PROJECT REPORT

On

DEFAMATION
CONTENTS:
Introduction - Defamation
Kinds of Defamation
Essentials of Defamation
Injunction against publication of a defamatory statement
Repetition of Defamatory matter
Indemnity from supplier of wrong information
Plaintiffs consent to publication
Defences
Recent cases
Conclusion

SUBMITTED TO :

BY :

Mrs. ANUPAMA GOEL

KULWINDER KAUR
LL.B. 1st SEMESTER
SECTION - B
ROLL NO. 84

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 persons 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.
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 said except in specified cases, to defame the person.
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.

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.
In Youssoupoff Vs. M. G. M. Pictures Limited [{1934} 50 T.L.R. 581], in 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.

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}, 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, 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.

1) The words must be defamatory

A statement is defamatory when it has a tendency to injure a persons 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], an 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}], 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
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], 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: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], 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 Cs 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], the 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.

In Indian Express Newspaper (Bombay) Private Limited and another Vs Dr. Jagmohan
Mundhra and another [A.I.R. {1985} Bombay 229], 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.
In T.V. Ramasubha Iyer Vs A.M.A. Mohindeen [A.I.R.{1972} Madras 398], 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 plaintiffs 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 officer.
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 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

plaintiffs 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.
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.
In Prameela Ravindran Vs P. Lakshmikutty Amma [A.I.R. {2001} Madras, 225], the
respondent (P. Lakshmikutty Amma), who was the mother of deceased, 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 Ravindrans wife. Thus the letters were held to be defamatory and the
respondent was restrained from making such statements and sending such letters.
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.
In T.J.Ponnen Vs M.C. Verghese [A.I.R {1970} S.C. 1876], 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.

Injunction against publication of a defamatory statement:

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 persons reputation.
[P.Ravindran Vs P. Lakshmikutty Amma, {A.I.R. (2001) Madras 225}].

Repetition of defamatory matter :

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 Cs
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 Cs 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 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.

Plaintiffs 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.

Defences
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], 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 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 plaintiffs 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 ( Pakistans 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.

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 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:
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, Zs book is foolish;
Z must be a weak man; Zs 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 Zs 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.
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.
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 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, importexport 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.
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 plaintiffs 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 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:
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 individuals 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,
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 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.

Recent Cases
2001 : 1St case of Cyber Defamation: Asias 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 Indias 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. Honble 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.
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 papers 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 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.

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.

LIST OF BOOKS REFERRED:

The Law of Torts by Ramaswamy Iyer
Law of Torts by Winfield and Jolowicz
The Law of Torts by Harry Street
Law of Torts by Ratanlal and Dheerajlal
The Law of Torts by Durga Das Basu
Cases and Material on Law of Torts by Dr. S. Kuba
A Text Book of the Law of Torts by Winfield
Law of Torts by G.S. Pandey
Law of Torts by R. K. Bangia
Law of Torts by Harper and James
The law of Torts by S. K. Kapoor
Law of Torts by Balbir Sahai Sinha
Salmond on Law of Torts by R.F.V. Heuston
Cases on Law of Torts by Cecil A Wright

 Handbook of the Law of Torts by William L Prosser

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