Feb
13
2017


Defamation in Civil Courts- an analysis

As per Salmond, the wrong of defamation lies in the publication of a false and defamatory statement about another person without lawful justification’.

Speaking generally, every person is entitled to his good name and to the esteem in which he is held by others, and has a right to claim that his reputation shall not be disparaged by defamatory statements made about him to a third person or persons without a lawful justification or excuse. Article 8 of the European Convention on Human Rights 1950 encompasses the right to reputation as a part of the right to respect for a person’s private and family life.

Defamation may be committed in two ways viz; (i)speech, or (ii) by writing and equivalent modes. The English common law describes the former as Slander and the latter as Libel. The claim of slander and libel are private legal remedies, the object of which is to vindicate the claimant’s reputation.

In India, defamation is a ground on which a constitutional limitation on right of freedom of expression under Article 19(2) could be legally imposed. Thus, the expression ‘defamation’ has been given a constitutional status. The full judge bench in Purushottam Lal Sayal Vs Prem Shankar (AIR 1966 Allahabad 377) held that the court has to apply the rules of equity, justice and good conscience while deciding whether the words which defamed someone are capable of defamatory meaning.

Whenever a defamation is agitated before any civil court, the proof must travel around the essentials of defamation. Therefore, it becomes necessary to try to enlist those essentials constituting as civil wrong. There are, in general, four essentials of the tort of defamation-

a. There must be a defamatory statement. b. The defamatory statement must be understood by right thinking or reasonable minded people as referring to the plaintiff. c. There must be publication of the same. d. Proof of special damages.

Publication of a defamatory statement is equally important essential. In case of R. Rajagopal versus State of Tamil Nadu, [famously known as the Auto Shankar Case], the Hon’ble Supreme Court said that the newspaper could publish the life story so far as it appears from the public records even without the consent or authority. But if they go beyond the public record and publish, they may be invading the privacy and causing defamation of the officials named in the publication. However, Hon’ble Supreme Court said that even if the apprehensions of the officials were true about the defamatory contents, they could not impose any prior restraint on the publication, though they had right to take to legal proceedings for defamation after publication. It has been ruled that the Government has no authority to impose a prior restraint on publishing an autobiography, because that is going to be defamatory or violating right to privacy.

Even, newspapers are subject to the same rules under defamation. There are not any separate rights and privileges available for the newspapers. In case of Gambhirsinh R. Dekare versus Falgunibhai Chimanbhai Patel and others (2013 Criminal Law Journal 1757 SC), Hon’ble Supreme Court has ruled down that the Editor whose name is published in said newspaper is liable for civil and criminal liability, in case the matter published is defamatory.

With the proof of publication of defamatory material, plaintiff must be deemed to have established his case unless the defendant pleads either of the defences open to him, which are-

a. justification of truth. b. fair and bona fide comment. c. absolute privilege. d. consent. e. apology.

The defence of truth and fair comment on a matter of public interest is not libel. Whereas, apology, as a defence in actions for libel, is available against newspapers and another periodical publication.

Recently, in Devidas Ramachandra Tuljapurkar vs State of Maharashra and Ors (AIR 2015 SC 2612) a two-Judge Bench dealing with the issue of obscenity in a poem in a different context cited various judgments of the United States of America, the United Kingdom and European Courts and observed that factum of obscenity has to be judged by applying the contemporary community standards test.

There are certain established rules in the law to determine whether statement made verbally or in writing is defamatory or not. The first rule is that the whole of the statement complained of must be read and not only a part(s) of it. The second is that the words are to be taken in the sense of their natural and ordinary meaning.

Hence, to conclude the test to be applied for the determination of the question of defamation is, ‘would the words tend to lower the plaintiff in the estimation of right-thinking members of society?’

 

The author of the article is Ms. Shreya Mehta and she can be reached at shreya@tcl-india.net



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