The fundamental rights enshrined in the Universal Declaration for Human Rights by the General Assembly of the United Nations and the Constitution of India has only one exception. The exception is Defamation.
Every democratic society has the characteristics of freedom of speech, freedom of the press and vibrant political activity but when such characteristics are communicated falsely and inaccurately, it amounts to defamation.
Defamation is the wrongful communication of information, written or spoken, about one person to another. Such information, so communicated, is usually false and inaccurate about the persons, such as to damage his or her reputation generally or harm the Plaintiff in his or her profession, trade, or business.
Defamation is simply defined as the publication of a statement which adversely affects the reputation of a person and lowers the person’s reputation in the eyes of the right thinking individual. Such publication can arouse sympathy and pity in the minds of reasonable people, who would shun and avoid the person.
Types of Defamation-
There are two types of Defamation are:
Libel and Slander are described as a criminal offense under section 499 of the Indian Penal Code.
This is defamation in a permanent form. It is usually written and must also be visible. Therefore, statements in newspapers, books, letters, notices, articles, are libels. Also, a statute, painting, photograph, cartoon, statute, film, and in fact, any writing, print, mark or sign which is exposed to people view and disparaging another’s character, is a libel.
In Monson v. Tussauds Ltd (1894), the placing of a waxwork effigy of the Plaintiff near the Chamber of Horrors’ was held to be a libel. The Plaintiff had actually been tried for murder in Scotland but was released on a verdict of “Not Proven”, and a representation of the scene of the alleged murder was displayed in the Chamber of Horror.
If words were spoken, which are taped in cassettes, tape recordings, gramophone records, or included in a cinematograph film, amount to libel? In Youssoupoff v. Metro-Goldwyn-Mayer Pictures Ltd (1934), the Court of Appeal clearly held that defamatory matter embodied in a “talking” cinematograph film was libel.
This reasoning clearly shows that a defamatory story heard and accompanied by visible presentation in pictures in a film, would amount to libel.
Would audio recordings unaccompanied by pictorial representation amount to libel or slander, although it is in a permanent form? Defamation through broadcasting in both audio and television, cable transmissions, etc. are treated as publication in permanent form, which is libel.
Therefore, strictly audio recording of defamatory matter is an actionable libel.
Libel is always actionable per se, that is, without proof of damage.
This is defamation in a transient form and is often through the medium of spoken words or gestures. Therefore, a manual language of the deaf and dumb, mimicry and gesticulation constitute slander.
To hold up an empty purse to indicate that the Plaintiff has robbed the Defendant would amount to slander because such movement is transient. Any defamatory statement that is temporary and audible only is slander.
Libel and Slander-
- Libel and Slander are aspects of the tort of defamation and are governed by the same principles.
- Libel and Slander protect the interest of the Plaintiff in his reputation.
- In an action for both, the precise words used must be set out in the statement of claim.
- In an action for both, the names of the persons to whom they are uttered must be set out in the statement of claim.
|Libel is in a permanent form.||Slander is in a transitory form.
|Libel is addressed to the eyes.||Slander is addressed to the ears.|
|Libel is actionable per se, that is, without proof of damage||Slander is actionable only on proof of actual damage.|
There are exceptions where slander is actionable without proof of actual damage. The exceptions are:
- Imputation of a criminal offense: Where the words allege that a plaintiff has committed a criminal offense punishable by imprisonment, is actionable per se. for there to be a slander actionable per se, the following principles must be established:
- The imputation of the offense must be direct and not merely an allegation of suspicion of it.
- The words complained of must be looked at in the context in which the imputation was made in order to discover what was actually imputed.
- The crime alleged must be punishable corporally whether by death, imprisonment, or canning. If punishable only by fine, then the actual damage would have to be proved. It is the same, if imprisonment may be inflicted only in default of paying a fine.
- Imputation of certain types of diseases: it is slander actionable per se to impute that a person is infected with a contagious or infectious or repulsive disease, likely to prevent others from associating with such a person.
- Imputation of adultery or unchastity to a woman or girl: it will be slander actionable per se to speak words, which impute unchastity or adultery to any woman or girl. If the words uttered are mere vulgar abuse, they will not be actionable at all.
- Imputation affecting Office, Profession, calling Trade or Business: imputation of unfitness, dishonesty or incompetence in respect of an office, profession, trade or business held or carried on by the plaintiff, at the time of the publication, will be actionable per se.
Examples of such statements are: that a doctor is incompetent or that an accountant is fraudulent, or that a lawyer knows no law, or that an engineer has no technique. Therefore, any publication of a slander, which is reasonably likely to affect the Plaintiff in his business, trade or profession, is actionable per se, even if the publication does not specifically refer to such business, trade or profession.
For example, a Plaintiff could be awarded a huge sum of money in damages in slander where, as a doctor, he is accused by his patient of sexually harassing her and other staff at the hospital. One cannot imagine an allegation of misconduct which would be more harmful to any doctor.
Essential Elements or Ingredients of Defamation-
The words must be defamatory
To say that a person is insane or that she has been raped is defamatory, but the question is, do right-thinking people think less well of such of a person? A defamatory statement must tend to lower the Plaintiff in the estimation of right-thinking members of society generally.
Innuendo does for an important part of defamation. This is where a plaintiff alleges a defamatory meaning behind a prima facie innocent statement, in order to make it actionable. There are two types of innuendoes:
- The True or Legal Innuendo: here, a plaintiff alleges that the statement, though not defamatory on its face, conveys a defamatory meaning due to special facts or circumstances was known to the reader or recipient. In such a case, the plaintiff must plead and prove the facts, because the defendant is entitled to know that meaning of the statement on which the plaintiff relies. This will enable him to argue either that the statement, in that meaning, is not defamatory or that it is true of the Plaintiff.
If such facts do not exist, the innuendo fails, and the statement of claim will be struck out.
- The False or Popular Innuendo: Here the meaning of the words goes beyond their literal meaning and carries some defamatory inferences which reasonable persons, generally, would draw from the words themselves.
Defamatory words must refer to the Plaintiff:
Having proved that the words are defamatory, the Plaintiff must also prove that such defamatory words refer to him, and not to some other person, real or imaginary.
Words defamatory of a dead person will not sustain an action by relatives who cannot prove that the reputation of the dead is besmirched.
The words must be published
Publication to a third party is the gist of slander and libel and no action can be maintained unless the words have been published. Therefore, the plaintiff must prove that the words he complains about were published.
Publication is the making known on the defamatory matter after it has been written to some person other than the person of whom it is written.
If slander is communicated to a person other than the plaintiff himself, it is publication. Every repetition or republication of slander or libel constitutes a fresh publication and creates a fresh cause of action.
Justification or Truth
The onus on the plaintiff is to prove the publication of a statement defamatory of him. It is not part of his case to establish that the defendant’s statement was untrue since the law presumes this in his favor.
The burden is on the defendant to prove that the statement was true. Therefore, to succeed on a plea of justification, the defendant has the onus of justifying the imputation complained of, and once successfully pleaded, justification is a complete bar to any relief sought by a party who complains of defamation.
Where the defendant’s statement contains an innuendo, the defendant must justify the truth of the meaning raised by the innuendo, just as much as if the words were plain.
The defendant should not plead justification unless he has good reason to believe it will succeed. If the defendant proves the statement to be substantially true, it is sufficient.
Consent and assumption of risk
Where the plaintiff, expressly or impliedly, assents to the publication of the matter, the defendant will not be liable.
This consists of criticism of matters of public interest in the form of comment upon true facts; such comments were honestly made by a person who was not actuated by malice. For this defense to succeed, the following requirements must be satisfied:
- The matter commented on must be of public interest.
- The comment must be an expression of opinion not an assertion of fact.
- The comment must be based on true facts.
- The comment must be honest.
- The comment must not be malicious.
There are two types of privileges:
- Absolute Privilege
- Judicial Privilege
- Statements by a Judge, advocates, witnesses, or parties, in any judicial or quasi-judicial proceedings.
- Communications between a solicitor and client
- Judicial proceedings
- Legislative Privileges, example, Statement made in the proceedings of the Legislator.
- Executive Privilege, example, communications made between Officers of the State.
- Qualified Privilege includes Statement made in the performance of a legal, moral and social duty. For instance, a statement made by a witness when giving a testimony, Statements made to proper authorities in order to obtain redress for public or private grievances and a statement made in self-defense.
NB: An offer of apology for the defamatory statement by a defendant is not a defense. Such an apology may reduce the damages, and its absence may aggravate them.
Defamation is as old as the fundamental right of freedom of speech. The difference between what is written and said is libel or slander.