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TORT

ASSIGNMENT
ON
DEFAMATION
Submitted By:
Harsha
A8111110018
B.A.LL.B.(hons.)
VII Semester



DEFAMATION


ACKNOWLEDGEMENT


We want to acknowledge this assignment to a lot many people who have
helped us in preparing it. Without their help, assistance and guidance in
the preparatory process of this assignment it would have been a daunting
task to complete it.
We are heartily Thankful to our Subject Teacher, Smt. Archana
Shukla whose encouragement, guidance and support from the initial to
the final level enabled us to develop an understanding of the subject.
Lastly, we offer our regards to our parents and our friends for helping us
in any respect during the completion of the assignment.
We are humbled in gratitude by receiving all their generous help. They
have made our endeavour a successful one.

Thanking You












DEFAMATION

INTRODUCTION
Defamationalso called calumny, vilification, traducement, slander (for transitory statements),
and libel (for written, broadcast, or otherwise published words)is the communication of a
statement that makes a claim, expressly stated or implied to be factual, that may give an
individual, business, product, group, government, religion, or nation a negative or inferior image.
This can be also any disparaging statement made by one person about another, which is
communicated or published, whether true or false, depending on legal state. In Common Law it
is usually a requirement that this claim be false and that the publication is communicated to
someone other than the person defamed (the claimant).
In common law jurisdictions, slander refers to a malicious, false, and defamatory spoken
statement or report, while libel refers to any other form of communication such as written words
or images. Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of
defamation and retaliate against groundless criticism. Related to defamation is public disclosure
of private facts, which arises where one person reveals information that is not of public concern,
and the release of which would offend a reasonable person. "Unlike [with] libel, truth is not a
defense for invasion of privacy."
False light laws are "intended primarily to protect the plaintiff's mental or emotional well-being."
If a publication of information is false, then a tort of defamation might have occurred. If that
communication is not technically false but is still misleading, then a tort of false light might have
occurred.
In some civil law jurisdictions, defamation is dealt with as a crime rather than a civil wrong
(termed a delict in civil-law systems). The United Nations Commission on Human Rights ruled
in 2012 that the criminalization of libel violates Freedom of expression and is inconsistent with
Article 19 of the International Covenant on Civil and Political Rights.
A person who harms another's reputation may be referred to as a "famacide", "defamer", or
"slanderer". The Latin phrase famosuslibellus means a libelous writing.






DEFAMATION
ESSENTIAL OF DEFAMATION
The plaintiff has to prove the following in order to establish the existenceof defamation:
that the statement was defamatory;
that the statement referred to the plaintiff;
that the statement was published

TYPES OF DEFAMATION
Slander
The common law origins of defamation lie in the torts of "slander" (harmful statement in a
transitory form, especially speech), each of which gives a common law right of action.
"Defamation" is the general term used internationally, and is used in this article where it is not
necessary to distinguish between "slander" and "libel". Libel and slander both require
publication. The fundamental distinction between libel and slander lies solely in the form in
which the defamatory matter is published. If the offending material is published in some fleeting
form, as by spoken words or sounds, sign language, gestures and the like, then this is slander.
Libel
Libel is defined as defamation by written or printed words, pictures, or in any form other than by
spoken words or gestures. The law of libel originated in the 17th century in England. With the
growth of publication came the growth of libel and development of the tort of libel.
Cases involving libel
An early example of libel would be the case of John Peter Zenger in 1735. Zenger was hired to
publish New York Weekly Journal. When he printed another man's article that criticized William
Cosby, who was then British Royal Governor of Colonial New York, Zenger was accused of
Seditious Libel. The verdict was returned as Not Guilty on the charge of seditious libel, having
proved that all the statements Zenger had published about Cosby had been true, so there was not
an issue of defamation. Another example of libel would be the case of New York Times Co. v.
Sullivan (1964). The U.S. Supreme Court overruled a State court in Alabama that had found The
New York Times guilty of libel for printing an advertisement that criticized Alabama officials
for mistreating student civil rights activists. Even though some of what The Times printed was
false, the Court ruled in its favor, saying that libel of a public official requires proof of Actual
Malice, which was defined as a "knowing or reckless disregard for the truth".

DEFAMATION
How to prove libel
There are several ways a person must go about proving that libel has taken place. For example,
in the United States, first, the person must prove that the statement was false. Second, the person
must prove that the statement caused harm. Third, the person must prove that the statement was
made without adequate research into the truthfulness of the statement. These steps are for an
ordinary citizen. For a celebrity or a public official, the person must prove the first three steps
and that the statement was made with the intent to do harm or with reckless disregard for the
truth.[citation needed] Usually specifically referred to as "proving malice".

DEFENCE IN DEFAMATION
Even if a statement is defamatory, there are circumstances in which such statements are
permissible in law.
Truth
In many legal systems, adverse public statements about legal citizens presented as fact must be
proven false to be defamatory or slanderous/libellous.[citation needed] Proving adverse public
character statements to be true is often the best defence against a prosecution for libel or
defamation. Statements of opinion that cannot be proven true or false will likely need to apply
some other kind of defence. The use of the defence of justification has dangers, however; if the
defendant libels the plaintiff and then runs the defence of truth and fails, he may be said to have
aggravated the harm.
Another important aspect of defamation is the difference between fact and opinion. Statements
made as "facts" are frequently actionable defamation. Statements of opinion or pure opinion are
not actionable. From 'Other Defences' (below), under the 'Opinion' section: "However, some
jurisdictions decline to recognize any legal distinction between fact and opinion. The United
States Supreme Court, in particular, has ruled that the First Amendment does not require
recognition of an opinion privilege." To win damages in a libel case, the plaintiff must first show
that the statements were "statements of fact or mixed statements of opinion and fact" and second
that these statements were false. Conversely, a typical defence to defamation is that the
statements are opinion. One of the major tests to distinguish whether a statement is fact or
opinion is whether the statement can be proved true or false in a court of law. If the statement
can be proved true or false, then, on that basis, the case will be heard by a jury to determine
whether it is true or false. If the statement cannot be proved true or false, the court may dismiss
the libel case without it ever going to a jury to find facts in the case.
Under English common law, proving the truth of the allegation was originally a valid defence
only in civil libel cases. Criminal libel was construed as an offence against the public at large
DEFAMATION
based on the tendency of the libel to provoke breach of peace, rather than being a crime based
upon the actual defamation per se; its veracity was therefore considered irrelevant. Section 6 of
the Libel Act 1843 allowed the proven truth of the allegation to be used as a valid defence in
criminal libel cases, but only if the defendant also demonstrated that publication was for the
"Public Benefit".
In some systems, however, notably the Philippines, truth alone is not a defence. Some U.S.
statutes preserve historical common law exceptions to the defence of truth to libel actions. These
exceptions were for statements "tending to blacken the memory of one who is dead" or "expose
the natural defects of one who is alive".
It is also necessary in these cases to show that there is a well-founded public interest in the
specific information being widely known, and this may be the case even for public figures.
Public interest is generally not "what the public is interested in", but rather "what is in the
interest of the public".
Noonan v. Staples is sometimes cited as precedent that truth is not always a defence to libel, but
the case is actually not valid precedent on that issue because Staples did not argue First
Amendment protection for its statements. The courts often decide cases on issues not argued by
the parties, and the court assumed in this case that the Massachusetts law was constitutional
under the First Amendment.
In a 2012 ruling involving Philippine libel law, the United Nations Commission on Human
Rights commented, "Penal defamation laws should include defense of truth."
Privilege and malice
Privilege provides a complete bar and answer to a defamation suit, though conditions may have
to be met before this protection is granted. Privilege is any circumstance that justifies or excuses
a prima facie tort. It can be said that privilege recognizes a defendant's action stemmed from an
interest of social importance - and that society wants to protect such interests by not punishing
those who pursue them. Privilege can be argued whenever a defendant can show that he acted
from a justifiable motive. While some privileges have long been recognized, the court may create
a new privilege for particular circumstances - privilege as an affirmative defence is a potentially
ever-evolving doctrine. Such newly created or circumstantially recognized privileges are referred
to as residual justification privileges.
There are two types of privilege in the common law tradition:
"Absolute privilege" has the effect that a statement cannot be sued on as defamatory, even if it
were made maliciously; a typical example is evidence given in court (although this may give rise
to different claims, such as an action for malicious prosecution or perjury) or statements made in
a session of the legislature (known as 'Parliamentary privilege' in Commonwealth countries).
DEFAMATION
"Qualified privilege" may be available to the journalist as a defence in circumstances where it is
considered important that the facts be known in the public interest; an example would be public
meetings, local government documents, and information relating to public bodies such as the
police and fire departments. Qualified privilege has the same effect as absolute privilege, but
does not protect statements that can be proven to have been made with malicious intent.
Other defences
Defences to claims of defamation include:
Statements made in a good faith and reasonable belief that they were true are generally treated
the same as true statements; however, the court may inquire into the reasonableness of the belief.
The degree of care expected will vary with the nature of the defendant: an ordinary person might
safely rely on a single newspaper report, while the newspaper would be expected to carefully
check multiple sources.
Opinion is a defence recognized in nearly every jurisdiction. If the allegedly defamatory
assertion is an expression of opinion rather than a statement of fact, defamation claims usually
cannot be brought because opinions are inherently not falsifiable. However, some jurisdictions
decline to recognize any legal distinction between fact and opinion. The United States Supreme
Court, in particular, has ruled that the First Amendment does not require recognition of an
opinion privilege.
Mere vulgar abuse is an insult that is not necessarily defamatory because it is not intended to be
taken literally or believed, or likely to cause real damage to a reputation. Vituperative statements
made in anger, such as calling someone "an asshole" during a drunken argument, would likely be
considered mere vulgar abuse and not defamatory.
Fair comment on a matter of public interest, arguments made with an honest belief in their
soundness on a matter of public interest (such as regarding official acts) are defendable against a
defamation claim, even if such arguments are logically unsound; if a reasonable person could
honestly entertain such an opinion, the statement is protected.
Consent is an uncommon defence and makes the claim that the claimant consented to the
dissemination of the statement.
Innocent dissemination is a defence available when a defendant had no actual knowledge of the
defamatory statement or no reason to believe the statement was defamatory. The defence can be
defeated if the lack of knowledge was due to negligence. Thus, a delivery service cannot be held
liable for delivering a sealed defamatory letter.
Claimant is incapable of further defamation e.g., the claimant's position in the community is so
poor that defamation could not do further damage to the plaintiff. Such a claimant could be said
to be "libel-proof", since in most jurisdictions, actual damage is an essential element for a libel
DEFAMATION
claim. Essentially, the defence is that the person had such a bad reputation before the libel, that
no further damage could possibly have been caused by the making of the statement.
Statute of limitations. Most jurisdictions require that a lawsuit be brought within a limited period
of time. If the alleged libel occurs in a mass media publication such as a newspaper or the
Internet, the statute of limitations begins to run at the time of publication, not when the plaintiff
first learns of the communication.
No Third-party communication: If an employer were to bring an employee into a sound-proof,
isolated room, and accuse him of embezzling company money, the employee would have no
defamation recourse, since no one other than the would-be plaintiff and would-be defendant
heard the false statement.
No actual injury: If there is third-party communication, but the third-party hearing the
defamatory statement does not believe the statement, or does not care, then there is no injury,
and therefore, no recourse.
In addition to the above, the defendant may claim that the allegedly defamatory statement is not
actually capable of being defamatoryan insulting statement that does not actually harm
someone's reputation is prima facie not libelous. Also, the public figure doctrine, also called the
absence of malice rule, may be used as a defence.