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Defamation - Tort and Constitutional Comparative Study

Updated: Jan 22, 2020


A man's reputation is his property and is more valuable than any other tangible asset. Every man has the right to have his reputation preserved. It is acknowledged as an inherent personal right of every person. It is a jus in rem, a right good against all the people in the world. The degree of suffering caused by loss of reputation far exceeds that caused by loss of any material wealth.

Defamation is the publication of a statement which reflects on a person's reputation and tends to lower him in the estimation of right-thinking members of society generally, or tends to make them shun or avoid.

Law of Defamation, like many other branches of tort law, lims at balancing the interests of the parties concerned. These are the rights that a person has to his reputation vis-2-vis the right to freedom of speech.

The Law of Defamation provides defences to the wrong such as truth and privilege thus also protecting right of freedom of speech but at the same time marking the boundaries within which it may be limited. In India, tort law is obtained from British Common Law and is yet uncodified.

Therefore, the existing law relating to defamation places reasonable restrictions on the fundamental right of freedom of speech and expression conferred by Article 19(1) (a) of the Constitution and is saved by clause (2) of Article 19.

Types of Defamatory Statements - There are two types of defamatory statements.

  1. Libel: It is the publication of a false and defamatory statement tending to injure the reputation of another person without lawful justification or excuse. The statement must be in a printed form, e.g. writing, printing, pictures, cartoons, statue, waxwork, e,ffigy,etc.

  2. Slander: It is a false and defamatory statement by spoken words and/or gestures tending to in.jure the reputation of others. It is in a transient form. It also involves the sign language used by the physically disabled.

In Common law, a libel is a criminal offence as well as a civil wrong, but a slander is a civil wrong only. However, in Indian law, both are criminal offences under Section 499 of the TPC. Libel is more favorable to the claimant because it is actionable per se and injury to reputation will be presumed.

Constituents or Elements of Defamation

Regardless of whether a defamation action is framed in libel or slander, the plaintiff must 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. Thus, there are three essential elements in a defamation action, viz. the following.

1. 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; it could be oral, in writing, printed or by the exhibition of a picture, effigy or statue or by some other means or conduct. According to Lord Atkins (1936, p.1237), whether a statement is defamatory or not depends upon how likely the right-thinking members of the society take it. 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.

2. The statement must refer to the plaintiff:

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 against whom the statement was published could reasonably infer that the statement referred to the plaintiff, the defendant is nevertheless liable.

However, when the defamation refers to a class of persons, no member of that group 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 other third party, and unless that is done no civil action for defamation can lie in court. Communication to the plaintiff won't count because defamation is injury to the reputation which consists in the estimation in which others hold him and not a man's 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.

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.

Defences to Defamation

Following are the defences available to defamation.

1. Justification by 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 noi permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess".

if a fair and bona fide comment on a matter of public interest is a defence to be available, the following essentials are required:

  • It must be a comment, i.e. an expression of opinion rather than an assertion of fact;

  • The comment must be fair, i.e. must be based on the truth and not on untrue or invented facts

  • The matter commented upon must be of public interest.

2. Privilege:

It is of the following two kinds.

a ) Absolute Privilege: Certain statements are allowed to be made when the larger interest of the community overrides the interest of the individual. No action lies for the defamatory statement even though it may be false or malicious. In such cases, the public interest demands that an individuals right to reputation should give way to the freedom of speech.

This privilege is provided to:

  • Parliamentary proceedings

  • Judicial proceedings,

  • Military and Naval proceedings, and State proceedings.

b ) Qualified Privilege: It is communications made in the course of legal, social or moral duty for self-protection,protection of common interest, and for public good and proceedings at public meetings, provided the absence of malice is proved. Also, there must be an occasion for making the statement.

To avail this defence, the following things must be kept in mind:

  • The statement should be made in discharge of a public duty or protection of an interest; or

  • It is a fair report of parliamentary, judicial or other public proceedings; and

  • The statement should be made without any malice.

Defamation does have great significance as it protects a right which is essential for the members of society to co-exist. Obviously, if people do not respect that right and are allowed to say and publish whatever they want without substantiating it with an honest reason to believe, then there would be no harmony in society; insecurity would be rampant and society would be in shambles.

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