Defamation under Torts
It is rightly pointed out in the ‘Bhagwat Gita’ that “for a man of honour, defamation is worse than death.” A man’s next valuable asset in life after life itself is his reputation and this right is an inherent one protected by our constitution as a fundamental right under Article 19(1) (a) known as a right to speech and expression. However, under common law, it is a well-established principle that one’s right comes to an end when another’s right begins. Thereby, one cannot use his freedom of speech to defame others. The law protects and maintains the balance between one’s freedom of speech and another’s right to protect their good name. In simple words, defamation means “an intentionally false statement either written or spoken about another person which reduces the goodwill of the said person in the minds of the general public.” According to Salmond, “defamation is the publication of a false and defamatory statement concerning another person without any lawful justification.” Defamation is attacking on the good name which the person has created over a period of years. The law protects one’s right to reputation and the concept of defamation is basically an elusive one. English Law could be stated as the pioneers in the development of the law relating to defamation, but a thorough research on history shows that punishing persons for defamation had its roots in ancient times. For example in Roman law, chanting abusive words were treated as a capital offence. Also in the early English and German law, insulting others were penalized by cutting their tongues. At present times it is punishable under both criminal and civil laws.
Essential Elements of Defamation
Under torts, there are certain essential requisites to consider that a particular statement is defamatory. First of all, the statement must be false i.e., defamatory and also without the consent of the person against whom such a statement is made. It is to be noted that injury to the feelings is not considered as defamatory; there must be a loss of reputation. Secondly, the defamation must be directed to the plaintiff. However, it is not necessary that the statement is named but it must be ascertainable. For a particular class to be defamed the statement must be referring to all its members particularly when it is a small class or that the members must be specifically be imputed. The third essential requisite to constitute defamation is that the statement must be published. It can be either published in written form such as newspapers, articles, blogs etc or orally. Here, the publication must be done at least to one person other than the plaintiff to constitute defamation. In the case of Mahendra Ram v. Harnandan Prasad, the publication was made by way of a letter written in Urdu to the plaintiff and he cannot read Urdu so required a third person to read it. The court held that the defendant cannot be held liable as exposing it to a third party was not his intention. Another essential element of defamation is the intention of the wrongdoer. He must know that by his actions, the reputation of a person is likely to be damaged. Now, let’s understand the categorization of defamation. Under torts, defamation is of two types; libel and slander. With the advent of technology, classification becomes quite confusing. For instance, radio defamation is considered as libel in some countries while in some others as slander. Television also poses a similar kind of difficulty. But in recent times it is a settled position to consider the printed defamation as more dangerous than just mere talk.
- Libel- It is the publication of a defamatory statement in a permanent form such as writing, effigy, picture or statute. In such suits, damages can be recovered for all injurious consequences including special damages for specific economic loss. It is punishable under both civil and criminal laws. It is actionable per se (in itself). In the case of Bonnard v. Perryman, it was held that the courts have the jurisdiction to issue an injunction to prevent the circulation of a libelous statement, however, it will not be done if the defendant is able to justify his libel.
- Slander- It is the depiction through a transient form such as spoken words or gestures. Slander is only a civil injury and actionable only when there is proof of damage. In the words of ‘Socrates’, “when the debate is lost, slander becomes the tool of the loser.”
The apex court in the case of Subramanian Swamy v. Union of India upheld the constitutional provisions of criminalizing the defamation. However, it received a mixed response as some contended that as the tie changes the laws must also change. In another case of D.P Choudhary v. Kumari Manjulata, a 17-year-old girl was ridiculed by her society when a local newspaper published maliciously of her fleeing with a boy when in truth, she was attending night classes. The court held the action of the newspaper company to be defamatory and awarded damages of rupees 10,000.
Defenses to defamation-
It is not necessary that the defendants must be held liable to pay damages for every statement it makes. As stated earlier, the law must maintain a balance between the freedom of speech and a person’s goodwill. The following are some of the defenses available to the defendant under the law of torts:
- Justification or truth- A person will be only held liable for defamation if he publishes wrong or false statements to injure the reputation of the plaintiff. It does not make any sense to hold the defendant liable for telling the truth and thereby causing damage to the fake reputation of the plaintiff.
- Fair comment- This is a defense particularly available to the critics, authors, editors etc. As the name itself suggests these are opinions made on the existing facts and not based on an untrue fact. Fair on the other hand, simply means that there is no malice involved in the statement and also it is necessary that such comments are made in the public interest.
- Privilege- It allows the usage of the highest possible freedom of speech enshrined in article 19(1)(a). There are two types of privilege; a) absolute, which means that no action can be brought against any defamatory statement made irrespective of the truth in the content. In parliamentary proceedings, judicial proceedings and state communication, such type of defense is recognized. b) Qualified privilege, which is not absolute and requires a special occasion for making such statement like in discharge of duty and must be made without malice.
J. Nariman opined that freedom of speech and expression is a cardinal value which is of paramount importance under our constitutional scheme. However, this right is restricted in the interests of the public to a certain limit. There is no doubt in saying that healthy criticisms give rise to fruitful results but one does not have the right to criticize anyone without knowing the actual truth because the mental trauma that it causes to one is inseparable from his life and also his name in society is likely to be tarnished. Being human beings, one cannot live in a jungle, he has to live and co-operate with the people around him and also we have come across various instances of persons being ridiculed. Thus, one has to be really careful while using his words as words have the power to create and destroy the world.
-Nathalia M Fenwick