GENERAL PRINCIPLES OF DEFAMATION

LAW OF TORTS ASSIGNMENT

GENERAL PRINCIPLES OF DEFAMATION

NAME: AMITHAB SANKAR

ROLL NO: 1477
SEMESTER 2

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 GENERAL PRINCIPLES OF DEFAMATION

CONTENTS

S.NO TOPIC Pg.NO

1. INTRODUCTION 3

2. TYPES OF DEFAMATION 5

3. TYPES OF CIVIL DEFAMATION 6

4. ESSENTIALS OF DEFAMATION 8

5. INNUENDO 12

6. DEFENCE 13

7. NEWSPAPER LIBEL 16

8. DAMAGES AND COST 17

9. CONCLUSION 19

10. TABLE OF CASES 20

11. REFERENCES 21

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 GENERAL PRINCIPLES OF DEFAMATION

INTRODUCTION
Every man is entitled to have his reputation. Jurist Blackstone’s has added to this proposition
and indited that “Every man is entitled to have his reputation preserved inviolate”. A man's
reputation is his property. Depending upon perception of that man, reputation is more
valuable to him than any other property. Reputation is the state of being held in high esteem
and honour or the general estimation that the public has for a person. Reputation depends on
opinion, and opinion is the main basis of communication of thoughts and Information
amongst humans. In simpler words, reputation is nothing but enjoyment of good opinion on
the part of others. So, the right to have reputation involves right to have reputation inviolate
or intact.

The word defamation is driven from Latin word ‘Diffamare’. Semantics or Etymology of the
Latin word ‘Diffamare’ provides that it means 'Spreading evil report about someone'. Thus,
defamation is nothing but causing damage to reputation of another. Thus the question of
defamation is primarily linked up with one’s reputation. But the concept is nowhere defined
in books of laws. Though many definitions have been attempted to circumscribe this word
‘defamation’, none has been found exhaustive. The cause of action for defamation has been
recognized from the very beginning of our civilization. People have been resorting to mutual
fights to smoothen out the wrong done to their reputation. But, the concept of defamation has
evolved much earlier. Right to have one’s reputation preserved intact has long been
recognized in India. During dynasty of Chandra Gupta Maurya, a famous treatise has come
into existence. It is known as Kautilya’s Arthshastra. In said book, the author has dealt with
defamation, in Chapter XVIII of Book III [79th Chapter since beginning]. The author first
defines defamation. He then proceeds to classify the offence indicted in ‘The Law of
Defamation and Malicious Prosecution’ according to gravity of the statement, the person
defaming, the person defamed and then apportions the punishment. Kautilya’s Arthshastra is
concerned with governmental duties toward the citizens. It is not the same thing as the
Smritis and Shastras, which deal with all the branches of law. So, we do not find any mention
of civil rights of the person defamed. It may, however, as well be that the ancients refused to
put a price on one’s reputation or honour as a doctrine too sordid [morally degraded] for
acceptance

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 GENERAL PRINCIPLES OF DEFAMATION

DEFAMATION AND ITS DEFINITION:

Defamation is the injury to the reputation of a person. If a person injures the reputation
of another, he does so at his own risk, as in the case of interference with the property. A
man’s reputation is his property, and if possible, more valuable, than other property.

Defamation is defined by Parke B. in Parmiter v. Coupland1 as ‘A publication,

without justification or lawful excuse, which is calculated to injure the reputation of another,
by exposing him to hatred, contempt or ridicule'

As per Salmond, it can be defined as ‘the wrong of defamation lies in the publication
of a false and defamatory statement about another person without lawful justification’.
According to another thinker, Underhills, ‘a statement becomes defamation if it is made
about another without just cause or excuse, whereby he suffers injury to his reputation and
not to his selfesteem’. Underhills considers defamatory statement as ‘one which imputes
conduct or qualifies tending to disparage or degrade any person, or to expose him to
contempt, ridicule or public hatred or to prejudice him in the way of his office, profession or
trade’. Another definition of defamation can be traced in name of Winfield. He defines the
concept as “defamation is the publication of statement which tends to lower a person in the
estimation of right thinking members of society, generally, or which tends to make them shun
and avoid that person”.

It is conventional to say that defamation includes a statement concerning any person, which
exposes him to hatred, ridicule or contempt. However, defamation can be best defined, if it
considered from the point of view of the right, which the defamatory statement is alleged to
infringe. In one English case, Scot v. Sampson2, Justice Cave has defined defamation in
simplest way. He has defined it as ‘a false statement about a man to his discredit’. This
definition is smaller yet it encompasses everything about the concept.

1
[1840] EngR 168; (1840) 6 M & W 105
2
(1882) 9 QBD 491.

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 GENERAL PRINCIPLES OF DEFAMATION

TYPES OF DEFAMATION:

CRIMINAL AND CIVIL DEFAMATION:

Defamation is civil as well as criminal wrong. Likewise the codified criminal law on the
subject, the civil law of defamation is not codified. The criminal law on the topic is contained
in sectioned 499 to 502 of Indian Penal Code, 1860. However, defamation as a Civil Wrong
is covered under Law of Torts. It is purely based on precedential developments, i.e. through
decisions pronounced by Courts. Rules and principles of liability that are applied by our
courts are mostly those borrowed from common law.

In Civil Law, defamation falls under the Law of Torts, which imposes punishment in the
form of damages awarded to the claimant (person filing the claim). Under Criminal Law,
Defamation is bailable, non-congnizable and compoundable offence. Therefore, the police
cannot start investigation of defamation without a warrant from a magistrate (an FIR cannot
be filed). The accused also has a right to seek bail. Further, the charges can be dropped if the
victim and the accused enter into a compromise to that effect (even without the permission of
the court).

Section 499 of the IPC defines what amounts to criminal defamation and few subsequent
provisions specify what the punishment for having committed defamation would be. Section
499 states defamation could be through words- spoken or intended to be read, through signs,
and also through visible representations. These can either be published or spoken about a
person with the intention of a damaging reputation of that person or with the knowledge or
reason to believe that the imputation will harm his reputation. Section 500 stipulates an
imprisonment of up to two years, with or without fine, for someone held guilty of criminal
defamation.

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 GENERAL PRINCIPLES OF DEFAMATION

TYPES OF CIVIL DEFAMATION

1. SLANDER:

It is the publication of a defamatory statement in a transient form. Examples of it

may be spoken by words or gestures. To slander also various forms have been
attributed. It may be committed by representations or in other manners which are
treated as equivalent to speech, like shake of the head, nod, winking, hissing, and
many others.

2. LIBEL:

It is the defamation made in some permanent form like writing and other
equivalent modes. It is a written defamation which may assume various forms, like
physical symbols, statues, effigies, picture, caricature, wax model, etc. The libelous
statement must be in a printed form, e.g. writing, printing, pictures, cartoons, statue,
waxwork effigy etc. Lopes J.,in Monson V. Tussauds3 points out that libels need not
always be in writing. It may be conveyed in some other permanent form as a statue, a
caricature, an effigy, chalk mark on a wall, sign or pictures. In the same case, the
defendants, who kept a wax works exhibition, had exhibited a wax model of the
plaintiff with a gun, in a room adjoining the ‘Chamber of Horrors’ (a room in the
basement, in which the wax models of notorious criminals were kept). The plaintiff
has been tried for murder in Scotland and released on a verdict of ‘Not proven’ and a
representation of the scene of the alleged murder was displayed in the chamber of
horrors. The Court of Appeal held that the exhibition was libel.

DIFFERENCE BETWEEN SLANDER AND LIBEL

Slander may be the result of a sudden provocation uttered in the heat of the moment, while
the libel implies grater deliberation and raises a suggestion of malice. Libel is likely to cause
more harm to the person defamed than slander. Because there is a strong tendency
everywhere on the part of most people to believe anything they see in print. In general
slander is actionable only on proof of special damage, but in exceptional cases slander is
actionable per se or without proof of special damage. Words which are not defamatory in

3
Ltd [1894] 1 QB 671

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 GENERAL PRINCIPLES OF DEFAMATION

their ordinary sense may, nevertheless, convey a defamatory meaning owing to the
circumstances in which they are spoken. Such words are actionable if it is proved that would
be understood as defamatory by the persons to whom they were published.

NO: SLANDER LIBEL

1. Slander defamation in transient form e.g.
spoken words or gestures.
2. At Common Law, a slander is a Civil
Wrong only.
3. At Common Law, a slander is actionable
only when special damage can be proved
to have been its natural consequences or
when in conveys certain imputation.
4. A libel conduces to a breach of peace.
5. Libel shows a greater deliberation and
raises a suggestion of malice.
6. The actual publisher of libel may be an
innocent person and therefore not liable.
Libel is defamation in some
permanent form e.g. a written or
printed form.
At Common Law, a libel is a
Criminal offence as well as Civil
wrong. Under Indian Law both libel
and slander are criminal offences.
A libel is by itself an infringement
of a right and no actual damage
need to be proved in order to sustain
an action in the Court of Law.
A slander does not conduce to a
breach of peace. However, Indian
legal Page 8 of 23 system does not
recognize this distinction.
Slander may be uttering or words in
the heat of moments and under a
sudden provocation.
In every case of publication of
slander, the publisher acts
consciously and voluntarily, and
must necessarily guilty.

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ESSENTIALS OF DEFAMATION

An obvious question arises about essentials of defamation under Indian Law. Because,
whenever defamation is agitated before any Civil Court, the proof has to travel around certain
essentials. Therefore, it becomes necessary to try to enlist those essentials or requisites
constituting defamation as civil wrong. There are in general four essentials of the tort of
defamation, namely.

1. The statement must be defamatory.

Any imputation which exposes one to disgrace and humiliation, ridicule or contempt,
is defamatory. It could be made in different ways as in it could be oral, in writing,
printed or by the exhibition of a picture, effigy or statue or by some conduct.
According to Lord Atkins, whether a statement is defamatory or not depends upon
how the right thinking members of society the society are likely to take it. Yet the
term, right-thinking members of society‟ is highly ambiguous. The standard to be
applied is that of a right –minded citizen, a man of fair average intelligence, and not
that of a special class of persons whose values are not shared or approved by the fair
minded members of that society generally. If the likely effect of the statement is the
injury to the plaintiff’s reputation, it is no defence to say that it was not intended to be
defamatory. When the statement causes anyone to be regarded with feelings of hatred,
contempt, ridicule, fear, dislike, or disesteem, it is defamatory. In D.P.Choudhary v.
Manjulata4, the plaintiff-respondent, Manjulata, about 17 years of age, belonged to a
distinguished educated family of Jodhpur. She was a student of B.A. there was a
publication of a news item in the local daily, Danik Navjyoti, dated 18.12.77 that last
night at 11pm Manjulata had run away with a boy named Kamlesh, after she went out
of her house on the pretext of attending the night classes in the college. The news item
was untrue and was published negligently with utter irresponsibility. She was shocked
and ridiculed by people who knew her and her marriage prospects were adversely
affected thereby. It was held that all defamatory words are actionable per se and in
such a case, general damages will be presumed. She was entitled to an award of
Rs.10,000/- by way of damages.

4
AIR 1997 Raj 170

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 GENERAL PRINCIPLES OF DEFAMATION

In South Railway Co v. Ramakrishna5, the railway guard who was an employee

of the defendant, South Indian Railway and Co., went to a carriage for checking the
tickets and while calling up the plaintiff to produce the ticket. “I suspect you are
traveling with a wrong ticket”. The plaintiff produced the ticket which was in order.
He then sued the railway company contending that those word uttered by the railway
guard amounted to defamation. It was held that the words spoken by the guard was
spoken bona fide and under the circumstances of the case, there was no defamation
and the railway company could not be made liable for the same.

2. They must have reference to the plaintiff.

The plaintiff has to prove that the statement which is claimed to be defamatory
actually refers to him/her. 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 referred to the plaintiff, the defendant is nevertheless liable. In
Hulton Co. V Jones6 the defendants published a fictional article in their newspaper in
which aspersions were cast on the morals of a fictitious character-Artemus Jones,
stated to be a Churchwarden. On this basis one Artemus Jones, a barrister, brought an
action against the defendants. The defendants pleaded that Artemus was a fictional
character and the plaintiff was not known to them and thus they had no intention to
defame him. Notwithstanding this, they were held liable because a substantial number
of persons who knew the plaintiff and had read the editorial would have assumed it to
be referring to him. However, when the defamation refers to a class of persons, no
member of that group can sue unless he can prove that the words could reasonably be
considered to be referring to him. When the statement though generally referring to a
class can be reasonably considered to be referring to a particular plaintiff, his action
will succeed. In Fanu v. Malcomson7, in an article published by the defendants, it
was mentioned that cruelty was practised upon employees in some of the Irish
factories. From the article as a whole including a reference to Waterford itself, it was
considered that the plaintiff’s Waterford factory was aimed at in the article and the
plaintiff was, therefore, successful in his action for defamation.

5
ILR (1890) 13 Mad 34
6
[1909] 2 KB 444
7
[1848] 1 HLC 637

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3. They statement must have been published.

Publication means making the defamatory matter known to some other third part and
unless that is done, no civil action for defamation can lie in court. Communication to
the plaintiff won’t count because defamation is injury to the reputation which consists
in the estimation in which others hold him and not a man’s own opinion of himself.
However, if a third party wrongfully intercepts and reads a letter sent to the plaintiff it
is not defamation. However when the defendant knows that the letter is likely to be
read by someone else and it contains some personal information only meant for the
recipient, then he will be liable. Also, an injunction can be issued against the
publication of a defamatory statement which is likely to injure the reputation of one of
the articles involved as was done in Prameela Ravindran v. P. Lakshmikutty
Amma8 Also, in the eyes of the law, husband and wife are one person and the
communication of a defamatory matter from the husband to the wife or vice versa is
no publication. When the repetition of the defamatory matter is involved, the liability
of the person who repeats that defamatory matter is the same as that of the originator,
because every repetition is a fresh publication giving rise to a fresh cause of action.
Not only the author is liable but the editor, printer or publisher would be liable in the
same way

Publication is equally important essential. As a best example of its essentiality, a

landmark judgment of Honourable Supreme Court must be referred to. In case of
R. Rajagopal v. State of Tamil Nadu9,[famously known as the Auto Shankar Case].
A Tamil sensational Weekly ‘Nakheeran’ had proposed to publish autobiography of a
condemned prisoner, by name Auto Shankar. He was convicted in six cases of murder
and was sentenced to death penalty. His Advocate had delivered the autobiography to
the news weekly, for publication as a serial. As it contained a narration about nexus
between criminals and authorities, especially between the prisoner and several IAS,
IPS and other officers, the newspaper decided to commence publication and
announced that in advance. It was alleged that the police authorities extracted some
letters from prisoner applying third degree methods, addressed to top authorities in the
government requesting stoppage of publication of the autobiography. The Inspector
General of Prisons in a letter to the editor, asked to stop the publication as the prisoner

8
AIR 2001 Mad 225
9
AIR 1995 SC 264

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denied that he had written any such autobiography. The IG termed it as a false
autobiography. The Editor sought a direction from the Court to prevent the
interference in the freedom of the editor to choose the contents of his newspaper as
per his discretion. The Division Bench consisting of Honourable Justice B. P. Jeevan
Reddy and Honourable Justice Subhas C. Sen agreed with the petitioners and held that
the newspaper had every right to publish the autobiography of Auto Shankar.
In Mahendra Ram v. Harnandan Prasad10, the defendant sent a defamatory
letter written in urdu to the plaintiff. The plaintiff did not know urdu and therefore the
same was read over to him by a third person. It was it was held that the defendant was
not liable unless it was proved that at the time of writing the letter in Urdu script, the
defendant knew that the Urdu script was known to the plaintiff and it would
necessitate the reading of the letter by a third person.
In Arumuga Mudaliar v. Annamalai Mudaliar11, it was held by the Madras
High Court that when two persons jointly wrote a letter containing the defamatory
matter concerning the plaintiff and sent the same by registered post to the plaintiff,
there was no publication by one tortfeasors to the other as there could be no
publication when the registered letter addressed to the plaintiff gets into the hands of a
third person and he reads it out in the presence of various other persons, if the same
could not have been foreseen.

10
AIR 1958 Pat 445
11
(1966) 2 MLJ 223

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INNUENDO

Where the statement does not refer to plaintiff directly, the doctrine of innuendo may be
pressed into service. Words are prima facie defamatory when their natural, obvious and
primary sense is defamatory. Words prima facie innocent are not actionable unless their
secondary or latent meaning is proved by the plaintiff. Where the words alleged to be
defamatory do not appear to be such on their face, the plaintiff must make out the
circumstances which made them actionable, and he must set forth in his pleading the
defamatory sense he attributes to them. Such explanatory statement is called an innuendo.
Thus innuendo means the words which are not defamatory in their ordinary sense, but may
nevertheless convey a defamatory meaning owing to the circumstances. Mere interpretation
of statement is not sufficient to allege an Innuendo. But it must be supported by extrinsic
facts or matters. E.g. A says to B that C is MANTHARA (who was wicked servant in the
house of Lord Ram). It is innuendo. So, it must be shown as to how complainant/plaintiff was
the real target of said attack. A true innuendo is an innuendo by which plaintiff alleges a
special defamatory meaning of words distinct from their ordinary meaning and arising by
virtue of extrinsic facts or matters known to the recipients. Applying this principle,
Honourable Supreme Court has laid down that an innuendo cannot be established by an
evidence showing inferences of two kinds. The evidence of additional facts must be capable
of showing that the words were applicable to plaintiff and the plaintiff alone. In this context
useful reference can be made to case of Manmohan Kalia versus Yash12.

In Capital and Countries Bank v. Henty & Sons13, there was a dispute between the
defendants, Henty & Sons, and one of the branch managers of the plaintiff bank. The
defendents who used to receive the cheque drawn on various branches of the Capital and
Countries Bank sent a circular letter to the large number of their customers as follows:
“Henty & Sons hereby give notice that they will not receive payment in cheques drawn on
any of the branches of the Capital and Countries Bank”. The circular became known to
various other persons also and there was a run on the bank. The bank sued Henty and Sons
for libel alleging that the circular implied an insolvency of the bank. Held, that the word of
the circular taken in their natural sense did not convey the supposed imputation and the
reasonable people would not understand it in the sense of the innuendo suggested. There was,
therefore no libel.

12
(1984)3 SCC 499
13
1882 7 AC 741

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DEFENCE

With the proof of publication of defamatory material, plaintiff must be deemed to have
established his case unless the defendant pleads either of defences open to him. Following are
the defences available in an action of civil liability in the case of defamation.

1. Defence of justification of truth:

In a civil action for defamation, truth is a complete defence. However under criminal
law, it must also be proved that the imputation was made for the public good. Under
the civil law, merely proving that the statement was true is a good defence the reason
being that “the law will not permit a man to recover damages in respect of an injury to
a character which he either does no or ought not to possess” The defence is available
even if the statement is made maliciously and if the statement is substantially true but
incorrect in respect of certain other minor particulars, the defence will still be
available. The Defamation Act, 1952 (England) provides that if there are several
charges of defamation and the defendant is successful in proving the truth of only
some of them, the defence of justification might still be available if the charges not
proved do not materially injure the reputation. Although there is no specific provision
in India regarding the above, the law is possibly the same as prevailing in England.
2. Defence of fair comment:

A fair and bona fide comment on a matter of public interest is not libel. For the purposes
of the defence of fair comment on a matter of public interest such matters must be

a. in which the public in general have a legitimate interest, directly or indirectly,

nationally or locally, e.g. matters connected with national and local government, public
services and institutions and

b. matters which are at public theatres and performances of theatrical artists offered for
public entertainment but not including the private lives of public performers. In a recent case
of Kokan Unnati Mitramandal and Others versus Bennett Coleman & Company
Limited and Others14, Honourable Bombay High Court while dismissing suit for
defamation filed by plaintiff has held that “defendants have shown and proved the
truthfulness of the statements and fair comment made by them in public interest. The
defamation of the plaintiffs alleged by them is, therefore, amply justified.”

14
2012(2) MLJ 338

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3. Privilege which must be either absolute or qualified:

'Privilege' means a person stands in such relations to the fact of the case that he is justified
in saying or writing what would be slander or libel by anyone else. The general principle
under laying the defence of privilege is the common convenience and welfare of society or
the general interest of society. Privileges can be absolute or qualified.

3.1.Absolute Privilege: a statement is said to have absolute privilege when no action lies
whether against Judges, Counsel, Jury, Witnesses or Parties, for words spoken in the
ordinary course of any proceedings before any Court or Tribunal recognized by law. It
is manifest that the administration of justice would be paralyzed if those who were
engaged in it were liable to actions of libel or slander upon the imputation that they
had acted maliciously and not bonafide. Thus, all witnesses or parties speaking with
reference to the matter before the Court have privilege for their evidence, whether oral
or in writing, relevant or irrelevant, malicious or not. The privilege extends not only
to words spoken but also to documents properly used and regularly prepared for in the
proceedings. Certain statements are allowed to be made when the larger interest of the
community overrides the interest of the individual. No action lies for the defamatory
statement even though it may be false or malicious. In such cases, the public interest
demands that an individual’s right to reputation should give way to the freedom of
speech. This privilege is provided to
i) Parliamentary proceedings,
ii) (ii) judicial proceedings,
iii) (iii) Military and Naval proceedings and
iv) (iv) State proceedings

3.2. Qualified Privilege: a statement is said to have a qualified privilege when no action
lies for it even though it is false and defamatory, unless the plaintiff proves express
malice. There are occasions and circumstances when speaking ill of a person or
uttering or writing words defamatory is not regarded as defamatory in law and for the
reason that public interest demand it. It is regarded sometimes right and in the interest
of the public that a person should plainly state what he honestly believes about a
certain person and speak out his mind fully and freely about him. Such occasions are
regarded as privileged and even when the statement is admitted or proved to be
erroneous; its publication will be excused on that ground. For communications made

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 GENERAL PRINCIPLES OF DEFAMATION

in the course of legal, social or moral duty, for self-protection, protection of common
interest, for public good and proceedings at public meetings, provided the absence of
malice is proved. Also, there must be an occasion for making the statement. To avail
this defence, the following things must be kept in mind:
(i) The statement should be made in discharge of a public duty or protection of an
interest
(ii) Or, it is a fair report of parliamentary, judicial or other public proceedings
(iii) The statement should be made without any malice
4. Consent:
Where the defendant has communicated or published certain material with the consent
of plaintiff or plaintiff himself has invited the defendant to repeat the defamatory
words, the defendant can plead this defence of consent. If a person telephones a
newspaper with false information about himself, he would not be able to sue in
defamation when the newspaper publishes it.
5. Apology:

Apology is available as a defence in actions for libel against newspapers and another
periodical publication, if the newspaper inserts a sufficient apology and adheres to certain
other conditions. When there is an apology and an acceptance thereof, the defendant can
resist plaintiff's suit for reimbursement for defamation. Nevertheless, there has been no
similar legislation in India. In past judgments it is been held that even if the plaintiff accepted
an apology and withdraw a criminal prosecution for defamation he can still sue the defendant
in a civil suit. In case of L. D. Jaikwal v. State of Uttar Pradesh15, Honourable Supreme
Court has commented on apology and observed that, “We are sorry to say we cannot
subscribe to the ‘slap-say sorry-and forget’ school of thought in administration of contempt
jurisprudence. Saying sorry does not make the slapper poorer, nor does the cheek which has
taken the slap smart less upon the said hypocritical word being uttered through the very lips
which not long ago slandered a judicial officer without the slightest compunction. Apology
shall not be paper apology and expression of sorrow should come from the heart and not from
the pen. It is one thing to say sorry, and it is another to feel sorry.

15
1984 AIR 1374

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NEWSPAPER LIBEL:

Newspapers are subject to the same rules as other critics. They have no special right or
privilege. In spite of the latitude allowed to them, they have no special right to make unfair
comments, or to make imputations upon a person's character, or imputations upon or in
respect of a person's profession or calling. If a libel appears in a newspaper, the proprietor,
the editor, the printer, and the publisher are liable to be sued either separately or together.
Press and Registration of Books Act, 1867, [PRB Act] defines ‘Editor’ as the person who has
control over selection of material, which is to be published. Further, there is presumption
under section 7 of the PRB Act. The presumption is regarding awareness of contents of
newspaper and it can be raised only against the Editor whose name appears on the copy of
said newspaper. It cannot be raised against other Editors like the News Editor or Resident
Editor whose names do not appear in the declaration printed on the copy of said newspaper.
In case of Gambhirsinh R. Dekare versus Falgunibhai Chimanbhai Patel and others16,
Honourable Supreme Court has ruled down that the Editor whose name is published in said
newpaper is liable for civil and criminal liability, if published matter is defamatory.

16
2013 CLJ 1757 SC

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DAMAGES AND COST:

Damages are of two kinds, general and special.

1. General damages are such as the law will presume to be the natural and probable
consequences of the defendant's words or conduct. They arise by inference of law and
need not, therefore be proved by evidence.
2. Special damages, on the other hand, are such as the law will not infer from the nature
of the words themselves, they must, therefore, be specially claimed on the pleadings
and evidence of them must be given at the trial.

In India, if words have been proved to be defamatory of the plaintiff, general damages will
always be presumed since all defamatory words are actionable per se. Whether special
damage has also been suffered, that will remain a matter of proof, and if so proved, the
plaintiff will be entitled to recover on that score along with general damages. The Court may
come to the conclusion that although the action was well founded, the damages claimed were
excessive or that it was extremely difficult for the plaintiff to have valued his claim at a
particular figure. The damages are to be determined and quantified, depending upon various
factors and circumstances. These factors cannot be found in any book or literal work. But,
this issue is addressed in case of Mr.Umar Abid Khan and others v. Vincy Gonsalves alias
Vincent Gonsalves and others17. In paragraph 35 of the precedent, defamation and freedom
of speech is distinguished in words as- “Every person has a legal right to preserve his
reputation inviolate. In law, it has been accepted as personal property and it is just in rem a
right good against all the word. A man’s reputation is property and degree of suffering
occasioned by the loss of reputation as compared to that occasioned by loss of property, is
greater. The Court therefore must draw a balance between freedom of speech and protecting
the reputation of an individual” . Further, Honourable Panaji Bench of Honourable Bombay
High Court has ruled down in aforesaid precedent [Umar’s case] that the plaintiff in
defamation action is entitled to recover as general compensatory damages, such sum as will
compensate him for the wrong he has suffered. That sum must compensate him for the
damage to his reputation; vindicate his good name; and take account of the distress, hurt and
humiliation which the defamatory publication has caused. Then, numbers of factors are
enlisted to determine amount of damages, which is to be awarded.

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2010(1) ALL MR 74

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 GENERAL PRINCIPLES OF DEFAMATION

Those factors are

(i) the gravity of allegation,

(ii) (ii) the size and influence of the circulation,
(iii) (iii) the effect of publication,
(iv) (iv)the extent and nature of claimant’s reputation and
(v) (v) The behaviour of defendant and claimant plaintiff. These factors lend us upper
hand to decide the perfect amount of damages and costs.

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 GENERAL PRINCIPLES OF DEFAMATION

CONCLUSION:

The laws in place to counter the menace of defamation are both satisfactory and reasonable
but in certain areas need to be made more stringent so as to dissuade the celebrity crazy
media from want only publishing and broadcasting fraudulent, defamatory matter in order to
make instant money. Thus the protection of privacy and the prevention of press harassment is
also an important issue which needs to be redressed with the better implementation of laws
already existing. Since no cause of action survives the defamed person’s death, it is clear that
reputation is merely a transitory interest, which, by way of the defences available, has to be
balanced against the public interest. Similarly fair comments protect the press when
expressing their views on the actions of politicians, public servants and others in the public
eye, provided they are true. Defamation does have significance and a very strong one at that
as it protects a right which is essential to for the members of society to co-exist. Obviously, if
people do not respect that right and are allowed to say and publish whatever they want
without substantiating it with an honest reason to believe, then there would be no harmony in
society, insecurity would be rampant and society would be in shambles. However there exists
the question of balancing the interest of both the parties concerned. This debate on how to
achieve the correct balance between the individual’s interest in his good name and freedom of
speech is a vital attribute of democratic society. However, while trying to resolve that debate
via the development of the tort of defamation, the courts are hindered by the procedural game
which characterises many libel actions, the unpredictability of the jury, and the absence of
developed torts of invasion of privacy and breach of confidence. Thus more changes need to
be taken which do away with the superfluous procedural games thus leaving behind only the
core of the tort to be implemented. However, the tort of defamation has an ancient history and
a capacity for survival which shall outlive more topical concerns.

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 GENERAL PRINCIPLES OF DEFAMATION

TABLE OF CASES

 Parmiter v. Coupland, [1840] EngR 168

 Scot v. Sampson, (1882) 9 QBD 491
 Monson V. Tussauds, Ltd [1894] 1 QB 671
 D.P.Choudhary v. Manjulata, AIR 1997 Raj 170
 South Railway Co v. Ramakrishna, ILR (1890) 13 Mad 34
 Hulton Co. V Jones, [1909] 2 KB 444
 Fanu v. Malcomson, [1848] 1 HLC 637
 Prameela Ravindran v. P. Lakshmikutty Amma, AIR 2001 Mad 225
 R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264
 Mahendra Ram v. Harnandan Prasad, AIR 1958 Pat 445
 Arumuga Mudaliar v. Annamalai Mudaliar, (1966) 2 MLJ 223
 Manmohan Kalia versus Yash, (1984)3 SCC 499
 Capital and Countries Bank v. Henty & Sons, 1882 7 AC 741
 Kokan Unnati Mitramandal and Others versus Bennett Coleman & Company Limited
and Others, 2012(2) MLJ 338
 L. D. Jaikwal v. State of Uttar Pradesh, 1984 AIR 1374
 Gambhirsinh R. Dekare versus Falgunibhai Chimanbhai Patel and others, 2013 CLJ
1757 SC
 Mr.Umar Abid Khan and others v. Vincy Gonsalves alias Vincent Gonsalves and
others, 2010(1) ALL MR 74

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 GENERAL PRINCIPLES OF DEFAMATION

REFERENCES

 Law of Defamation and Malicious Prosecution by V.Mitter

 The Law of Torts by Ratanlal and Dhirajlal
 The Law of Torts by R.K.Bangia
 A digest of the law of libel and slander by W.Blake.Odgers
 www.wikipedia.org
 www.lawnotes.in
 www.lawteacher.net
 www.Kellywarner.com
 www.legalserviceindia.com

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