Essentials of Defamation
(1) The words must be false and defamatory;
(2) The said words must refer to the plaintiff; and
(3) The words must be published.
(1) The Words must be Defamatory
Defamatory statement is one, which tends to injure the reputation or character of the plaintiff. Whether a statement is defamatory or not depends upon how the right thinking members of the society are likely to take it. The standard to be applied is that of a right-minded citizen, a man of fair average intelligence.
A statement is defamatory: (a) if most citizens would shun or avoid a person in consequence of the statement, (b) if a substantial and respectable proportion of society would think less of a person.
The meaning of words in a libel action “is a matter of impression as an ordinary man gets on the first reading not on a later analysis” (the question is not of construction in the legal sense). When the statement causes any one to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem, it is defamatory. No action for damages can lie for mere insult. If, however, the insulting words are also likely to cause ridicule and humiliation they are actionable. Further, to say that a product does not answer its purpose is not defamatory but to say that a baker’s bread is always unwholesome is defamatory.
In South India Railway Co. v Ramakrishna I.L.R. (1890) 13 Mad. 34, the railway guard, while checking the tickets and calling upon the plaintiff to produce his ticket said to him in the presence of the other passengers, “I suspect you are travelling with a wrong (or false) ticket.” The plaintiff produced the ticket, which was in order. Held that the words spoken by the guard were spoken bona fide and under the circumstances of the case there was no defamation.
In Sim v Stretch (1936) 2 All ER 1237 (HL), the plaintiff’s house-maid left service and joined the defendant. In a telegram by the defendant, it was written “Edith has resumed her service with us today. Please send her possessions and the money borrowed, also her wages.” The plaintiff claimed damages, alleging that these words were defamatory in as much as they implied that the plaintiff was in such financial difficulties that he had gone to the extent of borrowing money from his servant. It was held that the words were not reasonably capable of any defamatory meaning.
Sometimes the statement may prima facie be innocent (i.e. natural and ordinary meaning is not defamatory) but because of some latent or secondary meaning it may be considered to be defamatory. Even a statement of commendation may be defamatory in the context in which it is said. The statement that a lady has given birth to a child is defamatory when the lady is unmarried.
In Tolley v J. S. Fry & Sons, Ltd (1931) A.C. 333, the defendants issued an advertisement in which a famous amateur golf champion was shown (without his consent) as a caricature, playing golf with a packet of chocolate protruding from his pocket and a comic caddy saying that the chocolate was excellent as the plaintiff’s drive. The ad was held to be defamatory.
Intention to defame is not necessary— When the words are considered to be defamatory by the persons to whom the statement is published there is defamation, even though the persons, making the statement believed it to be innocent.
In Cassidy v Daily Mirror Newspapers Ltd. (1929) 2 K.B. 331, Mr. Cassidy did not live with his lawful wife (Mrs. Cassidy) but occasionally came and stayed with her at her flat. The defendants published in their newspaper a photograph of Mr. Cassidy and Miss ‘X’ with the following words underneath: “Mr. M. Cassidy, the race house owner, and Miss ‘X’, whose engagement has been announced.” Mrs. Cassidy sued the defendant for libel alleging that the innuendo was that Mr. Cassidy was not her husband and he lived with her in immoral cohabitation. Held that the innuendo was established
(2) The Words Must Refer to the Plaintiff
In Halton & Co. v Jones (1910) A.D. 20, the defendants, newspaper proprietors, published a fictional article in their newspaper by which imputations were cast on the morals of a fictitious person — Artemus Jones. A real person of the same name i.e. Artemus Jones, brought an action for libel. His friends, who read that article, swore that they believed that the article referred to him. The defendants were held liable. Section 4 of the Defamation Act, 1952 (English) lays down the procedure by which an innocent author or publisher can avoid his liability. The defendant must prove: (i) that the words which had been published by him were published innocently, and (ii) that as soon as he came to know that these words published by him resulted in the defamation of the plaintiff, an offer of amends (a suitable correction and an apology) was made. In India, law is possibly the same.
Defamation of a class of persons — Defamation is an injury to a man’s reputation, which is a right in rem. By its very nature, reputation for the purpose of the law of torts is that of an individual and not a class of persons. However, If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to the particular individual.” It has been held that when an editorial in a newspaper is defamatory of a spiritual head of a community, an individual of that community does not have a right of action. It may be noted that no suit for defamation is maintainable by a partnership firm as it is not a legal person. The individual partners may bring suit in such a case.
Defamation of the deceased — Defaming a deceased person is no tort. Under criminal law, it may amount to defamation to impute anything to a deceased person if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family/other near relatives (Sec. 499, Explanation, IPC).
(3) The Words must be published
Publication means making the defamatory matter known to some person other than the person defamed. Sending the defamatory letter to the plaintiff is no defamation. It is defamation only if more than two persons are involved. If a third person wrongfully reads a letter meant for the plaintiff the defendant is not liable. It is no publication as it is unauthorized [Huth v Huth (1915) K.B. 32].
But if a defamatory letter sent to the plaintiff is likely to be read by somebody else (e.g. clerk or spouse) there is a publication [Theaker v Richardson (1962) 1 WLR 151].
When the defamatory matter is contained in a postcard or a telegram, the defendant is liable even without a proof that somebody else read it.
In the eyes of law, husband and wife are one person and the communication of a defamatory matter from the husband to the wife or vice versa is no publication, in T J Ponnen v M.C. Verghese (AIR 1970 SC 1876), the question was whether a letter from the husband to the wife containing defamatory matter concerning the father-in, law (wife’s father) could be proved in an action by the father-in-law against his son in-law. His wife had passed on those letters to her father (M.C. Verghese). The husband (Ponnen) contended that the letters addressed by him to his wife are not except with his consent, admissible in evidence by virtue of Sec. 122, Evidence Act. Held that the husband is liable for defamation but the defamatory statement has to be proved from evidence other than that of the wife. It is important to note that the communication of a matter defamatory of one spouse to the other is sufficient publication.
In Theaker v Richardson, defendant wrote a letter to the plaintiff making false allegations of her being a prostitute. The letter was sent under the circumstances that the plaintiff’s husband in all probability would have read the same. The plaintiff’s husband opened and read it. The defendant was held liable.
In Nemi Chand v Khemraj (AIR 1973 Raj. 240), the defendants called a meeting against the plaintiff and made wild imputations against him. One of the defendants got these speeches printed and the printouts were lying in his godown. The plaintiff argued that even printing constitutes publication. Held that mere printing is not actionable.