TORT 145 Libel and Slander — Law of Torts Notes for Judiciary

Libel and Slander: The Permanent Form and the Transient One, and Whether the Distinction Holds in India

English law divides defamation into libel, published in a permanent form, and slander, published in a transient one, and attaches a consequence of real importance to the division: libel is actionable per se, while slander requires proof of special damage except in four recognised classes of case. The distinction has been criticised since the eighteenth century as resting on an accident of jurisdictional history rather than on any principle, and in India its application is a matter on which the High Courts have differed, some holding that slander is actionable per se here as libel is. The question has not been settled authoritatively, and that division is itself the most examinable feature of the subject.

1. The Comparison

	Libel	Slander
The form	Permanent: writing, printing, pictures, effigies, film, broadcasting, a recording	Transient: spoken words, gestures
Actionable per se	Yes	No, except in four classes of case
Special damage	Not required	Required, save in the excepted classes
At English common law	Also a crime	Not a crime as such
The reason for the distinction	Permanence gives it wider circulation, greater credit and longer life	Transience makes it more likely to be an impulsive outburst
The historical origin	The jurisdiction of the Star Chamber over written libels	The jurisdiction of the ecclesiastical and local courts over spoken words
Under the Bharatiya Nyaya Sanhita, 2023	Both are covered. Section 356 speaks of words spoken or intended to be read, signs, or visible representations	The same. The criminal law makes no distinction
Position in India	Actionable per se	Disputed. Some High Courts have held it actionable per se; others have applied the English rule

2. The Four Classes in Which Slander Is Actionable Per Se

The imputation	What it covers
The commission of a criminal offence	An offence punishable with imprisonment in the first instance, and not merely one punishable with a fine. The rule exists because such an imputation exposes the plaintiff to the risk of prosecution and to the avoidance of his fellows
A contagious or infectious disease	A disease of a kind that would cause others to exclude the plaintiff from society. The class is of ancient origin and its modern scope is uncertain
Unchastity or adultery imputed to a woman or a girl	In England this was added by the Slander of Women Act 1891; in India it is treated as an established class
An imputation touching the plaintiff in his office, profession, calling, trade or business	The imputation must be made in relation to that office or calling and must be such as to disparage him in it. This is the commonest of the four in practice

Outside these four classes the plaintiff must prove special damage, meaning some actual, temporal, pecuniary loss flowing from the publication.
Loss of friendship, of society, or of mere reputation is not special damage, and neither is mental distress. There must be a loss capable of being expressed in money.
The loss must be the natural and probable consequence of the publication, and a loss flowing from the voluntary repetition of the slander by a third party is ordinarily too remote.

3. What Counts as Permanent Form

Writing and printing in any medium.
Pictures, caricatures, statues and effigies. Monson v. Tussauds Ltd., [1894] 1 QB 671: a wax figure of the plaintiff placed near the Chamber of Horrors, with the gun used at the incident for which he had been tried, was held capable of being a libel. A libel need not be in words at all.
Film. Youssoupoff v. Metro Goldwyn Mayer Pictures Ltd., (1934) 50 TLR 581: the defamatory matter in a talking film was held to be libel, Slesser L.J. observing that the photographic part of the exhibition is permanent, and that the speech which is synchronised with it forms part of that permanent matter.
Broadcasting and internet publication are treated as libel, the material being recorded, retrievable and capable of indefinite circulation.
A defamatory statement dictated to a typist is published in a transient form to the typist and in a permanent form to the recipient, which is a standard illustration of the same episode generating both.
The subject is examined fully in TORT 067 to TORT 071.

4. The Position in India

The criminal law draws no distinction at all. Section 356 of the Bharatiya Nyaya Sanhita, 2023 covers imputations made or published by words either spoken or intended to be read, or by signs or by visible representations, so spoken and written defamation are on the same footing as offences.
On the civil side the High Courts have differed, and the question has not been resolved by the Supreme Court.
One line of authority holds that the English distinction is not applicable in India. The reasoning is that the distinction rests on the accident of English jurisdictional history, having nothing to do with the injury actually caused; that the Indian criminal law treats both alike; and that no statute has imported the rule. The Bombay High Court in Hirabai Jehangir Mistry v. Dinshaw Edulji Karkaria, decided 10 September 1926, is the decision usually cited for this view, and the Madras High Court has been taken to agree.
Another line has applied the English rule, on the footing that the common law of defamation was received in India together with its incidents, and that the requirement of special damage is one of those incidents.
The safe course in practice is to plead special damage wherever it exists, and to plead in the alternative that the slander falls within one of the four classes, and further that the English distinction has no application in India. A plaint that assumes the point in the plaintiff's favour is taking an avoidable risk.

5. Why the Distinction Is Criticised

Its origin is jurisdictional and not principled. Written libels fell to the Star Chamber and later to the common law courts, while spoken words were dealt with by the ecclesiastical and local courts, and the different requirements are a residue of that division of business rather than a judgment about relative gravity.
Permanence no longer tracks reach. A remark broadcast to millions is spoken; a note passed to one person is written. The assumption that writing circulates further and lasts longer was never uniformly true and is plainly false now.
The consequence falls on the wrong party. A slander that destroys a person's standing without producing any measurable pecuniary loss is unactionable, while a written triviality read by nobody is actionable without proof of anything.
The four exceptions are themselves arbitrary, particularly the class relating to disease, whose modern content nobody can state with confidence.
England has been moving away from it. Broadcasting and theatrical performance were assimilated to libel by statute, and the modern requirement of serious harm has reduced the practical importance of the division.

6. What Follows for a Pleading

Characterise the publication carefully. Where the defamatory matter exists in any recorded or retrievable form, plead it as libel, which removes the question entirely.
Where it is purely oral, plead special damage with particulars, item by item, with figures, since a general allegation of loss will not do.
Plead the applicable class in the alternative, identifying the office, profession or calling and showing that the imputation was made in relation to it.
Plead the Indian position in the alternative, that the English rule requiring special damage has no application here, and be ready to cite the divergence of authority.
Consider whether the criminal remedy is the better one, since section 356 makes no distinction and requires no special damage: TORT 146.

⚠ Why an unsettled point is more useful to know than a settled one

A candidate who learns that libel is actionable per se and slander is not has learnt the English rule and half the Indian position. The more valuable thing to carry is the shape of the disagreement, because it is the disagreement that gets asked about and it is the disagreement that a practitioner actually encounters. The argument against applying the distinction in India is strong and is worth being able to state: the rule is a survival of a division of jurisdiction between English courts that never existed here; the Indian criminal law has treated spoken and written defamation identically since 1860; no Indian statute imports the requirement of special damage; and the premise that writing necessarily reaches further than speech was doubtful in 1926 and is untenable in an age of broadcasting and recording. The argument the other way is simpler but not negligible: the common law of defamation came to India with its incidents attached, and a court cannot pick and choose among them. What a practitioner should take from this is not a conclusion but a drafting habit. Where the defamation was oral, plead the special damage if there is any, plead the class if it fits, and plead the Indian point as a third string; the cost of pleading all three is nothing, and the cost of assuming the favourable answer is the claim.

7. The Position Stated Shortly

1. Libel is defamation in a permanent form; slander is defamation in a transient one.

2. Libel is actionable per se; slander at English common law requires proof of special damage except in four classes of case.

3. The four classes are imputations of a criminal offence punishable with imprisonment, of a contagious or infectious disease, of unchastity to a woman, and touching the plaintiff in his office, profession, calling, trade or business.

4. Special damage means actual pecuniary loss, and loss of friendship, society or mere reputation will not do.

5. Monson v. Tussauds holds that a libel need not be in words, and Youssoupoff v. MGM that a talking film is libel because the photographic part is permanent.

6. Broadcasting and internet publication are treated as libel.

7. Section 356 of the Bharatiya Nyaya Sanhita, 2023 draws no distinction, covering words spoken or intended to be read, signs and visible representations alike.

8. On the civil side the Indian High Courts have differed on whether the English distinction applies, and the Supreme Court has not settled it.

9. Hirabai Jehangir Mistry v. Dinshaw Edulji Karkaria is the Bombay decision usually cited for the view that it does not apply.

10. The distinction is criticised as resting on a jurisdictional accident, and the safe course is to plead special damage, the applicable class, and the Indian point in the alternative.