A libel is a publication of a false and defamatory statement in some permanent form tending to injure the reputation of another person without lawful justification or excuse. In an action for libel the statement complained of must be false, permanent in nature and published.
It must be in some permanent and visible form, such as, writing, printing, pictures, effigies or even by means of a cinema film or gramophone record. Princess Irina of Russia succeeded in a suit by her against the Metro-Goldwyn-Mayer Pictures in whose film entitled “Rasputin the mad Monk” she was represented as princess Natasha having been seduced by Rasputin-Youssoupoff v. M.G.M. Pictures.
Section 1 Defamation Act, 1952, provides that broadcasting of words by means of wireless telegraphy shall be treated as publication in permanent form.
Actionable per se
A noteworthy feature of this kind of defamation is that a libel is, in all cases, actionable per se, i.e., without proof of actual damage. When the statement is made in a permanent form, the law presumes that, of necessity, the person defamed has suffered damages.
In, Balram v. Sukh Sampat Lala, the plaintiff was a property broker, who used to deal in property. The defendant in “Lok Jiwan” a daily newspaper published an advertisement which related to plaintiff, in which the plaintiff was imputed with doing fraudulent business. For this publication the plaintiff brought an action against the defendant and the publisher of the advertisement. It was argued by the plaintiff that on account of this publication his business suffered a lot and his reputation was very much lowered in the eyes of public. The Court accepted the contention of the plaintiff and decreed the suit.
A slander is false and defamatory, verbal or oral statement in transitory forms intending to injure the reputation of another without lawful jurisdiction or excuse.
In slander, therefore, the defamatory statement is made in spoken words, or in some other transitory form, whether visible, such as, gestures or inarticulate but significant sound. The representation may be expressed either by speech or its equivalents, for example, a nod, wink, shake of the head, smile, hissing. If defamatory words are uttered with the intention that they shall be recorded, the utterances of those words is slander only, but when a record has been made and published, the manufacturer would be liable for libel. Similarly, uttering words for gramophone recordings is slander. Broadcasting from a script has been held in New Zealand to be slander. An extemporaneous speech by wirelees is slander. Slander generally regarded as being addressed to that ear. There is, however, one reception to it-the case of a defamatory statement communicated by a significant gesture, i.e., the finger-language of the deaf and dumb which though visible to the eye and not audible to the ear, is slander. It has been, held defamatory to call a journalist a paid-back, paid to writ biased article.
Slander when actionable per se
Unlike libel, slander is actionable one on proof of special damage. Mere loss of reputation is not sufficient to constitute an action for spoken words; there must be loss of some material advantage, some loss which is pecuniary, or at any rate, capable of being estimated in money.
In the following cases, however, slander is actionable per se, that is special damage to the plaintiff need not be proved.
1. When criminal offence is charged.-Words charging the plaintiff with the commission or a crime punishable by imprisonment and not by fine only, for example, murder, robbery, theft and arson, etc. Thus if I falsely say that A was convicted and fined on account of riding a bicycle
without light, it would not be slander, but it would be so if I accused him of rape. Words merely imputing suspicion of a crime are not actionable without special damage. Words imputing past conviction for an offence are actionable without proof of special damage as they cause other people to shun that person and to exclude him from society.
2. Imputation of virulent disease.-An imputation that he suffers from an contagious venereal disease or leprosy tending to exclude the person from the society. Smallpox, however would not come within this rule. The imputation must be that plaintiff was suffering from the disease at the time when the words were spoken and not at sometime in the past. An assertion that the plaintiff has had such a disease is not actionable because it is no reason why the company of such person should be avoided.
3. Incompetence of unfitness for office, profession or trade. – an imputation of unfitness of the plaintiff for his profession of office of profit provided that the office, profession or trade is held by him at the time of the slander. A Charge of insolvency against a trade, or incompetence against a surgeon, of ignorance of law against a lawyer, are actionable per se. Defamatory words, although calculated to injure a person in his office, profession or trade but not relating to his conduct therein are not actionable. It must amount to a charge against him in relation to his business or office. Thus, it is not actionable per se to make an imputation of immorality against the headmaster of a school in his private capacity and without any relation to his position-Jones v. Jones.
Similarly, where a physician was accused of adultery, but the accusation was not connected with anything done by him in his professional capacity, it was held as not amounting to slander actionable per se-Ayer v. Craven.
4. Imputation of unchastity to woman or girl.-At common law false accusation of immorality, or, disreputable conduct, or a verbal imputation of unchastity is not actionable per se, however, gross. But the slander of Woman Act, 1891, has abolished the need of showing special damage in the case of words which impute unchastity or adultery to any woman or girl. Thus, to call a woman “lesbian” (of easy virtue) amounts to defamation.
5. Aspersion on caste. – The view expressed in some older Indian decisions was that to say of a high caste woman that she belonged to a lower caste was defamatory not only of her but also of her husband, he having married a woman of lower caste. In Gaya Din v. Mahabir Singh, such an allegation was held actionable without proof of special damage. It is, however, submitted that with the present reaction against casteism and the avowed policy of the secular Indian Republic to mitigate this scourge of sectarianism, such aspersions can hardly be deemed to give rise to any action for defamation.
Thus, barring the case covered by the above-mentioned exceptions, special damage has to be proved in an action for slander. It is settled, however, that no cause of action is afforded by special damage arising merely from the voluntary reputation of spoken words by some hearer who was not under a legal or moral duty to repeat them. Such a consequence is deemed too remote. But if the first speaker authorised the repetition of what he said, or it appears that he spoke to or in the hearing of some one who, in the performance of a legal, official or moral
duty ought to repeat it, he will be liable for the consequences.
Distinction Between Slander and Libel
(1) Libel is written defamation, while slander is spoken or oral defamation. Libel is addressed to the eye, while slander is addressed to the ear. In libel the defamatory matter is in some permanent form, such as, statute, effigy, caricature and the like whereas slander is defamation in transient form, whether audibel as in spoken words, or visible as in the case of significant gestures.
(2) Libel is both a civil wrong and criminal offence; wrong slander is a civil woring only Spoken words may, however, fall within the criminal law, if they are blasphemous, seditious or obscene, or if they amount to solicitation to commit a crime or a Contempt of Court but there is no crime of slander. In India, slander is both a tort and a crime.
(3) Under the law of torts slander is actionable, save in exceptional cases, only proof of special damage. Libel is always actionable per se, i.e., without the proof of any damage.
(4) Libel shows greater deliberation and raises a suggestion of malice; a slander may be uttered in the heat of the moment and under sudden provocation.
(5) The actual publisher of a libel be an innocent person and, therefore, not liable; whereas in every case of republication of a slander, the publisher acts consciously and voluntarily and must necessarily be guilty.
(6) In England under the Statute of Limitation and action of libel barred after six years but that of slander after two years. In India, the period of limitation is one year for both.