Defamation

By using words, signs, or visible representations, if a person commits an act of wrongdoing against someone's reputation, it is known as defamation. Defamation covers both civil wrong and criminal act.

A defamatory statement's goal is to malign an individual's standing in their professional field or social circles, exposing them to mockery, scorn, or animosity.

Television or radio broadcasts and writings in books, newspapers, or magazines are often the focus of defamation lawsuits. The defendant must have communicated the false statements to someone other than the plaintiff or their spouse for a defamation case to be brought forth.

Avoiding liability for the defendant is possible if they can prove that publication was unforeseeable.

According to Winfield, defamation is a publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or which tends to make them shun or avoid that person.

Types of Defamation

The tort of defamation is of two types: Libel and Slander.

In India, it doesn't matter whether a statement is libel or slander, unlike in England where it is crucial to differentiate between the two. In India, equal treatment is given to both libel and slander.

Defamatory statements are determined by the fulfilment of one of the following three conditions:

1. The plaintiff is exposed to hatred, contempt, etc
2. His profession or trade is injured.
3. He is shunned or avoided by his neighbours.

Libel

Libel is defined as injuring someone's reputation via false and defamatory statements, usually through publication in a permanent form and without any lawful justification e.g., painting of picture, effigy, caricature, advertisement and taking film.

Libel is addressed to the eye. As forms of permanent publication, both radio and television broadcasting fall under the category of libel.

Liability for libel isn't limited to the author and publisher of a printed statement. It also extends to those responsible for distribution, such as a printer or news agent who sold the publication. This means that all parties involved may be sued for the defamatory content printed.

Essentials of Libel

The following factors must be proved by the plaintiff to succeed in an action for libel:

1. False statement.
2. Defamatory.
3. Made in some permanent form.
4. Made without lawful justification.

As it is actionable per se, the special damage or loss need not be proved

Morrison v. Ritchie
The publisher was found responsible for mistakenly announcing that a woman, who had married recently, delivered twins. Despite there being no ill will or purposeful harm intended, the newspaper owner was held accountable.

Innuendo
Due to certain circumstances, a statement that may not seem defamatory at first glance can actually be considered a form of indirect defamation, also known as 'Innuendo'. In these cases, the statement only becomes defamatory because of the surrounding context.

A man might describe someone as a 'Gandhiji' or 'Harishchandra', two saintly characters, with intention to imply the opposite of what he was saying.

Slander
Injury to someone's reputation through oral, false and defamatory statements, such as spoken words or gestures, constitutes slander, which lacks lawful justification. Slander is spoken defamation.

Addressed only to the ear and in temporary form, slander is conveyed through spoken words or other visible or audible transitory forms like gestures or inarticulate but meaningful sounds.

Generally, slander is not actionable on its own. The court will only consider it if the plaintiff has proof of special damage, which refers to a monetary loss coupled with a damaged reputation. Without this proof, any lawsuit will fail.

Slander can be actionable per se in certain situations, allowing for legal action without the need to prove special damage. These five cases specifically fall under the following category:

Instances of Slander that are Actionable Per Se:

• Slander is actionable per se when someone is wrongly accused of a criminal offence that carries imprisonment as punishment, such as theft or robbery. However, if the accusation is for a minor offence that only carries a fine, it is not automatically actionable.
• Slander is actionable per se if a person is imputed with virulent diseases like V.D., leprosy, etc, which prevents others from associating with him.
• If someone verbally slanders a person's profession, trade, or office, it can be considered actionable per se. For instance, referring to a lawyer as someone who lacks knowledge of the law is a form of slander that can be addressed through legal action.
• When referring to someone from a general caste as a scheduled caste, their caste is automatically demoted. This constitutes an action that is per se actionable.
• When an accusation of unchastity or adultery is made against a woman or girl, it is considered slander that can be acted upon without requiring further proof.

Essentials of Slander:

1. False Statement.
2. Defamatory.
3. Made without lawful justification.
4. Made in temporary form.

Differences between Libel and Slander:

• Libel is a false and defamatory statement made in a written form, whereas Slander is an oral, false and defamatory statement (by spoken words).
• Online publications, photographs, and social media are all forms in which defamatory statements can be made through libelous writing or print. Verbal defamatory statements, like those in conversations, speeches, or podcasts, are part of the slander category.
• Because they can be widely spread and recorded, libel statements are usually more long-lasting than Slander.
• Libel is addressed to the eyes generally, while Slander is addressed to the ears.
• Libel is in permanent form, e.g., painting a picture, effigy, advertisement and taking film, whereas Slander is in a temporary form e.g., spoken words, gestures etc.
• Libel cases typically result in higher damages compared to Slander cases, as written defamation is believed to cause more severe harm.
• Libel is both a civil and criminal wrong, while Slander is a civil wrong in England, but both criminal and civil wrong in India.
• In Libel Special damage or loss need not be proved. So, it is actionable per se. Whereas in Slander, special damage or loss should be proved except under some exceptional cases. So, Slander is generally not actionable per se.
• Libel is made with definite and deliberate intention and shows malice, whereas Slander may be made in the heat of the moment under sudden provocation.
• An action for Libel is barred after six years in England and one year in India, whereas an action for Slander is barred after two years in England and one year in India.
• Written publications can often have a bigger audience and last longer than spoken words, making libel more harmful and damaging than slander.
• The documentation of written or printed statements makes proving publication much simpler in the case of libel. Proving publication in a slander case can be quite difficult since there's no easy way of documenting spoken words.

Defenses of Defamation:

• Justification by Truth: A true statement is not considered defamation if published by an individual, however, simply believing that a statement is truthful is inadequate. Statements published with public interest and benefit in mind are only considered legitimate, such as the publication and criticism of a minister's bad character, given that it serves the public good.
   
• Fair and Bonafide Comment: Opinions on certain facts can be expressed through comments. If a comment is impartial and authentic, it cannot be labelled as slander, since these views, when impartial and genuine, do not hold defamatory content. In this scenario, it is simply a claim of fair comment.

The cornerstone of a public interest statement is that it expresses an opinion, rather than purports to state a fact. Malicious intent must not be present in the remarks. Commentary should be sincere and impartial, though may be exaggerated. It is imperative, however, that the opinion is founded on reality.

Comments on the conduct of civil and criminal actions in courts, judicial decisions, and witness testimony can be made once the trial concludes. Additionally, remarks can be made about the functioning of state affairs, the public acts of government officials and ministers, and events hosted by public institutions.

Rolled Up Plea
The statements which are true in substance and fact and expressions of opinion i.e., fair comment made in good faith and without malice on a matter of public interest are 'Rolled Up Plea'. In other words, the essentials of Rolled Up Plea are true statements and fair comment made in good faith.

Fair comment made in good faith and without malice on a matter of public interest, along with true statements, are the requirements for a 'Rolled Up Plea'. This essentially means that statements made are both factual and truthful and made in good faith.

Privilege
Additional freedom is what privilege refers to. The person who is granted this benefit is called a privileged person and can't be sued for defamation in certain situations and places where the statement is made. There are two types of privileges: Absolute and Qualified.

Absolute Privilege:

1. Defamation is not applicable when spoken within the Parliament or Assembly due to absolute privilege.
2. During the course of legal proceedings, defamatory comments made by parties involved are not considered defamation. Examples include Receivers, Jurors, Advocates, and Solicitors, who may ask witnesses damaging questions during cross-examination.
3. Defamation is not considered when any remark is made during military or naval proceedings.
4. State proceedings made by a higher-up government official to their subordinate does not count as defamation as long as it's done during official duties.

Qualified Privilege: If there is a sincere and genuine intention, then qualified privilege is not considered defamatory. However, it must be free of any malice or wickedness.

When an employer gives a reference for a past employee, qualified privilege may come into play. For instance, if John, a former employee, applies for a new job and uses XYZ Corporation as his reference, a potential employer, such as ABC Company, may contact XYZ Corporation for information on John's work performance. If XYZ Corporation decides to disclose negative information regarding John's job performance, this would be an example of qualified privilege being exercised.

Defamation by a spouse
As it is not considered publication, a defamatory statement about a third party made by one spouse to the other spouse does not qualify as defamation.

Defamation of a deceased person
Legal repercussions can arise from speaking poorly of deceased individuals. Defamation of a deceased person is punishable under the I.P.C. and can also harm their living legal heirs who are able to take legal action against the offender. Section 499 of IPC concerns defamation of the deceased. According to this section, defamation occurs when an insinuation is aimed at harming the emotions of a deceased individual's relatives, leading to a potential tarnish of the individual's reputation.

Conclusion
Personal and professional reputations depend greatly on laws that prevent false claims from causing harm. It is crucial to enforce defamation laws in a world where damaging statements can have lasting consequences. These laws help promote responsible communication and trust within society in an era of rapid information dissemination.

By setting boundaries that prevent harm and balance freedom of speech, individuals' rights and reputations are safeguarded. The accountability that defamation laws provide fosters transparency, trustworthiness, and societal responsibility among individuals and organizations alike. Preserving individuals' rights and dignity in an interconnected world is a crucial role that these laws play.

References:

1. Law of Torts, Usha Jaganath Law Series
2. https://www.coursehero.com/file/15387269/DEFAMATION/

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565