NEW DOCTRINE FOR CIVIL LAW OF DEFAMATION (Position of civil action in the absence of a codified law)

Written by Y.SRINIVASA RAO, Principal Asst Sessions Judge, Tirupati

        In India, as per penal code of 1860, slander and libel are criminal wrongs. But, under the common law, slander is    civil wrong only, but a libel is a civil wrong as well as criminal wrong. A fortiori, till now, civil defamation has not been codified under the law of torts in India.

 Introduction: A civil action for which there is no codified law in India, a common law right can be taken recourse to under Section 9 CPC. The right to reputation as a part of the right to life under Article 21. Only Defamation Law protects individual’s private interest and reputation.  As to civil defamation is concerned, in India, the injured party can file a civil suit before a civil court for seeking damages in the form of monetary compensation from the defendant, as remedy for a civil defamation is covered under the law of torts. Although Section 499 and 500 of the Indian Penal Code provides an opportunity to the victim to file a criminal case for defamation against the accused, as a criminal wrong, civil defamation is not codified in India, and still is being adjudicated based on principles of common law. This study introduces some important principles of law for codification of doctrine of civil defamation.

An important question came up before the Hon’ble Apex Court for consideration. Whether it is safe to abolish criminal defamation laws and replace them with adequate civil laws. In Subramanian Swamy v. Union of India[1], the Supreme Court held that Section 499 is not an excessive restriction under Article 19(2). In this case, Apex court held that it is valid to treat defamation as a public wrong.  It also held that criminal defamation is not a disproportionate restriction on free speech, because protection of reputation is a fundamental right as well as a human right.  The Apex court also pointed out that Sections 499 and 500 IPC are not vaguely worded or ambiguous. Using the Constituent Assembly Debates to understand what the framers of the Constitution meant by the word “defamation” in Article 19(2), the Court held that the word is its own independent identity. It stands alone and defamation laws have to be understood as they were when the Constitution came into force.

Meaning of the term “defamation[2]

The word ‘defamation’ has been defined by the famous Jurists and in several books. See. Salmond & Heuston[3]; Halsburys Laws of England[4]; Justice Cave[5]; Chambers Twentieth Century Dictionary[6]; Salmond[7]; Winfield & Jolowics[8]; Richard O’ Sullivan, QC and Roland Brown[9], Parmiter v. Coupland[10], Fraser[11]; Carter Ruck[12]. The Hon’ble Supreme Court, in Subramanina Swamy’s case (supra) noted the aforesaid definitions, descriptions and analytical perceptions only to understand how the concept has been extensively dealt with regard being had to its ingredients and expanse, and clearly show the solemnity of `fame’ and its sapient characteristics. Be it stated, Section 499 IPC defines fame and covers a quite range of things but the reference to the term `fame’ is to ostracise the saying that “fame is a food that dead men eat”. As to the ‘concept of reputation’ is concerned, having dealt about “defamation”, the Apex Court would like to refer to the intrinsic facets of “reputation” and what constitutes reputation.

To know the vision of the ancients,  the Apex Court referred to the ancient texts of  Bhagawad Gita; Subhashitratbhandagaram; Surah 49 Aayaat 11 of the Holy Quran; Proverb 15 of the Holy Bible. The Hon’ble Apex Court held that though the aforesaid sayings have different contexts, yet they lay stress on the reputation, individual honour and also the need of gentleness of behavior on the part of each one. Besides the above, we seminal to refer to the thoughts of the creative writers and thinkers. William Shakespeare in Othello expressed his creative thoughts on character; in Richard II, while enhancing the worth of individual reputation, achieved his creative heights; Equally important to refer to the creative thoughts of the famous Greek philosopher and thinker Socrates, Aristotle, William Hazlitt.

Various International Covenants have stressed on the significance of reputation and honour in a person’s life.  The Universal Declaration on Human Rights, 1948[13]; the International Covenant on Civil and Political Rights (CICCPR)[14]; Articles 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The international covenants reflect the purpose and concern and recognize reputation as an inseparable right of an individual.

 

Perception of the Courts in United Kingdom as regards Reputation:

Lord Denning explained the distinction between character and reputation[15]; Reynolds v. Times Newspapers Ltd[16], [2001] 2 AC 127 at 201; See Campbell v. MGN Ltd, (2004) UKHL 22 as to the concepts of the right to reputation and freedom of expression.

 Global perception on ‘Defamation’:

The views of  the court in United States can be understood by referring to the famous judgments in  Wisconsin v. Constantineau, 400 U.S. 433 (1971) and Rosenblatt v. Baer[17], 383 U.S. 75 (1966). To understand the outlook of the Courts in Canada, in regard to the reputation of the individual,  it is important to refer to the judgment in Hill v. Church of Scientology of Toronto, (1995) 2 SCR 1130. In the approach of the South African Courts, “human dignity” is one of the founding values of the South African Constitution (Clause 1). The Constitution protects dignity (clause 7), privacy (clause 14) and freedom of expression (clause 16). See also. In Khumalo v. Holomisa[18]. As to the perception of the European Court of Human Rights is concerned, we have to study the cases in Lindon v. France, (2008) 46 E.H.R.R. 35; Article 8 of the Convention; Chauvy and Others v. France, (2005) 41 EHRR 29 Abeberry v. France (dec.), no. 58729/00, 21 September 2004; and White v. Sweden, [2007] EMLR 1;  Karak v. Hungary, (2011) 52 E.H.R.R. 36 and Axel Springer AG v. Germany, (2012) 55 E.H.R.R. 6 .

 

The perspective of the Supreme Court of India:

The Hon’ble Supreme Court mentioned several judgments whicle discussing the value of reputation and importance attached to it. It is profit worth to have a look at these judgments. In Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and others, (1983) 1 SCC 124 the Court has opined that expression “Life” does not merely connote animal existence or a continued drudgery through life. In this context one can recall the famous words of Chapter II of Bhagwad-Gita: “Sambhavitasya Cha Kirti Marnadati Richyate”. In Kiran Bedi v. Committee of Inquiry and another[19], (1989) 1 SCC 494 a three-Judge Bench, referred to the words of caution uttered by Lord Krishna to Arjun in Bhagwad Gita with regard to dishonour or loss of reputation.

The Court also referred to series of rulings such as    D.F. Marion v. Davis, 55 ALR 171; Gian Kaur v. State of Punjab, (1996) 2 SCC 648 ;

Vishwanath Agrawal v. Saral Vishwanath Agrawal, (2012) 7 SCC 288; Umesh Kumar v. State of Andhra Pradesh and another, (2013) 10 SCC; Kishore Samrite v. State of Uttar Pradesh and others, (2013) 2 SCC 398; Nilgiris Bar Association v. T.K. Mahalingam and another, (1998) 1 SCC 550. In Om Prakash Chautala v. Kanwar Bhan and others, (2014) 5 SCC 417 it has been held that reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance on posterity. In State of Gujarat and another v. Hon’ble High Court of Gujarat, (1998) 7 SCC 392 the court opined:- “An honour which is a lost or life which is snuffed out cannot be recompensed”

Right of the Freedom of Speech and Expression

The Hon’ble Supreme Court opines that to appreciate the range and depth of the said right, it is essential to understand the anatomy of Articles 19(1)(a) and 19(2) of the Constitution. The Hon’ble Supreme Court appreciated ambit and purport of the word “defamation” in Subramania swamy’s case and elaborated, whether the word “defamation” includes both civil and criminal defamation. The Apex Court  proceeded to advert to the aspect of reasonable restriction on the right of freedom of speech and expression as engrafted under Article 19(1)(a).  The Apex court discussed how Article 19(2) was come  in its original shape. The Constituent Assembly Debates came up for consideration in this case of Subramanian swamy’s case. The Apex court highlighted the intention of the founding fathers and also how contextually the word “defamation” should be understood and observed that

‘…the word “defamation” may not even call for a civil action in the absence of a codified law.’

In this regard, the Hon’ble Supreme Court  to M.C. Setalvad’s Hamlyn Lectures (Twelfth Series) “The Common Law of India” wherein India’s first Attorney General expressed that:-

“an important branch of law which has remained uncodified in India is the law relating to civil wrongs.

The Apex Corut also pointed out that
one of the outstanding fact of English legal history for the last three centuries is the development of the law of torts from small beginnings to its present dimensions as a separate branch of law. The action for damages as a remedy for violations of rights and duties has been fashioned by lawyers, judges and juries of England as an instrument for making people adhere to standards of reasonable behavior and respect the rights and interest of one another. A body of rules has grown and is constantly growing in response to new concepts of right and duty and new needs and conditions of advancing civilization. The principles which form the foundation of the law of torts are usually expressed by saying the injuria sine damno is actionable but damnum sine (or absque) injuria is not. …”

The common law of England was the prevalent law being adopted before the Constitution came into force and it is declared as a law in force under Article 372 of the Constitution of India by a larger Bench decision in Superintendent and Remembrancer of Legal Affairs v. Corporation of Calcutta, AIR 1967 SC 997 = 1967 (2) SCR 170. The position has further become clear in Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393.  The Hon’ble Apex Court referred to this aspect only to clarify the position that it is beyond any trace of doubt that civil action for which there is no codified law in India, a common law right can be taken recourse to under Section 9 of the Code of Civil Procedure, 1908, unless there is specific statutory bar in that regard.

I have till now relied on the observations of the Hon’ble Apex Courts in series of judgments as to the concept of defamation. In Subramanian swamy’s (supra), the Apex Court the constitutional value of section 499 and 500 of IPC. But, the decision is silent about codification of civil defamation. Researcher will now suggest certain principles of law for codification of civil defamation as a matter of academic discussion.

Theory of Defamation:-

This study mainly concentrates find out a remedy for civil defamation and the right to redress in a civil action. The main source for this study is the work of Sir Frederick Pollock[20].  The civil wrong of defamation may be occurred either by way of slander or libel or its equivalent

Past two attempts , the defamation Bill in 19888, and the effort of current  Narendra Modi Government in 2018,  to codify civil defamation failed.

 

In this chapter, this study will show that slander amounts ‘civil wrong’ only whereas ‘libel’ is civil and criminal wrong. As there is great change of the society in this era of globalization, for appropriate codification of the law of libel and the law of slander, it is apt to confine our rulings and English law and illustrations to recent cases. In a research work like this nature, it is not possible to give more than an outline of the civil law of defamation[21].

 

Slander:- To attract slander, a specific damages is shown to have followed from the utterance of the spoken words complained of, besides in the circumstances referred hereunder, if –

  1. The spoken words attribute a criminal wrong;
  2. Such words attribute having a contagious disease which would cause the person having to be excluded from society;
  3. Where the spoken words express a charge of unfitness, dishonesty, or incompetency in an office of profit, profession, or trade, in short, where they manifest tend to prejudice a man in his calling;

It is significant to see that incase spoken word indicates a cause of action without proof of a specific damage can be an actionable civil wrong per se.

How to find prima facie case of libelous?

The theory of slander  is different to the theory of ‘libel’. It is suffice to make a written statement prima facie libelous that it is injurious to the character of the person concerned (domestic, professional or public)  whom it is uttered or in any way tends to cause persons to shun his society or to bring him into hatred, contempt, or ridicule. Of course, defendant can show recognized ground of justification or excuse as a defence.

Special damage:  A specific damage must be in a legal sense the probable and natural result of the spoken words complained of.

Illustration:

If a person (First person) speaks certain words in disparagement of another (second person) which cannot be said to be an actionable wrong per se, for the reason of which speech some other person (third person) does something to another’s (second person) disadvantage that is itself wrongful as against the said another person (second person) . This person (second person) has no remedy against the first person, but only against third person.

 

This illustration appears to be contrary to principle. The paramount question is not whether the said third person’s act was really lawful or unlawful, but whether it might have been indeed reasonably expected to result from the original act of the first person. The rule is such that where spoken words, defamatory but not actionable in themselves, are followed by a specific or special damage.

 

Consortium vicinorum : If a person has lost general good belief of his neighbours does not amount ‘a special damage’. To attract the same, the plaintiff must show some material advantage.

Defamatory words which are not actionable per se are spoken of a member of a religious society who by reason thereof was excluded from membership of such society. No loss appeared beyond that of consortium vicinorum, and therefore there was no ground of action.

Attribution of an offence:

There may be several kinds of spoken words to constitute an actionable wrong even though there is no special damage. The rule is to be adopted is that  it is not necessary that such words should specify a criminal wrong to bring a civil suit based on such spoken words.

 Imputations of contagious disease:-

Little need be said concerning imputations of contagious disease unfitting a person for society: that is, in the modern law, venereal disease. Recently, the contagious disease COVID-19 pandemic. “charging another with having had a contagious disorder is not actionable; for unless the words spoken impute a continuance of the disorder at the time of speaking them, the gist of the action fails; for such a charge cannot produce the effect which makes it the subject of an action, namely, his being avoided by society”. There does not seem to be more than one reported English case of the kind within the present century

 

Evil speaking of a man in the way of his business:-

Concerning words spoken of a man to his disparagement in his office, profession, or other business: they are actionable on the following conditions:—

  1. They must be spoken of him in relation to or “in the way of” a position which he holds, or a business he carries on, at the time of speaking. Whether they have reference to his office or business is, in case of doubt, a question of fact. And they must either amount to a direct charge of incompetence or unfitness, or impute something so inconsistent with competence or fitness that, if believed, it would tend to the loss of the party’s employment or business.
  2. To call a stonemason a “ringleader of the nine hours system” is not on the face of it against his competence or conduct as a workman, or a natural and probable cause why he should not get work; such words therefore, in default of anything showing more distinctly how they were connected with the plaintiff’s occupation, were held not to be actionable.
  3. Spoken charges of habitual immoral conduct against a clergyman or a domestic servant are actionable, as naturally tending, if believed, to the party’s deprivation or other ecclesiastical censure in the one case, and dismissal in the other.
  4. Of a clerk or messenger, and even of a medical man, it is otherwise, unless the imputation is in some way specifically connected with his occupation. It is actionable to charge a barrister with being a dunce, or being ignorant of the law; but not a justice of the peace, for he need not be learned.
  5. It is actionable to charge a solicitor with cheating his clients, but not with cheating other people on occasions unconnected with his business. But this must not be pressed too far, for it would seem to be actionable to charge a solicitor with anything for which he might be struck off the roll, and the power of the court to strike a solicitor off the roll is not confined to cases of professional misconduct.
  6. It makes no difference whether the office or profession carries with it any legal right to temporal profit, or in point of law is wholly or to some extent honorary, as in the case of a barrister or a fellow of the College of Physicians; but where there is no profit in fact, an oral charge of unfitness is not actionable unless, if true, it would be a ground for removal. Nor does it matter what the nature of the employment is, provided it be lawful; or whether the conduct imputed is such as in itself the law will blame or not, provided it is inconsistent with the due fulfillment of what the party, in virtue of his employment or office, has undertaken.
  7. A gamekeeper may have an action against one who says of him, as gamekeeper, that he trapped foxes. As regards the reputation of traders the law has taken a broader view than elsewhere.
  8. To impute insolvency to a tradesman, in any form whatever, is actionable. Substantial damages have been given by a jury, and allowed by the court, for a mere clerical error by which an advertisement of a dissolution of partnership was printed among a list of meetings under the Bankruptcy Act. A trading corporation may be defamed in relation to the conduct of its business.

Words indirectly causing damage to a man in his business:-

Although not common in India, there are English cases in which a business man suffers loss in his business as the intended or ‘natural and probable result’ of words spoken in relation to that business, but not against the man’s own character or conduct: as where

A wife or servant dwelling at his place of business is charged with misbehaviour, and the credit of the business is thereby imparied; or

  1. Where a statement is made about the business not in itself defamatory, but tending to a like result, such as that the firm has ceased to exist,.
  2. In such a case an action lies, but is not properly an action of slander, but rather a special action (on the case in the old system of pleading) “for damage willfully and intentionally done without just occasion or excuse, analogous to an action for slander of title.”
  3. General loss of business is sufficient “special damage” to be a cause of action in such a case

 

PRINCIPLES OF CIVIL LAW OF DEFAMATION :-

General principles of civil law of defamation apply to both libel and slander subject to the conditions and distinctions between the slander and libel. Considerations of the same kind may affect the measure of damages for written defamation, though not the right of action itself.

Implied malice:-  Unless it is malicious, defamation cannot be said to be actionable. In the absence of just cause or excuse, the person who so publishes the matter becomes responsible for natural consequences of the his act. It is known as implied malice.

What is publication:- Presumed injury or proved injury to reputation of a person should be cause of action. But, a mere insult cannot be a cause of action for defamation. The reason that evil speaking caanot be actionable in case of it is communicated only to the person spoken of. The word ‘publication’ means that this kind of necessary ingredient of the wrongful act is now called as ‘publication’. The common usage of the word ‘publication’ is something different.

Words are not on the face of them libellous:-

In the first place the Court has to be satisfied that they are capable of the defamatory meaning ascribed to them. Whether they are so is a question of law. If they are, and if there is some other meaning which they are also capable of, it is a question of fact which meaning they did convey under all the circumstances of the publication in question. An averment by the plaintiff that words not libellous in their ordinary meaning or without a special application were used with a specified libellous meaning or application is called an innuendo, from the old form of pleading.

The actual meaning of the words is sine qua non:-

A person who uses the language must bound to know the natural effect of such language. The intention with which the matter was published is not criteria but the tendency and actual meaning of the words are essential when those words were published. It means that the matter of fact. It is thus the libelous propensity is probable in law and proved in fact.

Repetition and Reports may be libellous:-

 The publication is no less the speaker’s or writer’s own act, and none the less makes him answerable, because he only repeats what he has heard.

Libel may consist in a fair report of statements which were actually made, and on an occasion which then and there justified the original speaker in making them; slander in the repetition of a rumour merely as a rumour, and without expressing any belief in its truth.

“A man may wrongfully and maliciously repeat that which another person may have uttered upon a justifiable occasion,” and “as great an injury may accrue from the wrongful repetition as from the first publication of slander; the first utterer may have been a person insane or of bad character. The person who repeats it gives greater weight to the slander”. Circumstances of this kind may count for much in assessing damages, but they count for nothing towards determining whether the defendant is liable at all.

For instances, as to slander is concerned, in case of a person  (P) who speaks of another (Q) , such words are actionable only with special damages. If some other person (S) repeats those spoken words, and special damages follow from such repetition only, ‘Q’. shall have an action ‘S’., but not against ‘P’.

As to the defendant’s belief in the truth of the matter published or republished by him, that may affect the damages but cannot affect the liability.

Civil Defamation: Exceptions : Sometimes, words seemingly injurious to reputation of a person. It is therefore important  to refer to the specific conditions which keep out liability for words apparently injurious to reputation of a man. In this connection, it is profit worth to refer to English Law principles as summed up in the cases of Campbell Vs. Spottiswoode and Merivale Vs. Carson.

  1. Fair comment:  The case of a criticism fair in itself being proved to be due to unfair motives in the person making it is not known to have arisen, nor is it likely to arise, and it need not be here discussed. On principle it seems that the motive is immaterial; for if the criticism be in itself justifiable, there is nothing to complain of, unless it can be said that comment proceeding from an indirect and dishonest intention to injure the plaintiff is not criticism at all.
  2. What is open to comment is a judicial common sense: – What acts and conduct are open to public comment is a question for the Court, but one of judicial common sense rather than of technical definition.
  3. Whether comment is fair, matter of fact (if leballous construction follows):-  What is actually fair criticism is a question of fact, provided the words are capable of being understood in a sense beyond the fair (that is, honest) expression of an unfavourable opinion, however strong, on that which the plaintiff has submitted to the public: this is only an application of the wider principle above stated as to the construction of a supposed libel.
  4. ‘Truth’ is a ground:-  When defendant establishes that the defamatory matter is true, defamation suit is not maintainable because such defamation is not actionable. Then, the motive with which the matter was published is also not relevant.
  5. Truth in substance:- What the defendant has to prove is truth in substance, that is, he must show that the imputation made or repeated by him was true as a whole and in every material part thereof. He cannot justify part of a statement, and admit liability for part, without distinctly severing that which he justifies from that which he does not. What parts of a statement are material, in the sense that their accuracy or inaccuracy makes a sensible difference in the effect of the whole, is a question of fact. There may be a further question whether the matter alleged as justification is sufficient, if proved, to cover the whole cause of action arising on the words complained of; and this appears to be a question of law, save so far as it depends on the fixing of that sense, out of two or more possible ones, which those words actually conveyed.
  6. Honest and reasonable belief of defendant: Under the law, it would make no difference that the defendant had made a defamatory statement without any reasonable belief in its truth, if it is transpired afterwards to have been true when made. Honest and reasonable belief of defendant is not a justification. However, the Court has discretion while imposing costs.
  7. Immunity of members of parliament and Judges – Absolutely privileged: In order that public duties may be discharged without fear, unqualified protection is given to language used in the exercise of parliamentary and judicial functions.
  8. Reports of officers and  Naval, Air force and Military authorities:- As to reports made in the course of Army or Airforce or naval or military duty, but not with reference to any pending judicial proceeding, it is doubtful whether they come under this head or that of “qualified privilege.” In UK, a majority of the Court of Queen’s Bench has held (against a strong dissent), not exactly that they are “absolutely privileged,” but that an ordinary court of law will not determine questions of naval or military discipline and duty. But the decision is not received as conclusive.
  9. Qualified immunity of privilege communications:-  The term “qualified privilege” is often used to mark the requirement of good faith in such cases, in contrast to the cases of “absolute privilege” above mentioned. Fair reports of judicial and parliamentary proceedings are put by the latest authorities in the same category. Such reports must be fair and substantially correct in fact to begin with, and also must not be published from motives of personal ill-will; and this although the matter reported was “absolutely privileged” as to the original utterance of it.
  10. Conditions of the privilege:- The conditions of immunity may be thus summed up:— The occasion must be privileged; and if the defendant establishes this, he will not be liable unless the plaintiff can prove that the communication was not honestly made for the purpose of discharging a legal, moral or social duty, or with a view to the just protection of some private interest or of the public good by giving information appearing proper to be given, but from some improper motive and without due regard to truth. Such proof may consist either in external evidence of personal ill-feeling or disregard of the truth of the matter, or in the manner or terms of the communication, or acts accompanying and giving point to it, being unreasonable and improper, “in excess of the occasion,” as we say.
  11. What is express malice? :- The rule formerly was, and still sometimes is, expressed in an artificial manner derived from the style of pleading at common law. The law, it is said, presumes or implies malice in all cases of defamatory words; this presumption may be rebutted by showing that the words were uttered on a privileged occasion; but after this the plaintiff may allege and prove express or actual malice, that is, wrong motive. He need not prove malice in the first instance, because the law presumes it; when the presumption is removed, the field is still open to proof. But the “malice in law” which was said to be presumed is not the same as the “express malice” which is matter of proof.
  12. What are privileged occasions? :- The occasions giving rise to privileged communications may be in matters of legal or social duty, as where a confidential report is made to an official superior, or in the common case of giving a character to a servant; or the communications may be in the way of self-defence, or the defence of an interest common to those between whom the words or writing pass; or they may be addressed to persons in public authority with a view to the exercise of their authority for the public good; they may also be matter published in the ordinary sense of the word for purposes of general information.
  13. Moral duty:- As to occasions of private duty; the result of the authorities appears to be that any state of facts making it right in the interests of society for one person to communicate to another what he believes or has heard regarding any person’s conduct or character will constitute a privileged occasion.Answers to confidential inquiries, or to any inquiries made in the course of affairs for a reasonable purpose, are clearly privileged.
  14. Self protection:- The privilege of an occasion of legitimate self-interest extends to a solicitor writing as an interested party’s solicitor in the ordinary course of his duty. The holder of a public office, when an attack is publicly made on his official conduct, may defend himself with the like publicity.
  15. Information for public good:- Communications addressed in good faith to persons in a public position for the purpose of giving them information to be used for the redress of grievances, the punishment of crime, or the security of public morals, are in like manner privileged, provided the subject-matter is within the competence of the person addressed.
  16. Fair reports: – Fair reports (as distinguished from comment) are a distinct class of publications enjoying the protection of “qualified privilege” to the extent to be mentioned.
  17. Parliamentary debates and judicial proceedings[22]:- Fair reports of parliamentary and public judicial proceedings are treated as privileged communications. Reports outcome of a motive of personal hostility are liable to an action.In UK, newspaper reports of public meetings and of meetings of vestries, town councils, and other local authorities, and of their committees, of royal or parliamentary commissions, and of select committees, are privileged under the Law of Libel Amendment Act, 1888.
  18. Excess of privilege:- In the case of privileged communications of a confidential kind, the failure to use ordinary means of ensuring privacy—as if the matter is sent on a post-card instead of in a sealed letter, or telegraphed without evident necessity—will destroy the privilege; either as evidence of malice, or because it constitutes a publication to persons in respect of whom there was not any privilege at all. The latter view seems on principle the better one.
  19. Plaintiff must show the affirmative proof of malice:- In case of existence of privileged occasion, the plaintiff must show the affirmative proof of malice i.e., reckless or dishonest ill-will, to establish his case. There is not need for the defendant to disprove it.
  20. Awarding damages: While awarding damages, the Court is entitled to look at the whole conduct of the defendant from the date of action for defamation suit.
  21. Apology: There must be a special provision as to establishing the offer of an apology in mitigation of damages in defamation suit. There is a special provision in Lord Campbell’s Act (6 & 7 Vict. c. 96, ss. 1, 2) in English law as to this aspect. Such similar provision is essential even  for India legal system in the matters of civil defamation. However, there must be a condition that  accepting of the apology tendered by the defendant is purely discretion of the Civil Court.
  22. Payment of money by the defendant: If the defendant pays money into the court in an action for libel. On such payment of money, the defamation suit must be dismissed.
  23. Plaintiff’s bad character not relevant :- In a suit for defamation instituted by a plaintiff, bad character of the plaintiff cannot be a ground to reject the claim.
  24. Civil court may pass prohibitory orders: When prima facie material is shown to civil court, the court may pass appropriate orders to restrain the publication of defamatory substance.

Conclusion:

 The researcher is of the view that more research is to be done for codification of doctrine of civil defamation even though the concept of defamation was codified in India as Criminal wrong under section 499 and 500 of IPC.  It is also significant to note that all criminal courts in India are over burdened. Most of Indian people does not aware of remedies under the law of torts. Thousands of criminal offences arising out of rash or negligent act of accused (such as offences under secs. 337, 338, and 304-A of IPC) are pending in every criminal courts in India. If this type of cases are replaced with adequate civil laws, we can certainly reduce the pendency of criminal cases in India. Similarly, the offence of criminal trespass, defamation, assault etc may also be replaced with adequate civil laws to reduce pendency of criminal courts. We often see all cases of secs. 337and 338 of IPC are being ended with compromise in lok adalat. The compensation to the victim, in lok adalat, is not at all adequate as there is no strict rule to impose compensation.

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[1]  Subramanian Swamy Versus. Union of India, Ministry of Law and others – 2016 (4) ALT(D.N.)(SC) 17.

[2]  Subramanian Swamy Versus. Union of India, Ministry of Law and others – 2016 (4) ALT(D.N.)(SC) 17.

[3]  See. on the Law of Torts,; Pandey Surindra Nath Sinha v. Bageshwari Pd.. AIR 1961 Pat. 164])

[4] , Fourth Edition, Vol. 28

[5]  in the case of Scott v. Sampson, (1882) QBD 491

[6]  ‘Defamation’ means to take away or destroy the good fame or reputation; to speak evil of; to charge falsely or to asperse.

[7]  “The wrong of defamation, consists in the publication of a false and defamatory statement concerning another person without lawful justification. The wrong has always been regarded as one in which the Court should have the advantage of the personal presence of the parties if justice is to be done. Hence, not only does an action of defamation not survive for or against the estate of a deceased person, but a statement about a deceased person is not actionable at the suit of his relative” (Gatley’s Libel and Slander, 6th edition, 1960 also Odger’s Libel and Slander 6th Ed. 1929]).

[8]  See. on Torts ((17th Edn. 2006)])

[9]  in the book “The Law of Defamation”

[10]  (1840) 6 MLW 105

[11]  The definition of defamation by Fraser was approved by Mc Cardie J in Myroft v. Sleight, (1921) 37 TLR 646

[12]  on Libel and Slander (Manisha Koirala v. Shashi Lal Nair & Ors, 2003 (2) Bom CR 136]) has carved out some of the tests

[13]  About ‘the right to free speech and right to reputation’. Art.12

[14]  Article 19 of the Covenant

[15]  Plato Films Ltd. v. Spiedel, (1961) 1 All. E.R. 876

[16]  Please refer to this ruling to know the observations of Lord Nicholls of Birkenhead about the importance of protecting an individual’s reputation

[17]  Mr. Justice Stewart observed that:-

“The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty.”

[18]  [2002] ZACC 12; 2002 (5) SA 401

[19]  “Akirtinchapi bhutani kathaishyanti te-a-vyayam, Sambha-vitasya Chakirtir maranadatirichyate. (2.34)

(Men will recount thy perpetual dishonour, and to one highly esteemed, dishonour exceedeth death.)” See also. Blackstone’s Commentary of the Laws of England, Vol. I, 4th Edn.,; Statement made in Corpus Juris Secundum, Vol. 77 at p. 268

[20]  ’Sir Frederick Pollock, The Law of Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law (4th ed.) [1886]’’

[21]  See. the great work of Black Odger on civil defamation.

  1. [22]  In UK, by statute (3 & 4 Vict. c. 9, ad 1840) the publication of any reports, papers, votes, or proceedings of either House of Parliament by the order or under the authority of that House is absolutely protected, and so is the republication in full. Extracts and abstracts are protected if in the opinion of the jury they were published bona fide and without malice.

 

Law of Torts

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