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DEFAMATION
According to Vivienne Harpwood, defamation consists of publishing a
defamatory statement which refers to an identifiable claimant, without lawful
justification. According to Winfield, defamation is the publication of a
statement which reflects on a persons reputation and tents to lower on a
persons reputation of right thinking members of society generally or tends
to make him shun or avoid him. So whenever there is an injury to the
reputation of a person, he may institute civil proceedings for damages
against the wrongdoer.
Libel and Slander
Defamation consists of the torts of libel and slander. Libel is representation
made in some permanent form e.g. writing, printing, picture or statue etc.
slander is the publication of a defamatory statement in a transient form e.g.
it may be spoken by words or gestures.
Distinction between Libel and Slander
1. Libel is a written defamation addressed to the eye. Slander is a spoken
defamation addressed to the ear.
2. Libel is in some permanent form produced with deliberations. Slander
is defamation in transient form.
3. At common law a libel is a criminal offence as well as a civil wrong but
a slander is a civil wrong only. Under the Indian Law both are
considered as criminal offences.
4. A libel is a tort of actionable per se. A slander is actionable only when
special damage can be proved to have been its natural consequences
or it conveys certain imputations.
In exceptional cases slander is actionable without proof of special damage.
They are a) imputation of criminal offence punishable with imprisonment b)
imputation of disease c) imputation of unchastity d) imputation of unfitness
of incompetence.
The important reasons are assigned for the above distinctions are
a. In a libel the defamatory matter is in some permanent form, a slander
is in its nature transient
b. A slander may be uttered in the heat of the moment and a sudden
provocation, the reduction of the charge into writing and its

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subsequent publication in a permanent form show greater deliberation


and raise a suggestion of malice.
c. A libel conduces to breach of peace a slander does not.

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Essentials of Defamation
1. The statement must be defamatory:
Defamatory statement is one which tends to injure the reputation of the
plaintiff. It must not only be false but also defamatory. The defamatory
statement could be made in different ways: it may be oral, in writing, printed
or by the exhibition of a picture, statue of by some conduct. The statement
must be such which tends to lower a person in the estimation of the right
thinking members of society generally or which tends to make them shun or
avoid that person. Whether a statement is defamatory or not thus depends
upon how the right thinking members of the society are likely to take it. 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
shared or approved by the fair minded members of the society generally.
Thus any statement may be defamatory which exposes the plaintiff to
hatred, ridicule, contempt or tends to injure him in his profession or trade or
causes him to be shunned or avoided by the right thinking members of
society generally.
In Yousoupoff v. MGM Picture Ltd, the plaintiff, a Russian Princes was falsely
imputed by a cinematograph film that she had been raped or seduced by the
notorious monk, Rasputin. The court held that this tendered to make the
plaintiff be shunned and avoided in the estimation of right thinking persons
of the society generally.
In DP Choudhary v. Manju Lata, a local daily published a statement that
Manjulata a girl of 17 years and a student of BA, had run away with a boy
named Kamalesh on the pretext of attending night classes in her college. The
court found that the statement was false so held liable in an action.
Innuendo
A statement may be prima facie defamatory and that is so when its natural
and obvious meaning leads to that conclusion. Sometimes, the statement
may prima facie be innocent but because of some latent or secondary
meaning, it may be considered to be defamatory. When the natural and
ordinary meaning is not defamatory but the plaintiff wants to bring an action
for defamation he must prove the latent or the secondary meaning i.e. the
innuendo which makes the statement defamatory. For e.g. X published a
statement Miss Y had given birth to a child. Here the statement in its natural

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meaning is not defamatory. But it may become defamatory Y pleads that she
was not married yet.
In Cassidy v. Daily Mirror News Paper Ltd, the defendant published in a news
paper a photograph of Mr. M and Miss C together with the words, Mr. M the
race horse owner and Miss C whose engagement has been announced. This
statement was false as they were already married. In an action by the
plaintiff, the wife of Mr. M it was held that the publication was capable of
conveying a meaning defamatory of the plaintiff viz. that she was not lawful
wife of Mr. M and was living with him in immoral cohabitation. The
defendants were therefore held liable.
When the words are considered to be defamatory by the persons to whom
the statement is published, there is defamation even though the person
making the statement believed it to be innocent. So held in Cassidy case.
2. The statement must refer to the plaintiff:
In an action for defamation the plaintiff has to prove that the statement of
which he complaints 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 referred to the plaintiff,
the defendant is nevertheless liable.
In Newsted v. London Express Newspaper Ltd, the defendants published an
article stating that Harold Newstead, a chaberwell man had been convicted
of bigamy. The story was true of Harold Newstaed, a Camberwell barman.
The action for defamation was brought by another Harold Newstead, a
Camberwell Barber. As the words were considered to be understood as
referring to the plaintiff, the defendants were held liable.
When the words refer to a group of individual or a class of persons, no
member of that group or class can sue unless he can prove that the words
would reasonably be considered to be referring to him. Thus if a man wrote
that all lawyers were thiefs no particular lawyer could sue him unless there
was something to point to the particular individual.
An individual unless the group in question has legal identity for example is a
company and can therefore sue for loss of the groups reputation, no action
will stand unless a) the class is so small that the claimant can establish that
the statement must apply to every member of the class or b) the claimant
can show that the statement refers to him or her directly.

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The leading case is Knuppfer v. London Express Newspaper ltd, the appellant
was the member of a party the membership of which about two thousand
out of which twenty four members including the plaintiff were in England.
The respondents published a statement of the party as a whole. Some of the
appellants friends considered the article to be referring to him. It was
however held that since the article referred to such a big class, most of the
members of which are resident abroad, it could not reasonably be considered
to be referring to the appellant and the respondents were not liable.
In Dhirendra Nath v. Rajat Kanti, it was held that when an editorial in a
newspaper is defamatory of a spiritual head of a community, an individual of
that community does not have a right of action.
In AIADMK, Madrs v. K. Govindan Kutty, the Court held that to defame a dead
person is not a tort and the maxim actio personalis moritur cum persona will
applies in such kind of cases.
3. The statement must be published
Publication means making defamatory statement known to some person
other than the person defamed and unless that is done no civil action for
defamation lies. Communication to the plaintiff himself not enough because
defamation is injury to the reputation and reputation consists in the
estimation in which others hold him and not a mans own opinion of himself.
For e.g. A writes to B and tells him falsely that C is a cheat, this is a
publication but if A write to C and tells him that he is a cheat, this is not a
publication.
In Arumuga Mudhaliar v. Annamalai Mudhaliar, where two persons jointly
write a letter containing defamatory matter concerning the plaintiff and sent
the same by registered post. The court held that there was no publication.
In Mahendra Ram v. Harnam Prasad, the defendant wrote a defamatory letter
in Urdu to the plaintiff. The same was read over to him by a third person as
the plaintiff did not know Urdu. It was held that unless the defendant knew at
the time of writing letter that the plaintiff did not know Urdu language and it
would necessitate reading of the letter by a third person he would not be
liable.
In TJ Ponnen v. MC Varghese., it was held that communication between
husband and wife or vice versa is not amount to publication. In this case the
husband wrote a letter containing defamatory statements against her father

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in law, MC Varghese. An action by MC Varghese was rejected on the basis of


sec.122 of Indian Evidence Act, i.e. it was a privileged communication.
DEFENCES
1. Justification by truth:
In a civil action for defamation, truth of the defamatory matter is a complete
defence. The principle is that the law will not permit a person to recover
damages in respect of an injury to a character which he does not or ought
not to possess. In Vimal Kumar v. Desdwikar, the plaintiff alleged that the
defendant published a circular wherein it was stated that the plaintiff, a
Minister was arrested for causing nuisance in management of school and he
also took share from salary of teachers. The allegations found to be correct
by evidence of students and teachers. Thus the act of the defendant was
held to be non-libelous.
In cases where the defamatory statement contains several charges and
some of them are found true and some not, the court held that if the
statement is proved to be substantially true, it does not matter if it is
incorrect on some immaterial detail. So held in Alexander v. NE Rly Co. case.
2. Fair Comment:
The second defence to an action for defamation is that of fair and bonafide
comment. Following are the essential requisites of fair comment:
a. It must be a comment and not statement of facts: comment means an
expression of opinion based on certain facts. The facts must be true. If
the facts are not true, the comment thereon will not come within the
ambit of good defence.
b. Comment must be fair and bonafide: the word fair means honest and
also of relevant comment or in other words it must be genuine or real
comment
c. The matter commented upon must be of public interest: whether it
amounts to a public interest or not will depend upon the facts and
circumstances of each case
3. Privilege
There are certain occasions when the law recognizes that the right of free
speech outweighs the plaintiffs right to reputation, the law treats such
occasions to be privileged and a defamatory statement made on such
occasions is not actionable. These privileges are of two categories:

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a. Absolute Privilege
In matters of absolute privilege no action lies for the defamatory statement
even though the statement is false or has been made maliciously. In such
cases public interest demands that an individuals right to reputation should
give way to the freedom of speech. These cases are
i. Parliamentary Privilege: Article 105 of Indian Constitution provides this.
ii. Judicial proceedings - it provides under the Judicial Officers Protection Act,
1850
iii. State communications: a statement made by one officer of the state to
another in the course of official duty is absolutely privileged for reasons of
public policy.
b. Qualified Privilege
In certain cases the defence of qualified privilege is also available. To avail
this defence the defendant has to prove the following a) the statement was
made on a privileged occasion i.e. was in discharge of duty or protection of
interest or it is a fiar report of parliamentary or other public proceedings b)
the statement was made without malice.
Difference between absolute and qualified privilege.
1. In absolute privilege the occasion itself is privileged but in the latter
occasion is not privileged unless and until the defendants proves it.
2. In absolute privilege the malice is irrelevant, but in the latter it is
relevant.
3. Absolute privilege is irrebuttable but the latter is rebuttable.
DEFAMATION AND INSULT
The words of defamation is distinct from insult caused by words, signs or
representations in that in the former the defendant injures the plaintiffs
estimation of reputation by others or what others think about him, while in
the latter the defendant hurts the dignity or self esteem of the plaintiff or
what the plaintiff thinks about himself. The former requires publications while
in the latter it is not necessary. The former is an actionable wrong while the
latter is not so actionable unless accompanied by defamatory words.
REMEDIES
a. Injunction

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b. Damages

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TRESPASS
Tort of trespass is one of the oldest torts in English law. The basis of this tort
is that any direct invasion of protected interest from a positive act was
actionable subject to justification. If the invasion was indirect though
foreseeable or if the invasion was from an omission as distinguished from a
positive act, there could be no liability in trespass though the wrongdoer
might have been liable in some other form of action. Recent development
has led to further limitation. If the invasion is unintended though direct
resulting from a positive act, there will still be no liability if the conduct of the
defendant was reasonable or even if it was unreasonable if the invasion was
an unforeseeable consequence. See Flower v. Lanning and Letang v Cooper
In modern law the trespass takes three forms: trespass to person, to land
and to goods. All three torts have the same characteristics, they must be
committed intentionally, cause direct and immediate harm and are
actionable per se, i.e. without proof of damages.
TRESPASS TO PERSON
BATTERY
According to Winfield a battery is the intentional and direct application of
force to another. In Eisener v. Maxwell case the term defined as the
application of force to the person of another without lawful justification
amounts to the wrong of battery. This is however trivial the amount or nature
of the force may be and even though it neither does nor is intended nor is
likely or able to do any manner of him. So even to touch a person without his
consent or some other lawful reason is actionable. No anger or hostility is
essential to liability; an unwanted kiss may be a battery. Thus intentionally to
bring any material object into contact with anothers person is sufficient
application of force to constitute a battery for example to throw water upon
him, or to pull a chair from under him whereby he falls to the ground or to
apply a tone-rinse to his scalp. It is also probably a battery to project heat,
light, noise or vapours to cause physical injury or personal discomfort.
Thus to constitute a tort of battery two things are essential, they are:
1. Intention: the intention which is required in battery is not the intention to
hurt the claimant but the intention to apply physical force. For e.g. In Potts v.
North West RHA, it was held that a surgeon was performs an operation or

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other medical procedure without the consent of the patient commits tort of
battery though in such cases there may be an intention of the well being of
the patient.
Even if the defendant is intended to injure someone other than the claimant,
this could be still amount to battery if as a consequence the claimant suffers
some application of force. In Livingstone v. Minister of Defence, the claimant
succeeded in battery when he was hit by a bullet intended by a soldier for
someone else.
2. Application of Force: The application of force against another person
without lawful justification is another necessary ingredient of battery. Any
physical contact with the body of or his clothing of a claimant is sufficient to
amount to force. If there is a forcible contact no damage is necessary for
trespass is actionable perse.
Where there is consent to the contact there is no battery and the same is
true where the claimant though not in fact consenting so conducts himself as
to lead the defendant reasonably to believe that consent exists. So held in O
Brien v. Gunard.
ASSAULT
Assault is putting a person in fear of an immediate battery. It is an unlawful
attempt to do a bodily hurt to another coupled with the present ability and
intention to do the act. According to Winfield assault is an act of the
defendant which causes the claimant reasonable apprehension of the
infliction of a battery on him by the defendant. Probably mere words do not
constitute an assault however insulting or even menancing, the intent to do
violence must be expressed in threatening acts not merely in threatening
speech. Thus to shake ones fist in a mans face is an assault, to shake it at a
man who by his distance from the scene of action is inaccessible to such
violence is not an assault.
In Stephens v Mayors, the defendant advancing with clenched fist upon the
claimant at a parish meeting, was stopped by churchwarden who sat next by
one to the claimant. The court held that it amount to an assault. It has been
held that immediate intention to carry out his threat into effect is the most
important factor. Physical touching or impact is not needed in the case of
assault. The touching which is needed is that there must be reasonable
apprehension of immediate injury or violence to the plaintiff. A conditional
threat is no assault nor is a mere verbal threat unless there is an immediate

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intention and a present ability to do the act. An Indian case on this point is
Bavisetti V S Rao v. Nandipati, in this case the plaintiff was in arrears of land
revenue amounting to rs.11.60. The village munsiff vent to his residence to
collect the land revenue. On demand the plaintiff pleaded his inability to pay.
He then told the plaintiff that his ear rings would be detrained for default in
the payment of land revenue and called a gold smith to take out plaintiffs
ear rings. On arrival of the gold smith another person paid off the amount of
arrears. The court held that it was not the case of assault since after the
arrival of gold smith the defendant said nothing and did nothing and that the
threat of use of force by the gold smith to the plaintiff was too remote a
possibility to have put the plaintiff in fear of immediate or instant violence.
But there need be no actual intention or power to use violence for it is
enough if the plaintiff on reasonable grounds believes that he is in danger of
it. Thus it is actionable to point a gun at a man in a threatening manner even
though to the knowledge of the defendant but not to the plaintiff it is
unloaded. So held in R v. St. George case.
Does battery include assault?
Many authorities are of the opinion that battery includes assault, but it is not
always true. Fear or reasonable apprehension of force as harm on the part of
plaintiff is a necessary ingredient of assault. So whenever fear or reasonable
apprehension of force or harm on the part of the plaintiff results in battery
then assault is included in the battery. But where battery is committed
without fear or apprehension of force or harm on the part of the plaintiff then
battery does not include assault. For e.g. A blow from behind inflicted by an
unseen assailant. In such a case battery does not include assault.
DEFENCES AGAINST ASSAULT AND BATTERY
Expulsion of trespass: when a person enters upon the property of another
with force without permission and refuses to go out quietly the owner is
permitted to use force as may be reasonably necessary but if the trespasser
enters quietly the owner must request him to retire before using force.
Lawful correction: Assault or battery may be justified on the ground that it
was done in exercise of parental authority i.e. for the correction of a pupil,
child, apprentice or a soldier.
Retaking of goods: when a person wrongfully takes the goods out f the
possession of rightful owner or any other person authorized on his behalf

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may first request the wrong doer to deliver the property and if he refuses the
owner or his authorized agent may use reasonable force as necessary.
Preservation of pubic peace: if any person disturbs a public meeting, a
lawful game or a public worship he may be lawfully removed.
Statutory Authority: an assault may be justified on the ground that it was
done in serving legal process or searching any premises under any law.