per se categories are:

imputing criminal conduct to the plaintiff

saying that the plaintiff has certain types of communicable diseases,

and

any harmful statement about the plaintiff's profession or business.

In law, the word slander is contrasted with libel, which is the act of making a
false written statement about someone. The noun slander is from Old
French slander, escandle"scandal," from Late Latin scandalum "stumbling
block, offense."
For ex:- If you call your teacher a "dirty toad," you're going to get into
troubleshe'll call you out on the slander.
There are two types of slander :-

Slander of title
In an action for slander of title, slander of goods or other malicious
falsehood, it is not necessary to allege or prove special damage,
(a) if the words upon which the action is founded are calculated to cause
pecuniary damage to the plaintiff and are published in writing or other
permanent form; or
(b) if the words upon which the action is founded are calculated to cause
pecuniary damage to the plaintiff in respect of any office, profession, calling,
trade or business held or carried on by the plaintiff at the time of the
publication.

slander of goods :A false statement, written or oral, that casts doubt on a persons ownership
of property. See also bait and switch and disparagement.

Legislative provision
There are no specific legislations regarding defamation in India. However,
since defamation is a civil as well as criminal offence, it is governed by the

provisions of the Indian Penal code 1860. Section 499 of the Indian Penal
Code defines defamation as, whoever, by words either spoken or intended to
be read, or by signs or by visible, representations makes or publishes any
imputation concerning any person intending to harm, or having reason to
believe that such imputation will harm the reputation of such person, is said
except in cases here in after expected, to defame that person. The section
further elucidates on the topic of defamation of the deceased To impute
anything to a deceased person, if the imputation would harm the reputation
of that person if living and is intended to be harmful to the feelings of his
family or other near relatives.
Chapter XXI, Section 500, 501, and 502 of the IPC deals with the
punishment for defamation. The provisions of these sections are as follows
Section 500: Whoever defames another shall be punished with simple
imprisonment for a term which may extend to two years or with fine or with
both.
Section 501: Whoever prints or engraves any matter, knowing or having
good reason to believe that such matter is defamatory of any person, shall
be punished with simple imprisonment for a term which may extend to two
years,
or
with
fine,
or
with
both.
Section 502: Whoever sells or offers for sale any printed or engraved
substance containing defamatory matter, knowing that it contains such
matter, shall be punished with simple imprisonment for a term which may
extend to two years or with fine or with both.

Judicial Decision
Courts in India do not impose liability for defamation of the dead. One of the
best comments on this issue was given by honorable Justice R Basant in the
landmark case Raju vs Chacko on 5 September, 2005 (Equivalent citations:
2005 (4) KLT 197) A claim for compensation for defamation under the civil
law may not be maintainable in respect of defamation of a deceased person
on the principle that a personal right of action dies with the person. (Actio
personalis moritor cum persona). But still the law makers felt that
defamation of a deceased person can legitimately give rise to a criminal
prosecution for the offence of defamation against a deceased person. The
honorable court further elucidated Any person may get triggered to commit
offences and thus cause breach of the peace if a deceased member of his
family or other near relative of his were defamed. Accepting this reality in
life, Explanation-I has been added to Section 499 IPC to ensure that

defamation of a deceased person is also culpable. The Honorable court

further explained who has the cause of action The offending publication
should not only be defamatory to the deceased. It must also be intended to
be hurtful to the feelings of his family or other near relative, it is stipulated.
Every lineal descendant or every person interested in the deceased cannot
complain of defamation against the deceased. Firstly, such complainant must
be a member of the family of the deceased or must be a near relative of his.
The words family or other near relative significantly are not defined in
Section 499 IPC. Such expressions are not defined in the Indian Penal Code.
The expressions family and other relative are expressions which can have
different shades of meaning depending on the circumstances and the
purpose which a statutory provision is intended to achieve. Any attempt to
understand the sweep, width and amplitude of the expressions family or
other near relative must certainly be made conscious of the purpose which
Section 499 IPC and Explanation-I thereto have got to achieve.

In the landmark caseMrs. Pat Sharpe vs Dwijendra Nath Bose on 12 July,

1963the Honorable court held that Even if Netaji is dead, it is defamation
because the imputation would have harmed his reputation if alive and the
imputation must be said to have been intended to be hurtful to the feelings
of his family or other near relatives, Thus in any view of the matter the
words used do amount to defamation.

In the case Sh. Raghu Nath Pandey And Anr. vs Sh. Bobby Bedi And Ors. on
22 February, 2006, the Honorable court held No action for defamation can
be taken in respect of a dead person since defamation is a personal wrong
and the legal right does not survive and is not actionable after the death of
the person in view of principle laid down in the maxim actio personalist
monitor cum persona. c) The suit is bad for non-joinder of defendants No.3,
4, 6 and 7 who are the director, script writer, lead actor and lead actress
respectively, are unnecessarily imp leaded even when no relief is claimed
against them. Any false imputation amounts to defamation whether the
concerned person is alive ordead. To defame a dead person is not a tort, but
if such statement though expressly referring to the deceased reflects upon
the dead person and affects his reputation, the legal representatives can
maintain the action. (See: AIADMK, Madras v. K. Govindan Kutty (1996 (2)
ALD 139).

In Basant Kumar Birla & Ors vs Prakash Jha & Ors on 11 October, 2012 there
was no action in defamation lies against any libel or slander against dead
persons. So the cause of action is of the present members of the family, who
are the plaintiffs.

In Mahtab Singh vs Hub Lal And Anr. on 13 May, 1926A reference has been
made on behalf of the appellants to Section 89 of the Probate and
Administration Act which has now been replaced by Section 306 of Act 39 of
1925. This provision however only authorizes an executor or administrator to
recover all demands due to a deceased parson, and to enforce all rights to
prosecute or defend any suit or proceeding in favor of or against the person
at the time of his decease, except causes of action for defamation, assault or
other personal injury not causing the death of the party concerned, and
except also cases where after the death of the party the relief sought could
not be enjoyed or the granting of it would be nugatory

Suggestions
A. Modern Remedies in Lieu of a Cause of Action
Since courts today are not willing to impose liability for defamation of the
dead, plaintiffs bringing action for the same have the option of 3 remedies
available
(1) Damages for emotional harms suffered because of the publication.
(2) Damages for financial losses resulting from the publication.
(3) A judicial declaration that the defamatory statement is false.
The plaintiffs odds of being successful in each of these remedies is discussed
in this part. This analysis further brings to light the need to impose liability
for defamation of the dead, as these measures are inadequate in modern
society.

B. Legislative Solutions
The defamation is considered a very serious issue by some citizens and
legislators, who still try to change the ancient rule through legislation, not
deterred by the failed attempts to do the same in the past, such as in New

York. This Part debates various conceivable legislative solutions to the issue.
It further emphasizes the need to balance between freedom of speech and
protection of individual rights, along with the appropriate relief. This section
further independently analyses each of the alternate relief options discussed
previously in light of the duty of the state to maintain balance between
individual and societal interests.