Defamation: What It Is

Statements not referring to the plaintiff, and statements that no reasonable person would understand as referring to him.

Statements not published, that is, not communicated to a third person, which chapter [The Essentials of Defamation] deals with.

Reputation against privacy, and where the line falls in India

A true statement destroys a reputation just as effectively as a false one, and civil defamation gives no remedy for it. That gap is filled in India by the right to privacy.

Facts. R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264, decided on 7 October 1994. The editor and publisher of a Tamil magazine proposed to serialise the autobiography of a condemned prisoner, which described his links with several police officials. The State authorities warned them not to publish and threatened action, and they moved the Supreme Court under article 32.

Held. No prior restraint could be imposed on the press. The Court summarised the principles: the right to privacy is implicit in article 21 and is a right to be let alone, so nobody may publish anything concerning a person's home, family, marriage, procreation, motherhood, child-bearing or education without consent, whether truthful or otherwise; but publication based on public records, including court records, is unobjectionable, subject to an exception protecting the identity of a female victim of sexual assault or a like offence; and in the case of a public official no action for damages lies in respect of acts and conduct relevant to the discharge of official duties, even where the publication is untrue, unless the official proves that it was made with reckless disregard for truth, though a publication proved false and actuated by malice or personal animosity has no defence.

Why it matters here. It marks the boundary of the tort in India: what a true statement does not reach, privacy may; and against a public official the plaintiff must prove far more than an ordinary plaintiff.

A worked example

A newspaper prints four sentences about Ganesh, a municipal engineer.

One. "Ganesh takes bribes to pass building plans." Plainly defamatory: it tends to lower him in the estimation of right-thinking people and to expose him to contempt. Truth would be a defence, and the paper must prove it.

Two. "Ganesh is a fool who cannot read a drawing." Capable of being defamatory of him in his office, because it attacks his competence in his calling, but the same words shouted in a quarrel might be mere abuse.

Three. "Ganesh gave the police the names of the men who assaulted his neighbour." Not defamatory, although criminals may think worse of him: the test is the estimation of right-thinking members of society.

Four. "Ganesh's marriage is unhappy and his wife has left him." Not necessarily defamatory at all, since it imputes no discredit, but on R. Rajagopal it may be an invasion of privacy, because marriage is one of the matters expressly named there.

What it does NOT mean

It does not require proof that anybody thought worse of the plaintiff. The test is the tendency of the words.

It does not protect a reputation the plaintiff does not have. A person of admittedly bad character in the very respect complained of recovers little.

It does not cover hurt feelings alone. The interest is reputation with others, not self-esteem.

It does not stop at what is false. A true statement is not defamation, but it may still be an invasion of privacy under R. Rajagopal.

Quick revision

1. Defamation is the publication of a statement tending to lower the plaintiff in the estimation of right-thinking members of society generally.
2. Supplementary tests: exposure to hatred, contempt or ridicule; being shunned or avoided.
3. Subramanian Swamy v. Union of India, (2016) 7 SCC 221: reputation is part of the right to life under article 21.
4. Mere abuse, true statements, statements about the dead and unpublished statements are outside the tort.
5. R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264: privacy is implicit in article 21; publication from public records is unobjectionable; a public official must prove reckless disregard for truth as to his official conduct.
6. Section 356 of the Bharatiya Nyaya Sanhita 2023 is the criminal counterpart.

Test yourself

1. Define defamation and state the test of a defamatory statement. Defamation is the publication to a third person of a 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 test is objective and asks about the tendency of the words rather than their actual effect, so the plaintiff need not prove that anybody in fact thought worse of him. The standard is that of right-thinking members of society, so words that lower the plaintiff only in the eyes of people with discreditable standards, such as a statement that he assisted the police, are not defamatory. The interest protected is reputation, and in India the Supreme Court held in Subramanian Swamy v. Union of India, (2016) 7 SCC 221, that reputation is an integral part of the right to life under article 21.

2. Is a true statement ever actionable? Not as defamation. Truth, if pleaded and proved, is a complete defence in a civil action, because the law protects the reputation a person deserves rather than the reputation he enjoys. But a true statement may be actionable on another footing. In R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264, the Supreme Court held that the right to privacy is implicit in article 21 and that nobody may publish anything concerning a person's home, family, marriage, procreation, motherhood, child-bearing or education without consent, whether truthful or otherwise, and that a person who does so is liable in damages. The exception is publication based on public records, including court records, subject to protection for the identity of a female victim of a sexual offence.

3. What is the position of a public official who complains of a publication about his official conduct? He is in a much weaker position than an ordinary plaintiff. R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264, holds that no action for damages is available to a public official in respect of acts and conduct relevant to the discharge of his official duties, even where the publication is untrue, unless he establishes that it was made with reckless disregard for truth. It is enough for the publisher to show that he acted after reasonable verification of the facts, and he need not prove that what he wrote was true. Where the publication is proved to be false and actuated by malice or personal animosity, the publisher has no defence. In matters unconnected with his official duties, the official has the same protection as any other citizen.