Law Of Torts Final Draft - Menaka.docx

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY LUCKNOW

Academic Session: 2016-17 LAW OF TORTS Defamation

UNDER THE GUIDANCE OF:

SUBMITTED BY:

Ms. ANKITA YADAV

MENAKA SINGH

ASSISTANT PROFESSOR-(LAW)

ROLL NO: 101

DR. RAM MANOHAR LOHIYA

SECTION: ‘B’

NATIONAL LAW UNIVERSITY

B.A. LLB (Hons.), SEMESTER-II

SIGNATURE OF PROFESSOR

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Table of Contents Introduction ..................................................................................................................................... 3 Defamation as a tort ........................................................................................................................ 5 Elements of a Defamation Lawsuit ............................................................................................. 6 Types of Defamation....................................................................................................................... 9 Distinction between Torts ........................................................................................................... 9 Defamation Must Be Objectively False ...................................................................................... 9 Defamation Must Be Published ................................................................................................ 10 Defamation Must Cause Financial Injury ................................................................................. 10 Libel .............................................................................................................................................. 12 The Law on Libel ...................................................................................................................... 13 Slander .......................................................................................................................................... 14 Slander as per Indian Law......................................................................................................... 15 Innuendo ....................................................................................................................................... 16 How Do You Prove a Defamation of Character Claim?............................................................... 17 Steps in a Defamation Lawsuit ................................................................................................. 17 Repetition of Libel and Slander .................................................................................................... 18 General Defences for Defamation ................................................................................................ 19 Privileges and Defenses in Defamation Cases .......................................................................... 19 Truth .......................................................................................................................................... 19 Statement of Opinion ................................................................................................................ 19 Absolute Privilege ..................................................................................................................... 20 Qualified Privilege .................................................................................................................... 21 Retraction of The Allegedly Defamatory Statement ................................................................ 21 Conclusion .................................................................................................................................... 22 Bibliography ................................................................................................................................. 23 Primary Sources:-...................................................................................................................... 23 Secondary Sources:-.................................................................................................................. 23

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Introduction

Every human being has a right to have his reputation preserved. This right of reputation is acknowledged as an inherent personal right of every person. It is a jus in rem, a right good against the entire world. A man’s reputation is his property, more valuable than other property.1 If we reflect on the degree of suffering occasioned by loss of character, and compare it with that occasioned by loss of property, the amount of the former far exceeds that of the latter.2 But the law of defamation like many other branches of the law of torts provides for balancing of interests. The competing interest which has to be balanced against the interest which a person has in his reputation is the interest which every person has in freedom of speech.3 "Defamation" is a catch-all term for any statement that hurts someone's reputation. Written defamation is called "libel," and spoken defamation is called "slander." Defamation is not a crime, but it is a "tort" (a civil wrong, rather than a criminal wrong). A person who has been defamed can sue the person who did the defaming. Defamation law tries to balance competing interests: On the one hand, people should not ruin others' lives by telling lies about them; but on the other hand, people should be able to speak freely without fear of litigation over every insult, disagreement, or mistake. Political and social disagreement is important in a free society, and we obviously don't all share the same opinions or beliefs. For instance, political opponents often reach opposite conclusions from the same facts, and editorial cartoonists often exaggerate facts to make their point. There is always a delicate balance between one person's right to freedom of speech and another's right to protect their good name. It is often difficult to know which personal remarks are proper and which run afoul of defamation law. The term "defamation" is an all-encompassing term that covers any statement that hurts someone's reputation. If the statement is made in writing and published, the defamation is called "libel." If the hurtful statement is spoken, the statement is "slander." The government can't imprison someone for making a defamatory statement since it is not a crime. Instead, defamation is considered to be a civil wrong, or a tort. A person that has suffered a defamatory statement may sue the person that made the statement under defamation law. Defamation law, for as long as it has been in existence in the United States, has had to walk a fine line between the right to freedom of speech and the right of a person to avoid defamation. On one hand, people should be free to talk about their experiences in a truthful manner without fear of a lawsuit if they say something mean, but true, about someone else. On the other hand, people have a right to not

1

Dixon v. Holden, (1869) LR 7 Eq 488. De Crespigny v. Weslleley, (1829) 5 Bing 392. 3 SEERVAI, Constitutional law of India, 3rd edition, Vol. 1, p. 495 2

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have false statements made that will damage their reputation. Discourse is essential to a free society, and the more open and honest the discourse, the better for society. The wrong of defamation may be committed either by way of writing, or its equivalent, or by way of speech. The term ‘libel’ is used for the former kind of utterances, ‘slander’ for the latter. Libel is a written, and slander is a spoken, defamation. A learned judge of MP High Court holds that there may be a hybrid type of defamation not falling within the recognized categories of libel and slander. In that case it was held that the bridegroom and his father in refusing to take the bride to their home after marriage in full gaze of the guests committed the tort of defamation and damages could be awarded for loss of reputation.4 A defamatory statement is a statement calculated to expose a person to hatred, contempt or ridicule, or to injure him in his trade, business, profession, calling or office, or to cause him to be shunned or avoided in society. A libel is a publication of a false and defamatory statement tending to injure the reputation of another person without lawful justification or excuse. The statement must be expressed in some permanent form, e.g. writing, printing, pictures, statue, etc. A slander is a false and defamatory statement by spoken words or gestures tending to injure the reputation of another. An innuendo is a hint, insinuation or intimation about a person or thing, especially of a denigrating or a derogatory nature. It can also be a remark or question, typically disparaging (also called insinuation), that works obliquely by allusion. In the latter sense the intention is often to insult or accuse someone in such a way that one's words, taken literally, are innocent.

4

Noor Mohd. V. Mohd. Jiauddin, AIR 1992 MP 244 p. 249 (para 15).

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Defamation as a tort

Defamation Law falls under Tort Law. It refers to false statements about a person, communicated as fact to one or more other persons by an individual or entity (such as a person, newspaper, magazine, or political organization), which causes damage and does harm to the target’s reputation and/or standing in the community. Defamation is addressed primarily by state legislation. However, Constitutional Law may also apply, as the right of freedom of speech also extends to certain defamation claims. Defamation is categorized as either Slander or Libel. The general harm caused by defamation is identified as being ridiculed, shamed, hated, scorned, belittled or held in contempt by others, and lowers him/her in esteem of a reasonably prudent person, due to the communication of the false statement. This tort can result in a lawsuit for damages. Many states have statutes requiring that the allegedly damaged party must first demand a printed retraction of the defamatory statement, before they may proceed to court. If the plaintiff proceeds with a lawsuit without first seeking the retraction or if he/she receives a retraction but proceeds anyway, most states will limit the damages they may pursue to the actual or special damages they experienced, such as loss of employment or wages. From early times, people have comprehended defamatory and injurious statements made in a public manner (convicium adversus bonos mores). The Praetorian Edict, codified circa 130 A.D., declared that an action could be brought up for shouting at someone contrary to good morals: "qui, adversus bonos mores convicium cui fecisse cuiusve opera factum esse dicitur, quo adversus bonos mores convicium fieret, in eum iudicium dabo." . In this case the essence of the offense lay in the unwarrantable public proclamation. According to Ulpian, not all shouting was actionable. Drawing on the argument of Labeo, he asserted that the offense consisted in shouting contrary to the morals of the city ("adversus bonos mores huius civitatis") something apt to bring in disrepute or contempt ("quae... ad infamiam vel invidiam alicuius spectaret") the person exposed thereto. Any act apt to bring another person into disrepute gave rise to an actio injurarum. In such a case the truth of the statements was no justification for the public and insulting manner in which they had been made. But even in public matters, the accused had the opportunity to justify his actions by openly stating what he considered necessary for public safety to be denounced by the libel, and proving his assertions to be true. The second head included defamatory statements made in private, and in this case the offense lay in the content of the imputation, not in the manner of its publication. The truth was therefore a sufficient defense, for no man had a right to demand legal protection for a false reputation. Roman law was aimed at giving sufficient scope for the discussion of a man's character, while it protected him from needless insult and pain. The remedy for verbal defamation was long 5|Page

confined to a civil action for a monetary penalty, which was estimated according to the significance of the case, and which, although vindictive in its character, doubtless included practically the element of compensation. But a new remedy was introduced with the extension of the criminal law, under which many kinds of defamation were punished with great severity. At the same time increased importance attached to the publication of defamatory books and writings, the libri or libelli famosi, from which we derive our modern use of the word libel; and under the later emperors the latter term came to be specially applied to anonymous accusations or pasquils, the dissemination of which was regarded as particularly dangerous, and visited with very severe punishment, whether the matter contained in them were true or false. In Anglo-Saxon England, slander was punished by cutting out the tongue.5

Elements of a Defamation Lawsuit Defamation law changes as you cross state borders, but there are normally some accepted standards that make laws similar no matter where you are. If you think that you have been the victim of some defamatory statement, whether slander or libel, then you will need to file a lawsuit in order to recover. Generally speaking, in order to win your lawsuit, you must show that: 1. Someone made a statement; 2. that statement was published; 3. the statement caused you injury; 4. the statement was false; and 5. the statement did not fall into a privileged category. To get a better grasp of what you will need to do to win your defamation lawsuit, let's look at each element more closely. The Statement -- A "statement" needs to be spoken, written, or otherwise expressed in some manner. Because the spoken word often fades more quickly from memory, slander is often considered less harmful than libel. Publication -- For a statement to be published, a third party must have seen, heard or read the defamatory statement. A third party is someone apart from the person making the statement and the subject of the statement. Unlike the traditional meaning of the word "published," a

5

Jay Paul Gates, Nicole Marafioti, Capital and Corporal Punishment in Anglo-Saxon England, pg. 150

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defamatory statement does not need to be printed in a book. Rather, if the statement is heard over the television or seen scrawled on someone's door, it is considered to be published. Injury -- To succeed in a defamation lawsuit, the statement must be shown to have caused injury to the subject of the statement. This means that the statement must have hurt the reputation of the subject of the statement. As an example, a statement has caused injury if the subject of the statement lost work as a result of the statement. Falsity -- Defamation law will only consider statements defamatory if they are, in fact, false. A true statement, no matter how harmful, is not considered defamation. In addition, because of their nature, statements of opinion are not considered false because they are subjective to the speaker. Unprivileged -- Lastly, in order for a statement to be defamatory, it must be unprivileged. Lawmakers have decided that you cannot sue for defamation in certain instances when a statement is considered privileged. For example, when a witness testifies at trial and makes a statement that is both false and injurious, the witness will be immune to a lawsuit for defamation because the act of testifying at trial is privileged. Whether a statement is privileged or unprivileged is a policy decision that rests on the shoulders of lawmakers. The lawmakers must weigh the need to avoid defamation against the importance that the person making the statement has the free ability to say what they want. Witnesses on the stand at trial are a prime example. When a witness is giving his testimony, we, as a society, want to ensure that the witness gives a full account of everything without holding back for fear of saying something defamatory. Likewise, lawmakers themselves are immune from defamation suits resulting from statements made in legislative chamber or in official materials. In the landmark 1964 case of New York Times v. Sullivan6, the U.S. Supreme Court held that certain defamatory statements were protected by the First Amendment. The case involved a newspaper article that said unflattering things about a public figure, a politician. The Court pointed to "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." The Court acknowledged that in public discussions -especially about public figures like politicians -- mistakes can be made. If those mistakes are "honestly made," the Court said, they should be protected from defamation actions. The court made a rule that public officials could sue for statements made about their public conduct only if the statements were made with "actual malice."

6

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

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"Actual malice" means that the person who made the statement knew it wasn't true, or didn't care whether it was true or not and was reckless with the truth -- for example, when someone has doubts about the truth of a statement but does not bother to check further before publishing it. Later cases have built upon the New York Times rule, so that now the law balances the rules of defamation law with the interests of the First Amendment. The result is that whether defamation is actionable depends on what was said, who it was about, and whether it was a subject of public interest and thus protected by the First Amendment. Private people who are defamed have more protection than public figures -- freedom of speech isn't as important when the statements don't involve an issue of public interest. A private person who is defamed can prevail without having to prove that the defamer acted with actual malice.

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Types of Defamation

Distinction between Torts If dived into types, the tort of Defamation can be divided into three basic types Libel, Slander and Innuendo. Innuendo being a newer type, defamation is broadly divided into two types. 1. A libel is defamation in some permanent form, e.g. a written or printed defamation. A slander is defamation in a transient form, e.g. spoken words and gestures. 2. At common law a libel is a criminal offence as well as a civil wrong, but a slander is a civil wrong only; though the words may happen to come within the criminal law as being blasphemous, seditious or obscene, or as being a solicitation to commit a crime or a being a contempt of court.7 Under the Indian Law, both libel and slander are criminal offences.8 There reasons are assigned for this difference:





In a libel the defamatory matter is in some permanent form – in writing or painting – e.g. a statue, effigy, caricature, signs or picture marks on a wall. A slander is in its nature transient, and is in the form of spoken words or significant gestures. A slander may be uttered in the heat of the moment, and under a sudden provocation; the reduction of the charge into writing and its subsequent publication in a permanent form show greater deliberation and raise a suggestion of malice.9 A libel conduces to a breach of the peace; a slander does not. This distinction which is recognized in the English law is severely criticized by the framers of the Indian Penal Code.10

Defamation Must Be Objectively False It is not against the law to say mean things about somebody if they are either true or if they are entirely subjective. For instance, if a restaurant critic says that the food "was the worst I've had in a long time," the statement, while mean, is vague and subjective enough 7

The Queen v. Holbrook, (1878) 4 QBD 42, 46. S.499, Penal Code. 9 Clement v. Chivis, (1829) 9 B & C 172. 10 RATANLAL AND DHIRAJLAL, Law of Crimes, 23 rd Edn., s. 499, Comment. 8

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to avoid a lawsuit. Similarly, environmental activists who make the public aware of corporate practices that harm the earth can't be sued for defamation as long as they report on the facts.

Defamation Must Be Published In order to prove injury, you have to prove that other people saw it, heard it, read it and had their minds changed because of the slanderous or libelous statements. Courts generally consider libel to be more serious than slander because writing lasts longer, though major television broadcasts often carry the same weight as major print or web publications because more people viewed them.

Defamation Must Cause Financial Injury In order to determine the damages from a slander or libel suit, there must be quantifiable damages. Defamation of character damages a person's or company's reputation, and it must be proven that the damage to reputation correlated with a loss of money, property, relationship or was subject to harassment that led to any of the above losses. Defamation Must Not Be Protected Speech Examples of speech that is privileged and protected specifically by the U.S. Constitution from defamation laws include witness testimony in court and lawmaker statements in legislative chambers or official materials. As long as the defamatory statements are published, false, and injurious and unprivileged, you may have a case to file a defamation lawsuit. Of course, it is always advised to consult with a lawyer before taking any steps forward in your legal action.

Defamation may be committed in two ways viz., (i) speech, or (ii) by writing and its equivalent modes. The English common law describes the former as ‘SLANDER’ and the latter as ‘LIBEL’. The former is a spoken defamation while the latter a written defamation which may assume various forms, like physical symbols, statues, effigies, picture, caricature, wax model, etc. To slander also various forms have been attributed. It may be committed by representations or in other manners which are treated as equivalent to speech, like shake of the head, nod, winking, hissing, and many others. Though under the common law of England distinction is made between the two in various aspects, but, in India no such distinction has been made. The libelous statement must be in a printed form, e.g. writing, printing, pictures, cartoons, statue, waxwork effigy etc. Lopes J., in Monson V. Tussauds,11 points out that libels need not always be 11

Monson v Tussauds, (1894) 1 QB 671

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in writing. It may be conveyed in some other permanent form as a statue, a caricature, an effigy, chalk mark on a wall, sign or pictures. In the same case, the defendants, who kept a wax works exhibition, had exhibited a wax model of the plaintiff with a gun, in a room adjoining the ‘Chamber of Horrors’ (a room in the basement, in which the wax models of notorious criminals were kept). The plaintiff has been tried for murder in Scotland and released on a verdict of ‘Not proven’ and a representation of the scene of the alleged murder was displayed in the chamber of horrors. The Court of Appeal held that the exhibition was libel. But, Slander is a false and defamatory statement by spoken words or gestures tending to injure the reputation of another. Apart from differences in form, the libel differs from slander in its procedure, remedy and seriousness. In common law, a libel is a criminal offence as well as a civil wrong. But slander is a civil wrong only; though the words may happen to come within the criminal law as being blasphemous, seditious, or obscene or as being a solicitation to commit a crime or being a contempt of court. Under Indian Penal Code both libel and slander are criminal offences.

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Libel Libel is a method of defamation expressed by print, writing, pictures, signs, effigies, or any communication embodied in physical form that is injurious to a person's reputation, exposes a person to public hatred, contempt or ridicule, or injures a person in his/her business or profession. Libel is a tort governed by State law. State courts generally follow the common law of libel, which allows recovery of damages without proof of actual harm. Under the traditional rules of libel, injury is presumed from the fact of publication. When one reads or listens to another individual's words, one typically listens with an open mind. In other words, there is generally no reason to be suspicious of the speaker's words. This situation is particularly applicable where journalists report on other people or entities. When a person, journalist or not, writes or speaks privately or publicly about another person or party, that person has to abide by the law of libel. Failure to do so will result in possible litigation arising from the false statement. Libel arises when one makes a false statement about another person or entity that causes harm to that person's or entity's reputation. In order to be treated as libel, there must be publication of the statement; in other words, the statement must be made to another person. Publication of the libelous statement can be made by a written format, such as a newspaper article or internet posting, or by an oral statement, such as in conversation or by radio or television. In addition, the statement can be made to one person or many people, such as in a speech. Furthermore, cartoons, signs, and artistic depictions can be treated as libel if they include false statements and are communicated to another person. The libelous statement must also be expressed as a factual statement. Thus, the statement is not just another person's opinion about a person or entity. For example, if one says 'The actress looked disheveled,' this would be an opinion and not a statement, and as such, does not constitute libel. On the other hand, if the statement was 'The actress was drunk and looked disheveled', this would constitute libel if the actress was not drunk. Consequently, if one is critiquing a person or entity, it does not constitute libel if the critique expresses an opinion. Moreover, libel differs from slander because slander refers solely to spoken words. However, even though radio or television broadcasts involve spoken words, the fact that the words are made via a transfixed method results in the radio and television broadcasts conveying libel.

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The Law on Libel Libel is an action based upon torts. Moreover, the specific laws applicable to a tort depend upon the state with jurisdiction over the case. Generally, in order to sue for libel, one must demonstrate that the libelous statement is not only false, but also caused, or could potentially cause, harm to one's reputation. The statement must also cause others to dislike, hate, or have contempt for the party against which the statement was made. Furthermore, the law requires proof that the libelous statement was actually published; that is, the false statement was communicated to another person. Finally, in order to succeed in a libel lawsuit, one must demonstrate that actual harm occurred to one's reputation or occupation as a result of the libelous statement. In order to sue for damages for a libel case, it is necessary to demonstrate that actual harm was made to the party against whom the statement was made. Additionally, where one can prove that a party either wrote or spoke the libelous statement with a malicious intent, one can obtain special damages, which are additional monies designed to punish the publisher of the statement. In addition, there are special laws in most jurisdictions regarding individuals in the public eye. These cases relate mostly to politicians and other governmental figures and indicate that a public figure is immune from libel suits. Therefore, if a public person attempts to file a successful libel case against a party for a false statement, it is necessary that the person demonstrate malicious intent.

In order to found an action for libel it must be proved that the statement complained of is:   

False In writing Defamatory Published

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Slander Slander defamation in transient form. At Common Law, a slander is a Civil Wrong only. At Common Law, a slander is actionable only when special damage can be proved to have been its natural consequences or when in conveys certain imputation. A slander does not conduce to a breach of peace. However, Indian legal system does not recognize this distinction. Slander may be uttering or words in the heat of moments and under a sudden provocation. In every case of publication of slander, the publisher acts consciously and voluntarily, and must necessarily guilty. The common law origins of defamation lie in the torts of "slander" (harmful statement in a transient form, especially speech), each of which gives a common law right of action. Defamation is the general term used internationally, and is used in this article where it is not necessary to distinguish between "slander" and "libel". Libel and slander both require publication. The fundamental distinction between libel and slander lies solely in the form in which the defamatory matter is published. If the offending material is published in some fleeting form, as by spoken words or sounds, sign language, gestures or the like, then it is slander. As in the case of a libel, it must be proved that the words complained of are:   

False Defamatory Published by the defendant Some special damage has resulted from their use.

Where a document containing defamatory statement is published by being read out to a third person, or where the publication of the defamatory statement is to a clerk to whom it is dedicated, the communication in either case amounts to slander and not to libel.12 Where words are not per se defamatory in their ordinary sense, or have no meaning at all in ordinary acceptation, an innuendo must be pleaded in order to admit evidence that in a peculiar sense they are defamatory.13

12 13

Osborn v. Thomas Boulter & Son, (1930) 2 KB 226, SCRUTTON and SLESSER, L.JJ. (Contra GREER, L.J.) Rawlings v. Norbury, (1858) 1F & F341.

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Slander as per Indian Law The common law rule that slander is not actionable per se has not been followed in India except in a few decisions. The reason given is that the rule is “not founded on any obvious reason or principle” and that it is not consonant with “justice, equity and good conscience”. Both libel and slander are criminal offences under sec.499 of the Indian Penal Code and both are actionable in civil court without proof of special damage.14 The Indian cases fall under the following categories, namely: 

Imputation of crime Vulgar abuse

Slander is defamation in a temporary or transient form. Publication is made through spoken words or gestures. This type of defamation is not actionable per se. it means that the plaintiff must prove actual or special damage in order to succeed in his action. Slander is actionable only on proof of actual damage, except in the following circumstances. Firstly, the imputation of criminal offence where the offence must be punishable with imprisonment but a specific offence need not be mention. For instance, the phrase of “I know enough to put you into goal”, is held as slander. Secondly, the imputation of a disease where the allegation must be that the claimant is currently suffering from a contagious or infectious disease. For instances, the venereal disease, leprosy are within this rule. Thirdly, the imputation of un-chastity or adultery to any woman or girl, for example the Slander of Woman Act 1891 section 1 states that “words spoken and published …. Which imputed unchastity or adultery to any women or girl shall not require special damage to render them actionable. Lastly, the imputation of unfitness or incompetence. This exception relates to allegations of unfitness, incompetence or dishonesty in any profession, trade, calling or business held or carried on by the claimant. In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to alleged or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling or trade or business. 14

Mst. Ramdhara v. Mst. Phulwatibai, 1969 MPLJ 483

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Innuendo An innuendo is a hint, insinuation or intimation about a person or thing, especially of a denigrating or a derogatory nature. It can also be a remark or question, typically disparaging (also called insinuation), that works obliquely by allusion. In the latter sense the intention is often to insult or accuse someone in such a way that one's words, taken literally, are innocent. In Latin innuere, "to nod toward." In law it means "an indirect hint." "Innuendo" is used in lawsuits for defamation (libel or slander), usually to show that the party suing was the person about whom the nasty statements were made or why the comments were defamatory. Innuendo means indirect remark. Innuendo usually refers to a situation where a person expresses a factual situation and a wrong interpretation is derived out if it. For example, in defamation law, innuendo is the plaintiff’s explanation of a statements defamatory meaning when that statement is not apparent from the statements face. This Latin word (commonly translated "meaning") was the technical beginning of that clause in a declaration or indictment for slander or libel in which the meaning of the alleged libelous words was explained, or the application of the language charged to the plaintiff was pointed out. Hence it gave its name to the whole clause; and this usage is still retained, although an equivalent English word is now substituted. Thus, it may be charged that the defendant said "he (meaning the said plaintiff) is a perjurer." The word is also used, (though more rarely,) in other species of pleadings, to introduce an explanation of a preceding word, charge, or averment. It is said to mean no more than the words

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How Do You Prove a Defamation of Character Claim? There are two things that you have to prove to be true in order to win a case of defamation of character in the court of law. First of all, you have to prove without a doubt that what was said or written about you is not true. Once you have proved that the statement is in fact false, you have to prove that the other person said the false statement with the intent of causing you some form of harm. Once you have proven to the court of law that the statement made against you was in fact false the last step is proving that the statement caused some form of damage to you or your reputation. Most lawyers are going to tell you that despite being the last step in the process proving that a statement has caused you harm is the most difficult part of the process. First of all, there is a clear different between a statement having the potential to cause you problems and the statement actually causing you problems. It is only considered defamation of character if the statement has actually caused you harm, not if it has the potential to cause you harm. In order to win the claim, you are going to need to prove that the false statement has always ruined your reputation. If you are a business owner, for example, you would need to prove how the statement has had a devastating impact on your business. The unfortunate truth is that this does mean you will have to wait for the false statement to cause problems in order for the court to take action against them.

Steps in a Defamation Lawsuit 1. 2. 3. 4.

File the complaint. Service and Discovery. Depositions. Trial or Settlements.

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Repetition of Libel and Slander It is no defense to an action for libel or slander that the defendant published it by way of repetition or hearsay. “Tale-bearers are as bad as tale-makers.” Every repetition of defamatory words is a new publication and a distinct cause of action.15 Where slanderous words are not actionable per se but damage arises from the repetition, the originator will not be liable except:  

Where the originator authorized or intended the repetition. Where the repetition was the natural and probable consequences of his act. Where there was a moral obligation on the person in whose presence the slander was uttered to repeat it.

Where the defendant imputed adultery to the plaintiff’s wife in his absence, and she voluntarily repeated the slander to her husband whereby he refused to cohabit with her, it was held that no action was maintainable against the defendant.

15

Vallabha v. Madusudanan, (1889) ILR 12 Mad 495

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General Defences for Defamation

Privileges and Defenses in Defamation Cases Simply because someone defames another person does not mean that a lawsuit will be successful. There are a number of defenses to defamation claims. If the defamer can successfully claim one of these defenses, he/she might be able to win the case despite the defamation. The major defenses to defamation are: 

truth



the allegedly defamatory statement was merely a statement of opinion

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consent to the publication of the allegedly defamatory statement

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absolute privilege

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qualified privilege

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retraction of the allegedly defamatory statement.

Let’s look at some of these defenses in a little more detail.

Truth Truth is an absolute defense to defamation. Remember that defamation is a false statement of fact. So, if the statement was accurate, then by definition it wasn’t defamatory.

Statement of Opinion Once again, defamation is a false statement of fact. For this reason, a statement of opinion cannot be defamatory. However, simply because you might phrase a statement as a statement of opinion does not automatically mean that it will be interpreted as a statement of opinion for purposes of defamation law.

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Let’s look at an example to see why this is so. Let’s say that you told someone, “I think that Harold beat up his girlfriend last Saturday,” and, as a result, Harold lost his job and most of his friends. You might say that you were only giving your opinion; you didn’t say, “Harold beat up his girlfriend.” You qualified it by saying “I think.” But simply adding “I think” or “I believe” to an otherwise straightforward statement of fact does not necessarily make something a statement of opinion. In a defamation lawsuit, a jury will be instructed to look at all of the circumstances surrounding the uttering of the defamatory statement, including how well you knew the person defamed, how well you knew the person you said the allegedly defamatory statement to, how precise the allegedly defamatory statement was, and why you made that statement. If, putting it all together, a jury believes that you were really making a specific statement of fact and hiding it as a supposed statement of opinion, you will be found liable for defamation.

Absolute Privilege Certain types of communications are absolutely privileged. Absolute privilege means that the person making the statement has the absolute right to make that statement at that time, even if it is defamatory. In other words, the person making the defamatory statement is immune from a defamation lawsuit. In general, absolute privilege exempts persons from liability for potentially defamatory statements made: 

during judicial proceedings

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by high government officials

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by legislators during legislative debates

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during political broadcasts or speeches, and

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in between spouses.

So, if someone makes an otherwise defamatory statement during his/her testimony at a trial, that statement is absolutely privileged, and that person cannot be sued for defamation. But if that person makes a different allegedly defamatory statement in the hallway of the courthouse during a break in the trial, he/she could be sued for defamation because the statement was made during a judicial proceeding.

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Qualified Privilege Other types of communications are subject to what is called a qualified privilege, meaning that the person making the allegedly defamatory statement may have had some right to make that statement. If a qualified privilege applies to a statement, it means that the person suing for defamation must prove that the person who made the defamatory statement acted intentionally, recklessly, or with malice, hatred, spite, ill will or resentment, depending on your state’s law. Just some of the statements for which a qualified privilege applies are 

statements made in governmental reports of official proceedings

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statements made by lower government officials such members of town or local boards

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citizen testimony during legislative proceedings

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statements made in self-defense or to warn others about a harm or danger

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certain types of statements made by a former employer to a potential employer regarding the employee, and

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Published book or film reviews that constitute fair criticism.

The employer review qualified privilege is particularly noteworthy. In order to avoid defamation claims, some employers these days refuse to confirm any details about former employees other than their dates of employment. But certain types of negative statements might fit in under the qualified privilege category, If, for example, the employer fired the employee for theft, a statement about that to a potential employer might qualify as a statement made to warn others about a harm or danger (i.e., the danger of hiring someone who might steal from you).

Retraction of The Allegedly Defamatory Statement If the defamer retracts the allegedly defamatory statement, that often will serve as a defense to any defamation lawsuit, especially if the defamer also apologizes.

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Conclusion Defamation is tort resulting from an injury to ones reputation. It is the act of harming the reputation of another by making a false statement to third person. Defamation is an invasion of the interest in reputation. The law of defamation is supposed to protect people’s reputation from unfair attack. In practice its main effect is to hinder free speech and protect powerful people from scrutiny. Defamation law allows people to sue those who say or publish false and malicious comments.

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Bibliography Primary Sources:

Ratanlal & Dhirajlal, The Law of Torts, 23rd edition reprint, 2009

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Julie A. Scott-Bayfield, Defamation: law and practice, 1996

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Paul Mitchell, The Making of the Modern Law of Defamation, 2005

Secondary Sources:

Www.nolo.com

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www.defamationremovallaw.com

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www.thelawdictionary.org

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en.wikipedia.org

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www.law.cornell.edu

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