B.A. LL.B. (Five Years) Sem 2 Law of Torts 2016 Jun Question Paper with Solutions

The statutory description

Section 356(1) of the Bharatiya Nyaya Sanhita 2023, which defines the offence, is a useful guide to the tort as well. It covers an imputation made "by words either spoken or intended to be read, or by signs or by visible representations". Its Explanations add that:

1. an imputation about a deceased person may be defamation, if it would harm him if living and is meant to hurt his family (Explanation 1);
2. an imputation about a company or association as such may be defamation (Explanation 2);
3. an imputation put as an alternative or ironically may be defamation (Explanation 3); and
4. an imputation harms reputation only if it lowers the person in the estimation of others (Explanation 4). It must lower his moral or intellectual character, his standing in his caste or calling, or his credit.

Essential 1: A statement

The defamatory matter may take any form: spoken words, writing, print, pictures, cartoons, effigies, gestures, films or recordings. Section 356 itself shows that a picture of Z running away with a watch, drawn to suggest that he stole it, is defamation.

2. In Cassidy v. Daily Mirror Newspapers Ltd, [1929] 2 KB 331, a newspaper published a photograph of Mr Cassidy, already married, with another woman, captioned as the announcement of their engagement. His wife sued. Acquaintances understood that she was not really married and was living with him immorally. The newspaper was liable.

Essential 3: The statement refers to the plaintiff

The statement must be understood by reasonable people to refer to the plaintiff. He need not be named.

1. In E. Hulton & Co. v. Jones, [1910] AC 20, a newspaper sketch described the conduct of a fictitious "Artemus Jones" at a motor festival in Dieppe. A real barrister named Artemus Jones sued and won. The test is what readers would reasonably understand, not what the writer intended.
2. In Newstead v. London Express Newspaper Ltd, [1940] 1 KB 377, a statement true of one real person was reasonably understood to refer to another person of the same name. The newspaper was liable to the second person. Absence of negligence was no defence.

Intention is not needed

The defendant need not intend to defame. In Morrison v. Ritchie & Co., (1902) 4 F 645, a newspaper reported in good faith that the plaintiff had given birth to twins. She had been married only a short time. The report implied intercourse before marriage. The newspaper was liable, though it did not know the facts. Cassidy and E. Hulton & Co. v. Jones also show that innocence is no defence in tort.

Groups and the dead

1. A group. A statement about a large class, such as "all traders cheat", usually refers to no one in particular, so no individual can sue. If the group is small, or the words point to particular members, each of them may sue. Explanation 2 to section 356 recognises that a company or association may itself be defamed.
2. The dead. In criminal law, an imputation about a deceased person may be defamation under Explanation 1. In tort, the action is personal and ends with the person. In Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, AIR 1986 SC 411, the plaintiff died while his defamation appeal was pending, and the proceedings abated.

Conclusion. Defamation is the publication of a false statement that lowers a person in the estimation of right-thinking members of society. The plaintiff must prove a statement in some form that is defamatory by the test in Sim v. Stretch, including by innuendo as in Tolley and Cassidy. It must refer to him, as reasonably understood, as in E. Hulton & Co. v. Jones. And it must be published to someone other than him in a way the defendant could foresee, as Huth v. Huth explains. Intention to defame is not needed, and truth is a complete defence. In India, serious slander may be actionable without special damage, as A.D. Narayana Sah shows.