Defamation: A Tort And A Crime

Coverage of this Article

KEY TAKEAWAYS

-Every man holds a ‘right to reputation’.It is a jus in rem – a right good against the public in large..

INTRODUCTION

-When viewed through the eyes of an average man, defamation refers to the act of publishing defamatory information that damages an individual's or an entity's reputation.

FURTHER DETAILS

-Salmond - Publication of false & defamatory statements about another person without lawful justification.

ESSENTIALS OF DEFAMATION

The words must be false and defamatory in nature.

SIM V STRETCH (1936), 2 All ER 1237

-The plaintiff's housemaid quit her job and went to work for the defendant. "Edith has resumed her work with us today," the defendant said in a telegram. 

SOUTH INDIA RAILWAY CO. V RAMAKRISHNA, 1890, 13 MAD. 34

-Facts: "I assume you are traveling with an incorrect (or fraudulent) ticket," the train guard stated to the plaintiff while examining the tickets and ordering him to present his ticket in front of the other passengers.

YOUSSOUPOFF V METRO GOLDWYN MAYER PICTURES LTD. (1934), (1934) 50 TLR 581

-Facts: MGM Ltd. released a picture in which a guy dubbed Rasputin plotted the ruins of Russia, only to be assassinated by Prince Chegodieff and others.

LIBEL and SLANDER are the two types of defamation proceedings recognized by English law.

-A libel is a false and defamatory remark that is published in some permanent form with the intent to harm another person's reputation without lawful reason or excuse.

TOLLEY V J. S. FRY & SONS LTD: CA 1930

-Facts: The defendants ran an advertisement in which a famous amateur golf champion was caricatured and shown playing golf with a packet of chocolate protruding from his pocket, with a comic caddy saying that the chocolate was as good as the plaintiff's drive (without his consent). The plaintiff claimed that this implied he had done so for profit and reward, that he had used his amateur golfer reputation for promotional reasons, and that he had engaged in conduct unbecoming of his status as an amateur golfer.

INNUENDO

-Sometimes a comment may prima facie be innocent (i.e., its natural and usual meaning is not defamatory), but it may be regarded defamatory due to some hidden or secondary meaning, such as innuendo - sarcastic or subtle words. Words that are not defamatory in the usual sense might have a defamatory connotation due to the context in which they are said. Even a congratulatory comment might be slanderous depending on the circumstances.

RULE IN INDIA

-The Madras High Court (in accordance with the Defamation Act, 1952) decided in T.V. Rama SubbaIyer v A.M.A. Mohideen (AIR 1972 Mad. 398), that there was no responsibility in India for remarks made unintentionally.

DEFENCES IN TORT OF DEFAMATION

-The truth of the defamatory matter is a complete defence in a civil defamation suit.

Defence of fair comment

-Authors, editors, reviewers, and others can use fair comments as defence.

Qualified and absolute privilege

-When the law acknowledges that the plaintiff's right to reputation is outweighed by the right to free speech, it is a person's freedom to talk about another and declare completely and freely what he honestly thinks to be the truth about his character and actions.

RETALIATION FOR DEFAMATION

-Criminal defamation is punishable by simple imprisonment of up to two years, a fine, or both, according to Section 500 of the Indian Penal Code, 1860.

CONCLUSION

-Defamation is a tort that occurs when someone's reputation is harmed. It is the act of endangering another's reputation by making a false statement to a third party.

KEY TAKEAWAYS

• Every man holds a ‘right to reputation’.It is a jus in rem – a right good against the public in large.
• The law of defamation provides for balancing of interest – an interest which a person has in his reputation v/s interest that a person has in his freedom of speech (Art 19(1)(a)).
• Defamation is when someone's reputation is harmed.
• If a person damages another's reputation, he does so at his own risk, just as if he interferes with their property. A person's reputation is his property, and it is potentially more valuable than other assets.
• Defamation can be both slander and libel in nature.

INTRODUCTION

When viewed through the eyes of an average man, defamation refers to the act of publishing defamatory information that damages an individual's or an entity's reputation. Slander is defined as defamation in spoken words or gestures (or other similar transitory forms), whereas libel is defined as defamation in written or printed form. In India, defamation is considered to be both a civil and a criminal offence. Defamation is covered by the Law of Torts in Civil Law, which imposes punishment in the form of damages granted to the claimant (person filing the claim). Defamation is a bailable, non-cognizable, and compoundable offence under criminal law. As a result, without a magistrate's warrant, the police cannot begin an inquiry into defamation (an FIR cannot be filed). The accused has the option of seeking bail. Furthermore, if the victim and the accused reach an agreement, the charges may be withdrawn (even without the permission of the court). The Indian Penal Code lists defamation as a criminal offence under section 499. Section 500 stipulates that the penalty for the offence of defamation may include simple imprisonment for a period of two years, a fine, or both.

The law of Defamation protects people against damages to their reputations. It objects and prevents the publication of false and defamatory statements against a person (including government, company, and organization) which harms its reputation in society.

FURTHER DETAILS

Meaning of defamation-

• Salmond - Publication of false & defamatory statements about another person without lawful justification.
• Winfield - Defamation is a publication of a statement which tends to lower a person in the estimation of the right-thinking members of society, generally, or which tends to make them avoid that person (in hatred, contempt not necessarily needed).

A statement made without just cause or excuse, whereby he suffers an injury to his reputation, not to his self-esteem – mere insult or abuse will not be covered. It degrades a person, exposes him to contempt, ridicule, or public hatred, or prejudices him in the way of his office, profession, or trade.

ESSENTIALS OF DEFAMATION

1. 1. The words must be false and defamatory in nature.
2. 2. The said or spoken words must refer to the plaintiff, and
3. 3. The words must be published.

• SIM V STRETCH (1936), 2 All ER 1237

The plaintiff's housemaid quit her job and went to work for the defendant. "Edith has resumed her work with us today," the defendant said in a telegram. “Please give her belongings as well as the money she borrowed, as well as her income." The plaintiff sought damages, claiming that the defendant's remarks were defamatory since they conveyed that the plaintiff was in such financial trouble that he had borrowed money from his servant. The court held that the remarks were not rationally capable of any defamatory interpretation.

• SOUTH INDIA RAILWAY CO. V RAMAKRISHNA, 1890, 13 MAD. 34

Facts: "I assume you are traveling with an incorrect (or fraudulent) ticket," the train guard stated to the plaintiff while examining the tickets and ordering him to present his ticket in front of the other passengers. The plaintiff presented the ticket, which was in good working order.

Held: The statements said by the guard were genuine, and there was no defamation under the circumstances of the case.

YOUSSOUPOFF V METRO GOLDWYN MAYER PICTURES LTD. (1934), (1934) 50 TLR 581

Facts: MGM Ltd. released a picture in which a guy dubbed Rasputin plotted the ruins of Russia, only to be assassinated by Prince Chegodieff and others. Princess Natasha willingly consentedto sexual intercourse with Prince Chegodieff, one of Rasputin's killers, but in the film, the same act was shown as raped by Rasputin. Princess Irina Youssoupoff was married to Prince Youssoupoff, the man who had assisted in the assassination of Rasputin in real life. The movie was a combination of both fiction and true events.

Defamatory material – the allegation that Rasputin committed rape against Princess Irina Youssoupoff.

LIBEL and SLANDER are the two types of defamation proceedings recognized by English law.

• A libel is a false and defamatory remark that is published in some permanent form with the intent to harm another person's reputation without lawful reason or excuse.
• A slander is a false and defamatory spoken or oral remark made in a temporary form with the intent to harm another person's reputation without lawful reason or excuse.

In Re Francis Mezzora, 2. N.Y. City Hall Recorded, 113, A person hired the defendant (who was a portrait painter) to paint his portrait. The customer refused to accept and pay for the portrait once it was completed, claiming that it was poorly done. The defendant then went on to paint a pair of asses' ears on the painting and sell it. The court decided that the libel was actionable.

What is the difference between facts and opinions?

Statements of opinion, in general, cannot be used as the foundation for a defamation lawsuit. On the other hand, a statement indicates defamatory facts about a person's reputation as the foundation of the view, it may be termed libelous or slanderous. It can be difficult to tell if a remark is a fact or an opinion, and the distinction is frequently disputed in these situations. This decision frequently determines the result of a defamation action.

Basic differences between libel and slander-

1. Libel is defamation in a permanent form whereas, slander is defamation in a transient form.
2. Libel is applicable in both civil and criminal law, whereas slander is applicable in only civil lawsuits.
3. Libel is actionable per se, whereas slander is actionable only if there are sufficient evidence and proofof special damage.

TOLLEY V J. S. FRY & SONS LTD: CA 1930

Facts: The defendants ran an advertisement in which a famous amateur golf champion was caricatured and shown playing golf with a packet of chocolate protruding from his pocket, with a comic caddy saying that the chocolate was as good as the plaintiff's drive (without his consent). The plaintiff claimed that this implied he had done so for profit and reward, that he had used his amateur golfer reputation for promotional reasons, and that he had engaged in conduct unbecoming of his status as an amateur golfer.

The court held that the circumstances reinforced the implication that the plaintiff had prostituted his standing for advertising, and hence the advertisement was defamatory for a man in his position. Earning money from golf or related activities or sponsorships, such as advertising, was incompatible with his amateur status.

INNUENDO

Sometimes a comment may prima facie be innocent (i.e., its natural and usual meaning is not defamatory), but it may be regarded defamatory due to some hidden or secondary meaning, such as innuendo - sarcastic or subtle words. Words that are not defamatory in the usual sense might have a defamatory connotation due to the context in which they are said. Even a congratulatory comment might be slanderous depending on the circumstances.

Example- a statement that a lady has given birth to a child might be defamatory in nature if she is unmarried.

• CASSIDY V DAILY MIRROR NEWSPAPERS LTD,1979, 2 KB 331.

1. Mr. Cassidy was not living with his lawful wife (Mrs. Cassidy), although he did visit her at her flat on occasion. "Mr. M. Cassidy, the racing house owner, and Miss 'X', whose engagement has been announced," the defendants wrote alongside an image of Mr. Cassidy and Miss 'X' in their publication.
2. Mrs. Cassidy filed a libel suit against the defendants, stating that the inference implied that Mr. Cassidy was not her husband and that he had been living with her in an illicit relationship. Some female acquaintances of the plaintiff testified that the publication had caused them to have a negative view of her.
3. The innuendo was established. The defendants' obvious innocence was not a defence.
4. "Whether the defendant knew or did not know of external factors that change a presumptively innocent remark into a defamatory statement is irrelevant," the court said. He must accept the risk, and he is responsible in any case if the asserted defamatory connotation might reasonably have been ascribed to the remarks."

RULE IN INDIA

• The Madras High Court (in accordance with the Defamation Act, 1952) decided in T.V. Rama SubbaIyer v A.M.A. Mohideen (AIR 1972 Mad. 398), that there was no responsibility in India for remarks made unintentionally.
• D.P. Chowdhery v KM. Manjulata (AIR 1997 Raj 170) – Facts: A local daily published a news item claiming that a 17-year-old girl had run away with a college boy (both from a prominent family), and the court found that the news item was untrue and was published negligently and irresponsibly, and the defendants were held liable.

The court decided that the aim or motive with which the words were used is usually irrelevant. Even if the remarks were published mistakenly or unwittingly, they are actionable if they are untrue and defamatory. When he wrote or said the words, every man must be considered to know and intend the natural and customary consequences of his thought.

DEFENCES IN TORT OF DEFAMATION

Justification by Truth

• The truth of the defamatory matter is a complete defence in a civil defamation suit.
• "A man cannot obtain damages for a harm to a character that he either does not or ought not to possess," says the law.
• Even if the publication was made deliberately, the defence is viable.
• Even if a defendant makes a defamatory remark without knowing its veracity, the defence is accessible if it turns out to be accurate.
• If the statement is untrue, however, it is irrelevant that the defendant honestly and reasonably thought it to be true.
• The defence cannot be used if the defendant is unable to establish the facts are true.
• Radheyshyam Tiwari v Eknath: AIR 1985 Bom 285

1. Facts: The defendant, a newspaper editor, printer, and publisher, published a series of articles accusing the plaintiff, a BDO, for issuing bogus certifications, accepting bribes, and using unlawful means in a variety of cases.
2. In a defamation case, the defendant was found guilty because he could not show that the facts, he published were factual.

Defence of fair comment

• Authors, editors, reviewers, and others can use fair comments as defence.
• 'Comment' refers to a critical evaluation of existing facts rather than the creation of new facts.
• 'Fair' denotes both 'honest' (i.e., without malice) and ‘relevant.'
• Finally, this comment must be in the public interest, such as government administration, public corporations, public institutions, and local governments, public meetings, movies, theatres, public amusement, textbooks, and novels, among other things.
• McQuire v Western Morning News Co., 1903. CA 1903

1. Facts: "A three-act musical farce, written and composed by T.C. McQuire, is constituted of nothing but rubbish, of a not very hilarious character, while the music is far from pleasant," the criticism stated.
2. Held that the words might be classified as criticism.

Qualified and absolute privilege

• When the law acknowledges that the plaintiff's right to reputation is outweighed by the right to free speech, it is a person's freedom to talk about another and declare completely and freely what he honestly thinks to be the truth about his character and actions.
• Defamatory statements are not enforceable under the law since such situations are considered "privileged."
• 'Absolute' or 'Qualified' privileges are available.
• Absolute Privilege - A remark is totally privileged if no action is taken in response to it, even though it is untrue, defamatory, and uttered with malice.
• Qualified privilege - There must be a reason for making the remark; it is not enough to prove that the topic is of wide public interest.
• A privileged occasion is one in which the person/newspaper making the communication has a legal, social, or moral interest in making it to the person/public to whom it is being made, and the person/public to whom it is being made has a comparable obligation or interest in receiving it.
• It's essential that the comment was stated without malice.
• The notion is that such communications should be safeguarded for the benefit of society as a whole.
• Rustom K. Karanjia V K.M.D. Thackersey :AIR 1970 Bom 424, (1970) 72 BOMLR 94, ILR 1971 Bom 324

1. Facts: In this case, an article appeared in Blitz, an English weekly, criticizing the "House of Thackersey," a corporate organization comprised of the plaintiff, his brother, and their spouses, as well as close friends and family.
2. The purpose of the piece was to show how the plaintiff, who was also the chairman of the Textile Control Board, had taken use of his position to acquire a great fortune through illegal and dubious ways such as tax fraud, and financial juggling, FERA breaches, and so on. The plaintiff sued R.K. Karanjia, the editor of the Blitz weekly, for slander.
3. The question is whether the qualified privilege defence applies.
4. The qualified privilege claim was dismissed for two reasons.

• In conveying the statement, the aspect of "obligation" was absent. The mere fact that the matter is of general public interest is not enough, according to the court.
• The article was published intentionally, not in the public interest, but to exact vengeance on the defendant editor, who had previously forced the plaintiff to apologize for publishing a libelous piece.
• Even when the newspaper tried to expose wickedness in high places, the court denounced 'yellow journalism, “sensationalism,' and ‘malicious and irresponsible assault.'
• A journalist has the right to speak on subjects of public concern, but he also has a duty to the public to provide accurate information. When a journalist does his own research, he must ensure that all his facts are correct and factual, so that if questioned, he can back up his claims.

RETALIATION FOR DEFAMATION

Criminal defamation is punishable by simple imprisonment of up to two years, a fine, or both, according to Section 500 of the Indian Penal Code, 1860.

Unlike criminal defamation, civil defamation normally entails the payment of damages to those who have been wronged by the accused.

CONCLUSION

Defamation is a tort that occurs when someone's reputation is harmed. It is the act of endangering another's reputation by making a false statement to a third party. Defamation is an infringement on one's right to a good name. The harm to a person's reputation is the core of defamation and he has a strong case against the defendants for this harm. Libel and slander are two types of defamation. In India, both are considered criminal crimes. There are several exceptions to this, which are referred to as privileges. The major goal of balancing the rights should be to practice one's freedom of speech and expression without jeopardizing one's public image.