What is Defamation? Everything you need to know about it.

Every man has the right to have his reputation preserved inviolately. This right of reputation is acknowledged as an inherent personal right of every person as part of the right of personal security.

Recently, a Hindu American Foundation sued four activists, an academician named Audrey Truschke, and a journalist for two articles published in Al Jazeera that it claims are defamatory. (Defamation)

Then there was the famous case in which Mr Shashi Tharoor and Union Minister Mr Ravi Shankar Prasad were involved in which Mr Prakash called Mr Shashi Tharoor an accused in a murder case. Later Mr Prasad withdrew his accusations leading to a settlement between the two.

You might think why does someone saying something bad about another person make him liable and opens him up to civil charges and if it is that big a deal or not.

What is Defamation?

Defamation is a statement that injures a person’s reputation in front of a third party.
Dr Winfield defines defamation as “the publication of a statement which tends to lower a person in the estimation of the right-thinking members of the society generally or which tends to make them shun or avoid that person”.

“Defamation is a public communication which tends to injure the reputation of another”. Ram Jethmalani v Subramaniam Swamy AIR 2006 DEL 300.

For example- If you accuse someone of murder in the middle of your office and your other colleagues are present there who are hearing everything you say. After this, they start to shun the person you accused of murder and if that accusation is not found to be true then the other person can file a defamation suit against you and the court may hold you accountable for the damages that might have occurred to him due to your defamatory statement.

What are the different types of Defamation?

Defamation is of two types:-

1. Libel
   
   A libel is a publication of a false and defamatory statement tending to injure the reputation of another without lawful justification or excuse. The statement must be expressed in some permanent form.
   
   Libel is basically a defamatory statement in a written form.
2. Slander
   
   Slander is a false and defamatory statement by spoken words or gestures tending to injure the reputation of another. It is always expressed in some temporary form.
   
   Slander is basically making a defamatory statement about another person in an oral way like spoken statements, nodding, etc.

Under Section 499 of the Indian Penal Code, both libel and slander are classified as criminal offences.

What are the essentials of defamation?

To make someone liable for the tort of defamation, one must prove the following essentials:

a) The statement must be false and defamatory,
b) The statement must refer to the plaintiff, and
c) The statement must be published.

(Publication – Publication means ‘making the matter known to some person other than the plaintiff. This is an essential element for libel as well as slander but under slander for the statement to be defamatory in nature the presence of a third party is essential because then only there would be damages and it would amount to the tort of any kind)

A statement can be straight forward i.e. defamatory in its natural and ordinary sense or it could be innocent in its primary sense but might have an indirect meaning to communicate the defamatory meaning to the person hearing the statement in light of the existing facts i.e., or innuendo to communicate a defamatory meaning.

A statement is defamatory if its purpose is to expose the plaintiff to hatred, contempt, ridicule, etc. or to even injure him in his profession or trade. It might even be done to make the plaintiff be shunned by other people like his neighbours, his friends, colleagues or maybe even his own family.

What are the defenses against Slander?

1) Justification by truth – The truth of defamatory words is a complete defence against legal action against libel or slander though it is not so in a criminal trial. Truth can be a justification for the defendant’s actions not because it negates the charge of malice but because it shows that the plaintiff is not entitled to recover damages.

An essential element in proving if a statement is defamatory or not is that the statement must be false and if you are able to prove that the statement was true then you will not be held liable for the damages.

In the United States, the actual truth of the publication is usually a defence to a charge of defamation.

2) Fair and bona fide comment – To claim the defence of fair and bona fide comment the defendant must prove that the statement is a comment and not the statement of fact and that the statement is fair.

Therefore comments that are fair and just and are believed to be true and not inspired by any malicious intent do not come under defamation as fair comments offer protection for the expression of opinions. Bata India Limited v A. M. Turaz and others, 2012 Indlaw DEL 3533.

3) Privilege – Privilege means that a person stands in such relation to the facts of the case that he is justified in saying or writing what would be slanderous or libellous in nature. The general principle lying the defence of privilege is the common convenience and welfare of the society or the general interest of the society.

In the United States also legal privilege arising from a special relationship or position also relieves liability (U.S. senators, for example, cannot be prosecuted for anything they say on the floor of the Senate). In certain areas the mass media have broad discretion under the doctrine of “fair comment and criticism,” but such comment must pertain to a person’s work—not private affairs—and must be factually accurate.

Privilege is of two types –

a) Absolute Privilege

1) Parliamentary proceedings;
2) Judicial Proceedings;
3) Military and Naval Proceedings;
4) State Proceedings;

b) Qualified Privilege

The law presumes or implies malice in all cases of defamatory words; this presumption may be rebutted by showing that the words were uttered on a privileged occasion which is made in the normal course of business such as dictations to a typist.

Instances of qualified privileges:

1) When the statement has been made in the performance of duty;​
​2) When the statement has been made in self-defence;​
​3) When the communications are made in the interest of the public;​
4) Fair and accurate reports of proceedings; in Parliament, or any Court of Justice or in any public meeting.

If a lawyer acts bona fide in his professional capacity on the instructions of his clients he will have the protection of qualified privilege.

4) Apology – This is the statutory defence available only in an action for libel contained in a public newspaper or other periodical publication. ​The defendant must prove, firstly, the absence of malice and gross negligence, and secondly, an apology at the earliest opportunity inserted in the newspaper or the periodical. ​

Remedies for defamation include that a suit of damages may be brought by the defamed person. Also, the publication of the defamatory sentence may be restrained by an injunction either under Section 38 or 39 of the Specific Relief Act, 1963.

Conclusion

To conclude, every man has a right to preserve his reputation. If this right is violated by false and derogatory statements, it is bound to be protected. With every right comes a remedy.

So, if you make defamatory statements against someone, it can get you a huge litigation exposure for lawsuits claiming damages that person suffered. So, think twice before making any defamatory statements.