PRIVILEGE AS A DEFENSE TO A DEFAMATION SUIT

(Project towards fulfillment of assessment in the subject of Law of Torts)

SUBMITTED TO: SUBMITTED BY:

Prof. S.K.Kaushik
& Prof. Rosmy Joan Aiswarya Murali
Faculty of Law 1262 (Section A)
II Semester
B.A. LL.B. (Hons.)

NATIONAL LAW UNIVERSITY, JODHPUR

WINTER SESSION
(JANUARY-MAY 2015)
 ACKNOWLEDGEMENT

I take this opportunity to express my gratitude and personal regards to Prof. S.K.Kaushik and

Prof Rosmy Joan for inspiring and guiding me during the course of this project work. I also owe

my sincere thanks to the library staff, National Law University for the corporation and facility

extended from time to time during the progress of my project work.

Aiswarya Murali

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 CERTIFICATE

This is to certify that Ms Aiswarya Murali of Second Semester, BA LLB has successfully

completed the project in Law of Contracts on the topic “Privilege as a defense to a defamation

suit” under the guidance of Prof.S.K.Kaushik and Prof Rosmy Joan.

RESEARCH METHODOLOGY

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Subject: Law of Torts

Topic: Privilege as a defense to defamation suit

For the completion of this project I have utilized the doctrinal research from primary and

secondary sources. Books, Articles and commentaries on case laws have contributed the major

part of my research

TABLE OF CONTENTS

INTRODUCTION...........................................................................................................................2
DEFAMATION AS A TORT...........................................................................................................3
DEFENSES AVAILABLE FOR DEFAMATION...........................................................................4
PRIVILEGE...................................................................................................................................10
ABSOLUTE PRIVILEGE.............................................................................................................12
QUALIFIED PRIVILEGE............................................................................................................14
CONCLUSION..............................................................................................................................17
BIBLIOGRAPHY..........................................................................................................................19

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 INTRODUCTION

Fame and repute is one of the most precious possessions of man. In his life time, he strives to

improve and reach new realms of it. Every man has a right to have his reputation preserved

inviolate. This right of reputation is acknowledged as an inherent personal right of every person

as part of the right of personal security1. It is a jus in rem, a right good against all the world. A

man’s reputation is his property, more valuable than other property2. No mere poetic fancy

suggested the truth that a good name is rather to be chosen than great riches. Indeed, if we reflect

on the degree of suffering occasioned by loss of character, and compare it with that occasioned

by loss of property, the amount of the former injury exceeds that of the latter3. Defamation is any

intentional false communication, either written or spoken, that harms a person's reputation;

decreases the respect, regard, or confidence in which a person is held; or induces disparaging,

hostile, or disagreeable opinions or feelings against a person. But the law of defamation like

many other branches of the law of torts balances the interests the wrong of defamation protects

reputation and defenses to the wrong, i.e. truth, fair comment and privilege protect the freedom

of speech. There are other occasions on which freedom of communication without fear of an

action for defamation is more important than the protection of a person’s reputation. Such

occasions are said to be “privileged”. This project analyses how privilege functions as a defense

1 Smt. Kiran Bedi & Jinder Singh v Committee of Enquiry, AIR 1989 SC 714, pp. 725, 726

2 Dixon v Holden, (1869) LR 7 Eq 488.

3 W. V. H. ROGERS, WINFIELD AND JOLOWICZ ON TORTS.

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to defamation suit. It also studies in detail two major kinds of privileges, absolute and qualified

and the instances they are applicable in.

DEFAMATION AS A TORT

Most of the legal systems confer some protection on the related interests of reputation, dignity

and privacy, though this may be via the criminal law 4. The salient formal features of the English

common law are the most clearly directly protected interest is reputation; that in relation to this

for practical purposes the only applicable law is the civil law; that the wrong is remedied almost

exclusively by an award of damages. The law of defamation rests mainly upon the common law,

but there are important statutes, notably the Defamation Acts of 1952 and 1996.

We may define defamation as the publication of a statement which reflects on a person’s

reputation and tends to lower him in the estimation of right- thinking members of the society

generally or tends to make them shun or avoid him. For historical reasons defamation takes the

form of two separate torts, libel and slander, the former being generally more favorable to the

claimant because it is actionable per se and injury to reputation will be presumed. However,

whether the case is one of libel or slander the following elements should be proved by the

claimant:

 The statement must be defamatory.

 It must refer to the claimant, i.e. identify him.
 It must be published, i.e. communicated to at least one person other than the claimant.

In practice the statement is almost always in the form

4 Machado v Fontes [1897] 2 Q.B.231.

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of words but it can take any form which conveys meaning, for example a picture, a cartoon or a

statue.

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 DEFENSES AVAILABLE FOR DEFAMATION

Simply because someone defames another person does not mean that a lawsuit will be

successful. There are a number of defenses to defamation claims. If the defamer can successfully

claim one of these defenses, he/she might be able to win the case despite the defamation.

The major defenses to defamation are:

1. Truth

Truth (also referred to as “justification”) is an absolute defense to defamation. However it

is an exacting defense and operates under rigorous rules. Defamation is a false statement of fact.

So, if the statement was accurate, then by definition it wasn’t defamatory. If a statement conveys

a defamatory meaning there is a presumption that the words are untrue. The burden of proof is on

the defendant to call evidence that establishes the words are accurate. A wholly unfounded plea

of truth and especially where it is maintained unsuccessfully through to the end of trial can result

in a higher level of damages. Alexander v. North Eastern Ry.5, explains the point. There the

plaintiff had been sentenced to a fine of $ 1 or 14 days’ imprisonment in the alternative, for

travelling on a train without appropriate ticket. The defendants published a notice stating that the

plaintiff had been sentenced to a fine of $ 1 or three weeks’ imprisonment in the alternative.

Held, the defendants were not liable, the statement being substantially accurate.

2. The allegedly defamatory statement was merely a statement of opinion

5 (1885) 6 B & S. 340

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 Once again, defamation is a false statement of fact. For this reason, a statement of

opinion cannot be defamatory. However, simply because one might

phrase a statement as a statement of opinion does not automatically mean that it will be

interpreted as a statement of opinion for purposes of defamation law.

For example to see why this is so. Jack told someone, “I think that Harold beat up his

girlfriend last Saturday,” and, as a result, Harold lost his job and most of his friends. He might

say that he was only giving his opinion as he didn’t say, “Harold beat up his girlfriend.” He

qualified it by saying “I think.” But simply adding “I think” or “I believe” to an otherwise

straightforward statement of fact does not necessarily make something a statement of opinion.

In a defamation lawsuit, a jury will be instructed to look at all of the circumstances surrounding

the uttering of the defamatory statement, including how well you knew the person defamed, how

well you knew the person you said the allegedly defamatory statement to, how precise the

allegedly defamatory statement was, and why you made that statement. If, putting it all together,

a jury believes that one is really making a specific statement of fact and hiding it as a supposed

statement of opinion, he will be found liable for defamation.

2. Consent to the publication of the allegedly defamatory statement

3. Absolute privilege

Certain types of communications are absolutely privileged. Absolute privilege means that the

person making the statement has the absolute right to make that statement at that time, even if it

is defamatory. In other words, the person making the defamatory statement is immune from a

defamation lawsuit.

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In general, absolute privilege exempts persons from liability for potentially defamatory

statements made:

 During judicial proceedings

 By high government officials
 By legislators during legislative debates
 During political broadcasts or speeches, and
 In between spouses.

So, if someone makes an otherwise defamatory statement during his/her testimony at a trial, that

statement is absolutely privileged, and that person cannot be sued for defamation. But if that

person makes a different allegedly defamatory statement in the hallway of the courthouse during

a break in the trial, he/she could be sued for defamation because the statement was made during a

judicial proceeding.6

5. Qualified privilege

Other types of communications are subject to what is called a qualified privilege, meaning that a

person making the allegedly defamatory statement may have had some right to make that

statement.

If a qualified privilege applies to a statement, it means that the person suing for defamation must

prove that the person who made the defamatory statement acted intentionally, recklessly, or with

malice, hatred, spite, ill will or resentment, depending on your state’s law.

Just some of the statements for which a qualified privilege applies are

6 W. V. H. ROGERS, WINFIELD AND JOLOWICZ ON TORTS.

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  Statements made in governmental reports of official proceedings
 Statements made by lower government officials such members of town or local boards
 Citizen testimony during legislative proceedings
 Statements made in self-defense or to warn others about a harm or danger
 Certain types of statements made by a former employer to a potential employer regarding

the employee, and

 Published book or film reviews that constitute fair criticism.

The employer review qualified privilege is particularly noteworthy. In order to avoid defamation

claims, some employers these days refuse to confirm any details about former employees other

than their dates of employment. But certain types of negative statements might fit in under the

qualified privilege category, If, for example, the employer fired the employee for theft, a

statement about that to a potential employer might qualify as a statement made to warn others

about a harm or danger (i.e., the danger of hiring someone who might steal from you).

6. Retraction of the allegedly defamatory statement.

7. Fair Comment

This is an important defense that safeguards freedom of expression on political and social issues

and on any subject of public interest. A defense of fair comment can only succeed if the

following conditions apply: A court must accept that the words are recognizable as an expression

of “comment” or opinion. “Comment” may include any statement of conclusion, inference, or

observation that in context can be recognized as an evaluation, critique, or commentary;

Comment must be based on facts and the stated facts must be true. The defendant has the burden

of proving that the facts are true. The facts must be set out in the published material or must be

sufficiently referred to in the text so that they are made known to the reader; The comment must

satisfy the following objective test: could any person honestly express the opinion on the proved

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facts?; The subject matter of the “opinion” must be one that is of “public interest”; The defense

of fair comment is defeated if the plaintiff proves that the defendant was actuated by “actual

malice”. In some cases that proceed to trial on the defense of fair comment the key issue is often

whether the words are “recognizable” as an expression of opinion. The fair comment defense

fails if the court decides that the words are merely a “bare statement of fact”. An untrue

statement of fact cannot be protected by fair comment. The defense of fair comment was the

subject of a recent decision by the Supreme Court of Canada in WIC Radio Ltd. v. Simpson7, (an

appeal from British Columbia) where one of the key elements of the defense was broadened.

Formerly the law required that the comment must be an honest expression of the defendant’s

own opinion. It is now sufficient for the defense to satisfy the court that the comment is one that

“any person” could honestly express on the proven facts. Responsible communication on a

matter of public interest.8

As a result of the recent decision of the Supreme Court of Canada in Grant v. Torstar Corp.9, a

new defense is available in defamation cases in certain situations. The new defense will have

particular application in circumstances where the media or other persons publish information to

the general public, and where the facts turn out to be untrue. Provided the subject matter of the

publication meets a test of being of “public interest” and the defendant exercises due diligence

prior to publication to ensure that the facts are accurate, there may be a complete defense. This

new defense is known as “responsible communication on matters of public interest”. This is a

significant expansion of the protection available to defendants because, formerly, the defense of

7 [2008] 2 S.C.R. 420.

8 Salomnd and Heuston on the Law of Torts, 20th Ed, Universal Law Publication, Delhi.

9 2009 SCC 61.

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fair comment only applied where the complained of words were recognizable as expressions of

“comment” or opinion. The new defense applies even to factual statements that turn out to be

untrue. But the defense will only be available provided the defendants can establish that they

acted responsibly in attempting to verify the information. The degree of care required to meet

that test will depend on the seriousness of the allegation, the public importance of the matter, the

urgency of the matter, the reliability of the source, and may take into account other factors

including whether the claimant’s side of the story was included in the report.

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 PRIVILEGE

There are certain forums in which the ability to speak freely is so vital that statements made there

should never lead to liability for defamation. Such an absolute privilege should apply, for

example, to statements made during judicial proceedings, statements before elected bodies and

fair and accurate reports on such statements. Certain other types of statements should enjoy a

qualified privilege; that is, they should be exempt from liability unless they can be shown to have

been made with malice. This latter category should include statements which the speaker is under

a legal, moral or social duty to make, such as reporting a suspected crime to the police. In such

cases, the public interest in the statements being made is deemed to outweigh any private

reputation interest in suppressing the statements.

Another complete defense to a claim of defamation is privilege. The two types of privilege are

absolute privilege and qualified privilege. An absolute privilege is a privilege that always

applies. A qualified privilege is a privilege that applies only if the defendant has not acted with

actual malice.

There is an absolute privilege for statements made in or having some relation to judicial or

judicial-like proceedings. There is an absolute privilege for statements made in legislative

proceedings. There is an absolute privilege for certain government officials acting in the course

of their employment, including federal officials and high-ranking state officials. There is an

absolute privilege for any compelled publication or broadcast.

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There is a qualified privilege for statements published in a reasonable manner for which there is

a public interest (e.g., the news) or for which there is a private interest of such importance to the

public that it is protected by public policy (e.g., a job reference). In essence, the news media can

inaccurately report newsworthy events, especially live events and breaking news, as long as it

does so without actual malice.

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 ABSOLUTE PRIVILEGE

Absolute privilege is a complete defense that cannot be defeated by malice. However, it is

available limited situations: where statements are made during, incidental to, and in the

processing and furtherance of judicial or quasi-judicial proceedings or where statements are

made in the proceeding of a legislative assembly. Common issues with respect to whether this

defense applies include whether the communication is truly a part of the quasi-judicial

proceeding. It is obviously not sufficient to establish that the statements were about the

proceeding. A witness talking to a non-party or reporter about his or her evidence is not

protected. The communication must be necessary for the proceeding. Innocent Dissemination

This defense, traditionally used by bookstores, libraries, news vendors, etc. is available in

circumstances where the defendant had no actual knowledge of the defamatory words contained

in the publication, was aware of no circumstances to put him or her on notice to suspect an

alleged libel, and committed no negligence in failing to find out about a libel.

Statements in Parliament

The Bill of Rights 1688 provides that: “the freedom of speech and debates or proceedings in

Parliament ought not to be impeached or questioned in any court or place out of the

Parliament.”10 This confers absolute privilege on statements made in the chamber of either House

10 The Bill of Rights declared by law by 2 W. & M.

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of Parliament, but the underlying purpose of the Bill of Rights is the wider one of preventing the

courts inquiring into the proprietary of the conduct of parliamentary business.11

Reports, papers, votes and proceedings ordered to be published by either House of Parliament.

These are subject to absolute privilege.

Judicial proceedings

Whatever is stated, whether orally or in documentary form, in judicial proceedings is absolutely

privileged. It does not matter how false or malicious the statements may be, and it does not

matter who makes it- the judge12, the jury, the parties, the advocates13, or the witnesses.

As held in the case of Rajinder Kishore v. Durga Sahi14, the defamatory remark by a witness

may be considered to be relevant if it is an attack on the character of a counsel who also happens

to be involved in the criminal proceedings under Section 107, Cr. P.C. which are being conducted

by the Court. An answer defamatory of the counsel’s character cannot be said to be irrelevant to

the enquiry. In V. Narayana v. E. Subbanna15, it has been held that statements made in a

complaint made to the police were absolutely privileged and, therefore, the defendant-

respondent who filed a false complaint to the police imputing an offence of robbery against the

plaintiff- appellant could not be made liable for defamation of the plaintiff.

11 Prebble v. Television New Zealand [1995] 1 A.C. 321.

12 Glick v. Hinchcliffe (1967) 111 S.J. 927.

13 Munster v. Lamb (1883) 11 Q.B.D. 588

14 AIR 1967 All. 476

15 AIR 1975 Karn. 162.

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 QUALIFIED PRIVILEGE

Qualified privilege provides a complete defense (even with respect to a defamatory statement

that turns out to be untrue) provided the defendant can establish that the communication was

made on an occasion of qualified privilege. An occasion of qualified privilege exists when the

defendant has a duty or interest to communicate information to the recipient and the recipient has

a corresponding “legitimate” interest to receive the information. The underlying principle is that

full and candid communication should be encouraged and protected in certain situations. The key

requirements are as follows: The occasion must be one of qualified privilege. A court must be

satisfied that the defendant had a duty – legal, social, or moral - to make the communication and

that the recipients had a legitimate reason to receive the information. Qualified privilege can also

arise in other situations including when a person is responding to an “attack” on his own

reputation or interests. The communication must have been made without malice. If a

defendant’s dominant motive in communicating information was “vindictiveness” or a desire to

humiliate or injure (rather than to discharge a duty or need to communicate information) then

there will be a finding of “actual malice” and the defense of qualified privilege will fail. In many

cases absence of malice is established by showing that the defendant “honestly believed” the

truth of the statement. A finding that a statement was made with “reckless indifference” as to

whether it was true or not can result in a finding of actual malice. Once it is established that the

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occasion is one of qualified privilege, the burden of proving actual malice is on the plaintiff. It

can turn out that some of the recipients of a communication did have the necessary “legitimate

interest” to receive the material but that copies were distributed to other persons who had no

proper interest. In that situation an award of damages will be limited to the injury caused by

circulation of the material to persons who had no legitimate interest to receive it. As a practical

matter in handling sensitive information, effective risk management focuses on who (inside or

outside an organization) should receive material that contains potentially defamatory content.

And even after a complaint is received there can be real advantages in taking immediate steps to

prevent republication or further distribution of material until the merits of a complaint can be

considered.

1. Statement should be made in the discharge of a duty or protection of an interest.

The occasion when there is a qualified privilege to make defamatory statement without malice

are either when there is existence of a duty, legal, social or moral to make such a statement or,

existence of some interest for the protection of which the statement is made.

2. Statement should be without malice

In the matters 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

this defense. The malice in relation to qualified privilege means an evil motive. 16 In Horrocks v.

Lawe17, it was held that however prejudiced the defendant may have been, or howsoever

16 Ratanlal & Dhirajlal, Law of Torts, 25th Ed, Wadhwa & Company Publication, Nagpur

17 (1964) 1 All E.R. 662.

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irrational in leaping to conclusions, unfavorable to the plaintiff, but if he believed in the truth of

what he had said on privileged occasion that entitled him to succeed in his defense of privilege.

In the case of Cook v Alexander18. The question was whether qualified privilege could be claimed

as regards a sketch consisting of selective report of a part of parliamentary proceedings

considered by the reporter to be of public interest. On the 25 th October, 1967, Daily Telegraph

gave a fair and accurate summary of parliamentary debate giving extract from all the 11

speeches, in three columns of an inside page of the newspaper. In the sketch prominence was

given to one of the speeches which is said to be a libel on Mr. Cook. It was held that the sketch

was protected by the qualified privilege for the following reasons:

1. It gave fair representation of the impression of the impression of the hearers of the speech

prominently reported on the back page. “Fairness”, it was stated, in this regard, means a fair

presentation of what took place as it impressed the hearers. It does mean fairness in the abstract

as between Mr. Cook and those who were attacking him.

2. The column on the back page which contained the Parliamentary sketch gave specific

reference to the inner page which contained full report of the whole debate.

18 (1973) 2 All E.R. 1037 (C.A.)

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 CONCLUSION

As a general rule, if you follow good journalistic practices and standards -- being thorough, fair,

and accurate in what you publish, carefully attributing your sources and quotes, and not phrasing

statements in such a way as to create implications that you do not intend or do not have the

evidence to support -- this will minimize the likelihood that you will be successfully sued for

defamation (honing these good habits has other benefits as well, as they will make your work

more accurate and credible).19

There are times, however, when even the most careful publisher can be sued for defamation. In

such a situation, a number of defenses may be available to you depending on what you published

and the source you relied on for the information. The most important defense 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's reputation. But truth is not the

only defense 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 have a right to report on allegations made in court regardless of

whether they are true. Similarly, statements by legislators on the floor of the legislature, or by

judges while sitting on the bench are typically privileged and cannot support a cause of action for

defamation, even if they turn out to be false.

Hence from this project we understood how privilege works as a defense for defamation suits in

various cases and how privilege itself diverges into two kind i.e absolute and qualified. It is

19 www.dmlp.org

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undisputed that repute is the most precious possession of man. Yet he has the right to freedom of

speech as well which forms his fundamental right. Tort law thus helps to strike a balance

between the two by providing the provision to file a civil suit under defamation as well as

providing applicable defenses to it.

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 BIBLIOGRAPHY

Cases

 Smt. Kiran Bedi & Jinder Singh v Committee of Enquiry

 Dixon v Holden
 Machado v Fontes
 Alexander v. North Eastern Ry
 WIC Radio Ltd. v. Simpson
 Grant v. Torstar Corp
 Prebble v. Television New Zealand
 Glick v. Hinchcliffe
 Munster v. Lamb
 Rajinder Kishore v. Durga Sahi
 V. Narayana v. E. Subbanna
 Horrocks v. Lawe
 Cook v Alexander

Treatises

 W. V. H. ROGERS, WINFIELD AND JOLOWICZ ON TORTS.

 Salomnd and Heuston on the Law of Torts, 20th Ed, Universal Law Publication, Delhi.
 Ratanlal & Dhirajlal, Law of Torts, 25th Ed, Wadhwa & Company Publication, Nagpur

Website

 www.jstor.org
 www.manupatrafast.in
 www.eff.org
 www.dmlp.org

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