The most important defence to an action for defamation is that of privilege. “Privilege” means an excuse or immunity conferred by law on statement or communication made on certain occasions called “Privileged occasions.” Privilege is of two kinds :
(I) Absolute privilege
On certain occasions freedom of speech and expression requires absolute freedom. On such occasion the person is granted absolute freedom to express so that the person can perform his duty well without any fear of defamation of any one else. In M.G. Perera v. Andrew V. Peiris, the Court held that the general principle underlying the defence of privilege is the common convenience and welfare of society or the general interest of society. A statement is absolutely privileged when no action lies for it even though it is false, defamatory and made with express malice. Absolute privilege arises when, on grounds of public policy, a man should speak out his mind freely and without fear of consequences. No action lies, however, false the statement may be. The existence of malice is entirely irrelevant in these cases. The doctrine of absolute privilege is based upon the principle that it is not
desirable in public interest to inquire whether the words or act of certain persons are malicious or not. It is not that there is any privilege to be malicious. It is rather, a striking instance of the subordination of the individual’s interest to that of the community. For example, a member
of Parliament is allowed full freedom of speech on the floor of the House. He may make a speech there condemning in the most outrageous language possible, the character and conduct of an officer against whom he have some private grudge or ill feeling. The plea of absolute privilege means that by a sort of legal action the law owing to compelling considerations of public policy invest statements made upon certain occasions with a special protection so that all statements made on such occasions, even though they may be defamatory, cannot be made the subject-matter of litigation in court of law and no action will lie in respect of them.
The plea of absolute privilege is available in respect of:
(1) Parliamentary proceedings: No action lies for statement made by members of either House of Parliament in their places in the House, however, injurious they may be to the interest of a third person. But this privilege does not extend to anything said outside the walls of the House.
Under Article 105 (2) of the Constitution of India no member of Parliament shall be liable to any proceedings in any court in respect of anything said by him in Parliament. There is similar provision in Article 194 (1) (2) applying to the members of State Legislatures. The privileges provided under these Articles of the Constitution do not extend to publication by private newspaper of a speech made by a member of Legislative Assembly within the four walls of the House, which contains defamatory matter and which is published at the instance of such a member. No privilege under these Articles can be obtained in respect of publication not under the authority of Parliament or Legislature.
(2) All the reports, papers, vote and proceedings ordered to be published by either House of Parliament, are absolutely privileged.
(3) Judicial Proceedings: Every statement made in the course of judicial proceedings with whatever motive, by judge or juror, party, witness or advocate is absolutely privileged. It need not be relevant, that is; have any legal bearing on the case, or be admissible in evidence, but it must have some reference to the enquiry in hand. The authorities establish beyond all questions that no action of libel or slander lies, whether against judge, counsels, witnesses or parties, for words written or spoken in the Course of any proceedings before any court recognised by law and this is so though the words were written or spoken maliciously without any jurisdiction or excuse and from personal ill-will and anger against the person defamed – Royal Aquarium, Etc. v. Parkinson. Such a privilege also extends to proceedings of the tribunals possessing similar attributes.
Any step which is essentially a step in a judicial or a quasi-judicial proceeding would be immune from liability for defamation before it gives rise to an occasion for absolute privilege.
In Chunilal v. Narsingh Das, concerning the privileges of the parties the Court held that there was an absolute privilege protecting a party from damages in a civil suit for defamatory statement made in his complaint. In this case a pleader filed a complaint against his client charging him of defamation under Section 499, I.P.C. The complaint was dismissed by the Court holding that the complaint was covered by ninth exception to Section 496 which permits defamatory statement if made in good faith for self defence of defence of other. Thereupon the former client brought a suit against the pleader claiming damages for libel in respect of the alleged defamation in the prior complaint. While dismissing the suit their Lordships remarked: “That what is sound public policy in England is equally sound policy in India and that the rule of English law is in accordance with the principles of justice, equity and good conscience.”
The pronouncement on the point is Narayan Bhat v. Subbonna Bhat. In this case the plaintiff brought an action for damages against the defendant. The defendant presented a complaint to the police station officer imputing the plaintiff of an offence under Section 392 of the Indian Penal Code. The plaintiff contended that by this complaint to the police he has been brought into disrepute and infamy in the society. It was held by the court that the defamatory statement made in complaint to a police officer are absolutely privileged and no action in damages can be regarded as such statements.
Witnesses cannot be sued in a civil court for damages in respect of evidence given by them upon oath in judicial proceedings. The rationale behind this is that it concerns the public and the administration of justice that witnesses giving their evidence on oath in a court of justice should not have before their eyes the fear of being harassed by suits for damages: but that the only penalty which they should incur of they give evidence falsely should be an indictment for perjury. The Calcutta and Allahabad High Courts have laid down that statements made by the witnesses are protected only if they are relevant to the inquiry.
The doctrine of absolute privilege does not extend to an inquiry held by a superior officer of a bank into the conduct of a Bank Manager of a Branch of the Bank.
(4) Communications relating to State affairs: Communications relating to affairs of a State made by one officer of State to another are absolutely privileged. According to the Madras High Court, a Government Resolution is absolutely privileged on the ground of public
policy.
(II) Qualified privilege
In certain cases the defence of qualified privilege is also available unlike the defence of absolute privilege, in this case it is necessary that statement must have been made without malice. In Tarapada Majumdar v. K.B. Ghosh, an important question which arose for consideration was whether a letter containing defamatory statement, written by a lawyer on the instructions of client and sent to the arbitrator during the pending proceeding of arbitration, can be granted immunity in respect thereof? It was held in this case that if a lawyer acts in his professional capacity on the instructions of his client then his statements are immune from being the basis of action of defamation, unless express
malice is proved.
As to qualified privilege a communication is said to be so privileged if it is made of a person in discharge of some duty, whether public or private of a legal, moral or social character, or having an interest to be protected to a person who has some interest in receiving, it, or to protect that interest. Such communications whether they are fairly warranted by any reasonable occasions or exigency are also protected for common convenience and welfare of the society. It may also be pointed out that a plea of qualified privilege can always be defeated by proving malice, that is, malice actual or in fact. Malice may be proved by intrinsic evidence or it may be inferred from the language used in the statement itself. statement made by a party in his report or complaint to the police is absolutely privileged. The doctrine of absolute privilege forbids any inquiry into the motive of the person who made the complaint.
The following are the chief instances of qualified privileges:
(1) When the statement has been made in performance of a duty.
(2) When the statement has been made in self-defence.
(3) When the communications are made in the interest of public.
(4) Fair and accurate reports of proceedings:
(a) in Parliament; or
(b) any Court of Justice;
(c) in any public meeting.
(5) When the defendant has an interest in making the communication to a third person, and the third person has a corresponding interest in receiving it.
(6) Statement made in the performance of duty whether legal, moral or social, such as police investigating a crime, a host warning his guest against his servant for his dishonesty, a father warning his daughter as to her prospective husband’s character, a prospective employer enquiring of previous employer as to servant’s character, are covered under this head.
It was held that the defendants were protected by the privilege and were not liable for defamation. The Court observed that since the journal was meant for internal circulation to the members only and communication of views among members is very vital to every union, the statements made honestly with full faith in the truth of what is stated are protected under law.
Where the communications are made in cases of confidential relationship which, for example, exist between husband and wife, father and son, guardian and ward and master and servant, etc. they are covered under the title of qualified privilege, because the communications are made here in pursuance of a duty owed to each other.
Where the defendant has duty or interest which entitled him to speak and the person in authority to whom he so speaks is also under a corresponding duty or interest in that connection, the occasion is a privileged one and though the complaint made may be per se defamatory, it would be protected even if it be made falsely or erroneously so long as it is not made out of malice from improper motive.
Now we discuss below the major instances of Qualified Privilege:
(1) Statement made in performance of a duty: A statement made by a person in the conduct of his own affairs in matters where his interest, is concerned, is privileged. Statements made in the protection of some lawful interest, which include statements in self-protection, of oneself or oneself’s property, are covered under qualified privilege. This privilege extends to those cases where the plaintiff had attacked the defendant in newspapers and defendant retaliated by publishing in the papers in self-defence a statement of the case from his point of view and in so doing makes defamatory statement which is bona fide.
(2) Accurate Report: Such communication should be made for pubic good. When a person lodges an information for the purpose of redressing public grievances they are considered privileged communications. A complaint to the Home Secretary about a Magistrate or a Postmaster-General about a postmaster or to the notice of a Minister improper conduct of a public official. The person to whom information is given must be competent to deal with the subject-matter, otherwise can be no privileges. Publication of true and fair proceedings of quasi-Judicial body is also privileged.
3. Fair Report: (a) Judicial Proceedings: A fair, substantial and correct report of proceeding in any court of law is privileged, except where the matters given in the evidence are: (1) or grossly scandalous, blasphemous, seditious or immoral tendency, or (2) expressly prohibited by an order of the Court, or (3) prohibited by statutes. Such report should not mix up comments. Report and comments should be kept separately. It is not necessary that the report should be verbatim it must be substantially a fair account. The report must not be one-sided, or highly coloured.
Publication of true and fair proceedings of quasi-judicial body is also privileged.
(b) Parliamentary proceedings: A fair and accurate report of any proceedings or debate in either House of Parliament or any committee thereof is privileged even though it contains matter defamatory of an individual. In India, the Parliamentary Proceedings (Protection and Publication) Act. 1956, provides for exemption of a person against any civil or criminal proceedings in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament, unless the publication is proved and have been made with malice.
(c) Similarly, a report of the proceedings of a public meeting in a newspaper is also privileged, if it is not blasphemous or indecent. If the report has been published maliciously the defendant will be held liable.
4. Privileged communication: Every communication made bona fide on a subject-matter by a person who has an interest, is privileged if it is made to a person who has a corresponding interest, or to a person honestly believing to have a duty to protect that interest.
In Bryanston Finance Ltd. v. De Vrius, the plaintiff, a Chairman of a company was threaten by two co-defendants. The threat was contained in a letter which was drafted by co-defendants with the help of two clerks and sent to the plaintiff with the remark that they would expose his alleged malpractices unless he settled their claim for conspiracy. Held, as the plaintiff had no common interest with its authors to receive the documents its publication to him was not privileged and, therefore, neither was its publication to the two clerks.
In Boxsius v. Goblet Freres, a solicitor under the instruction from his client dictated to his typist, a letter addressed to B. containing defamatory statements about B. The letter was press-copied by another clerk. Question arose whether B could sue the solicitor for defamation. It was held that the privilege protecting a business communication made privileged occasion covers “all incidents of its transmission and treatment which are in accordance with the reasonable and usual course of business. Thus, the publication to his clerks by the solicitor is covered by a qualified privilege and therefore, B cannot sue the solicitor for defamation.
The right of a fair comment is not a special privilege of newspapers but is a right which every citizen or person has. The comment must be fair in the sense that it must be based on facts truly stated and must consist in an inference reasonably warranted by such facts and honestly drawn. There is no special privilege attached to newspapers.
Distinction between Absolute and Qualified Privilege
The following are the main points of distinction between two kinds of privilege :
(1) In absolute privilege the defendant gets absolute exemption from liability while in qualified privilege the defendant gets a conditional exemption from liability.
(2) Absolute privilege is not affected by the presence of express malice. Qualified privilege is one which is rebuttable by a proof of express malice on the part of the defendant. The plaintiff must prove that the defendant was actuated by malice.
(3) “In the case of absolute privilege, it is the occasion which is privileged, and when once the nature of the occasion is shown, it follows as a necessary inference, that every communication on that occasion is protected. But, in the case of qualified privilege the defendant does not prove until he has shown how the occasion was used. It is not enough to have an interest or a duty in making a communication the interest or duty must be shown to exist in making the communication complained of.”
(4) In absolute privilege the statements are protected in all circumstances, irrespective of the presence of good or bad motive, in qualified privilege, even after a case of qualified privilege has been established by the defendant, it may be met by the plaintiff proving in reply improper or evil motive on the part of the defendant in which case the defence of qualified privilege fails, and the plaintiff succeeds.
(5) In absolute privilege as well as qualified privilege, the defendant has to prove the plea of his privilege, but with this difference that in absolute privilege the defence is absolute and is irrefutable by the plaintiff, where as in qualified privilege the defence is not absolute but rebuttable by the plaintiff.
The above points of distinction between absolute and qualified privileges were upheld in the case decided by the Patna High Court.