Defamation is the publication of a statement which reflects on a person’s reputation and which tends to lower a person in the estimation of right thinking members of society generally, or, which tends to make him shun or avoid that person (Winfield).
This definition is wider than those, which define, defamation to mean the publication of a statement which tends to bring a person into hatred, contempt or ridicule. Imputations of insincerity or insolvency etc., which may arouse only sympathy or pity
in the minds of reasonable people, are also covered by the above definition.

A man’s reputation is considered valuable property and every man has a right to protect his reputation. This right is acknowledged as an inherent personal right and is a jus in rem i.e., a right good against all persons in the world. Defamation refers to any oral or written statement made by a person which damages the reputation of another person. As per Black’s Law Dictionary, defamation means “The offence of injuring a person’s character, fame, or reputation by false and malicious statements”. If the statement made is written and is published, then it is “libel”. If the defamatory statement is spoken, then it is a “slander”.

    In the case of D.P. Choudhary Vs Manjulata A.I.R 1997 Raj 170  the plaintiff-respondent was a 17-year-old college student. There was a publication in the local news report of daily, Dainik Navjyoti, dated 18/12/77 that she ran away with a boy namely Kamlesh at 11 a.m.after she went out of the house by saying she was having lectures. The news item so published was wrong and was published negligently. She was shocked and was having bad effects on her known one and marriage prospects. It was therefore held that the words so published were defamatory and were actionable per se. she has entitled with an award Rs. 10000/- by way of general damages

Essentials:

The statement or words must be:
i) False
ii) Spoken (slander) or written (libel)
iii) Defamatory and
iv) Published.
i) False: The words used must be false. In fact, truth is a clean justification. It must be shown that the imputation was false and malicious.
ii) The words may be spoken as in slander or may be in writing i.e., in a permanent form as in libel. Any writings, publication in a newspapers, sky writing, cinematography film, etc., are covered under libel. The leading case is Youssoupoff V. M.G.M.
Pictures. The defendant D, produced a film named “Rasputin, the mad monk”. In that film, one princess “Natasha” had been raped by Rasputin, the mad monk. The princess Irina of Russia, the wife of prince Youssoupoff (plaintiff) claimed compensation on the ground that it was clearly understood that the reference was to prince Irina. The jury awarded 25,000 pounds as compensation and this was confirmed by the Court of

The Statement must be defamatory- Defamation starts with someone making a statement, and any person who makes a defamatory statement can be held liable for defamation. A defamatory statement tends to diminish the good opinion that others hold about the person and it has the tendency to make others look at him with a feeling of hatred, ridicule, fear or dislike. Abusive language may also be defamatory, for example, to call a man hypocrite or a habitual drunkard. A few illustrations to understand what is defamatory and what is not. To say a motorist drives negligently is defamatory. To criticize goods is not defamation. To say that a baker’s bread is always unwholesome is defamatory. To state that a person has not that degree of skill which he holds himself as possessing is defamatory.

• The intention of the wrongdoer- The person making the defamatory statement knows that there are high chances of other people believing the statement to be true and it will result in causing injury to the reputation of the person defamed.
• The Statement should be false- A defamatory statement should be false because the truth is a defence to defamation. If the statement made is true then there is no defamation as the falsity of the statement is an essential ingredient of defamation. The law does not punish anyone for speaking the truth, even if it is ugly.
• The Statement should not be privileged- In some cases, the statements may be privileged i.e. the person who has made the statement is protected from such liability.
• The Statement must be published- For defamation to occur, the statement should be published. The statement should be communicated to a third party. Any statement written in a personal diary or sent as a personal message does not amount to defamation, but if the sender knows that it is likely that a third person may read it, then it amounts to defamation. In Mahendra Ram v. Hartnandan Prasad, A.I.R 1958 Pat 445. The defendant was held liable because he had sent a defamatory letter written in Urdu despite knowing the fact that the plaintiff could not read Urdu and ultimately the letter will be read by someone else.

The third party believes the defamatory matter to be true- The other people of the society believe that the defamatory matter said about the plaintiff is true.

The Statement must cause injury- The statement made should harm or injure the plaintiff in some way. For example, the plaintiff lost his job because of the statement made.

Publication

words must be published: publication is an essential requirement. Whether a statement tends to lower a person’s reputation is decided by the standard of a reasonable man. Publication means publishing a particular item of news or information to a person, other than the person to whom it is addressed.

1. If A writes to B, defaming B and sends the letter by registered post, there is no publication and therefore A is not liable.
2. If A writes a post-card defaming B, and sends by post, there is publication if an inquisitive postman reads and publishes. A is liable in such a case. (Robinson V. Jones)
3. If A dictates to his steno defaming B and if the steno publishes it, there is publication.
4. In Huth V. Huth, A sent a defamatory letter in an unsealed cover to B. B’s butler, without authority opened and read it, held, that there was no publication as B had no authority to see.

Repetition of defamatory words

Generally, the person who first makes a defamatory statement is not liable if the statement is republished by another person even though he expressly states that he is reproducing what he has heard from some source. However, no person has the right to repeat a slanderous statement without any justification. If a person who is aware that a defamatory statement is false and still repeats or communicates it further, then he can also be held liable for defamation.

Defamation by omission

There may be publication by omission. Failure by a defendant authorized and able to remove defamatory matter which is the work of another is publication by him. For example, if someone puts up a defamatory letter on the notice board of a club and the person in charge has not removed it within a reasonable time, then he will be accountable.

Measures of Damages In Defamatory Publication

The Court must take the following things into consideration while deciding the question of compensation in a defamatory publication:

1. The conduct of the plaintiff.
2. His position and standing in society.
3. The nature of libel.
4. The absence or refusal of any retraction or apology of libel.
5. The whole conduct of the defendant from the date of publication of libel to the date of the decree.

In Gorantla Venkatashwarlu V. B.Demudu the respondent was a bank officer and was sent on deputation to work as the Managing Director of Co-operative society. The appellant, the President of Society sent a complaint to the Bank alleging that the respondent had illicit connections with ladies which affected the image of the society during his tenure as the Managing Director. The respondent sent a reply denying the allegations made against him. The branch manager of the bank conducted an inquiry and found out that the allegations were false and were made only with a view to see that the respondent is not deputed to inspect the affairs of the society. The respondent filed a suit of defamation claiming damages of Rs. 20,000. The court held that the allegations were per se defamatory and the appellant was liable to pay damages. However, the court considered the fact that the allegations were made known only to staff and the Bank and there was no wide publicity, so the appellant was liable to pay Rs. 5000 as damages.

Certain exceptions to Defamation are:

1. The published statement was true,

2. Non-discriminatory ideas made in the public interest in terms of real events,

3. Certain persons have been given the right to make statements even if they are defamatory, for example, judicial and Member of Parliament.

Defamation VS. Freedom of Speech

The question that arises is whether liability arising out of defamation is a violation of the right to freedom of speech and expression. As we know that there is no specific fundamental right to privacy, the judicial interpretation includes it as a dimension of the right to life and liberty guaranteed under Article 21 of the Constitution. So the right to reputation also comes in the ambit of Article 21.

In the case of Subramanian Swamy V. Union of India,(2016) 7 SCC 221 a petition regarding the decriminalization of defamation was filed. The petition challenged the constitutional validity of Section 499 and 500 of the Indian Penal Code, 1860 is an unreasonable restriction on the freedom of speech and expression. The apex court held that criminal defamation under Section 499 and 500 did not violate Art. 19(1)(a) as it is a reasonable restriction under Art. 19(2). The term ‘defamation’ in Art. 19(2) includes both civil and criminal defamation. Section 499 and 500 IPC was held to be non-discriminatory and non-arbitrary and not violative of the right to equality guaranteed under Art. 14 of the Constitution. While in a democracy an individual has a right to criticize and dissent, but his right under Art. 19(1)(a) is not absolute and he cannot defame another person as that would offend the victim’s fundamental right to reputation which is an integral part of Art. 21 of the Constitution.In shereya Singhal V. Union of India, the petitioners challenged the validity of Section 66A of the Information Technology Act (ITA) contending that it was not a reasonable restriction on the freedom of speech and expression guaranteed under Art. 19(1)(a) of the Constitution. They argued that the impugned section was unconstitutional because it provided protection against annoyance, inconvenience, insult, injury, or criminal intimidation which is not covered in Art. 19(2). The court found section 66A of (ITA) to be vague and invalidated it on the ground of being violative of the right to freedom of speech and expression.

Defenses available against Defamation

Justification:Truth or justification is a very good and complete defense. Defamation is the injury to a man’s reputation and if there is truth in the statement, then there is no defamation. The person is not lowered, but is placed to his proper level. The substance of the statement must be true, not merely a part of it. “How, a lawyer treats his clients” was an article which dealt with how a particular lawyer was treating his client. Held the article was in-sufficient to justify the heading. (Bishop V. Lautiar)
ii) Fair Comment: The comment must be on a matter of public interest. Honest criticism is essential for the efficient working of democratic public institutions. The Government and its institutions may be criticized.

The main principles relating to the defence of fair comment have been stated by Duncan and Neill as follows:

1. The matter commented must be of public interest. The Government and its various wings and establishments and public institutions may be criticized. Novelists, Dramatists, Musicians, Actors, etc., may be criticized.
2. Fair comment must be an expression of an opinion and not an assertion of facts. Plaintiff was advertising in papers as a specialist in E.N.T the defendant commented on him as “a quack of the rankest species”. Held: that it was a comment, the Court always looks to the merit of the comments.
3. The comment must be fair: Mere violence in criticism by itself will not make the statements unfair.
4. Comment must be malicious. Even fictitious name may be used. That by itself will not render the statement unfair.
5. The same approach is followed in India. Any matter or subject which attracts public attention and is a matter of public interest. For example, A puts allegations on B of being corrupt in a newspaper. If A is not able to prove that the allegations were true, then his comment will not be considered fair comment.

• Fair comment and justification distinguished

The plea of fair comment is available only in respect of both facts and opinion, it is not necessary to prove the truth of the comment. When justification is pleaded in respect of matters of opinion, the defendant must prove not only that he honestly held the views expressed but also that they were accurate.

Privileges:

Privileges are of two Kinds: absolute and qualified.

Meaning of privileges: They are occasions on which there ought to be no liability for defamation. This is because the public interest outweighs the plaintiff’s right to his reputation.
Privileges are absolute when the communication is of paramount importance. Such occasions are protected, however malicious or outrageous they may be. The defendant may make statements even if they are false.

Examples for absolute privileges:
• Statements made in Parliament or Legislature.
• Reports, papers, etc., of either House of Legislature.
• Judicial proceedings.
• Communications between solicitor (advocate) and his client.
• Communication between one officer and a foreign officer.
Statements are qualified when the person makes the statement honestly even though they are false

1. Fair and accurate reports of Parliamentary debates, and proceedings.
2. Fair and accurate reports published in newspapers. Similarly broadcasting.
3. Statement made in pursuance of duties. A reports to B. about the conduct of C. If it is A’s duty to report and if he is to protect the interest of B, he may make c statements about C.
4. Where A and B are having a common interest to be protected. Statements made about the plaintiff P between A and B themselves are protected.
5. Statements made in self-protection and self-defense to procure redress of public grievances is protected.

1. Absolute Privilege

It gives the person an absolute right to make the statement even if it is defamatory, the person is immune from liability arising out of defamation lawsuit. Generally, absolute privilege exempts defamatory statements made:

1. during judicial proceedings,
2. by government officials,
3. by legislators during debates in the parliament,
4. during political speeches in the parliamentary proceedings and,
5. communication between spouses.  

Parliamentary privilege in the Indian Constitution

Article 105 and 194 of the Indian constitution gives certain rights, immunity to the members of the Houses of Parliament. The members of the Parliament have been vested with the freedom of speech. This freedom is different from the freedom of speech and expression guaranteed under Art. 19(1)(a), as the freedom in Art. 105 and 194 are specifically for the members of the Parliament and is subject to rules and orders which regulate the parliamentary proceedings. Art. 19(1)(a) does not protect an individual absolutely for what he says and is subject to reasonable restrictions under Art. 19(2). The term freedom of speech in Art. 105 states that a member of Parliament shall not be liable to any proceedings, civil and criminal, in any court for the statements made in debates in the Parliament. The second clause of Art. 105 confers immunity, inter alia, in respect of anything said in Parliament the word anything is of the widest import and is equivalent to everything. The only limitation is that the words must be spoken during the sitting of the Parliament. This freedom is given even to non-members like the Attorney General of India so that every member can participate freely in the debates and discussions without any fear. In P.V. Narsimha Rao v. State (JMM Bribery Case)(CBI/SPE) (1998) 4 SCC 626 , the apex court held that the privilege in Art. 105(2) which gives immunity from court proceedings extends even to taking of bribes by the members of Parliament for the purpose of voting in a particular manner in Parliament.

2. Qualified Privilege

 When a person making the statement has a legal, social or moral duty to make it and the listener has an interest in it, then the defence of qualified privilege is allowed. Following are the instances where this defence can be availed of: 

1. Reference for a job applicant, 
2. Answering the police inquiries, 
3. A fair criticism of a published book or film in a review, 
4. communication between parents and teachers, 
5. communication between employers and employees, 
6. communication between traders and credit agencies are all relationships that are protected by qualified privilege.  

These privileged communications must relate to the business at hand, even if what was said was untrue. However, this does not give a licence to say false statements, the person making the statement must believe it to be true. This defence can fail if it is proved that the defamatory statement was made with a malicious intention. Discussions on government and political matters which are subjects for public debates are covered under this defence. For example, a teacher tells the parents about the child’s habit of stealing and warns them. In this case, the teacher can take the defence of qualified privilege as he made the statement in good faith and in the interest of the child.

• Statement of Opinion

 If the statement made is an opinion and not a statement of fact, then it cannot be defamatory. For example, if a person says that he finds an actor ugly, the statement is just an opinion. However, if he says that the actor is a drug addict or has had multiple affairs, then it will be a defamatory statement. If this statement results into the actor losing work or his job and the statement made are false, then there will be a case for defamation.

• Consent

If the plaintiff consents to the statement made, then there is no defamation. The consent of the plaintiff gives absolute privilege to the publisher, it is immaterial whether the plaintiff knew that the information approved for publication was defamatory or not. Consent may be given by words or actions, including inaction. If the consent is obtained fraudulently or from a person of unsound mind then it will be invalid.

• Censure passed in good faith by the person having lawful authority

It is not defamation of a person having over another authority either conferred by law or arising out of the lawful contract made with another to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. For instance, a judge censuring the conduct of a witness or a banker censuring the cashier of his bank or, an engineer submits a report to the municipality that the contractor had taken away the stock of metal. If the engineer has made the report in good faith, then he will not be liable for defamation.

• The accusation made in good faith to the authorized person

An accusation made in good faith against a person who has lawful authority over that person is not defamation. It is not necessary for the person making allegations to prove that his allegations were true but he must prove that there were reasonable grounds for him to believe in the allegation. If a person signs a petition to the chairman of Lucknow Development Authority against defective construction of houses, along with several other residents of the locality, he can say to have acted in good faith.

Difference Between Civil Defamation And Criminal Defamation

Sr. No.	Defamation as a Tort	Defamation as a crime
1.	It is a civil wrong.	It is a criminal offence, which is bailable, non-cognizable and compoundable.
2.	It is based on tort law- an area of law which has no statutes to define wrongs and relies completely on case laws to define wrongs.	It has been defined as an offence under Section 499 and the punishment for the same is given in Section 500 of the Indian Penal Code, 1860.
3.	It provides redressal to the plaintiff by awarding damages in the form of monetary compensation from the accused.	It seeks to punish the offender and send a message to the society not to commit such an offence.
4.	Damages are awarded on the basis of probabilities.	The offence of defamation has to be established beyond a reasonable doubt.
5.	It is generally a slow process to seek relief in India.	The plaintiff can move to criminal court and ask the offender to take cognizance of his complaint.
6.	A person found guilty can be penalized only by making him pay damages.	A person found guilty can be punished with imprisonment up to two years or fine or with both.

Generally, defamation requires that the false statements be communicated without the consent of the allegedly defamed person. Words or pictures are interpreted according to common usage and in the context of publication. Injury only to feelings is not defamation; there must be loss of reputation. The defamed person need not be named but must be ascertainable. A class of persons is considered defamed only if the statements refer to all members of the class—particularly if the class is very small—or if particular members are specially imputed. The ambit of freedom of speech and expression is “sacrosanct” but is not “absolute”. It also said that the right to life under Art. 21 includes the right to reputation of a person and it cannot be violated at the cost of the freedom of speech of another.

Defamation is punishable under criminal law as well as civil law. But, to be criminally punishable, it must be such that it would provoke a breach of the peace or in some other way directly prejudice the public interest