Defamation Under Torts| Law of Torts Notes
Defamation is the publication of a statement which reflects on a person’s reputation and which tends to lower a person in the estimation of right thinking members of society generally, or, which tends to make him shun or avoid that person (Winfield).
This definition is wider than those, which define, defamation to mean the publication of a statement which tends to bring a person into hatred, contempt or ridicule. Imputations of insincerity or insolvency etc., which may arouse only sympathy or pity in the minds of reasonable people, are also covered by the above definition.
Essentials of Defamation:
The statement or words must be :
- Spoken (slander) or written (libel)
- Defamatory and
- False : The words used must be false. In fact, truth is a clean justification. It must be shown that the imputation was false and malicious.
- The words may be spoken as in slander or may be in writing i.e., in a permanent form as in libel. Any writings, publication in a newspapers, sky writing, cinematograph film, etc., are covered under libel. The leading case is Youssoupoff V. M.G.M. Pictures. The defendant D, produced a film named “Rasputin, the mad monk”. In that film, one princess “Natasha” had been raped by Rasputin, the mad monk. The princess Irina of Russia, the wife of prince Youssoupoff (plaintiff)claimed compensation on the ground that it was clearly understood that the reference was to prince Irina. The jury awarded 25,000 pounds as compensation and this was confirmed by the Court of Appeal
- Statement must be defamatory and refer to the plaintiff.
The test is whether the words used tend to lower the plaintiff in the estimation of the right thinking members of the society generally (Winfield). If the words expose a person to contempt, ridicule or hatred or injures his profession or trade, or makes others shun or avoid his company, then the words are defamatory e.g. imputation of unchastity to a woman.
The plaintiff must prove that the defamatory words have a reference to him. Intention is not material.
If the reference is to a Class or group of persons, then the plaintiff must prove that the reference is to himself. A writes that “lawyer are thieves”, no particular lawyer can sue (Eastwood V. Holmes), But, when words have a latent meaning or a double meaning (pun), then it is defamatory. This is called “Innuendo”.
The words must be published: publication is an essential requirement. Whether a statement tends to lower a person’s reputation is decided by the standard of a reasonable man. Publication means publishing a particular item of news or information to a person, other than the person to whom it is addressed.
- If A writes to B, defaming B and sends the letter by registered post, there is no publication and therefore A is not liable.
- If A writes a post-card defaming B, and sends by post, there is publication if an inquisitive postman reads and publishes. A is liable in such a case. (Robinson V. Jones)
- If A dictates to his steno defaming B and if the steno publishes it, there is publication.
- In Huth V. Huth, A sent a defamatory letter in an unsealed cover to B. B’s butler, without authority opened and read it, held, that there was no publication as B had no authority to see.
Differences between slander and Libel
The statement must be in a permanent form, Broadcasting of words comes under libel. Pictures, statues, effigy writing in any form, Printing marks or signs, sky writing by airplane etc come under libel. T V relay is libel.
|Slander is in a temporary form. It is in words or gestures. Manual languages of the deaf and dumb, mimicry, and gesticulations etc., are examples. Slander is addressed generally to the ear.
|2||Libel is generally addressed to the eye.
|Slander is not actionable per se. Hence, special damage must be proved i.e., Economic or Social loss to the plaintiff must be proved. Slander is not a crime, in England However on some occasions words may be seditious or blasphemous and hence may become a crime, but according to Sn. 499 I .P.C. it is a crime, in India.
|3.||Libel is actionable per se. (by itself) Libel tends to provoke breach of peace. It is a crime as well as tort in England and India.
Slander is not Actionable per se.
This means that in cases of Slander special damage must be proved. Libel is actionable per se. As libel will be in a permanent from, it is likely to do more harm to plaintiff. Special damage means actual damage sustained by the plaintiff. The plaintiff, must prove loss of money or some temporal or material advantage estimable in money which he has lost. Mere loss of society or consortium of one’s friends is not sufficient. If a person is excluded from a dinner party, because of slander he sustains a loss material and temporal. Hence, there is special damage and compensation can be recovered. If there is no special damage there will be no compensation in slander. Hence, the general rule is that slander is not actionable per se. But, this is subject to the following exceptions:
- Imputation of Criminal offences punishable in nature.
Hailing V. Mitchel. M was a hotel owner. H was a hair dresser. M said to H “You were with a crowd last night”. “I cannot have you here. You are to be turned out”. The court held that the words did not amount to an imputation of an offence.
Jacksons V. Adams :
P was in possession of parish bell-ropes. D told P “Who stole the parish bell-ropes; you rascal”. As the possession of bell-ropes was with P stealing by P was not possible and hence, there was no imputation of an offence.
- Imputation of contagious or infectious diseases which are likely to make others avoid the company of the plaintiff.
- Imputation of unchastity or adultery to a woman.
- Imputation of unfitness, dishonesty or inefficiency in a profession trade or business. Imputation of ignorance of law to a lawyer or incompetence to a surgeon, or cheating to a trader or insolvency to a businessman are examples;
Bull V. Vasquez, B was an M.P. and was in army service. He had come back on leave. V said of him that B was sent home for taking much drinks. B sued B. Compensation was granted. There was imputation of drunkenness.
Defences open to the defendant are :-
- i) Justification : Truth or justification is a very good and complete defence. Defamation is the injury to a man’s reputation and if there is truth in the statement, then there is no defamation. The person is not lowered, but is placed to his proper level.
The substance of the statement must be true, not merely a part of it. “How, a lawyer treats his clients” was an article which dealt with how a particular lawyer was treating his client. Held the article was in-sufficient to justify the heading. (Bishop V. Lautiar)
- ii) Fair Comment : The comment must be on a matter of public interest. Honest criticism is essential for the efficient working of democratic public institutions. The Government and its institutions may be criticized.
- The matter commented must be of public interest. The Government and its various wings and establishments and public institutions may be criticised. Novelists, Dramatists, Musicians, Actors, etc., may be criticised.
- Fair comment must be an expression of an opinion and not an assertion of facts. Plaintiff was advertising in papers as a specialist in E.N.T the defendant commented on him as “a quack of the rankest species”. Held: that it was a comment, the Court always looks to the merit of the comments.
- The comment must be fair : Mere violence in criticism by itself will not make the statements unfair.
- Comment must be malicious. Even fictitious name may be used. That by itself will not render the statement unfair.
In case of defamation one question that may come up for consideration is the actual meaning of the words used.
Sometimes words may have double meanings (pun) or may be ambiguous but courts will be interested in finding out the exact meaning that is to be attributed under the circumstances. It is for this reason that the court invokes the concept of Innuendo i.e. to find out the inner meaning of the words used by the author of the defamatory words.
Mrs. Cassidy V. Daily Mirror.
The facts were that the defendant published in his newspaper that ‘Mr. Cassidy and Miss. K are engaged’, In fact Mr. Cassidy had married Mrs. Cassidy. The wife Mrs. C sued the publishers. Her contention was that on seeing the news item, her friends in the women’s club and elsewhere shunned her company and looked down upon her. The court therefore looked into the inner meaning of the publication. In effect, it meant that Mrs. C was not a legally wedded wife of Mr. C i.e. she was a kept mistress of Mr. C. The court awarded compensation.
Tolly V. Fry and Co. (Chocolate case)
In this case, P was a golf player and a member of the golf club. He was an amateur who became very popular. The defendant company D, published his photo with a chocolate protruding from his pocket, inscribed ‘Fry and Co. Chocolates’. The Golf club felt that the plaintiff had violated the club rules and that he could be asked to resign. P sued the company for compensation. Court applied the principle of Innuendo and held that the real meaning was that if P by consent sell his name as Golf player he could be terminated from the golf club. Hence D was held liable.
Privileges : Privileges are of two Kinds : absolute and qualified.
Meaning of privileges : They are occasions on which there ought to be no liability for defamation. This is because the public interest outweighs the plaintiff’s right to his reputation. Privileges are absolute when the communication is of paramount importance. Such occasions are protected, however malicious or outrageous they may be. The defendant may make statements even if they are false.
Examples for absolute privileges:
- Statements made in Parliament or Legislature.
- Reports, papers, etc., of either House of Legislature.
- Judicial proceedings.
- Communications between solicitor (advocate) and his client.
- Communication between one officer and a foreign officer.
Statements are qualified when the person makes the statement honestly even though they are false.
- Fair and accurate reports of Parliamentary debates, and proceedings.
- Fair and accurate reports published in newspapers. Similarly broadcasting.
- Statement made in pursuance of duties. A reports to B. about the conduct of C. If it is A’s duty to report and if he is to protect the interest of B, he may make statements about C.
- Where A and B are having a common interest to be protected. Statements made about the plaintiff P between A and B themselves are protected.
- Statements made in self protection and self-defence to procure redress of public grievances are protected.