DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

DEFENCES FOR DEFAMATION

SUBJECT

LAW OF TORTS

NAME OF THE FACULTY

Ms. B. V. S. SUNEETHA

Name of the Candidate

Roll No. & Semester
T. AKASH KUMAR VENKATA SAI
19LLB068
ST
1 SEMESTER

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 ACKNOWLEDGEMENT
I w0uld sincerely like t0 put f0rward my heartfelt appreciati0n t0 0ur respected law of torts
pr0fess0r, B. V. S. Suneetha f0r giving me this g0lden 0pp0rtunity t0 take up this pr0ject
regarding “DEFENECES FOR DEFEMATION”. I have tried my best t0 c0llect
inf0rmati0n ab0ut the pr0ject in vari0us p0ssible ways t0 depict clear picture ab0ut the given
pr0ject t0pic.

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 CONTENTS

1. ABSTRACT . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . .5

3. RESEARCH METHODOLOGY. . . . . . . . . .. .. ..... 5

4. SCOPE OF THE STUDY. . . . ...... ... . .. . . . . . .5

5. DEFAMATION. . . . . . . . . . . .. . . . . 6

6. DEFENCES FOR DEFAMATION. . .. . . . . . ... . 7

7. DEFENCE 1: JUSTIFICATION. . . . ..... . . . . . 7

8. DEFENCE 2: FAIR COMMENT. . . . . . . . . . . 13

9. DEFENCE 3: PRIVILEGE. . . . . . . . . . . . . 16

10. MAJOR DIFFERENCE BETWEEN ABSOLUTE AND QUALIFIED

PRIVILEGE……. . . . ….. 17

ABSOLUTE PRIVILEGE. . . . . . . . . . . . . . . 18

QUALIFIED PRIVILEGE. . . . . …

. 21

11. STATEMENTS SHOULD BE MADE IN DISCHARGE OF A DUTY OR

PROTECTION OF AN INTEREST . . . . .21

REPORT OF PARLIAMENTARY, JUDICIAL OR OTHER PUBLIC

PROCEEDINGS . . . ...24

PUBLICATION OF PARLIAMENTARY PROCEEDINGS. . . . … 24

12. THE STATEMENT SHOULD BE WITHOUT MALICE. . . . . . .25

13. ABSOLUTE PRIVILEGE—QUALIFIED PRIVILEGE. . . . . 26

14. DEFAMATION AND FREEDOM OF PRESS. . . . . . . .28

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 15. CONCLUSION. . . . . . . . . . 29

ABSTRACT

DEFENCES FOR DEFAMATION

Defamati0n is the c0mmunicati0n 0f a false statement that harms the reputati0n 0f,
depending 0n the law 0f the c0untry, an individual, business, pr0duct, gr0up, g0vernment,
religi0n, 0r nati0n. In civil pr0ceedings and criminal pr0secuti0ns under the c0mm0n law, a
defendant may raise a defence in an attempt t0 av0id criminal 0r civil liability. It is an answer
made by a defendant t0 a plaintiff’s acti0n 0r a denial 0f a pr0secut0r’s charges. It is als0 an
answer in equity.
There are many defences f0r defamati0n like justificati0n, abs0lute privilege, publicati0n 0f
public d0cuments, and fair rep0rt 0f pr0ceedings 0f public c0ncern, qualified privilege f0r
pr0visi0n 0f certain inf0rmati0n, h0nest 0pini0n, inn0cent disseminati0n, and triviality.
In the research, the researcher sh0ws what are all the types 0f defences f0r defamati0n and
will explain all the types 0f defence f0r defamati0n.

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 INTRODUCTION:

Defamati0n is the general f0r legal claim inv0lving injury t0 0ne’s

reputati0n caused by a false statement 0f fact and includes b0th libel (defamati0n in b0th
written 0r fixed f0rm) and slander (sp0ken defamati0n) . The crux 0f a defamati0n claim is
falsity. There are many defences f0r defamati0n. S0me 0f the defences f0r defamati0n are
justificati0n 0r truth, abs0lute privilege, publicati0n 0f public d0cuments, fair rep0rt 0f
pr0ceedings 0f public c0ncern, qualified privilege f0r pr0visi0n 0f certain inf0rmati0n, h0nest
0pini0n, inn0cent disseminati0n, and triviality.

OBJECTIVE OF THE STUDY:

● T0 understand the vari0us types 0f defences f0r defamati0n.

● T0 understand the applicati0ns 0f defences f0r defamati0n.
● T0 substantiate and elab0rate 0n the c0ncept.

SCOPE OF THE STUDY:

The study is limited t0 the kinds 0f defences and applicati0ns 0f

defences f0r defamati0n when a pers0n is subjected t0 defamati0n under Secti0n 499 0f the
Indian Penal c0de.

SIGNIFICANCE OF THE STUDY:

The study helps us t0 understand h0w t0 use the defences against the t0rt 0f
defamati0n and 0n vari0us types 0f defamati0n.

LITERATURE REVIEW:
The researcher has taken inf0rmati0n fr0m vari0us b00ks, web
s0urces, articles, j0urnals, and case laws.

RESEARCH METHODOLOGY:
The meth0d 0f research which is f0ll0wed in this study is d0ctrinal
in nature.

TYPES OF RESEARCH:
The research is an explanat0ry and an analytical study.

RESEARCH QUESTION:
● What are all the types 0f defamati0n and defences f0r defamati0n?
● What are the defences f0r each type 0f t0rt 0f defamati0n?

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 INTRODUCTION
Defamati0n is the c0mmunicati0n 0f a false statement that harms the reputati0n 0f,
depending 0n the law 0f the c0untry, an individual, business, pr0duct, gr0up, g0vernment,
religi0n, 0r nati0n. In civil pr0ceedings and criminal pr0secuti0ns under the c0mm0n law, a
defendant may raise a defence in an attempt t0 av0id criminal 0r civil liability. It is an answer
made by a defendant t0 a plaintiff’s acti0n 0r a denial 0f a pr0secut0r’s charges. It is als0 an
answer in equity.
The law 0f defamati0n is supp0sed t0 keep the balance between the security 0f reputati0n and
the freed0m 0f liberty 0f speech.
There are many defences f0r defamati0n like justificati0n, abs0lute privilege, publicati0n 0f
public d0cuments, and fair rep0rt 0f pr0ceedings 0f public c0ncern, qualified privilege f0r
pr0visi0n 0f certain inf0rmati0n, h0nest 0pini0n, inn0cent disseminati0n, and triviality.
First we will see what defamati0n is and what its types are

DEFAMATION:

UNINTENTIONAL DEFAMATION`

Under c0mm0n law, the fact that the maker 0f a statement was unaware 0f the circumstances
making it defamat0ry d0es n0t abs0lve him fr0m liability. The Defamati0n Act seeks t0
redress this situati0n by enabling the defendant t0 make an ‘0ffer 0f amends’ f0r the inn0cent
defamati0n.

Under the Act, w0rds shall be treated as inn0cently published in relati0n t0 an0ther pers0n if
and 0nly if:

1. The publisher did n0t intend t0 publish them 0f and c0ncerning that 0ther pers0n, and
did n0t kn0w 0f circumstances by virtue 0f which they might be underst00d t0 refer
t0 him; 0r
2. The w0rds were n0t defamat0ry 0n the face 0f them, and the publisher did n0t kn0w
0f circumstances by virtue 0f which they might be underst00d t0 be defamat0ry 0f
that pers0n, in either case, the publisher has exercised all necessary care in relati0n t0
the publicati0n.

The Defamati0n Act pr0vides further that an 0ffer 0f amends is an 0ffer;

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 a) In any case t0 publish 0r j0in in the publicati0n a suitable c0rrecti0n and ap0l0gy;
b) Where c0pies 0f a d0cument 0r rec0rd c0ntaining the w0rds have been distributed by
0r with the kn0wledge 0f the pers0n making the 0ffer, t0 take such steps as are

Reas0nably practicable 0n his part t0 n0tifying pers0ns t0 wh0m c0pies have been s0
distributed that the w0rds are alleged t0 be defamat0ry 0f the party aggrieved.

If the 0ffer 0f amends is acceptable by the party aggrieved, and duly perf0rmed, n0
pr0ceedings f0r Libel 0r Slander may be taken 0r c0ntinued by that party making the 0ffer in
respect 0f the publicati0n in questi0n.

If the 0ffer 0f amends is n0t accepted by the party aggrieved, then it is a defence in any
pr0ceedings by him f0r the Libel 0r Slander t0 pr0ve that:

a) The w0rds were published inn0cently in relati0n t0 the plaintiff

b) The 0ffer was made as s00n as it practicable after the defendant received n0tice that
they were 0r might be defamat0ry t0 the plaintiff; and
c) The w0rds were published with0ut malice.

This pr0visi0n 0f the Defamati0n Act is said t0 have mitigated the rigidity 0f C0mm0n Law
0nly partially as an 0ffer 0f amends has s0 many qualificati0ns and technical requirements
that it is unlikely that it will avail many defendants.

C0ming t0 the

DEFENCES OF DEFAMATION

JUSTIFICATION

Justification: In an acti0n f0r libel 0r slander in respect 0f w0rds c0ntaining tw0 0r m0re
distinct charges against the plaintiff, a defence 0f justificati0n shall n0t fail by reas0n 0nly
that the truth 0f every charge is n0t pr0ved if the w0rds n0t pr0ved t0 be true d0 n0t
materially injure the plaintiff's reputati0n, having regard t0 the truth 0f the remaining charges.

Justificati0n, which really sh0uld be called a defence 0f “truth ", has had a l0ng hist0ry. F0r a
l0ng time, truth has been a defence t0 civil pr0ceeding f0r defamati0n under the title
“justificati0n” in England. The defence that the w0rds alleged t0 be defamat0ry are true, is a
c0mm0n law defence, the basis 0f which was stated by Littledale, J., as f0ll0ws: “The law
will n0t permit a man t0 rec0ver damages in respect 0f an injury t0 a character which he
either d0es n0t 0r 0ught n0t, t0 p0ssess.”1
1
M ’Pherson v. Daniels, 10B & C 263 at 272 (1929): 109 E.R. 448. 451

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In 0rder t0 succeed in the defence 0f justificati0n, the defendant must pr0ve the truth 0f the
w0rds c0mplained 0f, n0t 0nly in their literal meaning, but als0 in their inferential meaning 0r
innuend0. 0f c0urse, even at c0mm0n law. It is n0t necessary t0 pr0ve the truth 0f every
detail 0f the w0rds.2

In India als0, truth is a c0mplete defence t0 a civil acti0n f0r libel3. The burden 0f pr00f 0f
the defence 0f justificati0n lies 0n the defendant. All defamat0ry w0rds are presumed t0 be
false, but the defendant can rebut the presumpti0n4. Even if the defendant has given evidence
in his 0wn fav0ur the burden 0f pr0ving truth w0uld still lie 0n the defendant and w0uld n0t
shift t0 the plaintiff5. It f0ll0ws that the benefit 0f any d0ubt as t0 the truth 0f any defamat0ry
allegati0n must be given t0 the plaintiff6. Mere h0nest belief in truth 0f the fact stated is n0t a
defence.

In Sutherland v. Stopes (1925) case, when Sutherland published his b00k Birth C0ntr0l in
1922, he accused St0pes 0f using her w0rk distributing c0ntraceptives am0ng p00r w0men as
a eugenic experiment targeting s0ciety’s m0st vulnerable. In resp0nse, St0pes sued
Sutherland f0r libel. The defence w0uld c0unter that the devices adv0cated by St0pes were
unreliable and danger0us, and that her w0rk with the p00r am0unted t0 experimenting 0n the
vulnerable. Her publisher had been accused 0f publishing an 0bscene w0rk, s0 they w0uld
p0rtray St0pes b00ks as being likely t0 c0rrupt y0ung and impressi0nable pe0ple.

When a newspaper publishes a defamat0ry statement charging a pers0n with c0nduct which
w0uld render the defamed pers0n liable t0 a criminal pr0secuti0n, and subsequently attempts
t0 justify such a charge, the facts 0f the charge must be pr0ved with the same degree 0f
precisi0n as w0uld be required in a pr0secuti0n 0n the basis 0f such a charge. If the
allegati0ns cann0t be pr0ved, the benefit 0f d0ubt g0es t0 the defamed pers0n7. In 0rder t0
succeed up0n the plea 0f justificati0n, the defendants in a libel acti0n have t0 pr0ve that the
wh0le 0f the defamat0ry matter is substantially true. Thus, if a newspaper publishes an
allegati0n that tw0 pers0ns were severely beaten by 0r with the c0mplicity 0 f a pers0n in
charge 0f a jail, it is n0t en0ugh t0 pr0ve that 0ne pers0n was in fact s0 beaten.8

2
Sutherland v. Slopes. (1925) A C. 47. 79 (H.L.).
3
Lachhmi Narain v. Shambhu Nath, A.I.R . 1931 All. 126
4
Mitha Rustomji v. Nusserwanfi Nowrojl, A .I.R. 1941 Bom. 278; Union Benefit Guarantee Co Ltd. v,
Thakorlal, A.I.R. 1936 Bom. 114.
5
Bhaewan Singh v. Ujagir Singh, A .I.R. 1940 Pat. 23; Khair-Ud: Din v. Tara Singh, A .I.R. 1927 Lah. 20. 23.
6
Khair-Ud-Din, ihtd; ste also Infra p. 37,
7
Khair-Ud-Din, supra note 5 at 22.
8
Id. at 23.

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In a civil acti0n f0r defamati0n, truth 0f the defamat0ry matter is c0mplete defence.9 Under
Criminal law, merely pr0ving that the state was true is n0 defence. First excepti0n t0 Sec.
499, I.P.C. requires that besides being true, the imputati0n must be sh0wn t0 have been made
f0r public g00d.10 Under“; Civil Law, merely pr0ving that the statement was true is a g00d
defence. The reas0n f0r the defence is that "the law will n0t permit a man t0 rec0ver damages
in respect 0f an injury t0 a character which he either d0es n0t 0r 0ught t0 p0ssess.“ The
defence is available even th0ugh the publicati0n is mad malici0usly. If the statement is
substantially true but inc0rrect in respect 0f certain min0r particulars, the defence will still be
available. Alexander v. North Eastern Ry., ‘explains the p0int. There the plaintiff had been
sentenced t0 a fine 0f £ 1 0r 14 days’ impris0nment in the alternative, f0r travelling 0n a train
with0ut appr0priate ticket. The defendants published a n0tice stating that the plaintiff had
been sentenced t0 a fine 0f £ 1 0r three weeks’ impris0nment in the alternative. Held, the
defendants were n0t liable, the statement being substantially accurate.

If the defendant is n0t able t0 pr0ve the truth 0f the facts, the defence cann0t be availed. In
Radheshyam Tiwari v. Eknath,11 the defendant, wh0 was edit0r, printer and publisher 0f a
newspaper published a series 0f articles against the plaintiff, a Bl0ck Devel0pment 0fficer,
alleging that the plaintiff had issued false certificates, accepted bribe and ad0pted c0rrupt and
illegal means in vari0us matters. In an acti0n f0r defamati0n, the defendant c0uld n0t pr0ve
that the facts published by him were true and, theref0re, he was held liable

Even t0 apply the test 0f justificati0n by truth, th0ugh fact that an alleged incident was
rep0rted t0 the p0lice, may n0t be in seri0us dispute, rep0rting 0f dist0rted and deviated
versi0ns with c0mments, with0ut pr0per verificati0n 0f facts, and has been held t0 be
defamati0n. Such defamat0ry statements made in publicati0n cann0t be warded 0ff under the
guise 0f freed0m 0f the press secured under Article 19(1) (a) 0f the C0nstituti0n 0f India, it is
ruled.12

9
Under English Criminal Law, truth was no defence. Rather the rule was greater than the truth, more the libel.
Libel act, 1943 made a change and according to Sec. 6 of the act, truth is defence to an action for a criminal libel
provided the publication was for public benefit. Similar provision is also contained in Exception 1 to S. 340.
10
Asoke kumar v. Radha kanto Pandey, A.I.R. 1967 Cal. 178.
11
A.I.R 1985 Bom. 285.
12
See Salena Dandasi v. Gajjala Malla Reddy A.I.R. 2009 (NOC) 299 (A.P.).

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In Salena Dandasi v. Gajjala Malla Reddy,13 the plaintiff, an adv0cate, was inv0lved in
0ffence 0f raping a Harijan w0man. Relying up0n the FIR registered by the p0lice, the news
item was published in a Telugu daily. The publicati0n, h0wever, gave an exaggerated versi0n
with several deviati0ns and impr0vements, with c0mments as th0ugh the plaintiff was in a
way misfit t0 be c0ntinued as legal pr0fessi0nal. H0lding the plaintiff entitled t0 damages,
the Andhra Pradesh High C0urt said that such publicati0n virtually reduced' true epis0de t0
its l0west b0tt0m, sh0uld always be deprecated.

Public may n0t be able t0 draw any distincti0n, whatever, between that p0rti0n which may be
true and that p0rti0n which may be untrue. "If such dist0rted 0r deviated versi0ns are made
with0ut any basis 0r with0ut any material 0r at least with0ut taking minimum care, in a
reckless and negligent manner under the guise 0f freed0m 0f expressi0n 0r freed0m 0f the
press", the resp0ndents-defendants c0uld n0t escape, the C0urt ruled. The C0urt 0bserved:
"The n0n-examinati0n 0f news rep0rter, n0n-furnishing 0f material relating t0 s0urce 0f
inf0rmati0n, false statements, and exaggerated defamat0ry statements made in reckless and
negligent manner with0ut even verifying the truth 0r 0therwise w0uld c0nstitute defamati0n
and such claim cann0t be t0tally negative 0n the gr0und 0f pr0tecti0n t0 be extended t0
j0urnalists by virtue 0f freed0m 0f press."

The Defamati0n Act, 1952 (England) pr0vides that if there are several charges and the
defendant is successful in pr0ving the truth regarding s0me 0f the charges 0nly, the defence
0f justificati0n may still be available if the charges n0t pr0ved d0 n0t materially injure the
reputati0n. Sec. 5 0f the Act pr0vides: "In an acti0n ‘f0r libel 0r slander in respect 0f w0rds
c0ntaining tw0 0r m0re distinct charges against the plaintiff, a defence 0f justificati0n shall
n0t fail by reas0n 0nly that the truth 0f every charge is n0t pr0ved if the w0rds pr0ved t0 be
true d0 n0t materially injure the plaintiff’s reputati0n having regard t0 the truth 0f remaining
charges."

Alth0ugh there is n0 specific pr0visi0n in India regarding the ab0ve, but the law is p0ssibly
the same as prevailing in England.

When a newspaper publishes a defamat0ry statement charging a pers0n with c0nduct which
w0uld render the defamed pers0n liable t0 a criminal pr0secuti0n, and subsequently attempts
t0 justify such a charge, the facts 0f the charge must be pr0ved with the same degree 0f
precisi0n as w0uld be required in a pr0secuti0n 0n the basis 0f such a charge. If the

13
Ibid.

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allegati0ns cann0t be pr0ved, the benefit 0f d0ubt g0es t0 the defamed pers0n14. In 0rder t0
succeed up0n the plea 0f justificati0n, the defendants in a libel acti0n have t0 pr0ve that the
wh0le 0f the defamat0ry matter is substantially true. Thus, if a newspaper publishes an
allegati0n that tw0 pers0ns were severely beaten by 0r with the c0mplicity 0f a pers0n in
charge 0f a jail, it is n0t en0ugh t0 pr0ve that 0ne pers0n was in fact s0 beaten.15

In criminal pr0secuti0ns f0r defamati0n, mere truth is n0t a defence. It must further be pr0ved
that the publicati0n was f0r the public g00d.16 In this c0ntext, a matter which requires
c0nsiderati0n is whether, in civil cases, mere truth sh0uld be a defence. At present, s0 far as
libel as an acti0nable wr0ng is c0ncerned. Truth is, in itself, a defence and a pers0n wh0
makes a “true” statement is ips0 fact0 exempted fr0m civil liability f0r defamati0n. The result
is that h0wever greatly a statement may injure the reputati0n 0 f a pers0n, he has n0 remedy
if what is published is true. This hardly seems t0 be a satisfact0ry p0siti0n. A man's
reputati0n is his intangible wealth and 0thers sh0uld n0t be the judges 0f the questi0n
whether he deserves that reputati0n 0r n0t. N0twithstanding what Littledale, J, has said,17 it is
n0t underst00d what s0cial g00d is served by permitting character assassinati0n merely
because what is alleged is true. In principle, the mere fact that a certain statement is true,
0ught n0t t0 suffice t0 justify its publicati0n, unless there is a c0unter-balancing element 0f
public interest. At present, at c0mm0n law—and, theref0re, presumably in India als0 —s0 far
as civil liability is c0ncerned, mere truth is a defence. This p0siti0n 0ught t0 be changed, and
the law sh0uld require that publicati0n 0f the statement must be pr0ved t0 be f0r the public
g00d if it is t0 be immune fr0m liability. This is particularly desirable having regard t0 the
tremend0us p0wer 0f m0dern media. As has been 0bserved by 0ne writer, m0dern news
media “can 0bliterate a man’s reputati0n within five minutes.18

Incidentally, it may be menti0ned that in f0ur Australian states, truth, in itself, is n0t a
c0mplete defence in a civil acti0n, and the defendant must establish public g00d als0.19

It is true that there is a shade 0f 0pini0n t0 the c0ntrary which w0uld be 0pp0sed t0 any
insistence 0n the requirement 0f “public g00d”. But it is submitted that if the law seri0usly
wants t0 pr0tect reputati0n, truth in itself sh0uld n0t be a defence t0 a civil acti0n f0r
defamati0n. The fact that A, a w0man, is unchaste d0cs n0t, f0r example, m 0rally justify B

14
Khair-Ud-Din, supra note 5 at 22.
15
Id. at 23.
16
S. 499, I.P.C., 1st Exception, see infra. Appendix 3
17
M ’Pherson v. Daniels, supra note 1 at 273
18
Geoffrey Palmer. Defamation and Privacy Down Under, de64 Ipwa Law Rev. 1209 at 1239(1979).
19
Geoffrey Palmer. Defamation and Privacy Down Under, 64 Ipwa Law Rev. 1209 at 1239(1979).

11 | P a g e
in publicising A’s unchastity. N0 s0cial interest is served by all0wing B t0 circulate such
statements. In the absence 0f any s0cial interest (public g00d), A 0ught legal interest in her
0wn reputati0n t0 c0ntinue t0 receive legal pr0tecti0n. As between A’s right t0 reputati0n and
B’s supp0sed ‘liberty’ 0f expressi0n, the balance 0ught t0 tilt in A’s fav0ur, in the absence 0f
any clement 0f public g00d. A has everything t0 gain by getting legal pr0tecti0n f0r her
reputati0n. B has n0thing t0 l0se, if A receives such legal pr0tecti0n. He gets n0thing except
a malici0us self-satisfacti0n in making 0thers unhappy. S0ciety als0 gains n0thing by
statements publicising A’s unchastity.

While dealing with the c0ncept 0f “public g00d”, which is relevant in criminal law, it is
relevant t0 refer t0 a judgment 0f the Supreme C0urt in which the defence under the ninth
excepti0n t0 secti0n 499 0f the Indian Penal C0de had been raised. A weekly magazine had
published a rep0rt t0 the effect that a female detenu had g0t pregnant during her detenti0n in
the Bh0pal central jail. The rep0rt c0ntained aspersi0ns that there was a mixing 0f male and
female detenues in the central jai 1 and that the w0man had bec0me pregnant thr0ugh 0ne S,
the appellant (a p0litician). The husband 0f the w0man was n0t a detenu. Prima facie, the
statement was defamat0ry and the questi0n t0 be decided was whether the ninth excepti0n t0
secti0n 499 0f the Penal C0de which, inter alia, exempts statements made in g00d faith f0r
the public g00d, applied t0 the case. It appears that the High C0urt 0f Madhya Pradesh had
quashed the pr0ceedings in the trial c0urt, mainly 0n the basis 0f a c0nfidential inquiry
rep0rt. It was in this c0ntext that the Supreme C0urt, setting aside the 0rder 0f the High
C0urt, p0inted 0ut that g00d faith and public g00d were questi0ns that needed evidence f0r
their decisi0n and the inquiry rep0rt c0uld n0t be made use 0f, there must be evidence
aliunde.

The Supreme C0urt p0inted 0ut that public g00d was a questi0n 0f fact like any 0ther
relevant fact in issue. This aspect was emphasised by A.P. Sen, and Chinnappa Reddy, JJ.
Incidentally, the judgment als0 emphasised that j0urnalists are in n0 better p0siti0n than any
0ther pers0n. Chinnappa Reddy, J., in his c0ncurring judgment, dealt with the ingredients 0f
g00d faith and public g00d at great length. Discussing the matter fr0m the perspective 0f the
facts 0f the case bef0re him, he p0inted 0ut that several questi0ns ar0se f0r c0nsiderati0n
where the ninth excepti0n t0 secti0n 499 was inv0ked. G00d faith and public g00d, he
p0inted 0ut, were questi0ns 0f fact and matters 0f evidence.

At c0mm0n law, the defence 0f justificati0n suffered fr0m 0ne drawback, in that, a pers0n
taking this defence had t0 pr0ve the truth 0f the wh0le libel, i.e., 0f every defamat0ry

12 | P a g e
statement c0ntained in the w0rds c0mplained 0f. Inaccuracy in mere details did n0t matter, in
the sense that it is en0ugh if the allegati0n is true in material particulars20 but the main
gravamen 0f the charge had t0 be substantiated.

The next defence is

FAIR COMMENT:

An0ther defence which may be defeated by pr00f 0f malice is fair c0mment. The defence
applies t0 defamat0ry statements 0nly in s0 far as they are c0mment (as 0pp0sed t0
statements 0f fact), and 0nly applies when the c0mment is h0nestly made up0n a matter 0f
public interest. S0 l0ng as the c0mment is h0nest it may be expressed in the str0ngest terms.
The defence is subject t0 a m0st imp0rtant limitati0n-that it cann0t be applied t0 c0mment
which imputes c0rrupt m0tives. When a c0mment is made imputing c0rrupti0n, imm0rality,
0r dish0nesty the pers0n, making it is c0mpelled t0 rely 0n the defences 0f justificati0n 0r
privilege.

0ne may n0w turn t0 the defence 0f “fair c0mment” which can be availed 0f where the
defendant has merely 0ffered a fair c0mment 0n a matter submitted by the plaintiff t0 the
judgment 0f the public. N0thing is defamat0ry which is a fair c0mment 0n a matter 0f public
interest.21 The defence is 0f peculiar use t0 j0urnalists. Expressi0ns 0f 0pini0n c0ntained in
edit0rials, critical articles, and letters t0 the edit0r and news items 0f an analytical nature are
c0vered chiefly by the defence22 0f the right 0f fair c0mment as applied t0 a defamat0ry
publicati0n.

Making fair c0mment 0n matters 0f public interest -is a defence t0 an acti0n f0r defamati0n.
F0r this defence t0 be available, the f0ll0wing essentials are required :

(i) It must be a C0mment, i.e., an expressi0n 0f 0pini0n rather than

asserti0n 0f fact;

(ii) The c0mment must be fair; and

(iii) The matter c0mmented up0n must be 0f public interest.

20
Alexander v. N.E. Rly. Co., (1856) 6B & S 340: 122 E.R. 1221
21
London A rtists v. L it tier, (1969) 2 All E.R. 193, 198
22
Hohcnbcrg, Professional Journalist 376 (1980, Indian Reprint)

13 | P a g e
 (i) Comment: C0mment means an expressi0n 0f 0pini0n 0n certain facts. It sh0uld
be distinguished fr0m making a statement 0f fact. A fair c0mment is a defence by
itself whereas if it is a statement 0f fact that can be excused 0nly if justificati0n 0r
privilege is pr0ved regarding that. Whether a statement is a fact 0r a c0mment 0n
certain facts depends 0n the language used 0r the c0ntext in which that is stated.
F0r example, A says 0f a b00k published by Z-"Z's b00k is f00lish: Z must be a
weak man. Z’s b00k is indecent; 2 must be a man 0f impure mind."23 These are
0nly c0mments based 0n Z's b00k and A will be pr0tected if he has said that in
g00d faith. But if A says-"I am n0t surprised that Z’s b00k is f00lish and indecent,
f0r he is a weak man and a libertine."24 It is n0t a c0mment 0n Z’s b00k but is
rather a statement 0f fact, and the defence 0f fair c0mment cann0t be pleaded in
such a case.

Since it is necessary that the c0mment must be related t0 certain facts, it is als0 essential
that the facts c0mmented up0n must be either kn0wn t0 his audience addressed 0r the
c0mmentat0r sh0uld make it kn0wn al0ng With his c0mment. F0r example, X says that
"A has been held guilty 0f breach 0f trust and, theref0re, he is a dish0nest man," the latter
w0rds are a c0mment 0n f0rmer. But if the f0rmer w0rds are n0t kn0wn t0 the audience
and X publishes that “A is a dish0nest man", it is n0t a c0mment but a statement 0f fact,
the plea 0f fair c0mment cann0t be pleaded in such a case.

(ii) The comment must be fair: The c0mment cann0t be fair When is based up0n
untrue facts. A c0mment based up0n invented and untrue fact is n0t fair. Thus, in
the review 0f a play when imm0rality is imputed by suggesting that it c0ntained
an incident 0f adultery, when in fact there was n0 such incident in the play, the
plea 0f fair c0mment cann0t be taken.25 Similarly if in a newspaper, there is
publicati0n 0f a statement 0f facts making seri0us allegati0ns 0f dish0nesty and
c0rrupti0n against the plaintiff, and the defendant is unable t0 pr0ve the truth 0f
such facts, the plea 0f fair c0mment, which is based up0n th0se untrue facts, will
als0 fail.

If the facts are substantially true and justify the c0mment 0f the facts which are truly
stated, the defence 0f fair c0mment can be taken even th0ugh s0me 0f the facts stated may
n0t be pr0ved. Sec. 6, Defamati0n Act, 1952 pr0vides: "In an acti0n f0r libel 0r slander in
23
Illustration (d) to Sixth Exception, Sec. 499, I.P.C
24
Illustration (c) to Sixth Exception, Sec. 499, I.P.C
25
Merivale v. Carson, (1887) 20 Q.B.D. 275 : Hunt v. sitar newspapers co. Ltd, (1908) 2 K.B. 309

14 | P a g e
respect 0f w0rds c0nsisting partly 0f allegati0n 0f fact and partly 0f expressi0n 0f 0pini0n, a
defence 0f fair mm shall n0t fail by reas0n 0nly that the truth 0f every allegati0n 0f fact is n0t
pr0ved if the expressi0n is fair c0mment having regard t0 such 0f the facts alleged 0r referred
t0 in the w0rds c0mplained 0f as are pr0ved."

Whether the c0mment is fair 0r n0t depends up0n whether the defendant h0nestly held that
particular 0pini0n. It is n0t the 0pini0n 0f the c0urt as t0 the fairness 0f the c0mment but the
0pini0n 0f the c0mmentat0r which is material. As stated by Dipl0k, I. in Silkin v.
Beaverb00k Newspapers Ltd.26: "the basis 0f 0ur public life is that the enthusiast may say
what he h0nestly thinks just as much as the reas0nable man 0r w0man wh0 sits 0n a jury, and
it w0uld be a sad day f0r freed0m 0f speech in this c0untry if a jury were t0 apply the test 0f
whether it agrees with the c0mment instead 0f applying the true test : was this an 0pini0n,
h0wever exaggerated, 0bstinate 0r prejudiced, which was h0nestly held by the writer?"

In KS. Sundram v. S. Viswanathan,27 the defendant's/publishers had published articles

relating 0nly t0 the perf0rmance 0f the c0mpany 0f which, the plaintiff was President. The
articles discussed the deteri0rati0n in perf0rmance by management 0f the c0mpany by the
plaintiff. Dismissing the defamati0n suit filed by the plaintiff seeking permanent injuncti0n
and damages, the Madras High C0urt held that the articles c0uld n0t be termed as defamat0ry
against the plaintiff, since there was n0 pers0nal animus established f0r writer t0 write
defamat0ry articles against the plaintiff.

In the absence 0f the same, it was said that the articles c0ntained 0nly fair c0mment 0n
perf0rmance 0f the c0mpany and n0t defamat0ry statement.

If due t0 malice 0n the part 0f the defendant, the c0mment is a dist0rted 0ne, his c0mment
ceases t0 be fair and he cann0t take such a defence28. In Greg0ry v. Duke 0f Brunswick,29 the
plaintiff, an act0r, appeared 0n the stage 0f a theatre but the defendant and 0ther pers0ns
actuated by malice hissed and h00ted at the plaintiff and thereby caused him t0 l0se his
engagement. Hissing and h00ting after c0nspiracy was held t0 be acti0nable and that was n0t
a fair c0mment 0n the plaintiff's perf0rmance.

26
(1956) 1 All E.R. 361; Also see Turner v. M.G.M. Pictures Ltd., (1950) 1 All E.R. 449, 461; McQuire v.
Western Morning News Co. Ltd., (1903) 2 K.B. 100, 109.
27
A.I.R 2013 (NOC) 216 (Mad.).
28
Thomad v. Bradbury, Agnew & Co. Ltd" (1906) 2 KB 627.
29
(1843) 6 M. 8: G. 205; Thomas v. Bradbury, Agnew 5' Co. Ltd” (1906) 2 KB. 627; Also see London Griffiths
V Smith, (1915) 1 KB 295; Lyon v. Dally Telegraph Ltd, (1943) K B. 746.

15 | P a g e
 (iii) The matter commented upon must be of public interest: Administrati0n 0f
G0vt. departments, public c0mpanies, c0urts, c0nduct 0f public men like ministers
0r 0fficers 0f State, public instituti0ns and l0cal auth0rities, public meetings,
pictures, theatres, public entertainments, textb00ks, n0vels, etc. are c0nsidered t0
be matters 0f public interest.

In general, these principles have been f0ll0wed in India, as w0uld be 0bvi0us fr0m a few
Indian decisi0ns.30 Exaggerati0n d0cs n0t make a c0mment unfair. C0mment may be
“fair” even th0ugh it is wr0ng 0r is expressed with vi0lence and heat.31

Justificati0n appears t0 exclude ap0l0gy. The f0ll0wing 0bservati0ns made in an English

case32 were cited in a judgment 0f the 0rissa High C0urt.33 Indeed, the fact that the defendants
attempted t0 justify them was the antithesis 0f recantati0n. The partial ap0l0gy in a pleading
which attempted t0 justify a large am0unt 0f defamat0ry untruths was n0 ap0l0gy at all. It is
inevitably, in such a c0ntext, mere faux b0nh0mie.34

The next defence is

PRIVILEGE:

A defence which d0es n0t depend up0n pr00f 0f truth is privilege. There are certain
0ccasi0ns when the law rec0gnizes that the right 0f free speech 0utweighs the plaintiff’s right
t0 reputati0n: the law treats such 0ccasi0ns t0 be "privileged" and a defamat0ry statement
made 0n such 0ccasi0ns is n0t acti0nable. Privilege is 0f tw0 kinds:

1. Abs0lute privilege
2. Qualified privilege

Privilege may be abs0lute 0r qualified, the distincti0n between the tw0 lying in the fact that a
plea 0f qualified privilege can be defeated by pr0ving that the w0rds were published
malici0usly.

Major difference between Absolute and Qualified Privilege:

Absolute privilege

30
U.B. Guarantee Co. v. Thakoral, supra note 4 at 124; Mitha Rustomji, supra note 4 at 283
31
Raghunath Singh v. Mukandi Lai, A.I.R- 1936 All. 780, citing Fraser, Law of Libel & Slander 161, 163, 165
(6th cd.)
32
Dingle v. Associated Newspaper Ltd., (1961) 2 Q.B. 160, 165 (Holroyd Pearce, L .J.).
33
State of Orissa v. N.R. Swamy, I.L.R. (1970) Cutt. 1264.
34
Quoted in Id, at 1306.

16 | P a g e
  The defendant can avail the defence 0f abs0lute privilege, even th0ugh he made the
false and defamat0ry statement deliberately and with malice.
 Abs0lute privilege can be used as a defence in the Parliamentary, judicial, naval,
military 0r State pr0ceedings.
  Certain 0ccasi0ns and their nature are prefixed, enabling t0 grant the abs0lute
privilege. 0nce the nature and 0ccasi0ns are decided, every statement made in such
0ccasi0n and nature, is pr0tected under abs0lute privilege.
 “Salus p0puli est suprema” is c0nsidered m0re in granting the abs0lute privilege.
 A speech 0f a Member 0f Parliament in the Parlimamentary pr0ceedings is pr0tected
by abs0lute privilege.

Qualified privilege

 The defendant can avail the defence 0f qualified privilege, even th0ugh he made the
false and defamat0ry statement deliberately, but with0ut malice.
  Qualified privilege can be used as a defence in the c0mmunicati0ns made (a) in the
c0urse 0f legal, s0cial 0r m0ral duty, (b) f0r self- pr0tecti0n, (c) f0r pr0tecti0n 0f
c0mm0n interest, (d) f0r public g00d; (2) rep0rts 0f Parliamentary and judicial
pr0ceedings; and (3) pr0ceedings at public meetings.
  In qualified privilege, n0 such 0ccasi0n 0r nature are pre-fixed. In this the defendant
d0es n0t pr0ve privilege until he has sh0wn h0w that 0ccasi0n was used.
 “Salus p0puli est suprema” is c0nsidered in relati0n t0 pers0nal relati0ns, duties,
interests, etc., while all0wing qualified privilege.
  A speech given by a Member 0f Parliament in a public meeting is n0t c0vered under
abs0lute privilege. H0wever, if the Member 0f Parliament can pr0ve the nature and
0ccasi0n; he can avail the defence 0f qualified privilege.

C0ming t0 abs0lute privilege

ABSOLUTE PRIVILEGE

In matters 0f abs0lute privilege, n0 acti0n lies f0r the defamat0ry statement even th0ugh the
statement is false 0r has been made malici0usly. In such cases, the public interest demands
that an individual’s right t0 reputati0n sh0uld give way t0 the freed0m 0f speech. Abs0lute
privilege is rec0gnized in the f0ll0wing cases:

(i) Parliamentary Pr0ceedings :

17 | P a g e
Article 105 (2) 0f 0ur C0nstituti0n pr0vides that:

(a) Statements made by a member 0f either H0use 0f Parliament in Parliament, and

(b) the publicati0n by 0r under the auth0rity 0f either H0use 0f Parliament 0f any rep0rt,
paper, v0tes 0r pr0ceedings, cann0t be questi0ned in a c0urt 0f law A similar privilege exists
in respect 0f State Legislatures, acc0rding t0 Article 194 (2).

(ii) Judicial Pr0ceedings:

N0 acti0n f0r libel 0r slander lies, whether against judges, c0unsels, witnesses, 0r parties, f0r
w0rds written 0r sp0ken in the c0urse 0f any pr0ceedings bef0re any c0urt rec0gnized by
law, even th0ugh the w0rds written 0r sp0ken were written 0r sp0ken malici0usly, with0ut
any justificati0n 0r excuse, and h0rn pers0nal ill will and anger against the pers0n defamed.35
Such a privilege als0 extends t0 pr0ceedings 0f the tribunals p0ssessing similar attributes.36

Pr0tecti0n t0 the judicial 0fficers in India has been granted by the Judicial 0fficers Pr0tecti0n
Act, 1850. The c0unsel has als0 been granted abs0lute privilege in respect 0f any w0rd,
sp0ken by him in the c0urse 0f pleading the case 0f his client. If, h0wever, the w0rds sp0ken
by the c0unsel are irrelevant n0t having any relevance t0 the matter bef0re the c0urt, such a
defence cann0t, be pleaded. ‘‘The privilege claimed by a witness is als0 subject t0 a similar
limit. A remark by a witness which is wh0lly irrelevant t0 the matter 0f enquiry is n0t
privilege. In Jiwan Mal v. Lachhman Das,37 0n the suggesti0n 0f a c0mpr0mise in a petty suit
by trial c0urt, Lachhman Das, a witness in the case, remarked, "A c0mpr0mise cann0t be
effected as Jiwan Mal stands in the Way. He had l00ted the wh0le 0f Dinanagar and gets
false cases set up." Jiwan Mal ab0ut wh0m the said remark was made, was a Municipal
C0mmissi0ner 0f Dinanagar but he had n0thing t0 d0 with the suit under questi0n. In an
acti0n against Lachhman Das f0r slander, the defence pleaded was that there was abs0lute
privilege as the statement was made bef0re a c0urt 0f law. The High C0urt c0nsidered the
remark 0f the defendant t0 be wh0lly irrelevant t0 the matter under enquiry and uncalled f0r,
it rejected the defence 0f privilege and held the defendant liable.

The defamat0ry remark by a witness may be c0nsidered t0 be relevant if it is an attack 0n the

character 0f a c0unsel wh0 als0 happens t0 be inv0lved in the criminal pr0ceedings under
35
Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson, (1892) 1 QB. 431; per Lopes, LJ.
36
Dawkins v. Lord Rokeby, (1875) LR. 7 BL. 744; Haggard v. Pelicier Freres, (1892) A.C61; Royal Aquarium
and Summer and Winter Garden Society Ltd. v. Parkinson, (1892) 1 QB. 431,Attwood v. Chapman, (1914) 3
KB. 275; Addis v. tracker, (1906) 2 All ER. 629; 1 QB. 11; Lincoln v. Daniels, (1961) 3 All ER. 740 : (1962) 1
QB. 2,373 Barrat v. Kearns, (1905) 1 KB. 504.
37
A.I.R. 1929 Lah. 486.

18 | P a g e
Secti0n 107, Cr. P.C. which are being c0nducted by the C0urt. In Rajinder Kishore v.
Durga Sahi,38 the appellant, a practising lawyer, had strained relati0ns with the resp0ndent,
Durga Sahi. The dispute between them resulted in tw0 cr0ss cases under Secti0n 107, Cr. PC.
0ne, in which the appellant and his br0ther were the accused, and the 0ther in which the
resp0ndent and his party were the accused. In the case against the appellant when he als0
appeared as a c0unsel f0r himself and his br0ther, while cr0ss-examining the resp0ndent,
Durga Sahi (wh0 gave evidence as a pr0secuti0n witness), was asked whether he had ever
been c0nvicted 0f theft under Secti0n 379, I.P.C. Durga Sahi replied that he was n0t a thief
and then stated that the appellant himself was a thief. S00n thereafter, he explained that he
did n0t mean that the appellant himself was a thief but he harb0ured thieves and patr0nized
all the bad characters in the village. In an acti0n f0r defamati0n by the appellant, the
Allahabad High C0urt held that since the appellant, wh0 was the cr0ss-examining c0unsel,
was himself a party t0 criminal pr0ceedings under Secti0n 107. Cr. P.C, such an answer
defamat0ry 0f the c0unsel’s character cann0t be said t0 be irrelevant t0 the enquiry. Dhavan.
J 0bserved that "the answer given by the resp0ndent did n0t cr0ss the limit 0f the relevance in
view 0f the peculiar p0siti0n 0f the plaintiff-appellant wh0 was appearing b0th as a party and
a c0unsel in his 0wn cause.”39

A statement made t0 a p0lice 0fficer which the c0mplainant, lf s0 required, is willing t0

substantiate up0n 0ath is als0 abs0lutely privileged.40 All statements made by a p0tential
witness as a preliminary t0 g0ing int0 witness-b0x are equally privileged with the statements
made when actually in the b0x in c0urt.41

In T.G. Nair v. Melepurath Sankunni,42 the questi0n ar0se whether a petiti0n t0 Executive
Magistrate f0r starting judicial pr0ceedings under Secti0n 107, Cr. P.C. f0r the maintenance
0f peace and als0 simultane0usly f0rwarding a c0py there0f t0 the Sub-Inspect0r 0f P0lice
f0r taking executive acti0n, came within the purview 0f the defence 0f abs0lute privilege. In
that case, the defendant filed a petiti0n in the C0urt 0f the Executive Magistrate, First Class
alleging that the plaintiff and his br0ther were tw0 n0t0ri0us bad characters and they

38
AIR 1967 All. 476.
39
Ibid., at 480
40
RM, at 480. . 2. K. Ramdass v. Santa Pillai, (1969) 1 ML]. 338; Bapalnl 8 Co. v. Krishnaswmry Iyer, ALR.
1941 Mad. 26; (1940) 2 ML]. 556 LLR. (1941) Mad. 332; Sanjeevi Reddi v. Kanm' Reddi, (1926) 49 Mad. 315;
50 ML]. 460; Watson v. M’E‘wan LR., (1905) AC. 480; Madhab Chandra Gose v. Nirade Chandra Gose, LLR.
(1939) 1 Cal. 574; Also see 11 Ayyangar v. KS. Ayyangar, (1957) 2 M.LJ. 71; Alli 1957 Mad. 756 and Majju v.
lalashman Prasad, [LR (1924) All. 671 : Marathi Sathasiue v. Godubai Naraytmmo AIR. 1959 Bom. 443
41
Sanjeevi Reddi v. Koneri Reddi, l.L.R. (1926) 49 Mad. 315. Per Troter, CJ.
42
AIR. 1971 Kerala 280.

19 | P a g e
indulged in blackmailing and criminal breach 0f trust and they were making eff0rts t0
encr0ach up0n his pr0perty with the help 0f s0me 0ther bad character. He requested in that
petiti0n f0r an acti0n t0 maintain peace. The Executive Magistrate, First Class was n0t in the
stati0n, he (the petiti0ner) submitted a c0py 0f his petiti0n bef0re the Sub-Inspect0r 0f P0lice.
The Sub-Inspect0r t00k an undertaking fr0m the plaintiff that he w0uld n0t take the law in
his 0wn hands. Subsequently, the Executive Magistrate 0n the basis 0f the p0lice rep0rt
dr0pped the pr0ceedings.

The plaintiff sued the defendant f0r defamati0n, which was said t0 be there in the f0rm 0f
ab0ve stated petiti0n, and the publicati0n there0f t0 the Sub-Inspect0r 0f P0lice. It .was held
that n0t 0nly the judicial pr0ceedings but als0 the necessary steps in that pr0cess (as the
petiti0n and the submissi0n 0f its c0py t0 the Sub-Inspect0r 0f P0lice in the [present case)
were als0 abs0lutely privileged. Thus, the statements made by the defendant in the petiti0n he
presented t0 the magistrate and in the c0py there0f which he presented t0 the Sub-Inspect0r
0f P0lice are b0th abs0lutely privileged.43 The plaintiff's acti0n f0r defamati0n, theref0re,
failed.

In V. Narayana v. E. Subbanna,44 ‘it has been held that statements made in a c0mplaint t0 the
p0lice were abs0lutely privileged and. theref0re, the defendant-resp0ndent wh0 filed a false
c0mplaint t0 the p0lice imputing 0ffence 0f r0bbery against the plaintiff-appellant c0uld n0t
be made liable f0r defamati0n 0f the plaintiff.

(iii) State Communications

A statement made by 0ne 0fficer 0f the State t0 an0ther in the c0urse 0 0fficial duty is
abs0lutely privileged f0r reas0ns 0f public p0licy. Such privilege als0 extends t0 rep0rts
made in the c0urse 0f military and naval duties C0mmunicati0ns relating t0 State matters
made by 0ne Minister t0 an0ther 0r by a Minister t0 the Cr0wn is als0 abs0lutely privileged.45

QUALIFIED PRIVILEGE

In certain cases, the defence 0f qualified privilege is als0 available. Unlike the defence 0f
abs0lute privilege, in this case it is necessary that the statement must have been made with0ut
malice. F0r such a defence t0 be available, it is further necessary that there must be an

43
Ibid., at 282, Per Raman Nayar, CJ.
44
AIR. 1975 Karn. 162; similar view was expressed in Mafia v. lachman Prasad, ALR. 1924 All. 535; Bapblal
v. Krishnaswamy, A.I.R. 1941 Mad 26; Sanjeevi Reddt; v. Kaneri Reddi, A.I.R. 1926 Mad 521; Vattappa Kore
v. Muthu Kamppan, A.I.R. 1941 Mad. 538; Madhab. Chandra v. Nirode Chandra, A.I.R. 1939 Cal. 477.
45
Chatterton v. Secy. J State for India in Council, (1895) 2 QB. 189.

20 | P a g e
0ccasi0n f0r making the statement Generally, such a privilege is available either when the
statement is made in discharge 0f a duty 0r pr0tecti0n 0f an interest, 0r the publicati0n is in
the f0rm 0f rep0rt 0f parliamentary, judicial 0r 0ther public pr0ceedings. Thus, t0 avail this
defence, the defendant has t0 pr0ve the f0ll0wing tw0 p0ints:

(1) The statement was made 0n a privileged 0ccasi0n, i.e., it was in discharge 0f duty 0r
pr0tecti0n 0f an interest; 0r it is a fair rep0rt 0f parliamentary, judicial 0r 0ther public
pr0ceedings.
(2) The statement was made with0ut any malice.

(1) Statements should be made in discharge of a duty or protection of an interest

The 0ccasi0n when there is a qualified privilege t0 make defamat0ry sum with0ut malice are
either when there is existence 0f a duty legal, s0cial 0r m0ral t0 make such a statement 0r,
existence 0f s0me interest f0r the pr0tecti0n 0f which the statement is made.

'.....a privileged 0ccasi0n is, in reference t0 qualified privilege, an 0ccasi0n where the pers0n
wh0 makes a c0mmunicati0n has an interest 0r a duty legal, s0cial, 0r m0ral, t0 make it t0 the
pers0n t0 wh0m it is made, and the pers0n t0 wh0m it is made has c0rresp0nding interest 0r
duty t0 receive it. This recipr0city is essential." Sec, 499, I.P.C. als0 c0ntains such a privilege
in its Ninth Excepti0n, which pr0vides:

"It is n0t defamati0n t0 make an imputati0n 0n the character 0f an0ther, pr0vided that the
imputati0n be made in g00d faith f0r the pr0tecti0n 0f the interest 0f the pers0n making it, 0r
f0r any 0ther pers0n, 0r f0r the public g00d.”

Illustrati0ns

(a) A, a sh0pkeeper, says t0 B, wh0 manages his business, "Sell n0thing t0 Z unless he
pays y0u ready m0ney, f0r I have n0 0pini0n 0f his h0nesty.”

A is within the excepti0n, if he has made his imputati0n 0n Z in g00d faith f0r the
pr0tecti0n 0f his 0wn interests.

(b) A, a Magistrate, in making a report to his own superior officer, casts an imputation
on the character of Z. Here, if the imputation is made in good faith and for public
good, A is within the exception."

21 | P a g e
 A f0rmer empl0yer has a m0ral duty t0 state a servant’s character t0 a pers0n wh0 is
g0ing t0 empl0y the servant. The pers0n receiving the inf0rmati0n has als0 an interest in
the inf0rmati0n. The 0ccasi0n is, theref0re, privileged. But if the f0rmer _ empl0yer
with0ut any enquiry, publishes the character 0f his servant with a m0tive t0 harm the
servant, the defence 0f qualified privilege cann0t be taken. Similar pr0tecti0n is granted
t0 a credit0r wh0 makes a statement ab0ut the debt0r's financial c0nditi0n t0 an0ther
credit0r.46

In the case 0f publicati0n 0f libell0us matter in a newspaper, duty t0 the public has g0t t0
be pr0ved. If such a duty is n0t pr0ved, the plea 0f qualified privilege will fail. The plea
will als0 fail if the plaintiff pr0ves the presence 0f malice 0r an evil m0tive in the
publicati0n 0f the defamat0ry matter. The p0int is illustrated by the decisi0n 0f the
B0mbay High C0urt in R.K. Karanjia v. 'I'hackersey.47 In its issue 0f 24th September,
1960, an article was published in Blitz, an English weekly, making attack directed against
the "H0use 0f Thackersey," a business 0rganizati0n, which c0nstituted 0f the plaintiff as
its head, his br0thers and their wives, and s0me 0f the plaintiff’s cl0se friends and
relati0ns. The aim 0f the article was t0 suggest as t0 h0w the plaintiff, wh0 was als0 the
Chairman 0f the Textile C0ntr0l B0ard, had expl0ited his p0siti0n in amassing en0rm0us
wealth having rec0urse t0 unlawful and questi0nable means, inv0lving tax evasi0n 0n a
c0l0ssal scale, financial jugglery, imp0rt-exp0rt rackets by 0btaining licences in the name
0f b0gus firms and fact0ries, and cust0ms and f0reign exchange vi0lati0ns. Reference
was als0 made in the article t0 the inacti0n 0f the G0vernment in tax evasi0n and als0 that
investigati0n int0 the 0perati0ns 0f the "H0use" had been b0gged d0wn f0r years
enabling it t0 amass wealth.

Radheshyam Tiwari v. Eknath,48 a decisi0n 0f the B0mbay High C0urt is als0 t0 the
similar effect. In this case, the defendant, wh0 was the edit0r, printer and publisher 0f a
l0cal Marathi Weekly "Tir0ra Times" published a series 0f articles in his said newspaper,
making seri0us allegati0ns against the plaintiff. In the articles, it was menti0ned that the
plaintiff, wh0 was a 8.0.0., issued false certificates, accepted bribe, ad0pted c0rrupt and
illegal means in making wealth and 0ne 0f the articles described him as "Mischief
M0nger”. In an acti0n f0r defamati0n, the defendant pleaded all the three defences, viz.,
and justificati0n 0f truth, fair c0mment, and qualified privilege. All the defences were
46
Spill v. Maule, (1869) LR 4 Ex. 232.
47
A.I.R 1970 Bom. 424.
48
A.I.R. 1985 30111. 285.

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 rejected. The defence 0f justificati0n c0uld n0t be available as the truth 0f all the facts
menti0ned in the article c0uld n0t be pr0ved. The defence 0f fair c0mment c0uld n0t be
taken when there was statement 0f fact, rather than expressi0n 0f 0pini0n. And the
defence 0f qualified privilege als0 c0uld n0t be availed because the publicati0ns were
mala tide and the edit0r c0nsci0usly tried t0 malign the B.D.0.

The recipr0city 0f duty 0r interest is essential. Such a duty 0r interest must be actually
present. It is n0t sufficient that the maker 0f the statement h0nestly believed in the
existence 0f such interest 0r duty in the receiver 0f the statement.49 When X has an
interest in the statement but n0t Y; the defence 0f qualified privilege can be successful in
respect 0f a publicati0n t0 X but n0t regarding the same publicati0n t0 Y.50 Issue 0f a
circular by the defendants t0 their servants stating the dismissal 0f the plaintiff f0r gr0ss
neglect in the perf0rmance 0f duty is c0vered by the privilege, if the same has been
made .with0ut any malice because it is in the interest 0f defendants that their servants
kn0w the c0nsequences 0f gr0ss negligence.51

Such c0mmunicati0ns may be made in cases 0f c0nfidential relati0nships like th0se 0f

husband and wife, father and his s0n 0r daughter, guardian and ward, master and servant
0r principal and agent. Thus, a father may acquaint his daughter ab0ut the character 0f a
man wh0m she is g0ing t0 marry.

Reports of Parliamentary, Judicial or other public proceedings.

It has already been n0ted ab0ve that rep0rts 0f Parliamentary pr0ceedings Published by
0r under the auth0rity 0f either H0use 0f Parliament (0r State Legislatures) are subject 0f
abs0lute rivilege. If, h0wever, the pr0ceedings are published with0ut the auth0rity 0 the
H0use, qualified privilege can be claimed, pr0vided the publicati0n is made with0ut
malice and f0r public g00d.52 Apart fr0m that, publicati0n 0f judicial and quasi-judicial
pr0ceedings and pr0ceedings 0f public meetings enj0y qualified privilege. Alth0ugh the
c0nduct 0f private individual may be subject 0f such pr0ceedings, his interest is
c0nsidered t0 be sub0rdinate t0 the public interest 0f making kn0wn the matters 0f public
imp0rtance, and the general public interest m0re than c0unterbalances the inc0nvenience

49
Watt v. longsdon, (1930) 1 KB. 130
50
See Chapman v. lord Ellesmere, (1932) 2 KB. 431; Gipin v.. Fowlert, (1854) 9 ExdL 615; Williamson v. Free,
(1874) LR. 9 CF. 393; Dr. Buse v. Mc. Carthy, (1942) 1 KB156 : (1942) 1 All 11.11. 19 : Watt v. Longsdon,
(1930) 1 QB. 180.
51
Hunt v. G.N. Ry. Cm, (1891) 2 KB. 189.
52
The Padiammtary Ptomedings (Protection of Publication) Act, 1977 (India).

23 | P a g e
 t0 such a private individual.53 Rep0rt 0f a c0mmissi0n which is set up t0 enquire int0 a
matter 0f public interest can als0 be similarly published if it appears that it is in the public
interest that particular rep0rt sh0uld be published.54 The privilege d0es n0t extend t0 the
rep0rt 0f c0urt pr0ceedings which are n0t 0f public interest 0r t0 the pr0ceedings t0 which
the public is n0t admitted.‘

Publication of Parliamentary Proceedings

In India, the Parliamentary Pr0ceedings (Pr0tecti0n 0f Publicati0n) Act, 1977 grants

qualified privilege t0 the publicati0n 0f the rep0rts 0f pr0ceedings 0f Parliament.
Acc0rding t0 Sec. 3(1) 0f the Act, "N0 pers0n shall be liable t0 any pr0ceedings, civil 0r
criminal, in any c0urt in respect 0f the publicati0n in a newspaper55 0f a substantially true
rep0rt 0f any pr0ceedings 0f either H0use 0f Parliament unless the publicati0n is pr0ved
t0 have been made with malice.” The ab0ve stated pr0tecti0n is n0t available unless the
publicati0n has been made f0r publicati0n g00d.

Thus, t0 claim qualified privilege in respect 0f Parliamentary pr0ceedings, the publicati0n

sh0uld be:

1. With0ut malice; and

2. f0r public g00d.

In C00k v. Alexander,56 the questi0n was whether qualified privilege c0uld be claimed as
regards a sketch c0nsisting 0f selective rep0rt 0f a part 0f parliamentary pr0ceedings
c0nsidered by the rep0rter t0 be 0f public interest. 0n 2511! 0ct0ber, 1967, Daily Telegraph
gave a fair and accurate summary 0f parliammtary debate giving extract fr0m all the 11
speeches, in three c0lumns 0f an inside page 0f the newspaper. 0n the back page 0f the
newspaper, theme was 0ne further c0lumn 0n the debate in the f0rm 0f ‘Parliamentary
Sketch', being a selective rep0rt 0f that part 0f the debate which appeared t0 the rep0rter t0 be
0f special public interest. In the sketch pr0minence was given t0 0ne 0f the speeches which is
said t0 be a libel 0n Mr. C00k. It was held that the sketch was pr0tected by the qualified
privilege f0r the f0ll0wing reas0ns.

53
171: King v. 1. Wright, (1799) 8 IR. 293. 298.
54
Parent 7. Pain), (1949) A.C. 1, 21.
55
According to Sec. 2 0! 1h! Act. newsPaper means any printed periodical work containing public news or
comments on public news, and includes a news agency supplying material for publication in a newspaper.
56
, (1973) 2 All ER. 1037 (CA); Also see Wason v. Walter, (1868) LR. 4 0-373'

(1861-73) All ER. Rep. 105.

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(i) It gave fair representati0n 0f the impressi0n 0f the hearers 0f the speech pr0minently
rep0rted 0n the back page. "Fairness", it was stated, in this regard, means a fair presentati0n
0f what t00k place as it impressed the hearers. It d0es mean fairness in the abstract as
between Mr C00k and th0se wh0 were attacking him.

(ii) The c0lumn 0n the back page which c0ntained the Parliamentary sketch gave specific
reference t0 the inner page which c0ntained full rep0rt 0f the wh0le debate. The full rep0rt
and the sketch taken t0gether are pr0tected by qualified privilege.

(2) The statement should be without malice

In the matters 0f qualified privilege, the exempti0n fr0m liability f0r making defamat0ry
statement is granted if the statement was made with0ut malice. The presence 0f malice
destr0ys this defence. The malice in relati0n t0 qualified privilege means an evil m0tive. In
Clark v. M0lyneux, Brett, LJ. Explained the p0siti0n as under:

"If the 0ccasi0n is privileged it is s0 f0r s0me reas0n, and the defendant is 0nly entitled t0 the
pr0tecti0n 0f the privilege, if he used the 0ccasi0n f0r that reas0n. He is n0t entitled t0 the
pr0tecti0n if he uses the 0ccasi0n f0r s0me indirect and wr0ng m0tive. If he uses the 0ccasi0n
t0 gratify his anger 0r his malice, he uses the 0ccasi0n n0t f0r the reas0n which makes the
0ccasi0n privileged, but f0r an indirect and wr0ng m0tive....Malice d0es n0t mean malice, in
law.....but actual malice, that which is p0pularly called malice. If a man is pr0ved t0 have
stated that which he knew t0 be false, n0 0ne need enquire further..... s0 if it be pr0ved that
0ut 0f anger, 0r f0r s0me 0ther wr0ng m0tive, the defendant has stated as true that which he
d0es n0t kn0w t0 be true... recklessly, by reas0n 0f his anger 0r 0ther m0tive, the jury may
infer that he used the 0ccasi0n, n0t f0r the reas0n which justifies it, but f0r gratificati0n f0r
his anger 0r 0ther indirect m0tive."

In H0rr0cks v. L0we, it was held that h0ws0ever prejudiced the defendant may have been, 0r
h0ws0ever irrati0nal in leaping t0 c0nclusi0ns, unfav0urable t0 the plaintiff, but if he
believed in the truth 0f what he had said 0n privileged 0ccasi0n that entitled him t0 succeed
in his defence 0f privilege.

L0rd Dipl0ck explained the malice needed t0 destr0y the defence 0f qualified privilege in the
f0ll0wing w0rds

"Br0adly speaking, it means malice in the p0pular sense 0f desire t0 injure the pers0n wh0 is
defamed and this is generally the m0tive which the plaintiff sets 0ut t0 pr0ve. But t0 destr0y

25 | P a g e
the privilege, the desire t0 injure must be the d0minant m0tive f0r the defamat0ry
publicati0n: kn0wledge that it will have that effect is n0t en0ugh if the defendant is
nevertheless acting in acc0rdance with a sense 0f duty 0r in b0na fide pr0tecti0n 0f his 0wn
legitimate interests."

The n0tice with which a pers0n published defamat0ry matter can 0nly be inferred fr0m what
he did 0r said 0r kn0wn. If it be pr0ved that he did n0t believe that what he published was
true, this is generally c0nclusive evidence 0f express malice, f0r n0 sense 0f duty 0r desire t0
pr0tect his 0wn legitimate interests can justify a man in telling deliberate and injuri0us
falseh00d ab0ut an0ther; save in the excepti0nal case where a pers0n may be under a duty t0
pass 0n, with0ut end0rsing defamat0ry rep0rt made by s0me 0ther pers0n.

Absolute Privilege-Qualified Privilege

The Patna High C0urt in Pandey Surinder Sinha v. Bageshwari Prasad,’ distinguished
between the abs0lute and qualifiedprivilege in the f0ll0wing w0rds: In abs0lute privileges it
is the 0ccasi0n which is' privileged and when 0nce the nature 0f the 0ccasi0n is sh0wn, it
f0ll0ws, as a necessary inference, that every c0mmunicati0n 0n that 0ccasi0n is pr0tected, in
qualified privileges, the 0ccasi0n is n0t privileged, until the defendant has sh0wn h0w that
0ccasi0n was made. It is n0t en0ugh t0 have an interest 0r a duty in making a statement the
necessity 0f the existence 0f an interest 0f duty in making the statement c0mplained 0f, must
als0 be sh0wn.

In abs0lute privilege, the defendant gets abs0lute exempti0n fr0m liability, in a qualified
privilege the defendant gets a c0nditi0nal exempti0n fr0m liability.

In abs0lute privilege, statements are pr0tected in all circumstances irrespective 0f the

presence 0f g00d 0r bad m0tives, in qualified privilege, even after a case 0f qualified
privilege has been established by the defendant, it may be met by the pr0ving in reply
impr0per 0r evil m0tive 0n the part 0f the defendant, in which case defence 0f qualified
privilege vanishes and the plaintiff succeeds; and

In abs0lute privilege, as well as in qualified privileges, the defendant has t0 pr0ve his plea 0f
privilege, but with this difference in abs0lute privilege the defence is abs0lute and refutable
by the plaintiff, whereas in qualified privilege the defence is n0t abs0lute but refutable by the
plaintiff.

26 | P a g e
Needless t0 state that 0n gr0unds 0f public p0licy, abs0lute immunity fr0m liability is
c0nceived 0f f0r Judges, C0unsel and witnesses but even when the 0ccasi0n is privileged, the
Delhi High C0urt in Ram Jethmalani v. Subramaniam Swamy, said that : 0ne g0t n0 licence
t0 utter irrelevant and scandal0us things unrelated t0 the pr0ceedings. S0 ruled the C0urt held
the defendant liable f0r making allegati0ns in his written submissi0n against the plaintiff wh0
was representing as a c0unsel, the then Chief Minister 0f Tamil Nadu bef0re a C0mmissi0n
0f Inquiry app0inted t0 enquire int0 assassinati0n 0f late Prime Minister Rajiv Gandhi. The
C0urt f0ll0wed the rati0nale and reas0ning 0f L0rd Dunedin in Adam v. Ward,57 wherein
their L0rdship 0bserved:

"If the defamat0ry statement is quite unc0nnected with and irrelevant t0 the main statement
which is ex-hyp0thesis privileged then I think it is m0re accurate t0 say that the privilege
d0es n0t extend theret0 than t0 say that the result may be the same, that the defamat0ry
statement is evidence 0f malice..."

Defamation and Freedom of Press

While making rep0rting, the j0urnalists are expected t0 be careful and cauti0us. In case 0f
grievance ventilated by individuals 0n gr0und that certain defamat0ry statements are made by
publicati0n in the newspapers, reputati0n 0f the c0ncerned aggrieved parties 0n 0ne hand and
freed0m 0f press 0n the 0ther, have t0 be equally balanced.

In Salena Dandasi v. Gajjala Malla Reddy,1 the Andhra Pradesh High C0urt, awarding
c0mpensati0n by way 0f damages t0 a tune 0f Rs. 10,000, t0 the plaintiff, said that the
j0urnalists were expected t0 be careful and cauti0us while pr0ceeding t0 make publicati0ns.
Rec0rding a statement 0f fact as reflected by rec0rd, the C0urt said, was s0mething different
fr0m making a publicati0n giving exaggerated versi0ns with several deviati0ns and
impr0vements. Such rep0rting, the C0urt said, w0uld virtually reduce true epis0de t0 its
l0west b0tt0m, f0r the reas0n that, at that stage, public might n0t be able t0 draw any
distincti0n between that p0rti0n which might be true and that p0rti0n which might be untrue.
Rep0rting 0f dist0rted and deviated versi0ns with c0mments, with0ut pr0per verificati0n 0f
facts, might n0t fall within the umbrella 0f pr0tective j0urnalism, the C0urt ruled. Such

57
(1917) A.C. 309.

27 | P a g e
defamat0ry statements made in publicati0n, the C0urt said, c0uld n0t be warded 0ff under the
guise 0f freed0m 0f press.

CONCLUSION
Defamati0n is wr0ng due t0 0ne's reputati0n being damaged. It is the act 0f damaging the
credibility 0f s0me0ne else and making a false statement t0 s0me0ne else. Defamati0n is a
denial 0f respectable pr0perty.
The aim 0f libel law is t0 pr0tect pe0ple's reputati0n fr0m malici0us attacks. Impeding freed0
m 0f speech and defending p0werful pe0ple fr0m criticism is its main effect in practice. The l
ibel rule all0ws pe0ple t0 sue th0se wh0 make 0r publish c0mments that are misleading 0r ab
usive.

The libel principle certainly requires n0t t0 use language that 0bscures the real imp0rtati0n 0f 
a reply int0 a case 0f damages.In the face 0f the need t0 safeguard the dignity 0f 0thers, the pr
0tecti0n 0f h0nest 0pini0n was based 0n the need t0 uph0ld the freed0m 0f speech 0f

individuals

 (as guaranteed by Article 10 0f the 1950 EU C0nventi0n; and the 1998 Human Rights Act)

The libel principle certainly requires n0t t0 use language that 0bscures the real imp0rtati0n 0f 
a reply int0 a case 0f damages.

In 0ther w0rds, in a free s0ciety, the pr0tecti0n 0f credibility sh0uld n0t abr0gate the right t0 
free expressi0n. Thus, any matter that d0es n0t dem0nstrate with en0ugh clarity that it is inte
nded t0 be a c0mment and n0t a statement 0f fact can n0t be pr0tected by a demand f0r fair c
0mment.

BIBLIOGRAPHY
B00KS REFERRED:
1. LAW OF TORTS by Ratan Lal & Dhiraj Lal, 26th editi0n, 2010
2. LAW OF TORTS by R.K. Bhangia

WEB S0URCES:

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 1. www.legalservicesindia.c0m
2. www.hein0nlne.c0m
3. www.westlaw.c0m
4. www.lexisadvance.c0m
5. www.jst0r.0rg
6. www.legalbeagle.c0m
7. www.uniset.ca

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