Overview: Defamation | Law of Torts - CLAT PG PDF Download

Introduction

• Defamation refers to the injury or harm caused to a person's reputation, which is considered more valuable than other forms of property.
• Defamation is broadly categorized into two types: (a) libel and (b) slander.

Libel vs. Slander

• Libel involves defamatory statements addressed to the eye, such as written, printed, or visual representations.
• Slander pertains to defamatory statements addressed to the ear, typically in a transient form like spoken words.

Examples

• Slander: Spoken words that defame someone.
• Libel: Defamatory statements in writing, printing, pictures, or other permanent forms.

Legal Distinctions

• In English law, the distinction between libel and slander is significant for two main reasons:
• Criminal Law: Only libel is recognized as a criminal offense, while slander is not.
• Law of Torts: Slander is actionable only with proof of special damage in most cases, whereas libel is actionable per se, meaning without the need to prove any damage.

Exceptional Cases for Slander

• Slander is actionable per se in the following exceptional cases:
• Imputation of a criminal offense to the plaintiff.
• Imputation of a contagious or infectious disease to the plaintiff, preventing others from associating with them.

Imputation of Incompetence, Dishonesty, or Unfitness

• Imputation that a person is incompetent, dishonest, or unfit in relation to their office, profession, calling, trade, or business.

Imputation of Unchastity or Adultery

• Imputation of unchastity or adultery to any woman or girl.

Requisites of Defamation

The key elements of defamation include:

• Defamatory Words: These are words or statements that harm a person's reputation. A reputation is harmed when a person is viewed negatively by society or when others choose to avoid them. Essentially, any statement that subjects the individual to disgrace, humiliation, ridicule, or contempt is considered defamatory. The test for determining if a statement is defamatory is based on how ordinary, reasonable members of society perceive it. If they find the statement to be disgraceful, humiliating, ridiculous, or contemptuous, then it is defamatory. It is important to note that it does not matter what the intent of the person making the statement was; if the statement is likely to damage the reputation of the person being talked about, it is defamatory. Statements that only hurt someone's feelings or cause annoyance, without damaging their reputation or character, are not considered libelous. Sometimes, defamatory statements are made not directly but through innuendos—words that seem harmless but have a hidden, defamatory meaning.
• Reference to the Defamed Person: The defamatory words must refer, either directly or indirectly, to the person being defamed.
• Publication: The defamatory words must be published through any medium.

Defamatory Words

• Defamatory words or statements are those that harm a person's reputation. A reputation is harmed when someone is viewed less favorably by society or when others choose to avoid them. In simple terms, if a statement makes someone look disgraceful, humiliating, ridiculous, or deserving of contempt, it is considered defamatory.
• To determine if a statement is defamatory, we ask how reasonable people in society would react. If they find the statement shameful, embarrassing, silly, or contemptible, then it is defamatory. It doesn't matter if the person making the statement didn't mean to harm the reputation; if the statement is likely to hurt the person's reputation, it's defamatory.
• Words that only hurt feelings or annoy someone but don't reflect badly on their reputation or character are not considered libelous. Sometimes, people use innuendos—words that seem innocent but have a hidden, defamatory meaning—to make defamatory statements.
• For example, if person A tells person B in front of person P that "P is a very honest man; he could never have stolen anything," the statement is defamatory if B understands from it that P is actually dishonest. If the words or statements are defamatory, it doesn't matter what the intention behind them is.

Defamation and the Case of Morrison v. Ritetise

• In the case of Morrison v. Ritetise, a person named R, acting in good faith, published a false statement claiming that a woman named M had given birth to twins. However, M had only been married for two months at the time. The court ruled that the statement was defamatory.

Words Must Refer To The Person Defamed

• In any defamation case, it is crucial for the person claiming to be defamed to prove that the defamatory words or statement were directed at them. This means that the statement should be such that the person being defamed could reasonably infer that it referred to them.
• In the case of Jones v. Holton & Co., it was noted that if a person is identified in a libel by description without their name being mentioned, the plaintiff must convince the jury that ordinary readers of the publication would understand the description referred to the plaintiff.
• An example of this principle is seen in the case of Newstead v. London Express Ltd. where a news item in a newspaper stated, ‘Harold Newstead, a Camberwell man, has been convicted for bigamy.’ The news was accurate for Harold Newstead, a Camberwell barman. However, another Harold Newstead, a Camberwell barber, believed the news referred to him and sued for defamation. Since the statement was understood to refer to Harold Newstead, the barber, it was deemed defamatory, even though the newspaper did not intend to refer to him.
• The situation in English Law was considered problematic as it could wrongfully convict innocent individuals. To address this, the Defamation Act of 1952 was enacted. Under this Act, if the publisher of a statement did not intend to refer to another person, or if the words were not defamatory on their face and the publisher was unaware of the circumstances making them defamatory, they would not be held liable.
• Generally, defamation cannot be claimed by a class of individuals. For instance, if someone says, ‘lawyers are liars’ or ‘all doctors are incompetent,’ no specific lawyer or doctor can sue for defamation unless they can prove that the statement referred to them personally.
• In the case of Knupffer v. London Express Newspaper Ltd., Lord Atkin stated that a defamatory statement made about a firm, trustee, or tenants of a particular building is actionable if the words would reasonably be understood as applying to each member of the firm, each trustee, or each tenant.

Defamation and Publication

Publication in Defamation

• Publication is a crucial aspect of defamation, as no defamation is established unless the defamatory statement or material is published. Publication does not necessarily mean dissemination through press or leaflets.
• If the defamatory statement is brought to the notice or knowledge of any person, even a single individual other than the defamed person, it constitutes publication.
• For example:
• Publication: Dictating a defamatory letter to a stenographer or typist constitutes publication.
• Non-Publication: When a defamatory matter enclosed in an envelope is not considered publication. If a third person mistakenly opens a letter not meant for them (e.g., a father reading a letter intended for his son), it does not amount to publication.
• Postcard or Telegram: If a defamatory letter is written on a postcard or telegram, it amounts to communication of defamation regardless of whether someone has read it or not.
• Language Barrier: If a letter is written in a language the defamer does not understand and needs to be read by someone else, it still constitutes communication.
• Spousal Communication: When one spouse writes a defamatory letter to the other, there is no defamation due to lack of publication.
• In the case of T.J. Ponnam v. M.C. Verghese, the Supreme Court ruled that if defamatory letters fall into the hands of the defamed person, they can be proven in any other manner, and if proved, an action for defamation will lie.
• If a third person writes a defamatory letter about one spouse to the other in a manner likely to be read by the former, it constitutes sufficient communication.

Defenses in Defamation Cases

Defenses in defamation cases play a crucial role in determining the outcome of such legal disputes. Understanding these defenses is essential for both plaintiffs and defendants involved in defamation claims.

1. Justification or Truth

• In defamation cases, the defense of truth is the most potent. The law does not allow a person to recover damages for injury to character if they do not possess or should not possess the alleged character trait.
• The defense is still applicable even if the statement is made with malice.
• If the statement is substantially correct, even if there are minor inaccuracies, the defense holds. For example, in the case of Alexander v. North Eastern Rly., a newspaper published that X was sentenced to a fine of £1 or three weeks imprisonment, while in reality, X was sentenced to a fine of £1 or 14 days imprisonment. The court held that the statement was substantially correct, and no action could be taken.
• If the defamer fails to prove the truth of the statement, they are liable.

2. Fair Comment

• Fair Comment is the second defense in a defamation action, asserting that the statement was a fair opinion in the public interest.
• Key elements of this defense include:
  • Comment: The statement must be an expression of opinion.
  • Fairness: The comment must be fair and based on true facts.
  • Public Interest: The comment should serve the public interest.
• It is important to differentiate between comment and statement of facts. A comment is an opinion about certain facts and circumstances, while a statement of fact is a factual assertion.
• For instance, if B reads A's book and says, "It is a foolish book," or "A must have an impure mind," these are comments. However, if B states, "A's book is foolish and indecent because he is weak and of impure mind," the latter is a statement of fact.
• Comments are always based on facts, which should be generally known or made known by the commentator before commenting. For example, if A says, "B is guilty of breach of trust," it is a statement of fact and must be true. If A adds, "B is, therefore, a dishonest man," it is a comment. However, if the audience does not know the fact about B's conviction, the latter statement becomes a statement of fact.
• Comments should be based on true facts. A comment is not fair if it relies on untrue facts.

Privilege

Privilege is a key principle that recognizes certain circumstances where freedom of speech takes precedence, even if the speech is defamatory. In such cases, an individual's right to reputation is secondary to the privilege of free speech. This privilege can be either absolute or qualified.