Defamtion: A Growing Tort

The author in this post has encapsulated the most basic while still controversial aspects of the tort of defamation, to give the reader comprehension of how the tort per se exists. He has also discussed the lack of applicability of the law and the importance of its application in the era of the growing identity of individuals.

The tort of Defamation: The concept

Defamation is a word that we often hear and in a general sense, relate it with the degradation of an individual by another. As a concept of law, nonetheless, defamation is a lot more defined and specified than the generalized meaning. Street defines defamation as the degradation of a person’s reputation in the eyes of a third[1]. Now this definition standalone may sound incredibly abstract but if one reads it from a narrower perspective it becomes clear how Street has in one sentence, summarized all that defamation in law. The statement in its entirety means that defamation lawfully will be held when the actions and/or comments of one person or entity lead to the lessening of the reputation of another in the eyes of a third person; not a part of the aforementioned exchange[2]. In other words, according to Street, one of the most important elements of Defamation is “publication”. Without publication or public display of the defamatory statements, one cannot be held liable for the tort of defamation.

The types of defamation

The tort of defamation of two types that subsists namely Libel and Slander. These types are basically differentiated on one point which is the permanence of the said commentary or statement. It is Libel; when the statements made (usually written) are permanent in nature that is the statements are not fleeting as they are in the case of slander. Examples of Libel would be defamatory writeups, caricatures, effigies, etc. Slander would include hateful speeches, commentaries, etc., An another very important point of differentiation is that in Libel cases the claimant is not required to prove any sort of damages to initiate a case whereas on the contrary the claimant is required to prove special damages (economic loss mostly) in the case of slander. There are 4 cases in which the claimant is not required to do so for slander namely criminal allegations, contagious disease allegations, lacking in business allegations, allegations questioning the chastity of a woman as these cases anyway harm the reputation of the claimant as soon as the claims are made.

The essential elements of Defamation

Defamation requires a fundamental element for the statement to be published. Publication in its true sense does not mean that the statements must be available in a magazine or in a newspaper or any such medium. In this context publication simply means that the statements must have been heard or read by another individual (even one is enough) other than the involved parties. For ex., if A calls b an ignoramus while they were playing FIFA in A’s house that won’t be held as defamation whereas if C was present and heard what A had said then B has the provision of suing A if he wants to for Slander.

The second element for a defamatory statement to be sue able is that the statement must be referring to the claimant i.e. the statement must be directed in at least one sense towards the claimant and not be generic. The third element for a defamatory statement to be sue able is that no defenses should be applicable i.e., the suit must not be invalidated inherently. If all of these elements are satisfied the claimant would be successful in suing for and winning the case.

Who can sue?

Another frequently discussed issue pertaining to this topic is who can be defamed as in whose reputation can be maligned? To answer this, we do not have to delve into detail, there exists a very straightforward definition ie., any living person can sue for his reputation and so can a corporation for its commercial reputation[3]. Though the provision that allows corporations to sue as well as get sued, the topic of ‘chilling effect’ factors in. Many argue that this provision helps the corporations in silencing the critiques and subduing those who speak negatively of their actions by overburdening them with legal costs. This leads to the spread of the chilling effect as the critiques are silenced and opinions are subdued.

Defamation under the Indian Penal Code

The tort of defamation covers the civil culpability that arises from defaming a person. In a less legalized way, the tort essentially allows a person who feels he/she has had their reputation harmed to file a suit against the defamer for damages or to prevent the publication of something which may potentially cause damage to their reputation[4]. Though due to the inefficiency of our legal system, people often tend to prosecute the defamer through the other ways that our constitution, and that of only a few others around the world, allows which is ‘criminal’ litigation for defamation. The claimants prefer this, as in criminal charges the events are perceived to be more serious, and the case is often heard first. Most democratic countries around the world have done away with criminal culpability for defamation, fearing the chilling effect but the Indian Penal Code under Sections 499 and 500 still allows defamation to be held as a criminal offense. The debate which arises from this provision of criminal culpability and moreover the practice of defamation in whole is the contention that naturally arises of it with the fundamental right of freedom of expression.

The debate regarding “Freedom of speech and expression”

Article 19 of the Indian constitution guarantees the right of freedom of expression[5] to every citizen of the country, now, this right also covers the opinions of the citizens that they might have on anything and everything. This is where the contention particularly arises, the point is to what extent will a person’s right to express, supersede the other’s interest in his reputation. However, Article 19(2) says that freedom of expression is not unlimited[6]. There are certain restrictions imposed on it i.e. when the expression goes against the elements of a democratic society including against the freedom and rights of others which includes defamatory statements.

Criticism of application of the Tort in India

Another often associated constituent defamation is to see it as a weapon of the rich. This argument is time and again repeated, and most of us without understanding the heavy connotations behind the statement agree. A substantial cause of this could be the amount of media- attention is given to cases involving public figures, corporate entities, tabloids, etc., whereas hardly any coverage is given to the cases of the ‘Joe Doakes’. This statement to a certain extent is true as in defamation cases ‘legal aid’ is not provided[7] i.e., the state does not provide aid to individuals who would not be able to fight their case on their own, unlike other situations where it does. This provision greatly restricts the class of people that will and can sue for defamation. It has long been contended and held that legal aid should be provided in defamation cases as well, the most famous incident of this would be the Mclibel Case[8] wherein Morris and Steel, the claimants argued amongst their other points this as well in front of the European Court of Human Rights against the judgment, delivered in favor of McDonalds. Legal aid as a provision in defamation is still absent and given that the Indian courts give out very mild judgments it further demotivates the common man to sue for his reputation.

More often than not its applicability is ignored in the Indian Legal sphere. However, with the growing recognition of an individual’s identity, defamation is soon to acquire if not already, a position of importance. It is now more than ever, essential to generate enough literary constituents for the ‘Tort of Defamation.’

References: [1] Street on Torts by John Murphy and Christian Witting (13th edition) [2] Winfield and Jolowicz on Torts by W.V.H Rogers [3] Street on Torts by John Murphy and Christian Witting (13th edition) [4] Law of torts by Ratanlal Ranchhoddas and Dhirajlal K Thakore [5] The Constitution of India, 1950, Art.19(1) [6] The Constitution of India, 1950, Art.19(2) [7] Street on Torts by John Murphy and Christian Witting (13th edition) [8] Mcdonald’s Corp v Steel [1995] 3 All E.R. 615

Submitted by:

Sri Hari Mangalam,

The West Bengal National University of Juridical Sciences

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