Defamation:Meaning and essential elements

According to Dr. Winfield ‘Defamation’ is the 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. In Drunond Jackson v. B.M.A., the Court accepted the above definition and restated the following observation:

Defamation is injury to the reputation of a person. If a person injuries the reputation of another he does so at his own risk as in the case of an interference with the property. A man’s reputation is his property, and if possible, move valuable, than other property. The right of reputation is recognised as an inherent personal right of every person. It is Jus in rem, a right against all the world.

Defamation is the publication concerning a person of a statement in words, writing by pictures or significant gestures, which exposes such person to feeling of hatred, ridicule or contempt whereby he suffers injury to his reputation. Thus, defamation consists in using any language or representation, oral or written tending to bring the person of whom it is published, into hatred, ridicule, or disgrace, or to injure him in respect of his vocation. The term ‘representation’ is wide enough to include painting, picture, sign of effigy. Mere vulgar abuse or insulting name-calling and vituperative epithets may hurt a man’s pride but do not disparage his reputation, if intended as mere abuse and so understood by the hearer.

There are certain conditions of liability of a person for defamation as discussed below:

(1) Statement must be defamatory-The statement may be divided into two categories; the statements which are defamatory in their natural and ordinary meaning and the statements which are innocent in their primary sense.

A statement is defamatory, if in its natural and ordinary sense it tends;

(a) To excite adverse opinion or feeling of other persons against the plaintiff.

(b) To holding up to public hatred, contempt, ridicule, disesteem or obloquy;

(c) To prejudice his private character or credit;

 (d) To injure him in his profession, business or trade;

(e) To cause him to be feared, shunned, disliked or avoided by the neighbours or others; or

(f) To degrade him in the estimation of the people.

Lord Atkin laid down the following test; “Would the words tent to lower the plaintiff in the estimation of right-thinking members of the society generally.

Defamatory statement may be malicious or negligent. – Where a proprietor of a newspaper published erroneously, which he believed to be true, that the plaintiff had, given birth to twins although she was married only a month ago. He was held liable.

Innuendo- A statement may be innocent in its natural and ordinary sense, but it may communicate defamatory meaning, if it is likely to be understood and in fact, understood in the light of certain existing facts known to the persons to whom the statement has been made. In such cases an innuendo is required. By “innuendo” is meant the explanatory statement that though the words were not libellous in their ordinary meaning, they had, in fact, a libellous meaning in the circumstances of the case.

Where the defendant publishes a statement which according to him is not defamatory on the basis of facts known to him but in fact defamatory owing to the facts not known to him but known to the persons to whom it is made, the defendant will be liable.

Plea of Innuendo. The law of pleadings requires that when a statement is prima facie innocent, but the plaintiff alleges a defamatory significance to it, he must, in his pleadings, set forth the circumstances which make it defamatory. In technical language he must prove an
innuendo.

Hence, the rule is that whenever the words are not defamatory in their ordinary sense, the plaintiff must allege in his statement of claim an innuendo and must prove the facts necessary in satisfying the jury that the meaning alleged in an innuendo was the meaning of the words.

Juxtaposition. – An innocent statement may be turned into defamatory by juxtaposition to noxious matter. For instance, in Monson v. Tassauds Ltd. waxen effigy of a person against whom a charge of murder had been made but who was acquitted was exhibited in company with the effigy of notorious criminals. The act was held to be defamatory on the ground that although he has not been found and proved to be guilty in the case against him, yet, he was to be bracketed with criminals.

(2) The statement must refer to the plaintiff.- In every action of defamation the plaintiff must prove that the statement refers to him. In G. Sredharmurthy. v. Bellary Municipal Council. the plaintiff was a practising advocate and also income-tax and wealth-tax payer. The municipal council out of ill-will and malice served notice of distraint warrant and seized plaintiff’s furniture and books. It was held that in such a case substantial damage should be awarded even though no evidence regarding damage was adduced.

Intention of motive immaterial.-It is not necessary to show that the defendant intended it to refer to the plaintiff. The question is not whether he intended any such reference, but whether any person to whom the statement was published reasonably though that the plaintiff was the person referred to. “Liability for libel does not depend on the intention of the defamator, but on the fact of defamation”. “A man publishes defamatory statement at his peril” is the rule which is now generally regarded as established.

In Cassidy v. Daily Mirror Newspaper, the defendant published a photograph entitled “Mr. M. Corrigan, the race horse owner and Miss ‘X’ whose engagement is announced” Mr. C had authorised this title. The defendants did not know the plaintiff’s existence. She (the plaintiff) was, and was known by her friends as the wife of Mr. C. She pleaded that the statement implied that she was an immoral woman cohabiting with Mr. C, proved injury to her reputation on that ground, and recovered ¬£ 500 as damages. The Court of Appeal refused to disturb the verdict. and apparently regarded negligence as irrelevant. The person publishing a statement must take the consequence of the defamatory inferences reasonably drawn from his words. The Court of Appeal held that the fact that the defendant did not know the statement to be defamatory was irrelevant. A person making a statement which he believes to be innocent, but which is, in fact, defamatory by reason of facts unknown to him but known to the persons to whom he makes it, is liable in an action for defamation.

In Shaw v. London Express Newspapers Co., the defendant published a true description of the murder of a woman, and the plaintiff who bore the same name as person who lived with the dead woman complained of defamation. The Court held that true account of murder trial could not be defamatory of the plaintiff who by coincidence had the same name as the murderer. The decision refers to the possibility that, where the defendant’s words do not amount to defamation as against the person intended, there would certainly be no liability in respect of the person against whom it was not at all intended.

In Gurubachan Singh v. Babu Ram.-Where the editor was convicted for publishing wrong information and claimed indemnity from the supplier of the information, the Court held that the editor cannot get indemnity from the supplier unless there was contract to that effect because the editor does not have a legal right to get only the correct news. It is the duty of an editor to check up the news of the information supplied to him, before publishing the same in his paper, specially when the news might be of defamatory nature, because ultimately it is the editor who would be held responsible for publishing any defamatory  material in his paper.

Defamation of classes persons.– It is not essential that the defamatory statements should be directed either specially or impliedly against the plaintiff exclusively or individually. An accusation against the whole class of persons may be actionable at the suit of each of them. But in such cases of general accusation the class must not be so large that statement ceases to be, in reality, defamatory of any particular individual belonging to it. But a statement such as “all manking is vicious and depraved”, all lawyers are dishonest” are so general in their nature as not to be taken literally by a reasonable man. The same principle also applies to the defamation of unspecified members of a class. Here also the class must not be so large that the charge ceases to affect the reputation of any individual member of it.

In considering the question whether an individual can sue in respect of words which are directed against a group or class of persons. Jolowicz and Lewis summarised the whole law, in terms of the following propositions:

(a) The crucial question is whether the words were published “of the plaintiff” in the sense that he can be said to be personally pointed at, rather than the application of any arbitrary general rule subject to exceptions that liability cannot arise from words published of a class.

(b) Normally where the defamatory statement is directed to a class of persons no individual belonging to the class is entitled to say that the words were written or spoken of himself.

(c) Words which appear to apply to a class may be actionable if there is something in the words, or the circumstance under which they were published which indicates a particular plaintiff or plaintiffs.

(d) Again if the reference is to a limited class or group, e.g., trustees, members of a firm, tenants of a particular building, so that the words can be said to refer to each member, all will be able to sue.

(e) Whether there is any evidence on which the words can be regarded as capable of referring to the plaintiff is a matter of law for the judge.

(3) The statement must be published.- “Publication” means making known the matter to some person other than he plaintiff, If a person writes a defamatory matter of the plaintiff and puts it into his own pocket locket it in his drawer, he is not responsible in an action, because there has been no publication. Therefore, there must be communication by the speaker or the publication. Therefore, there must be communication by the speaker or the writer to third person or if a third person wrongfully reads a letter meant for the plaintiff, the defendant is not liable.

The following principles, however, govern the rule of publication of a defamatory statement:

(a) The publication must be to a third person that is to any person other than the defamer and the defarmed.

In B. v. Adams, the defendant wrote a letter to virtuous and modest woman soliciting an immoral intercourse with her. He enclosed it in an envelope properly fastened and addressed to her. The defendant was held not liable for defamation, because there had been no publication.

(b) A publication is not sufficient unless it is made to a person who understood the defamatory significance of the statement, who also understood that it referred to the plaintiff.

Mohendar Ram v. Harnandan., the defendant sent a defamatory letter in Urdu to the plaintiff. The plaintiff did not know Urdu and therefore asked some other person to read it and tell him the contents. The plaintiff brought an action for defamation against the defendant. The Court held that the defendant is not liable in this case so long it is not proved that the defendant knew it that the plaintiff was unable to read the letter in Urdu and therefore, he will have to ask someone else to read it for him.

Similarly, publication cannot be held to have taken place where a counsel gives the contents of the written statements to his own clients or to his own Munshi in the ordinary discharge of his duties as a lawyer.

(c) Publication is presumed in certain cases.- In all such cases he document is so put in the way of being read or understood by someone, that it is probable that he actually read and understood it, for example, defamatory matter transmitted in telegrams or postcard, letters usually opened by plaintiff’s clerk and defamatory open pictures or films, When publication is presumed, the burden of disproving it lies on the defendant.

(d) Unintentional Publication. – Publication need not be intentional, for it is sufficient that it is due to the negligence of the defendant. The defamer must be shown to have been guilty either of intention or negligence. Negligent publication suffices, but an unintentional publication due to no negligence is not actionable. Thus, the publication of the document in ignorance is not actionable. But, the publication of the document in ignorance of its contents, which the defendant ought to have known is a good of action.

Exception. An innocent disseminator (one who scatters abroad) without negligence is not liable, because he is innocent and is responsible for the defamatory literature. For instance, if a news vendor sells in the ordinary course of business a newspaper containing a libel against A, and he is able to prove that he had not knowledge of the existence of the libel, and that he showed no negligence in failing to acquire such knowledge, A’s action against him would not succeed. The news vendor would not be liable, because if there is no negligence, an innocent disseminator of the defamatory literature is not responsible since he is not expected to know that it contains libellous matters.

But where a libel appears in a newspaper, the proprietor, the editor, the printer, and the publisher are liable to be sued either separately or together. In all cases of joint publication each defendant is liable for all the ensuing damage. The proprietor is liable for any libel which appears in its columns even though the publication is made in his absence, without his knowledge or even contrary to his orders.

Repetition.-Every repetition of defamatory words is a new publication and a distinct cause of action. “Talebearers are as bad as talemakers.” Where slanderous words are not actionable per se but damage arises from the repetition, the originator wil not be liable, except:

(i)where the originator authorised or intended the repetition;

(ii) where the repetition was a natural consequence of his act; and

(iii) where there was an obligation, or duty, legal, moral or social on the person in whose presence or to whom the slander was uttered, to report it, and to communicate it to a third person.

Exception; Husband and wife. – The uttering of a libel by a husband to his wife is no publication because under the common law in England, the husband and the wife are deemed one person; but

(1) Sending a defamatory letter to a wife about her husband, or to a husband about his wife, is sufficient publication, the husband and the wife being regarded as distinct and different persons for such purposes.

(ii)When a husband, however, is talking a scandal to his wife and negligently allows it to be over-heard by a third party, it is sufficient publication and is actionable.

Restraining Publication.-In December 1992, when the event of bomb explosion took place in Bombay and thereafter the riots broke out, the defendant’s newspaper “Indian Express” published three articles against which the plaintiff brought a suit for damages alleged to be defamatory of the plaintiff. The plaintiff by moving an application for an interim injunction, pending the determination of the suit, prayed to restrain the defendants, their servants, agents from writing any article libellous to the plaintiff. The Court refused to grant the injunction at the interlocutory stage in a libel action. The Court held when the defendant raises plea of justification and mentions evidence by which he might substantiate his case, the Court is unlikely to grant interlocutory order to restrain the defendants.

Defamation of deceased persons.-The law of Torts makes a distinction between dead and living persons with regard to defamation. While we have seen the various circumstance under which a statement made in respect of the living persons would be defamatory, it is not a tort to defame the dead. However, a criminal prosecution is entirely independent of the civil remedy in this respect. Although defaming dead person may not be actionable in tort yet a criminal prosecution would lie, if it would have amounted to defamation if the deceased were alive, and it is hurtful to the feelings of his living relatives.

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