Law of Tort (Lecture-04)

Law of Tort

Defamation

Definition
Essential elements of defamation
Different types of defamation
Differences between slander and libel
Essentials of defamation
Self defenses

Defamation

Dixon vs. Holden

“A mans reputation is his property, more valuable than any other property.”

Character and reputation different thing. The character of a person signifies the reality about him. Where as reputation indicates only what is reported of him by others. It is constituted by public opinion.

Simply we can say that interference with some ones reputation, publishing of such speech which destroys some ones reputation and which is speech of false that is defamation.

Definition by eminent jurist:

Prof. Salmond:

“The wrong of defamation consists in the publication of a false and defamatory statement respecting another person without lawful justification or excuse.”

Underhill:

“Defamation means publication of false and defamatory statement about any person without any proper cause.”

Blackburn and George:

“Publication of false statement which destroys some ones reputation in the sence of right thinking members of the society it creates defamation.”

Prof. Winfield:

“Defamation is the publication of statement which tends to lower a person in the estimation of right thinking members of society generally or which tends to make them shun or avoid that person.”

Neville Vs. Fine Arts Inst. (1987)AC 68 (72)

“A statement is said to be defamatory when it was a tendency to injure the reputation of the person to whom it refers. Such a statement is one which exposes him to hatred, ridicule or contempt or which cause him to be shamed / shunned or avoided or which has a tendency to injure him in his office, profession or calling.”

Essential elements of defamation:

1. Statement

2. Specific person

3. Publication of the statement

4. False

5. In the estimation of the right thinking members of the society.

Classification of defamation:

1. Slander

2. Libel

Slander:

It is slander if it is made in some transitory form. Slander is defamation communicated by spoken words or other sounds addressed to ear or by gestures. Such as word of mouth, gestures.

Libel:

It is libel if the defamatory representation is made in some permanent and visible form. Libel indicates something printed or written but it includes also anything recorded in a more or less permanent form addressed to the eye or which could be seen. Such as painting, photograph, wax work, cartoon, sky writing by an aero-plane.

Youssoupoff vs. Metro Godwyn Mayer Pictures Ltd. (1934) 50 TLR 581

Russian Princess, “Rasputin – the Mad Monk”

Seduced by Rasputin- vile character, Moral Turpitude.

Differences between Libel and Slander:

Permanent and Transitory
Oral- by ear and Written- by eye
Tortuous liability and criminal liability/ punishable.
Intention and Malice
Momentary and Actionable per-se
Self defense: easier and tuff
Repeater- Acknowledged
Seriousness: Libel more serious

Essential elements of defamation:

Defamatory statement
Statement must refer to the person
Published by the defendant
False

1. Defamatory statement:

There must be a defamatory statement. Not only written or oral statement, but also cartoon, body language movement can be considered as statement.

Ridge v. English illustrated Magazine (1913) 29 T.L.R 592

A badly written story written by a grocer’s assistant, was published by the defendants, purporting to have been written by the plaintiff, a well known writer. Those who would read the story as published would infer that the quality of the plaintiffs work had deteriorated. Held that the plaintiff was entitled to damage for libel.

Statement must be defamatory in the estimation of the reasonable men:

Sim V. Stretch (1936) 2 AER 1237

The expression reasonable man has been interpreted to mean the right thinking members of the society in generally.

Three types of statement:

(i) Prima facie defamatory. Rubish, Scallywags etc

(ii) Words capable of innocent or defamatory meaning. Baby

(iii) Words prima facie non defamatory. Gandhizi, Sabina Yasmin etc.

Boydell Vs. Jones (1838) 4M&W 446

2. Statement must refer to the person:

In every action for defamation the plaintiff must prove that the statement refers to a specific person. It is however not necessary to show that the defendant intended it to refer to the plaintiff.

E. Hulton & Co. Vs. Jones (1910) AC 20

The defendants, in their newspaper, published an article in which one Artemus Jones, described as a Churchwarden, was accused of living with a mistress in France. The article was written as a fiction, and the owners of the newspaper were ignorant of the existence of any person who bore that name. Unfortunately, however, the name so chose was that of a real person, an English Barrister and journalist, and those who knew him supposed the article refers him. The defendants were liable. Held that “A person charged with libel cannot defend himself by showing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both.”

Heremba Chandra Mitra vs. Kali Prashad (1897) ICWN p465

3. Published by the defendant:

Wenhak Vs. Morgan (1888) 20 QB 635

“Husband and wife is considered as same person in the eye of law. Their discussion is not considered as publication.”

Ruth Vs. Huth (1915) 3KB 32

If any defamatory statement is communicated by a closed cover (though not sealed) addressed to the plaintiff, the defendant has no reason to believe that it would be opened or read by any person other than the plaintiff, the defendant to whom it is addressed. Hence in such a case the letter is, in fact opened and read by a servant or other person who had no right to do so, there is no publication and the defendant is not liable.

4. False:

The defamatory statement must be false. No evil action lies for the publication of a defamatory statement which is true.

Self Defences:

1. Justification

2. Fair comment

3. Privilege

i. Absolute privilege

ii.Qualified privilege

a. Justification

Truth of the defamatory statement is a complete defence to a civil action brought in respect of it, and if the matter is true the purpose or motive with which it was published is irrelevant. The defence that a statement is true is known as a plea of justification, the defendant being said to justify his statement.

b. Fair comment

Nothing is libel which is a fair comment on a matter of public interest. The defendant has to prove that,

i. The word published related to some matter of public interest.

ii. They are a comment, not a statement of fact.

iii. The comment is fair.

c. Privilege

i. Absolute privilege

* Statement made in course of parliamentary proceedings.

* Statement made in course of judicial proceedings.

* Statement relating to affairs of state.

ii.Qualified privilege

* Statement made in performance of a duty.