Defamation as a Tort in Common Law

Introduction to Defamation. Defamation also called calumny, vilification, slander and libel is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image. Defamation is the publication of a statement which refers on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make then shun or avoid him.

The tort of defamation protects a person’s interest in his reputation. If the defendant had made an untrue statement, or what amounts to a statement, which is defamatory of the plaintiff, the plaintiff has a right of action against him unless the defendant can establish one of the special defenses available to an action for defamation. Since the tort of defamation protects the plaintiff’s reputation, and since reputation depends on what other people think of the plaintiff, the publication of the statement by the defendant to persons other than the plaintiff himself is an essential part of the tort -the purpose of the tort is not to protect the injured the feelings of the plaintiff. The tort goes beyond protecting their mere personal reputation of the plaintiff and extends to the protection of the reputation of his commercial and business undertakings. The rules of the tort represent an attempt to strike a balance between two important and often competing interests, the public interest in freedom of speech and the private interest in marinating one’s reputation.

The difficulty of achieving this balance is perhaps indicated by the fact that, though liability for a defamatory statement is strict and substantial damages might be recovered from the one making the defamatory statement, a large variety of defenses exist for the one who makes such a statement. Regardless of whether a defamation action is framed in libel or slander, the claimant must always prove that the words, pictures, gestures, etc are defamatory.

Secondly, the claimant must show that they refer to him and finally, that they were maliciously published. These are the three essentials elements in a defamation action. There are 2 types of defamation: libel which is generally in a written format and Slander which is in an Oral format. Different rules are applicable to each.

There is no tort unless there has been a communication of the defamatory matter to a third party Slander “… slander … may be divided into five classes, as follows: (1.) Words falsely spoken of a person which impute to the party the commission of some criminal offence involving moral turpitude, for which the party, if the charge is true, may be indicted and punished. (2.) Words falsely spoken of a person which impute that the party is infected with some contagious disease, where, if the charge is true, it would exclude the party from society; (3.) Defamatory words falsely spoken of a person, which impute to the party unfitness to perform the duties of an office or employment of profit, or the want of integrity in the discharge of the duties of such an office or employment. (4.) Defamatory words falsely spoken of a party which prejudice such party in his or her profession or trade. (5.) Defamatory words falsely spoken of a person, which, though not in themselves actionable, occasion the party special damage. “Certain words, all admit, are in themselves actionable, because the natural consequence of what they impute to the party is damage, as if they import a charge that the party has been guilty of a criminal offence involving moral turpitude, or that the party is infected with a contagious distemper, or if they are prejudicial in a pecuniary sense to a person in office or to a person engaged as a livelihood in a profession or trade; but in all other cases the party who brings an action for words must show the damage he or she has suffered by the false speaking of the other party.” [2] The classic definition of defamation is ‘which is calculated to injure the reputation of another, by exposing him to hatred, contempt or ridicule’ [3] Libel In order to found an action for libel, it must b proved that the statement complained of is False In writing Defamatory Published Falsity of the statement The falsity of the charge must be presumed in the plaintiff’s favor [4] .the burden of proof that the words are false doesn’t lie on the plaintiff.

Defamation of a person is held False until it is proved to b true. And if a person has stated that which is false and defamatory, malice is also assumed. But however, the plaintiff alleges in his plaint that the statements made are false and malicious, the motive of the defendant is not material in determining the damages. The motive of the defendant is totally irrelevant.

Nature of Libel Defamatory statements maybe in written, printed or in the form of a caricature. eg. a scandalous picture [5] Princess Irina of Russia, the wife of prince Youssoupoff , claimed damages for libel in a feature film entitles “Rasputin the mad monk”, alleging that the MGM [6] , had published pictures and words in the film which were understood to mean that she there in called “Princess Natasha” had been raped and/or seduced by Rasputin. The jury ruled in favor of the princess and awarded her £25,000 damages. The trial court rendered this judgment and this was confirmed by the Court of appeal.

Under the defamation act of 1952, the broadcasting of any words by means of wireless telegraphy i.e. radio and television is treated as publication in permanent form.

Similarly, The Theatre’s act of 1968(UK), theatrical performances are treated as publication in permanent form i.e. libel. When is it considered as defamatory? Any word will be deemed defamatory which Exposes the plaintiff to hatred, contempt or ridicule; Tends to injure him in his profession or trade Causes him to be shunned or avoided by people Publishing of the material The test is whether the words would “tend to lower the plaintiff in the estimation of the right thinking members of the society” [7] . In applying this test, the statement complained of has to be read as a whole and the words used in it are to be given their natural and usual meanings which maybe understood by common men [8] .

The ordinary man must not try to read it again and again to derive its meaning. The lawyer’s rule states that “in an implication much more freely and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory” [9] If the defamatory statement consists of an article with a headline and photograph, the whole article including the photograph must be taken together and considered whether in its natural and ordinary meaning which may be ascribed to it by ordinary men it is defamatory of the plaintiff. [10] Distinction Between libel and Slander The fundamental distinction was between written words, which were libel and spoken words, which were slander. Nowadays the general test for libel is whether the publication is in a PERMENANT form, other cases being slander. In common law, libel is a criminal offence as well as a civil wrong, but a slander is a civil wrong only. But, as per Indian law, both libel and slander are criminal offences [11] A libel is of itself an infringement of a right and no actual damage needs to be proved in order to sustain such an action.

In common law, slander is actionable only when special damages can be proved to have been its natural consequence, or when it conveys certain imputations. An action maybe maintained for defamatory words reduced to writing, which would not have been actionable if merely spoken [12] Defamatory statements In an action for defamation, the plaintiff must show that the defamatory statement refers to him. It is not necessary for this purpose the plaintiff should have been described by his own name. It is sufficient if the has described him by his initials or even by a fictitious name, provided he can satisfy the court that he was the person referred to. [13] It is immaterial whether the defendant intended the defamatory statement made to apply to the plaintiff or knew of the plaintiff’s existence, if the statement might be understood by anyone who knew the plaintiff.

“a person charged with libel can not defend himself by showing that his intentions were not to defame or insult the plaintiff, in fact when he did both ” [14] In E.Hulton & co. v. Jones [15] an article was published by the defendants in their newspaper the Sunday chronicle by their Paris correspondents describing a motor festival at Dieppe in which a reference was made to a church warden Artemus Jones. It was stated that he was having a happy time with a woman who was not his wife. The plaintiff who was a barrister was baptized as Thomas Jones but did not live at peckham and had not been to the Dieppe festival.

The plaintiff accepted that the writer of the article and the editor of the paper knew nothing of him and did not intend the article to refer to him. The court/jury still awarded the plaintiff damages as the court stated that “it is not even necessary that the plaintiff should have been named at all nor should the statement have a pointer which states that it refers to the plaintiff” Although a statement is not explicitly defamatory, the next statement can not be use to show the former as defamatory, but if the first statement is defamatory, the second statement maybe used to strengthen the case.

When the statement doesn’t expressly relate to the plaintiff, extrinsic evidence can be used to show that the persons knowing the plaintiff understood the statement to relate to him [16] Defamation of deceased persons It is not a tort to defame deceased persons. The law implicitly states that the plaintiff himself must prove that the statements made were referred to him. Moreover, the action doesn’t survive for the plaintiff’s estate on his death. But if the defamatory statement affects the family of the deceased also, the family can sue on behalf of the deceased.

The person defaming the deceased maybe be criminally prosecuted if the statements he made injured the reputation of the person If living or his family or his close relatives. [17] Defamation of a Class of People It may amount to defamation to make an imputation concerning the members of a definite body of persons e.g. a team of players. If a defamatory statement is made against a class of people, one of them could bring about the suit provided he can prove that the defamation was aimed against him. E.g. if a person makes a statement”all students are frauds”.

No particular student can sue unless there is something pointing to that particular student. As stated by Lord Atkin, : “the only rule is that in order to be actionable, the defamatory words must be published and concerning the plaintiff. It is irrelevant if the publication is about two or more people if it is proved to be published of him” Defenses for defamation under common law Justification by truth The truth of defamatory words is a complete defense to an action of libel or slander though it is not so in a criminal trial [18] . Truth is the answer to the suit filed against him but its over rules possibilities of malice in the statement and it doesn’t entitle the plaintiff to get damages.

For the law does not permit a man to get damages for an injury to character which he does not possess. It wouldn’t make a difference to the law if the defamatory statement was made without the knowledge of it being true, then later its was found to b true, it would still be an absolute defense, if the matter was true, the purpose or method of publication holds no value in front of the law. It is not necessary to prove the truth in every bit of the statement made. The gist of the statement must contain the truth. Thus, the statement might not be fully accurate but substantially true.

But if there is a gross exaggeration, the defense of Justification by truth will fail .and also if the statement made was false, the justification of the defendant that he honestly and on reasonable grounds believed it to b true will not qualify to use this defense. Fair and Bona fide comment A Fair and Bona fide comment for public interest is not considered as a libel. [19] Thus, valid criticisms are not defamatory statements.

If the plaintiff suffers a loss, it would come under Damnum sine injuria. This involves all matters of public interest. Some examples of public interest are 1. Administration of justice 2.

Public institutions 3. Local authorities 4. Acts of ministers 5. Affairs of the state Etc. For the defense of a fair comment on the matter of public interest, the matter must be in which the general public have a legitimate interest matters which are related to public broadcast Privilege Privilege means that “the person stands in such relation to the facts of a case that he is justified in saying or writing what would be slanderous or libelous in any one else” [20] Privilage is of 2 kinds Absolute Privilege Qualified Privilege Absolute privilege A statement is said to be absolutely privileged when no action lies even if the statement is made by malice or is false and defamatory. There are 4 main categories for absolute privileges Parliamentary proceedings Judicial proceedings Military and naval proceedings State proceedings Parliamentary proceedings The statements made by the house or its members might be untrue to their knowledge couldn’t be made the foundation of a civil or criminal proceedings, however injurious they might b to the third party.

This privilege doesn’t extend to anything outside the walls of the house or to speeches or materials circulated outside the walls of the house. Judicial proceedings No action of libel or slander lies whether the judges, counsel, witness, or parties, for word written or spoken In the course of proceedings, before any court recognized by the law. This includes words written or spoken, maliciously or with a wicked mind. JudgesA­A­A­-whatever act is done by a judge while acting in his judicial powers is absolutely protected.

Coroner- A coroner deposing in front of a jury is not liable to the words falsely or maliciously spoken during his address to the jury Advocate-no action lies against an advocate for defamatory words used during the course of an enquiry in front of a judicial tribunal Counsel- the counsel’s words are absolutely privileged The madras High court has laid down that an advocate cannot be proceeded against civilly or criminally for words uttered as an advocate in his office [21] Solicitors/ parties/ witnesses/ investigators/ judge/ jurors are also completely free form any defamatory charges against any statement made by them (even maliciously) during the course of their employment. Military and naval proceedings Proceedings of a military or naval tribunal are absolutely privileged. Statements made in front of a military court of enquiry by a military man is protected and classified. State proceedings For reasons of public policy, absolute protection is given to every state related communication. Be it between ministers or the officers of the state.

Other defenses Consent It is a defense that the plaintiff has expressly or impliedly consented to the publication confirmed of where. [22] Apology Where there is an apology, and an acceptance of thereof, the defendant can resist the plaintiff’s suit for damages for defamation. Qualified Privilege: A statement is said to have a qualified privilege when no action lies for it even though it is false and defamatory, unless the plaintiff proves express malice.

Remedies for Defamation As to the remedies for defamation a suit for damages maybe brought. The publication of defamatory material may be restrained by injunction either under S.38 or 39 of the specific Relief Act 1963 Damages for defamation Damages recoverable for a suit against libel and slander will depend of the nature and gravity of the defamation that has been caused to the plaintiff. It also depends on the extent of circulation of the defamatory material, the position in life of the parties and the nature/ situations of the case Mitigation of damages It is permissible for a defendant to seek to mitigate damages by providing any of the following defenses. Evidence falling short of justification Absence of malice Apology at the earliest opportunity Provocation by the plaintiff Bad reputation of the plaintiff Injunction An injunction can be issued by the court ad it as the jurisdiction to interfere to restrain the publication of the libel the jurisdictional authority will not be used by the court unless it is proved that the statements complained about is totally untrue.

Joint action A joint action for slander cannot be brought about jointly against several defendants; separate action needs to b taken against all of them. In the case of verbal slander, each person will be liable only for what he/she said. But an action for slander maybe bought jointly against many defendants where the words spoken aren’t actionable per se.

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