Defences to Defamation

Parliamentary proceedings. Articles 105 and 194 of the Constitution protect anything said and any vote given in Parliament and in a State Legislature respectively, and the publication of reports and proceedings by or under their authority.

Judicial proceedings. Statements by judges, counsel, parties and witnesses in the course of judicial proceedings are absolutely privileged, so that everybody may speak freely in court. The protection extends to tribunals exercising judicial functions.

Official communications. Communications between officers of State in the course of official duty.

Communications between spouses, which are in any event not published, as chapter [The Essentials of Defamation] explains.

4. Qualified privilege

The occasion is privileged, but the privilege is lost if the plaintiff proves malice in fact, that is, spite or an improper motive, as chapter [The Mental Element in Tort] defines it.

The test is that the maker had a legal, social or moral duty to make the statement, or an interest to protect, and the person to whom it was made had a corresponding duty or interest to receive it. The reciprocity is essential: a statement broadcast to the world is not protected merely because one of its readers had an interest in it.

The standard instances are a reference given by a former employer, a complaint made to the authority with power to act on it, a report by an agent to his principal, a statement made in self-defence against an attack, and a fair and accurate report of parliamentary or judicial proceedings.

How the privilege is lost. By proof that the defendant did not believe what he said, or spoke from spite, or went beyond what the occasion required, or published more widely than the duty or interest called for.

5. Apology, and mitigation

At common law an apology is not a defence. It goes to the damages, and a prompt and full apology may reduce them substantially. In England a statutory defence exists for newspapers on terms; in India there is no equivalent general statutory defence, and an apology is therefore a matter of mitigation.

Other matters in mitigation: the plaintiff's own bad reputation in the respect complained of, provocation by the plaintiff, and the fact that the same libel has already been compensated elsewhere.

The public official, and the Indian gloss

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 a condemned prisoner's autobiography, which described his links with police officials, and the authorities threatened action to stop it.

Held. No prior restraint could be imposed. Among the principles the Court summarised was this: in the case of a public official, no action for damages lies in respect of acts and conduct relevant to the discharge of his official duties, even where the publication is untrue, unless the official 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 false and actuated by malice or personal animosity, there is no defence.

Why it matters here. It gives Indian law a defence for the press about official conduct which is wider than fair comment and wider than qualified privilege, and it is what a student should cite when asked about the balance between reputation and free speech.

A worked example

A magazine publishes: "Contractor Q got the bridge contract because he paid the Minister. Q's earlier bridge at Y collapsed, and anyone who has seen it knows why: the man builds with sand."

"Q paid the Minister" is an allegation of fact. The defences available are justification, if the magazine can prove it, and, so far as the Minister's official conduct is concerned, the R. Rajagopal protection, which puts on the Minister the burden of showing reckless disregard for truth. As against Q, who is not a public official, that protection does not apply.

"Q's earlier bridge at Y collapsed" is a fact. If true, justification protects it.

"The man builds with sand" is comment on those facts. If the facts are true, the subject is of public interest, and the opinion is one an honest person could hold, fair comment protects it, unless Q proves malice.

If the magazine apologises the next week, that is not a defence, but it will reduce the damages.

Distinctions that carry marks

What it does NOT mean

Truth is not a defence in the criminal law by itself. Section 356 of the Bharatiya Nyaya Sanhita 2023 requires that publication also be for the public good.

Fair comment does not protect a misstatement of fact. It protects opinion on true facts.

Qualified privilege is not lost by mere carelessness. It is lost by malice, which means an improper motive or want of honest belief.

An apology is not a defence. It mitigates.

Quick revision

1. Five defences: justification, fair comment, absolute privilege, qualified privilege, apology in mitigation.
2. Truth is a complete civil defence and the burden is on the defendant; substantial truth is enough.
3. Section 356 of the Bharatiya Nyaya Sanhita 2023 requires truth AND public good for the criminal defence.
4. Fair comment: comment not fact, on true facts, on a matter of public interest, honestly held; malice destroys it.
5. Absolute privilege: articles 105 and 194 for legislatures, judicial proceedings, State communications; malice is irrelevant.
6. Qualified privilege: duty or interest with reciprocity; destroyed by malice in fact or by excess of publication.
7. R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264: as to a public official's official conduct, the official must prove reckless disregard for truth.
8. Apology is not a defence but reduces damages.

Test yourself

1. What defences are available in an action for defamation? Five. Justification, that is, truth: a complete defence in civil law, the burden being on the defendant, and substantial truth of the sting sufficing. Fair comment: an honest expression of opinion, based on facts which are true and stated or indicated, on a matter of public interest, defeated by malice. Absolute privilege: statements in Parliament or a State Legislature under articles 105 and 194 of the Constitution, statements by judges, counsel, parties and witnesses in judicial proceedings, and communications between officers of State, none of which is affected by malice. Qualified privilege: a statement made in the discharge of a legal, social or moral duty, or in the protection of an interest, to a person with a corresponding duty or interest, defeated by proof of malice in fact or by publication wider than the occasion required. And apology, which is not a defence but mitigates the damages.

2. Distinguish absolute from qualified privilege. Absolute privilege attaches to the occasion itself, so that no action lies however false the statement and however malicious the maker; it covers proceedings in Parliament and State Legislatures under articles 105 and 194, judicial proceedings, and communications between officers of State, and it exists because those occasions would be useless if participants had to weigh every word against the risk of a suit. Qualified privilege attaches to the proper use of an occasion: it protects a statement made in the discharge of a duty or the protection of an interest to a person having a corresponding duty or interest, and it is lost if the plaintiff proves malice in fact, or that the defendant did not believe what he said, or that he published more widely than the occasion required.

3. How does the defence of truth differ in civil and criminal defamation? In the civil action truth alone is a complete defence: the defendant who proves that the statement is substantially true wins, whatever his motive, because the law protects the reputation a person deserves. In the criminal law the defence is narrower. Section 356 of the Bharatiya Nyaya Sanhita 2023 makes it an exception that the imputation is true and that its publication is for the public good, and whether the publication is for the public good is a question of fact. So a true but gratuitous exposure of a private matter may found a prosecution although it could not found a civil suit, which is one reason the criminal remedy is criticised and was nevertheless upheld in Subramanian Swamy v. Union of India, (2016) 7 SCC 221.

4. When may a newspaper rely on fair comment? When four conditions are satisfied. The matter complained of must be comment, that is, an expression of opinion, and not an assertion of fact, so a newspaper that asserts corruption cannot call it comment. The facts on which the comment is based must be true and must be stated or sufficiently indicated, so that the reader can judge the opinion for himself. The subject must be one of public interest, which includes the administration of justice, the conduct of public servants and institutions, and anything submitted to public judgment. And the comment must be fair, in the sense that an honest person could hold it on those facts, however exaggerated or prejudiced; proof of malice defeats the defence because it shows the opinion was not honestly held.