Defamation

Legal provision

• Bharatiya Nyaya Sanhita, 2023, section 356: criminal defamation. It replaced sections 499 and 500 of the Indian Penal Code. The section lists exceptions, such as truth for the public good, fair comment on public conduct and good faith communications.
• Article 19(1)(a) and 19(2), Constitution of India: free speech is limited by reasonable restrictions in respect of defamation.
• Article 21: the right to reputation is part of the right to life.
• Information Technology Act, 2000: section 79 gives intermediaries conditional protection for third-party content, which matters for online defamation.
• No Indian Act defines civil defamation. The civil law comes from English common law and is applied in India as justice, equity and good conscience.

Meaning and definition

Defamation is the publication of a false statement about a person that has one of these effects: it lowers him in the estimation of right-thinking members of society generally. It makes them shun or avoid him. It exposes him to hatred, contempt or ridicule. It injures him in his office, trade or profession. It protects the opinion that others hold of him, and not his own opinion of himself.

Detailed explanation

Step 1: The three essentials

1. The statement is defamatory. It is judged by how an ordinary right-thinking person would understand it.
2. It refers to the claimant. He must be identifiable, by name, description or circumstance. In Hulton v. Jones (1910), a newspaper writer used the name Artemus Jones for an invented character, and a real barrister of that name succeeded. The defendant's intention to refer to someone else was no defence.
3. It is published. It must be communicated to at least one person other than the claimant. A statement made only to the claimant is not defamation.

Step 2: The test of a defamatory statement

In Sim v. Stretch, Stretch sent Sim a telegram about his former maid resuming service with Sim. It asked for her belongings, wages and a sum of money that Sim had "borrowed" from her. Sim said that this suggested financial difficulty. Lord Atkin said that the older test, that words expose a person to hatred, ridicule or contempt, was too narrow. The test is whether the words tend to lower the claimant in the estimation of right-thinking members of society generally. The House of Lords held that the telegram was not capable of a defamatory meaning.

Step 3: Libel and slander

• Libel is defamation in a permanent, visible form: writing, print, pictures and broadcasts.
• Slander is defamation in a transient form: spoken words and gestures.
• Under the English common law rule, libel is actionable per se (without proof of damage). Slander needs proof of special damage, except where it imputes a crime punishable by imprisonment, a contagious or loathsome disease, unchastity in a woman, or unfitness in a profession, trade or office. In India, the Law Commission has noted that courts have not followed this distinction with unanimity. In Mahip Singh v. Dawan Singh (1888), the Allahabad High Court treated the English rules on slander as not necessarily applicable in India.

Step 4: Innuendo

• An innuendo arises when words that look innocent are defamatory to those who know special facts.
• The claimant must plead and prove the extra facts that make the words defamatory.
• In Tolley v. Fry (1931), a cartoon showed an amateur golfer with a packet of chocolate in his pocket. Those who knew that he was an amateur understood that he had sold his image for money. The House of Lords held that the advertisement was capable of a defamatory meaning.
• The popular example is a report that a woman gave birth to a child. It is innocent unless readers know that she was unmarried.

Step 5: Good faith is no defence

Defamation protects reputation, so an honest belief that the statement is true is not a defence if it is false. Malice matters in other ways: it defeats fair comment and qualified privilege, and it raises damages. The defendant must prove the truth to escape liability.

Step 6: Defences

• Justification (truth). A complete defence if the statement is substantially true. The burden is on the defendant.
• Fair comment. Honest opinion, not fact, on a matter of public interest, based on true facts that are stated or indicated. Malice defeats it.
• Absolute privilege. Statements in judicial proceedings by judges, counsel, witnesses and parties, and in parliamentary proceedings. A complete defence even if malicious.
• Qualified privilege. Statements made in the discharge of a legal, moral or social duty to a person with a corresponding interest, such as a reference by an employer. Proof of malice defeats it.
• Consent of the claimant to publication.
• Apology can reduce damages.

Step 7: Defamation and insult

An insult wounds a person's feelings. It does not lower him in the eyes of others. Publication to a third person is essential to defamation. An insult can be complete when said only to the person's face.

Step 8: Criminal defamation in India

Defamation is also a crime, under section 356 of the Bharatiya Nyaya Sanhita, 2023. In Subramanian Swamy v. Union of India (2016), the Supreme Court upheld the constitutional validity of criminal defamation. It held that the right to reputation is part of Article 21, and that criminal defamation is a reasonable restriction on free speech under Article 19(2). The civil action for damages and the criminal prosecution can both be brought for the same publication.

Step 9: Remedies

• Damages. For harm to reputation, hurt and humiliation. Aggravated or exemplary damages where the conduct was spiteful or reckless.
• Injunction to stop publication, granted with great care because of free speech.
• Correction and apology.
• Takedown for online content.

Don't confuse: libel and slander

Common mistakes

• Saying that honest belief in the truth is a defence. The statement must be true.
• Mixing insult with defamation. Defamation needs publication to a third person.
• Forgetting that the claimant must be identifiable, even if the defendant did not intend him.
• Treating qualified privilege like absolute privilege. Malice defeats qualified privilege only.
• Forgetting that civil and criminal defamation can both be brought.

Apply it

Leading case laws

• Sim v. Stretch (1936)

  Facts. A telegram about a returning maid mentioned money that Sim had "borrowed" from her. Sim sued for defamation.

  Principle. The test is whether words tend to lower the claimant in the estimation of right-thinking members of society generally.

  Significance. The modern test of a defamatory statement.

• Hulton v. Jones (1910)

  Facts. A newspaper used the name Artemus Jones for an invented character. A real barrister of that name sued.

  Principle. It is enough that reasonable readers understood the words to refer to the claimant.

  Significance. Reference to the claimant.

• Tolley v. Fry (1931)

  Facts. A chocolate advertisement showed an amateur golfer. Those who knew the facts took it that he had sold his image.

  Principle. Innuendo: words innocent on their face can be defamatory with extra facts.

  Significance. Innuendo.

• Subramanian Swamy v. Union of India (2016)

  Facts. The petitioners challenged criminal defamation as against free speech.

  Principle. The Supreme Court upheld criminal defamation. Reputation is part of Article 21.

  Significance. Criminal defamation in India.

How to write this answer in the exam

Key points to remember

• Three essentials: defamatory statement, reference to the claimant, publication.
• Test: lowers him in the estimation of right-thinking members of society (Sim v. Stretch).
• Good faith is no defence. Truth is.
• Malice defeats fair comment and qualified privilege, not absolute privilege.
• Civil and criminal defamation (section 356 BNS) can both be brought.

Quick self-test

Related topics

• Injurious falsehood
• Digital Torts
• Malice