Defamation 

Theoretical overview

Defamation in tort law refers to any oral or written statement made by a person that damages the reputation of another person. Defamation is a public communication which tends to injure the reputation of another.

Defamation in tort law means offence of injuring a person’s character, fame, or reputation by false and malicious statements

Defamation are of two types:

1. Libel
2. Slander

• Slander: – The defamatory statement is made by spoken words or some other transitory form, whether visible or audible, such as gestures, hissing or such other things. It is addressed to the ears. It is a civil injury only and not a criminal offence except in certain cases. It is actionable only on proof of actual damage.
• Libel: – The defamatory statement is made in some permanent and visible form, such as writing, printing, pictures and effigies. It is addressed to the eyes. It is an actionable tort as well as a criminal offence. It is actionable per se (in itself) i.e., without proof of actual damages

elements of defamation in tort law

1. A Statement should be Made: – A statement can be made either by spoken or intended to be read, or by signs or by visual representation. For example, ‘A’ is asked who stole B’s watch ‘A’ point to C, whose aim is to make everyone believe that ‘C’ has stolen the watch. This is defamation.
2. Statement must mention Plaintiff: – The defamatory statement must mention the person, class of persons or trustees of the company. The context may be express or implied. The person referred to in the defamation statement may be alive or dead, however, a defamation suit can be filed on behalf of the deceased person only if it is in the interest of the person filing the suit.
3. The Statement must be Defamatory: – Defamation begins with someone making a statement, and any person who makes a defamatory statement can be held liable for defamation. A defamatory statement diminishes the good opinion the good opinion others have about the person and tends to view others with a sense of hatred, ridicule, fear or dislike. Abusive language can also be defamatory, for example, calling someone a hypocrite or a habitual alcoholic.
4. Statement must be Published: – In order to be defamatory, the statement must be published. The statement must be reported to the third party. Any statement written in a personal diary or sent as a personal message does not amount to defamation, but if the sender knows that it is likely that a third person may read it, it amounts to defamation.

Defences to an action for defamation

1. Justification or Truth: Truth is a perfect defence. If the statement given is genuine then it does not constitute defamation. The burden of proof is on the defendant who is claiming the defence
2. Fair comment: Making fair comment on matters of public interest is a defence to an action for defamation. For this defence to be available, the following essentials are required :

1. It must be a Comment, i.e., an expression of opinion rather than assertion of fact;
2. The comment must be fair, and
3. The matter commented upon must be of public interest.
4. Privilege:  There are certain occasions when the law recognises that the right of free speech outweighs the plaintiff’s right to reputation : the law treats such occasions to be “privileged” and a defamatory statement made on such occasions is not actionable. Privilege is of two kinds : ‘Absolute’ privilege and ‘Qualified’ privilege.

Important case laws

1. Shreya Singhal vs. Union of India on 24 March, 2015

Facts of the case: – The petitioners challenged the validity of Section 66A of the Information Technology Act (ITA), saying it was not a reasonable restriction on the freedom of speech and expression guaranteed under Art. 19(1)(a) of the Constitution. They argued that the impugned section was unconstitutional as it provides protection against annoyance, inconvenience, insult, injury or criminal intimidation which is not covered in Article 19(2).

Judgment of the Case: – The court found Section 66A of the ITA ambiguous and invalidated it on the ground that it violated the right to freedom of speech and expression.

2. Newstead vs. London Express Newspapers Ltd [1940] 1 KB 377

Facts of the case: – The defendants published an article stating that ‘Harold Newstead, a Camberwell man’ had been convicted of bigamy. The story was true of Harold Newstead, a Camberwell barman. The action for defamation was brought by another Harold Newstead, the barber.

Judgment of the case: – As the words were considered to be understood as referring to the plaintiff, the defendants were liable.

Points to remember

• Defamation in tort law means offence of injuring a person’s character, fame, or reputation by false and malicious statements
• The defamatory statement is made by spoken words or some other transitory form, whether visible or audible, such as gestures, hissing or such other things. It is addressed to the ears. It is a civil injury only and not a criminal offence except in certain cases. It is actionable only on proof of actual damage is called slander.
• The defamatory statement is made in some permanent and visible form, such as writing, printing, pictures and effigies. It is addressed to the eyes. It is an actionable tort as well as a criminal offence. It is actionable per se (in itself) i.e., without proof of actual damages is called libel.