Defamation

Law of Torts

TANMOY MUKHERJEE INSTITUTE OF JURIDICAL SCIENCE

Dr. Tanmoy Mukherjee

Advocate

Defamation-

Tanmoy Mukherjee

  Advocate

-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. Of which tends to make them shunned or avoided.

-According to Salmond "Defamation" is the publication of false and defamatory statements concerning another person, without lawful justification.

-According to Black's Law Dictionary "Defamation" is the act of harming the reputation of another by making a false statement to a third person.

-Lord Atkin in Sin vs Stretch said that "defamation" is a statement which tends to lower the plaintiff in the estimation of right thinking members of society generally.

-According to Dr. Mukherjee "Defamation" is the publication of a false statement about a person without justification which tends to lower the reputation of that person in the estimation of right thinking members of society generally.

Types of Defamation-

Defamation is of two types-

Libel-

 Libel is defamation expressed in some permanent or physical form-such as writing, printing, pictures, films or online publications.

According to Winfield Libel is defamation by written or printed words or by any form of communication embodied in a permanent form.

Features:-

1. Permanent in nature-

Recorded in a lasting medium (paper, film, internet).

2. Actionable per se-

 Claimant does not need to prove special damage, the law presumes harm.

3. Criminal and Civil liability-

 Libel may be both a tort and a crime.

4. Wider publication-

Reaches a larger audience, thus causing greater reputational harm

Examples-

i.A newspaper falsely accuses a public official of corruption.

ii.A social media false post calling someone a fraud.

iii.A caricature or photo implying immoral behavior.

Reference cases-

Slander-

Slander is defamation in a transient or non-permanent form, usually through spoken words, gestures or sounds.

According to Salmond, slander is the publication of a defamatory statement in a transient form such as spoken words or gestures.

Features-

1. Transitory- Not recorded or preserved.

2. Actionable only upon proof of actual damage- Not actionable per se, except in special cases.

3. Difficult to proof- Ephemeral in nature and often based on oral evidence.

Examples-

i) A false verbal accusation in a public meeting.

ii) Gossip that someone committed adultery.

iii) Defamatory gestures.

When Slander is actionable per se-

Slander is not actionable per se, meaning that the plaintiff must prove special damage—actual, pecuniary or material loss—resulting from the slanderous statement.

Reference Case-

Slander actionable per se-                                                           

There are some exceptions where slander is actionable without proof of special damage-

1.Imputation of a crime-

 A false statement imputes to the plaintiff the commission of a criminal offence punishable by imprisonment. It is actionable per se.

Reference Case-

2.Imputation of a contagious or loathsome Disease:

If someone falsely alleges that another have a contagious on Loathsome Disease (e.g. Leprosy, venereal disease, AIDS, COVID-19) it is actionable per se.

Reference Cases-

 

3.Imputation affecting office, Profession, trade or business-

 A false statement injuries a person in their professional reputation on business is actionable per se.

Reference Cases-

 

4.Imputation of unchastity-

Words imputing unchastity to a woman wear traditionally actionable per se.

Reference Case-

 

Cast based slander-

 Cast based Slander is actionable per se.

Reference Case-

 

Difference between Libel and Slander-

Basis	Libel	Slander
1. Meaning	Libel is defamation in a written, printed or other permanent form.	Slander is defamation by spoken words, sounds, gestures in a temporary form.
2. Definition	According to Salmond, Libel is a defamatory statement made in some permanent and visible form, such as writing, printing, picture or effigies.	According to Salmond, Slander is a false and defamatory statement addressed to the ears, expressed by spoken words or gestures and not embodied in any permanent form.
3. Form	Permanent and Visible.	Transitory, audible or Visible only momentarily.
4. Medium	Books, Newspapers, letters, cartoons, online posts, online comments, printing or photographs.	Speech, verbal comments or gestures.
5. Nature	Usually treated as both a civil wrong and a criminal offense.	Generally, a civil wrong; becomes criminal only in special cases (like imputing unchastity to woman).
6. Proof of Damage	Damage is presumed; the plaintiff does not have to proof actual loss.	Damage must be proved except in a few cases (like imputing a crime or disease).
7. Seriousness	Considered more serious, as it can reach many people and remains permanent.	Considered less serious, since it's temporary and reaches fewer people.
8. Intent	Malice or intent is because of the deliberate nature of publication.	Must often be proved explicitly.
9. Publication	Exist the moment when the written statement is shared or seen by a third person.	Exist when the defamatory words are heard or seen by a third person.
10. Legal Action	Actionable per se (no need to prove actual damage).	Actionable only on proof of special damage, unless exception applies.
11. Example	Writing or printing that, "Mr. A is murderer/rapist/thief/ cheater in a newspaper or online posts.	Saying in public "Mr. A is a murderer/rapist/thief/ cheater".
12. Evidence	Easy to prove - written or printed record available.	Harder to prove - depends on witness's testimony.
13. Indian position	Both forms are recognized under Section 356 of the Bharatiya Nyaya Sanhita, 2023 (Section 499 Indian Penal Code, 1860), though the distinction is more relevant in civil law.	Slander generally requires stronger proof of actual harm.
14. Leading Case	i) Cassidy v/s Daily Mirror Newspapers Ltd. (1929) 2 K.B. 331. ii) Monson v/s Tussauds (1894) 1 Q.B. 671  iii) D.P. Choudhury v/s Manjulata, A.I.R. 1997 Raj. 170.  iv) Ram Jethmalani v/s Subramaniam Swamy, A.I.R. 2006 Del. 300.	i)Morrison v/s Ritchie and Co., (1902) 4 F. 654 .  ii) Nihal Singh v/s Arjun Das, 1982.