Author: Shefali Chitkara
Vivekananda Institute of Professional Studies, Delhi
“One of the inherent personal right and valuable property that man has, is his reputation and this right is a jus in rem.”
Law of torts is that branch of law that is not codified. It is the area of law that covers most civil suits. It includes negligence, nuisance, malicious prosecution, defamation etc. The concept of ‘libel’ and ‘slander’ comes under “defamation”. According to Black’s law dictionary defamation is “The offence of injuring a person’s character, fame, or reputation by false and malicious statements”. In other words, defamation means any oral or written statement by one person for another person which damages the reputation of that other person. Libel and slander are two forms of defamation. The article discusses them in detail with case studies. Further, it also discusses that the right to life under Article 21 of the Constitution includes the right to reputation of a person and it cannot be violated at the cost of the freedom of speech of another.
Defamation may be either libel or slander, depending on the manner in which a person makes a false statement. Let’s look at both the terms:
Libel means defamation in a permanent or written form. For example, if a person makes a written or a printed defamatory claim against a person, then that would be libel. It may also be in the form of a movie or picture. Another example can be when X printed some advertisement saying that Y is bankrupt, but Y was not, thus, it was represented in a specific form. In this case, the plaintiff can recover even without specifically demonstrating that he has suffered actual economic harm. In libel, the plaintiff needs to prove two essential elements i.e. a defamatory statement about the plaintiff has been published by the defendant and other people were exposed to the statement. In Youssoupoff v. M.G.M. Pictures Ltd. ((1934) 50 T.L.R. 581), in which a film was produced by an English company. In the film, a lady, Princess Natasha was shown as having relations of seduction or rape with Rasputin, a man of worst possible character. It was observed that the photogenic part of the film is the permanent matter that has to be seen by the eye and it is the proper subject of an action for libel.
There was one more case of Mahendra Ram v. Harnandan Prasad (AIR 1958 Pat. 445). In this case, the defendant had sent a defamatory letter written in Urdu despite knowing the fact that the plaintiff could not read Urdu and ultimately the letter would be read by some other person. So, in this case, the defendant was held liable.
Slander refers to the defamatory statement in the transient form like gestures or spoken words. For example, if A questions the chastity of B in an interview, then A is slanderous. In this case, the plaintiff needs to prove that the actual harm has resulted from the impact of slander on the person’s reputation. Examples of harm can be the loss of friends or a marriage engagement broken off due to that statement but certain defamatory statements are so egregious that the plaintiff doesn’t need to present specific evidence of harm. These are the cases of slander per se. There are basically four exceptional cases in which slander is considered to be actionable per se. These are:
Accusation of a criminal offence to the plaintiff that is punishable with imprisonment.
Accusation of adultery or unchastity to any girl or women.
Accusation of incompetence, dishonesty in any office, trade, business that is carried on by the plaintiff.
Accusation of infectious disease to the plaintiff which has the effect of preventing others from associating with him.
In the case of Ramdhara v. Phulwatibai (1970 CriLj 286), it has been held that the accusation made by the defendant that the plaintiff who was the widow of 45 years of age, is a keep of the maternal uncle of the plaintiff’s daughter-in-law, in not just a mere vulgar abuse but a definite imputation upon her chastity. Thus, a case of defamation.
ELEMENTS OF DEFAMATION
There are several elements that need to be present in order to file a suit for libel or slander against someone. The elements are:
● The statement should be made either written or oral.
● The statement should refer to the plaintiff
● The statement must be defamatory.
● The intention of the wrongdoer whether it is with the intention to cause injury to the reputation of the plaintiff.
● A defamatory statement should be false.
● The statement should not be privileged.
● The statement must be published i.e. it should be communicated to the third party.
● The third party should believe that the defamatory statement is true.
● The statement must cause some harm or injury.
PUNISHMENT AND REMEDY
Libel is a criminal offence as well as a civil wrong while slander is just a civil wrong under common law. However, according to Indian Law, both libel and slander can be criminal offences as well as civil wrongs. Further, the remedies for the tort of defamation may be either criminal proceedings or civil action. This means that a person who has suffered defamation can opt for both the remedies. He can file a civil suit claiming damages. The amount of damages depends on the factors like the amount of loss, nature of statement, etc. Many known people like politicians seek crores of rupees as damages for defamation.
There was a case of D. P. Choudhary v. Kumari Manjulata (AIR 1997 Raj 170). In this case, the respondent, Manjulata who was about 17 years of age belonged to a distinguished family. A news item was published in a local daily Dainik Navjyoti that late night she ran away with a boy named Kamlesh, but she had gone to attend night classes. The news item that was published was untrue and negligently published with utter irresponsibility. The court held that the action was defamatory, and she was entitled with the damages of ₹10,000 as general damages.
A defamed person can even file a criminal complaint under Section 499 of Indian Penal Code that defines defamation. The punishment under this provision would be imprisonment unto two years or fine or both.
DEFENCES TO DEFAMATION CLAIM
In a case, if the defendant can prove that the statement that he has said or published about the plaintiff was true, then the plaintiff will lose the case. When a libel suit is filed against the defendant, then the plaintiff must prove that the statement published was untrue, the media defendant is not required to prove its publication was true to defend the case. One more defense to defamation could be privilege. There can be absolute privilege and qualified privilege. If the defendant is a public official or if a statement has been made/published during certain official proceedings, the statement may be ‘privileged’ and hence, the defamation suit will not be entertained. There was a case of Adam v. Ward ((1917) AC 309) in which the court defined a ‘privileged occasion’ as an occasion where a person who makes a statement has an interest or a duty i.e. legal, social or moral, to make it to a person to whom it is made. The person for/to whom it has been made has a corresponding interest or duty to receive it. The presence of this reciprocity is essential.
There is one question that arises i.e. whether liability arising out of defamation is a violation of right to freedom of speech and expression. Basically, the right to reputation also comes under the ambit of right to life and liberty of Article 21. Courts often balance this right of reputation with the fundamental right of speech and expression. In a democratic nation, everyone has the right to criticize and dissent, but this right under Article 19(1)(a) is not absolute and he cannot defame another person as that would offend the victim's fundamental right to reputation. In today’s facets of life, protecting one’s reputation is the key to success. The area of law of torts entitles the plaintiff to protection and damages in case of reputational harm.
(1934) 50 T.L.R. 581
AIR 1958 Pat. 445
1970 CriLj 286
AIR 1997 Raj 170
(1917) AC 309