Defamation

Question 0

Parvathi vs. Mannar (1885)

Answer 0

English law which, except in certain cases, requires the proof of special damage in the case of oral defamation, being founded on no reasonable basis, should not be adopted by the courts of India.

Question 1

Youssopoff vs. M.G.M. Pictures Ltd. (1934)

Answer 1

1. So far as the photographic part of the exhibition is concerned ( movie) that is permanent matter to be seen by the eye, and is the proper subject of an action of libel, if defamatory.
2. The speech which is synchronised with the photographic reproduction and forms part of one complex, is also libel and not slander.

Question 2

Hirabai Jehangir vs. Dinshaw Edulji (1927)

Answer 2

The Bombay HC held that when there was imputation of up chastity to a woman by spoken words, the wrong was actionable without proof of special damage.

Question 3

D.P. Chaudhary vs. Manjulata (1997)

Answer 3

Manjulata from good family. A student. Publication in local daily that she ran away last night with a guy. News item was untrue and published negligently. Manju shocked and ridiculed. Marriage prospects adversely affected.

Held: defamatory words are actionable per se. General damages awarded.

Question 4

Essentials of defamation

Answer 4

The statement must be;
A. Defamatory
B. Refer to the plaintiff
C. Published

Question 5

Deepak Kumar Biswas vs. National Insurance Co. ltd. (2006)

Answer 5

Arbitration matter. Another lawyer appointed. The new lawyer said, delay occurred on account of laches on part of lawyer who was conducting arbitration case before arbitrator.

Held: the said words were not necessarily an onslaught on personal integrity and reputation of the appellant.
Co. had no ill will to defame the appellant.

Question 6

Ram Jethmalani vs. Subramaniam Swamy (2006)

Answer 6

While a commission of inquiry was examining the facts and circumstances relating to assassination of Rajiv Gandhi, the defendant alleged that the then CM of Tamil Nadu had prior info of the attack.

Plaintiff engaged as senior counsel to represent CM.

Plaintiff cross examined defendant.
During the proceeding the defendant in written conclusive submission, alleged that plaintiff had received money from LTTE.

Held: statement made by defendant was prima facie defamatory. It was a case of exceeding the privilege and that by itself was held to be evidence of malice. The statement was quite on connected with and irrelevant to the situation, actual malice on part of defendant was well established.

Question 7

S.N.M Abdi vs. Prafulla Kumar Mohanta ( 2002)

Answer 7

It is not necessary that the statement need to show a tendency of imputation to prejudice the plaintiff in the eye of everyone in the community or all of his associates.

It is enough that the publication tends to lower him in the eyes of substantial, respectable group, even though they are minority of the total community or of the plaintiff’s associates.

Question 8

Ramdhara vs. phulwati Bai (1969)

Answer 8

General: mere hasty expression spoken in anger, or vulgar abuse to which no hearer would impute any set purpose to injure character would not be actionable.
If, however, the insulting words are also likely to cause ridicule and humiliation, they are actionable.

Held: the imputation by the defendant that the plaintiff, a widow of 45 years, 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.

Question 9

The INNUENDO

Answer 9

Sometimes a statement may be prima facie innocent but because of some latent or secondary meaning, it may be considered to be defamatory. When the natural meaning is not defamatory and the plaintiff wants to bring an action for defamation, he must prove the latent or secondary meaning, i.e., the innuendo, which makes the statement defamatory.

Question 10

Capital and Counties Bank vs. Henty and Sons ( 1882)

Answer 10

Facts: there was a dispute between defendants and one of the branch managers of the plaintiff bank. The defendants issued a circular letter to a large no of there customers that, they will not receive payment in cheques drawn on any of the branches of the plaintiff bank.

Held: The words of the circular taken together in their natural sense did not convey the supposed imputation and the reasonable people would not understand it in the sense of the innuendo suggested, therefore, not libel.

Question 11

Intention to defame not necessary

Answer 11

When the words are considered to be defamatory by the persons to whom the statement is published, there is defamation, even though the person making the statement believed it to be innocent. It is immaterial that the defendant did not know of the circumstances because of which a statement otherwise innocent, is considered to be defamatory.

Question 12

Cassidy vs. Daily Mirror Newspapers Ltd. (1929)

Answer 12

Facts: Mr. Cassidy was married to Mrs. Cassidy. She was known as the lawful wife of Mr. Cassidy who did not live with her but occasionally came and stayed with her at her flat.
The defendants published in their newspapers a photograph of Mr. Cassidy and Mrs. X with the following words that, Mr. Cassidy and Mrs. X whose engagement has been announced.

Mrs. Cassidy sued the paper for libel alleging that the innuendo as that Mr. Cassidy was not her husband and that she was living with him in immoral cohabitation.

Held: innuendo was established. Statement was defamatory.
Obvious innocence of the defendants was no defence.

Question 13

T.V. Ramasubha Iyer vs. A.M.A. Mohindeen (1972)

Answer 13

Facts: defendants published a news item in their daily, that a person from Tirunelveli, who was exporting scented Agarbathis out Ceylon, has smuggled opium into Ceylon in the form of Agarbathis.

The plaintiff who carried on the business of manufacturing and electing scented Agarbathis to Ceylon brought an action for defamation alleging that the publication has resulted in his defamation.

Defendants pleaded they were not aware of plaintiffs existence, had no intention to defame him and had also published a correction in their paper.

Issue: Whether there was a liability in India for a defamatory statement published without an intention to defame?

Held: Madras HC after referring to the English authorities and also the defamation act, came to the conclusion that the English case of Hulton and Co. Vs. Jones (1910), wherein the majority held that innocent publishers of defamatory statement was liable; was against justice, equity and good conscience and the same was not applicable in India.

Question 14

John Thomas vs. Dr. K. Jagdeesan (2001)

Answer 14

Referring to section 199 of Cr. P.C. The apex court held where the defamatory words are directed against a company or registered society, in such a situation where the defamation has a

Question 15

Defamation of a class of persons

Answer 15

When the words refer to a group of individuals or a class of persons, no member of that group or class can sue unless he can prove that the words could reasonably be considered to be referring to him.

Question 16

Knupffer vs. London Express Newspapers Ltd. (1944)

Answer 16

Facts: The appellant was the member of a party, the membership of which was about two thousand. The respondents published a statement of the party as a whole. Some of the appellant’s friends considered the article to be referring to him.

Held: since the article referred to such a big class, most of the members of which were resident abroad, it could not reasonably be considered to be referring to the appellant and the respondents were not liable.

“There can be no law that a defamatory statement made of a firm, or trustee, or the tenants of a particular building is not actionable, if the words would reasonably be understood as published of each member of the firm, or each trustee or each tenant.
The reason why a libel published of a large or indeterminate number of persons described by some general name generally fails to be actionable is the difficulty of establishing that the plaintiff was, in fact, included in the defamatory statement.”

Question 17

Dhirendra Nath Sen vs. Rajat Kanti Bhadra (1970)

Answer 17

When an editorial in a newspaper is defamatory of a spiritual head of a community, an individual of that community does not have a right of action.

Question 18

P.K.Oswal Hosiery Mill vs. Tilak Chand (1969)

Answer 18

A partnership firm is merely a compendious artificial name adopted by its partners and is not itself a legal entity. Libel or slander of a partnership firm may indeed amount to defamation of its partners. Bt then it is the partners who may in such an eventuality use and not the firm.

It is not necessary for all members of the firm to join in such an action. Anyone or more of the partners who feel aggrieved may use and the others may be joined as proforma defendants.

Question 19

Defamation of deceased

Answer 19

Not a tort.

Under criminal law, however, it may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person, if living, and is intended to be hurtful to the feelings of his family or other near relatives.

Question 20

The statement must be published.

Answer 20

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.

Dictating a letter to one’s typist is enough publication.

Question 21

Williamson vs. Freer (1874)

Answer 21

When the defamatory matter is contained in a postcard or a telegram, the defendant is liable even without a proof that somebody else read it, because a telegram is read by the post office officials who transmit and receive it, and there is a high probability that somebody read it.

If, however, the matter contained in the postcard could not be understood as defamatory by a stranger unacquainted with certain circumstances not mentioned in the postcard, there was no publication to the postman or other persons through whose hands the postcard passed.

Question 22

Letter sent to plaintiff read by someone else.

Answer 22

If defamatory letter sent to plaintiff is likely to be read by someone else, there is publication.

When the libellous letter addressed to the plaintiff is, in the ordinary course of business, likely to be opened by his clerk, or by his spouse, there is defamation whee. He clerk or the spouse opens and reads the letter.

Question 23

Mahendra Ram vs. Harnandan Prasad (1958)

Answer 23

Facts: The defendant sent a melter written in Urdu to the plaintiff. The plaintiff did not know Urdu Nd therefore the same was read over to him by third person.

Held: defendant was not liable unless it was proved that at the time of writing the letter in Urdu script, the defendant knew that the Urdu script is not known to the plaintiff and it would necessitate reading of the letter by a third person.

Question 24

Arumuga Mudaliar vs. Annamalai Mudaliar (1966)

Answer 24

Held: When two persons jointly wrote a letter contains defamatory matter concerning the plaintiff and sent the same by registered post to the plaintiff, there was no publication by one tortfeasor to the other as there could be no publication between joint tortfeasors nor can there be said to be publication when the registered letter addressed to the plaintiff gets into the hands of a third person and he reads it out in the presence of various other persons, of the same could not have been foreseen.

Question 25

Prameela Ravindran vs. P. Lakshmikutty Amma (2001)

Answer 25

Facts: the marriage between the applicant and the deceased was disputed by the defendant who was mother of the deceased. Plaintiff produced a marriage certificate showing the fact of marriage. Thus prima facie evidence and balance of convenience were in a favour of the plaintiff.
The respondent who disputed the marriage , had been sending letters to various persons relating to the marital status of the plaintiff.

Held: such letters were defamatory.
If a statement regarding the validity of marriage of a person is uncalled for under the circumstances of the case and is likely to injure the reputation of a person, the person making such statement can be restrained from doing so.

Question 26

T.J. Ponnen vs. M.C. Verghese (1970)

Answer 26

The plaintiff wrote defamatory letters to his wife, containing some defamatory imputations concerning her father, M.C. Verghese. His wife passed those letters to her father. The father in law launched prosecution against his son in law complaining the defamatory letters.

Ponnen contended that the defamatory letters addressed to of him by his wife Rg not, except with his consent, admissible in evidence by virtue of section 122 indian evidence act, and since the wife is not permitted to disclose those letters no offence of defamation could be made out.

Held: SC held that even though in view of section 122, the complainant cannot seek to support his case upon the evidence of the wife of the accused, but if the communication between the husband and the wife have fallen to his hands, the same can be proved in any other way.

Question 27

Theaker vs. Richardson (1962)

Answer 27

The defendant wrote a letter to the plaintiff making false allegations of her being a prostitute. The letter was sent under the circumstances that the plaintiff’s husband in all probability would have read the same. The husband opened and read the letters.

Held: communication of defamatory matter of one spouse to the other is sufficient publication . Therefore, defendant was liable.

Question 28

Repetition of defamatory matter

Answer 28

Liability of the person who repeats a defamatory matter arises in the same way as at of the originator, because every repetition is fresh publication giving rise to a fresh cause of action.

Not only the author of the defamatory matter is liable, but also the editor, printer or publisher would be liable in the same way.

There is another class of persons who might disseminate the matter without knowing its contents, i.e., booksellers, newspaper vendors or librarians. The law adopts a lenient attitude towards them. They are not liable if ;
A. They did not know, or
B. In spite of reasonable diligence could not have known that what they were circulating as defamatory.

Question 29

Emmens vs. Pottle (1885)

Answer 29

The defendants who were large scale news paper vendors, sold copies of publication containing libellous matter concerning the plaintiff. It was found that they neither knew nor were negligent in not knowing the matter and hence there was no publication on their part. They were not liable.

Question 30

Gurbachan Singh vs. Babu Ram (1969)

Answer 30

It is the duty of the editor of a newspaper to check up the news or the information that is supplied to him, before publishing the same in the newspaper, especially when the news might be of defamatory nature, because ultimately it is the editor who would be held responsible for publishing any defamatory material in his paper. If he does not do that, he has to suffer the consequences for his neglect and remissness.

Question 31

Defences to defamation.

Answer 31

A. Justification or Truth.
B. Fair Comment
C. Privilege, which may be either absolute or qualified.

Question 32

Justification or truth.

Answer 32

In a civil action for defamation, truth of here defamatory matter is complete defence.
Under criminal law, merely proving that the statement was true is no defence.
First exception to section 499 IPC requires that besides being true, the imputation must be shown to have been made for public good.

The reason for this defence under tort is that law will not allow a man to recover damages in respect of an injury to a character which he either does not possess or ought not to possess. The defence is available even though the publication is made maliciously.

Question 33

Radheshyam Tiwari vs. Eknath ( 1985)

Answer 33

Facts: the defendant who was editor, printer and publisher of a newspaper published a series of articles against the plaintiff who was a BDO, alleging corruption. In an action for defamation, the defendant could not prove that he facts published by home were true, and therefore he was held liable.

Question 34

Salenadandasi vs. Gajjala Malla Reddy (2009)

Answer 34

Fact: the plaintiff an advocate, was involved in offence of raping a Harijan woman. Relying upon the FIR registered by the police, the news item was published in a local daily. The publication, however, gave an exaggerated version with several deviations and improvements with comment as though the plaintiff was in a way misfit to be continued as a legal professional.

Held: The non-examination of news reporter, non-furnishing of material relating to source of information, false statements, and exaggerated defamatory statements made in reckless manner without even verifying the truth or otherwise would constitute defamation and such claim cannot be totally negatived on the ground of protection to be extended to journalists by virtue of freedom of press.

Question 35

Fair comment

Answer 35

Making fair comment on MATTERS OF PUBLIC INTEREST is a defence to an action for defamation. Essentials of fair comment are:

A. It must be a comment
B. Must be fair.
C. The matter commented upon must be of public interest.

Question 36

A. Comment

Answer 36

Comment means an expression of opinion on certain facts.

It should be distinguished from making a statement of fact.
A fair comment is a defence by itself whereas if it is a statement of fact that can be excused only if justification or privilege is proved regarding that.

Since it is necessary that the comment must relate to certain fats, it is also essential that the facts commented upon must be either known to the audience addressed or the commentator must make it known along with his comment.

Question 37

B. Fair comment

Answer 37

The comment cannot be fair when not is based on untrue facts.
If the facts are substantially true and justify the comment of the facts which are truly stated, the defence of fair comment can be taken even though some of the facts stated may not be proved.

Whether the comment is fair or not depends upon whether the defendant honestly held that particular opinion. It is not the opinion of the court as to the fairness of the comment but the opinion of the commentator which is material.

Question 38

Gregory vs. Duke of Brunswick ( 1843)

Answer 38

The plaintiff, an actor, appeared on the stage of a theatre but the defendant and other persons actuated by malice hissed and hooted at the plaintiff and thereby caused him to loose his engagement. Hissing and hooting after conspiracy was held to be actionable and that was not a fair comment on the plaintiff’s performance.

Question 39

Matter must be of public interest.

Answer 39

Administration of govt departments, public companies, courts, conduct of public men like ministers or officers of state, public institutions and local authorities, public meetings, pictures, theatres, public entertainments, textbooks, novels, etc. are considered to be matters of public interest.

Question 40

PRIVILEGE

Answer 40

There are certain occasions when the law recognises that the right of free speech outweighs the plaintiff’s right to reputation; the law treats such occasions as privileged and a defamatory statement made on such occasions is not actionable.

Privilege is of two kinds:
A. Absolute
B. Qualified

Question 41

Absolute Privilege

Answer 41

No action lies for defamatory statement even though the statement is false or has been made maliciously. It is recognised in following cases:

A. Parliamentary proceedings

Article 105(2); statement made by either house of member of parliament in Parliament and the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings, cannot be questioned on a court of law.

Article 194(2): similar privilege in respect of state legislature.

B. Judicial proceedings.

No action for defamation lies, whether against judges, counsels, witnesses or parties, for words written or spoken in the course of any proceedings before any court recognised by law, even though the words written or spoken were maliciously written or spoken without any justification or excuse, and from personal ill will and anger against the person defamed.

If, however, the words spoken by the counsel are irrelevant, not having any relevance to the matter before the court, such a defence cannot be pleaded. The privilege claimed by a witness is also subject to similar restrictions.

C. State communications

A statement made by one officer of the state to another in the course of official duty is absolutely privileged for reasons of public policy.

Question 42

T.G. Nair vs. Melepurath Sankunni (1971)

Answer 42

Facts: the defendant filed a petition in the court of the executive magistrate, alleging that the plaintiff and his brother were two notorious bad characters and they indulged in blackmailing and criminal breach of trust. The defendant submitted a copy to the sub-inspector. The SI took an undertaking from the plaintiff that he would not take the law in his own hands.
The plaintiff sued the defendant fir defamation,which was said to be in there on the form of above stated petition, and the publication thereof, to the SI.

HELD: not only the judicial proceedings but also the necessary steps that process ( as the petition and the submission of its copy to the SI in the present case) were also absolutely privileged. Thus, the statements made by the defendant in the petition he presented to the magistrate and in the copy thereof which he presented to the SI are both absolutely privileged. The plaintiffs action for defamation therefore fails.

Question 43

Qualified privilege.

Answer 43

Unlike the defence of absolute privilege, in this case it is necessary that the statement must have been made without malice. It is further necessary that there must be an occasion to make the statement.

Generally, such a privilege is available either when the statement is made in discharge of a duty, legal, social or moral, or protection of an interest, or the publication is in the form of report of parliamentary, judicial or other public proceedings.

Question 44

Privileged occasion

Answer 44

A privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social or moral to make it to the person to whom it is made, and the person to whom it is made has corresponding interest or duty to receive it. This reciprocity is essential.

Section 499 IPC also contains such a privilege in its ninth exception.

Question 45

Instances of privileged occasion

Answer 45

A. A former employer has a moral duty to state a servant’s character to a person who is going to employ the servant. The person receiving the information is also interested in the info. The occasion is therefore privileged. But if the former employer without any enquiry, publishes the character of his servant with a motive to harm the servant, the defence cannot be taken.

B. Such communications can be made in cases of confidential relationships like those of husband and wife, father and son or daughter, guardian and ward, master and servant or principal and agent.

B.

Question 46

R.K. Karanjia vs. Thackersey (1970)

Answer 46

Facts: an article was published in an English weekly agonist the plaintiff and his family suggesting that the plaintiff had used unlawful means to amass wealth. Reference was also made as to how the government has not taken any action.

The only defence pleaded before the high court was ‘qualified privilege’, the element of duty in communicating the statement was missing.

Held: The mere fact that the matter is of general public interest is not enough, the person or the newspaper who wants to communicate the general public must also have the duty to communicate , and if no such duty, apart from the fact that the matter is one of public interest, can be spelt out in the particular circumstances of the case, the publication could not be said to be upon a privileged occasion.

Another reason for rejecting the plea of qualified privilege was that the article as published maliciously, not with the idea to serve public interest but with a view to expose the plaintiff because on an earlier occasion, the plaintiff had made the defendant editor to apologise for publishing a defamatory article.

Question 47

Reports of Parliamentary, Judicial or other public proceedings

Answer 47

Reports of parliamentary proceedings published by or under the authority of either House of Parliament or state legislature are subject to absolute privilege. If, however, the proceedings are published without the authority of the house, qualified privilege can be claimed, provided the publication is made without malice and for public good.

Apart from that publication of judicial, quasi judicial proceedings and proceedings of public meetings enjoy qualified privilege.

Report of a commission which is set up to enquire into a matter of public interest can also be similarly published if it appears that it is in the public interest.

Question 48

Horrocks vs. Lawe (1964)

Answer 48

Second ingredient of qualified privilege, i.e., malice was the centre point of this case.

Lord Diplock explained malice needed to destroy the defence of qualified privilege in the following words;
“Broadly speaking, it means malice in the popular sense of desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege. The desire to injure must be the dominant motive for the defamatory publication : knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bonafide protection of his own legitimate interests.”

If it be proved that the person publishing the statement did not believe what he published as true, this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interest can justify a man in telling deliberate and injurious falsehood about another, save in the he exceptional case where a person may be under a duty to pass on, without endorsing defamatory report made by some other person.

Question 49

Distinction between absolute privilege and qualified privilege.

Answer 49

A. AP- it is the occasion which is privileged and when once the nature of the occasion is shown, it follows, as a necessary inference that every communication on that at occasion is protected.

QP- occasion is not privileged, until the defendant has shown how to to occasion was made. It is not enough to have an interest or a duty in making a statement the necessity of the existence of an interest of duty in making the statement complained of, must also be shown.

B. AP- defendant gets absolute exemption
QP- defendant gets conditional exemption from liability.

C. AP- statements are protected in all circumstances irrespective of the presence of good or bad motives.
QP- even after a case of QP is established by the defendant, it may be met by the proving in reply improper or evil motive on the part of the defendant, in which case defence of QP vanishes and the plaintiff succeeds.

D. AP- defence of AP is absolutely irrefutable.
QP - defence is not irrefutable.