Defamation: Who May Sue and Who May Be Sued, Class Defamation, the Deceased, Corporations, and Public Officials

Reputation is personal, and the action follows the person whose reputation has been hurt. The general rule is that the plaintiff must show that the words referred to him. Four situations test that rule and each is decided differently: a statement about a class, a statement about a person who is dead, a statement about a corporation, and a statement about a public official, where R. Rajagopal v. State of Tamil Nadu introduced a requirement of reckless disregard for truth. On the other side, everyone in the chain of publication is liable, subject to the defence of innocent dissemination.

Class defamation, the deceased, corporations, public officials, and who may be sued

1. Defamation of a Class or Group

• The general rule is that no action lies where the words refer to a class and not to the plaintiff. A statement that all lawyers are thieves defames no particular lawyer, because no reader takes it as an assertion about any individual.
• The exception is where the class is so small, or the circumstances so pointed, that the words must be taken to refer to every member of it, or to the plaintiff in particular. A statement that the three directors of a named company are dishonest defames each of them.
• The smaller the group, the easier the identification. A statement about a body of seven partners is far more likely to be actionable than one about a profession of thousands.
• The circumstances may narrow a large class. Words about "the staff who handled this file" refer to whoever the readers know handled it.
• And the test remains the same as everywhere else in the tort: would reasonable readers understand the words to refer to the plaintiff.

2. Defamation of a Deceased Person

• The rule is an instance of actio personalis moritur cum persona, the personal action dies with the person, which is examined in TORT 016.
• The practical consequence is that a defamation claim must be brought and concluded in the plaintiff's lifetime, and the death of either party ends it.
• Relatives who wish to respond to an imputation on a deceased person must therefore look to the criminal law, or to whatever remedy the law of privacy may give them.

3. Defamation of a Corporation

• A company may sue for words reflecting on its trading reputation, its business or its credit. A statement that a company is insolvent, or that it sells adulterated goods, or that it does not pay its creditors, is actionable at its suit.
• It cannot sue for words touching only the personal character of its officers. An imputation on the managing director is his to complain of and not the company's, unless the words necessarily reflect on the company's own conduct.
• It has no feelings to injure, so it recovers nothing for distress, and its damages are directed to the injury to its business reputation.
• Explanation 2 to section 356 of the Bharatiya Nyaya Sanhita, 2023 expressly covers an imputation concerning a company, an association or a collection of persons as such.
• A trading corporation need not prove special damage where the words are calculated to injure it in the way of its business, the injury being presumed as it is for an individual.
• A local authority or governmental body raises a distinct question. The better view, and the one consistent with Article 19(1)(a), is that a governmental body should not be able to use defamation to silence criticism of its administration, and that its officers must sue in their own names if they are personally defamed.

4. Public Officials and Public Figures

• The rule borrows the standard of New York Times Co. v. Sullivan without adopting the whole of American constitutional doctrine.
• It is confined to official conduct. A public official retains the ordinary remedy for a statement about his private life, unless that life has itself become a matter of public record.
• It protects the honest journalist who gets it wrong, and not the one who publishes without caring whether it is true. Reasonable verification is the defendant's answer, and it is a lower bar than proving truth.
• Its effect is to shift the real contest from the truth of the statement to the state of mind of the publisher, which is a substantial change in a tort otherwise indifferent to the defendant's intention.

5. Who May Be Sued

• Innocent dissemination is the one relief available to those at the far end of the chain. A distributor, vendor or carrier is not liable if he did not know that the publication contained defamatory matter, had no reason to suppose that it was likely to contain any, and was not negligent in failing to find out.
• The defence is not available to the author, the editor or the publisher, who are responsible for the content.
• Its modern counterpart is the intermediary safe harbour under section 79 of the Information Technology Act, 2000, which rests on the same idea: a person who merely carries or hosts what others have written should not answer for its content until he knows of it.
• Liability is joint and several, and the plaintiff may sue any or all of them, though he recovers his damages once.

6. The Position Stated Shortly

1. No action lies for defamation of a class, unless the class is so small or the circumstances so pointed that the words must be taken to refer to the plaintiff.

2. A defamation action does not lie in respect of a deceased person in civil law, and does not survive the death of either party.

3. Explanation 1 to section 356 of the Bharatiya Nyaya Sanhita, 2023 makes it an offence to defame the dead where the family's feelings are intended to be hurt.

4. A corporation may sue for words reflecting on its trading reputation, business or credit, and not for words touching only its officers.

5. It has no feelings to injure, and need not prove special damage where the words are calculated to injure it in its business.

6. R. Rajagopal v. State of Tamil Nadu holds that a public official has no remedy for publication about his official conduct unless he proves reckless disregard for the truth.

7. The defendant answers by showing reasonable verification of the facts, and need not prove that what he published was true.

8. Neither the Government nor its officials may impose a prior restraint on publication in anticipation of defamation.

9. Everyone in the chain of publication is liable: author, editor, printer, publisher, distributor and republisher.

10. Innocent dissemination protects a distributor, vendor or carrier without knowledge or reason to suspect, and its modern counterpart is section 79 of the Information Technology Act, 2000.