DEFENCES OF PRIVILEGE WITH REFERENCE TO THE TORT OF

DEFAMATION WITH CASE LAWS

LAW OF TORTS

TABLE OF CONTENTS

1. INTRODUCTION
2. ESSENTIAL INGREDIENTS OF DEFAMATION
3. SPECIFIC DEFENCE FOR TORT OF DEFAMATION
4. PRIVILEGES
4.1 ABSOLUTE PRIVILEGE
4.2 QUALIFIED PRIVILEGE
5. DISTINGUISH BETWEEN ABSOLUTE AND QUALIFUED PRIVILEGE
6. CONCLUSION
BIBLIOGRAPHY

INTRODUCTION
The right of each man during his lifetime to the unimpaired possession of his reputation and
name is recognised by the law. Reputation depends upon opinion in the main on the
communication of thought and information from one individual to another. A persons own
opinion about himself is not his reputation. It means rather than opinion of others about him.
The good name one bears or the esteem in which one is held in society is ones reputation.
The law of defamation is based upon the fundamental principle that the reputation of a
member of society, the esteem in which he is held by it, the and credit and trust it reposes on
his intelligence, honour and integrity, all these constitute a valuable assent for him and it
deserves protection at the hands of law. Defamation is injury to the reputation of a person. If
a person injures the reputation of another, he does so at his own risk, as in the case of an
interference with the property, A mans reputation in his property, and if possible, more
valuable than other property.
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. Defamation is both a civil and criminal
wrong. Mischief to a private individual is the basis of the law of civil of defamation while
mischief to the society is the basis of criminal defamation.
Mainly because of historical reason, English law divides action for defamation into
1.1 Slander
Slander is the publication of a defamatory statement in a transient form.
Examples of it may be spoken by words or gestures.

1.2 Libel
Libel is representation made in some permanent form, e.g., writing, printing, picture, effigy (a
sculpture or model of a person) or statute.

2. ESSENTIAL INGREDIENTS OF DEFAMATION

The essential ingredients of the tort of defamation which are applicable both to libel and
slander are the following:
2.1 The statement must be defamatory: innuendo

Defamatory statement is one which tends to injure the reputation of the plaintiff. Defamatory
statement are three types. They are

Words prima facie defamatory.

Words capable of an innocent or defamatory meaning
Words prima facie non defamatory

Whether a statement is defamatory or not depends upon how the right thinking members of
the society are likely to take it. The standard to be applied is that of a right minded, a man of
fair average intelligence, and not that of a special class of persons whose values are that of a
special class of persons whose values are not shared or approved by the fair minded members
of the society generally.
Deepak Kumar Biswas v. national insurance co. Ltd.,
Ram jethmalani v. subramaniam swamy
2.2 The said statement must be refer to the plaintiff
To succeed in an action of defamation the plaintiff must not only prove that the words were
defamatory, but also that they refer to him. He must identify himself as the person defamed.
It is not necessary that the words should refer to the plaintiff by name. If from the
circumstances of the publication, reasonable people would think that the passages refers to
the plaintiff then the defendant will be liable. It is sufficient if the plaintiff be referred to by
his initial letters, or by the first and last letters of his name, or even by asterisks or blanks or if

he referred to under the guise of an allegorical, historical, fictitious or fanciful name, or by

means of description of his physical peculiarities or by the places which he has visited on
his travels.
Anson v. Stuart
2.3 The statement must be published
Publication means making the defamatory matter known to some person other than the
person defamed, and useless that is done, no civil action for defamation lies. Communication
to the plaintiff himself is not enough because defamation is injury to the reputation and
reputation consist in the estimation in which others hold him and not a mans own opinion of
himself. Dictating a letter to ones typist is enough publication. Sending the defamatory letter
to the plaintiff in a language supposed to be known to the plaintiff no defamation.
Mahendra Ram v. Harnandan Prasad, A.I.R. 1998 Pat. 445
If a third person wrongfully reads a letter meant for the plaintiff, the defendant is not liable.
Arumuga Mudalir v. Annamalai mudaliar, A.I.R. (1966) 2 M.L.J. 225
If a defamatory letter sent to the plaintiff is likely to be read by somebody else, there is a
publication. When the defamatory matter is contained in a postcard or a telegram, the
defendant is liable even without a proof that somebody else read it, because a telegram is read
by post office officials who transmit and receive it, and there is a high probability of the
postcard being read by someone.
3. SPECIFIC DEFENCES FOR TORT OF DEFAMATION
The main defences to defamation are:

Justification or truth,
Fair comment, and
Privilege which may be either absolute or qualified.

JUSTIFICATION OR TRUTH
Truth is an absolute justification to a civil action for defamation. The defendant will succeed
if he shows that what he has spoken of the plaintiff is substantial true. The law has recognised
this defence for the reason that since defamation is essentially van injury to a mans

reputation, when it is what is spoken of a person is true it means only that his reputation has
been brought down to its proper level and there is no reason for him to complain.
If the is available even though the publication made maliciously. If the statement is
substantially true but incorrect but incorrect in respect of certain particulars, the defence will
available.
Alexander v. North Eastern Ry., (1885) 6 B & S. 340.
FAIR COMMENT
Making fair comment on the matters of public interest is a defence to an action for
defamation. For this defence is available, the following essentials are required:
It must be a comment, i.e., an expression of opinion rather than assertion of facts;
The comment must be fair
The matter commented upon must be of public interest
COMMENT
Comment means an expression of opinion on certain facts. It should be distinguished from
making of facts.
THE COMMENT MUST BE FAIR:
The comment cannot be true, fair when it is based upon untrue facts. A comment based upon
invented and untrue facts is not fair. Thus, in the review of a play when immorality is
imputed by suggesting that it contained an incident of adultery, when in fact there is no such
incident in the play, the plea of fair comment cannot be taken .If the facts substantial true and
justify the comment of the which are truly stated, the defence of fair comment can be taken
even though some the facts stated may not be proved.
Gregory v. Duke of Brunswick (1843) 6 M. & G. 205. The plaintiff, an actor, appeared on the
stage of a theatre but the defendant and other persons actuated by malice hissed and hooted at
the plaintiff and there by caused him to lose him engagement. Hissing and hooting after
conspiracy was held to be actionable and that was not a fair comment on the plaintiffs
performance.
THE MATTER COMMENTED UPON MUST BE OF PUBLIC INTEREST

Administration of Government departments, public companies, courts, conduct of public men

like ministers or officers of the state, public institutions and local authorities, public meetings,
pictures, theatres, public entertainment, text books, novels etc. are considered to be matters of
public interest
4. PRIVILEGE
Law gives absolute protection to statements made by persons on certain occasions: even if
t6hose statements happen to be false and malicious. Such statements are said to be absolutely
privileged. In such cases it is in the interest of the state and of the public in general that
persons have full of speech. The interests of the public outweigh that of the injured private
individuals. For example, a member of parliament is allowed full freedom of speech on the
floor of the house. He may make speech there, condemning in most outrageous language
possible the character and conduct of an officer against whom he may have some private
grudge or ill feeling. The allegations made may be unfounded and the speech highly
exaggerated. Nevertheless the injured officer will have no remedy before a court of law for
the defamatory. Speech thus made by the member.
The reason for this immunity of the member is that if such actions were not allowed,
members of parliament will not have the courage and boldness to speak out what they feel
about officers and public men which is highly necessary to bring to light injustice and
corruption in the land and thereby suppress injustice and corruption and encourage integrity
and efficiency in public life and services. But this absolute immunity is granted only in a
strictly limited number of cases for the strongest reasons of public policy.
There are certain occasions when the law recognizes that right of free speech outweighs the
plaintiffs right to reputation: the law treats with such occasion s to be privileged and a
defamatory statement made on such occasions is not actionable. Privileges is of two kinds:
i.
ii.

Absolute privilege
Qualified privilege

4.1 ABSOLUTE PRIVILEGE

In matters of absolute privilege, no action lies for the defamation statement even though the
statement is false or has been made maliciously. In such cases, the public interests demands
that individuals right to reputation should give way to the freedom of speech. Absolute
privilege is recognized in the following cases:

I.

Parliamentary Proceedings
Article 105(2) of our constitution provides that:
(a) Statements made by a member of either House of parliament in parliament,
(b) The publication by or under the authority of either House of parliament of any
report, paper, votes or proceedings, cannot be questioned in a court of law. A similar
privilege exists respect of State Legislatures, according to Articles 194 (2)

II.

Judicial Proceedings
No action for libel or libel or slander lies, whether against judges, counsels, witness or
parties, for words written or spoken in the course of any proceeding before any court
recognized by the law, even though the words written or spoken were written or
spoken maliciously, without any justification or excuse, and from personal ill will and
anger against the person defamed
Royal proceeding and summer and writer garden society Ltd v. Parkinson

The defamatory remark by a witness may be considered to be relevant if it is an attack on the

character of a counsel who also happens to be involved in the criminal proceeding under
section 107, Cr. P.C. which are being conducted by the court.
Rajinder Kishore v. Durga Sahi.
Other important case T.G. Nair v. Melepururath Sankunni dealt with the section 107, Cr.P.C.
In other case Narayana v. E. Subbanna, it has been held that statements made in a complaint
made to the police were absolutely privileged and, therefore, the defendant- respondent who
filed a false complaint to the imputing an offence of robbery against the plaintiff-appellant
could not be made liable for the defamation of plaintiff.
III.

State communications

A statement made by one officer of the state to another in the course of official duty
is absolutely privileged for the reasons of public policy. Such privileges also extends to
reports made in the course of military and naval duties. Communications relating to state
matters made by one minister to another or by a minister to the crown is also absolutely
privilege.
Chatterton v. Secy. Of state for India in council.
4.2 QUALIFIED PRIVILEGE

In order to show that a qualified privilege protects a certain statement, the defendant must
show that:

the defendant had a good-faith reason to believe the statement was true,

the defendant had a personal or professional interest in knowing the information in the
statement, and

The defendant shared the statement only with others who also had a personal or
professional interest in knowing the information in the statement.

Malice will destroy qualified privilege. In certain cases, the defence of qualified privilege is
also available. Unlike the defence of absolute privilege, in this case it is necessary that the
statement must have been made without malice. For such a defence to be available, it is
further necessary that there must be an occasion for the making the statement. Generally, such
a privileges is available either when the statement is made in discharge of a protection of an
interest, or the publication is in the form of parliament, judicial or other public proceedings.
Thus, to avail this defence, the defendant has to prove the following two points

The statement should be made in discharge of a duty or protection of an interest

The occasion when there is a qualified privileges to make defamatory statement
without malice are either when there is existing of a legal duty, social or moral to
make such a statement or, existence of some interest for the protection of which the

statement is made.
R.K. Karanjia v. Thackersey
And other famous case Radheshyam Tiwari v. Eknath
The statement should be without malice
In the matters of qualified privilege, the exemption from liability for making
defamatory statement is granted if the statement was made without malice. The
presence of malice destroys this defence. The malice in relation to qualified privilege
means an evil motive.
Clerk v. Malyneux
Horrocks v. Lawe

5. DISTINGUISH BETWEEN ABSOLUTE AND QUALIFIED PRIVILEGE

The Patna high court in the pandey Surinder Sinha v. Bageshwari Prasad distinguished
between the following the absolute and qualified privilege in the following

Absolute privilege
Qualified privilege
(a) In these it is the occasion which is (a) The occasion is not privileged, until the
privileged and when once the nature of defendant has shown how that occasion was
occasion is shown, it follows, as a necessary made. It is not enough to have an interest or
inference, that every communication on that

a duty in making a statement the necessity

Occasion is protected.

of the existence of an interest of duty in

making the statement complained

(b) In absolute liability, the defendant gets (b) In qualified privilege, the defendant gets
absolute exemption from the liability.
(c)

Statements

are

protected

in

a conditional exemption from liability.

all (c) Qualified privileges has been established

circumstances irrespective of the presence by the defendant, it may be met by the

of good or bad motives.

proving in reply improper or evil motive on

the part of the defendant, in such case
defence of qualified privilege vanishes and
the plaintiff succeeds.

DEFAMATION OF FREEDOM OF PRESSS:

Salenadandasi v. Gajjala Malla reddy
Facts:
Issue:
Judgement:
6. CONCLUSION
Defamation lawsuits involve false statements of fact that cause injury to the person being
talked about. Because a statement must be false before it can constitute defamation of

character, the truth of the statement is an absolute bar to a defamation claim. However, truth
is not the only defence available to someone who is being sued for defamation.
One of the key defences raised by people accused of making defamatory statements is that
the statements were privileged. This means that they were made in a context that is generally
deserving of protection (for policy reasons), and if the privilege is successfully proven, it will
effectively end the defamation claim.
BIBLIOGRAPHY
BOOKS
Law of tort- P.S.A. Pillai
R.K. Bangia law of tort
ARTICLES