DEFAMATION AND ITS REQUIREMENTS AND DEFENSES

    Edited by: Vaani Garg

    INTRODUCTION

    Defamation means the publication of vilifying and derogatory statement against a person without lawful justification. Defamation is the impairment to the reputation or an esteem of a person which denounces him to hatred or satirize. If you cause injury to person’s reputation without any lawful justification, then a tort of defamation is committed.

    Two forms of Defamation under English law:

    • Libel: Libel takes place if the publication of derogatory statement causing injury to reputation is in permanent form. For instance, a defamatory statement in a newspaper, magazine or even over radio or television.

    In England, libel is both, a tort and a crime. Limitation for filing a suit is for 6 years.

    • Slander: Slander occurs when publication of derogatory statement is made in non-permanent or transient form. For instance, defamatory statement while speaking or gesturing.

    It is only civil wrong and limitation for filing a suit is for 2 years.

    The practice of defamation in India is different from that of in England. In India, both libel and slander are criminal offences under Section 499 of Indian Penal Code. All defamation statements are actionable per se also limitation for filing suit for defamation is 2 years. The practice of division of defamatory statement is not followed by Indian courts.

    Requirements for defamation:

    The statement made should be defamatory:

    A statement is supposed to be derogatory when in front of society, the reputation or esteem of plaintiff might fall or vilified without any lawful justification. Both prima facie (means that on face of it) defamatory statements or statement with hidden meaning are covered under defamation.

    It was the plaintiff who was referred to by or in that statement:

    If the defamatory statement is not referring or indicating you then you cannot allege that your reputation was injured. If the statement is exposed publically and people trusted it, and if they think its referring to the plaintiff, then it will be considered as defamation. In such a case, defendant can’t give excuses that statement he made was not with regard to the plaintiff.

    The statement should be published:

    By “publication” it is not meant that statement must be printed. All it is means is that the derogatory statement must be known to the people other than person who is actually defamed.

    For instance, if A dictates a letter to his secretary B which contains defamatory remark in reference to C, C may sue A because by dictating the letter it came into knowledge of B.

    Defenses to defamation:

    Truth:

    If you were telling the truth significantly, then that is an absolute defence. It’s all right if you were wrong on some specifications as long as your statements were significantly true.

    Fair comment or Opinion:

    If you are demonstrating a belief or estimations rather than asserting what you think is a fact, then that might be legitimate as long as you tell the audience your reasons for that opinion. Also, the criticism must be fair and not based on anything untrue.

    Privilege:

    There are definite occurrences which are paramount that those making statement on those matters are not liable for defamation, even though their statements are false and vindictive. This privilege is of two types:

    Absolute Privilege:

    A statement is absolutely privileged when no action lies even though it is false, derogatory or malicious. The defence of absolute privilege is available in:

    Parliamentary proceeding: Article 105(2) and Article 194(2) of Indian Constitution states that no member of Parliament shall be liable to any proceedings in any court with respect to anything said or any vote given by him in the Parliament or any committee thereof, and no person shall be liable in respect of the publication by or under the authority of either House of Parliament of any reports, paper, votes or proceedings.

    Judicial Proceedings: are also covered under absolute privilege. No action of defamation lies against the judges, counsels, witness or parties for anything said during the judicial proceedings in court of law, even though the words are written or spoken maliciously without any justification or excuse.

    State Proceedings: They are also covered under absolute privilege.

    Qualified Privilege:

    In definite situations it is thought beneficial that reflection on the reputation of others although untrue, should not give rise to tortious liability provided that they were not published with malice. The defense of qualified privilege in an action against defamation may extend to the statement has been made in discharge of a duty, or when statement is made in self defense or in public interest.