Defamation, in simple words, means causing harm to the reputation of a person, group of persons or a particular class in specific. It may be done in the form of libel (representation made in some permanent form, e.g., writing, printing, picture, effigy or statue1) or in form of slander (publication of a defamatory statement in transient form. Examples of it may be spoken by words or gestures2). To an act of defamation there are certain kinds defenses provided under the law. The defendant may exercise those defenses to defend him/her and escape his/her liability. There are several situations and circumstances where it becomes imperative to say something about another person that may be construed as being defamatory. In such cases there is no strict liability principle that is applied but rather a person may plead certain defences which are contained in the code itself in the form of exceptions. There are certain defences which are available to certain classes of people as a whole such as advocates, judges which are made necessary by virtue of their profession but none of the privileges granted by the exceptions are absolute and there is no complete immunity.
R.K. Bangia, Law Of Torts, Allahabad Law Agency, Haryana, 2013, pg. no. 146 2.
The defences to an action for defamation are:
Justification or truth – if the publication complained about is true, entirely or even substantially, it can form a solid defence to defamation. But the onus is on the defendant who pleads justification to prove that the publication is true.
Fair Comment – It is also a defence against defamation if the defendant can prove that the publication complained about is a fair comment made in the interest of the public.
Privileges – a person exercising privileges is not held liable for the defamatory publication.
JUSTIFICATION OR TRUTH
In a civil action for defamation, truth of the defamatory matter is complete defence3. It is a complete defence to an action for defamation to prove that the defamatory statement is substantially true. It is not necessary for a defendant to show that there was a public interest in publication and it does not matter whether he or she acted maliciously.
If relying on the defence of justification the burden of proof is on the defendant to prove that the allegations made are true. The defendant must prove it on the balance of probabilities, that is, the allegation is more likely than not to be true.
A defendant is not required to prove that every allegation is true. The Defamation Act 1952 provides that where the words complained of contain two or more distinct allegations a defence of justification can still succeed if the words not proved to be true do not materially injure the claimant’s reputation having regard to the imputations which are proved true.
A defendant cannot rely on the defence of justification in relation to the publication of the details of spent convictions, as defined by the Rehabilitation of Offenders Act 1974, if the claimant can show that the publisher acted ‘maliciously’.
An allegation published by repeating a rumor cannot be justified by proving that there was such a rumor. A defendant is required to prove the substance of the allegation. If the statement is substantially true but incorrect in respect of certain minor particulars, the defence will still be available. Alexander v. North Eastern Ry., explains the point. In this case the plaintiff travels on a train without the appropriate ticket and is sentenced to a fine of £1 or 14 days’ imprisonment. The defendants published a notice stating that the plaintiff had bee sentenced to a fine of £1 or three weeks’ imprisonment in the alternative. The defendants were not liable, the statement being substantially true. If the defendant is not liable to prove the truth of facts, the defence cannot be availed. In...
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