“DEFAMATION”
1. INTRODUCTION
Defamation is wrings effecting
reputation of a person. To constitute the tort of defamation a defamatory
statement should not only be published but it should tend to lower the
reputation of a person in the eye of society. Libel and Slander are two kinds
of defamation.
2.
DEFINITION
1
According to Winfield
“Defamation
is the publication of a statement which tends to lower a person in the
estimating of right thinking members of the society.”
3.
ESSENTIALS OF TORT OF DEFAMATION
Following
are essentials of tort of defamation.
I.
The Words Must Be Defamatory
To
constitute a tort of defamation the word must be defamatory. The words may be
defamatory in their ordinary and natural meaning or in view of some special
fact.
II.
The Words Must Refer To The
Plaintiff
The
words must refer to the plaintiff in the tort of defamation.
III. Publication
Of Words
The
words must be duplicated.
2. KINDS
OF DEFAMETION
There
are two kinds.
(i)
Libel
(ii)
Slander
I.
LIBLE
A
libel is a publication of a false and defamatory statement in permanent nature
from tending the reputation of another person without lawful justification
(i) Ingredients of libel
Following are the
main ingredients of libel.
a) Written
statement
b) Defamatory
c) Falsity
d) Injury
e) Refer
to the plaintiff
f) Publication
II.
SLANDER
A
slander is a false and defamatory verbal or oral statement in some transitory
form relating to a person tending to injuray the reputation.
1
Ingredients
of slander
a)
Verbal
statement
b)
False
c)
Defamatory
d)
Relates
to the plaintiff
e)
Publication
f)
Damage
(i)
General rule
It is
general rule in the law of torts that slander would be actionable only when plaintiff
proves special damage suffered by him from slanderous statement made by the
defendant.
(ii)
Exceptions
There are cases
under the law of torts where slander is actionable without the proof of special
damage. Following are the cases when slander is actionable per se i.e. special
damage to the plaintiff need not to be proved.
(a)
Statement Imputing Conviction To The Plaintiff
Of Criminal Case
Where words charging the plaintiff with the
commission of a criminal offence punishable corporally e.g. theft, robbery, dacoity,
murder etc.
(b) Statement
Imputing Infectious And Contagious Disease To The Plaintiff
If a
contagious or infectious disease tending to exclude the plaintiff from the
society, be imputed to him. No proof of the special damage is required.
(c)
Statement
Injuring a Person in his Business, Office or Trade
If any injurious imputing be made, affecting the
plaintiff in his office, profession, trade, or business and imputes to him.
Unfitness for a misconduct that calling.
(d)
Statement
Imputing Unchastity to a Woman
Words
imputing unchasitity or adultery in a female.
(e)
Statement Injuring Malversation in a Public
Office Trust
Words
imputing dishonestly or malversation in the public office of the trust.
Ø Onus to proof
In slander onus of proof lies on
plaintiff. The court pass decree in favour of plaintiff only if he has suffered
injury. Two types of damage which the plaintiff suffered.
(i)
General
damage.
(ii)
Special
damage.
3. DEFENCES
TO AN ACTION OF DEFAMATION
Following
are defences to an action of defamation.
(a) Truth
of the statement
If
the statement is true and correct it would be a complete defence and
justification in an action of defamation.
(b) Fair
and Bonafide Comment
Fair
and bonafide comment on matter of public interest would also be a defence.
Ø Conditions
(i) Words
must be fair.
(ii) Expression of opinion.
(iii) There must be allegation of a fact.
(iv) Comments must be within limit.
(v) There should not malice.
1
Examples
(i) Cartoons
of politicians.
(ii) Political commentary
(iii) Theatres,
concerts and other public entertainments.
(c) Privileges
Privilege
is also a justification or defence in an action of tort of defamation. If a
person stands in such a relation to the facts of the case that he is justified
in saying or writing what would be defamatory, he is said to have privileged.
(i) Kinds of privileges
(a) Absolute
privilege
A statement is
said to be absolute privilege when no action under defamation would be for it
even though it is false or defamatory.
Ø Classification
of Absolute privilege
Classification
of absolute privilege is as under:
(i)
Parliamentary proceedings
(ii)
Judicial proceedings.
(iii) Military proceedings.
(iv) Navel proceedings.
(v) State proceedings.
(b)
Qualification
privilege
A statement is
said to have qualified privilege when no action under liable or slander would
lie of it even though it is false unless the plaintiff prove express malice of
the defendant.
1
Examples:
(i)
Statement about the performance of duty.
(ii)
Statement made in protection of common
interest.
(iii) Accurate report.
4. DISTINGUISH
BETWEEN LIBEL AND SLANDER
I. AS TO
FORM
Ø Libel
is in written form.
Ø Slander
in verbal form.
II. AS TO
NATURE
1 Libel
is in permanent nature.
2 Slander
is in temporary nature.
III. AS
TO PROOF
3 Libel
is actionable per se.
4 Slander
is actionable on proof of damage.
IV. AS
TO CRIME
5 Libel
is a civil wrong and a crime.
6 Slander
is a civil wrong only.
V. AS TO
MALICE
7 Malice
is always present in case of libel.
8 Presence
of malice in slander is not necessary.
VI. AS
TO PUBLICATION
9 In
libel publisher may be innocent.
10 In
slander publisher is always guilty.
VII. AS
TO APPLICATION
11 Innuendo
principle applies in libel.
12 Innuendo
principle does not apply in slander.
VIII. AS
TO LIMITATION
13 Period
of limitation in libel is six years.
14 Period
of limitation in slander is two years.
5. CONCLUSION
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