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Defamation as a tort

Definition & Meaning:

Defamation is the publication of a statement, without any justification, that harms the reputation of an individual person, business, product, group, government, religion, or nation. A defamatory statement is something, which harms the reputation of the person who is the plaintiff by affecting his reputation adversely. It is the publication of a statement, which lowers the reputation of a person in front of other members of the society. An allegation, which exposes one to disgrace or contempt is defamatory.

A defamatory statement could be made in different ways. It may be oral, in writing, printed or by the exhibition of a picture, statue or effigy or by some product. It need not be an express statement; it can be implied from the conduct of a person as well.

Essential Elements:

1.) The statement should be defamatory: The very essence of defamation itself is injury to a person’s character or reputation. The statement should injure the reputation of a person as a direct result of it. The defamatory statement could be made in different ways such as orally or in writing or printed or by conduct. However, the standard to be applied is that of a right mind its citizen a man of fair average intelligence and not that of a special class of person whose values are not shared or approved by the fair-minded members of society.

2.) The statement must refer to the plaintiff: 
In action for defamation the plaintiff has to prove that the statement of which he complains actually referred to him. The defamatory statement to constitute defamation must be directed against the plaintiff and must be injurious to the plaintiff’s reputation. 


3.) The statement must be published: Publication means making the defamatory matter known to some person other than the person defamed and unless that is done no civil action for defamation lies. Example: If, during the course of an argument, A calls B’s integrity into question, which a third party C is witnessing, B could initiate proceedings against A, provided there is no truth in A’s statements. However, in case there was no third party present when the allegation was made, there can be no defamation, as the defamatory statement was not published. The publication need not be only in written form. TV, radio or Internet broadcasts, speeches, newspaper articles, magazine stories all are included within the ambit of defamation-propagating media. In order to determine if a statement is defamatory, it has to be assessed according to the thought process of like-minded members of the society.4.) Innuendo: At times a statement may not be defamatory on first appearance, but because of some latent or secondary meaning, it may be considered as defamatory. When the natural and ordinary meaning is not defamatory but the plaintiff wants to bring an action for defamation, he must prove the latent or secondary meaning i.s. the innuendo, which makes the statement defamatory Intention to defame is not necessary, however. If someone has done injury to the reputation of a person the intention of the defendant is not to be taken into consideration while making judgment for the damages.

Defenses: The defenses available to an action against defamation are:

1. Justification or Truth: If the alleged defamatory statement is a “truth” then according to law of Tort it is a complete defense. However it is important to remember that only complete truth is an absolute defense to defamation and one must have the means to prove that they have printed the truth for example: A newspaper publishes that Madan was a corrupt politician who has amassed 100 Crorerupees by siphoning money meant to be given to the farmers. Madan, who is indeed corrupt, sues the newspaper. The newspaper can prove that Madan is corrupt and that he has amassed his wealth due to such corruption, however, they fail to prove that the money came from the aid meant for farmer. The suit for defamation will partially succeed.

2. Fair Comment: There can be no liability if the statement made is a fair comment on matters of public interest which is a defense to an action for defamation. It must be a comment, i.e. an expression of opinion rather than an assertion of fact. A comment is an expression of opinion on certain facts. It is different from making a statement of fact. A fair comment is a defense in itself whereas if it is a statement of fact, it can be excused only if there is justification or proof. Example: P says of a movie made by Q: the movie is terrible’ or the movie is so far removed from reality that I wondered if I was in out of space. These comments made on a movie will be protected if made in good faith only as an expression of personal opinion.

3. Privilege: In some special cases the law permits to make such statement, which might become defamatory in normal circumstances. These special cases are called as privilege. Example: Many have seen this in parliament where a Member of Parliament makes many false allegations. Here in this special case they have the parliamentary privilege that nothing spoken on the floor of any house, while such house is in session, can be used as evidence in a court of law.

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