Tortious Liability For Defamation
Written by Shruti Gala
In Indian culture, we often hear people say ‘Man’s most valuable asset is his reputation, thus it comes as no surprise that the Indian Constitution does have the provision to protect one’s reputation from false rumours. Defamation is said to be any written or oral statement to someone which is likely to malign that person’s reputation. In legal terms, defamation is a civil wrong that comes under the law of torts which consists of an injury to one’s reputation. This injury if oral is called slander while the written form of defamation is called libel. In English law, libel is constituted as a crime and tort both however slander is only a civil wrong.
According to the Indian Constitution, there is no particular distinction based on the type of defamation and both slander and libel come under civil as well as criminal offences. In the Indian Penal Code, defamation is under Section 499 and Section 500 with the punishment of imprisonment up to two years or a fine or both with respect to criminal charge while one can only claim monetary compensation if charging under a civil wrong. The choice between criminal and civil charges lies with the plaintiff.
Elements Of Defamation
It is important to note that there are certain pre-requisite elements that have to be fulfilled in order to charge someone with defamation. Following are the essentials of defamation:
- The statement should be made : This statement could be either by written, oral or even through signs. For example, A publishes an article about B calling him a murderer, A tells a group of people that B is a murderer or A points at B when asked about the murderer. In all the above situations, B can file a suit against A for defamation.
- The statement must concern the plaintiff : This implies that if a reasonable man can infer from a statement that the said statement is about the plaintiff , a charge can be filed. This extends to the person, class or community as a whole. It is not necessary for the plaintiff’s name to be explicitly. In Hulton & Co v James, the newspaper wrote an article about a fictional character named Armetus James however a person with the same name filed a lawsuit against the newspaper because his friends and family believed the article was referring to him. The Court had held the newspaper liable and the plaintiff was given compensation for the same.
- The statement must be defamatory: It goes without saying that the statement has to actually be defamatory in nature. Here it implies that due to this particular statement, there is a loss of reputation of the person about whom the statement refers to. Merely critical opinions or insults cannot be constituted as defamation. For eg , in the Indian context, in 2019 , BJP candidate Sadhvi Pragya Thakur filed a defamation case against the veteran Bollywood lyricist and screenwriter Javed Akhtar for comparing her to “Ravana”. She further claimed that by putting across such claims Akhtar was trying to provoke the voters against her. However this suit was not valid because it was merely an insult not something defamatory.On the contrary, if A says that B’s medical degree is fake, it will be defamation because this would lead to people having a doubt in their minds against A’s service.
- The statement must be published : The word ‘published’ here means come within the knowledge of a third party. If the statement is not read, heard or seen by a third person apart from the plaintiff and defendant then the tort of defamation will not be valid. For eg, A writes false rumors about B in his personal diary which is read by him alone, this alone would not amount to defamation but if this diary is read by C it will amount to defamation.
- The statement must be false: Arguably the most important element for defamation would be the statement to be false. If the statement is true then irrespective of the damage caused to the person , a defamation suit cannot be filed.Additionally, the object of the statement cannot be subjective in nature or dependent on the person’s opinion. For eg, A accuses B of stealing his expensive vase, hearing that the company B works for fires him. Here if it is proved that B actually had stolen the vase , he cannot file a defamation suit against A.
- Intention to defame: It is to be noted that whether or not, the defendant had the motive or intention to defame the plaintiff is not necessary. If the injury causes harm to the plaintiff, the defendant is automatically held liable irrespective of the intention.
Defences Against Defamation
- Justification by truth : Truth is an absolute defence. If the defendant can prove that the statement made is true or authentic, the defamation suit will automatically be void. Here, the burden of proof lies with the defendant to prove that the statement made was authentic. For eg, A accuses B for stealing from their company and B files a defamation suit against A. If A can prove that B actually stole from the company then the defamation suit will be dismissed
- Fair comment: A comment made in public interest will not be defamatory in nature. The defendant can claim this defence if he has only made a fair statement in matters concerning public interest. Public interest would include statements made against the governments, public companies, courts, public representatives, etc. In this case, the comment need not be true provided it is a fair and honest opinion for the betterment of the public.
- Privilege : It is further classified into absolute and qualified privilege. Absolute privilege gives an absolute right to make a statement irrespective of whether or not it is defamatory. It exempts statements made during judicial proceedings, by government officials, by legislators during a parliamentary proceeding, during political speeches, communication between spouses. For eg, in T J Ponnen v M C Verghese , a letter which contained defamatory statements about the father-in-law were exchanged between a husband and wife. Here, the Court held that there is an absolute privilege that exists between the two spouses which exempts them from any liability. Qualified privilege is a privilege when the defendant can avail of an exemption when the statement may be defamatory but made with no malicious intent. For example, a teacher warning the parent of a child about his habit of stealing . The statement may be defamatory but said in the best interest of the child.
The law of defamation serves as an important protection of one’s dignity or reputation from malicious intentions. There is a thin but very crucial line that exists between freedom of speech and expression and hurting someone’s sentiments. Article 19 of the Constitution that guarantees this freedom also puts necessary curbs on the same. The fundamental rights are not absolute in any way and come with necessary restrictions. Similarly, the right to life under Article 21 would include the right to reputation.