Defamation: libel and slander

1. Meaning

Winfield defines defamation as the publication of a 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. The test is the view of ordinary, reasonable people, not of a particular section. In India the civil wrong is governed by common law principles; the offence is now in s.356 of the Bharatiya Nyaya Sanhita, 2023 (old ss.499–500 IPC).

2. Essentials

• The statement must be defamatory. It must tend to injure reputation. Abuse spoken in anger and understood as such is usually not defamatory. In Tolley v. J.S. Fry & Sons Ltd. (1931), an amateur golfer's caricature was used in a chocolate advertisement without his consent; the implication that he had taken money for it, and so compromised his amateur status, was held defamatory.
• It must refer to the plaintiff. The question is whether reasonable people who know the plaintiff would understand it to refer to him. Intention is irrelevant. In Hulton & Co. v. Jones (1910), a newspaper wrote a fictional piece about “Artemus Jones”, a churchwarden of Peckham, carrying on with a woman in France. A real barrister named Artemus Jones recovered damages because his friends took it to be about him. In Newstead v. London Express Newspaper Ltd. (1940), a report that “Harold Newstead, thirty-year-old Camberwell man” had been convicted of bigamy was true of one Harold Newstead but was read as referring to the plaintiff, another man of the same name and age in Camberwell. The paper was liable.
• It must be published. Publication means communication to at least one person other than the plaintiff. A letter sent only to the plaintiff is not published; a letter dictated to a typist, or a postcard, usually is. Every repetition is a fresh publication.

3. Innuendo

A statement innocent on its face may carry a hidden defamatory meaning to those who know particular facts. That secondary meaning is the innuendo, and the plaintiff must plead and prove the facts that give rise to it. In Cassidy v. Daily Mirror Newspapers Ltd. (1929), the paper published a photograph of Mr. Cassidy with a woman, captioned as an announcement of their engagement. Mr. Cassidy was in fact married to the plaintiff. Acquaintances who knew she lived with him as his wife understood the caption to mean she was not lawfully married and was living in immorality. The paper was liable although it did not know of the marriage. Cassidy, Hulton and Newstead together show that defamation is a tort of strict liability as to meaning and reference.

4. Libel and slander

English law divides defamation into two forms:

• Libel is defamation in a permanent form: writing, print, pictures, effigies, films and broadcasts. In Monson v. Tussauds Ltd. (1894), a wax effigy of the plaintiff placed near the Chamber of Horrors was held capable of being a libel. In Youssoupoff v. Metro-Goldwyn-Mayer Pictures Ltd. (1934), a talking film was treated as libel.
• Slander is defamation in a transient form: spoken words or gestures.

The difference matters in two ways. In England libel can be a crime, and libel is actionable per se while slander generally requires proof of special damage. Slander is actionable per se in four cases: imputation of a criminal offence punishable with imprisonment; imputation of a contagious disease that would cause people to avoid the plaintiff; imputation of unchastity to a woman; and words calculated to disparage the plaintiff in his office, profession, trade or business.

5. Defences

(a) Justification or truth. In a civil action, truth is a complete defence, because the law does not protect a reputation a person does not deserve. The defendant must prove the substance of the charge true; minor inaccuracies do not defeat the plea. (In the criminal offence, truth is a defence only if the imputation was made for the public good.)

(b) Fair comment. The defendant must show that (i) the statement was comment or opinion, not an assertion of fact; (ii) the comment was on a matter of public interest, such as the conduct of public men, public institutions, books and performances; (iii) it was based on true facts; and (iv) it was fair, in the sense of an honest opinion, however strongly expressed. Malice defeats the defence.

(c) Privilege.

• Absolute privilege is a complete defence even if the statement is false and malicious. It covers statements in Parliament and State Legislatures (Articles 105 and 194), statements by judges, advocates and witnesses in judicial proceedings, and communications between high officers of State in the course of duty.
• Qualified privilege protects a statement made in good faith, without malice, by a person with a legal, social or moral duty or interest to make it to a person with a corresponding duty or interest to receive it. Examples: a character reference given by a former employer, a complaint to the proper authority, fair and accurate reports of judicial and parliamentary proceedings. Proof of malice destroys it.

Other defences: consent of the plaintiff, and apology and offer of amends, which go to mitigation of damages.

6. The constitutional overlay

In R. Rajagopal v. State of Tamil Nadu, 1994 INSC 455, (1994) 6 SCC 632 (the “Auto Shankar” case), the Supreme Court held that a magazine could publish the autobiography of a condemned prisoner without prior restraint by the State. On defamation it laid down that public officials cannot claim damages for defamation in respect of acts done in the discharge of their official duties unless they prove that the publication was made with reckless disregard for truth. The publisher need only show that he acted after a reasonable verification of the facts. Matters in public records are open to comment.

On the criminal side, in Subramanian Swamy v. Union of India, 2016 INSC 427, (2016) 7 SCC 221, the Court upheld the constitutional validity of criminal defamation under ss.499–500 IPC, treating reputation as part of the right to life under Article 21 and the offence as a reasonable restriction under Article 19(2). For a torts answer, cite it only to show that the same statement can give rise to both a civil action for damages and a criminal complaint.

7. Problem

A newspaper prints a photograph of X, a businessman, with a young woman, captioned “X and his new companion at the races”. X's wife Y sues, saying her friends now think she has been abandoned and is not his lawful wife. The editor did not know X was married.

Issue. Whether a caption innocent on its face can defame Y, who is not named.

Law. A statement may defame by innuendo to persons who know extrinsic facts, and the defendant's ignorance of those facts is no defence (Cassidy v. Daily Mirror). Reference is judged by the understanding of reasonable readers who know the plaintiff (Hulton v. Jones).

Application. Y's acquaintances know she lives with X as his wife. Read with that knowledge, the caption suggests either that she is not married to him or that he has put her aside. Y must plead those facts and show the meaning was understood. Truth is not available because the implied charge is false; fair comment fails because the statement is one of fact.

Conclusion. The paper is liable to Y for libel by innuendo.

How this is examined

A 10-mark question asks for the essentials of defamation and its defences, or the distinction between libel and slander. Structure: definition, three essentials with one case each, innuendo (Cassidy), libel versus slander with the four slanders actionable per se and the Indian position, then the defences. End with Rajagopal. Short notes: “Innuendo”, “Fair comment”, “Qualified privilege”.