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DEFAMATION AND MALICIOUS PROSECUTION

Author: Sameer Afzal Ansari, IV year of B.A.,LL.B. from Guru Gobind Singh Indraprastha University


Defamation is an injury to the reputation of a person. ​​ It is the publication of statements that harms the reputation of the person in the eyes of reasonable minded persons of society.​​


In English law, defamation is of the following two kinds:

Libel:​​ It is the publication of a defamatory statement in a permanent form i.e. in the form of an article or a picture etc.


Slander: It is defamation through speaking or gestures and therefore temporary.

But in India, any such distinction has not been made for any kind of Defamation. All kinds of defamation are treated alike and are offences under section 499 of the Indian Penal Code.


ESSENTIALS OF DEFAMATION

1. The words must be defamatory

This is a very subjective thing to examine as there is not a definite list of words that can be construed as defamatory. Whether the words used are defamatory or not depend on various factors that include whether the right-thinking man of the society construes it as defamatory or not and also whether those words are lowering the reputation or not. ​​ It is no defence to say that such a statement was not intended to be defamatory. The words should be such that if published, they will lower his reputation, expose him to hatred and ridicule him. Any intention to defame is not necessary to establish defamation.​​ Even if the statement prima facie is not defamatory and there is latent meaning hidden which is discriminatory,​​ it is a case of innuendo and a case of defamation can be filed.


2. The word must refer to the plaintiff

Even when it gets established that the words spoken or published are defamatory, it is still essential to​​ prove that the words complained of are referred to the plaintiff. It is immaterial if the defendant pleads that he didn’t intend to defame the plaintiff. If the person to whom the publication was made can make out that the words were referred to the plaintiff, the defendant will be liable. Although in a case decided in India, it was held that there was no liability for the​​ statements​​ that are published innocently.


3. Malice

In the case of defamation, the malice does not refer to​​ the mere​​ intention​​ but in​​ addition to the fact that the act of defamation was done without any lawful justification or excuse. Taking advantage of​​ the opportunity​​ to defame someone and injure someone’s reputation indicates malice.

DEFENCES TO DEFAMATION

1. Justification or Truth

The defence of truth is a complete defence when a civil action for defamation is filed. But in Criminal law, if you take the defence of truth, you must show that the truth was published for the public good. But if the statement is wrong, it cannot be justified on the ground that the person who made such a publication believed it to be true on reasonable grounds. This is justified by the logic that if the defamatory matter​​ is the truth, then you had a fake reputation and there is no remedy for injury to such reputation.

2. Fair Comment

This defence is specifically available to critics, authors, writers, editors etc. The comment refers to an opinion made on the existing facts and not making a statement of fact. By fair, it means that no malice should be involved. Such comments should be made in the public interest.​​ Several matters​​ of public interest include the Government department, Public institutions, textbooks, novels,​​ movies etc. This defence can only be claimed if the statement is made as a comment to the fact and no tone of a fact being stated is used. Also, it was held by the court that the comment cannot be considered to be a fair comment if it is based on untrue facts.

3. Privilege​​

In certain​​ privileged​​ instances, the right to free speech is put on a higher pedestal than a person’s right to reputation. Such Privileges can be of two kinds – Absolute or Qualified.

Absolute Privilege: In the case of Absolute Privilege, no action can be brought against any defamatory statement irrespective of it being false or being maliciously made. It is an absolute defence and this defence is available only in a very restrictive manner. Such defence is recognised in Parliamentary Proceedings, Judicial Proceedings and State Communication.​​ In the court, any remark related to the case, made by the judge, advocates, witnesses etc.​​ is all protected even if it is malicious or unjustified. But if any witness makes any comment not even remotely related to the matter, it is not protected.

Qualified Privilege: It is not an absolute defence and there are a few essentials to be there to plead this defence. Those essentials are:

  1. There must be a special occasion for making the statement like in discharge of a duty or protection of interest etc.​​

  2. There must not be any malice present about the statement.​​

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If there is malice present, the defence of qualified privilege fails but the presence of actual malice​​ must be proved by the plaintiff.

Malicious Prosecution

Malicious prosecution is the malicious institution against another of unsuccessful criminal or bankruptcy or liquidation proceedings without reasonable and probable cause.

Evolution of malicious prosecution

The law of malicious prosecution has evolved generously through ages. The basic evolution of the law has taken place in England. The history of the tort can be traced back to the writ of conspiracy, as early as the reign of Edward I. English courts were concerned about the improper use of judicial proceedings as early as the 10th century.

Malicious prosecution has its origin in England and evolved in the 18th and 19th centuries. This was an outcome of the misuse of due procedure of law, in the 18th and 19th centuries in England. In those days, England witnessed a trend of misuse of the judicial process, especially criminal prosecution for personal spite.

However, societal changes played a major role in this evolution. It was, in fact, the perceptions of the society, both towards the menace of malicious cases as well as towards the usage of the justice system which led to its development.

Essentials of malicious prosecution

In S.T. Sahib v. Hasan Ghani, it was held that there are five ingredients to the tort of malicious prosecution, namely:

  1. The proceedings must have been instituted or continued by the defendant.

  2. He must have acted, without reasonable and probable cause;

  3. He must have acted, maliciously, and;

  4. The proceedings must have been unsuccessful.

  5. That the plaintiff has suffered damage.