Libel and Slander

The Indian criminal law makes no distinction. Section 356 of the Bharatiya Nyaya Sanhita 2023 defines defamation as the making or publishing of any imputation concerning a person, by words either spoken or intended to be read, or by signs or by visible representations, intending to harm or knowing it likely to harm his reputation. Speech and writing are treated alike, and the offence is complete without any special damage.

Literacy and circulation. In a society in which much communication is oral, confining the ready remedy to the written word protects only those who are written about.

Say in an answer that the point is not concluded by the Supreme Court, and that the High Courts have taken the view stated. That is honest and it is what a careful examiner wants.

Limitation

The Limitation Act 1963 keeps the two apart and its wording repays reading. Article 75 gives one year for compensation for libel, running from when the libel is published. Article 76 gives one year for slander, running from when the words are spoken, or, if the words are not actionable in themselves, from when the special damage complained of results.

So the statute itself contemplates that some slanders are actionable in themselves and some are not, which is a point in favour of the four exceptions being recognised in India even by those who reject the general rule.

A worked example

At a shareholders' meeting, Ravi says aloud that Sunita, a chartered accountant, "has been falsifying the accounts for years". A newspaper reports the meeting the next day, quoting him.

Ravi's spoken words are slander in English law. But they impute both a criminal offence and unfitness in her profession, so they fall within two of the four exceptions and are actionable without proof of special damage even in England. In India, on the view stated above, they are actionable in any event.

The newspaper's report is libel, in permanent form, and is actionable per se. The paper may plead that its report of the meeting is protected by qualified privilege, which chapter [Defences to Defamation] examines, and the privilege is lost if Sunita proves malice.

If Ravi had merely said "Sunita is a fool", in anger, that would be neither: it is mere abuse and imputes nothing.

Limitation. Sunita has one year against Ravi from the day he spoke, under article 76, and one year against the newspaper from the day of publication, under article 75.

Distinctions that carry marks

What it does NOT mean

It does not mean spoken words are always harmless. The four exceptions cover most serious oral imputations even in England.

It does not mean the Indian position is settled by the Supreme Court. It is the view of High Courts, and an answer should say so.

It does not mean special damage is hurt feelings. It means actual material loss.

It does not affect the criminal law. Section 356 of the Bharatiya Nyaya Sanhita 2023 treats spoken and written imputations alike.

Quick revision

1. Libel: permanent form; slander: transient form.
2. In England libel is actionable per se and is a crime; slander needs special damage except in four cases.
3. The four exceptions: imputation of an imprisonable offence, of a contagious disease, of unfitness in office or calling, and of unchastity to a woman.
4. Special damage means material or temporal loss, not hurt feelings.
5. In India the distinction has largely not been followed and the better view is that slander too is actionable per se.
6. Section 356 of the Bharatiya Nyaya Sanhita 2023 makes no distinction between spoken and written imputations.
7. Limitation: article 75 for libel, article 76 for slander, both one year, with different starting points.

Test yourself

1. Distinguish libel from slander and state the exceptions in which slander is actionable per se. Libel is the publication of a defamatory statement in a permanent form, such as writing, printing, a picture, an effigy or a film, and slander is its publication in a transient form, such as spoken words or gestures. In English law libel is actionable per se and is also a crime, while slander is actionable only on proof of special damage, meaning actual material or temporal loss such as the loss of employment or of custom. Slander is actionable without such proof in four cases: where it imputes a criminal offence punishable with imprisonment; where it imputes a contagious or infectious disease which would cause the plaintiff to be shunned; where it imputes unfitness, dishonesty or incompetence in an office, profession, calling, trade or business carried on by the plaintiff; and where it imputes unchastity or adultery to a woman or girl.

2. Has the distinction between libel and slander been accepted in India? Not in its full form. The better view, taken by several High Courts, is that in India slander is also actionable without proof of special damage. Three reasons are given. English rules apply in India only so far as they suit Indian conditions, under the rule of justice, equity and good conscience, and a rule that denies a remedy to a plaintiff who cannot prove pecuniary loss does not. The Indian criminal law makes no such distinction: section 356 of the Bharatiya Nyaya Sanhita 2023 defines defamation as an imputation made by words spoken or intended to be read, or by signs or visible representations, so speech and writing are treated alike. And in a society where much communication is oral, confining the ready remedy to writing protects only the literate. The point has not been concluded by the Supreme Court, and an answer should say so.

3. What is special damage in the law of slander? Special damage means some actual material or temporal loss flowing from the publication, such as the loss of a job, the loss of custom in a business, the loss of a marriage prospect or the withdrawal of hospitality by friends. It does not include the loss of reputation itself, which the law presumes where the tort is actionable per se, and it does not include hurt feelings, mental distress or social embarrassment. The requirement matters because in English law it is the price of suing on a spoken statement outside the four exceptions, and the Limitation Act 1963 reflects it: article 76 runs from the speaking of the words, or, where they are not actionable in themselves, from the time the special damage results.