Defences to Defamation
(1) Justification or Truth
In a civil action for defamation truth of the defamatory matter is complete defence (under criminal law, besides being true the imputation must be shown to have been made for public good). The reason for the defence is that “the law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess.” The defence is available even though the publication was made maliciously.
If the statement is false, it is no justification that the defendant honestly and on reasonable grounds believed it to be true. In Radheyshyam Tiwari v Eknath (AIR 1985 Bom. 285), the defendant, who was editor, printer and publisher of a newspaper published a series of articles against the plaintiff, a Block Development Officer, alleging that the plaintiff had issued false certificates, accepted bribe and adopted illegal means in various matters. In an action for defamation, the defendant could not prove that the facts published by him were true and therefore, he was held liable.
(2) Fair Comment
It is generally a defence available to authors, editors, critics, etc. It is critical appreciation of existing facts (opinion) and not invention of new facts. (mere assertion of facts) Further, the comment must be `fair’ i.e. without malice. Finally, this comment must be in public interest. Administration of Government departments, public companies, public institutions and local authorities, public meetings, pictures, theatres, public entertainment, text books, novels, etc. are considered to be matters of public interest.
‘Comment’ means an expression of opinion on certain facts rather than making a statement of fact. A fair comment is a defence by itself whereas if it is a statement of fact that can be excused only if justification or privilege is proved regarding that. For example, A says of a book published by Z — “Z’s book is foolish: Z must be a weak man.” It is a comment based on Z’s book and A will be protected if he has said that in good faith. But if A says – “I am not surprised that Z’s book is foolish, for he is a weak man.” It is not a comment but a statement of fact, and cannot be called a fair comment.
In McQuire v Western Morning News Co. (1903) 2 K.B. 100, the comment in question was “A three act musical absurdity, written and composed by T.C. McQuire is composed of nothing but nonsense of a not very humorous character, whilst the music is far from attractive.” Held that the words may be fairly called criticism. However, criticism could not be used as a cloak for mere invective (sarcasm or satire); an art critic’s opinion of a prominent dancer’s performances that the world would be happier place if her feet had ambitions other than dancing amounts to sarcasm.
The comment could not be fair when it is based upon untrue facts. In Tushar Kanti Ghash v Bina Bhowmic (1953) 57 C.W.N. 378, the Amrit Bazar Patrika published a news item which contained statements like `day light robbery’ which were factually incorrect. As they were untrue statement of fact, the defence of fair comment was defeated.
There are certain occasions when the law recognizes that the right of free speech outweighs the plaintiff’s right to reputation: the law treats such occasions to be “privileged” and a defamatory statement made on such occasion is not actionable. Privilege may be either ‘Absolute’ or ‘Qualified’.
Absolute privilege — It is an absolute defence as under it no action lies for the defamatory statement even though the statement is false or has been made maliciously. It is recognized in ‘Parliamentary proceedings’, ‘Judicial proceedings’, and ‘State communications’.
In Judicial proceedings, there can be no action against judges, counsels, witnesses, or parties for words (written or spoken) in course of any proceedings before any court, even though the words were written or spoken maliciously, without justification or excuse. However, a remark by a witness which is wholly irrelevant to the matter of enquiry is not privileged.
Qualified privilege — It is different from the defence of absolute privilege in respects. First, in this case it is necessary that the statement must’ve been made without malice. Second, there must be an occasion for making the statement. Generally such a privilege is available either when the statement is made in discharge of a duty or protection of an interest or the publication is in the form of report of parliamentary, judicial or other public proceedings.
A privileged occasion (in reference to qualified privilege) is an occasion where the person who makes a communication has an interest or a duty (legal, social or moral) and the person to whom it is made has a corresponding interest or a duty to receive it. This reciprocity is essential [Adam v Ward (1917) At. 309]. The following illustrations will clear the point:
(i) A, a shopkeeper, says to B, who manages his business — “Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty.” A is protected if he has made this imputation on Z in good faith for the protection of his own interest.
(ii) A former employer has a moral duty to state a servant’s character to a person who is going to employ the servant. But if a former employer, without any enquiry, publishes the character of his servant with a motive to harm the servant, the defence of qualified privilege cannot be taken.
(iii) In the case of publication of defamatory matter in a newspaper, if duty to the public exists (RK Karanjiav KMD. Thackrsey AIR 1970 Born 424).
(iv) Such communication may be made in cases of confidential relationships like those of husband and wife, father and his son and daughter, guardian and ward, master and servant or agent, solicitor and his client, partner or even close friends. Thus, a father may acquaint his daughter about the character of a man whom she is going to marry.
The presence of ‘malice’ destroys the defence of qualified privilege. The plaintiff must prove actual or express ‘malice’ or ‘malice in fact’ (i.e. actual wrong state of mind) as distinguished from ‘implied malice’ which the law presumes from the mere publication of defamatory matter. In Horrocks v Lawe (1964) 1 All ER 662, held that howsoever prejudiced the defendant may have been or howsoever irrational in leaping to conclusions, unfavourable to plaintiff, but if he believed in the truth of what he had said on privileged occasion that entitled him to succeed in his defence of privilege.
Burden of Proof
The burden of proof is on the plaintiff. Thus, for pleading an innuendo, the plaintiff must make out the special circumstances which made the words actionable and he must set forth in his pleading the defamatory sense, he attributes to them.When the defence to defamation is taken, the burden of proof is on the defendant. In a defence of fair comment, the defendant has to show that his comments contain no misstatements of fact. In a defence of privilege (qualified), the defendant has to prove that the occasion is privileged.
It is important to note that in a case of libel it is not necessary to prove the actual loss of reputation; it is sufficient to establish that the defamatory statements could damage one’s reputation. Further, in all cases of joint publication each defendant is liable for all the ensuing damage (viz for a libel in a newspaper, the editor, the printer and the publisher are liable to be sued either separately or together).
Who can sue — The publication of defamation can seldom give a right of action to any one but the person defamed. The fact that a defamatory statement has caused damage to other persons does not entitle them to sue. Thus a brother cannot sue for slander of his sister, nor a father for defaming his daughter, nor the heir and nearest relation of a deceased person for defamatory words spoken of the deceased. The Calcutta High Court permits the husband to sue where unchastity is imputed to his wife, but the Madras High Court not.