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DEFENCES AGAINST DEFAMATION

Updated: Feb 20, 2022

Written by: Gayathri Menon



INTRODUCTION


A person’s reputation is considered to be his personal property. It is more precious than any other property. Defamation is essentially an injury to the reputation of a person. If a person injures the reputation of another, he does so at his own risk similar to the case of interference with property. According to Black’s Law Dictionary, defamation is defined as “The offence of injuring a person’s character, fame, or reputation by false and malicious statements[1]”. Defamation is customarily classified into libel and slander. Libel is the representation made in some permanent form such as publication of material through writing, printing, picture, effigy or a statute whereas slander refers to the publication of a defamatory statement in a transient form, such as a statement spoken by words or by gestures.


For a statement to be considered defamatory in nature, it must essentially satisfy the following conditions:


● The statement must be defamatory in nature

● The statement must refer to the plaintiff. A reasonable person should be able to understand that the statement refers to the plaintiff.

● The statement must be published.

● In case of slander, it should be proved that there was special damage or the slander must come within the serious classes of cases that are actionable per se.


A defamatory statement is a false statement made by a person which injures the reputation of another. But there are a few arguments that if raised and proven by the defendant in the court can defeat the claim of defamation. Some defences can be raised in court in order to challenge the suit of defamation. The various defences are discussed below.


TRUTH


In an action for defamation, the truth of the defamatory material is a complete defence. Under criminal law, merely proving that the defamatory statement is true will not suffice. The first exception under Section 499 of the Indian Penal Code requires that besides the statement is true, the imputation must be shown to have been made for the public good. In civil law, merely proving that the statement made was true is a good defence. The defence is available even if a true statement is made with malicious intent. If the statement was substantially true but incorrect in certain aspects, the defence is still available. This was proved in the case of Alexander v North Eastern Ry[2]. In this case, the plaintiff had travelled on a bus without the appropriate ticket. The plaintiff was sentenced to pay either a fine of one pound or be imprisoned for fourteen days. The defendants published a notice saying that the plaintiff was subjected to either pay a fine of one pound or imprisonment for three weeks. It was held by the court that the defendants were not liable because the statement was substantially true. If the defendant is not able to prove the truth of facts, the defence cannot be availed. In the case of Radhesham Tiwari v Eknath[3], the defendant who was the editor, printer and publisher of a newspaper published a series of articles against the plaintiff. In the published articles, it was alleged that the plaintiff had engaged in corrupt practices. In an action for defamation, the defendant could not prove that the facts published to him were true and thereby could not avail the defence.


Even cases where statements have been published in a distorted form deviated from facts and made without proper verification amount to defamation. Such statements cannot be brushed under the guise of freedom of press which is guaranteed under Article 19 of the Constitution. In the case of Salena Dandasi V Gajjala Mala Reddy[4], the plaintiff who was an advocate was accused of raping a woman. Relying on the FIR registered by the police, a newspaper published an article stating that the plaintiff is unfit to continue his profession. The court held that the plaintiff is entitled to damage and held the defendants liable.

FAIR COMMENT


Making fair comments is another defence against defamation. For this defence to be availed, the following conditions have to be satisfied.


It must be a comment. It should be an opinion on certain facts and not a statement of fact. Whether a statement is a fact or a comment depends on the context and on the language that is used.

The comment must be fair. If the facts are substantially true and justify the comment of the facts, the defence of fair comment can be taken even if some of the facts stated may not be proved. Whether the comment is fair or not depends on whether the defendant honestly held that opinion. In the case of K.S Sundram v S. Viswanathan[5], the defendants published articles stating the deteriorating quality of the management of a company of which the plaintiff was the president. Dismissing the suit filed by the plaintiff, the court held that the published articles could not be termed as defamatory as the articles were merely making fair comments on the performance of the management

The matter commented upon must be of public interest. Matters relating to the administration of public offices such as government departments, courts, local authorities etc fall under the category of matters of public interests.


PRIVILEGE


The defence of privilege can be claimed in certain situations when an individual’s right to free speech outweighs an individual’s reputation. In such situations, a suit of defamation does not stand in the court of law. There are primarily two kinds of privileges. They are an absolute privilege and qualified privilege.


ABSOLUTE PRIVILEGE


In the case of absolute privilege, no action lies for defamation even if the statement is false or if they have been done with malicious intent. In such cases, the public interest demands that freedom of speech should supersede the right to reputation. The defence of absolute privilege is available in the following cases.


1. Parliamentary proceedings: Article 105 (2) of the Indian Constitution states that statements made by a member of parliament in the parliament and the publication of any report, proceedings etc under the authority of either House of Parliament cannot be questioned in the court. Such privilege also exists in the State Legislatures.

2. Judicial Proceedings: No action for defamation lies against any statement written or spoken in the court of law even if they were made maliciously. This privilege also extends to the proceedings of the tribunals. Such privilege is also granted to the judicial officers as stated under the Judicial Officers Protection Act, 1850. If however, the words spoken by the counsel are irrelevant, this defence cannot be availed. The statements made by a witness which is wholly irrelevant to the matter of enquiry is not privileged. This was clearly illustrated in the case of Jiwan Mal V Lacchman Das[6]. Statements which are made by a potential witness as a preliminary to going to the witness box are equally privileged as the statements which are made when the witness is actually in the box in the court. In the case of T.G Nair v Melepurath Sankunni[7], the question arose whether a petition to the Executive Magistrate to start the judicial proceedings and sending a copy of that to the police came under the purview of absolute privilege. The court held that all the necessary steps taken for and during the judicial proceedings are absolutely privileged.

3. State Communications: A statement made by an officer of the State during duty is absolutely privileged. This also includes statements and reports made in the course of military and naval duties.


QUALIFIED PRIVILEGE


The defence of qualified privilege can be availed in certain cases. The difference between qualified privilege and absolute privilege is that qualified privilege can be availed only if the statement is made without malice whereas absolute privilege can be availed in all cases. It is also necessary that there must be an occasion for making such a statement. This defence is primarily available for the statements made in the discharge of a duty or any public proceeding.


1. Statements should be made in the discharge of a duty or protection of interest. This defence is available only in cases where there is an existence of a legal, social or moral duty to make that statement or there should be some interest of protection in making that statement. In case of publishing defamatory matter in the newspaper, they should prove that there was a duty towards the public to avail this defence. If there is malice in the publication of defamatory material, the plea will fail. This was illustrated in the case of R.K Karanjia V Thackersey[8]. Reports of parliamentary proceedings are generally the subject of absolute privilege but if it is published without the authority of the house and if it is made without malice, then the defence of qualified privilege can be availed.

2. The statement must be made without malice. One can avail the defence of qualified privilege only if the statement is made without malice. The presence of malice destroys this defence.


CONCLUSION


“Balance between one person’s right to freedom of speech and another’s right to protect the good name”. Defamation is a tort resulting from an injury of one person’s reputation. Although the law is supposed to protect a person’s reputation, it is primarily used to hinder free speech thereby violating the right to freedom of speech and expression. The court has stated that fundamental rights are not absolute and that right to reputation comes under the right to life which is stated under Article 21 of the constitution and thereby cannot be violated at any cost.


[1] HENRY CAMPBELL BLACK, BLACK'S LAW DICTIONARY 581(St. Paul, Minn. West Publishing Co, 4th edn., 1968). [2]Alexander V North Eastern Ry ((1885) 6B & S.340). [3] AIR 1985 Bom.285. [4] AIR.2009 (NOC) 299 A.P. [5] AIR 2013 (NOC) 216 Mad. [6] AIR 1929 Lah. 486. [7] AIR 1971 Kerala 280. [8] AIR 1970 Bom 424.

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