Dr.

Ram Manohar Lohiya National Law

Law of Torts

Final draft

Topic:Essential and Defences To The Tort of Defamation

Under supervision of: Submitted by:

Mr. R.K. Yadav Vaibhav Verma

Asst.Proff. Section-B

Dr.RMLNLU Roll.No. 181

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 Acknowledgement
This project venture has been made possible due to the generous co-operation of various
persons. To list them all is not possible, even to pay them in words is beyond the domain of
my lexicon. I would like to express my sincere thanks and deep gratitude to Mr.R.K.
Yadav(Asst. Proff.), without whose thorough and insightful guidance this project work would
not have been a success.

I express my sincere thanks to the library staff of RMLNLU and my friends for their co-
operation in my endeavour.

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 Table of content

1. Introduction
2. Essentials of defamation
 The statement must be defamatory
 The statement must refer to the plaintiff
 The statement must be published
3. Defence to the tort of defamation
 Justification
 Fair comment
 Privilege
4. List of cases
5. Bibliography

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 Introduction
The right of reputation of a person is an asset of a person just as any other property and any
injury to it is as much actionable as an injury to a man’s property tangible or man, during his
life time to the unimpaired possession of his reputation and good name is recognised by law
he who directly communicates to the mind of other matter untrue and likely in the natural
course of things substantially to disparage the reputation of a third person is, on the fact of it,
guilty of legal wrong for which the remedy lies in an action of defamation.

It is a jus in rem a right absolute and good against the entire world. A man’s reputation is his
property and if valuable than other property.

Winfield’s definition – “defamation is the publication of a statement which tends to lower a

person in estimation of right-thinking members of society, generally , or which tends to
make then shun or avoid that person.

In S.N.M. Abdi v P.K. Mahanta (AIR 2002 Gauh. 75) it was held that in order to defamatory
a publication must tend to lower the plaintiff in the opinion of men whose standard of opinion
the court can properly recognize or tend to induce them to entertain a ill-opinion of him.

Defamation is of two kinds:-

1 Libel: a libel is the name given to defamatory statement or representation in writing or

otherwise recorded. e.g. by printing typing ,lithography ,picture ,photography ,cinema
,films ,caricature ,statute ,effigy model or other physical symbol like fixing up
gallows in front of a person’s house. A libel is a publication of false and defamatory
statement tending to injure the reputation of another person without lawful
justification or excuse.
2 Slander: a slander is a false and defamatory verbal statement tending to injure the
reputation of another. It is clear that a written or printed defamation is libel and
spoken defamations slander. Or in other words, libel is addressed to the eye and
slander is a defamation addressed to the ear. Libel is permanent while slander is
transitory.
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 Illustration
A advertises that his goods are better than those of his rival trader B. This statement is false
and malicious and causes loss to B in his business. B is entitled to damages from A for
slander of his goods by A.

In Youssoupoff v M.G.M. Pictures Ltd (1934) 50 T.L.R. 581, it was held that not only the
photographic part of it is considered to be a libel but also the speech synchronised with it is
also a libel.

In England Section 1 Defamation Act., 1952 declares that broadcasting of words by means of
wireless telegraph shall be treated as publication in permanent forms hence a libel.

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 ESSENTIALS OF DEFAMATION
The following essentials must be proved by the plaintiff in a case of defamation.

1. THE STATEMENT MUST BE DEFAMATORY

The words must be defamatory i.e. the words must tend to lower the plaintiff’s reputation in
the estimation of right-minded persons, or must tend to cause him to be shunned or avoided.
So, any words will be deemed to be defamatory which

(a) Expose the plaintiff to hatred, contempt, ridicule, obloquy or

(b) Tend to injure him in his profession or trade or
(c) Cause him to be shunned or avoided by his neighbours.

In S.N.M. Abdi v P.K. Mahanta (AIR 2002 Gauh. 75) it was held that that in order to
defamatory a publication must tend to lower the plaintiff in the opinion of men whose
standard of opinion the court can properly recognize or tend to induce them to entertain a ill-
opinion of him. However, the plaintiff need not show a tendency of community e all of his
associates, but is sufficient to establish that the publication tends to lower him in the
estimation of the substantial, respectable group.

The defamatory statement may be malicious or negligent. Where a proprietor of a newspaper

published erroneously, which he believed to be true, that the plaintiff has given birth to twins
although she was married only a month ago. He was held liable [ Morrision v Ritchie and Co,
(1902) 4 P.465 ]

Sometimes it may be possible to have several interpretation of a statement particularly in

cases involving innuendoes. The courts in such cases reject those meaning which can emerge
only as the product of some strained or forced or utterly unreasonable interpretation.

2. THE STATEMENT MUST REFER TO THE PLAINTIFF

It is sufficient if the plaintiff is described by the initial letters of his name, or even by a
fictitious name provided he can satisfy the court that the words referred to him. It is material
whether the defendant intended to refer to the plaintiff or he knew the plaintiff’s existence, it
is sufficient if the statement might be understood by those who knew the plaintiff to refer to
him –Le Faric v. Malcolmson (1848) 1 H.L.C. 537, 668. The reason is that a man publishing

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a libel does so at his own risk. A person charged with libel cannot defend himself by showing
that he intended in his own breast not to depend upon the intention of the defamer, but on the
fact of defamation. It is also not necessary that the entire world must know that it refers to the
plaintiff. It was sufficient if the person who knew the plaintiff understood it to refer to the
plaintiff – Bourke v Warren, (1825) 2 C.P. 307.309.

Intention or motive immaterial – Liability for libel does not depend on the intension of
defamer but on the facts of defamation this will become evident from the following cases:

(a) E.HULTON & Co. v. Jones.1919 A.C. 20- the appellants, In their newspaper,
published an article in which one.’’Artemus Jones” was accused of living with a
mistress in France. The appellants were ignorant of the existence of any person who
bore the name. Unfortunately the name of an English barrister and journalist and those
who know him supposed the article to refer to him, held by the House of lords, that
the appellants were liable not withstanding the absence of any intention to defame the
plaintiff
(b) Cassidy v Daily mirror Newspaper, (1929) 2 K.B. 331
(c) Newstead v London express etc. (1940) 2 K.B. 377- A newspaper published an
account of trial for bigamy and referred to the prisoner as “Hertold Newstead, thirty
year old cumber well man.” The account was not true as regards the plaintiff. In an
action by the plaintiff against the proprietor of newspaper it was held that the fact that
were true of another person did not afford a defence to the defendants

3. THE STATEMNT MUST BE PUBLISHED

Publication means making known the matter to some person other than the plaintiff

According to the Lord Haslbury, “A defamatory statement is a statement is a statement

which, if published of and concerning a person is calculated to lower him in the estimation of
right thinking men or causes him to be shunned or avoided or to expose him to hatred,
contempt or ridicule or convey to an imputation on him, disparaging or injurious to him in his
office, profession, trade or business. It follows, therefore that everything printed or written,
which reflected on the character of another and published without lawful justification is
defamation. Thus the publication is an essential ingredient in this case.

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The following must be to third person that is to any person other than defamer and the
defamed.

(a)The publication must be to the third person other than defamer and the defamed. The
uttering of a libel by a husband to his wife is no publication.

Exception: sending a defamatory letter to wife about her husband or to a husband

about her wife is sufficient publication. The husband and wife in such cases are
regarded as distinct and different persons for such purpose- Jones v Williams (1885) 1
T.L.R. 572

(b) A publication is not sufficient unless it is made to a person, who understood the
defamatory significance of the statement; who also understood that it referred to the plaintiff

(c) Publication is presumed in certain cases – in all such cases the document is so put in the
way of being read or understood by someone, that it probable that he actually read and
understood it.

(d) Unintentional publication- publication need not be intentional, for it is sufficient that it is
due to the negligence of the defendant.

(e) repletion- every repetition of defamatory words is a new publication and distinct cause of
an action

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 DEFENCES TO THE TORT OF
DEFAMATION
The following defences are available in action of defamation:-

1. JUSTIFICATION OR TRUTH

The truth of defamatory words is a complete defence to an action for libel or slander [Parkins
v Scott (1892) 1 H.C. 15]. It is not the law that it has any special relish for the indiscriminate
truth to other people, but defamation is an injury to a man’s reputation and if people think the
worse of him when they hear the truth about him that merely shows that his reputation has
been reduced to its proper level. At the same time justification is a dangerous plea if it is the
only one which the defendant decides to adopt, for f he fails in it, he likely to regard the
conduct as wanton, calling for heavier damages. [Associated Leisure Ltd v Associated
Newspapers Ltd. (1970) 3 W.L.R. 101]

For the defence of justification it is not essential to prove that the alleged defamatory
statement is literally true, it is sufficient if it is true in substance. This plea has been accepted
as a defence because “the law will not permit a man to recover damages in respect of an
injury to a character which he does not or ought not possess’’ (Ahsan Ali v Kazsyed, A.I.R.
1956 Nag.146 )

Where the defendant has merely reproduced defamatory statement it is not enough to prove
that he has repeated with complete accuracy what was reported to him. He must go further
and prove that the statement itself is true. If I say “Smith told me that brown swindled his
creditors”, I can justify this only by proof that Brown did swindle his creditors. It is idle to
show that Smith in fact gave me the information. “Truth” (N.Z.) Ltd v Holloway,(1960) 1
W.L . 997.

If words are held to be capable of innuendo put upon them by the plaintiff, the defendant
must, if he wishes to justify, prove the truth of the meaning raised by the innuendo just as
much as if the word were plain in their meaning. If you describe a man as “a felon editor”
you don’t justify this by showing that he served a sentence on a conviction for felony, for as
the sentence expired he is no longer a felon. But, “any one, who knows that a man has been

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convicted of larceny at a criminal trial before a court of competent jurisdiction, is entitled to
say without being sued for slander or libel that, that man has, In fact been convicted.”

The defendant may justify part of the statement if it is severable from the rest without
embarrassing the plaintiff in his pleading. As to the rest, he may plead privilege if that plea is
applicable, or he may leave it justified with, or without an apology.

2. FAIR COMMENT

A fair and bona fide comment on a matter of public interest is no libel. The legitimate
criticisms no tort, should loss ensure to the plaintiff. It would be damnum sine injuria
(damage without injury) Marcele v Carson (1888) 20 B.D. 275. Honest criticism ought to be ,
and is recognised in any civilised system of law as indispensible to the efficient working to
public institution or office , and as salutary for private person who makes themselves or their
work the object of public interest.

This defence implies that though the comments may be defamatory, they are not actionable.
The onus is on the plaintiff to show that the statement can reasonably be understood to be
defamatory to him, and then it is the responsibility of the defendant to establish it to be a fair
comment.

The requisites of fair comment are:-

i. the matter commented on must be in public interest : a fair and bona fide comment on
matters of public interest is not defamation. Moral character, however, is never open to
comment. It is only the conduct of public man which may be commented upon. Any author
who publishes a book, any artist who exhibits a picture, any disconnected person airs his
grievances in public, invites criticism and are upon to fair comment.

It is for the judges to decide whether the matter is, or is not, of public interest.

Some of the important matters of public interest are:

1. Affairs of state, public act of minsters and officers of the state.

2. The administration of justice.
3. Public institution and local authorities.
4. Theatres, concerts and other public entertainments.
5. Books, pictures and works of art.

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 6. Ecclesiastical matters.
7. Other appeals to the public, etc.

ii. It must be a expression of opinion and not an assertion of fact : To say that “A is a
disgrace to human nature” is an allegation of fact but if the words were: “ A murdered his
father and is therefore a disgrace to human nature” the latter words are plainly a comment on
the former. Hence a critic takes plains to keep hi facts and the comments upon them
severably from one another. A comment in order to be fair must be based upon the true fact.
It is not possible, first to invent a fact then to comment upon. The fact must exist.

iii. The comment must be fair: In Turner v. M.G. M. Pictures Ltd,(1950 ) 1 all E.R. 449, Lord
Parker said that the “question is not whether the comments justified in the eyes of the judge
or jury, but whether it is the honest expression of the commentator’s real view and not mere
abuse or invented under the guise of criticisms. Mere violence in criticism does not make it
unfair.”

iv. The comment must not be malicious : Malice may destroy the defence of fair comment.
The comment must be bona fide and must not be a cloak for malice. Legitimate criticism is
not tort. Mere exaggeration would not make the comment unfair. Liberty of criticism must be
allowed or we would neither have purity of taste nor morals.

3. PRIVILEGE

The most important defence to an action for defamation is that of ‘privilege’. Privilege means
that a person stands in such a relation to the fact of the cases that he is justified in saying of
writing what would be slanderous or libellous for anyone else. The law recognises that there
are some occasions on which there ought to be no liability for defamation because the interest
of the public, or (exceptionally) those of the individuals who originate the defamation,
outweigh the plaintiff’s right to his reputation.

Privilege may be either absolute or qualified. absolute privilege covers cases in which
complete freedom of communication is regarded as of paramount importance and action for
defamation cannot be entertained at all however outrage us the statement made about him and
however malicious the motive of the maker of it. Qualified privilege, on the other hand,
though it also protect the maker of an untrue defamatory statement, does so only if the

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statement is made honestly and without malice. If the plaintiff can prove ‘express malice’ the
privileged is displaced and he may recover damages. Adam v Ware, (1917) A.C. 309.

ABSOLUTE PRIVILEGE includes

 Statement made in parliament : the bill right, 1988, provided that ‘the freedom of
debates or proceeding in the parliament ought not to be impeached or questioned in
any court or place out of parliament’. It has just been held in Church of Scientology
of California v Johnson Smith, (1972) 4 All E.R. 378, that has been done or said in
parliament could not be examined out of something done outside parliament.
no action lies for the statement made by member of either House of Parliament in
their places in the House, however, injurious they may be to the interest of third
person- Exparte Wason, (1869) L.R. 4 Q.B. 573,576
 Reports, papers, votes and proceeding ordered to be published by either House of
Parliament: In England the Parliament Paper Act, 1840, provides for it in India this
defence is justified by Articles 105 and 194 of the Constitution of India.
 Judicial proceeding: Whatever is stated in a judicial proceeding in absolutely
privileged provided it has some reference to the enquiry in hand. It does not matter
how false or malicious may be. It does not matter who states it- the Judge, the jury the
parties, the advocates, or the witness.
No action lies for act done or word spoken by a Judge in the exercise of his judicial
office although his motive is malicious and the acts or words are not done or spoken
in the honest exercise of his office. If it were otherwise, the administration of justice
would lack one of its essentials- the independence of Judges. This principle has been
followed in India, and is depicted in Jagannath Prasad v Rafat Ali Khan, 1934
A.L.J.R. 1173.
Under the common law of England parties, advocates and witnesses have an absolute
privilege. The leading case on the point in Munster v Lamb. In India however,
the privilege is absolute in civil cases, but only qualified in criminal cases because
only a qualified privilege is allowed in the Indian Penal Code. In England, however
to an advocate while conducting his cases whether civil, criminal admiralty or
otherwise.
The witness’s protection is so obviously based on the necessity of giving fearless
Revelation of what he knows that it calls for no elaboration of the cases in which it

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 has been established. [Jagat Mohan Sah Dev v Kalipada Ghosh, I.L.R. (1922)Pat.371]
 Communication between solicitor and client: any professional communication
between a solicitor and a client is privileged, but it is uncertain whether the privilege
is absolute or qualified. (Minter v Priest, 1930 A.C. 558, 578). The privilege is not
confined to the walls of a law court and indeed extends to communications which
have nothing to do with litigation, e.g. the drawing of a client’s will. One restriction is
that the communication must be professional one. The communication is privileged if
it consists of a professional communication passing for the purpose of getting or
giving professional advice.
 Communication made by one officer of state to another in the course of his official
duty: it is also an absolute privilege.
 Fair and accurate newspaper reports of judicial proceeding: it is doubtful whether the
privilege is absolute or qualified. The difficulty arises from the interpretation of
Section 3 of Law of Libel (Amendment) Act,1888, which provides that a fair and
accurate report in any newspaper of proceeding publicly heard before any court
exercising judicial inquiry shall, if published contemporaneously with such
proceeding be privileged, but that this shall not authorise the publication of any
blasphemous or indecent matter. [Farmer v Hyde, (1937) 1 K.B. 728.but some
authorities think that Section 2 created absolute privilege.

QUALIFIED PRIVILEGE includes

 Fair and accurate report of parliament proceeding as the advantage of publicity

outweighs any private injury resulting from publication : Goffin v Dunnelly,(1881) 6
B.E.307. A fair and accurate report of any proceeding or debate in either House of
Parliament or any Committee thereof is privileged even though it contain matters
defamatory of an individual. [Chata v Indra Nath Banerji,(1909) 35 Cal. 957]
 Fair and accurate report of judicial proceedings which the public may attend: this
privilege extends from the interior courts to higher ones and to proceeding exparte,
interlocutory or adjourned from time to time. Reporters, therefore, need not wait till
the final decision is rendered, but they must recollect that any comment as distinct
from fair and accurate reproduction, must be postponed until the decision is given,
otherwise they make themselves liable to the penalties or contempt of court or to an

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 injunction, for intermediate comment may prejudice the minds of the jury, in a jury
action and might conceivably influence the Judge
 Fair and accurate newspaper report of the proceeding of any public meeting: this
qualified privilege was created by the Law (Amendment) Act, 1888, which defines, a
public meeting, as one which is bona fide and lawful held for a lawful purpose and for
the furtherance or discussion of any matter of public concern, whether the admission
there to be general or restricted. The Act also requires the sub-matter of the report to
be of public concern and the publication of it is for the public concern.
 Statement in protection of oneself or of one’s self property : [Turner v M.G.M.
Pictures Ltd,(1950) All E.R. 449] The privilege do not course, sanction any wild or
reckless words used to meet an attack upon oneself for the privilege would they be
rebutted by malice . An example of defence of one’s property would be master’s
warning to servants not to associate with a former fellow servant whom he had
dismissed for dishonesty.
 Where A and B have a common interest in the statement made by A to B about the
plaintiff: the common interest may be pecuniary one such as communication made by
an insurance company to its policy- holders about an agent of the company , or it may
be professional such as the screening of a barrister by the Benches of his conduct in
court after he has been debarred or a complaint by the creditor of an officer to his
commanding officer alleging the unpunctuality of the officer in paying his debt.
 Statement made by A to B about C which A is under legal, moral or social duty to
communicate to B and which B has a corresponding interest in receiving or where A
has an interest to be protected and B is under a corresponding legal, moral or special
duty to protect that interest : [Buse v McCarthy, (1942) 1 K.B. 156] . A very common
example is that of a former employer giving the character of servant to a prospective
employer. The qualified privilege existing between A and B covers incidents of
communication in accordance with the reasonable and usual course of business.
Where the defendant has a duty or interest which entitles him to speak and the person
in authority to whom he so speaks is also under a corresponding duty or interest in
that connection, the occasion is a privileged one and though the complaint made may
be per se defamatory. [ Ramdas v Raja,(1959) K.L.W. 247]. The determination of
whether a duty to communicate the matter does not exist is a question for the Judge.

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 List of cases
1. S.N.M. Abdi v P.K. Mahanta ,AIR 2002 Gauh. 75
2. Youssoupoff v M.G.M. Pictures Ltd (1934) 50 T.L.R. 581
3. Morrision v Ritchie and Co, (1902) 4 P.465
4. Le Faric v. Malcolmson (1848) 1 H.L.C. 537, 668
5. Bourke v Warren, (1825) 2 C.P. 307.309
6. E.HULTON & Co. v. Jones.1919 A.C. 20
7. Cassidy v Daily mirror Newspaper, (1929) 2 K.B. 331
8. Newstead v London express etc. (1940) 2 K.B. 377
9. Jones v Williams (1885) 1 T.L.R. 572
10. Parkins v Scott (1892) 1 H.C. 15
11. Associated Leisure Ltd v Associated Newspapers Ltd. (1970) 3 W.L.R. 101
12. Ahsan Ali v Kazsyed, A.I.R. 1956 Nag.146
13. (N.Z.) Ltd v Holloway, (1960) 1 W.L. 997
14. Marcele v Carson (1888) 20 B.D. 275
15. Turner v. M.G. M. Pictures Ltd,(1950 ) 1 all E.R. 449
16. Adam v Ware, (1917) A.C. 309
17. Church of Scientology of California v Johnson Smith, (1972) 4 All E.R. 378
18. Exparte Wason, (1869) L.R. 4 Q.B. 573,576
19. Jagannath Prasad v Rafat Ali Khan, 1934 A.L.J.R. 1173
20. Jagat Mohan Sah Dev v Kalipada Ghosh, I.L.R. (1922)Pat.371
21. (Minter v Priest, 1930 A.C. 558, 578
22. Farmer v Hyde, (1937) 1 K.B. 728
23. Goffin v Dunnelly,(1881) 6 B.E.307
24. Chata v Indra Nath Banerji,(1909) 35 Cal. 957
25. Turner v M.G.M. Pictures Ltd,(1950) All E.R. 449
26. Buse v McCarthy, (1942) 1 K.B. 156
27. Ramdas v Raja,(1959) K.L.W. 247
28.

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 Bibliography
1. Oxford Tort law text and material,
Mark Lunney and Ken Oliphan, (1st edn 2000),
Oxford University Press.

2. Winfeild and Jolowicz TORT,

W.V.H. Rogers (17th edn 2006),
Sweet and Maxwell publications.

3. Ramaswamy Iyer’s, The Law Of Torts,

A.Lakshminath and M.Sridhar, (10th edn,2007),
Butterworths publications.

4. Internet sources-

www.casebriefs.com

www.lawnix.com

www.lawteacher.net

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