Essentials of defamation

Defamation refers to the act of making a false statement about another person that harms their reputation in the eyes of society. It is a civil as well as a criminal wrong, recognised in both common law and statutory law. In essence, defamation protects an individual’s right to reputation, which is regarded as an extension of the right to life and personal liberty. Under English law and the Indian Penal Code, 1860 (Section 499), defamation is defined and punishable, encompassing both written and spoken forms.

Meaning and Nature of Defamation

The term defamation is derived from the Latin word diffamare, meaning “to spread ill fame.” It involves communicating false information to others that lowers the person’s moral or social standing, exposes them to hatred, ridicule, or contempt, or causes them to be shunned by society.
Defamation can take two primary forms:

• Libel: A defamatory statement in a permanent form, such as in writing, print, pictures, or any other recorded medium. Libel is generally actionable per se, meaning damage is presumed and need not be proved.
• Slander: A transient or spoken form of defamation, such as speech or gestures. In common law, slander requires proof of actual damage unless it falls under specific exceptions like imputation of crime or unchastity.

Under Indian law, both libel and slander are treated as criminal offences of equal gravity, unlike English law where libel alone is actionable without proof of damage.

Essentials of Defamation

For a statement or act to amount to defamation, certain essential elements must be present. These are crucial for determining liability, whether in civil or criminal proceedings.

1. The Statement Must Be DefamatoryThe first essential element is that the statement must be defamatory in nature, meaning it should tend to lower the person’s reputation in the estimation of others. It must expose them to hatred, ridicule, or contempt, or cause them to be avoided by society. The test is an objective one—how an ordinary, reasonable person would interpret the statement, not the subjective feelings of the person concerned.
   • For instance, imputations of dishonesty, immorality, or incompetence are typically defamatory.
   • Mere insult or abuse, however, is not defamation unless it has the effect of damaging reputation.

   The intention of the person making the statement is not decisive; what matters is the effect on the reputation of the person concerned.

2. The Statement Must Refer to the Plaintiff or ComplainantThe defamatory statement must clearly or by implication refer to the person alleging defamation. It is immaterial whether the defendant intended to defame a specific individual; if a reasonable person can identify the plaintiff from the words used, the element is satisfied.
   • In Hulton & Co. v. Jones (1910), a newspaper published a fictional story using the name of a real person. Even though it was unintended, the Court held the defendants liable as readers could identify the plaintiff with the character.

   Identification may be direct or indirect, by name, description, image, or circumstances implying reference to the plaintiff.

3. The Statement Must Be PublishedPublication, meaning communication of the defamatory matter to at least one person other than the plaintiff, is an essential element of defamation. Without publication, no injury to reputation occurs, as one’s reputation exists in the minds of others.
   • If a defamatory letter is written and read only by the plaintiff, there is no publication.
   • However, if it is read by a third party—such as a clerk, typist, or messenger—the element of publication is fulfilled.

   In Mahendra Ram v. Harnandan Prasad (1958), the Court held that sending a defamatory letter written in a language the plaintiff could not read, thereby requiring assistance from a third person, amounted to publication.

4. The Statement Must Be FalseTruth is an absolute defence against defamation. Hence, to constitute defamation, the statement must be false. If the statement is true and made for public good, it does not attract liability under law.Under Section 499, IPC, the imputation must be false and made with the intention to harm, or with knowledge or reason to believe that it will harm, the reputation of another.
5. The Statement Must Be Made with Fault or MaliceIn most legal systems, including India, defamation requires a degree of fault—either intention, knowledge, or negligence. Malice does not necessarily mean ill-will but refers to the absence of lawful justification or excuse. A person may be liable even if they acted in good faith but without due care to verify the truth.
6. The Statement Must Cause Harm to ReputationThe ultimate test of defamation is the injury to reputation. The statement should be of such nature that it tends to harm the individual’s standing in society or profession. The harm may be presumed in some cases (as in libel) or proven by evidence (as in slander).

Defences to Defamation

The law of defamation recognises several exceptions or defences to protect legitimate freedom of expression. These include:

• Truth: If the statement is true and made for public benefit, it is not defamatory.
• Fair Comment: Honest opinion on matters of public interest, such as criticism of government policies, artistic works, or public officials, is protected.
• Privilege: Certain statements made in privileged circumstances are exempt. These include:
  • Absolute Privilege: Statements made in Parliament, judicial proceedings, or official communications.
  • Qualified Privilege: Statements made in discharge of a legal, moral, or social duty, provided they are made without malice.
• Consent: If the plaintiff consented to the publication, no defamation arises.
• Innocent Dissemination: Booksellers, printers, or online intermediaries may not be liable if they had no knowledge of the defamatory content.

Defamation Under Indian Law

Under Section 499 of the Indian Penal Code, defamation is defined as making or publishing any imputation concerning any person with the intention to harm, or knowing or having reason to believe that it will harm, that person’s reputation. The punishment for defamation is provided under Section 500, which prescribes imprisonment up to two years, or fine, or both.
The section also enumerates ten exceptions, including imputation for public good, opinion on public performance, or caution conveyed in good faith. Indian law, therefore, balances the right to reputation with the constitutional guarantee of freedom of speech and expression under Article 19(1)(a), subject to reasonable restrictions under Article 19(2).