Defamation – definition, essentials, remedies & defences under law of torts
Defamation refers to the act of damaging a person’s character, fame, and/or reputation, by false and malicious claims. It is of two types: libel, which is written; and slander which is a spoken form of defamation. The main objective of this law is to avoid false statements. the offense occurs when an attack is made on a person’s reputation by means of a false publication tending to disregard the person against whom such publication is made and the same is communicated to a third party. The crime doesn’t constitute mere harm to a person’s feelings. A loss of reputation needs to occur.
Therefore, defamation is any publication of such a false statement that lowers the image of an individual in society in the eyes of the right-thinking section of the society, leading to people avoiding/shunning that individual.
Section 499 of 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 expected, to defame that person.”
Hence, as per Section 499, there are certain elements of the offense of defamation.
ELEMENTS OF DEFAMATION
- Statement made should be defamatory in nature
- Statement must concern the person filing the suit for defamation, i.e. the plaintiff.
- Defamatory statement must be published.
- The statement made must be false.
- Statement made should be defamatory in nature. This basically means that the individual for whom it is published would lead to lowering his/her reputation. Whether a statement is defamatory in nature depends on the fact that how the right-thinking section of society perceives the statements published. In addition, it is not a valid defense that the statements lacked the intention to defame. In the famous case of actress Katie Holmes, for instance, a magazine claimed that she was a drug addict. As it was contrary to her image and was also a false allegation, she subsequently filed a defamation suit.
- Statement must concern the person filing the suit for defamation, i.e. the plaintiff. For the defense to take place it is important for a rational person to think that such a statement belongs to the plaintiff. In the landmark case of Jones v. Hulton, where a defamatory article was published about one Artemis Jones while describing a motor festival. A barrister named Artemis Jones alleged that this was defamatory to him as right-thinking individuals, as well as his friends, believed that the article referred to him even though it was contended by the defendant that the same was an imaginary name used for the purpose of this article. House of Lords upheld the decision that the same is defamation, even if there was no knowledge or intention on the part of the accused.
- Defamatory statement must be published. It is important that the defamatory statement be published i.e. it falls into the knowledge of a third party, who is not subject to the defamatory statement. It is one of the prerequisites to prove that the person making such statements had the intention that he should be heard by someone else, to whom it is not being addressed. If there is no such evidence, then be read by another person alleged person cannot be held liable. The defendant was held responsible for sending a defamatory letter to the plaintiff wrote in Urdu in the case of Mahendra Ram v. Harnandan Prasad, knowing that the plaintiff did not know Urdu and that the letter would most likely.
- The statement made must be false. Defamation would not be applicable if a true statement is made by a person. In addition, because of their nature, the opinions of an individual cannot be termed as true or false and hence cant be claimed as defamatory.
FORMS OF PUBLICATIONS
As per section 499, the publication can be through signs, words, or even gestures. It can therefore be achieved through a voice on the radio, in the newspaper, or even on social media. It is assumed to be published if a rational person is able to understand its context and meaning. Therefore publication can be:
1. Libel– a published false statement that is damaging to a person’s reputation; written defamation. An instance of libel is when someone publishes in the newspaper that while this is false, you are a thief.
2. Slander– the action or crime of making a false spoken statement damaging to a person’s reputation. For example, saying that another person is a thief although he is not.
EXCEPTIONS PROVIDED IN SECTION 499:
- Truth for Public Good
- Fair criticism of Public Servants
- Fair comment on Public Conduct of Public Men other than Public servants
- Reports of proceedings of the court of justice
- Comment on cases
- Literary Criticism
- Disapproval by Authority
- Communication between wife and husband
1. Truth for Public Good– If a statement is true concerning any person and it is for the public good that such imputation must be published, then such a statement would not fall within the definition of the offense of defamation under Section 499.
2. Fair criticism of Public Servants– this exemption doesn’t defend a person from his claims, but his beliefs. In the interests of the public, every citizen of the country has the legal right to make accurate and fair claims about public servants. However, it must be ensured that such
3. Fair comment on Public Conduct of Public Men other than Public servants– section 499 notes that the offense of defamation will not be created by a fair, truthful, and accurate critique of public servants and the test of fair comment will actually succeed.
4. Reports of proceedings of the court of justice– Judicial trials in India are of public interest. Accurate recording of such proceedings must also be made and be exempted from the purview of defamation. The author of the report must ensure that all the information provided is precise and is free from malafide, deceptive, and inaccurate data.
5. Comment on cases– Protection is provided to case comments of the decisions that have been adjudicated upon confidently.
6. Literary Criticism– Society, in general, must have the right to openly criticize literary work. In order to decide what the general public likes or dislikes about how it reacts to a work of art, a fair and frank debate is necessary for these performances. For this exemption, certain criteria need to be fulfilled:
- There needs to be an invitation by the author for such criticism by the public. It is not necessary however to distribute the same for review.
- The criticisms must be pertinent to the standard of the performance and not as such whether the person has the ability to do the same or not.
- The statement of imputation must be made in good faith.
7. Disapproval by Authority– it is essential to note that in certain areas the higher authority has the power to disapprove the work of its subordinate. However, it should be observed that such practice of authority is done within the scope of it and is free from malafide intentions. For instance, if an employer censures the work of his subordinates, then it is not defamation.
8. COMMUNICATION BETWEEN WIFE AND HUSBAND: Husband and wife constitute a single party as per the Indian laws and communication of any fact between them don’t amount to disclosure and thus will not fall under the ambit of defamation.
Author: SHOBHIT ARORA,
CHRIST UNIVERSITY 1st year student