Defamation and its Essentials

Defamation and its Essentials

According to Winfield. "Defamation is the publication of a statement which tends to lower a person in the estima tion of right-thinking members of society, generally, or which tends to make him shun or avoid that person."

In S.N.M. Abdi v. P.K. Mahanta (A.I.R. 2002 Gau. 75) it was held that in order to be defamatory, a publication must tend to lower the plaintiff in the opinion of men whose standard of opinion the Court can properly recognise or tend to induce them to entertain an ill-opinion of him.

Essential Ingredients of Defamation

Whether defamation consists of libel or slander, the following req uisites are common to both and must be proved by the plaintiff :

(1) The statement must be defamatory.

(2) The statement must refer to the plaintiff

(3) The statement must be published.

(1) The statement must be defamatory-The words must be defamatory Le the words must tend to lower the plaintiff's reputation in the estimation of right-minded persons, or must tend to cause him to be shunned or avoided. So, any words will be deemed to be defamatory which: 

(a) expose the plaintiff to hatred, contempt, ridicule, obloquy, or 

(b) tend to injure him in his profession or trade, or 

(c) cause him to be shunned or avoided by his neighbours

Lord Atkin laid down the test "would the words tend to lower the plain tiff in the estimation of right-thinking members of the society generally."

(2) The statement must refer to the plaintiff.-

It sufficient if plaintiff is described by the initial letters of his name, or even by a fictitious name provided he can satisfy the Court that the words were referred to him It is not material whether the defendant intended to refer to the plaintiff or he knew the plaintiff's existence, it is sufficient if the statement might be under stood by those who knew the plaintiff to refer to him-Le fabric s Malcolmson, (1848) 1. H.L.C. 537, 668]. The reason is that a man publish ing a libel does so at his own risk. Liability for libel does not depend upon the intention of the defamer, but on the fact of defamation. It is also not necessary that all the world must know that it refers to the plaintiff. It was sufficient f the person who knows the plaintiff understood it to refer to the plaintiff

[Bourke v. Warren; (1825) 2. C.P. 307, 309O1.

(3) The statement must be published:

 Publication means making known the matter to some person other than the plaintiff. Everything printed or written, which reflects on the character of another and published without lawful justification is defamation. Thus the publication is an essential ingred ent of defamation

Principles governing the rule of publication:

The following principles, however, govern the rule of publication of a defamatory statement:

(1) Publication to third person.-The publication must be to third per son, that is, to any person other than the defamer and the defamed

The uttering of a libel by a husband to his wife is no publication (both of them are taken to be one entity).

(1) Publication to a person understanding defamatory significance It is necessary that it is made to a person who understood the defamatory significance of the statement; who also understood that it referred to the plas

(iii) Publication is presumed in certain cases 

In all such cases, the document is so put in the way of being read or understood by someone, that it is probable that he actually read and understood it.

(iv) Unintentional publication

Publication need not be intentional, for it is sufficient that it is due to the negligence of the defendant

(v) Repetition

Every repetition of defamatory words is a new publication and distinct cause of action arised