Defences against the defamation suits – law of torts
Injury to a person’s image is defamation. If an individual injures another’s reputation, he does so at his own risk. The reputation of a person is like his property, and even more precious than the physical property. As per Black’s Law Dictionary, defamation means “The offence of injuring a person’s character, fame, or reputation by false and malicious statements”. Law divides actions for defamation into—Libel .and Slander. The publishing of any defamatory statement in a temporary or transient form, then it is called Slander. For instance, words or gestures; on the other hand, Libel is the statement published in a permanent form like pictures, writings, paintings, etc.
DEFENCES FOR DEFAMATION:
There are certain defences available with the defendant which can be used to avoid any kind of liability against defamation charges.
1. Justification by the truth
In a civil charge of defamation, truth is an absolute defence. It doesn’t constitute an action for defamation if the statement made was authentic. The burden of proof rests with the defendant who claims the defence. In the case of Radheshyam Tiwari v. Eknath, the defendant published a series of allegations against the plaintiff for issuing of false certificates, accepting bribes, etc. However, the defendant could not prove that the claims made were true and thus was held liable for defamation. Under a criminal charge of defamation, only proving that the statement was true is not sufficient, it should be backed by the fact that it was done for the public good. The justification for the defence is that” the law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess”. The defence is available with the defendant even in the case when the prosecution was done maliciously.
2. Fair and bona fide comment
Making a fair comment on matters of public interest and in a bona fide manner can be used as a defence by the defendant against the action of defamation. This defence is based on the public policy that gives every individual the right to comment and criticize the work or activities of public offices, actors, authors and athletes, along with those whose career depends on public attention, without any malicious intent. For this defence to apply certain conditions are to be fulfilled.
(i) It must be a comment, i.e. the statement should be of an opinion rather than an assertion of facts. A statement of comment is a defence on its own, whereas if it is a statement of fact, it can only be excused if there is proof of justification or privilege. Since the statement must be linked to certain facts to be an opinion, it is also critical that the facts commented on are either known to the audience or are made known by the commentator with his remarks. The language used by the person and the context for which it was used determines whether the statement was a comment or an expression of fact.
(ii) The comment so made must be fair. When it is found that the comment was made based on untrue evidence, it cannot be a fair comment. Thus, a comment based on fabricated information is not fair. Whether or not the comment is fair depends on whether the particular viewpoint was sincerely held by the commentator. The opinion of the commentator, which is material, is not the opinion of the court as to the fairness of the statement. Another important thing is that the comment made should not be skewed due to personal malice. If the comment is twisted due to ill will then the comment ceases to be fair.
(iii) The concerned comment should be made on the topic of public interest. The issues of public interest may include administration of government departments, public corporations, courts, political statements, public institutions, municipal authorities, public assemblies, etc.
3. Defence of justification
The plea of justice is available only about both facts and views, and there is no need to prove the validity of the observations. The defendant must show not only that he sincerely held the views expressed, but also that they were true if the reason is pleaded concerning matters of opinion.
4. Absolute privilege
Even if it is defamatory, it gives the person an absolute right to comment, the individual is free from liability arising from defamation litigation. Generally, absolute privilege exempts defamatory statements made:
(i) during judicial proceedings,
(ii) by government officials,
(iii) by legislators during debates in the parliament,
(iv) during political speeches in the parliamentary proceedings and,
(v) Communication between spouses.
5. Qualified privilege
If a person making the statement has a legal, social or moral obligation to make it and the listener has an interest in it, then it is appropriate to defend eligible privilege. Following are the instances where this defence can be availed of:
(i) Reference for a job applicant,
(ii) Answering the police inquiries,
(iii) A fair criticism of a published book or film in a review,
(iv) communication between parents and teachers,
(v) communication between employers and employees,
(vi) Communication between traders and credit agencies are all relationships that are protected by qualified privilege.
These privileged conversations, even though what was said was untrue, would apply to the business at hand. This does not, however, offer a license to say false statements, but the person making the argument must assume that it is valid. If it is proven that the defamatory statement was made with a malicious motive, this defence could fail.
If the defendant consent to the allegation made, then there is no defamation. The complainant’s approval grants the publisher full privilege; it is meaningless whether or not the complainant understood that the material accepted for publication was defamatory. By words or acts, including inaction, consent may be granted. It would be invalid if the consent is obtained fraudulently or from a person of an unsound mind.
Author: SHOBHIT ARORA,
CHRIST UNIVERSITY 1st year student