Detail of DEFAMATION

DEFAMATION

DEFAMATION

Introduction

The right of each man during his lifetime to the unimpaired possession of his reputation and good name is recognised by law. Reputation depends upon opinion and opinion in the main on the communication of thought and information from one individual to another. A person's own opinion about himself is not his reputation. It means rather the opinion of others about him. The good name one bears or the esteem in which one is held in society is one's 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 credit and trust it reposes on his intelligence, honour and integrity, all these constitute a valuable asset for him and it deserves protection at the hands of law. The right of every person to the reputation which his conduct deserves stands on the same footing with the right to the enjoyment of his life, liberty, health, property and all the comforts and advantages which appertain to a state of civil society inasmuch as security to reputation is indispensably essential to the enjoyment of every right and privilege incident to such a state.

     Defamation is both a civil and criminal wrong. Mischief to a private individual is the basis of the law of civil defamation while mischief to the society is the basis of criminal defamation.

Definition

"Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally or which tends to make them shun or avoid that person. It is libel if the statement be in permanent form and slander if it consists in significant words or gestures.

     It was thought formerly that defamation consisted in making or publishing a statement which would tend to bring a person into hatred, contempt or ridicule; but now it is recognised that if the effort of the statement is to cause the defamed person to be shunned or avoided that would also amount to defamation.

    The law will take into consideration only the opinion of right-thinking members of the society.

Distinction between libel and slander

The term "libel" undoubtedly indicates something printed or written but it includes also anything recorded in a more or less permanent form addressed to the eye or which could be seen, such as a painting, photograph, cartoon, caricature or any point, mark in the strict sense of the word. Slander is defamation communicated by spoken words or other sounds addressed to the ears or by gestures. It is transient. Thus defamatory gesture, made by the deaf and dumb, mimicry and gesticulation will also be slander.

    "It is essential to the communication to another party of a defamatory writing that such writing should be in existence before such communication. It is a communication of its contents which is a publication of a slander from the mouth of the person dictating but can only become a libel if subsequently shown by him or by his direction to some person other than the person defamed."

    Mere abuse will not amount to civil defamation. Hence, it came to be established a rule that mere abuse or insult unaccompanied by any definite damage will not give rise to a civil action for damages. If persons during the course of a violent quarrel and in the heat of passion use abusive words it will not give rise to a civil action for damages. The offending party may be liable criminally for causing breach of the peace but not for damages. The burden of proof is on the defendant to show that reasonable people understood the words referring to the plaintiff as merely vulgar or abusive and not as defamatory.

Difference between slander and liable in England

There are important difference between the two in their nature and burden of proof:

1.    Libel, if it tends to provoke a breach of the peace, is a crime as well as a tort. Slander as such, generally, would never give rise to criminal proceedings except in cases where it happens to be treasonable, seditious or blasphemous.

2.    Libel is actionable per se, i.e., without proof of special damage. If a defamatory article is published in B's newspaper about A, the law will presume damage in favour of A and the burden of proof is on the defendant to show that there is some justification recognised by law.

By way of special damage, the plaintiff must prove loss of money or of some temporal or material advantage estimable in money value. If there is only loss of society of friends it will not constitute special damage.

      Slander is actionable per se without proof of special damage in the following exceptional cases:

1.      Imputation of offence punishable with imprisonment.- Where there is imputation of a criminal  offence punishable with at least imprisonment in the first instance (without the option of fine).

2.      Imputation of diseases.- Imputation of a contagious or infectious disease likely to prevent other persons from associating with the plaintiff. It includes venereal disease, plague and leprosy.

3.      Imputation of adultery, unchastity.- Imputation of unchastity or adultery to any woman or girl.

4.      Imputation of unfitness.- Imputation of unfitness, dishonesty or incompetence in any office held by the plaintiff or in any lawful profession or trade carried on by him. There must be some reference direct or indirect in the words or circumstance attending their utterance which connects the slander with such office or profession or trade. If the words merely impute to the plaintiff some misconduct with his office, profession or trade they are not actionable without proof of special damage.

It is actionable to call a medical practitioner a quack, or to say that "he is not fit to treat a dog", or that he has ignorantly or unskilfully administered wrong medicine or an overdose of medicine or that patients have died owing to his want of skill or care. But to charge a medical practitioner with adultery or immorality is not actionable without proof of special damage, unless such charge be made against him in connection with his professional duties, e.g., that he has debauched a patient.

      The same rule applies to members of any other learned profession or calling. It is actionable without proof of special damage to impute to a barrister or an advocate the want of any requisite qualifications to practice law; or to charge him with having been guilty of corrupt, dishonest or improper practice in the course of his profession.

    Similarly, it has been held actionable without proof of special damage to impute to a justice of the peace, corruption or partiality or to say that he does not administer justice but injustice; or that he prevents justice or has taken bride, for, such imputations if true, would be a ground for removing his name for the commission of the peace.

Indian law

The English rule that slanderous words are not generally actionable before criminal courts (expect when they are blasphemous, seditious or amount to a contempt of court, etc.) is not followed in India and here criminal action can be taken for slanderous words uttered as in any libel published by the accused person. This is clear from the definition of defamation given in Section 499 of the Indian Penal Code.

     According to this definition, publication of defamatory matters is an essential ingredient of the offence. Publication implies communication to at least one person other than the defamed. Hence, if A, who has written a highly-defamatory letter about B, sends it direct to B, he will  not be liable to B since there is no publication to a third party in whose estimation his reputation is brought down.

   Newspapers cannot be compelled to disclose the source of their  information at an interim stage in answer to interrogatories. This is known as the "newspaper rule" and has been applied in India.

Essential ingredients of defamation

The essential ingredients of the tort of defamation which are applicable both to liable and slander are the following: (1) Malice. (2) They must be defamatory. (3) The words must have reference to the plaintiff. (4) They must be published.

Malice

It is usual in all actions for defamation for the plaintiff to state formally that the defendant published the defamatory matter "maliciously". Here this  expression means "without  any lawful justification or excuse". Whenever it is clear that the defendant has committed a prima facie wrongful act, the law would impute malice to the defendant. Malice here means nothing more than doing an act intentionally without any lawful justification or excuse. Thus malice in law means intention or recklessness.

    In D.P. Choudhary v. Kumari Manjulata the appellant-defendant was the principal editor of a newspaper in which a news item published regarding Manjulata the respondent-plaintiff with unfair comments and false imputations, to such effort that the plaintiff had run away with a boy. The news item was basically untrue and was published negligently with utter irresponsibility and maliciously which created hatred against Manjulata and she was ridiculed. It was held that the defendant, after having received information from the police, without proper verification published the news item, with the result that Manjulata and her parents lost their prestige in the society. It was stated on behalf of the appellant that there was no malice against the plaintiff. The court held that it is needless to say that in such cases a man may be liable although he had not a particle of malice against the person defamed.

     But malice in its real popular sense of bad or evil motive is also applied in the law of defamation especially in connection with the defence of qualified privilege. Malice means making use of or abusing the occasion for some indirect purpose.

Word must be defamatory: Innuendo

Defamatory statements are of three types. They are: (1) words prima facie defamatory. (2) words capable of an innocent or defamatory meaning. (3) words prime facie non-defamatory.

     In the case of words prime facie defamatory, the plaintiff need prove nothing more than publication and the court will presume damage in his favour. It is libellous to write that a man has been guilty of oppressive, insulting, intolerant or unbrotherly conduct. In such cases the onus lies on the defendant to prove from the context in which the words were used or from the manner of their publication or other facts known to those to whom the words were published; that words could not be understood by reasonable men to  convey the imputation suggested by the mere consideration of the words themselves, i.e., they were understood merely as a joke or (in an action for slander) as mere abuse or as in no sense defamatory of the plaintiff.

    In the second class of cases the language is ambiguous as where it is equally capable on the face of it two meanings, the one defamatory and the other innocent.

    In the third class of cases, where the words are not prime facie defamatory, but innocent, the plaintiff must expressly and explicitly set forth in his pleadings the defamatory sense which he attributes to it. Such an explanatory statement is called an innuendo. In the latter two types of cases the plaintiffs will have to make their case clear to the courts though innuendoes.

     But an apparently harmless statement will not become defamatory simply because the plaintiff twisted into it an insulting and defamatory meaning.  Innuendo may arise from locality as in Monson v. Tussaud's Ltd. where the placing of an effigy of the plaintiff at an exhibition among those of murderers and other ill-famed persons in the "Chamber of Horrors" was considered sufficient evidence to go to a jury.

     Conspiracy does not give rise to a claim for damages for loss of reputation or injury to feelings.

Defences to defamation

The main defences to defamation are:

1.      Justification or truth,

2.      fair comment, and

3.      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 substantially true. Since defamation is essentially an injury to a man's reputation, when it is shown that 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.

    In criminal law, truth is not an absolute justification. Truth is a justification only if it is made for public benefit or public good. Section 499 of the Indian Penal Code, first exception, reads thus: "It is not defamation to impute anything which is true concerning any person if it be for the public good that the imputation should be made or published."

   Thus, while unqualified truth is an absolute defence in the civil law of defamation, it is a defence in criminal law only if it is made for public good or public benefit. But truth in any sense is no justification in case of defamation of the State, called sedition, or speaking ill of one's religion.

    To succeed in a plea of justification, the defendant must  prove that the defamatory imputation is true. It is not enough for him to prove that the imputation is true, even though it was published as belief only.

     A person who hears a libellous statement about another is at least bound to take the ordinary precaution of keeping it to himself till he is convinced of its truth. He has no right to take it for granted that it is true and thus give a wider publicity to a calumny which, but for his publication, might have died with its originator.

     Whenever this plea of justification is raised by a defendant the burden is cast upon him to prove this precise imputation complained of. If the words impute a specific offence, it is not enough to prove that the plaintiff was guilty of another offence though of the same character.

Fair comment

Comment is statement of opinion on facts. It is the right of every member of the public to express his opinion on a matter of public interest. But that expression of opinion should be fair. If a statement is a fair comment on a matter of public interest, it is not actionable. Right of criticism and free expression of opinion are considered essential for the progress of society and for inducing efficiency in the services of private and governmental establishments in the land.

    The defence of fair comment must be distinguished from that of justification. Under the latter, the defendant must prove the truth of every defamatory fact alleged and every injurious imputation made. Under the former the defendant must prove that the facts on which the comment is based are true and that the comment on these facts is fair.

     Under fair comment it is enough to prove that there was some substratum of fact on which the comment was made as was seen in Kemsley v. Foot.

      Another point of distinction is in relation to the mental state of the defendant. In the case of justification the state of mind of the defendant at the time he published the defamatory words is immaterial. Thus the presence of actual malice is irrelevant to the defence of justification. In the case of fair comment the state of mind of the defendant at the time he published the defamatory words is most material. Thus he cannot avail of any facts as justifying his comment of which he was ignorant at the time when he published the words complained of. Proof of actual malice would defeat the idea of fair comment.

     To succeed in a defence of fair comment the defendant must show that the words complained of were:

   (a) expressions of opinion and not statements of fact, i.e., they constituted mere comment;

   (b) they were fair comment; and

   (c) fair comment on some matter of public interest.

Comment, fact and comment

The statement must be an expression of opinion and not assertion of facts. Sometimes it is very difficult to draw the distinction between fact and comment. To say of a person that he is "immoral" or a "sinner" may be either a statement of fact or mere expression of opinion from the circumstances of the case. To write of a man that he is "a disgrace to human nature" is defamatory allegation of fact. But if the words were, "he murdered his father; and therefore is a disgrace to human nature", the latter words would certainly be a comment on the former facts.

      To state accurately what a man has done and then to say that (in your opinion) such conduct is dishonourable or disgraceful is a comment which may do no harm, as everyone can judge for himself whether the opinion expressed is well founded or not. Misdescription of conduct on the other hand only leads to the one conclusion detrimental to the person abused and leaves the reader no opportunity for judging for himself of the character of the conduct condemned, nothing but a false picture being presented for judgment.

      It is thus clear that a critic should never mix up his comments with the facts on which they are based. He should set out his facts first and so separate them from his comments so that the reader can readily distinguish the two and judge and value the criticism. If the two are so entangled that inference is not clearly distinguishable from fact, then those to whom the statement is published will regard it as founded upon unrevealed information in the possession of the publisher and it will stand in the same position as any ordinary allegation of fact.

Imputation of corrupt, dishonourable motives, makes comment unfair

An imputation of corrupt or dishonourable motives will render the comment unfair unless such imputation is warranted by the facts truly stated or referred to, i.e., it is an inference which a fair-minded man might reasonably draw from such facts and represent the honest opinion of the writer.

     Fair comment must be on a matter of public interest. Matters of public interest cover a wide range of subjects and individuals. In modern times it includes everything relating to national or local government, the administration of public institutions, whether of State or private, aided or charitable or educational, the public conduct not only of all public officials but of all persons such as clergymen, Judges, barristers, political candidates and agitators who take part in public affairs. In short, it includes the conduct of every public man and every public institution. The private life of such persons is however only of legitimate public interest insofar as it affects their public activities and functions. The conduct of all civil and criminal actions in courts, the decisions of Judges and the evidence of witnesses can properly be commented upon when the trial is over.

      A newspaper is not entitled to invade the private life of an individual in order to discuss questions of character with which the public is not concerned. The Private life and character of an author or artist unconnected with the work he has given to the public is not a matter of public interest.

     A critic may say what he please of the literary merits or demerits of the published work of an author. However severe, and even in a sense unjust, the criticism may be, the critic will not be liable, provided (1) he does not misrepresent the consents of the book, (2) he does not go out of his way to attack the character of the author, (3) his criticism may fairly be termed criticism, and (4) his criticism is the honest expression of his real opinion.

    The principle underlying the plea of fair comment is that a man who appeals to the public in one way or another must be prepared to be judged by the public. Hence an unpublished private letter will be outside the sphere of defamation. The privilege is not limited to newspaper, but covers reports in pamphlets or in a broadcast or any other form of publication.

Comment must not be malicious

Malice would make the comment unfair. This is an exception to the general principle that the motive of the defendant is irrelevant in the law of tort. Lord Esher's remark in Merivale v. Carson, that where the critic is actuated by malice "the comment would not then be a criticism of the work: the mind of the writer would not be that of a critic, but he would be actuated by an intention to injure the author" perfectly encapsulates the essence of this prerequisite condition.

Fair comment and qualified privilege

The defence of fair comment should be distinguished from that of qualified privilege. In the defence of fair comment the right exercised by the defendant is shared by every member of the public. In that of qualified privilege the right is not shared by every member of the public but is limited to an individual who stands in such relation to the circumstances that he is entitled to say or write what would be libellous or slanderous on the part of anyone else.

 

 

Privilege: Absolute and qualified

Law gives absolute protection to statements made by persons on certain occasions; even if those 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 should have full freedom of speech. The interests of the public outweigh that of the injured private individual. For example, a member of Parliament is allowed full freedom of speech on the floor of the House.

    But this absolute immunity is granted only in a strictly limited number of cases for the strongest reasons of public policy.

Absolute privilege

The chief classes of statements which enjoy absolute privilege can be classified thus:

      (1) Statements made in Parliament.- In England, the members of Parliament have secured this right by the Bill of Rights. In India, Articles 105 and 194 of the Constitution of India confer this right on the members of the Indian Parliament and State Legislatures.

      (2) Reports, papers, notes and proceedings ordered to be published by either House of Parliament.- There is absolute privilege for all reports, papers notes of proceedings of either House of Parliament which are published by order of such House.

     (3)  Judicial proceedings.- Judges enjoy absolute immunity for whatever they say from the Bench while engaged in the discharge of their official duties. Article 211 of the Indian Constitution says: "No discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties." This privilege also extends to counsel, jurors parties and witnesses provided that what they say has some reference to the proceedings before court.

    The privilege also applied to the statements made in quasi-judicial proceedings (such as before an arbitrator, commissioner, official receiver, liquidator, etc.) and to statements in documents filed in the course of such proceedings. This covers any pleading, affidavit or answer thereto, report to court of the official liquidators in insolvency proceedings and that of official receivers in winding-up proceedings of companies.

Communications between lawyer and client

It has been held by the Court of Appeal in More v. Weaver, that any professional communication between solicitor and client is absolutely privileged but there is difference of opinion amongst jurists as to the nature of the privilege that should be conferred on them. Winfield has expressed the opinion that it need be only qualified privilege.

     Section 129 of the Indian Evidence Act, 1872 protects such confidential communications between lawyers and clients.

    (4) Statements made by an officer of State in course of official duty.- No action will lie against a military or naval officer for any defamatory statement in a report made by him in the course of duty to his superior officer or against any officer of State for any defamatory statement contained in an official report made by him to the head of his department; even though such statement be published maliciously and without reasonable or probable cause. A comparable principle based on the comity of nations is that a foreign embassy document is subject to absolute privilege.

     (5) Fair and accurate reports in newspaper of proceedings publicly heard before a court in the United Kingdom exercising judicial authority, if published contemporaneously, neither blasphemous nor indecent.- In England, this defence has been grounded in statutory law. In India, however, there is no such statute and as such newspapers can have only qualified privilege, which is the common law rule.

Qualified privilege

Malice will destroy qualified privilege. A master has the qualified privilege to write something which is disparaging of the character of his former servant but this privilege will be lost if the latter proves that his former master in making the defamatory statement was actually moved by malice, i.e., spite, enmity or ill will in the popular sense of that term. In the case of statements which fall under absolute privilege, even the presence of malice in the defamer will not destroy his privilege.

     The following classes of statements were considered as privileged:

     (1) Fair and accurate reports of parliamentary proceedings.- In England, the decision in Wason v. Walter, settled the privilege of faithful reports. In that case, The Times newspaper published an accurate report of the proceedings of the House including the Lord Chancellor's speech containing defamatory remarks about the plaintiff. The plaintiff sued the publishers of The Times for libel but they were held not liable.

    In India, Article 361-A enacts that no person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a newspaper of a substantially true report of any proceeding of either House of Parliament or the Legislature Assembly or, as the case may be, either House of the Legislature of a State, unless the publication is proved to have been made with malice; provided that nothing in this clause shall apply to the publication of any report of the proceedings of a secret sitting of either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a state. By clause (2) the protection given to newspapers is also extended to reports of news broadcast by broadcasting stations.                                                                                                                                                                                                                                      

     (2) Fair and accurate reports of judicial proceedings open to public.- Courts include both superior and inferior courts. But if the proceedings are not open to the public, i.e., if they are held in camera, the privilege does not apply. Again, if the court has prohibited the publication, reporters should not publish it otherwise they will be liable for contempt of court. Another important qualification regarding the publication of court proceedings in newspapers is that they should not publish indecent or obscene matter.

    (3) Fair and accurate reports in newspapers of the proceedings of any public meeting.- Qualified privilege for a fair and accurate report on a "public meeting", which is normally defined as one that is bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of any matter of public concern, whether the admission thereto be general or restricted has been granted in Britain by the Law of Libel (Amendment) Act and in India by Article 361-A of the Constitution. One essential prerequisite is that the report must necessarily be for the public benefit.

     (4) Statements made in pursuance of duty.- On certain occasions persons are under a social or moral duty to communicate to another about the character of others with whom they are very intimate. For example, a former employer of a servant is under a social duty to communicate his opinion about the character of his former servant to a prospective employer.

     In order to claim this privilege the person receiving the information and the person giving it should have reciprocal interest in the matter.

     The privilege will depend partly upon the nature of the communication and the parties interested therein.

     (5) Statement made by Trade Protection Societies.­- In London Assn. for Protection of Trade v. Greenland Ltd. the House of Lords held that the communication was privileged as the Secretary of the Trade Protection association was acting only as a confidential agent of the subscriber and not as the agent of the association and any communication between a principal and agent is always privileged. In such a case the agent is under a legal duty to communicate the result of his enquires to the person who has employed him to make them, and his duty is the basis of a distinct privilege arising out of the relationship of principal and agent.

     The communication made by an insurance company to its policy holders about an agent of the company and the complaint by the creditor of an officer to his commanding officer alleging irregularity in payment of his debt were held privileged statements. But in the  latter case the qualified privilege was negatived on account of the express malice of the defendant. It was help that the words were written on a privileged occasion since the commanding officer had a common interest with the defendant in the payment of the plaintiff's debt but the communication was taken out of the protection afforded by the privileged occasion by the express malice of the defendant.

     (6) Self-protection: Statement made to protect defendant's own interests.- Law views with leniency statements made by one person against another in the heat of passion when he is charged with dishonourable conduct or otherwise provoked. A person whose character or conduct has been attacked is entitled to answer such attack and any defamatory statement he may make about the person who attacked him will be privileged provided, it is published bona fide and is fairly relevant to the accusations made. The law justifies a man in repelling a libellous charge by a denial or explanation. He has a qualified privilege to answer the charge, and if he does so in good faith, and what he publishes is fairly an answer and is published for the purpose of repelling the charge, and not with malice, it is privileged through it be false. It is clear that the privilege must be used as a shield of defence, not as a weapon of attack.

      The privilege is not confined to statement made in answer to an attack on personal character. A statement by a man in defence of his property against an injurious statement concerning it is also privileged.

     The privilege also extends to any statement made by a man bona fide for the protection of the rights or interests of his principal or client in defence of the character of his principal or client and the fact that the statements were not authorised by the principal or client will not destroy the privilege.

      A person whose character or conduct has been attacked in the press is entitled to have recourse to the press in his defence and vindication and, in answering such attacks, if he makes relevant defamatory statements about the person who has attacked him, such statements are prime facie privileged.

      But in such a case the defendant is justified in resorting to the press only if he original attack was made upon him in the press or in public. If it is made in private between two or three persons only, the defendant has no right "to enlarge the constituency and publish his defence to the general public through the newspapers and, if he does so, his answer will not be privileged".

     (7) Redress of grievances.- Statements made to proper authorities for the redress of public grievances are privileged. Thus, a petition to the Postmaster General complaining against the conduct of a local postmaster and a complaint to the Home Secretary that a local Magistrate had incited people to break the peace would fall under qualified defence.

Express malice

Express malice would destroy qualified privilege. Malice in this connection may mean either                      (a) personal spite in the contents of the statement, or (b) personal spite or carelessness in the mode of its publication. III feeling between the parties and their past and present conduct towards each other will be evidence of malice in the statement.

      Mere carelessness or even honest belief produced by irrational prejudice, does not amount to malice "despite the imperfection of the mental process by which the belief is arrived at, it may still be honest".

Malice in case of joint publication

Normally the malice of an agent would destroy the privilege of his principal and both will be liable. This is especially so in the case of corporations. A corporation will be liable for the malice of its agent. The proprietor of a newspaper will be liable for the malice of the editor or the correspondent. But the malice of a mechanical agent such as a typist, messenger, or printer will not impose any liability on his innocent principal. A lawyer would not be liable for a notice containing defamatory matter issued under the instructions of his client. So also a typist who types a defamatory letter will not be liable.

     In the case of joint publication, which happens to be defamatory , the liability of each will depend upon his personal blameworthiness. If one of the joint publishers was malicious and the publication was made in circumstances under which privilege can be claimed, the malicious person alone will be held liable and he will not be permitted to claim privilege. In short, the privilege claimed in the case of joint publication will be destroyed only in the case of those who are malicious, and others would not be liable. Privilege attaches to each individual who published the libel and if he is not malicious, he will not be held liable.

Apology 

In all action for defamation, if the defendant makes an unconditional apology it would mitigate damages, but it cannot affect his liability. In England, this recourse has a corresponding statutory provision which recognises its position as a plea in law, but in India, there is no similar enactment. However, the principles of it relating to apology, except perhaps excluding that of the deposit of money in court by a defendant, are followed.

     An apology should "amount to a full and frank withdrawal of the charges or suggestion conveyed and should contain an expression of regret that such charges or suggestions were ever made. The apology should not be watered down with qualifications; nor leave any suggestion behind; otherwise it may defeat its own object and do more harm than good. Hesitation, lurking insinuation, an attempted perversion of the plain import of the language used, or a substitution of one calumny for another, only aggravate the original offence and show a consciousness of the wrong done without the manliness or magnanimity to repair it".

       The unprovoked nature of the attack, the violence of the defendant's language, the mean nature of the imputation conveyed and the fact that the defamation was deliberate and malicious, or that the defendant was culpably reckless or grossly negligent, will aggravate damages. Subsequent conduct of the defendant, e.g., that he has refused to listen to the explanation or to retract the charge he made or persisted in his plea of justification already unsustained or has only tardily published an inadequate apology-all these too would aggravate damages.