Alliance School of Law

Torts Project

Torts of Defamation

Researched & Submitted by: Asession and Supervision by :

Dasi Sai Teja Prof.Srinidhi
B.A. LL.B. (Hons.) - Alliance school of law
1st Year, II Semester Alliance University

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Table of Contents
ACKNOWLEDGMENT………………………………………………………………………………………………………………………...…....3

Introduction of Defamation..........................................................................................................4

Kinds of Defamation..........................................................................................................5
Essentials of Defamation...............................................................................................................7
Injunction against publication of a defamatory statement..............................................14
Defences........................................................................................................................16
Recent Cases of Defamation......................................................................................................22
Research Question ....................................................................................................................23

Conclusion......................................................................................................................24
Bibliography.....................................................................................................................25

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 ACKNOWLEDGEMENT
Writing a project is one of the most significant academic challenges, I have ever faced. Though this
project has been presented by me but there are many people who remained in veil, who gave their all
support and helped me to complete this project.

First of all I am very grateful to my subject teacher Prof.Srinidhi madam without the kind support
and help of whom the completion of the project was a herculean task for me. she donated the
valuable time from her busy schedule to help me to complete this project and suggested me from
where and how to collect data.

I am very thankful to the librarian who provided me several books on this topic which proved
beneficial in completing this project.

I acknowledge my friends who gave their valuable and meticulous advice which was very useful and
could not be ignored in writing the project.

Last but not the least, I am very much thankful to my parents and ,especially my dad who always
stand aside me and helped me a lot in accessing all sorts of resources.

I thank all of them!

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Introduction

“Tortious Liability arises from the breach of a duty primarily fixed by the law: this duty is

towards persons generally and its breach is redressible by an action for unliquidated

damages.” --- Winfield.

From the definition given by Winfield it is clear that a tort is a breach of duty recognized
under law of torts, e.g. violation of a duty to injure the reputation of someone else results in
the tort of defamation. One of the important intangible assets that a man possesses is the
respect and esteem of others. In other words it is the reputation of the person. A person’s
reputation is the estimate in which others hold him, not the good opinion which he has of
himself.
In modern times, every person has a right to the preservation of his reputation as against
the whole world. An injury to the reputation is thus as much, or in many cases, more
damaging and disturbing than loss of wealth or property.

Defamation
When a person injures the reputation of another person, he is said to have committed a tort of
defamation. The person who injures the reputation of another is called defamer and the
person whose reputation is injured by the defamer is known as defamed.1
According to Winfield, “Defamation is the publication of a statement which tends to
lower a person in the estimation of right thinking members of society generally; or
which tends to make them shun or avoid that person.”
According to Section 499 of the Indian Penal Code, “Whoever by words, either spoken

or intended to be read or by signs or by visible representations, makes or publishes

any imputation concerning any person intending to harm or knowing or having
reasons to believe that such imputation will harm, the reputation of such person, is

1
Tomlin’s Law Dictionary

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said except in specified cases, to defame the person”.2
A defamatory statement is not necessarily made in words, either written or spoken. A
man may defame another by his acts, no less than by his words. Defamation is a
statement which is to expose a person to hatred contempt or ridicule, or to injure him
in his trade, business, and profession. It is further divided in to libel and slander.
To establish defamation the first and the fore most thing is to establish these
ingredients, they are:
 It has to be defamatory.
 It must be referred to the plaintiff.
 The statement has to be published.
 It has to be a false statement.
And these ingredients have to be established an action of tort of defamation.
Libel and Slander both are defamatory and the former is in permanent form .i.e.,
written or pictures and the latter in transient form .i.e., spoken or gestures.
Defamation is a both a civil wrong and criminal offence in India. As a civil wrong a
tortious liability can be raised and as a criminal offence a criminal case can be filed
under sec.499 of Indian Penal Code, 1860.
In India law both libel and slander are considered wrong under both civil and criminal
law. But in common law libel is both a civil and criminal wrong but slander is just a
civil wrong and actionable only when special damage is proved.
Kinds of defamation
English Law
According to English law, defamation is of two types:-
1) Libel
2) Slander

Libel
As pointed out by Winfield, a libel consists of a defamatory statement or representation in
permanent form; e.g. printing, writing, statute, picture, mark or sign exposed to view. Libel is
addressed to eye. It is actionable per se that is without proof of damage. 3

2
Indian Penal code 1860
3
The Law of Torts by Ratanlal And Dhirajlal 27th Edition

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In Youssoupoff Vs. M. G. M. Pictures Limited [{1934} 50 T.L.R. 581], 4in the course of
film produced by an English Company called Metro Goldwyn Mayer Pictures Limited, a
lady, Princess Natasha, was shown as having relations of seduction or rape with a man
Rasputin, a man of the worst possible character. In an action for libel, the jury awarded
25,000 pounds as damages to the plaintiff and the judgment was affirmed in her favour by
the Court of Appeal.

Slander
According to Winfield, when a defamatory statement is conveyed by spoken words or
gestures it is slander. Slander is addressed to ear. Pollock is of the view that the
defamatory matter recorded on a gramophone which is not accompanied by any pictorial
matter is potential slander. It is actionable only but in certain exceptional cases it can be
actionable per se (i.e. without proof of special damage). These exceptions are as follows:-
1) Imputation of a criminal offence punishable with imprisonment.

2) Imputation of a communicable disease likely to prevent other persons from

Associating with the plaintiff.
3) Imputation of unchastity or adultery to any woman or girl.

4) Imputation of unfitness, dishonesty or incompetence in any office, profession,

calling, trade or business held or carried on by the plaintiff at the time when the slander

was published. 5

Indian Law
There is no statutory law of defamation in India except what is contained in Chapter 21,
Indian Penal Code. The Criminal Law in India does not make any distinction between
libel and slander. Both libel and slander are criminal offences under Section 499 of the
Indian Penal Code.
In. D. P. Choudhary Vs Manjulata {A.I.R. (1997) Rajasthan, 170}, 6 the plaintiff,
respondent, Manjulata about 17 years of age belonged to a distinguished educated family
of Jodhpur. She was a student of B.A. There was publication of a news in a local daily,

4
www.swarb.co.uklawtimes
5
Law of Torts by G.S. Pandey
6
https://indiankanoon.org/doc/295448/

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Dainik Navjyoti, dated 18th December, 1977 that last night at 11 p.m. she had run away with
a boy named Kamlesh, after she went out of her house on the pretext of attending night
classes in her college. The news item was untrue and was published negligently. She was
shocked and ridiculed by the persons who knew her and her marriage prospects were
adversely affected. It was held that the statement was defamatory and hence defendant is
liable and asked to pay compensation of Rupees 10,000.

Essentials of Defamation
1) The words must be defamatory.
2) The said statement must refer to the plaintiff.
3) The statement must be published. 7

1) The words must be defamatory

A statement is defamatory when it has a tendency to injure a person’s reputation. The test
of the defamatory nature of a statement is its tendency to excite against the plaintiff the
adverse opinions or feelings of others, such as hatred, ridicule or contempt.
In S.N.M. Abdi Vs Prafulla Kumar Mohanta [ A.I.R. { 2002} Gauhati 75], 8an article was
published in the ‘Illustrated Weekly of India’ dated the 8th September, 1990, made certain
allegations of misuse of man and muscle power by deposed Chief Minister of Assam,
Prafulla Kumar Mohanta. The article was held to be defamatory in nature and the plaintiff
was awarded Rs 5,00,000 as damages.
In determining whether a statement is defamatory or not, the intention with which it was
used by the defendant is immaterial. Good faith or ignorance of the defamatory nature of
statement is no defence. In
Morrison Vs Ritihie and Co. [{1902} 4 F 654 {A Scottish Court of Session decision}],
9 the defendant company had published a notice that on a certain date the wife of G.
Morrison had delivered twin sons. But Mr. G. Morrison and his wife had been married a little
more than a month before the date announced in the notice. Even though the defendants
were ignorant of this fact, they were held liable.
The Innuendo

7
Ratanlal & Dhirajlal, The Law of Torts, 27th edition,
8
Indian Kanoon
9
Cases and Material on Law of Torts by Dr. S. Kuba

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Certain statements are prima facie defamatory because their natural, obvious and primary
sense is defamatory. On the other hand there may be certain statements which are prima
facie innocent but may be proved to have a latent secondary defamatory meaning, from the
circumstances. Such a statement is called innuendo. The burden of proving innuendo lies
on the plaintiff.
In Cassidy Vs Daily Mirror Newspapers Limited [ {1929} 2 K.B.331],10 the plaintiff Mrs.
Cassidy was generally known as the lawful wife of Mr. Cassidy, who was also known as
Michael Dennis Corrigan, an owner of race horses. Though the plaintiff and her husband
did not live together, he usually visited her in a shop where she was employed and stayed
with her in her flat. At a horse race meeting Mr. Cassidy posed, in company with a lady, to a
racing photographer and told the photographer that he was engaged to marry the lady and
he might announce it. The photographer, without any further inquiry sent the photograph to
‘Daily Mirror’ with an inscription, “Mr. M. Corrigan, the race horse owner, and Miss X whose
engagement has been announced”. The ‘Daily Mirror’ published the photograph along with
the inscription. Mrs. Cassidy brought an action for libel on the ground that the inscription is
the innuendo which meant that she was an immoral woman who cohabited with Mr.
Corrigan without being married to him. The Court of Appeal held that the innuendo was
established and the defendant was held liable.

2) The statement must refer to the Plaintiff

In an action for defamation the plaintiff must prove that the statement could reasonably be
understood to refer to him. If the plaintiff is mentioned by name, there is usually no difficulty
about this. If there is nothing to connect the plaintiff with the publication he must fail. The
reason for this requirement is very simple one. In every tort the plaintiff has to prove the
injury he has suffered. He can not build a tort case on the basis of a wrong done to
someone else. Unless the words are referred to the plaintiff his reputation can not be
affected thereby. This reference may be made in various forms:-

10
Cases and Material on Law of Torts by Dr. S. Kuba

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 a) Reference without any name: It is not necessary that the reference should be
made by name. In T.G.Goswami Vs The State of Pepsu [A.I.R. {1952} Pep. 165,
167]11, the charge was made that several thousand of rupees had been embezzled
in the purchase of printing machinery for a state press and the staff wagon. As the
complainant, as the head of the department, was the chief or the sole authority to
effect the two purchases. Any reasonable reader could know that the complainant
was the person charged with misappropriation but it was contended by the
defendant that the complainant was not specifically mentioned. The contention was
rejected by Court and held that if the reasonable persons who read the publication
could know who was aimed at then the fact that name was not specifically
mentioned was immaterial.

b) Statement referring one person but defaming another: A statement referring to

one person may, under certain circumstances, be defamatory to some other
person. That other person will have a cause of action against the maker or
publisher of the statement, e.g. if A says to B that C is an illegitimate child, A
defames C’s mother and she can sue A for defamation.
c) Unintended reference: It is not necessary that the defendant should have
intended the defamatory statement to refer to the plaintiff. The question is whether
persons to whom the statement was published might reasonably think that the
plaintiff was the person referred to and not whether the defendant intended to do
so. The defendant can not plead that he never made reference to the plaintiff, or
that he never knew that any person of the name of the plaintiff really existed.
In Newstead Vs London Express Newspapers Limited [{1940} 1 K.B.377], 12the

defendant published an article stating that “Harold Newstead, a Camberwell man”

had been convicted of bigamy. The story was true of Harold Newstead, a

Camberwell barman. The action for defamation was brought by another Harold

Newstead, a Camberwell hairdresser. As the words were considered to be

understood as referring to the plaintiff, the defendant was held liable.

11
Heuston Cases on Law of Torts by Cecil A Wright
12
Mavrkydefamationcaselaw 32nd edition

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In Indian Express Newspaper (Bombay) Private Limited and another Vs Dr.
Jagmohan Mundhra and another [A.I.R. {1985} Bombay 229], 13 A journalist Ashwini
Sarin who was working for the plaintiff company did some extensive investigation into
flourishing flesh trade in Madhya Pradesh and purchased a woman named Kamla from
village Shivpuri in M.P. for Rs 2,300. Then he wrote a series of articles which were
published in Indian Express. In the meantime the defendant, a film producer made a movie
named Kamla. In the movie a journalist, who is shown as dominating husband who treats
his wife as a slave, purchased a woman named Kamla in order to attract the attention of
Government and the public at large towards the flourishing flesh market in U.P., M.P and
Rajasthan. The plaintiff claimed that the entire sequence of events have been taken by the
defendant from the articles as written by Ashwini Sarin and converted into a movie, thus
infringing the copy right of the plaintiff in the said articles. The plaintiff also claimed that the
public at large would not know the truth and they would associate the twists and distortions,
as shown in the movie, with the plaintiff. It was also claimed by the plaintiff that the entire
characterization of the journalist is defamatory to him. The defendant contended that the
film is pure work of fiction and the characters in the film has no resemblance to any real life
characters. The Bombay High Court held that once the identity of the journalist was
established, the entire characterization of the journalist in the movie is defamatory to the
plaintiff. Thus the defendant was held liable even though he did not intend to defame the
plaintiff.
Thus a defendant may be held liable even though he did not intend to refer the words to the
plaintiff. This may cause hardship in some cases, particularly to the writers of fiction and
their publishers. With a view to remove this hardship, English law has been amended by
passing Defamation Act, 1952. Section 4 of the Act provides that an innocent publisher
may avoid his liability by publishing reasonable correction and apology as soon as possible
after he came to know that the words published by him were considered to be defamatory
to the plaintiff, and by paying reasonable expenses incurred by the plaintiff as the result of
the publication of the defamatory matter concerned.14

13
Indian Kanoon [A.I.R. {1985} Bombay 229}
14
Defamation Act 2013

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In T.V. Ramasubha Iyer Vs A.M.A. Mohindeen [A.I.R.{1972} Madras 398], 15 the
defendant published a news item in their daily “The Dinamalar” dated 18th Feb, 1961 that a
person who was exporting agarbathis to Ceylon, has smuggled opium into Ceylon in the
form of agarbathis and he was arrested and brought to Madras after opium was found in
some parcels. The plaintiff (respondent), who used to manufacture and export agarbathis to
Ceylon, brought an action for defamation against the defendant (appellants). The defendant
pleaded that they were not aware of the plaintiff‘s existence and they did not intend to
defame him. Further on coming to known that the plaintiff was defamed due to their
publication of news item, they had published a correction in their issue dated 14 th May,
1961 stating that the news item in question did not refer to the plaintiff. The Madras High
Court after referring to the English Law as amended by Defamation Act, 1952, held that
in India there was no liability for the statements published innocently. Therefore the
defendants in the present case were not liable.

d) Defamation of a class of persons: When the words refer to a group of individuals or a

class of persons, no member of that group or class can sue unless he can prove that the
words could reasonably be considered to be referring to him. Thus, if a person wrote
that all lawyers were thieves, no particular lawyer could sue him unless there was some
thing to point to the particular individual.

In Partap Chander Vs King Imperor [A.I.R {1925} Calcutta 1121], it was held that the
words, “The British Government themselves and the superior officers including from
District Magistrate down to the Darogas and Chowkidars were all beasts” were held to
be not defamatory of any particular officer16.
An individual member of the class can, however, sue for defamation in following cases:-
1) Where the class is so small that what is said of the class is necessarily said of each
and every member of the class.
2) Where although words seems to refer to a class, yet in the circumstances of a
particular case they in fact refer to a particular individual. If it can be proved that the
words are directly applicable to a particular individual, a suit may be filed by such
15
Madras Law Times Report 398{A.I.R(1972)}
16
[A.I.R {1925} Calcutta 1121],The Law of Torts By Harry Street

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 individual. In Le Fanu Vs Malcolmson [{1848} 1 H.L. Cas. 637], the defendant
published in the newspaper a statement that cruelty was practiced upon employees
in some of the Irish factories. From the article as a whole including a reference to
Waterford itself, the Jury found that plaintiff’s Waterford was aimed at in the article
and the defendant was held liable for the defamation.

e) Corporations: The reputation of a corporate body differs from that of a natural person.
When an action is brought by a corporation for defamation it must prove that :-
1) the words complained of are defamatory in the way of its business;
2) that they were published by the defendant; and
3) that they refer to the plaintiff.

In Union Benefit Guarantee Co. Ltd. Vs Thakorlal [A.I.R.{1936} Bombay, 114], in a

resolution passed by a committee, the defendants recommended boycott of certain
insurance companies including the plaintiff company alleging that a large number of
managing directors of such companies were adventurers who filled their pockets at the
cost of ignorant poor people. The defendants were held liable for defamation and Rs
1000 and costs were awarded to the plaintiff company.17
f) Deceased person: Defaming a deceased person is no tort. However under
Criminal law it may amount to defamation to impute any thing to a deceased
person, if the imputation would harm the reputation of that person, if living and is
intended to be hurtful to the feelings of his family or other near relatives{Section
499, Explanation-1 Indian Penal Code}.
If a statement, though relating to a deceased person affects the reputation of the
plaintiff, he may maintain an action; e.g. a statement alleging that X (the deceased
mother of the plaintiff) was a prostitute. The plaintiff can file a case for defamation
against the defendant.18

In Prameela Ravindran Vs P. Lakshmikutty Amma [A.I.R. {2001} Madras, 225],

the respondent (P. Lakshmikutty Amma), who was the mother of deceased,

17
Cases and Material on Law of Torts by Dr. S. Kuba
18
Indian Penal Code

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 disputed the marriage between the applicant (Prameela Ravindran) and the
deceased. The respondent had been sending letters to various persons relating to
the marital status of the applicant. The applicant contended that she was the wife
of the deceased Ravindran and she produced a marriage certificate dated 10th
November, 1984, issued by the Temple Authorities showing the fact of marriage
between Prameela and Ravindran. Apart from that she also produced an
agreement of marriage between the parties and also the LIC policy and passport
wherein the applicant has been described as Ravindran’s wife. Thus the letters
were held to be defamatory and the respondent was restrained from making such
statements and sending such letters.19

3) The statement must be published

Publication in its legal sense implies making or communicating the defamatory matter to
some person other than the person defamed. It is not necessary that the communication be
made to more than one person. Publication need not be intentional nor it can be justified or
excused on the ground that it was made accidentally, by mistake or by honestly believing in
its truth. The concept of publication can best be understood by a simple example-sending a
defamatory article to the editor/ printer of a newspaper constitutes publication- the
appearance of the article in the paper is a second publication and constitute a separate
cause of action. Communication to the person defamed himself, however, is not sufficient
publication, though it is otherwise a case of criminal prosecution. A communication between
husband and wife does not amount to publication; domestic intercourse of this kind is
exempted from the restrictions of the law of libel and slander. But a statement by the
defendant to husband or wife of plaintiff is ground of action for defamation. The
communication between husband and wife is treated as privileged communication as per
the Indian Evidence Act.

19
Indian Kanoon

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In T.J.Ponnen Vs M.C. Verghese [A.I.R {1970} S.C. 1876],20 T.J. Ponnen wrote a number

of letters to his wife Rathi, containing defamatory matter concerning her father, M.C.

Verghese. Rathi passed these letters to her father. The father-in-law launched a

prosecution against his son-in-law complaining the defamatory matter contained in those

letters. Ponnen contended that the letters were written by him to his wife and as per the

virtue of Section 122 of Indian Evidence Act, these could not be treated as evidence

against him. The Kerala High Court agreed with the contention of Ponnen and he was not

held liable. But the Supreme Court reversed the decision of Kerala High Court and held

that if the communications between the husband and wife have fallen to his hands, he could

easily prove the defamation. Since the letters were in his possession and were available for

being tendered in evidence the son-in-law was liable for defamation.

Sending the defamatory letters to the plaintiff in a language supposed to be known to him,
is no defamation. If a third person wrongfully reads the letters meant for the plaintiff, the
defendant is not liable. If a defamatory letter sent to the plaintiff is likely to be read by some
body else, there is a publication. When the defamatory matter is contained in a postcard or
telegram, the defendant is liable even without the proof that some body else read it,
because a telegram is read by the post office officials who transmit and receive it, and there
is high probability of the postcard being read by someone. If the letter sent to the plaintiff is
in a language which the plaintiff does not understand the defendant is liable because he
knew or ought to have known that the letter will be read by some third person.
In Mahendra Ram Vs Harnandan Prasad [A.I.R. {1958} Pat. 445], the defendant sent a
defamatory letter written in Urdu to the plaintiff. The plaintiff did not know Urdu and
therefore the same was read over by a third person in the presence of some other persons.
It was held that in the absence of pleading and finding that the defendant wrote the letter in
Urdu knowing that the plaintiff did not known Urdu and therefore it would necessitate asking
some body to read the letter to him, the defendant was not responsible for the publication of
defamatory matter.

20
Law of Torts by G.S. Pandey

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Injunction against publication of a defamatory statement:21
An injunction can be issued to prevent the person from making defamatory statements if
the Court is satisfied that there is a likelihood of immediate and pressing injury to the
person’s reputation.
[P.Ravindran Vs P. Lakshmikutty Amma, {A.I.R. (2001) Madras 225}].
22

Repetition of defamatory matter :23

Every time a defamatory matter is repeated, it is deemed to be a fresh publication and it
gives rise to a fresh cause of action. In case of repetition the writer, publisher, editor etc. all
are liable in the same way as that of the originator. In Wards Vs Weeks [{1830} 4 Moo.
And P. 808], A slandered B in C’s hearing, and C, without authority, repeated the slander to
D. Due to this D refused to trust B, it was held that no action lay against A, the original
defamer, as the damage was the result of C’s unauthorized repetition and not of the original
statement.
There is an other class of persons who might communicate the matter without knowing its
contents, such as booksellers, newspaper vendors or librarians, but the Courts adopt a
lenient attitude towards them. Such persons can avoid their liability by establishing that:- 1)
they did not know, or 2) inspite of reasonable diligence could not have known that what they
were circulating was defamatory. In Emmens Vs Pottle [{1885} 16 Q.B.D. 354], the
defendants who were large scale news-vendors, sold copies of publication containing
defamatory matter concerning the plaintiff. It was found that they neither knew nor were
negligent in not knowing the matter and hence there was no publication on their part, held
they were not liable.

Indemnity from the supplier of wrong information

In Gurbachan Singh Vs Babu Ram [A.I.R. {1969} Punjab, 201], wrong information was
supplied to the editor of a newspaper which was of defamatory nature. The editor published
it without verifying it to be true. Ultimately he was convicted for publication of defamatory

21
Law of Torts by Harper and James
22
Indian Kanoon
23
Law of Torts by Harper and James

15
 matter and he claimed indemnity from the supplier of the information. It was held that the
editor has no legal right to get only correct information, so he should have verified the
information before publishing the same, as ultimately he is the person who would be held
responsible for the same. Thus in this case no relief was granted to the editor.24
Plaintiff’s consent to publication: Provocation
The consent of the plaintiff to the publication of a defamatory matter, or to the presence of
third person when he had reason to expect such a publication about him, is a complete bar
to any action against the publisher. In Wuttke Vs Ladanyi [226 III. App. 402, 80 N.E. 895
(1922)], the plaintiff, who had been discharged from work, took the president of his local
union with him to the defendant to demand an explanation. The defamatory statement was
made during this meeting; the Court held that the defendant was not liable as the
statement was made for a proper purpose to a person having an interest in the subject
matter.

Defences25
When the plaintiff has proved that there has been publication of defamatory statement

concerning him the defendant in his turn can plead the following defences to escape the

liability:-

1) Justification or truth: Defamatory statement is presumed to be false and plaintiff need not
prove it. The defendant can plead justification or truth and if he can establish it by evidence,
he has a good defence even if the words were published maliciously as per the Civil Law
of a country. The reason is that the law will not permit a man to get compensation for the
injury to the character or reputation which he does not possess. But in Criminal Law truth
is a defence only if it is stated for public good.
For the plea of justification it is not necessary that the defamatory statement should literally
be true, it is sufficient if it is true in substance. But it should be noted that the erroneous
details do not aggravate the defamatory character of the statement or alter its nature. In
Alexander Vs North Eastern Railway [ (1865) 6 B and S 340]26, the plaintiff has been
convicted for traveling without a ticket in train and had been fined 1 pound or two weeks
imprisonment in default of payment. The defendants had published a statement stating that

24
A.I.R. {1969} Punjab, 201
25
The Law of Torts by Ramaswamy Iyer Law
26
Heuston Cases on Law of Torts by Cecil A Wright

16
the plaintiff was fined 1 pound or 3 weeks imprisonment in default of payment. It was held
that the defendants were not liable as the statement was substantially true.
Section 5 of Defamation Act, 1952, “In an action for libel or slander in respect of words
containing two or more distinct charges against the plaintiff, a defence of justification shall
not fail by reason only that the truth of every charge is not proved if the words proved to be
true do not materially injure the plaintiff’s reputation having regard to the truth of the
remaining charge”. In India there is no such provision yet generally English Law is
followed.
In Abdul Wahab Galadari Vs Indian Express Newspapers (Bombay) Limited and
others [A.I.R. {1994} Bombay, 69], a suit for damages was filed against the publisher,
editor, printer and author of three articles published in the newspaper to be defamatory of
the plaintiff. An application for interim injunction was submitted, pending the determination
of the suit, restraining the defendants from writing, publishing or re-publishing or printing
any article alleging that the plaintiff is smuggler of arms to India or an agent of ISI (
Pakistan’s Inter Service Intelligence) and also requiring the defendants to publish apology.
The defendants claimed that the statements made in the articles were true and they were in
a position to justify the same before the Court and they also submitted certain documents
in the Court. The Bombay High Court observed that it is true that the allegations are of
very grave nature but the defendants were justified in publishing the information as they
gathered it from authenticative source. The material so furnished also showed that the
Government Agencies have strongly suspected the involvement of plaintiff in smuggling
activities.Thus the Court did not find any merit in the application and refused to grant
interim injunction.27
2) Fair Comment: The defence of fair comment is very essential for preserving freedom of
speech and expression. Honest criticism ought to be, and is, recognized in any civilized
system of law as indispensable to the efficient working of any public institution or office,
private persons who make themselves or their work the object of public interest. It is
taken as good defence in India also as is clear from the remark of the Seervai
(Constitutional Law of India, 3rd Edition, Volume 1, Page 495). Seervai says that existing

27
[A.I.R. {1994} Bombay, 69],

17
 law relating to defamation is a reasonable restriction on a fundamental right of freedom
of speech and expression conferred by Article 19 (1) (a) of the Indian Constitution.
Fair comment means honest criticism of a matter of public interest. The honest criticism
means that it must be made by a person, who believes the statement to be true and is
not actuated by malice. Thus, for fair comment to be a defence, the following conditions
must be satisfied:28

a) It must be a comment: The comment is an expression of opinion – an inference or

conclusion from facts. If it is mere statement of facts, the only defences available are
justification and privilege. But comment being a matter of opinion, and not capable of
definite proof, the one who expresses it, is not called upon by the law to justify it as
being true, but is allowed to express it, even though others disagree with it, provided
it is fair and honest. Whether a statement is one of fact or a comment depends upon
the language, the context and other circumstances. A simple illustration of the
distinction is given by the Indian Penal Code.” It states that if A says of a book
published by Z, “Z’s book is foolish; Z must be a weak man; Z’s book is indecent; Z
must be a man of impure mind.” These are comments and will be protected, if they
are not malicious. If A says, “I am not surprised that Z’s book is foolish and indecent,
for he is a weak man and of impure mind.” This is not a comment, but a statement of
fact and A can not plead the defence of fair comment, but must prove his words to
be true.”29
In Joynt Vs Cycle Trade Publishing Co [(1904) 2 K.B. 292], the defendants, who
were the proprietors and editors of a trade journal published an article suggesting
that the plaintiff, a solicitor, had enriched himself at the expense of the shareholders
in certain companies and was unfit to be trusted. They were held liable as there were
no facts to support the imputations. 30
b) The comment must be fair: The comment to be fair must be based upon true facts.
A comment based upon invented and untrue facts is not fair. In Merivale Vs Carson
[{1887} 20 Q.B.D. 275], the review of a play was made and immorality was imputed

28
ILR 1956 Nag 439.
29
Indian Penal Code
30
wikipedia

18
 by suggesting that it contained an incident of adultery, but in fact there was no such
incident in the play. The plea of fair comment was rejected.
The defence of fair comment can be taken even if some of the facts stated may not
be proved. Whether the comment is fair or not depends upon whether the defendant
honestly believes that particular opinion. It is not the opinion of the Court as to the
fairness of the comment but the opinion of the commentator which is material. If due
to malice on the part of defendant, the comment is a distorted one, his comment
ceases to be fair and he can not take such a defence. In R.K. Karanjia Vs
Thackersey [A.I.R. {1970} Bombay, 424], the defendant published an article
against the ‘House of Thackersey’ a business organization, headed by the plaintiff.
The article suggested that the plaintiff had exploited his position in increasing his
wealth by unlawful and questionable means, involving tax evasion, financial jugglery,
import–export rackets by obtaining licenses in the name of bogus firms and factories,
and customs and foreign exchange violations. The plaintiff brought an action for
defamation. At the Trial Court the defences of justification, fair comment on the
matter of public interest were pleaded. All the defences were rejected and it was held
that the plaintiff had been grossly defamed, and Trial Court passed a decree of Rs
3, 00,000 with costs and also issued an injunction forbidding the publication of such
articles. However the High Court reduced the amount of compensation from
Rs 3, 00,000 to Rs 1, 50,000.31

c) The matter commented upon must be of public interest : In order to support the
defence of fair comment, it is necessary that the circumstances exist which make it a
matter of public interest that the plaintiff’s ability, integrity, morality or conduct should
be subject to public criticism. There seems to be two classes of cases in which fair
comment is permissible:-
(a) Matters in which the public have a legitimate interest directly or indirectly,
nationally or locally, clear examples being the administration of justice, the affairs
of Parliament, the conduct of Government and of public servants, the mode in
which local authorities and other public bodies perform their functions, the
31
A.I.R. {1970} Bombay, 424],

19
 management of public hospitals and other public institutions.
(b) Matters which are expressly or impliedly submitted to public criticism or attention,
established examples being books, pictures, works of art, theatres, concerts and
other dramatic performances, but not including the private lives of public
performers. Here reference can be made to the case of Merivale Vs Carson
[(1887) 20 Q.B.D. 275].

3) Privilege: The general rule is that a man who defames does so at his own peril. A
privileged statement is an exception to this rule. It is said that it is the occasion, in which
the statement is made is privileged and not the statement. There are occasions on
which freedom of expression of views, without fear of an action for defamation, is
considered more important than the protection of the reputation of the person. The
privileges may be of two types:32

a) Absolute Privilege: A statement is absolutely privileged, if no action lies for it, even
though it is false and is made maliciously with a view of causing injury to the plaintiff.
Such privilege is available, where the communication is of such paramount importance
that nothing should defeat it. Here the individual’s interest is completely subordinated to
that of the community. Absolute privilege is recognized in following cases:
1) Parliamentary Proceedings: Article 105 (2) of Indian Constitution provides that
statements made by members of either House of Parliament in Parliament, and the
publication by or under the authority of either House of Parliament of any report,
paper, votes or proceedings can not be questioned in a Court of law. A similar
privilege exists in respect of State Legislatures, according to Article 194(2).
2) Judicial Proceedings: No action for libel or slander lies, whether against judges,
counsels, witnesses or parties for words written or spoken in the course of any
proceedings before any Court of law, even though the words were written or spoken
maliciously, without any justification and from personal ill will and anger against the
plaintiff. This protection is granted by the Judicial Officers Protection Act, 1850. If,

32
Law of Torts by Balbir Sahai Sinha

20
 however, the words are irrelevant, not having any relevance to the matter before the
Court, such a defence can not be pleaded. In Jiwan Mal Vs Lachhman Das
[{1929} Lah. 486], on the suggestion of a compromise in a petty suit by Trial Court,
Lachhman Das, a witness in the case, said, “A compromise can not be effected as
Jiwan Mal stands in the way. He had looted the whole of Dinanagar and gets false
cases set up”. Jiwan Mal was a Municipal Commissioner of Dinanagr but he had no
relation with the suit under question. In an action against Lachhman Das for slander,
the defence was pleaded that there was absolute privilege as the statement was
made before the Court of law. The High Court considered the remark to be
irrelevant to the matter under inquiry and rejected the defence of privilege and held
the defendant liable.
3) State Communications: A statement made by one officer of the state to another in
the course of official duty is absolutely privileged for reasons of public policy. Such
privilege extends to reports made in the course of Military and Naval Duties.
Communications relating to state matters made by one minister to another is also
absolutely privileged.
b) Qualified Privilege: There are certain occasions, which are not so important
from the point of view of society as to warrant absolute privilege. But for
common convenience and welfare of society, communications made on such
occasions need protection. For such communications, law allows only qualified
privilege, which protects such statements as are made without malice. Such a
privilege is available either when the statement is made in discharge of a duty
or protection of an interest or a publication is in the form of parliamentary,
judicial or other public proceedings. Thus to avail this defence, the defendants
have to prove two points:
1) Statement was made on a privileged occasion; and
2) Statement was made without any malice.
In Radheshyam Tiwari Vs Eknath [A.I.R. {1985} Bombay, 285], the
defendant publish a series of articles making serious allegation against the
plaintiff. In the articles it was mentioned that the plaintiff, a B.D.O.(Block
Development Officer), issued false certificates, accepted bribe, adopted corrupt
and illegal means in making wealth. In an action for defamation, the defendant

21
 pleaded three defences namely justification, fair comment and qualified
privilege. All the defences were rejected. The defence of justification could not
be available as the truth of the fact could not be proved. The defence of fair
comment was not allowed because there was statement of fact, rather than
expression of opinion. The defence of qualified privilege also could not be
availed because the publications were malafide and the editor consciously tried
to defame the B.D.O. The defendant was held liable in this case.33

Recent Cases
2001 : 1St case of Cyber Defamation: Asia’s 1st case of Cyber defamation has been filed
in India under the name “ SMC Pneumatics (India) Pvt. Ltd. Vs Jogesh Kwatra” being Suit
No. 1279/2001. The case is being handled by India’s leading Cyber Lawyer Mr. Pawan
Duggal. In this case, the defendant being an employee of the plaintiff company started
sending defamatory, obscene, vulgar and abusive emails to his employers and different
subsidiaries of the said company all over the world with the aim to defame the company
and its M.D. Mr. R.K. Malhotra. The plaintiff company on discovering it terminated the
services of defendant and filed a suit for permanent injunction restraining the defendant
from doing such illegal acts. Hon’ble Mr. Justice J.D.Kapoor of Delhi High Court passed an
interim injunction restraining the defendant from sending such emails to the plaintiffs or to
its subsidiaries all over the world. This order of Delhi High Court assumes tremendous
significance as this is for the first time that an Indian Court assumes jurisdiction in a matter
concerning cyber defamation.34
2003: In April, Jayalalitha, Chief Minister of Tamil Nadu, expelled 43 opposition members

from State Legislature and briefly jailed them. When ‘The Hindu’ published two articles and

an editorial criticizing her actions, Jayalalitha responded by filing as many as 17 separate

criminal defamation cases against ‘The Hindu’, according to the paper’s editor N. Ram.

Another editor and publisher are named in all the cases, along with 8 staff members who

are cited in different individual cases against the paper. If they are convicted, the journalists

33
Law of Torts by Winfield and Jolowicz
34
Indian Kanoon

22
face upto 17 times two years sentences, which could be served either concurrently or

consecutively.

2006: Harkishen Singh Surjeet, the 88 years old General Secretary of Communist Party of
India, wrote an article on behalf of his party describing Anupam Kher as a member of RSS.
Stung by the description Kher has filed a defamation case against Surjeet. Kher said he
expects Surjeet to acknowledge that he was wrong characterizing him as a member of RSS
and he wanted this wrong to be corrected.

Research Question:
 Is it necessary that the defamatory statement so alleged by the plaintiff
must be directed towards the plaintiff and if so should the plaintiff had the
knowledge of it that statement?

Yes,the st in Aloknath Bhadra vs Alok Dut Das, there was no avertment in the
complaint, that either Depali Press or the petitioner as the partner thereof,
knowing or having reason to believe that the alleged imputation would harm the
reputation in the respect of complainant printed the said alleged defamatory
matter hence no charge of defamation could be made.
 To defame a dead person is not a tort – The maxim, actio personalis moritur
cum persona – Applies in India.

Right to dignity and fair treatment, under Article 21 of the Constitution of India
is available to living man as also a dead body. False imputation amounts to
defamation, whether the concerned person is alive or dead. The maxim, action
personalis mortiur cum persona, applies in India, therefore the death of party,
whether wronged or the wrong doer brings to an end the cause of action. In other
words cause of action does not survive with the death of such person. To defame
a dead person is not a tort, but if such statement though expressly referring to the
deceased; reflects upon the plaintiff; and affects his reputation, an action is
maintainable35
35
Mehrotra’s Commentary on Law Of Defamation, Damages, Malicious Prosecution. 7 th Edition.

23
Conclusion:
Defamation means publication of such statement, which tends to injure the reputation of
other person. In modern society, every person is entitled to his good name and has a right
to claim that his reputation will not be injured by any person by making defamatory
statements about him to a third person without any lawful justification. The primary aim of
the law of defamation is to prevent a person from indulging in unnecessary or false criticism
arising possibly out of malice & thereby laying down standards of speech and writing; and
at same time, to encourage and maintain honest, legitimate and true criticism for the benefit
of the society. In other words, the law of defamation protects reputation and the defences to
the wrong such as justification, fair comment and privilege protects freedom of speech.

24
BIBILOGRAPHY
1.Indian Kanoon
2.Wikipedia
3. The Law of Torts by Ramaswamy Iyer
4. Law of Torts by Winfield and Jolowicz
5. The Law of Torts by Harry Street
6.Law of Torts by Ratanlal and Dheerajlal
7. Cases and Material on Law of Torts by Dr. S. Kuba
8. Law of Torts by G.S. pandey

9. Law of Torts by R. K. Bangia

10.Cases on Law of Torts
by Cecil A Wright
11. A Text Book of the Law of Torts by Winfield

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