Law of Torts
Defamation: Meaning, Libel and Slander, the Indian Position, and Civil Against Criminal Defamation
Defamation protects reputation, which is what others think of a person, as distinct from his own sense of honour, which the law of torts does not protect at all. A statement is defamatory if it tends to lower the plaintiff in the estimation of right thinking members of society generally. English law divides the tort into libel and slander, and treats them very differently: libel is actionable per se, slander requires proof of special damage. India has not adopted that division for civil purposes, and slander is actionable per se here.
Libel and slander, the four English exceptions, the Indian position, and civil against criminal defamation
1. Meaning
- Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally, or which causes him to be shunned or avoided, or which exposes him to hatred, contempt or ridicule.
- It protects reputation, not dignity. A statement that wounds a man's feelings but affects nobody's opinion of him is not defamatory, which is why mere abuse and vulgar insult are not actionable.
- Reputation is what others think. That is why publication to a third person is the central requirement of the civil wrong, and why telling a man to his face that he is a thief, with nobody else present, is no tort at all.
- The law presumes falsity, so the plaintiff need not prove that the statement was untrue; the defendant must prove that it was true if he wishes to rely on truth.
2. Libel and Slander
Libel | Slander | |
The form | Permanent | Transient |
Examples | Writing, print, a picture, a cartoon, an effigy, a statue, a film, a broadcast, a recording, a post on the internet | Spoken words, gestures, sounds, sign language |
Addressed to | The eye | The ear |
Actionable per se | Yes | No in England, subject to four exceptions. Yes in India |
Criminal liability in England | Yes, libel was also a crime | No, a civil wrong only |
The reason for the distinction | Permanence, deliberation in composition, and the wider and more lasting circulation | Often spoken in heat, transient, and less widely circulated |
3. The Four English Exceptions
- An imputation of a criminal offence punishable with imprisonment in the first instance.
- An imputation of a contagious or infectious disease of a kind that would cause the plaintiff to be shunned or avoided.
- An imputation of unchastity or adultery in a woman.
- An imputation of unfitness, dishonesty or incompetence in any office, profession, calling, trade or business carried on by the plaintiff.
- In these four cases slander is actionable per se in England, and in every other case the plaintiff must plead and prove actual pecuniary loss.
4. The Indian Position
- The High Courts have held, with some early dissent, that in India slander is actionable per se, exactly as libel is, so that no special damage need be proved in either case.
- The first reason is historical. The English distinction is a product of the division of jurisdiction between the common law courts and the ecclesiastical courts, the latter having dealt with spoken defamation as a spiritual offence. That history has no counterpart in India, and a rule founded on it has no application here.
- The second reason is statutory. Section 356 of the Bharatiya Nyaya Sanhita, 2023, like section 499 of the Indian Penal Code before it, makes no distinction whatever between spoken and written imputations, and treats words spoken and words intended to be read alike.
- The third reason is practical. In a country of varying literacy the spoken word travels at least as far as the written one and does at least as much harm, and a rule that protected only those defamed in writing would protect only the literate.
- The consequence is that the elaborate English learning on the four exceptions is of limited use in India, though it remains useful as a guide to what kinds of imputation the law has always regarded as most serious.
5. Civil and Criminal Defamation
The civil wrong | The offence under section 356, BNS 2023 | |
The object | Compensation to the person defamed | Punishment of the offender |
Publication | To a third person is essential. Telling the plaintiff alone is no tort | Communication to the person defamed himself may suffice |
Truth as a defence | Truth alone is a complete defence, whatever the motive | Not enough. The first exception requires that the imputation be true and that its publication be for the public good |
Standard of proof | The balance of probabilities | Beyond reasonable doubt |
Intention | Not required. Liability does not depend on intending to defame | The section requires an intention to harm, or knowledge or reason to believe that the imputation will harm |
The remedy | Damages, and an injunction in a proper case | Simple imprisonment up to two years, fine, both, or community service |
Who initiates | The person defamed, by suit | A complaint, ordinarily by the person aggrieved |
Section 356, Bharatiya Nyaya Sanhita, 2023 Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes in any manner, any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Explanation 1: 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 or other near relatives. Explanation 2: it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3: an imputation in the form of an alternative or expressed ironically may amount to defamation. Explanation 4: no imputation is said to harm a person's reputation unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. The section is followed by ten exceptions, and sub section (2) provides the punishment: simple imprisonment for a term which may extend to two years, or with fine, or with both, or with community service. |
6. The Constitutionality of Criminal Defamation
📖 Subramanian Swamy v. Union of India, (2016) 7 SCC 221 Facts A batch of petitions challenged the constitutional validity of sections 499 and 500 of the Indian Penal Code, and of section 199 of the Code of Criminal Procedure, on the ground that criminal defamation is an unreasonable restriction on the freedom of speech and expression guaranteed by Article 19(1)(a), and that a civil remedy is sufficient. The petitioners included politicians and journalists facing prosecutions. Held The provisions were upheld as constitutional. Ratio The right to reputation is an integral part of the right to life and personal liberty under Article 21, and the State has a duty to protect it. Article 19(2) expressly names defamation as a ground on which reasonable restrictions may be imposed on the freedom of speech, so the restriction is one the Constitution itself contemplates. The existence of a civil remedy does not make the criminal remedy unconstitutional, the two operating in different fields. The Court cautioned, however, that the criminal process should not be used as a weapon, and emphasised the responsibility of magistrates to apply their minds before issuing process. |
⚠ Why defamation is presumed false and is a tort of strict liability Two features of the tort strike newcomers as harsh, and both have the same explanation. The first is that falsity is presumed: the plaintiff proves only that the words were published and were defamatory, and the burden of proving truth lies on the defendant. The second is that the defendant's intention is irrelevant: he is liable though he meant no harm, did not know the plaintiff existed, and took every precaution. Both rules reflect the same judgment about where the risk should lie. A person who publishes a statement about another has chosen to do so, is in a position to check it before he publishes, and has the material on which any justification would rest. The person defamed has chosen nothing, and would frequently have no means of proving a negative about his own conduct. The law therefore places the burden and the risk on the publisher, and gives him the defences of truth, comment and privilege to work with. |
7. The Position Stated Shortly
1. Defamation is the publication of a statement tending to lower a person in the estimation of right thinking members of society generally.
2. It protects reputation and not dignity, so mere abuse and vulgar insult are not actionable.
3. Libel is defamation in a permanent form and is actionable per se; slander is in a transient form.
4. In England slander requires proof of special damage except in four cases: imputation of a criminal offence, of a contagious disease, of unchastity in a woman, and of unfitness in a calling.
5. In India slander is actionable per se like libel, the English distinction resting on a history with no counterpart here.
6. Section 356 of the Bharatiya Nyaya Sanhita, 2023 makes no distinction between spoken and written imputations.
7. Civil defamation requires publication to a third person; the offence may be committed by communication to the person defamed himself.
8. Truth alone is a complete defence in civil law; the first exception to section 356 requires truth and publication for the public good.
9. Subramanian Swamy v. Union of India upheld criminal defamation, reputation being part of Article 21 and defamation being named in Article 19(2).
10. Falsity is presumed and the defendant's intention is irrelevant, because the publisher chose to publish and holds the material on which any justification rests.