DEFAMATION
Definition: Defamation is injury to the reputation of a person. If a
person injures 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, more valuable, than other property.
Essentials of Defamation
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. According to Carter-Ruck on Libel and Slander,
some of the tests to adjudge a defamatory statement
are:-
A statement concerning any person which
exposes him to hatred, ridicule, or contempt, or
which causes him to be shunned or avoided, or
which has a tendency to injure him in his office,
professional or trade.
A false statement about a man to his discredit.
Would the words tend to lower the plaintiff in the estimation of
right-thinking members of society generally?”
The statement must be defamatory
Defamation is a public communication which tends
to injure the reputation of another. What statements
are defamatory and the span of defenses varies from
jurisdiction to jurisdiction but there is common
agreement in all jurisdictions that statements that
are unflattering, annoying, irksome, embarrassing or
hurt one’s feelings are not actionable. The first
essential of defamation is that the nature of the
statement must be defamatory, it should lower or
injure the reputation of the person in society.
Ram Jethamalini v subramaniyan swamy
An inquiry commission was setup for examining the facts and
circumstances relating to assassination of late Shri Rajiv Gandhi. The
defendant, at a press conference alleged that the then Chief Minister of
Tamil Nadu had prior information that LTTE cadre would make an
assassination bid on the life of Rajiv Gandhi. The plaintiff was engaged
as a sr. counsel to the then CM of TN. In discharge of his professional
duties, the plaintiff cross examined the defendant. During the
proceeding, the defendant in the written conclusive submission, alleged
that the plaintiff had been receiving money from LTTE, a banned
organization. The statement by defendant was ex facie defamatory. It
was held to be a case of exceeding the privilege and that by itself was
held to be evidence of malice. The statement made by the defendant
against the plaintiff was held to be quite unconnected with and irrelevant
to the situation , actual malice on the part of the defendant was well
established . counting the professional standing of the plaintiff and his
stature in social life , the Delhi high court awarded damages of Rs. 5lacs
[Link]:
It has been held that the imputation by the defendant that the plaintiff, a
widow of 45 year age, is a keep of the maternal uncle of the plaintiff’s
daughter-in-law, is not a mere vulgar abuse but a definite imputation
upon her chastity and thus constitutes defamation.
The statement must refer to the plaintiff
It should be proved by the plaintiff that the
statement was aimed at him. The m, intention of the
defendant is immaterial. The question whether the
defamatory words referred to the plaintiff is
determined by an objectives test and the liability
arises if the words are in fact defamatory of the
plaintiff, whether or not there has been an intention
to refer to the plaintiff or negligence in relation to
the reference to the plaintiff.
Newsteadv.,London Express Newspapers Ltd.
The defendants published an article stating that Harold Newstead, a
Camberwell man had been convicted of bigamy. The story was true of
Harold Newstead, a Camberwell barman. The action for defamation was
brought by another Harold Newstead, the barber. As the words were
considered to be understood as referring to the plaintiff, the defendants
were liable.
The statement must be published
The most important essential of defamation is the
publication of the defamatory content to a third
party. Unless there is a publication of the statement,
no action lies. In the case of Mahendra Ram v.
Harnandan Prasad, the defendant had sent a letter
in Urdu despite knowing the fact that the plaintiff
could not read Urdu and the letter would have to be
eventually read by someone else or a third party. The
defendant was held liable for the offence of
defamation.
In B.M. Thimmaiah v. T.M. Rukimini , allegations dealing with relation
of “k” with the plaintiff /respondent , characterizing it as questionable
and doubtful made by the appellants / defendants in written statement
filed in the suit instituted by the plaintiff against the defendants in
written statement filed in the suit instituted by the plaintiff against the
defendants, was held to be due publication of defamatory statement ,a
requisite to constitute the act of defamation.
Defences
1. Justification
It is a defence to publishing defamatory material if the publisher can prove that
the defamatory imputations of the material are substantially true.
2. Absolute Privilege
Another defence to defamation arises if the publisher can demonstrate that
they published the content in the course of proceedings that attract absolute
privilege, including:
parliamentary bodies;
Australian courts or tribunals;
the Ombudsman;
the Privacy or Information Commissioner;
the Law Reform Commission; or
certain legislation such as the Workers Compensation Act(s) and Motor
Vehicle Act(s).
3. Publication of Public Documents
Proof that defamatory material was part of a public document (or copy thereof)
or a fair summary/extract from a public document is also one of the defences
to defamation.
A public document is one of the following:
report, paper or record of a parliamentary body;
judgment, order or determination of a court or tribunal;
report or document under the law of any country which has been authorised to
be published or is required by a parliamentary body;
document issued by the government of a country;
record open to inspection by the public;
document that is issued, kept or published in another Australian jurisdiction
and treated as a public document; or
document relating to Special Commissions of Inquiry or Civil and
Administrative Tribunal.
The person defamed can negate this defence if he or she can show that the
material was published dishonestly.
4. Fair Report of Proceedings of Public
Concern
Publishers can also make out a defence if they can prove the material was or
was a part of, any report on proceedings publicly held in a parliament, court,
tribunal, government body or before the Ombudsman.
5. Qualified Privilege for Provision of Certain
Information
Another defence to defamation exists if the publisher can prove that the:
person who saw the material has an interest in having information on the
subject;
material was published to give the person such information; and
publisher’s conduct was reasonable.
The person defamed can negate this defence if they show that the material
was published maliciously.
6. Honest Opinion
It is a defence to publishing defamatory material if the publisher can prove that
the:
material was an expression of their own, their employee or agent, or of
another person other than their own, rather than a statement of fact;
opinion related to a matter of public interest; and
opinion was based on material that is substantially true or privileged.
The person defamed can overcome this defence by proving that the:
opinion was dishonest;
publisher did not believe the employee or agent honestly held the opinion; or
publisher had reasonable grounds to believe another person did not hold the
opinion at the time of publication.
7. Innocent Dissemination
It is a defence to publishing defamatory material if the publisher can prove that
they:
published the material in the capacity of a “subordinate distributor” meaning
that they were not the primary distributor;
neither knew or could not have reasonably known that the matter was
defamatory; and
did not have the knowledge because of any negligence.
8. Triviality
It is a defence to publishing defamatory material if the publisher can prove that
the material was unlikely to cause harm.
Arokiya Mary. D
19LW3k1022
BCOM LLB 2ND SEM