Defamation law in India, law of defamation in India

1. KUNAL BASU
LLB SEM.-I
LAW OF TORTS
FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
Overview of Evolution of the Law of Defamation and its Practice in India
S
almond defines the wrong of defamation as the publication of a false
and defamatory statement about another person without lawful
justification1. According to Underhills, such a statement becomes
defamation if it is made about another without just cause or excuse, whereby he
suffers injury to his reputation (not to his self-esteem)2. He considers defamatory
statement as one which imputes conduct or qualifies tending to disparage or
degrade any person, or to expose him to contempt, ridicule or public hatred or to
prejudice him in the way of his office, profession or trade. Blackburn and George
define defamation as the tort of publishing a statement which tends to bring a
person into hatred, contempt or ridicule or to lower his reputation in the eyes of
right thinking members of society generally‖3. The words ―to lower his reputation
in the eyes of right thinking members of society generally‖ are taken from the test
suggested by Lord Atkin in Sim v. Stretch, viz. ―would the words tend to lower the
plaintiff in the estimation of right thinking members of the society generally‖.
Fraser thinks that a statement becomes defamatory if it exposes on to hatred,
ridicule or contempt or which causes him to be shunned or avoided, or which has
a tendency to injure him in his office, profession or trade. However, Winfield does
not agree with this definition. According to him, defamation is the 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 made them shun or avoid that
person. He thinks that a statement may possibly be defamatory even if it does not
excite in reasonable people feelings quite so strong as hatred contempt or
ridicule‖. The phrase ―right thinking members of society‖ excludes a lay or morally
blunt men or hypersensitive and conscious persons.4
Defamation may thus be defined as any intentional false communication,
either written or spoken, that harms a person's reputation; decreases the respect,
regard, or confidence in which a person is held; or induces disparaging, hostile, or
disagreeable opinions or feelings against a person5. The wrong of defamation
may be committed by making defamatory statements which are calculated to
expose a person to hatred, contempt or ridicule, or to injure him in his trade,
business, profession, calling or office, or to cause him to be shunned or avoided
in society. Defamation is a unique tort, especially when understood in its historical
context. Until the 16th century in England, general jurisdiction over defamation
was exercised by the clergy. Thereafter, the common law courts developed an
action on the case for slander where ‗temporal‘, as distinct from ‗spiritual‘ damage
1
th
Salmond on Torts,13 1961 edition. P361
th
Law Torts, Underhills,18 1946 edition p 23
3
nd
Elements of the Law of Torts by Blackstone and George,2 1949 edition p. 167
4
th
Winfield, Tort, 7 edition 1963, P.574
5
http://legal-dictionary.thefreedictionary.com/defamation
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2. KUNAL BASU
LLB SEM.-I
LAW OF TORTS
FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
could be established. In the late nineteenth and early twentieth centuries, liability
in defamation was extended because of the menace to reputations occasioned by
the new, popular press with its mass circulation. In Derbyshire County Council v
Times Newspapers Ltd the press scored a notable victory. The House of Lords
ruled that a democratically elected body should be open to uninhibited public
criticism and that the threat of a defamatory action would surely inhibit the
freedom of speech of the press. However, in Reynolds V Times Newspapers Ltd,
the Court of Appeal was mindful of the fact that the European Rights Convention,
which stressed upon the fundamentality of the right to freedom of speech, was
destined to become a part of common law and that thus there should be allowed
the defense of qualified privilege to be raised by the press when commenting on
public figures.
Defamation is a relatively new tort for Indian Law. Not many defamation
suits were filed in the country until recently and the only ones that were filed were
those by film stars and the rich and the famous, against the media, trying to
salvage their reputation. However, now after the media revolution in this country,
and with people becoming more aware of their rights, the frequency of
defamation suits being filed is increasing. Recently, there have been a few cases
where a few journalists have ‗exposed‘ the corrupt side of the politicians by
discreetly filming a politician with a hidden camera when he was taking a bribe for
posing questions in parliament or religious heads discreetly accepting bribes in
order to go ahead and declare something about their religion, distorting
completely the religious principles they are supposed to uphold and by misuse
the authority vested in him/her. In English Common Law, reputation is the most
clearly protected and is remedied almost exclusively in civil law by an award of
damages after trial by a jury. However, the Law of Defamation like many other
branches of tort law aims at balancing the interests of the parties concerned.
These are the rights that a person has to his reputation vis-à-vis the right to
freedom of speech. The Law of Defamation provides defenses to the wrong such
as truth and privilege thus also protecting right of freedom of speech but at the
same time marking the boundaries within which it may be limited. In India tort
law is obtained from British Common Law and is yet uncodified, except for few
areas. Therefore the existing law relating to defamation places reasonable
restrictions on the fundamental right of freedom of speech and expression
conferred by Article 19(1) (a) of the Constitution and is saved by clause (2) of
Article 19. 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 rightthinking members of society generally or tends to make them shun or avoid him.‖
Defamatory statements can be made as libel or as slander as discussed in
the succeeding paragraphs.
Libel: The publication of a false and defamatory statement tending to
injure the reputation of another person without lawful justification or excuse. The
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3. KUNAL BASU
LLB SEM.-I
LAW OF TORTS
FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
statement must be in a printed form, e.g., writing, printing, pictures, cartoons,
statue, waxwork effigy etc. Lopes, J., in Monson V. Tussauds points out that libels
need not always be in writing or writing. The defamatory matter may be conveyed
in some other permanent form as a statue, a caricature, an effigy, chalk mark on a
wall, sign or pictures. Conversely, the spoken work is the most obvious example of
a form of expression which is slander; other examples are gestures, and perhaps,
inarticulate expressions of disapproval such as hissing or booing, or cat calls and
significant gestures, such as winking etc., In Manson V. Tussauds case, the
defendants, who kept a wax works exhibition, had exhibited a wax model of the
plaintiff with a gun, in a room adjoining the ‗Chamber of Horrors‘ (a room in the
basement, in which the wax models of notorious criminals were kept). The plaintiff
has been tried for murder in Scotland and released on a verdict of ‗Not proven‘
and a representation of the scene of the alleged murder was displayed in the
chamber of horrors. The Court of Appeal held that the exhibition was libel. 6 Thus
it is libelous to write and publish of a man that he is a rogue or a rascal, a
swindler, a crook, a coward, a liar, a hypocrite, a villain, a blackguard, a blackleg, a
libeller, a scandalmonger or a habitual drunkard, or that he is dishonest or
immoral or wanting ingratitude. It is libelous to write that man has been guilty of
oppressive insulting, intolerant or unbrotherly conduct. In such cases the onus lies
on the defendant to prove from the context in which the words were used or
from the manner of their publication, e.g., in slander the tone in which the words
were uttered or other facts known to those to whom the words were published,
that words could not be understood by reasonable men to convey the
imputation suggested by the mere consideration of the words themselves i.e.,
they were understood merely as a joke or (in an action for slander) a mere abuse
or as in no sense defamatory of the plaintiff. In the second class of cases the
language is ambiguous as where it is equally capable on the face of it of two
meanings, the one defamatory and the other innocent.
In Tolley vs. Fry, Tolley was a champion amateur golfer and member of a
sports club. The rules of the club prohibited members from associating
themselves with any advertisement media. The defendants, Fry, who were
manufacturers of chocolates – caused to appear in certain newspapers an
advertisement of their chocolate, and a caricature of the plaintiff playing a stroke
at golf with defendant‘s chocolate protruding from his pocket. It was held by the
House of Lords that the innuendo was proved in view of the circumstances and
therefore, the defendants were liable.
Slander: A false and defamatory statement by spoken words and/or
gestures tending to injure the reputation of others. It is in a transient form. It also
involves the sign language used by the physically disabled. While libel is
actionable per se without proof of special damage, the slander is actionable only
on proof of special damage. Special damage signifies that no damages are
6
1895 1 Q..B. 671)
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4. KUNAL BASU
LLB SEM.-I
LAW OF TORTS
FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
recoverable merely for loss of reputation by reason of the slander, and that the
plaintiff must prove loss of money or of some temporal or material advantage
estimable in money. If there is only loss of the society or consortium of one‘s
friends, that is not enough. Where there is no need to prove special damage in
defamation, the plaintiff can recover general damages or the injury to his
reputation without adducing any evidence that it has in fact been harmed, for the
English law presumes that some damage will arise in the ordinary course of
things. It is enough that the immediate tendency of the words is to impair his
reputation. If the plaintiff contends that special damage has been suffered in
addition to general damages, he must allege it in his pleadings and prove it at the
trial but even if he breaks down on this point, he can still recover general
damages.
In India the between libel and slander on the point whether it is actionable
without proof of special damage has not been recognized. Here, both libel and
slander are criminal offences under the Indian Penal Code and both of them are
actionable in civil law without proof of special damage as in Ms. Ramdhara v.
Phulwatibai7. Slander may be the result of a sudden provocation uttered in the
heat of the moment, while the libel implies grater deliberation and raises a
suggestion of malice. Libel is likely to cause more harm to the person defamed
than slander because there is a strong tendency everywhere on the part of most
people to believe anything they see in print. In general slander is actionable only
on proof of special damage, but in the following exceptional cases slander is
actionable per se or without proof of special damage.
Words which are not defamatory in their ordinary sense may, nevertheless,
convey a defamatory meaning owing to the circumstances in which they are
spoken. Such words are actionable if it is proved that would be understood as
defamatory by the persons to whom they were published. In Boydell V. Jones8 a
lawyer even took objection to the description of ―an honest lawyer‖ which was
applied to him in the heading of a paragraph containing some details of a case in
which he was concerned; and it was held that the phrase was capable of meaning
the exact opposite of what it said or light therefore be libelous. In Cassidy V. Daily
Mirror Newspapers Ltd., a majority of the court of Appeal held the innuendo was
established and the Jury entitled her to damages as they held that the publication
conveyed to reasonable person an aspersion on the plaintiff‘s moral character.
Imputation of Criminal Offence: When the slander imputes that the
plaintiff has committed a crime punishable with imprisonment, there must be
direct imputation of the offence, not merely suspicion of it and it is not enough if
the offence imputed is punishable with fine. The words imputing a suspicion of a
crime, even though the offence is punishable corporal, are not actionable without
proof of special damage. But the words ―you are a rogue and I will prove you are
7
1969 Jab.L.J.582
1838.4M&W. P.446
8
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5. KUNAL BASU
LLB SEM.-I
LAW OF TORTS
FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
rogue, for you forged my name‖ are not mere imputation of a suspicion and are
actionable per se. Again the words ―you are guilty (innuendo) of the murder of D‖
have been held to amount to a charge of murder and are actionable without
proof of actual damage. The crime imputed need not be indictable; it is sufficient
if it is punishable corporal. Nor it is necessary that the words should specify any
particular offence. Where the imputation of crime is accompanied by an express
reference to a transaction which merely amounts to a civil wrong, slander is not
actionable per se. Where the crime imputed is impossible and has not been
committed with the knowledge of all parties etc., where the defendant said to the
plaintiff‖ Thou has killed by wife and she was then alive within the knowledge of
all, there is no such imputation as can be made the basis of a suit without proof
of special damage.
Libel, if it tends to provoke the breach of the peace is a crime as well as
tort; Slander as such is never criminal although spoken words may be punishable
as being reasonable, seditious, and blasphemous or the like. This distinction
between libel and slander is not recognized in India. In England while libel is both
a crime and civil wrong, slander is only a civil wrong. In India, However both are
criminal offences. Indian decisions relating to slander may be classified under
three heads, viz. vulgar abuse, imputation of unchastity to a woman and aspersion
of caste.
Imputation of disease: Imputation that the plaintiff is suffering from an
unpleasant, contagious or infectious disease tending likely to exclude the plaintiff
from society is actionable per se.
Imputation of unfitness or incompetence: An imputation of unfitness,
dishonesty or incompetence in any office, profession, calling, trade or business
held or carried on by the plaintiff at the time when slander is published is
actionable per se. The words ‗sala,‘ ‗haramjada,‘ ‗sooar and ‗bapar beta’ were held
to be mere abuse. Where however, an abusive language is not only insulting but
amounts to defamation as well as action will lie even without proof of special
damage. It has been held by the Oudh Chief Court that to say of a high caste
woman that she belongs to a low caste is a slander which is actionable per se not
only at the instance of the woman herself, but also at the instance of her
husband.9
Imputation of Unchastity: Imputation of unchastity or adultery to a woman
or girls is also actionable per se. It has been held that imputation of unchastity
includes that of lesbian or homosexual vice. Formerly imputation of unchastely to
women or girls was not actionable per se, except in the City of London Slander of
Women Act 1891 that extended its purview to all over the Country. In Parvathi V.
Manner the defendant abused the plaintiff and said that she was not the legally
married wife of her husband, but a woman who had been ejected from several
9
Gaya Din Singh v Mahabir Singh, 1. Luck 386
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6. KUNAL BASU
LLB SEM.-I
LAW OF TORTS
FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
places for unchastely. It was held that the defendant was liable. The Common Law
rule that slander is not actionable per se has not been followed in India. The
reason given is that the rule is not founded in any obvious reason or principle and
that it is not in consonance with ―Justice, equity and good conscience‖ English law
itself underwent a change by the Slander of Women Act.
In Common law, a libel is a criminal offence as well as a civil wrong, but a
slander is a civil wrong only. However in Indian law, both are criminal offences
under Sec. 499 of the I.P.C. Libel is more favorable to the claimant because it is
actionable per se and injury to reputation will be presumed. However, whether
the case is one of libel or slander, the following elements must be proved by the
claimant in order for the defendant to be liable for the tort of defamation:
 The statement (the technically correct term is ‗imputation‘) is defamatory;
 It refers to the plaintiff, i.e. identifies him;
 It has been published, i.e. is communicated to at least one person other
than the claimant.
Regardless of whether a defamation action is framed in libel or slander, the
plaintiff must always prove that the words, pictures, gestures etc are defamatory.
Equally, the plaintiff must show that they refer to him. Finally he must also prove
that they were maliciously published. These are the three essential elements in a
defamation action that are discussed in detail in the succeeding paragraphs.
The statement must be defamatory: Any imputation which exposes one
to disgrace and humiliation, ridicule or contempt, is defamatory. It could be made
in different ways as in it could be oral, in writing, printed or by the exhibition of a
picture, effigy or statue or by some conduct. According to Lord Atkins, whether a
statement is defamatory or not depends upon how the right thinking members of
society the society are likely to take it. Yet the term ‗right-thinking members of
society‘ is highly ambiguous. The standard to be applied is that of a right-minded
citizen, a man of fair average intelligence, and not that of a special class of
persons whose values are not shared or approved by the fair minded members of
that society generally. If the likely effect of the statement is the injury to the
plaintiff‘s reputation, it is no defense to say that it was not intended to be
defamatory. When the statement causes anyone to be regarded with feelings of
hatred, contempt, ridicule, fear, dislike, or disesteem, it is defamatory. In D.P.
Choudhary v. Manjulata there was publication of a statement in a local daily in
Jodhpur that Manjulata on the pretext of attending her evening BA classes ran
away with a boy named Kamlesh. The girl belonged to a well-educated
respectable family. She was seventeen years of age. The news item was untrue
and had been irresponsibly published without any justification. This was
defamatory and the defendants, the newspaper publishers were held liable.
However, words spoken in anger or annoyance or in the heat of the
moment are not defamatory as they no way reflect on the character of the one
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7. KUNAL BASU
LLB SEM.-I
LAW OF TORTS
FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
being abused. The standard applied in determining whether or not a statement is
defamatory is that of a right minded citizen, a man of fair intelligence, and not
that of a special class of persons whose values are not shared or approved by the
fair minded members of society generally. If the likely effect of that statement is
injury to the plaintiff‘s reputation, it is no defense to say that it was not intended
to be defamatory. Mere hasty expression spoken in anger, or vulgar abuse to
which no hearer would attribute any set purpose to injure character would not be
actionable. Words which merely injure the feelings or cause annoyance but in no
way reflect on character or reputation are not libelous.
Sometimes the statement being used to defame may be prima facie
innocent but becomes defamatory because of some latent or hidden meaning. In
such a scenario the plaintiff must prove the hidden meaning, which is the
innuendo if s/he wants to file a suit for defamation. For instance in Cassidy V Daily
Mirror Newspapers the newspaper published a picture of a lady and the race
horse owner with the caption underneath, Mr. M. Corrigan, the race-horse owner
and Miss X whose engagement has been announced. The newspaper was held
liable in a suit that said that the lady was the lawful wife of Mr. Corrigan and
complained that the words suggested that she had been living with him in
immortality. The liability of the defendants rested on their failure to make
independent inquiry. This also brings forth another aspect of this tort that
intention to defame is not necessary and if the words are considered to be
defamatory by the persons to whom the statement is published, there is
defamation.
Another feature of the law of defamation is that innuendo is also penalized
if it is defamatory. This is illustrated by the case of Sumatibai v. Nandkumar
Deshpande. In this case there was a newspaper article about how the bowls
brought by kindergarten children were not returned after they left the institution.
There was an innuendo that there was no account for the unreturned bowls and
the only person who knew what became of them was Sumatibai. It was held that
the article was abusive and reprehensible and the suggestion of misappropriation
of the bowls by Sumatibai was defamatory.10 In Liberace v Daily Mirror
Newspapers Ltd (1959), the American pianist Liberace, who at the time was very
famous for his glittering costumes and effeminate manner, sued the Mirror over
an article which described him as a ‗deadly, winking, niggering, chromium-plated,
scent-impregnated, luminous, quivering, giggling, fruit-flavoured, mincing, icecovered heap of mother-love‘.11 Liberace claimed that the article implied he was
homosexual, which he denied. Similarly, in 1986 the Star published a gossip
column story about Lord Gowrie, an ex-Cabinet Minister, who had stepped down
from his post the year before. Questioning why he had resigned, the story
referred to ‗expensive habits‘, and said that Lord Gowrie would ‗snort‘ at the idea
10
11
Extracted on Sep 13, 2013 from http://www.indiankanoon.org/doc/1352591/
Extracted on Sep 14, 2013, from catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearson...
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8. KUNAL BASU
LLB SEM.-I
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FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
that he had been ‗born with a silver spoon round his neck‘. Lord Gowrie sued,
arguing that references to expensive habits, snorting and a silver spoon implied
that he habitually took cocaine. He won his case.12 A statement is prima facie
defamatory when its natural and obvious meaning leads to that conclusion. At
times though a statement may be prima facie innocent but some latent or
secondary meaning may be considered defamatory, the burden to prove the
latent meaning lies on the plaintiff. For example, saying even A is an angel may be
slander if the statement was understood to refer to a criminal gang known as
―The Angels.‖ In 1988 the business magazine Stationery Trade News carried an
article about counterfeit stationery products which were being imported into the
UK. Towards the end of the story, it mentioned a different problem, involving
envelopes which were not made in the UK being marketed under a brand name
which sounded British. The makers of these envelopes sued the magazine,
claiming that the story implied that they were selling counterfeit envelopes. 13
They won their case.
The statement must refer to the plaintiff: The plaintiff has to prove
that the statement which is claimed to be defamatory actually refers to him/her. It
is immaterial that the defendant did not intend to defame the plaintiff, if the
person to whom the statement was published could reasonably infer that the
statement referred to the plaintiff, the defendant is nevertheless liable. In
R.K.Karanjia Vs. KMD Thackaresey14 it was observed that the burden of
proving malice in law for every false and defamatory statement, is always on the
plaintiff. In Sadosiba Panda Vs. Bansidhar Sadhu15, it was held that
proof of actual loss of reputation is not
necessary.
It is sufficient to establish that the defamatory statement made would
damage one's reputation. In Hulton Co. V Jones the defendants published a
fictional article in their newspaper in which aspersions were cast on the morals of
a fictitious character-Artemus Jones, stated to be a Church warden. On this basis
one Artemus Jones, a barrister, brought an action against the defendants. The
defendants pleaded that Artemus was a fictional character and the plaintiff was
not known to them and thus they had no intention to defame him.
Notwithstanding this, they were held liable because a substantial number of
persons who knew the plaintiff and had read the editorial would have assumed it
to be referring to him. However, when the defamation refers to a class of persons,
no member of that group can sue unless he can prove that the words could
reasonably be considered to be referring to him. When the statement though
generally referring to a class can be reasonably considered to be referring to a
particular plaintiff, his action will succeed. In Fanu v. Malcomson, in an article
published by the defendants, it was mentioned that cruelty was practiced upon
12
Extracted on Sep 14, 2013, from catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearson...
Extracted on Sep 14, 2013, from catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearson...
14
AIR 1970 Bom. 424
15
AIR 1962 Orissa 115
13
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9. KUNAL BASU
LLB SEM.-I
LAW OF TORTS
FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
employees in some of the Irish factories. From the article as a whole including a
reference to Waterford itself, it was considered that the plaintiff‘s Waterford
factory was aimed at in the article and the plaintiff was, therefore, successful in his
action for defamation.
The statement must be published: Publication means making the
defamatory matter known to some other third party and unless that is done, no
civil action for defamation can lie in court. Communication to the plaintiff won‘t
count because defamation is injury to the reputation which consists in the
estimation in which others hold him and not a man‘s own opinion of himself.
However, if a third party wrongfully intercepts and reads a letter sent to the
plaintiff it is not defamation. However when the defendant knows that the letter is
likely to be read by someone else and it contains some personal information only
meant for the recipient, then he will be liable. Also, an injunction can be issued
against the publication of a defamatory statement which is likely to injure the
reputation of one of the parties involved as was done in Prameela Ravindran v. P.
Lakshmikutty Amma. When the repetition of the defamatory matter is involved,
the liability of the person who repeats that defamatory matter is the same as that
of the originator, because every repetition is a fresh publication giving rise to a
fresh cause of action. Not only the author is liable but the editor, printer or
publisher would be liable in the same way. Publication means making a
defamatory matter known to some person other than the person defamed.
Therefore communicating to the plaintiff himself is not enough for defamation,
however it will be defamation if the defendant knew or ought to have known that
the letter although sent to the plaintiff will be read by a third person for example
writing in a language not known to the plaintiff which would required a translator.
Dictating a defamatory letter to the typist or sending it via postcard or
telegram is defamation since it is likely to be read by someone else. A father
opening the son‘s letter or a butler opening and reading a sealed letter meant for
his employer is not defamation since there was no publication. If a third party
wrongfully reads a letter meant for the plaintiff, the defendant is not liable. A
husband and wife being one person under the eyes of the law, communication of
the defamatory matter from the husband to the wife or vice versa is no
publication. However communication of matter defamatory of one spouse to the
other is sufficient publication. Every person who repeats the defamatory matter is
liable in the same way as the originator, because every repetition is a fresh
publication giving rise to a fresh cause of action.
Under Section 499 of the Indian Penal Code, defamation is committed by
―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
expected, to defame that person.‖ The aim of the law of defamation is to protect
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one‘s reputation, honor, 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 Chapter XXI (Section 499-502) of the
Indian Penal Code. Under Section 500 of the Indian Penal Code, defamation shall
be punished with simple imprisonment for a term which may extend to two years,
or with fine, or both. 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.
The following are some defenses which may be invoked against the crime of
defamation:
 Truth published for public interest;
 Any expression in good faith on the conduct or character of a public
servant on a public question.
 Publication of a substantially true report.
 It is not defamation to express in good faith any opinion regarding the
merits of any case, which has been decided by a Court of Justice, or the
conduct of any person as a party, or the witness or the agent, in such
case.

It is not defamation to express in good faith any opinion regarding the
merits of any performance which an author has submitted to the judgment
of the public.

It is not defamation if a person having any authority over another person,
either conferred by law or arising out of a lawful contract, to pass in good
faith any censures on the conduct of that other in matters to which such
lawful authority relates.

It is not defamation to prefer in good faith an accusation against any
person to any of those who have lawful authority over that person with
respect to the subject matter of accusation.

It is not defamation to make an imputation on the character of another
person, provided it is made in good faith by person for protection of his or
other‘s interests.

It is not defamation to convey a caution, intended for the good of a person
to whom conveyed or for public good.
In India, defamation through the internet is punishable under Article 66A of
the Information Technology Act of 2000 and may be punishable for imprisonment
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11. KUNAL BASU
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LAW OF TORTS
FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
upto three (3) years, and a fine. However, by virtue of Section 79 of the
Information Technology Amendment Act 2008 which became a law on February 5,
2009, social networking websites or known as intermediaries ―shall not be liable
for any third party information, data, or communication link made available by
him‖ and provided the following requisites are present —
(a) the function of the intermediary is limited to providing access to a
communication system over which information made available by third parties is
transmitted or temporarily stored; or
(b) the intermediary does not—
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission.
Section 468 (2) (c ) of the Criminal Procedure Code, stipulates that the
limitation for prosecution of offenses punishable with imprisonment for a term
more than one (1) year but not exceeding three (3) years shall be three (3) years.
Under Section 199(5) of the Criminal Procedure Code, if the offense for
defamation is committed against the President/Vice President of India, Governor
of the State, Minister of a Union or of a State, or any other public servant
employed in connection with the affairs of the Union or of a State in respect of his
conduct in the discharge of his public functions, the action shall prescribe if the
Complaint to be initiated in writing by the Public Prosecutor shall not be made
within a period of six (6) months from the time of the commission of the offense.
As far as defamation under tort law is concerned, as a general rule, the focus is on
libel (i.e. written defamation) and not on slander (i.e. spoken defamation). In order
to establish that a statement is libelous, it must be proved that it is (i) false, (ii)
written; (iii) defamatory, and (iv) published.
However, there are defenses to the Tort of Defamation that are discussed
in the succeeding paragraphs.
Justification by truth: In a civil action for defamation, truth is a complete
defense. However under criminal law, it must also be proved that the imputation
was made for the public good. Under the civil law, merely proving that the
statement was true is a good defense the reason being that the law will not
permit a man to recover damages in respect of an injury to a character which he
either does no or ought not to possess. In a civil action for defamation, the truth
of the defamatory matter is a complete defense because by such publication, the
reputation of an individual is brought to the level he deserves. The defense is
available even if the publication was made maliciously. If a statement is
substantially true but incorrect in certain minor particulars, the defense will still be
available. In Subhash Chandra Bose V. Knight & Sons, The Statesman published in
its issue of 26th November,1924, passage commenting on the speech of Lord
11

12. KUNAL BASU
LLB SEM.-I
LAW OF TORTS
FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
Lytton, the then Governor of Bengal, where-in it was stated that the Governor said
Mr. Subhash Chandra Bose was arrested under Regulation 3 and alleged that he
was the brain behind the terrorist conspiracy. The plaintiff‘s complaint was that
the writer stated a fact that he was a member and a directing brain of a terrorist
movement. The Court held that although the defendants were entitled to refer to
the fact that the Viceroy and the Governor, had caused the arrest of the plaintiff
because they were satisfied that he was a terrorist, but in a matter of so great
importance to the plaintiff it was very necessary that they should refrain from
conveying to the ordinary reader an opinion of their own which was in effect the
reiteration of a charge of criminal conspiracy.
A fair and bona fide comment on a matter of public interest: It involves
making fair comments on matters of public interest. For this defense to be
available, the following essentials are required:
 It must be a comment, i.e., an expression of opinion rather than an
assertion of fact
 The comment must be fair, i.e., must be based on the truth and not on
untrue or invented facts
 The matter commented upon must be of public interest.
If due to malice on the part of the defendant, the comment is a distorted one,
his comment ceases to be fair and he cannot take such a defense. In Gregory V
Duke of Brunswick the plaintiff, an actor, appeared on the stage of a theatre but
the defendant and other persons in malice started hooting and hissing and
thereby caused him to lose his engagement. This was held to actionable and an
unfair comment on the plaintiff‘s performance and the defendants were held to
be guilty. For example, a former employer has a moral duty to state a servant‘s
character to a person who is going to employ the person. But if the former
employer without any enquiry publishes the character of his servant with a motive
to harm the servant, the defense of qualified privilege cannot be taken. Such
communications may also be made in the case of confidential relationships like
those of husband and wife, father and son and daughter, guardian and ward,
master and servant, principal and agent. In modern times it includes everything
relating to national or local government, the administration of public institutions
whether of State or Private aided, or charitable or educational institutions; the
public conduct not only of all public officials but of all persons as priests,
clergyent, judges, barristers, political candidates, and agitation‘s who take part in
public affairs, in short it includes the conduct of every man and institution of
public concern.
Privilege: It is of two kinds, viz. absolute and qualified as discussed in the
succeeding paragraphs.
Absolute Privilege: Certain statements are allowed to be made when the
larger interest of the community overrides the interest of the individual. No action
12

13. KUNAL BASU
LLB SEM.-I
LAW OF TORTS
FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
lies for the defamatory statement even though it may be false or malicious. In
such cases, the public interest demands that an individual‘s right to reputation
should give way to the freedom of speech. This privilege is provided to
Parliamentary, judicial proceedings, Military and Naval and State proceedings. Art.
105(2) of our Constitution provides that (a) statements made by a member of
either House of Parliament in Parliament, and (b) the publication by or under the
authority of either House of Parliament of any report, paper, votes or
proceedings, cannot be questioned in a Court of law. A similar privilege exists in
respect of State Legislatures, according to Art. 194(2). No action for libel or
slander lies whether against Judges, Counsels, Witnesses, or Parties, for words
written or spoken in the course of any proceedings before any court recognized
by law, even though the words written or spoken were written or spoken
maliciously, without any justification of excuse, and from personal ill-will, and
anger against the person, defamed. Such a privilege also extends to proceedings
of the tribunals possessing similar attributes. Protection to the judicial officers in
India has been granted by the Judicial Officer‘s protection Act, 1850. The counsel
has also been granted absolute privilege in respect of any words spoken by him
in the course of pleading the case of his client. If, however the words spoken by
the counsel are irrelevant not having any relevance to the matter before the
Court, such a defence cannot be pleaded. The privilege claimed by a witness is
also subject to a similar limit. A statement made by one officer of the State to
another in the course of official duty is absolutely privileged for reasons of public
policy. Such privilege also extends to reports made in the course of military and
naval duties in the publication.
Qualified Privilege: For communications made in the course of legal, social or
moral duty, for self-protection, protection of common interest, for public good
and proceedings at public meetings, provided the absence of malice is proved.
Also, there must be an occasion for making the statement. Indian Penal Code
contains such a privilege in its ninth exception to Section 499. To avail this
defense, the following things must be kept in mind:
 The statement should be made in discharge of a public duty or protection
of an interest
 Or, it is a fair report of parliamentary, judicial or other public proceedings
 The statement should be made without any malice.
In India, the Parliamentary Proceedings (Protection of Publication) Act, 1977,
grants qualified privilege to the publication of reports of proceedings of
parliament. According to Sec. 3 (1) ―no person shall be liable to any proceedings,
civil or criminal, if any court in respect of the publication in a newspaper of a
substantially true report of any proceedings, of either House of Parliament unless
the publication is proved o have been made with malice.‖ Art. 361-A which was
inserted by Amendment in 1978 provides protection of publication of
13

14. KUNAL BASU
LLB SEM.-I
LAW OF TORTS
FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
proceedings of Parliament and State Legislatures. The above stated protection is
not available unless the publication has been made for public good. Thus, to
claim qualified privilege in respect of parliamentary proceedings the publication
should be without malice, and for public good.
While courts have awarded damages broadly in consonance with the
principles enumerated above, they have also resorted to legal precedent and
created newer case law and legal precedent. In Byrne v Deane (1937), the claimant
was a member of a golf club, whose owners illegally kept gambling machines on
the premises. Someone reported them to the police and afterwards a poem was
posted up in the club, implying that the claimant had been the informant. He
sued, and won the original case, but on appeal the courts held that the
suggestion was not defamatory, because a right-thinking member of society (or
as it might be expressed today, an ordinary, reasonable person) would not think
less well of someone for telling the police about a crime. In 1997, a columnist on
the Express on Sunday’s magazine mentioned a newspaper story which had stated
that the film star Nicole Kidman had insisted that builders working on her house
should face the wall whenever she walked past. A judge initially found that the
story, though unpleasant, was not capable of being defamatory, but Ms Kidman
appealed. The Court of Appeal agreed with her that the statement was capable of
being defamatory. In the event the case was settled out of court.
Section 499 of the Indian Penal Code (IPC) defines defamation as:
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.
Explanation 1 states that it may amount to defamation to impute anything to a
deceased person, if the imputation would harm the reputation of that person if
living, and is intended to be hurtful to the feelings of his family or other near
relatives. Explanation 2 states that it may amount to defamation to make an
imputation concerning a company or an association or collection of persons as
such. Explanation 3 provides that an imputation in the form of an alternative or
expressed ironically, may amount to defamation. Explanation 4 states that no
imputation is said to harm a person' s reputation, unless that imputation directly
or indirectly, in the estimation of others, lowers the moral or intellectual character
of that person, or lowers the character of that person in respect of his caste or of
his calling, or lowers the credit of that person, or causes it to be believed that the
body of that person is in a loathsome state, or in a state generally considered as
disgraceful.
14

15. KUNAL BASU
LLB SEM.-I
LAW OF TORTS
FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
Section 499 of the IPC also provides ten exceptions to defamation16 that are
broadly in consonance with the generic principles and exceptions discussed
above. The first is the imputation of truth which public good requires be making
or publishing. It is not defamation to impute anything which is true concerning
any person, if it be for the public good that the imputation should be made or
published. Whether or not it is for the public good is a question of fact. The
second relates to public conduct of public servants. It is not defamation to
express in good faith any opinion whatever respecting the conduct of a public
servant in the discharge of his public functions, or respecting his character, so far
as his character appears in that conduct, and no further. The third exception
relates to the conduct of any person touching any public question. It is not
defamation to express in good faith any opinion whatever respecting the conduct
of any person touching any public question, and respecting his character, so far as
his character appears in that conduct, and no further. Thus, it is not defamation in
A to express in good faith any opinion whatever respecting Z‘s conduct in
petitioning Government on a public question, in signing a requisition for a
meeting on a public question, in presiding or attending at such meeting, in
forming or joining any society which invites the public support, in voting or
canvassing for a particular candidate for any situation in the efficient discharge of
the duties of which the public is interested.
The fourth exception relates to the publication of reports of proceedings of
courts. It is not defamation to publish a substantially true report of the
proceedings of a Court of Justice, or of the result of any such proceedings. The
fifth exception relates to merits of cases decided in Court or conduct of witnesses
and others concerned. It is not defamation to express in good faith any opinion
whatever respecting the merits of any case, civil or criminal, which has been
decided by a Court of Justice, or respecting the conduct of any person as a party,
witness or agent, in any such case, or respecting the character of such person, as
far as his character appears in that conduct, and no further. Thus, A says-" I think
Z' s evidence on that trial is so contradictory that he must be stupid or dishonest."
A is within this exception if he says this in good faith, inasmuch as the opinion
which he expresses respects Z' s character as it appears in Z' s conduct as a
witness, and no farther. However, if A says that "I do not believe what Z asserted
at that trial because I know him to be a man without veracity"; A is not within this
exception, inasmuch as the opinion which expresses of Z‘s character, is an opinion
not founded on Z‘s conduct as a witness.
The sixth exception states that it is not defamation to express in good faith
any opinion respecting the merits of any performance which its author has
submitted to the judgment of the public, or respecting the character of the author
so far as his character appears in such performance, and no farther. A
performance may be submitted to the judgment of the public expressly or by acts
16
Extracted on Sep 14, 2013, from http://www.indiankanoon.org/doc/1041742/
15

16. KUNAL BASU
LLB SEM.-I
LAW OF TORTS
FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
on the part of the author which imply such submission to the judgment of the
public. Thus, a person who publishes a book submits that book to the judgment
of the public. Similarly, a person who makes a speech in public submits that
speech to the judgment of the public. Likewise, A says of a book published by Z-"
Z‘s book is foolish; Z must be a weak man. Z‘s book is indecent; Z must be a man
of impure mind." A is within the exception, if he says this in good faith, inasmuch
as the opinion which he expresses of Z respects Z' s character only so far as it
appears in Z' s book, and no further. However, if A says-" I am not surprised that
Z‘s book is foolish and indecent, for he is weak and a libertine." A is not within this
exception, inasmuch as the opinion which he expresses of Z' s character is an
opinion not founded on Z' s book.
The seventh exception relates to censure passed in good faith by person
having lawful authority over another. It is not defamation in a person having over
another any authority, either conferred by law or arising out of a lawful contract
made with that other, to pass in good faith any censure on the conduct of that
other in matters to which such lawful authority relates. Thus, a Judge censuring in
good faith the conduct of a witness, or of an officer of the Court; a head of a
department censuring in good faith those who are under his orders; a parent
censuring in good faith a child in the presence of other children; a schoolmaster,
whose authority is derived from a parent, censuring in good faith a pupil in the
presence of other pupils are within this exception. The eighth exception states
that it is not defamation to prefer in good faith an accusation against any person
to any of those who have lawful authority over that person with respect to the
subject- matter of accusation. Thus, if A in good faith accuses Z before a
Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z' s
master; if A in good faith complains of the conduct of Z, a child, to Z' s father- A is
within this exception.
The ninth exception states that it is not defamation to make an imputation on
the character of another provided that the imputation be made in good faith for
the protection of the interest of the person making it, or of any other person, or
for the public good. Thus, A, a shopkeeper, says to B, who manages his business-"
Sell nothing to Z unless he pays you ready money, for I have no opinion of his
honesty." A is within the exception, if he has made this imputation on Z in good
faith for the protection of his own interests. Likewise, A, a Magistrate, in making a
report to his own superior officer, casts an imputation on the character of Z. Here,
if the imputation is made in good faith, and for the public good, A is within the
exception. The last and tenth exception states that it is not defamation to convey
a caution, in good faith, to one person against another, provided that such
caution be intended for the good of the person to whom it is conveyed, or of
some person in whom that person is interested, or for the public good.
Libel and slander are creatures of English common law, but they are not
treated as distinct from each other in Indian jurisprudence. India offers the
16

17. KUNAL BASU
LLB SEM.-I
LAW OF TORTS
FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
defamed a remedy both in civil law for damages and in criminal law for
punishment. This is unusual since defamation as a crime is almost nonexistent
anywhere in the world. While civil law for defamation is not codified as legislation
and depends on judge-made law, criminal law is in the IPC (section 499 creates a
criminal offence of defamation). In a civil action, the claimant needs to prove that
the statements injured the person‘s reputation and were published. The onus then
shifts to the defendant to prove that the imputations or statements were either
true, or amounted to fair comment, or were uttered or stated in circumstances
offering absolute or qualified privilege like Parliamentary or judicial proceedings.
In criminal law, the burden rests on the prosecution to prove beyond reasonable
doubt that there was an offence of defamation committed and there was intent to
do so. Then it is up to the accused to substantiate that they are protected by one
of the ten exceptions listed under Section 499. These exceptions are extremely
wide. They offer protection including: stating a true fact against a person for
public good; expressing an opinion in good faith about an act of a public servant;
or even making imputations on the character of another provided it‘s in good
faith and for the public good. The Indian Constitution protects freedom of speech
as a facet of fundamental rights under Article 19, subject to reasonable
restrictions, including decency and defamation. However, in R. Rajagopal vs State
Of Tamil Nadu on 7 October, 1994, the Supreme Court lay down certain
principles17:
The right to privacy is implicit in the right to life and liberty guaranteed to
the citizens of this country by Article 21. It is a "right to be let alone". A
citizen has a right to safeguard the privacy of his own…..none can publish
anything concerning the above matters without his consent whether
truthful or otherwise and whether laudatory or critical. If he does so, he
would be violating the right to privacy of the person concerned and would
be liable in an action for damages…..So far as the Government, local
authority and other organs and institutions……are concerned, they cannot
maintain a suit for damages for defaming them. Rules 3 and 4 do not,
however, mean that Official Secrets Act, 1923, or any similar enactment or
provision having the force of law does not bind the press or media. There is
no law empowering the State or its officials to prohibit, or to impose a prior
restraint upon the press/media.
As is evident from the foregoing discussion, the definition of defamation is
wide-ranging and constantly expanding, though not for practice, particularly in
India. Majorly, defamation in contemporary times is coterminous with the rapid
rise of the media industry. Needless to add, many, if not most, defamation suits
have been filed by celebrities as far back as over a century ago. In Annie Oakley's
libel case, Annie Oakley was a female sharpshooter who traveled with Buffalo Bill's
Wild West show in the late 19th century. In 1903, William Randolph Hearst ran a
17
Extracted on Sep 14, 2013, from http://www.indiankanoon.org/doc/501107/
17

18. KUNAL BASU
LLB SEM.-I
LAW OF TORTS
FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
story in 55 newspapers alleging that Oakley stole a man's pants in order to buy
cocaine, when in fact the woman arrested for the crime falsely gave her name as
Annie Oakley. Even though most of the papers printed a retraction, Oakley sued
all 55 newspapers for libel. She spent the next six years pursuing these lawsuits,
eventually winning all but one18. Similarly, on April 16, 1996, Oprah Winfrey had
Howard Lyman, a vegetarian activist, on her show to talk about mad cow disease
and the dangers of beef production. At one point, Oprah stated that she wouldn't
eat a burger ever again, prompting a group of Texas cattlemen to sue Winfrey
and Lyman under the False Disparagement of Perishable Food Products Act of
1995. The judge ruled that the cattlemen couldn't sue under this act, treating the
case as a regular trade libel lawsuit, which is the intentional disparagement of a
business' goods and services. Winfrey emerged victorious because the judge said
that the plaintiff didn't prove that Winfrey and Lyman acted out of a flagrant
disregard for the truth. Likewise, in July 2002, Vanity Fair printed a piece alleging
that Roman Polanski, the director of such films as Rosemary's Baby, propositioned
a woman on his way to his wife's funeral in 1969. (Polanski's wife was murdered
by Charles Manson's cult followers). Polanski, who left the United States because
of a child sex charge, received permission to testify from France. In 2005, a United
Kingdom high court awarded Polanski £50,000 (US $81,380) in damages after the
magazine admitted that some details about the event were inaccurate.19
However, Indian courts have been conservative in awarding damages for
defamation. Several high profile cases filed against or on behalf of politicians like
Arvind Kejriwal, Smriti Irani, Sheila Dixit20, and Home Minister Shinde21, industry
like Tata Sons v. Outlook magazine22 and Zee News v. Naveen Jindal v.23, movie
actors like Vijaykanth24, Manoj Kumar v. Shah Rukh Khan25. Damages awarded by
Indian courts too have been equally conservative. For instance, a Delhi court
reduced to Rs 9,000 from Rs 15,000 costs imposed on Narmada Bachao Andolan
(NBA) activist Medha Patkar for her failure to appear in the 13-year-old crosscases lodged against each other by her and the head of an Ahmedabad-based
18
Extracted on Sep 14, 2013, from http://www.tree.com/legal/learning-about-famous-libelcases.aspx
19
Extracted on Sep 14, 2013, from http://www.tree.com/legal/learning-about-famous-libelcases.aspx
20
Extracted on Sep 14, 2013, http://www.dnaindia.com/india/1862619/report-no-relief-for-delhibjp-leader-in-sheila-dikshit-s-defamation-case
21
Extracted on Sep 14, 2013, http://www.hindustantimes.com/India-news/NewDelhi/Courtdismisses-defamation-case-against-Shinde/Article1-1085938.aspx
22
Extracted on Sep 14, 2013, from http://articles.timesofindia.indiatimes.com/keyword/defamation
23
Extracted on Sep 14, 2013, from http://www.rediff.com/news/report/zee-editor-filesdefamation-case-against-jindal/20121221.htm
24
Extracted on Sep 14, 2013, from http://articles.timesofindia.indiatimes.com/2013-0904/chennai/41764553_1_vijayakanth-public-prosecutor-writ
25
Extracted on Sep 14, 2013, from http://www.indianexpress.com/news/manoj-kumar-files-caseagainst-shah-rukh-khan-for-defamation/1096678/
18

19. KUNAL BASU
LLB SEM.-I
LAW OF TORTS
FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
NGO, V K Saxena, the President of NGO National Council for Civil Liberties
(NCCL)26. It is only in very few cases such as Justice PB Sawant v. Times Now
(2011)27 that courts have awarded damages, in the interim, in the form of a Rs. 20
crore surety from Times Now to be invested and returned to the winner of this
case. Defamation law is gradually evolving in India with demands being made to
remove the criminal liability arising from defamation in line with global best
practice. However, rampant delays in courts have somewhat caused dilution of
the law of defamation with parties remaining mostly content with administering
threats of criminal defamation and filing suits for damages accordingly as a
punitive measure rather than with any real expectation of damages being
eventually awarded by courts, unlike their UK counterparts.
26
Extracted on Sep 14, 2013, from http://zeenews.india.com/news/delhi/defamation-cases-fineimposed-on-medha-patkar_862878.html
27
Extracted on Sep 14, 2013, from http://indiatoday.intoday.in/story/times-now-defamation-casers-100-cr-fine-justice-sawant/1/161563.html
19

20. KUNAL BASU
LLB SEM.-I
LAW OF TORTS
FACULTY: Ms. SUMITI AHUJA
DATE: SEP 25, 2013
Bibliography
Books
David Price and Korieh Duodu, Defamation: Law, Procedure and Practise, Sweet
and Maxwell, Third Edition, 2004, London
Justice G.P. Singh, Ratanlal and Dhirajlal, The Law of Torts, Wadhwa and Company
Nagpur, Twenty-Fourth Edition, 2007, Delhi
Margaret Brazier and John Murphy, Street on Torts, Butterworths, Tenth Edition,
1999, London
R. K. Bangia, Law of Torts, Allahabad Law Agency, Nineteenth Edition, 2006,
Haryana
S.K. Desai and Kumud Desai, Ramaswamy Iyer’s The Law of Torts, Seventh Edition,
1975, Bombay
W. V. H. Rogers, Winfield and Jolowicz on Tort, Sweet and Maxwell, Seventeenth
Edition, 2006, London
20