The English rule that slanderous words are not generally actionable before criminal courts (except when they are blasphemous, seditious or amount to 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, the 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 directly 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.
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 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.
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 libelous 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 to 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 through 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 the 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.
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 is 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 the 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 libelous 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 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.