Defamation in Tort by Sesa Gill at LexCliq

Meaning“ Defamation is injury to the reputation of a person. If a person injures the reputation of another he does so at his own risk, as in the case of an interference with the property. A person’s reputation is his property, and if possible, more valuable, than other property.

Any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person, is called defamation.

Criminal and Civil Defamation

Criminal Defamation: Criminal defamation is the act of offending or defaming a person by committing a crime or offence. For criminal defamations, you could always get the liable person or party prosecuted. It is studied in IPC as a criminal act.

Civil Defamation: Civil defamation involves no criminal offence, but on account of this kind of defamation, you could sue the person to get a legal compensation for your defamation. It is studied under law of torts i.e. as a civil wrong.

Essentials of Defamation

1. The statement must be defamatory
Defamation is the statement which tends to lower a person in the estimation of right thinking members of society generally or which tends to make them shun or avoid that person.

The standard to be applied is that of a right minded citizen. A man of fair average intelligence, and not that of a special class of persons whose values are not shared or approved by the fair minded members of the society generally.

2. The statement must refer to the plaintiff
If the person to whom the statement was published could reasonably infer that the statement referred to the plaintiff, the defendant is nevertheless liable.

If defendant say “all lawyers are thieves” is not actionable but if he says A, who is a lawyer is a thief is defamatory.

the Delhi HC in Harsh Mendiratta v. Maharaj Singh said that an action for defamation was maintainable only by the person who was defamed and not by his friends or relatives.

3.Defamation must be published

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.
In the case of Mahender Ram v. Harnandan Prasad it was said when a defamatory letter is written in urdu to the plaintiff and he doesnt know urdu, he asks a third person to read it , it is not defamation unless it was proved that at the time of writing letter defendant knew that urdu was not known to the plaintiff.

DEFENCES AVAILABLE FOR DEFAMATION:

1.Justification or truth
Truth is an absolute defense to defamation. Remember that defamation is a false statement of fact. So, if the statement was accurate, then by definition it wasn’t defamatory.

If the statement made is authentic then it does not constitute defamation. The burden of proof is on the defendant who is claiming the defence. For instance, X makes a statement in an interview about Y indulging in gambling and Y files a suit against him. If X is able to justify or prove it, then Y’s claim will be dismissed. In Radheshyam Tiwari v. Eknath, the defendant was unable to prove the facts published by him and therefore was held liable for defamation.

2.Fair Comment-
i. The comment must be an expression of opinion rather than assertion of fact.
ii. The comment must be fair i.e. without malice.
iii.The matter commented upon must be of public interest.

3. Privilege-
There are certain occasions when the law recognizes the right to freedom of speech outweighs the plaintiff right to reputation, the law treats those occasions as ˜Privileged These are further of two types

i.  Absolute privilege- No action lies for the defamatory statement even though the statement is false or made maliciously. It applies to :
Parliamentary Privilege, Judicial proceeding and State communication.

  1. Qualified privilege– It is necessary that the statement must have been without malice. The defendant has to prove that statement was made on a privileged occasion fairly.

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