You are on page 1of 20

ASSIGNMENT

BBA.LLB(2017-22)
LAW OF TORTS(23CLAW204)

PRIVILEGE OF DEFENCE AS
DEFAMATION

SUBMITTED TO:-DR.SRINIDHI
SUBMITTED BY:-R HARSHAD
ROLL NO:-
REG. NO.-17040142060

1
AKNOWLEDGEMENT

The present project on the Privilege as a defence to a defamation suit


‖ has been able to get its final shape with the support and help of people from various
quarters. My sincere thanks go to all the members without whom the study could not have
come to its present state.
I am proud to acknowledge gratitude to the individuals during my study and without whom
The study may not be completed. I have taken this opportunity to thank those who genuinely
helped me. With immense pleasure, I express my deepest sense of gratitude to Prof.Srinidhi,
Faculty for Law of Torts, Alliance Law University for helping me in my project. I am also
thankful to the whole Alliance University family that provided me all the material I required
for the project. Not to forget thanking to my parents without the co-operation of which
completion of this project would not had been possible. I have made every effort to
acknowledge credits, but I apologies in advance for any omission that may have inadvertently
taken place. Last but not least I would like to thank Almighty whose blessing helped me to
complete the project.

2
CONTENTS

Introduction---------------------------------------04
Aims and objectives-----------------------------05
Hypothesis-----------------------------------------05
Research methodology-------------------------05
Scopes----------------------------------------------06
Concept of defamation-------------------------07-08
Types of defamation----------------------------09
Essential elements of defamation-----------10-11
Concept of privilege as a defence-------------12-14
Cases-------------------------------------------------15-16
Research question--------------------------------17
Conclusion------------------------------------------18

3
INTRODUCTION

If a capable privilege smears to a report, it means that the person charging for
defamation must verify that the person who made the defamatory report replaced purposely,
recklessly, or with malice, hatred, spite, ill will or dislike, depending on your state's law.

The subject deal with defamation, privilege eventful as a defence in defamation suit. Refrain
tells what defamation is: Defamation is damage to the status of a person. Kinds
of defamation, it is of two types i.e.
1)Libel
2)Insult.

Then it says what privilege is:


after law recognises that the precise of free speech violates the plaintiffs right
to reputation law considers such times to be privileged. Basically, if a person had
privilege and he made a defamatory statement to someone then, he will not be liable for the
compensation or the occasions are not actionable. It includes types of privilege i.e.
1)Complete
2) Qualified.

And also, how the defence of privilege is obtainable in case of defamation. When the utter
privilege and when qualified privileged is obtainable to the defendant as a defence.
But the most important defence
is Truth. If the declaration at issue is considerably true, a defamation claim cannot
prosper because you have a right to issue honest info even if it injures
extra standing. But truth is not the only defence that may be
available. For example, if you
publish a defamatory allegation made by a party in a lawsuit, evenif it turns out that the claim
is false, a defamation claim against you cannot thrive since you had a right to report on claim
made in court irrespective of
whether they are precise. Keep in attention, though, the privileges are not
nearby in all conditions or in every national.

4
AIMS AND OBJECTIVES:

The goal of scholar, in liability to do research work to stretch a fleeting summary of


PRIVILEGE AS A DEFENCE IN CONTXT OF DEFAMATION and then study many
features of the DEFAMATION in requesting and legal clarification of the facts with the
help of some relevant cases. Here the scholar would go over the following points:

*Definition of defamation

*Types of defamation

*What is privilege

*Types of privilege

*Concept of privilege as a defence

HYPOTHESIS:

*Privilege cannot be given to everyone.

*Privilege can be used anywhere, anytime.

RESEARCH METHODOLOGY:

As the exploration work for this topic is limited to the library and books and no investigation
has been done yet. Hence, researcher in his research effort has chose the doctrinal
methodology of research. For doing the research exertion numerous sources has been
used. Researcher in the research work has trusted upon the sources like various books on,
“LAW OF TORTS” and online materials is also helpful source for the research.

5
SCOPES:

However, the scholar had tried his level best to not left any stone unturned in doing his
research work to acme the several aspects relating to the topic, but the
tort being a vast field of law and the topic of privileges as defence itself whose prospect
and cannot be narrowed, the research work has sought with some of the inevitable limitations.

6
CONCEPT OF DEFAMATION:

“Defamation” is the term used to call declarations that harm additional person’s stand up and
for which the utterer can be held liable in court. The defamation category is broad – it
includes both libel, or written statements, and slander or spoken statements. In order to be
liable for defamation, a defendant has to have statement about the plaintiff that was false, was
made to a third party, and that injured the plaintiff’s reputation. Simply, Defamation is injury
to the reputation of a person. A man’s reputation is his property and might be more valuable
than other property. And if, a person causes any injury to the reputation of any person, he
does this at his own risk, as anyone enters into the property of any others without the consent
of that person. Then he done that on his own risk. Because reputation is also a property of a
person. Every man has a right to have his reputation preserved inviolate. It is a jus in rem, a
right good against all the world. The mistaken of defamation defends standing and defences
to the wrong, truth and privilege defends the liberty of speech. The existing law relating to
the defamation is a reasonable restriction on the fundamental rights of freedom of speech and
expression conferred by Article 19(1)(a) of Indian constitution and is saved by clause (2) of
article 19.

ARTICLE 19(1) IN THE CONSTITUION OF INDIA 1949

(1) All citizens shall have the right


(a) To freedom of speech and expression.

ARTICLE 19(2) IN THE CONSTITUTION OF INDIA 1949

(2)Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or
prevent the state from making any law, in so far as such law executes rational boundaries on
the exercise of the right discussed by the said sub section in the welfares of the sovereignty
and integrity of India, the security of the state, friendly relations with foreign states, public
order, decency or morality or in relation to contempt of court, defamation or incitement to an
offence

7
The wrong of defamation may be committed either by way of writing, or its equivalent, or by
way of speech. A defamatory statement is a statement calculated to expose a person to hatred,
contempt or ridicule or to injure him on his trade, business, profession, office, or to cause him
to be avoided in the society

8
TYPES OF DEFAMATION

(1) LIBEL:

A libel is a periodical of false and defamatory declaration attention to injure the reputation
of another person without lawful justification or reason. The statement must be spoken in
some everlasting form. For example: writing, printing, pictures, statue etc. At common law a
libel is a criminal offence as well as a civil wrong. A libel is of itself breach of a right and no
real need be proved in order to sustain an action. Defamation of a person occupied to be false
till it is proved to be true. For the defamatory statement plaintiff has to claim in his complaint
that statement was made with hatred. Hatred here means that periodical was without
just cause or excuse. The motive of the defendant is not substantial in determining liability. In
case of libel, it is not necessary to prove the actual loss of reputation. It is adequate to
establish that the defamatory statement made could damage one reputation.

(2) SLANDER:

A Slander is a untrue and defamatory statement by oral words or signs tending to injure the
standing of others. A slander is defamation in a fleeting form. slander is a civil wrong only. at
common law, a slander is tortious only when special damage can be proved to have been its
natural penalties or when it conveys certain imputations. Under criminal law slander is no
offence. Slander is unlawful, save in excellent cases, only on the resistant of special damage.
Excellent cases are:

(i)Accusation of criminal offence to the plaintiff.

(ii) Transferable disease to the plaintiff, which has the effect of avoiding others from
connecting with the plaintiff.

9
The Essential Elements of Defamation

There are two types of defamation, slander and libel, which are deliberated below.
The vital essentials of either kind are:

1) a defamatory statement

2) that is “published” to someone other than the plaintiff and the defendant.

A “defamatory declaration” is any declaration that a normal person would find


harmful to their standing and character. Naturally, a judge will control if the statement
is actually defamatory. Only if it is unclear whether the statement is insulting, either
because of the context in which it was made or because of several likely
interpretations, will the jury be asked to make the valuation.

Kinds of Defamation: Slander vs. Libel

Before the entrance of contemporary media, there were only two kinds of statement
obtainable, spoken and written. Slander related to spoken defamation and libel to
written. Where defamatory statements reproduced via radio, television or the internet
fit into these groups is not a clear-cut matter. For today, it is coolest way to think of
slander as oral defamation to a minor spectator (or just one other individual) and libel
as any written defamation or oral or video defamation to a large audience. Mostly, it
is up to the judge, and not the jury, in a defamation case to regulate which category
the defamation fits into.

The Elements of Slander

There are two kinds of slander: slander and slander per se. In the primary kind of
slander, the petitioner necessity to prove the defendant thru a defamatory
declaration to at least one other person (i.e. the crucial defamation
essentials) and that the plaintiff grieved what are denoted to as “special damages” as
a result of the defamation. Special damages are actual harm like loss of customers,
being fired, or some other financial harm.

A slander per se claim does not need that the plaintiff prove special costs. This is
since slander per se claims involve groups of defamatory statements that

10
are reputed to be damaging to the plaintiff. While the groups may change a little for
state to state, and evolve over the years, some of the most mutual slander per se
categories are:

 crediting criminal conduct to the plaintiff

 saying that the plaintiff has certain types of transmittable diseases, and

 any damaging statement about the plaintiff's occupation or business.

The Elements of Libel

If the defamatory statement cascades into the category of libel, the plaintiff only
needs to show the crucial elements, i.e.

1) the defendant published a defamatory declaration about the plaintiff in written or


another form

2) and other people were exposed to the statement. There are no other necessities
because the law believes that once the periodical of a defamatory statement has
been made in written or other formats, the statement will keep on in the civic range
for a long time and remain to do damage.

11
CONCEPT OF PRIVILEGE AS A DEFENCE

” PRIVILEGE” means that a person opinion in such relatives to the fact of the case that he is
defensible in saying or script what should be slanderous or libellous in any one else. The
over-all primary fundamental of the defence of privilege is the common convenience and
welfare of society or the universal notice of society. There is positive event when the law
recognises that the right to free speech disrupts the plaintiff ‘s right to reputation:
the law treats such occasions to be privileged and a defamatory statement on such occasions
is not actionable.

TYPES OF PRIVILEGE

1. ABSOULUTE PRIVILEGE
2. QUALIFIED PRIVILEGE

ABSOLUTE PRIVILEGE:

In occasion of Absolute Privilege, no act deceits for defamatory statement yet the statement is
false or has been made with hatred. In such case, the public interest strains that an
individual’s right to standing should give way to liberty of speech. It is based upon the
attitude that interest of civic at great over interest of the individual.
Absolute privilege is of followings types:

(i) Parliamentary proceeding:

Declaration made by associates of moreover line of parliament in their place in


house, and the periodical by or under the consultant of either house of parliament of
any report, paper, scheduled, cannot be questioned in court of law. But this privilege
does not cover to anything said outside the wall of house. Under Article 105(2) of
The Indian constitution no associates of parliament will be liable to any arranged in
any court in respect of all said by him in parliament.

12
(ii) Judicial proceeding:

No act for libel or slander lies, whether in illogicality of judges, advices, witness, or
parties for words inscribed or oral in the sequence of any proceeding earlier of any
court recognised by law, even though the words written or spoken were
cruelly. Protection of the judicial officer in India is granted by the judicial officer
protection act, 1850. The guidance has also been settled absolute privilege in
reverence of any word, spoken by him in the course of beseeching the case of his
client.

(iii) Judicial and military proceeding:

Scheduled of Navel and Military trials are absolutely privileged. Statement


made earlier a navel or military court of inquiry by a military man are threatened.

(iv) State Proceeding:

A statement made by the officer of a national to another in the course of official


duty Absolutely Privileged for motives of the civic policy. Such privilege also spreads
to report made in the course of navel and military obligations. Communications
relating to the state stuffs made by one minister to additional or by a minister to the
crown is also Absolutely Privileged.

QUALIFIED PRIVILEGE:

For some cases, the defence of qualified privileged is also available. In the case of qualified
privileged it is necessary that the statement must made without malice. For this defence to
be available, it is further necessary that there must be an occasion for making
the statement. Generally, such a privilege is available either when the statement is made in
discharge of a duty or protection of an interest. Thus, to avail this defence, the defendant
has to prove the two points.

13
(i) The statement was made on a privileged occasion.

EX. A former employer has a moral duty to state a servant ‘s character to a person
going to employ the servant. The person receiving the information has also an interest in
the information. The occasion is, therefore privileged. But if the former employer without any
enquiry, publishes the character of his servant with a motive to harm the servant, the defence
of qualified privilege cannot be taken.
In the case of publication of a libellous matter in a newspaper duty to
the public got has to be proved. If such a duty is not proved, the plea of qualified privilege
fails. The plea will also fail if plaintiff proves the presence of malice in the publication of
the defamatory matter.

(ii) The statement should be without malice. In the maters 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 the defence
.The malice in relation to qualified privilege means an evil motive .The notice
with which a person published defamatory matter can only be inferred from
what he did .If it be proved that he did not believe that what he publish
was true , this is generally conclusive evidence of express malice ,for no sense of
duty desire to protect his own legitimate interest can justify a man in telling
deliberate and injurious falsehood about other , save in the exception case where
a person may be under a duty to pass on , without endorsing defamatory report
made by some other person.

14
CASES:

*D.P. CHOUDHRY v. MANJULATA,

In this case there was publication of a statement in a local daily of Jodhpur on the date of
18th Dec 1977 That, a girl named Majulata 17 years of age went out of her house on the
earlier night at 11 p.m. to attend the night classes. And despite of attending the night class she
run away with a boy whose name was Kamlesh. Manjula belonged to a well-educated family
and was herself a student of B.A. class. The news published in the local daily was not true
and had been published with utter irresponsibility and without any justification. Though the
publication was not true, therefore the publication was said to be defamatory. Such
publication had resulted in her being ridiculed and also affected her marriage
prospects. Manjulata filed a suit against the local daily of defamation. And, though
the statement was not true and defamatory. It was held that defendant was liable for
the compensation.

*SOUTH INDIAN RAILWAY Co. V. RAMAKRISHANAN

In this case, there was a railway guard was an employee of the defendant South Indian
Railway. And the guard went to a wagon for checking the tickets of the passengers.
Guard demanded for the ticket from the plaintiff in the presence of other passengers and said
that I suspect that you are travelling without ticket or with false ticket. But, the
plaintiff produced the which was in order. The plaintiff thinks
that itwas his defamation. So, he filed a suit against the South Indian Railway for the
defamation for the words spoken by the railway guard to him. But it was held that it was no
any defamation. Because the words spoken by the railway guard
were the bona fide under the circumstances of the case. so, the Railway company no liable
for defamation.

15
*HULTON Co. V. BARRISTER JONES,

-In this case Hulton publish a book in that book, there was a character named Artemus Jones.
Who was of bad character. And after reading the book people thought that the Barrister Jones
a man in existence is same character of Artemus Jones in the book. As the Artemus Jones was
a man of bad character, people thought that Barrister Jones was also a bad
Character man. Then Barrister Jones filed a suit against Hulton. The court was held that
Hulton & Co. Was liable as what is meant is not relevant but what is hit is relevant.

*CASSIDY v. DAILY MIRROR NEWSPAPER

In this case in, Daily Mirror Newspaper there was an article on horse race . Mr.Cassidy who
was married to a lady who called herself as Mrs. Cassidy or MrsCorrigan . She was known
as lawful wife of Mr. Cassidy who did not live with her but occasionally
came and stayed with her at her flat. The defendant publishes in them
newspaper a photograph of Mr. Corrigan Miss “X” with the following words: Mr MCorrigan,
the race horse owner, and Miss “X” Whose engagement has been announced. So, for this Mrs
Corrigan filed a suit against defendant for liable alleging that the innuendo was that
Mr. Corrigan was not her husband and he lived with her in immoral cohabitation.

*IN MAHENDRA RAM v. HARNANDAN PRASAD,

In this case, the defendant sent a letter to the plaintiff in Urdu lang. And plaintiff did not
know the Urdu language therefore the same was read by a third party. It was held that
defendant was not liable unless it was proved that the at the time of writing letter in Urdu, the
defendant knew that the Urdu was not known to
the plaintiff and it would necessitate reading of the letter by a third person

16
RESEARCH QUESTION

*WHAT IS QUALIFIED PRIVILEGE IN A DEFAMATION LAWSUIT?


*HOW TO DEFEND YOURSELF AGAINST A DEFAMATION CHARGE?

17
CONCLUSION

Researcher after studying Defamation, Privilege, Privilege as a defence, reach to the


conclusion that privilege is a defence in case of defamation. There are types
of privilege, and these privileges cannot be entertained by everyone. As
Absolute privilege is only for the members of parliament inside the parliament,
and to the judges, counsels, witness.
Those having privilege, if he made defamatory statement is not liable for any action. There
is some condition for privilege to be available. Defendant has to prove some important things,
in order to take defence of privilege. Or plaintiff has also to prove some important points
to make defendant liable for the defamation.
And researcher ‘s one of the hypothesis was a wrong one i.e. Privilege
can be used anywhere, anytime. After research researcher came to know that, Privilege
cannot be used anywhere, anytime. It has also some limitations. Like for the judge Privilege
is only available in the court when the hearing of any case is going on. And for the members
of Parliament, Privilege is only available in the parliament only and outside the wall of
Parliament. And one of the hypothesis of researcher was also true that Privilege cannot be
given to everyone because if, Privilege is given to everyone Privilege can ‘t
remain a thing like Privilege. So it is given only to some important person of the country
like judges, members of parliament, officer of an state.

18
BIBLIOGRAPHY

BOOKS: -

 LAW OF TORTS- DR. R K BANGIA


 THE LAW OF TORTS -RATAN LAL DHIRAJ LAL
 THE LAW OF TORTS-A LAKSHMINATH & M SRIDHAR
 STREET OF TORT-JOHN MURPHY AND CHRISTAN WITTING

WEBSITE: -

 www.rotlaw.com
 www.cbp.com
 www.nationalparalegal.edu
 www.lawstuff.org,au

19
THANK YOU

20