Dr.

Ram Manohar Lohiya National Law University

Lucknow

Law of Torts

Final draft

On

PLAINTIFF MUST BE PROVE THAT DEFAMTORY STATEMENT

WAS REFFERED TO HIM DEFAMATION.

Under supervision of: Submitted by:

Mr.RadheyShyam Prasad Lokesh Nigam

Assistant Professor (Law) Roll no. 74

B.A.LLB. (Hons.)
 Acknowledgement

This project venture has been made possible due to the generous co-operation of various
persons. To list them all is not possible, even to pay them in words is beyond the domain
of my lexicon. I would like to express my sincere thanks and deep gratitude to Mr.
Radheyshyam Prasad without whose thorough and insightful guidance this project work
would not have been a success.

I express my sincere thanks to the library staff of RMLNLU and my friends for their co-
operation in my endeavour.
 Table of content

Topic page no.

 Introduction....................................................................................1-2

 Essentials of defamation................................................................3-5

 The statement must be defamatory......................................3

 The statement must refer to the plaintiff..............................3-4

 The statement must be published.........................................4-5

 Defence to the tort of defamation.................................................6-11

 Justification..........................................................................6-7

 Fair comment.......................................................................7-8

 Privilege...............................................................................8-11

 List of cases.....................................................................................12

 Bibliography....................................................................................13
 Introduction
The right of reputation of a person is an asset of a person just as any other property and
any injury to it is as much actionable as an injury to a man’s property tangible or man,
during his life time to the unimpaired possession of his reputation and good name is
recognised by law he who directly communicates to the mind of other matter untrue and
likely in the natural course of things substantially to disparage the reputation of a third
person is, on the fact of it, guilty of legal wrong for which the remedy lies in an action of
defamation.

It is a jus in rem a right absolute and good against the entire world. A man’s reputation is
his property and if valuable than other property.

Winfield’s definition – “defamation is the publication of a statement which tends to

lower a person in estimation of right-thinking members of society, generally , or which
tends to make then shun or avoid that person.

In S.N.M. Abdi v P.K. Mahanta (AIR 2002 Gauh. 75) it was held that in order to
defamatory a publication must tend to lower the plaintiff in the opinion of men whose
standard of opinion the court can properly recognize or tend to induce them to entertain a
ill-opinion of him.

Defamation is of two kinds:-

 Libel: a libel is the name given to defamatory statement or representation in

writing or otherwise recorded. e.g. by printing typing ,lithography ,picture
,photography ,cinema ,films ,caricature ,statute ,effigy model or other physical
symbol like fixing up gallows in front of a person’s house. A libel is a publication
of false and defamatory statement tending to injure the reputation of another
person without lawful justification or excuse.

 Slander: a slander is a false and defamatory verbal statement tending to injure the
reputation of another. It is clear that a written or printed defamation is libel and
spoken defamations slander. Or in other words, libel is addressed to the eye and
 slander is a defamation addressed to the ear. Libel is permanent while slander is
transitory.

Illustration

A advertises that his goods are better than those of his rival trader B. This statement is
false and malicious and causes loss to B in his business. B is entitled to damages from A
for slander of his goods by A.

In Youssoupoff v M.G.M. Pictures Ltd (1934) 50 T.L.R. 581, it was held that not only the
photographic part of it is considered to be a libel but also the speech synchronised with it
is also a libel.

In England Section 1 Defamation Act., 1952 declares that broadcasting of words by

means of wireless telegraph shall be treated as publication in permanent forms hence a
libel.
 ESSENTIALS OF DEFAMATION

The following essentials must be proved by the plaintiff in a case of defamation.

1. THE STATEMENT MUST BE DEFAMATORY

The words must be defamatory i.e. the words must tend to lower the plaintiff’s
reputation in the estimation of right-minded persons, or must tend to cause him to be
shunned or avoided. So, any words will be deemed to be defamatory which

 Expose the plaintiff to hatred, contempt, ridicule, obloquy or

 Tend to injure him in his profession or trade or

 Cause him to be shunned or avoided by his neighbours.

In S.N.M. Abdi v P.K. Mahanta (AIR 2002 Gauh. 75) it was held that that in order to
defamatory a publication must tend to lower the plaintiff in the opinion of men whose
standard of opinion the court can properly recognize or tend to induce them to entertain a
ill-opinion of him. However, the plaintiff need not show a tendency of community e all of
his associates, but is sufficient to establish that the publication tends to lower him in the
estimation of the substantial, respectable group.

The defamatory statement may be malicious or negligent. Where a proprietor of a

newspaper published erroneously, which he believed to be true, that the plaintiff has
given birth to twins although she was married only a month ago. He was held liable [
Morrision v Ritchie and Co, (1902) 4 P.465 ]

Sometimes it may be possible to have several interpretation of a statement particularly in

cases involving innuendoes. The courts in such cases reject those meaning which can
emerge only as the product of some strained or forced or utterly unreasonable
interpretation.
2. THE STATEMENT MUST REFER TO THE PLAINTIFF

It is sufficient if the plaintiff is described by the initial letters of his name, or even by a
fictitious name provided he can satisfy the court that the words referred to him. It is
material whether the defendant intended to refer to the plaintiff or he knew the plaintiff’s
existence, it is sufficient if the statement might be understood by those who knew the
plaintiff to refer to him –Le Faric v. Malcolmson (1848) 1 H.L.C. 537, 668. The reason is
that a man publishing a libel does so at his own risk. A person charged with libel cannot
defend himself by showing that he intended in his own breast not to depend upon the
intention of the defamer, but on the fact of defamation. It is also not necessary that the
entire world must know that it refers to the plaintiff. It was sufficient if the person who
knew the plaintiff understood it to refer to the plaintiff – Bourke v Warren, (1825) 2 C.P.
307.309.

Intention or motive immaterial – Liability for libel does not depend on the intension of
defamer but on the facts of defamation this will become evident from the following cases:

 E.HULTON & Co. v. Jones.1919 A.C. 20- the appellants, In their newspaper,
published an article in which one.’’Artemus Jones” was accused of living with a
mistress in France. The appellants were ignorant of the existence of any person
who bore the name. Unfortunately the name of an English barrister and journalist
and those who know him supposed the article to refer to him, held by the House
of lords, that the appellants were liable not withstanding the absence of any
intention to defame the plaintiff

 Cassidy v Daily mirror Newspaper, (1929) 2 K.B. 331

 Newstead v London express etc. (1940) 2 K.B. 377- A newspaper published an

account of trial for bigamy and referred to the prisoner as “Hertold Newstead,
thirty year old cumber well man.” The account was not true as regards the
plaintiff. In an action by the plaintiff against the proprietor of newspaper it was
held that the fact that were true of another person did not afford a defence to the
defendants
3. THE STATEMNT MUST BE PUBLISHED

Publication means making known the matter to some person other than the plaintiff

According to the Lord Haslbury, “A defamatory statement is a statement is a statement

which, if published of and concerning a person is calculated to lower him in the
estimation of right thinking men or causes him to be shunned or avoided or to expose him
to hatred, contempt or ridicule or convey to an imputation on him, disparaging or
injurious to him in his office, profession, trade or business. It follows, therefore that
everything printed or written, which reflected on the character of another and published
without lawful justification is defamation. Thus the publication is an essential ingredient
in this case.

The following must be to third person that is to any person other than defamer and the
defamed.

(a)The publication must be to the third person other than defamer and the defamed. The
uttering of a libel by a husband to his wife is no publication.

Exception: sending a defamatory letter to wife about her husband or to a husband

about her wife is sufficient publication. The husband and wife in such cases are
regarded as distinct and different persons for such purpose- Jones v Williams (1885)
1 T.L.R. 572

(b) A publication is not sufficient unless it is made to a person, who understood the
defamatory significance of the statement; who also understood that it referred to the
plaintiff

(c) Publication is presumed in certain cases – in all such cases the document is so put in
the way of being read or understood by someone, that it probable that he actually read
and understood it.

(d) Unintentional publication- publication need not be intentional, for it is sufficient that
it is due to the negligence of the defendant.
(e) repletion- every repetition of defamatory words is a new publication and distinct
cause of an action

DEFENCES TO THE TORT OF DEFAMATION

The following defences are available in action of defamation:-

1. JUSTIFICATION OR TRUTH

The truth of defamatory words is a complete defence to an action for libel or slander
[Parkins v Scott (1892) 1 H.C. 15]. It is not the law that it has any special relish for the
indiscriminate truth to other people, but defamation is an injury to a man’s reputation and
if people think the worse of him when they hear the truth about him that merely shows
that his reputation has been reduced to its proper level. At the same time justification is a
dangerous plea if it is the only one which the defendant decides to adopt, for f he fails in
it, he likely to regard the conduct as wanton, calling for heavier damages. [Associated
Leisure Ltd v Associated Newspapers Ltd. (1970) 3 W.L.R. 101]

For the defence of justification it is not essential to prove that the alleged defamatory
statement is literally true, it is sufficient if it is true in substance. This plea has been
accepted as a defence because “the law will not permit a man to recover damages in
respect of an injury to a character which he does not or ought not possess’’ (Ahsan Ali v
Kazsyed, A.I.R. 1956 Nag.146 )

Where the defendant has merely reproduced defamatory statement it is not enough to
prove that he has repeated with complete accuracy what was reported to him. He must go
further and prove that the statement itself is true. If I say “Smith told me that brown
swindled his creditors”, I can justify this only by proof that Brown did swindle his
creditors. It is idle to show that Smith in fact gave me the information. “Truth” (N.Z.) Ltd
v Holloway,(1960) 1 W.L . 997.

If words are held to be capable of innuendo put upon them by the plaintiff, the defendant
must, if he wishes to justify, prove the truth of the meaning raised by the innuendo just as
much as if the word were plain in their meaning. If you describe a man as “a felon editor”
you don’t justify this by showing that he served a sentence on a conviction for felony, for
as the sentence expired he is no longer a felon. But, “any one, who knows that a man has
been convicted of larceny at a criminal trial before a court of competent jurisdiction, is
entitled to say without being sued for slander or libel that, that man has, In fact been
convicted.”

The defendant may justify part of the statement if it is severable from the rest without
embarrassing the plaintiff in his pleading. As to the rest, he may plead privilege if that
plea is applicable, or he may leave it justified with, or without an apology.

2. FAIR COMMENT

A fair and bona fide comment on a matter of public interest is no libel. The legitimate
criticisms no tort, should loss ensure to the plaintiff. It would be damnum sine injuria
(damage without injury) Marcele v Carson (1888) 20 B.D. 275. Honest criticism ought to
be , and is recognised in any civilised system of law as indispensible to the efficient
working to public institution or office , and as salutary for private person who makes
themselves or their work the object of public interest.

This defence implies that though the comments may be defamatory, they are not
actionable. The onus is on the plaintiff to show that the statement can reasonably be
understood to be defamatory to him, and then it is the responsibility of the defendant to
establish it to be a fair comment.

The requisites of fair comment are:-

i. the matter commented on must be in public interest : a fair and bona fide comment on
matters of public interest is not defamation. Moral character, however, is never open to
comment. It is only the conduct of public man which may be commented upon. Any
author who publishes a book, any artist who exhibits a picture, any disconnected person
airs his grievances in public, invites criticism and are upon to fair comment.

It is for the judges to decide whether the matter is, or is not, of public interest.
Some of the important matters of public interest are:

 Affairs of state, public act of minsters and officers of the state.

 The administration of justice.

 Public institution and local authorities.

 Theatres, concerts and other public entertainments.

 Books, pictures and works of art.

 Ecclesiastical matters.

 Other appeals to the public, etc.

ii. It must be a expression of opinion and not an assertion of fact : To say that “A is a
disgrace to human nature” is an allegation of fact but if the words were: “ A murdered his
father and is therefore a disgrace to human nature” the latter words are plainly a comment
on the former. Hence a critic takes plains to keep hi facts and the comments upon them
severably from one another. A comment in order to be fair must be based upon the true
fact. It is not possible, first to invent a fact then to comment upon. The fact must exist.

iii. The comment must be fair: In Turner v. M.G. M. Pictures Ltd,(1950 ) 1 all E.R. 449,
Lord Parker said that the “question is not whether the comments justified in the eyes of
the judge or jury, but whether it is the honest expression of the commentator’s real view
and not mere abuse or invented under the guise of criticisms. Mere violence in criticism
does not make it unfair.”

iv. The comment must not be malicious : Malice may destroy the defence of fair
comment. The comment must be bona fide and must not be a cloak for malice. Legitimate
criticism is not tort. Mere exaggeration would not make the comment unfair. Liberty of
criticism must be allowed or we would neither have purity of taste nor morals.

3. PRIVILEGE
The most important defence to an action for defamation is that of ‘privilege’. Privilege
means that a person stands in such a relation to the fact of the cases that he is justified in
saying of writing what would be slanderous or libellous for anyone else. The law
recognises that there are some occasions on which there ought to be no liability for
defamation because the interest of the public, or (exceptionally) those of the individuals
who originate the defamation, outweigh the plaintiff’s right to his reputation.

Privilege may be either absolute or qualified. absolute privilege covers cases in which
complete freedom of communication is regarded as of paramount importance and action
for defamation cannot be entertained at all however outrage us the statement made about
him and however malicious the motive of the maker of it. Qualified privilege, on the
other hand, though it also protect the maker of an untrue defamatory statement, does so
only if the statement is made honestly and without malice. If the plaintiff can prove
‘express malice’ the privileged is displaced and he may recover damages. Adam v Ware,
(1917) A.C. 309.

ABSOLUTE PRIVILEGE includes

 Statement made in parliament : the bill right, 1988, provided that ‘the freedom of
debates or proceeding in the parliament ought not to be impeached or questioned
in any court or place out of parliament’. It has just been held in Church of
Scientology of California v Johnson Smith, (1972) 4 All E.R. 378, that has been
done or said in parliament could not be examined out of something done outside
parliament.

no action lies for the statement made by member of either House of Parliament
in their places in the House, however, injurious they may be to the interest of third
person- Exparte Wason, (1869) L.R. 4 Q.B. 573,576

 Reports, papers, votes and proceeding ordered to be published by either House of

Parliament: In England the Parliament Paper Act, 1840, provides for it in India
this defence is justified by Articles 105 and 194 of the Constitution of India.
 Judicial proceeding: Whatever is stated in a judicial proceeding in absolutely
privileged provided it has some reference to the enquiry in hand. It does not
matter how false or malicious may be. It does not matter who states it- the Judge,
the jury the parties, the advocates, or the witness.

No action lies for act done or word spoken by a Judge in the exercise of his
judicial

office although his motive is malicious and the acts or words are not done or
spoken

in the honest exercise of his office. If it were otherwise, the administration of

justice

would lack one of its essentials- the independence of Judges. This principle has
been

followed in India, and is depicted in Jagannath Prasad v Rafat Ali Khan, 1934

A.L.J.R. 1173.

Under the common law of England parties, advocates and witnesses have an
absolute

privilege. The leading case on the point in Munster v Lamb. In India however,

the privilege is absolute in civil cases, but only qualified in criminal cases
because

only a qualified privilege is allowed in the Indian Penal Code. In England,

however

to an advocate while conducting his cases whether civil, criminal admiralty or

otherwise.

The witness’s protection is so obviously based on the necessity of giving fearless

 Revelation of what he knows that it calls for no elaboration of the cases in which
it

has been established. [Jagat Mohan Sah Dev v Kalipada Ghosh, I.L.R.
(1922)Pat.371]

 Communication between solicitor and client: any professional communication

between a solicitor and a client is privileged, but it is uncertain whether the
privilege is absolute or qualified. (Minter v Priest, 1930 A.C. 558, 578). The
privilege is not confined to the walls of a law court and indeed extends to
communications which have nothing to do with litigation, e.g. the drawing of a
client’s will. One restriction is that the communication must be professional one.
The communication is privileged if it consists of a professional communication
passing for the purpose of getting or giving professional advice.

 Communication made by one officer of state to another in the course of his

official duty: it is also an absolute privilege.

 Fair and accurate newspaper reports of judicial proceeding: it is doubtful whether

the privilege is absolute or qualified. The difficulty arises from the interpretation
of Section 3 of Law of Libel (Amendment) Act,1888, which provides that a fair
and accurate report in any newspaper of proceeding publicly heard before any
court exercising judicial inquiry shall, if published contemporaneously with
such proceeding be privileged, but that this shall not authorise the publication of
any blasphemous or indecent matter. [Farmer v Hyde, (1937) 1 K.B. 728.but
some authorities think that Section 2 created absolute privilege.

QUALIFIED PRIVILEGE includes

 Fair and accurate report of parliament proceeding as the advantage of publicity

outweighs any private injury resulting from publication : Goffin v Dunnelly,(1881)
6 B.E.307. A fair and accurate report of any proceeding or debate in either House
of Parliament or any Committee thereof is privileged even though it contain
 matters defamatory of an individual. [Chata v Indra Nath Banerji,(1909) 35 Cal.
957]

 Fair and accurate report of judicial proceedings which the public may attend: this
privilege extends from the interior courts to higher ones and to proceeding
exparte, interlocutory or adjourned from time to time. Reporters, therefore, need
not wait till the final decision is rendered, but they must recollect that any
comment as distinct from fair and accurate reproduction, must be postponed until
the decision is given, otherwise they make themselves liable to the penalties or
contempt of court or to an injunction, for intermediate comment may prejudice
the minds of the jury, in a jury action and might conceivably influence the Judge

 Fair and accurate newspaper report of the proceeding of any public meeting: this
qualified privilege was created by the Law (Amendment) Act, 1888, which
defines, a public meeting, as one which is bona fide and lawful held for a lawful
purpose and for the furtherance or discussion of any matter of public concern,
whether the admission there to be general or restricted. The Act also requires the
sub-matter of the report to be of public concern and the publication of it is for the
public concern.

 Statement in protection of oneself or of one’s self property : [Turner v M.G.M.

Pictures Ltd,(1950) All E.R. 449] The privilege do not course, sanction any wild
or reckless words used to meet an attack upon oneself for the privilege would they
be rebutted by malice . An example of defence of one’s property would be
master’s warning to servants not to associate with a former fellow servant whom
he had dismissed for dishonesty.

 Where A and B have a common interest in the statement made by A to B about the
plaintiff: the common interest may be pecuniary one such as communication made
by an insurance company to its policy- holders about an agent of the company , or
it may be professional such as the screening of a barrister by the Benches of his
conduct in court after he has been debarred or a complaint by the creditor of an
 officer to his commanding officer alleging the unpunctuality of the officer in
paying his debt.

 Statement made by A to B about C which A is under legal, moral or social duty to

communicate to B and which B has a corresponding interest in receiving or where
A has an interest to be protected and B is under a corresponding legal, moral or
special duty to protect that interest : [Buse v McCarthy, (1942) 1 K.B. 156] . A
very common example is that of a former employer giving the character of
servant to a prospective employer. The qualified privilege existing between A and
B covers incidents of communication in accordance with the reasonable and usual
course of business. Where the defendant has a duty or interest which entitles him
to speak and the person in authority to whom he so speaks is also under a
corresponding duty or interest in that connection, the occasion is a privileged one
and though the complaint made may be per se defamatory. [ Ramdas v Raja,
(1959) K.L.W. 247]. The determination of whether a duty to communicate the
matter does not exist is a question for the Judge.
 List of cases

 S.N.M. Abdi v P.K. Mahanta ,AIR 2002 Gauh. 75

 Youssoupoff v M.G.M. Pictures Ltd (1934) 50 T.L.R. 581

 Morrision v Ritchie and Co, (1902) 4 P.465

 Le Faric v. Malcolmson (1848) 1 H.L.C. 537, 668

 Bourke v Warren, (1825) 2 C.P. 307.309

 E.HULTON & Co. v. Jones.1919 A.C. 20

 Cassidy v Daily mirror Newspaper, (1929) 2 K.B. 331

 Newstead v London express etc. (1940) 2 K.B. 377

 Jones v Williams (1885) 1 T.L.R. 572

 Parkins v Scott (1892) 1 H.C. 15

 Associated Leisure Ltd v Associated Newspapers Ltd. (1970) 3 W.L.R. 101

 Ahsan Ali v Kazsyed, A.I.R. 1956 Nag.146

 (N.Z.) Ltd v Holloway, (1960) 1 W.L. 997

 Marcele v Carson (1888) 20 B.D. 275

 Turner v. M.G. M. Pictures Ltd,(1950 ) 1 all E.R. 449

 Adam v Ware, (1917) A.C. 309

 Church of Scientology of California v Johnson Smith, (1972) 4 All E.R. 378

 Exparte Wason, (1869) L.R. 4 Q.B. 573,576

 Jagannath Prasad v Rafat Ali Khan, 1934 A.L.J.R. 1173

 Jagat Mohan Sah Dev v Kalipada Ghosh, I.L.R. (1922)Pat.371

 (Minter v Priest, 1930 A.C. 558, 578

 Farmer v Hyde, (1937) 1 K.B. 728

 Goffin v Dunnelly,(1881) 6 B.E.307

 Chata v Indra Nath Banerji,(1909) 35 Cal. 957

 Turner v M.G.M. Pictures Ltd,(1950) All E.R. 449

 Buse v McCarthy, (1942) 1 K.B. 156

 Ramdas v Raja,(1959) K.L.W. 247

Bibliography

 Oxford Tort law text and material,

Mark Lunney and Ken Oliphan, (1st edn 2000),

Oxford University Press.

 Winfeild and Jolowicz TORT,

W.V.H. Rogers (17th edn 2006),

Sweet and Maxwell publications.

 Ramaswamy Iyer’s, The Law Of Torts,

A.Lakshminath and M.Sridhar, (10th edn,2007),

 Butterworths publications.

Internet sources-

www.casebriefs.com

www.lawnix.com

www.lawteacher.net