DEFAMATION

Elucidate on the tort of defamation.

• Introduction
Defamation is a process for safeguarding the right to freedom of expression (Article 19) by ensuring that no one damages the reputation of any individual or tends to create a negative image of the defamed person in the public sphere.

To give you an idea of what this is all about, let’s say that two party candidates, A &B are contesting the election. On the other hand, B is saying, “I know A is corrupt, I know he has taken money from people in the past. Don’t give her vote.” This statement is completely false, and it tarnishes the image of A. Nobody in the public is going to vote for a person who is corrupt. This directly defeats A in the election. To prevent this, provisions regarding Defamation are available in Section 499 to Section 502 of the Indian Penal Code, 1860.

• Meaning
“Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.” – Section 499-Defamation, the Indian Penal Code, 1860.

“Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.” – Section 500- Punishment, the Indian Penal Code, 1860.

“Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.” – Section 501- Printing or engraving matter known to be defamatory, the Indian Penal Code, 1860.

“Whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.” – Section- 502 Sale of printed or engraved substance containing defamatory matter, the Indian Penal Code, 1860.

Libel is a representation made in a permanent form like writing, movie, picture etc. For e.g., X printed some advertisement saying Y is bankrupt but Y was not thus it was representation in a specific form.
Slander, on the other hand is the publication of a defamatory statement in transient form like spoken words or gestures. For e.g., A questions the chastity of B in an interview, A is slanderous.

Under the Indian law, Libel and Slander are considered to be as Defamation under the Indian Penal Code, 1860.

• Difference between Libel and Slander

Sr. No.	Libel	Slander
1	It is a visible form of defamation	This type of defamation can be heard.
2	The defamatory statement is made in some permanent and visible form, such as writing, printing, pictures and effigies.	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.
3	It is an actionable tort as well as a criminal offence.	It is a civil injury only and not a criminal offence except in certain cases.
4	It is actionable per se (in itself) i.e., without proof of actual damage.	It is actionable only on proof of actual damage.

• Interpretation
The Statement should be made- An allegation can be made through words or phrases that are intended to be heard, or through symbols or images. For instance, if A is asked, “Who stole B’s diamond ring?” A point to C, with the intent of causing everyone to think that C stole B’s diamond. This is an allegation of slander.

The Statement must refer to the plaintiff- Defamatory statements must mention a person, a class of persons, or a company’s trustees. The reference can be explicit or implicit. The plaintiff does not need to be named if he or she can still be identified. The person named in the statement can be a living person or a deceased person. A defamation suit can only be filed in the name of a deceased person if the plaintiff has an interest in the case.

The Statement must be defamatory- Defamation begins with a statement, and anyone who makes a slanderous statement can be sued for defamation. A slanderous statement tends to reduce the positive opinion of a person, and it has the effect of making others look upon him with hatred, contempt, fear or loathing. Abusive language can also be slanderous, such as calling a man a hypocrite, or accusing him of being a habitual drinker. Here are some examples to help you understand what is slanderous and what is not.

The intention of the wrongdoer- The defamatory statement is made by the person who knows that there is a high likelihood of others believing the statement and that it will hurt the reputation of the defamed person.

The Statement should be false- The defamatory statement is made by the person who knows that there is a high likelihood of others believing the statement and that it will hurt the reputation of the defamed person.
The Statement should not be privileged- In some cases, the statements may be privileged i.e., the person who has made the statement is protected from such liability.

The Statement must be published- In order for a statement to be considered defamatory, it must be made public. The statement must be made to a third person. A personal diary or personal message does not constitute defamation. However, if the sender of the statement knows that a third person is likely to read it, then the statement constitutes defamation.

The third party believes the defamatory matter to be true- The other people of the society believe that the defamatory matter said about the plaintiff is true.

The Statement must cause injury- The statement made should harm or injure the plaintiff in some way. For example, the plaintiff lost his job because of the statement made.

Publications by two or more persons- If two or more people conspire to write or speak defamatory words about another person, and one person writes or speaks them in the presence of the others who conspired to write or speak the defamatory words, all of the parties may be sued as joint tortfeasors, provided that the defamatory word has been disclosed to third parties other than the parties acting together or to the plaintiff.

Repetition of defamatory words- As a rule of law, the first person to make a statement that is defamatory is not held liable if that statement is repeated by another person, even if that person states explicitly that they are repeating what they have heard from another person. No one is entitled to repeat a statement that is slanderous without any basis for doing so. However, if a person who knows that a statement is defamatory and continues to repeat or communicate it, then he or she is also liable for defamation.

Defamation by omission- There may also be publication by negligence. If a defendant has the authority and ability to remove the defamatory material that is the property of another person, then that is publication by the defendant. For instance, if someone posts a slanderous letter on the club notice board and the person responsible for the club notice board has failed to remove the slanderous letter within a reasonable period of time, then that person will be held accountable.

• Case Laws

1. The statement must be defamatory in nature – In Ram Jethmalani V. Subramanian Swamy Subramanian Swamy, who is accused of Gandhi’s death, represented Tamil Nadu’s then chief minister J. Jayalalitha, who was accused of having links with the LTTE. The defendant made the “written final argument” in which it was alleged that Ram Jethmalani also received money from the LTTE. The plaintiff brought a case against the defendant on this allegation. It was found that firstly, the accused’s statement was false and that the Rs 5 lakhs were paid to the complainant as compensation.

Ramdhara V. Phulwatibai
It has been held that the defendant’s indictment that the appellant, a 45-year-old widow, is the guardian of the mother’s uncle of the plaintiff’s daughter-in-law is not a mere vulgar assault, but a definite indictment of her chastity and therefore constitutes defamation.

South Indian Railway Co. V. Ramakrishna
It was held a rail ticket checker calling for proof of identification and other documentation as part of his job is not a defamation, as he has not published a defamatory statement.

2. The statement must refer to the plaintiff – In Dhirendra Nath Sen V. Raj It was held that when an editorial of a newspaper is defamatory of a spiritual head of a community, this doesn’t give right of action to any individual of that community.

Ritnand Balved Education Foundation V. Alok Kumar
The defendant was in- house Legal Attorney of the plaintiff (RBEF). The defendant after leaving the job, joined a London based firm. He was alleged to have provided confidential information and other such documents which were obtained by fraudulent means to the opposite solicitors. Due to illegal acts of the defendant, the plaintiff suffered damage and also harmed the reputation of the founder president, founder trustee and its institution.

John Thomas V. Dr. K. Jagadeesan
When the target of the defamatory statements are the individuals in the institution, then it is the individuals alone who can file a suit. In such a situation the institution would have no case of action to file a suit.

3. The statement must be published – In Arumuga Mudaliar V. Annamalai Mudaliar ,if a third person wrongfully reads a letter which wasn’t meant for him but to that of plaintiff. The defendant is not liable for defamation as there was no publication by the defendant.

Theaker V. Richardson
If a third person reads a letter which was likely to be read by a third person even though it was meant for the plaintiff, there is a publication.

Mahendra Ram V. Harnandan Prasad
the defendant sent a defamatory letter written in Urdu to the plaintiff. The defendant was aware of the fact that the plaintiff had no knowledge of Urdu language. It was held; the defendant was liable as he knew at the time of writing the letter that the plaintiff has no knowledge of Urdu language and he would need a third person to read and translate for him.

Prameela Ravindran V. P. Lakshmikutty Amma
It was held if a statement regarding the validity of the marriage of a person is uncalled for and it is likely to jeopardize the reputation of a person than the person making such statements can be restrained from doing so.