DEFAMATION

Section 499 of the Indian Penal Code says, "Whoever, by words either spoken or intended to read or by signs or by visible makes or publishes any imputation concerning any person intending to harm, the reputation of such person is said to defame that person"

• The law of defamation is based upon the fundamental principle that is the reputation of a member of society.
• In this connection, we must not a subtle distinction between reputation on the one hand and character on the other.
• The character of a person signifies the reality about him whereas reputation indicates only what is reported of him by others.
•  Reputation means what is thought of a person by others and is constituted by public opinion.
• It is external to him while his character is internal.
• The law of defamation aims at giving protection only to the external reputation of a person and not to his internal character.

DEFAMATION

Defamation is both a civil and criminal wrong. Mischief to a private individual is the basis of the law civil defamation, while mischief to the society is the basis of criminal defamation.

DEFINITION: Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society or which tends to make them shun or avoid that person.

It is Libel if the statement is in permanent form and slander if it consists of insignificant words or gestures.

It was thought that defamation would tend to bring a person into hatred but now it is recognized that the person is shunned and avoided.

For eg: If A falsely says of respectable young lady B that she had been raped by X against her consent, there is no moral discredit attached to her arising out of this statement but other youngmen hearing this statement may hesitate to marry her.

They will have full sympathy towards her but nevertheless, they may shun or avoid her society.

Case law: Youssoupoff V. Metro Goldwyn Mayer

The plaintiff in this case was a Russian Princess. The defendants who were cinematograph film producers and distributors produced a talking film called "Rasputin, the Mad Monk". The plaintiff alleged that in the film it was falsely imputed that she had been seduced by Rasputin, a man of vile character. The defendants were held liable as it tended to make the plaintiff be shunned and avoided.

Difference between Libel and Slander

• The term Libel undoubtedly indicates something printed or written but it includes also anything recorded in more or less permanent form addressed to the eye which could be seen, such as painting, photograph, statue, wax, cartoon, etc.
• Slander is defamation communicated by spoken words or others sounds addressed to the ears or by gestures. It is transient.
• Thus, defamatory gestures, made by the deaf and dumb, mimicry will also be slander.
• It is doubtful whether defamatory matter on gramophone records is libel or slander.
• It is Libel because it is permanently recorded in a plate and at the same time when an actual publication takes place it assumes the form of slander.

Difference between Slander and Libel in England

• Libel, if it tends to provoke a breach of the peace, is a crime as well as tort.
• Slander as such, generally, would never give rise to criminal proceedings except in cases where it happens to be blasphemous.
• Libel is actionable per see,i.e without proof of special damage.
• If a defamatory article is published in B's newspaper about A, the law will presume damage in favour of A and the burden of proof is on the defendant to show some justification.

Slander is actionable per se without proof of special damage in the following cases:

• Imputation of an offence punishable with imprisonment:-  Where there is an imputation of a criminal offence punishable with at least imprisonment in the first instance.
• Imputation of disease:- Imputation of a contagious or infectious disease likely to prevent other persons from associating with the plaintiff.
• Imputation of adultery, unchastity:- Imputation of unchastity or adultery to any woman or girl. This exception was created by the Slander of Women Act (1891) Act.
• Imputation of unfitness:- Imputation of unfitness, dishonesty or incompetence held by the plaintiff.

ESSENTIAL INGREDIENTS OF DEFAMATION

The essential ingredients of the tort of defamation which apply both to libel and slander are the following:

• Malice: Malice here means nothing more than doing an act intentionally without any lawful justification or excuse. Whenever it is clear that the defendant has committed as prima facie, the law would impute malice to the defendant.
• They must be defamatory:  Defamatory statements are of three types - 

1.  words prima facie defamatory - In the case of words prima facie defamatory, the plaintiff need to prove nothing more than publication and the court will presume damage in his favour.
2.  Words capable of an innocent - In the second class of cases, the language is ambiguous as to where it is equally capable on the face of it of 2 meanings the one defamatory and the other innocent.
3. Words prima-facie non-defamatory - In this third class of cases, the words are not prima facie defamatory but innocent, the plaintiff must expressly outlined in his pleadings the defamatory sense. Such statements are called an Innuendo.

• The words must have reference to the plaintiff: To succeed in an action of defamation the plaintiff must only prove that the words were defamatory, but also that they refer to him. He must identify himself as the person defamed
• They must be published: Publication is an essential element of the civil law of defamation. The publication is the communication of the words to at least one person other than the person defamed. If they are uttered in the hearing of the person slandered only, there is no publication and therefore no action would lie.