DEFENCES OF DEFAMATION

One day when a girl who is about 17 years old named Manjulata had gone to attend the night classes, a local newspaper with due negligence and irresponsibly published that she ran away with a boy. Due to the statement published by newspaper the girl faced ample of criticism and other problems in the society. The court in this case granted the compensation of Rs. 10,000 to that girl.

The publication of the wrong statement in the above case by the local newspaper is called defamatory statement and hence called Defamation of the particular person or the group. Hence, defamation is the publication of those statements which can harm the reputation and dignity of the person in the society.


Essential Elements of the Defamation:

(1) Publication of the statement – The statement that is made against any person should be published somewhere or reach to large number of people other than the defamed person then only the offence of defamation takes place. Suppose that a person X made some wrong statement about Y which tends to lower his dignity among large number of people then it would led to defamation and not if X gives statement in front of Y only.

Case Laws:

Ram Jethmalani v. Subramanium Swamy[1] – In this case the defendant alleged that the contemporaneous CM of Tamil Nadu have the information that LTTE group would try to kill Rajiv Gandhi. The plaintiff in this case, Ram Jethmalani cross examined the defendant as he was the Senior Counsel of the CM. During the proceeding of the examination, the defendant in written form alleged that Mr Jethmalani had been receiving hefty amount from LTTE. The Honourable court in this case held that this statement of defendant is clearly defamatory in nature.


Ramdhara v. Phulwatibai[2]

In this case, the defendant made the impugned statement that the plaintiff, a widow is the keep of her daughter in law maternal uncle. The court in this case held that the act of the defendant is not only a vulgar abuse but also it harms the reputation as well as dignity of the plaintiff in society and hence the statement is defamatory in nature.

Mahender Ram v. Harnandan Prasad[3]

In this case, the defenfdant sent a defamatory letter written in urdu to plaintiff. The plaintiff didn’t knows urdu, so he gave the latter to third person to read. The court thereby held that this will not led to defamation because letter is considered as private medium of conversation, until and unless the defendant have the knowledge during the time of writing the letter that plaintiff have no knowledge of the urdu language.

Hence, it is crystal clear that the intention matters a lot for proving the offence of defamation.

(2) The Impugned Statement must be against the Plaintiff – The defamatory statement made in any form should be against the plaintiff and the plaintiff should reasonably infer that the statement is published against me only, then it would automatically lead to defamation.


Types of Defamation:

1. SLANDER

2. LIBEL

There are two types of Defamation namely Slander form of defamation and Libel form of defamation.


(1) Slander defamation: It is the type of defamation in which the statements are made by spoken words or any such medium which are visible or audible in nature.

For example – A, a man who is the resident of S Nagar colony made some wrong statements in the oral form about B in front of several other persons. This is called Slander Defamation.

It is important to note here that slander defamation are only actionable on the proof of actual damage and any type of criminal case cannot be lodged against the person who made the statement, except in some situations. Hence, Slander form of defamation are only actionable under civil law and in most cases compensations are granted to the aggrieved person as damages.

(2) Libel Defamation: It is the type of defamation in which the statements are made in the writing, printing and sometimes even through the pictures. In Libel form, defamatory statements are given in the written form and hence they are addressed to the eyes unlike ears in the case of slander defamation. It is permanent in nature and actionable as well in both civil and criminal laws even without producing the proof of actual damage.

For example- D, a newspaper editor published in his newspaper about G some information which are not correct. This is called Libel defamation.


Defences to the Defamation:

There were certain circumstances where the statements are not punishable under any category of law (Civil and Criminal Law).


The defences against the defamation are as follows –

A. Justification : When someone made a statement which is looking defamatory in beginning but if he justifies the statement by presenting the facts related to the same then it is the absolute defence against the defamation. All in all we can say that, Truth is the complete defence against the offence of defamation. Taking the example that Mr T made a statement that will harm the reputation of Mr O in the society, but Mr. T also presented the facts in support of his Statement then the statement is not defamatory in nature.

Hence, if someone able to justifies his or her statement which is made publicly and presents the truth in front of court and in everywhere in support of the statement then it is not considered as defamation.


B. Fair Comment & Bonafide Comment: Any statements which are made in the interest of public are not considered as defamatory until and unless if there is not any malafide intention. The defence of fair comment based on the fundamental right of every person which are granted by the constitution that ‘every person have the right to free speech and expression’ and ‘every person have the right to comment and criticize on the work of public sector , authors etc’



Essentials for the defence of fair comment are as follows

a) The comment passed or made by any person should be in public interest matters.

b) Any comments which are made should solely based on the facts.

c) The comment made should only express the opinion about any work.

d) There should not be any type of malafide intention while making the comment.

C. Privilege: It is the type of defence in which a person is completely immune against the offence of defamation even if he made those statements which are defamatory in nature. This defence can be made during the proceedings of the honourable court, during the speeches of the political leader (MPs and MLAs) in the parliament. Absolute privilege are also provided to government officials, legislators during the time of debate in the parliament.

For example , if X , a MP made some defamatory statement during parliamentary debate against Y, then in this scenario Mr. X is protected under the defence of privilege.

The member of parliament have the right under sec. 105 and 194 of the constitution of India that give them immunity and also have special freedom of speech which is slightly different from the freedom of speech and expression guaranteed under sec 19 of the constitution. Section 105 provides that any the member of parliament shall not be liable for any statement made during parliamentary debate but not after that. The protection under both the section are provided only during the session of the parliament and not after the adjourning of the session.


Conclusion

The purpose of the defamatory law is to protect the dignity, respect and reputation of the person in society from the impugned statement made against the person. Although every one have the right to freedom of speech and expression under Article 19 but the use of our right at the cost of reputation of other is not justifiable in constitution and hence the constitution of India have some reasonable restrictions as well. However in some cases publication of defamatory statements are allowed, (for example, MPs are immune from the liability during the period of debate or if we made any comment which is correct and also which are in interest of general public) and those are known as defences to the offence of defamation.

[1] Ram Jethmalani v. Subramanium Swamy, AIR 2006 Delhi 300 [2] Ramdhara v. Phulwatibai, 1970 CriLJ 286 [3] Mahender ram v. Harnandan Prasad, AIR 1958 Pat 445.



This article is written by Aditya Raj Pandey, of Symbiosis Law School, Hyderabad.

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