Defamation in the Law of Torts

Principle: A defamatory statement is actionable only if it is published, that is, communicated to at least one person other than the person defamed. Facts: Anand writes a letter to Bimal accusing him, falsely, of cheating his business partners. Anand seals the letter and posts it to Bimal's home address. Bimal opens and reads it himself and shows it to no one.

Can Bimal succeed in an action for defamation against Anand?

Answer: A. No, because the statement was communicated only to Bimal himself and was not published to any third person.

Reputation is what others think of a person, so a statement that reaches only the person defamed cannot injure it. Under the principle there has been no publication. Falsity alone is not enough, and a letter can certainly be defamatory if a third person reads it.

Principle: In a civil action for defamation, it is a complete defence that the statement complained of is true in substance and in fact. Facts: A local newspaper reports that Chandra, a builder, was convicted by a court last year of using sub-standard cement in a school building. The report is accurate. Chandra sues, saying the report has ruined his business.

Will Chandra's action succeed?

Answer: D. No, because the statement is true, and truth is a complete defence.

The law of defamation protects the reputation a person deserves, not one he does not. Under the principle a true statement is not actionable in a civil suit however much loss it causes. Newspapers can be sued for defamation; they simply have a defence here.

Principle: A statement is taken to refer to the plaintiff if reasonable persons who know the plaintiff would understand it to refer to him. It is no defence that the defendant did not intend to refer to the plaintiff. Facts: A newspaper publishes a humorous sketch about a character it believes to be invented, 'Artemus Jones, a churchwarden', describing his scandalous behaviour on holiday. There is a real Artemus Jones, a barrister, and several people who know him believe the article is about him.

Can the real Artemus Jones succeed against the newspaper?

Answer: B. Yes, because people who knew him reasonably understood the article to refer to him, and the newspaper's intention is irrelevant.

These are the facts of Hulton v Jones (1910), in which the House of Lords held the newspaper liable. Under the principle the test is what reasonable people who know the plaintiff would understand, not what the defendant meant. The difference in occupation did not prevent his acquaintances from making the connection.

Principle: A comment is not actionable as defamation if it is an honest expression of opinion on a matter of public interest and is based on facts that are true. Facts: A novelist publishes a new book. A critic who has read it writes in a magazine review: 'The plot is thin, the characters are lifeless, and this is the author's weakest work.' The critic genuinely holds this view. The novelist sues for defamation.

Will the novelist's action succeed?

Answer: A. No, because the review is an honest opinion on a published work, which is a matter of public interest.

A book offered to the public invites criticism, and the review is opinion honestly held about the book itself. That is fair comment under the principle. The defence does not require the opinion to be correct. It would not protect a false statement of fact, for example that the author had copied the book.

Principle: Statements made by a Member of Parliament in the course of proceedings in Parliament are absolutely privileged: no action lies in any court in respect of them, whatever the motive with which they were made. Facts: During a debate in the Lok Sabha, a Member makes a false and damaging statement about Devraj, a businessman who is not a Member. Devraj can show that the Member made the statement out of personal spite. He sues the Member for defamation.

Will Devraj's action succeed?

Answer: D. No, because a statement made in the course of proceedings in Parliament is absolutely privileged.

Absolute privilege is not defeated by falsity or malice; that is what distinguishes it from qualified privilege. In India this protection is given by Article 105(2) of the Constitution, under which no Member is liable to proceedings in any court for anything said in Parliament.

Principle: Defamation in a permanent form, such as writing, print or pictures, is libel. Defamation in a transient form, such as spoken words or gestures, is slander. Facts: Esha prints five hundred pamphlets stating, falsely, that the local doctor holds a forged medical degree, and distributes them in the neighbourhood.

What form of defamation has Esha committed?

Answer: B. Libel, because the statement is in the permanent form of print.

The form of the statement decides the matter under the principle. Printed pamphlets are permanent, so the defamation is libel. The subject of the statement and whether the pamphlets were sold have no bearing on the classification.

Principle: Words that are innocent in their ordinary meaning may be defamatory because of special facts known to the persons to whom they are published. The hidden meaning which the words carry in the light of those facts is called an innuendo. Facts: A newspaper publishes a photograph of a man and a woman with the caption 'Mr Mohan and Miss Rao, whose engagement has been announced'. Mr Mohan is in fact already married, and his wife's neighbours, reading the caption, conclude that she has been living with him without being married to him.

On what basis can Mr Mohan's wife sue the newspaper?

Answer: D. Innuendo, because the caption, innocent on its face, carried a defamatory meaning to readers who knew she lived with him as his wife.

The facts follow Cassidy v Daily Mirror Newspapers (1929). To those who knew the couple, a statement that the husband was engaged to someone else implied that the woman living as his wife was not his wife. That hidden meaning is an innuendo. Fair comment is a defence, not a basis for suing, and the statement need not name the plaintiff.

Principle: A defamatory statement about a class of persons is not actionable by an individual member of the class unless the class is so small, or the words are such, that the statement can reasonably be understood to refer to that individual. Facts: A columnist writes: 'All lawyers in this country are thieves.' Farhan, one of many thousands of practising lawyers in the country, sues the columnist for defamation.

Will Farhan's action succeed?

Answer: D. No, because the statement is about a very large class and cannot reasonably be understood to refer to Farhan in particular.

Under the principle, set out in Knupffer v London Express Newspaper (1944), a sweeping statement about a large class does not point to any one member. Had the columnist written the same about the three partners of a named firm, each could have sued.

Principle: Every repetition of a defamatory statement is a fresh publication. A person who repeats a defamatory statement is liable as if he were its originator, and it is no defence that he was only passing on what he had heard. Facts: Gita hears a rumour that her neighbour Hari, a cashier, has been stealing from his employer. She has no idea whether it is true. She tells three other neighbours, beginning each time with 'I am only telling you what I heard'. The rumour is false.

Is Gita liable to Hari for defamation?

Answer: A. Yes, because by repeating the statement to others she published it, and it is no defence that she did not originate it.

Each telling communicated the false and damaging statement to a new person. Under the principle the repeater stands in the position of an originator, and prefacing the statement with its source does not help.

Principle: A person commits defamation if he publishes to a third person a false statement which refers to the plaintiff and which tends to lower the plaintiff in the estimation of right-thinking members of society. Facts: Irfan, wishing to get his colleague Jaya dismissed, sends an email to their employer stating that Jaya has been taking money from the office cash box. Irfan knows this is untrue. The employer reads the email.

Has Irfan defamed Jaya?

Answer: C. Yes, because he communicated to a third person a false statement about Jaya that would lower her in the eyes of right-thinking people.

All the elements in the principle are present: the statement is false, it is about Jaya, an accusation of theft lowers her reputation, and it was communicated to the employer. Publication to a single third person is enough, and the tort is complete without proof that she lost her job.