Authored By- Shivani Madne
Dr. Babasaheb Ambedkar College of Law Nagpur
“It takes many good deeds to build a good reputation, and only one bad one to lose it”.
This statement by Benjamin Franklin means that the bad you've done is remembered over the nice. Irrespective of what good you are doing, a bad reputation will always be a component of your history. Reputation is one of the most valuable assets in human’s life. We live in an age where fake news and lies can have devastating effects on our society and that’s why we have defamation laws to protect people whose careers and reputations have been damaged by harmful and malicious statements. Defamation, slander and libel. All encompass a deceptively simple area of law. This paper dives deep into the tort of defamation. This paper primarily focuses on the difference between libel and slander. Libel and slander are just two different types of defamation which comes under the umbrella term for this area of law. From a layperson’s perspective Defamation generally means that there’s a lie being told but the law is more specific than what we generally think of defamation. This paper aims to critically examine concept of defamation and its aforementioned types. In a democratic state like ours, free speech and expression is considered to be a fundamental human right which is subject to certain restrictions; defamation is one of them. This paper explores the term defamation and a relative analysis of the defamation laws in India. It also discusses the defamation trial between actor Johnny Depp and actress Amber Heard. It’s a high profile defamation case whole world is talking about and causing social media hysteria. Polls reportedly showed that Americans showed more interest in this trial than the ongoing war in Ukraine.
In today's virtual world, it has become easier than ever for the users to share false fallacious information about a person. Not all torts cause bodily harm. Some puts person’s reputation at risk and such damage are punishable by law. It is pretty widely accepted that free speech is an essential part of a democratic society, and allows society to develop and progress but the question lies in how far we take it. Where do we draw the line? People often forget that freedom of speech also means being accountable for what you say. This area of law is called defamation law. The main objective of the law on defamation is to safeguard person’s reputation and dignity in the society. By definition, defamation means “Any type of deliberate false communication, either written or spoken, that can harm a person’s reputation or decreases the respect, regard or confidence of a person; or induces disparaging, or a hostile or disagreeable opinion or feeling against a person is known as defamation.”
According to Dr. Winfield, "Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally, or, which tends to make them shun or avoid that person."
In certain cases, it may be possible to bring legal proceedings against those responsible for defamatory statements or comments. Defamation is an offence under both the civil and criminal law. Under civil law, defamation is punishable under the Law of Torts by imposing punishment in the form of damages to be awarded to the claimant i.e. monetary compensation can be claimed from the defendants. Under civil law, defamation is punishable under the Law of Torts by imposing punishment in the form of damages to be awarded to the claimant i.e. monetary compensation can be claimed from the defendants. Under the Criminal law, Defamation is a bailable, non-cognizable offence and compoundable offence. Section 499 and 502 of the Indian Penal Code, 1860 describes defamation and its exceptions.
What is defamatory statement?
“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, calling or office, or to cause him to be shunned or avoided in society for maintaining a suit for defamation, it is necessary that the plaintiff must have suffered some injury to his reputation.” The very first element of defamation is whether the statement is defamatory or not. The purpose of defamation law is to enable a person to restore or vindicate his lost honor due to defamatory words.
Essentials of defamation
We can understand all elements of defamation through a definition which says, Defamation is a false statement published to a third party, by the actor, of and concerning the plaintiff, tending to cause damage to the plaintiff’s reputation.
1) False Statement
To meet this element, the statement must be able to be proven true or false. This means that opinions do not qualify. The opinion is something which is far more subjective. Lines between stating an opinion versus a fact can be vague For example, someone says that a eatery has the worst tasting lasagna in the entire city. That is an opinion and thus the eatery proprietor cannot sue for defamation. In contrast, if someone says that the lasagna at that restaurant killed his son, that is a statement that can be shown to be true or false.
2) Published to a third party
The statement must be made to someone other than the plaintiff. If you privately go up to someone and you falsely accuse them of murder, the plaintiff cannot sue for defamation. Nonetheless, if someone overhears the conversation, then this element is met. It is to be noted that self-publication doesn't count. For example, after the private discussion, the plaintiff tells everyone about the discussion he had with the defendant. Because the plaintiff self-published the untrue statement, this element is not satisfied. Publication can either be intentional or negligent.
3) By the actor
The defendant must be the person who made the statement. However, there is an exception referred to as the repeater rule. If someone repeats a defamatory statement, the repeater is equally liable for defamation. For example, suppose that Stranger overhears the conversation accusing the plaintiff of Murder. Stranger then sends an email, quoting what was said. Stranger becomes liable for defamation because he is a repeater.
4) "Of and concerning" the plaintiff.
Generally, this element is not at issue in a defamation case But there are some cases where the element is contested. In one type of case, a statement may not name the plaintiff, but everybody knows who was being discussed. For example, someone says that a former President of Ukraine vended government secrets. Since this can only be one person, it doesn't count that the person's name wasn't used. Furthermore, a statement must be directed at an identifiable plaintiff. Again, for example, a statement that says all men are fraudulent cannot be brought by some man
5) Tending to cause damage to plaintiff's reputation.
This is what we call defamatory. To be defamatory, the person must be held up to scorn, ridicule, and contempt by a right-thinking group of people. Suppose, for example, that an archaeologist claims that another professional can't read ancient Greek, even though that person's entire career is based on translating ancient Greek. Though most of society wouldn't think this is defamatory, other archaeologists would. Therefore, this would qualify as a defamatory statement.
What is Libel?
Libel could be written or pictorial false statement which unjustly seeks to damage someone's reputation. Any defamatory writing; a lampoon; a satire can amount to libel. To call a person a murderer, a fraudulent, a Rapist, an alcoholic, a liar, a thief, a sexual offender, etc., can be considered grounds for a libel case.
In Youssoupoff v. Metro Goldwyn Mayor Pictures Ltd,' it had been held that talking films are always libel as the scenes depicted on the screen are of permanent nature. But the case did not decide this that the defamatory matter contained not in the talkie but in the pictorial part is libel or not. Slesser LJ stated the ratio decidendi of the case as follows: "there can be no doubt, that so far as the photographic part of the exhibition is concerned, that is a permanent matter to be seen by the eye and is the proper subject of an action for libel, if defamatory."
An Australian Court in Meldrum v. Australian Broadcasting Corporation,' has held that broadcasting from a script was slander. The Defamation Act, 1952 has, however, modified the common law in England by enacting "for the purpose of the law of libel and slander, the broadcasting of words by means of wireless telegraphy shall be treated as publication in permanent form".
Libel actionable per se
It means that in an action for libel plaintiff is not required to prove any damage. Any injury to one's reputation is actionable per se whether it causes any special damage to the plaintiff or not.
Slander is the spoken or transitory form of defamation of character. It’s a legal term that refers to a falsehood presented as true which could harm the reputation of a person or an entity. Slander also encompasses body gestures as in case if sign language. We can say, Slander is temporarily uttered or gesticulated. Slander is not actionable per se. In action for slander the plaintiff, has to prove some special damage.
Slander is actionable per se
In the following circumstances slander is actionable per se:-
1. Where the words impute a crime
2. Where the words complained of ate words of vulgar abuse
3. Where they impute unchastity to a woman
4. Where they tend to degrade the character of the plaintiff in his caste
In case of Paravathi v Mannar, the defendant abused the plaintiff and said that she was not legally married wife of her husband, but a woman who has been ejected from several places for unchastity. It was held that the defendant was liable though no special damage was proved.
In Lumby v Allday, it was held that where the words merely charge him with some misconduct outside his office, or not connected with his special profession or trade, they will not be actionable. In this case, the plaintiff was clerk of a gas company, and the defendant spoke to him you are a fellow, a disgrace to the town, unfit to hold your situation, for your conduct with whores. It was held that these words were not actionable.
The biggest English libel trial in 21st Century: Johnny Depp v Amber Heard
Legal trouble began there were two defamation cases that Depp filed first one was against this tabloid called the sun. In 2018 they published an article calling him a wife beater. The judgment came in November 2020 and the Depp lost this case. The court case that was going on between Amber Heard and Johnny Depp was not a divorce case. This was the case of defamation. During their separation a very important agreement was signed. And it was mentioned, that out of both the parties cannot say directly, indirectly, written, or verbally anything about this relationship or one another. Later, Washington Post published an op-ed which was written by amber heard. Heard wrote an article titled: “I spoke up against sexual violence — and faced our culture’s wrath. That has to change.” The name of Johnny Depp wasn't mentioned anywhere. But when they got divorced, they signed an agreement at that time that they cannot make insulting remarks directly or indirectly to one another. And 2 years was mentioned specifically in this post. Two years was the time when Amber Heard filed the divorce. The way the post was written, anybody can get an idea that it was about Johnny Depp because Amber Heard got married only once. As soon as the article was published, in 2019 Johnny Depp filed a case in Virginia court. Depp sued her for this article for 50 million dollars. In response to Depp’s lawsuit, heard filed a counter suit for hundred million dollars. The seven member jury ruled in Depp’s favor. The jury awarded Depp the damages of 15 million dollars, 10 million in compensatory damages and 5 million in punitive damages. However the jury also found that Depp's lawyer had defamed Heard so it awarded her 2 million in compensatory damages. The court said that the three statements posted by Amber Heard in Washington Post were proved by Johnny Depp that he was being defamed by these statements and he faced a huge loss due to this.
Difference between Libel and Slander
1. Libel is written defamation; Slander is spoken or oral defamation.
2. Libel is both civil wrong and criminal offence; Slander is a civil wrong only.
3. In libel the law presumes that the person defamed has suffered damage; slander is actionable only when special damage can be proved to have been its natural consequence, or when it conveys certain imputation.
4. Libel shows greater deliberation and raises a suggestion of malice; slander may be uttered in the heat of the moment and under a sudden provocation.
5. In libel, the actual publisher may not be liable; in slander, the actual publisher must necessarily guilty.
In today's virtual world, it has become easier than ever for the users to share false fallacious information about a person. Every day we read bunches of things online on social media, which may happen to be true, often is not that’s why Defamation laws are very essential.