TOPIC :- PRIVILEGE AS A DEFENCE TO A DEFEMATION SUIT

CHANAKYA NATIONAL LAW UNIVERSITY

SUBMITTED TO :
HARISH SALVE SIR

SUBMITTED BY :
ANKIT ANAND ROLL NO. : 917, 1ST SEMESTER

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INTRODUCTION:
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The topic deal with defamation ,privilege ,privilege taken as a defence in defamation suit . Topic tells what is defamation: Defamation is injury to the reputation of a person . Types of defamation ,it is of two type i.e. (1)Libel (2)Slander .Then it tells what is privilege : when law recognises that the right of free speech violate the plaintiffs right to reputation law considers such occasions to be privileged . Simply , if a person had privilege and he made a defamatory statement to someone then , he will not be liable for the compensation or the occasions are not actionable . It includes types of

privilege i.e. (1) Absolute & (2) Qualified . And also , how the defence of privilege is available in case of defamation. When the absolute privilege and when qualified privileged is available to the defendant as a defence . But the most important defence is Truth .If the statement at issue is substantially true , a defamation claim cannot succeed because you have a right to publish truthful information even if it injures another reputation . But truth is not the only defence that may be available . For example , if you publish a defamatory allegation made by a party in a lawsuit , even if it turns out that the allegation is false , a defamation claim against you cannot succeed because you had a right to report on allegation made in court regardless of whether they are true . Keep in mind , however , the privileges are not available in all circumstances or in every state .

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AIMS AND OBJECTIVES : The aim of researcher , in doing research work is to give a brief outline of PRIVILEGE AS A DEFENCE IN CONTXT OF DEFAMATION and then study various aspects of the DEFAMATION in claiming and judicial interpretation of the facts with the help of some relevant cases . Here the researcher would go through the following points : Definition of defamation Types of defamation What is privilege Types of privilege Concept of privilege as a defence

HYPOTHESIS:

RESEARCH METHODOLOGY: As the research work for this topic is confined to the library and books and no field work has been done. Hence , researcher in his research work has opted the doctrinal methodology of research . For doing the research work various sources has been used . Researcher in the research work has relied upon the sources like various books on LAW OF TORTS and online materials is also helpful source for the research .

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SCOPES : Though the researcher had tried his level best to not left any stone unturned in doing his research work to highlight the various aspects relating to the topic , but the tort being a vast field of law and the topic of privileges as defence itself whose horizon and cannot be confined , the research work has sought with some of the unavoidable limitations .

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(1) CONCEPT OF DEFAMATION: Simply , Defamation is injury to the reputation of a person . A mans reputation is his property and might be more valuable than other property . And if , a person cause any injury to the reputation of any person , he does this at his own risk . As anyone enters into the property of any others without the consent of that person .Then he done that on his own risk . Because reputation is also a property of a person . Every man has a right to have his reputation preserved inviolate . It is a jus in rem ,a right good against all the world . The wrong of defamation protects reputation and defences to the wrong , truth and privilege protects the freedom of speech . The existing law relating to the defamation is a reasonable restriction on the fundamental rights of freedom of speech and expression conferred by Article 19(1)(a)1 of Indian constitution and is saved by clause (2) of article 19. The wrong of defamation may be committed either by way of writing , or its equivalent , or by way of speech . A defamatory statement is a statement calculated to expose a person to hatred , contempt or ridicule or to injure him in his trade , business , profession , office , or to cause him to be avoided in the society .

There are two types of defamation: (1)LIBEL: A libel is a publication of false and defamatory statement tending to injure the reputation of another person without lawful justification or excuse . The statement must be expressed in some permanent form . For example: writing , printing , pictures , statue etc. At common law a libel is a criminal offence as well as a civil wrong . A libel is of itself infringement of a right and no actual need be proved in order to

sustain an action .Defamation of a person taken to be false until it is proved to be true . For the defamatory statement plaintiff has to allege in his plaint that statement was made with malice . Malice here means that publication was without just cause or excuse . The motive of the defendant is not material in determining liability . In case of libel , it is not necessary to prove the actual loss of reputation . It is sufficient to establish that the defamatory statement made could damage one reputation .

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(2)SLANDER: A Slander is a false and defamatory statement by spoken words or gestures tending to injure the reputation of others . A slander is defamation in a transient form . slander is a civil wrong only . at common law , a slander is actionable only when special damage can be proved to have been its natural consequences or when it conveys certain imputations . Under criminal law slander is no offence . Slander is actionable , save in exceptional cases , only on the proof of special damage . Exceptional cases are : (i) Imputation of criminal offence to the plaintiff.

(ii) Infectious disease to the plaintiff ,which has the effect of preventing others from associating with the plaintiff .

(iii) Imputation that a person is incompetent , unfit in regard to the office , profession , calling , trade , business , on by him .

(iv) Plaintiff is a woman or girl , and the words impute adultery to her .

(2) ESSENTIALS OF DEFAMATION

There are three essentials of defamation :

(i)The statement made be defamatory ; Defamatory statement is statement which tend to injure the reputation of plaintiff . The defamatory statement could be made in different ways . It may be oral , in writing , printed or by the exhibition of a picture , or by some conduct . Whether a statement
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is defamatory or not is depend on how the right thinking members of the society are likely to take it . If the effect of statement is the injury to the plaintiffs reputation , it is no defence to say that it was not intended to the plaintiffs reputation , it is no defence to say that it was not intended to be defamatory . When the statement cause anyone feeling of hatred , contempt , ridicule , fear , dislike it is defamatory . The essence of defamation is injury to a persons reputation or character.

In the case of D.P. Choudhary v. Manjulata ,2 there was publication of a statement in a local daily of Jodhpur on the date of 18th dec 1977 That , a girl named Majulata 17 years of age went out of her house on the earlier night at 11 p.m. to attend the night classes . And despite of attending the night class she run away with a boy whose name was Kamlesh . Manjulata belonged to a well educated family and was herself a student of B.A. class . The news published in the local daily was not true and had been published with utter irresponsibility and without any justification . Though the publication was not true , therefore the publication was said to be defamatory . Such publication had resulted in her being ridiculed and also affected her marriage prospects . Manjulata filed a suit against the local daily of defamation .And , though the statement was not true and defamatory .It was held that defendant was liable for the compensation .

In the case of South INDIAN Railway Co. V. Ramakrishnan3 ,a railway guard was an employee of the defendant South Indian Railway .And the guard went to a wagon for checking the tickets of the passengers . Guard demanded for the ticket from the plaintiff in the presence of other passengers and said that I suspect that you are travelling without ticket or with false ticket . But , the plaintiff produced the which was in order .The plaintiff think that it was his defamation . So , he filed a suit against the South Indian Railway for the defamation for the words spoken by the
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railway guard to him .But it was held that it was no any defamation . Because the words spoken by the railway guard were the bona fide under the circumstances of the case . so, the Railway company no liable for defamation .

Intension to defame is not necessary When the words are considered to be defamatory to whom the statement is published , there is defamation . Even though the person making the statement believed it to be innocent . It is immaterial that the defendant did not the facts because of which a statement otherwise innocent , is considered to be defamatory . The jury found that words conveyed defamatory meaning and for that defendant was held liable for the compensation .

(ii)THE STATEMENT MUST REFER TO THE PLAINTIFF

For the action of defamation , the plaintiff has to prove that the statement of which he complains referred to him . It is immaterial that the defendant did not intend to defame the plaintiff . If the person to whom the statement was published could reasonably infer that the statement refer to the plaintiff , the defendant is nevertheless the liable

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IN HULTON Co. V. BARRISTER JONES ,4In this case Hulton publish a book in that book , there was a character named Artemus Jones .Who was of bad character . And after reading the book people thought that the Barrister Jones a man in existence is same character of Artemus Jones in the book . As the Artemus Jones was a man of bad character , people thought that Barrister Jones WAS ALSO A BAD Character man. Then Barrister Jones filed a suit against Hulton . The court was held that Hulton & Co. Was liable as what is meant is not relevant but what is hit is relevant .

In Cassidy v. Daily Mirror Newspaper-In Daily Mirror Newspaper there was an article on horse race . Mr. Cassidy who was married to a lady who called herself as Mrs. Cassidy or Mrs Corrigan . She was known as lawful wife of Mr. Cassidy who didnot live with her but occasionally came and stayed with her at her flat . The defendant publish in their newspaper a photograph of Mr. Corrigan Miss X with the following words :Mr M Corrigan , the race horse owner ,and Miss X Whose engagement has been announced . so for this Mrs Corrigan filed a suit against defendant for liable alleging that the innuendo was that Mr. Corrigan was not her husband and he lived with her in immoral cohabitation .

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(iii)THE STATMENT MUST BE PUBLISHED

Publication means making the defamatory matter known to some person defamed , and unless that is done ,no civil action for defamation lies . Sending the defamatory letter to the plaintiff in a language supposed to be known to the plaintiff is no defamation . 5If a third person wrongfully reads a letter meant for the plaintiff , the defendant is not liable . When the father opened his sons letter , and sealed letter , there was no publication by the defendant and he was not liable .

In MAHENDRA Ram v. Harnandan Prasad,6 the defendant sent a letter to the plaintiff in urdu lang. And plaintiff didnot know the urdu language therefore the same was read by a third party . It was held that defendant was not liable unless it was proved that the at the time of writing letter in urdu , the defendant knew that the urdu was not known to the plaintiff and it would necessitate reading of the letter by a third person .

3. CONCEPT OF PRIVILEGE AS A DEFENCE

PRIVILEGE means that a person stands in such relations to the fact of the case that he is justified in saying or writing what should be slanderous or libellous in any one else . The general principal underlying the defence of privilege is the common convenience and welfare of society or the general interest of society . There are certain occasion when the law recognises that the right to free speech violates the plaintiffs right to reputation : the law treats such occasions to be privileged and a defamatory statement on such occasions is not actionable .
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(4)TYPES OF PRIVILEGES

PRIVILEGE is of two types 1 ABSOLUTE PRIVILEGE

In case of Absolute Privilege , no action lies for defamatory statement though the statement is false or has been made with malice . In such case , the public interest demands that an individual s right to reputation should give way to freedom of speech . It is based upon the principle that interest of community at large over interest of the individual .

Absolute privilege is of following types

(i)Parliamentary proceeding Statement made by members of either house of parliament in their place in house ,and the publication by or under the authority of either house of parliament of any report , paper , proceeding, cannot be questioned in court of law . But this privilege does not extend to anything said outside the wall of house. Under Article 105(2) of The Indian constitution no members of parliament shall be liable to any proceeding in any court in respect of anything said by him in parliament .

(i)Judicial proceeding No action for libel or slander lies , whether against judges , counsels ,witness ,or parties for words written or spoken in the course of any proceeding before any court recognised by law , even though the words written or spoken were maliciously .
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Protection of the judicial officer in India is granted by the judicial officer protection act , 1850.7 The counsel has also been granted absolute privilege in respect of any word , spoken by him in the course of pleading the case of his client .

In Jiwan Mal v. Lachhman Das,8 on the of a compromise in a petty suit by trial court , Lachhman Das, in the case , remarked , A compromise cannot be effected as Jiwan Mal in the way . He had looted the whole of Dinanagar and gets false cases set up . Jiwan Mal about whom the said remark was made , was a municipal commissioner of Dinanagar but he had nothing to do with the suit under question . In an action against Lachhman das for slander , the defence pleaded was that there was Absolute Privilege as the statement was made before court of law . The High Court considered the remark of the defendant to be wholly irrelevant to the matter under enquiry and uncalled for , it rejected the defence of privilege and held the defendant liable .

(iii)Judicial and military proceeding Proceeding of Navel and Military tribunals are absolutely privileged . Statement made before a navel or military court of inquiry by a military man are protected .

(iv)State Proceeding A statement made by the officer of a state to another in the course of official duty Absolutely Privileged for reasons of the public policy . Such privilege also extends to report made in the course of navel and military duties . Communications relating to

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the state matters made by one minister to another or by a minister to the crown is also Absolutely Privileged .

2.QUALIFIED PRIVILEGED For some cases, the defence of qualified privileged is also available . In the case of qualified privileged it is necessary that the statement must made without malice. For this defence to be available , it is further necessary that there must be an occasion for making the statement . Generally , such a privilege is available either when the statement is made in discharge of a duty or protection of an interest .Thus to avail this defence ,the defendant has to prove the two points.

(i)The statement was made on a privileged occasion. EX. A former employer has a moral duty to state a servants character to a person going to employ the servant .The person receiving the information has also an interest in the information . The occasion is , therefore privileged . But if the former employer without any enquiry , publishes the character of his servant with a motive to harm the servant, the defence of qualified privilege cannot be taken.

In the case of publication of a libellous matter in a newspaper duty to the public got has to be proved .If such a duty is not proved , the plea of qualified privilege fail . The plea will also fail if plaintiff proves the presence of malice in the publication of the defamatory matter.

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(ii) The statement should be without malice In the maters of qualified privilege , the exemption from liability for making defamatory statement is granted if the statement was made without malice .The presence of malice destroys the defence .The malice in relation to qualified privilege means an evil motive .The notice with which a person published defamatory matter can only be inferred from what he did .If it be proved that he did not believe that what he publish was true , this is generally conclusive evidence of express malice , for no sense of duty desire to protect his own legitimate interest can justify a man in telling deliberate and injurious falsehood about other , save in the exception case where a person may be under a duty to pass on , without endorsing defamatory report made by some other person.

5.CONCLUSION Researcher after studying Defamation, Privilege , Privilege as a defence ,reach to the conclusion that privilege is a defence in case of defamation . There are types of privilege , And these privilege cannot be entertained by everyone .As Absolute privilege is only for the members of parliament inside the parliament, and to the judges , counsels, witness . Those having privilege ,if he made defamatory statement is not liable for any action .There are some condition for privilege to be available . Defendant has to prove some important things ,in order to take defence of privilege. Or plaintiff has also to prove some important the defamation . points to make defendant liable for

6.BIBLIOGRAPHY BOOKS DR. R K BANGIA RATAN LAL DHIRAJ LAL

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