Civil Defamation: Civil defamation does not involve a criminal offense but rather pertains to a civil wrong. In cases of civil defamation, the aggrieved party can file a lawsuit to seek legal compensation for the harm caused. This type of defamation is examined under the law of torts.

ESSENTIALS OF DEFAMATION

1. The statement must be defamatory:

- The statement made by the defendant must be one that in injuring the reputation of the plaintiff and exposing him to humiliation

- Such a statement must lower the reputation of the plaintiff in the minds of the people who are held to be the right-thinking members of the society.

- The statement can either be oral, or written, or published, or in any other way by which it gets known to the public.

- Whether a statement made by any such person is defamatory in nature or not depends on how the members of society take in the statement as.

A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers, which tends, that is to say, to lower him in the estimation of right-thinking members of the society generally and in particularly to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem.” – Salmond

In a high-profile legal case, the defendant claimed that the Chief Minister of Tamil Nadu was already aware of the LTTE's (a banned organization) plot to assassinate the late Shri Rajiv Gandhi. At the time, the plaintiff, a senior counsel, was representing the Chief Minister. During the trial, the plaintiff was required to cross-examine the defendant. In the course of these proceedings, the defendant made a written submission alleging that the plaintiff had received money from the LTTE. This allegation was deemed ex facie defamatory, as it was both irrelevant to the matter at hand and baseless. Consequently, the court awarded the plaintiff INR 5 lakh in damages for the defamation.

Innuendo:

A statement might seem as not being a defamation, but due to some hidden meaning or secondary meaning can be considered as a statement of defamatory nature. In such cases, the plaintiff must prove the hidden meaning in the statement which is making the statement as defamatory.

Intention to defame is not necessary:

In cases where the statement is found to be defamatory, but the defendant says that he had no intention to defame the plaintiff, the statement is still held as defamation. In a case, the defendant had published by mistake that the plaintiff had given birth to twins, but the woman was just married two months ago. The defendants were ignorant of the correct facts but were still held liable for damages.

2. The statement must refer to the plaintiff:

- The plaintiff should prove that the statement made by the defendant was referred to him.

- If the plaintiff was able to infer that the defamatory statement made by the plaintiff was directed towards him, then the defendant is liable for such an act of defamation.

In the case of Newstead v. London Express Newspapers Ltd 1940 1KB 377, the defendants published an article which stated that “Harold Newstead, a Camberwell man” has been convicted of bigamy. The statement made by the defendants were true about Harold Newstead who was a Camberwell barman. But there was another Harold Newstead who was a Camberwell barber and he inferred that the person being referred to in the defamatory statement as himself and sued the defendants. The defendants were held liable.

3. The statement must be published:

Publication refers to making the statement which is of defamatory nature known to a person other than the one to whom it is being referred to. Publication of the statement makes it known to the public at large. Making the statement known to the plaintiff alone will not amount to any defamation as defamation involves lowering and injuring the reputation of one person in the guesstimate of right-thinking members of the society.

Libel and Slander-

Distinction Between Libel and Slander:

English Law: Libel and slander are distinguished by their forms of communication. Libel refers to defamatory representations made in a permanent form, such as writing, films, or pictures, and is addressed to the eye. For instance, if X publishes an advertisement falsely stating that Y is bankrupt, this constitutes libel. Slander, however, involves defamatory statements made in a transient form, such as spoken words or gestures, and is addressed to the ear. For example, if A questions B’s chastity during an interview, this would be considered slander. In English criminal law, only libel has been recognized as a criminal offense; slander is not considered a criminal offense.

Indian Law: Under Section 356 of the Bharatiya Nyaya Sanhita, 2023 (BNS), both libel and slander are criminal offenses. In the context of tort law:

- Slander: Slander, which refers to spoken defamation, is actionable but requires proof of actual harm or damage to the plaintiff's reputation. The plaintiff must demonstrate that the slanderous statements caused real harm, as slander is not actionable per se.

- Libel: Libel, involving written or published defamation, is actionable per se. This means that the plaintiff does not need to prove actual damage or harm to their reputation, as the defamatory nature of libelous statements is presumed to be harmful in itself.

English law differentiates between libel and slander in defamation cases. Libel involves defamatory statements in a permanent form, such as writing, films, or pictures. For instance, in a case where a film depicted a woman in a compromising situation with a man of notorious character, it was held to be libelous because the defamatory content was presented in a lasting format.

Slander refers to defamatory statements made in transient forms, such as spoken words or gestures. Under English criminal law, only libel is recognized as a criminal offense, while slander is not. In tort law, libel is actionable per se, meaning no proof of damage is required, whereas slander requires proof of actual harm to the plaintiff's reputation.

There are few exceptions where slander is also actionable per se.

The exceptions are as follows:

1. A charge of claim of criminal offence is made by the plaintiff.

2. A charge of claim regarding a disease which is contagious in nature, or any similar infectious disease to the plaintiff, which leads to the disassociation of other people from the plaintiff.

3. A charge of claim that such a person is incapable or not of honest nature or is a person who is not fit for a particular job, profession or any other occupation done by him.

4. A charge of claim characterizing transgression, or adultery to any woman or a girl.

REMEDIES FOR DEFAMATION

1. Civil Remedies:

• Claim for Damages: The most common civil remedy is to file a claim for damages. This allows the defamed individual to seek compensation for the damage to their reputation, emotional distress, and any financial losses incurred due to the defamatory statements.

• Injunction: You can also seek an injunction, which is a court order that prevents the defamer from making or distributing further defamatory statements.

• Apology and Retraction: In certain cases, the court may order the defamer to issue a public apology and retract the defamatory remarks, helping to restore the affected person's reputation.

2. Criminal Remedies:

• Criminal Complaint: Defamation is a criminal offense under Sections 356 of the Bharatiya Nyaya Sanhita, 2023 (BNS). A criminal complaint can be filed with the police or a magistrate, and if the defamer is found guilty, they may face imprisonment for up to two years, a fine, or both.

3. Legal Procedures:

• Filing a Complaint: To start legal proceedings, you can file a complaint with the local police or a magistrate's court. Your complaint should detail the defamatory statements and provide supporting evidence.

• Gathering Evidence: It’s important to gather evidence, such as copies of the defamatory content, witness statements, and any relevant communications, to support both civil and criminal claims.

• Consulting a Lawyer: It’s advisable to seek advice from a lawyer specializing in defamation cases. They can guide you on the best legal strategy and help with the legal process.

4. Special Considerations:

• Public Figures: Public figures have a higher burden of proof in defamation cases and must demonstrate that the defamation was made with actual malice or a disregard for the truth.

• Truth as a Defense: In both civil and criminal defamation cases, proving that the statement is true can serve as a defense against defamation claims.

• Legal Privileges: Certain statements made in specific contexts, such as during judicial proceedings or parliamentary debates, may be protected by legal privileges and not considered defamatory.

DEFENCES AVAILABLE

i. Justification or truth– Under criminal law, merely proving that the statement was true is no defence but in civil law merely showing truth is a good defence. In Alexander v. N.E. Rly [ix], the plaintiff had been convicted of riding a train from Leeds without having purchased a valid ticket. The penalty was a fine and a period of imprisonment of fourteen days if he defaulted on the fine. However, following the conviction, the defendant published a notice that the plaintiff was convicted and issued a fine or three weeks imprisonment if in default. The plaintiff alleged that the defendant had committed libel by describing the penalty issued to him inaccurately. The defendants argued that the conviction was described with substantial and sufficient accuracy and the words so far as they differed in their literal meaning from the words of the conviction were not libellous. Judgment was given in favour of the defendants. The gist of the libel was that the plaintiff was sentenced to pay a sum of money and, in default of payment, to be imprisoned. Blackburn J noted that the substance of the libel was true but the question was whether what was stated inaccurately was the gist of the libel.

ii. Fair Comment -

– The comment must be an expression of opinion rather than assertion of fact.

– The comment must be fair i.e. without malice.

– The matter commented upon must be of public interest.

iii. Privilege - There are certain occasions when the law recognizes the right to freedom of speech outweighs the plaintiff’s right to reputation, the law treats those occasions as ‘Privileged’. These are further of two types

Absolute privilege - No action lies for the defamatory statement even though the statement is false or made maliciously. It applies to Parliamentary Privilege, Judicial proceeding and State communication.

Qualified privilege - It is necessary that the statement must have been without malice. The defendant has to prove that statement was made on a privileged occasion fairly.

In India, defamation can be addressed both criminally and through civil actions. Criminal defamation, under Section 356 of the Bharatiya Nyaya Sanhita, 2023 (BNS), can result in prosecution, while civil defamation involves seeking remedies like damages through civil cases. Libel is actionable per se, requiring no proof of damage, whereas slander requires proof of actual harm. Remedies include damages, injunctions, and apologies, with defences available for truth, fair comment, and privilege. Public figures face a higher burden of proof, and certain legal privileges may offer protection.