Defamation: What It Is

In one line

Defamation is the publication of a statement that lowers a person in the estimation of right-thinking members of society.

In the wording a student can write in an exam: defamation is the publication to a third person of a false statement concerning the plaintiff which tends to lower him in the estimation of right-thinking members of society generally, or to expose him to hatred, contempt or ridicule, or to cause him to be shunned or avoided; the interest protected is reputation, the statement must be understood as referring to the plaintiff, and the truth of the statement is a complete defence in civil law.

The interest protected

Reputation is what other people think of you, and the law protects it because a person's standing with others determines his livelihood, his relationships and his ability to take part in public life.

The Supreme Court has put reputation on a constitutional footing. In Subramanian Swamy v. Union of India, (2016) 7 SCC 221, the Court held that reputation is an integral part of the right to life under article 21, and used that to justify the criminal law of defamation as a reasonable restriction on the freedom of speech under article 19(2). So in India, defamation is not simply a private grievance; it engages a right the Constitution protects, which is why the balance with free speech is the hardest question in the subject.

The test

The classical test is whether the statement tends to lower the plaintiff in the estimation of right-thinking members of society generally. Each part of that phrase does work.

Tends to lower. The question is the tendency of the words, not whether anybody actually thought less of the plaintiff.

Right-thinking members. Not the plaintiff's own circle, and not people with unusual or discreditable standards. A statement that a man informed the police about a crime may lower him among criminals and is not defamatory.

Of society generally. A statement that offends a small group is not enough unless a substantial and respectable section of society would think less of the plaintiff.

Two supplementary tests are used in the cases: whether the words expose the plaintiff to hatred, contempt or ridicule, and whether they cause him to be shunned or avoided.

What is not defamation

Mere abuse. Words spoken in anger and understood by the hearers as abuse rather than as an assertion of fact are not defamatory. Calling a man a fool in a quarrel is vulgar, not actionable.

Statements true in substance. Truth is a complete defence in civil law, and chapter [Defences to Defamation] works it out.

Statements about the dead, which give no civil action to the estate, though in some circumstances they may defame a living relative.