Defences for Defamation

 Defamation is defined as “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 him.” The Indian Penal Code, 1860 defines defamation as the wrong done by a person to another’s reputation by words, signs or visible representation (S. 499) . The aim of the law of defamation is to protect one’s reputation, honour, integrity, character and dignity in the society. Defamation is both a crime and a civil wrong. An aggrieved person may file a criminal prosecution as well as a civil suit for damages for defamation.

There is no statutory law of defamation in India except the Chapter XXI (Section 499 -502) of the Indian Penal Code. As far as civil liability of defamation is concerned, it has been long settled in the country that an action for damages would lie in proper cases. A large number of artificial and technical rules have grown around this branch of law in England. Though courts in India are not bound by them however, the dicta may be helpful in that they can be applied to Indian cases as principles of equity, justice and good conscience.

Under common law there are some general defenses available to all torts like consent, apology, accord, limitation and previous judgments. Another defence, ‘Secondary Responsibility which was earlier embedded in the defence of ‘innocent disseminators’ is also being discussed.

Accord – 

Accord signifies the presence of assent from the plaintiff. In Lane v. Applegate[(1815) 1 Stark 49] the defendant burnt libelous papers on plaintiffs agreeing not to sue if that was done. The court held that as there was a prior accord from the plaintiff he could now not claim for damages.

Apology –

An apology is not under the common law, a defence to an action for defamation but it is only a circumstance in mitigation of defences. However, in England under the Libel Act of 1943 this defence is available under certain circumstances. For example- Apology is available as a defence in actions for libel against newspapers and other periodical publications if the newspaper inserts a sufficient apology and adheres to certain other conditions. When there is an apology and an acceptance there of the defendant can resist the plaintiff’s suit for reimbursement for defamation. Nevertheless, there has been no similar legislation in India. In past judgments the court has held that even if the plaintiff accepted an apology and withdrew a criminal prosecution for defamation he can still sue the defendant in a civil suit (Govindacharylulu v Srinivasa Rao AIR 1941 Mad 860. This ratio was reiterated in Narayanan v Mahendra AIR 1957 Nag 19).

Consent – 

As observed by Salmond if the plaintiff has expressly or impliedly consented to the publication complained of or if it had invited the defendant to repeat those words before witness the defendant can use this defence. If a person telephones a newspaper with false information about himself, he would not be able to sue in defamation when the newspaper publishes it.

Limitation – 

In India, the right to take legal action for defamation is restricted in accordance with the Limitation Act, 1963 to a period of one year. (Section 75 and Section 76 of the Limitation Act limit the period of filing a suit for compensation of libel and slander respectively to one year).

Specialized Defence to Defamation

„« Justification by Truth 

„« Fair (and bona fide) Comment

„« Privilege (which may be either absolute or qualified)