INTRODUCTION
Every man has a right to have his reputation preserved inviolate. The right of reputation is acknowledged as an inherent personal right of every person as the part of the right of personal security. A man’s reputation is his property, more valuable than other property. Defamation is the injury to the reputation (reputation of a person in the eyes of others/other person) of a person. If the person injures the reputation of other, he does so at his own risk as in the case with interference of property. Defamation comes under both civil and criminal law. Criminal liability is to be associated with the Sec. 499 and 500 of IPC. In that respect the law in India is codified. So far the tort of defamation is concerned the law is not codified.
In the case of Mustad Ahmed Mir v/s Akash Amin (AIR 2010), the court held that it cannot be said that a person who doesn’t possess sufficient possessions and institutes a case against defendants for defamation, cannot have any respect in society. The reason is that reputation of a person is not dependent on the wealth s/ he has and what is his/ her financial status.
“The tort of defamation consists of publication of a false and defamatory statement concerning the plaintiff without any lawful justification. “A defamatory statement is a statement calculated to expose a person to hatred, contempt or ridicule, or to injure him in his trade, business, profession, calling or office, or to cause him to be shunned or avoided in the Society. To be defamatory the statement need only have the tendency to affect a person’s reputation; it need not actually lower it.
ESSENTIALS
The tort of defamation must contain the under mentioned essentials in order for it become a defamation:
- False Statement: To be actionable, the alleged defamatory statement must be false. The burden of proof that the words are false does not lie upon the plaintiff. Defendant has to establish in his defense that the statement is true. Defamation is taken to be false until it is proved to be true. Further if a man has stated that which is false and defamatory malice is also assumed. “Malicious” here means that the publication was without just cause or excuse.
2. Statement in reference to/ against the plaintiff: In an action for defamation under Tort, the plaintiff must establish that he has reasonably understood that statement refers to him. The reason for this requirement is primitive i.e. in every tort, it has to be proved that the plaintiff has suffered injury. So, unless the words used by the defendant contains words that have a reference towards plaintiff, his reputation cannot be effected anyway. The reference can be in the following ways:
Reference without name – where the statement though generally referring to a class can be reasonably considered to be referring to a particular plaintiff, his action will succeed. In Fanu V/S Malcolmson ((1848)1 H.L. Cas. 637), in an article published by the defendants, it was mentioned that cruelty was practiced upon employees in some Irish factories. From the article as a whole including a reference to Waterford itself it was considered that the plaintiff’s Waterford factory was aimed at in the article and the plaintiff was, therefore, successful in his action for defamation.
Reference towards one person but defamation of another person – In Newstead V/S London Express Newspapers Ltd [(1939) 4 All E.R. 391: (1940) 1 K.B. 377], 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 was bought by another Harold Newstead, a Camberwell barber. As the words were considered to be understood as referring to the plaintiff, the defendants were held libel.
Reference to a class – where the statement though generally referring to a class can be reasonably considered to be referring to a particular plaintiff, his action will succeed. In Fanu V/S Malcolmson, defamation by reference to a class can be seen.
Defamation of a dead person – defaming a deceased person is no tort. Under criminal law, however, it may amount to defamation to impute anything to a deceased person, if the imputation harms the reputation of that person if living and is intended to be hurtful to the feelings of his family or other near relatives.
3. The statement must be defamatory: Defamatory statement is one which tends to injure the reputation of the plaintiff. Defamation is the publication of a statement that tends to lower a person in the estimation of right thinking members of the society generally or to make them shun or avoid that person. An imputation which exposes one to disgrace and humiliation, ridicule or contempt, is defamatory. The defamatory statement can be made in various forms.
A libel is a publication of a false and defamatory statement tending to injure the reputation of other person without lawful justification or excuse. The statement must be expressed in some permanent form, e.g., writing, printing, picture, statue, waxwork effigy etc.
A slander is a false and defamatory statement by spoken words or gestures tending to injure reputation of others.
Certain statements are prima facie defamatory because their natural, obvious and primary sense is defamatory. On the other hand, there may be certain statements which are prima facie innocent may be proved from the circumstances to have contained a latent secondary defamatory statement sense. Such statements are known as Innuendo. In the case of Morrison V/S Rithie & Co. (1902) 4 F. 654), the defendants in good faith published a mistaken statement that the plaintiff had given birth to twins. The plaintiff had been married only two months back. Even though the defendants were ignorant of this fact they were held libel
4. Publication: Publication means making the defamatory matter known to some person other than the person defamed, and unless that is done, no civil action for defamation lies. Communication to the plaintiff himself is not enough because defamation is injury to the reputation and reputation consists in the estimation in which others hold him and not a man’s own opinion of himself.
Communication between husband and wife: in the eyes of law, husband and wife are one person and the communication of a defamatory matter from husband to wife or vice versa is no publication.
Repetitions: Not only the person who makes the defamatory statement but all the person who repeat the statement are liable as every repetition is treated as fresh publication and gets a new cause of action.
Injunction: under injunction against publication of a defamatory statement, the respondent is restrained from making defamatory statements against the plaintiff.
CONCLUSION
The defamation law serves the purpose of protecting people from having their reputation injured resulting from false statements made against them. It is a tort resulting from an injury to one’s reputation. It is an invasion of the interest in reputation. However, it is still in accordance with the right to freedom of speech and expression, as people can make true statements and give their opinions. This area of law seeks to protect a person’s reputation from being hurt by preventing unfair speech. The apex court has stated in various cases that the ambit of freedom of speech and expression is “sacrosanct” but is not “absolute”. It also said that the right to life under Art. 21 include the right to reputation of a person and it cannot be violated at the cost of the freedom of speech of another.
REFERENCES
- Malhotra, Neha. “Defamation.” Legal Services India http://www.legalservicesindia.com/article/1910/Defamation.html
- https://blog.ipleaders.in/defamation-and-its-essentials/
- https://indiankanoon.org/doc/1041742/
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=563
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