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 the 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 society is the basis of criminal defamation.
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 society.
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 gestures, made by the deaf and dumb, mimicry and gesticulation will also be slander.
"It is essential to the communication to another party of defamatory writing that such writing should be in existence before such communication. It is a communication of its contents which is a publication of 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 the breach of 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.
There is an 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 a 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 the 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 is 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.