Civil Defamation

IN Press Laws Guide | 17/09/2012
1.      Who can sue me for defamation?
Answer: If a person proves that the defamatory content was referring to her/him then he/she can sue for defamation. This includes a class of persons, companies, corporations, etc. (same rules as in criminal defamation insofar as these entities are concerned).
Reasoning: Generally, the right to sue in civil law is only available to the defamed person. This defamed person can be a class of persons, a company or a corporation. In civil law, no action for defamation of a deceased person can be sustained. An exception to this rule is that if a defamatory statement negatively impacts the reputation of a deceased person’s heir, an action for defamation would be maintainable. On the other hand the rule in Criminal Law is that imputing anything to a deceased person can be defamatory if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Effect: The scope of suit of defamation is very wide. It tends to cover any statement which harms the reputation of a person and is false. Moreover defamation can be against any person, class of persons or a company.
2.      What needs to be proven for a successful case of defamation against me?
Answer: The ingredients which need to be established for a case of civil defamation are that the alleged content is: (i) false, (ii) defamatory and (iii) published.
Reasoning: In a civil proceeding the emphasis is on restoring the person to a position prior to the offence. In a case of defamation this is done through reimbursing the person for the harm caused to him by imposing damages on the wrongdoer. Thus, it has to be proved that the alleged defamatory content damaged the reputation of the person (damages must be proved and not merely alleged or claimed). Further, the defamatory statement has to be false otherwise no action arises. Proof of publication is also an important ingredient. Intention though very important in a criminal case does not hold much relevance in a civil case.
Effect: In a civil suit for defamation, the only ingredients which need to be proved are that the statement was false, caused harm to reputation and was published. Intention or motive does not need to be attributed to the offender.
3.      Can I have defamed someone without intending to?
Answer: Yes, intention is not relevant for deciding the liability of a person under Civil Defamation. The essential ingredients for determining liability have already been discussed in Question 2.
Reasoning: The intention or motive with which a certain material is published holds no bearing if the matter complained of, refers to, or would be deemed by reasonable people to refer to the plaintiff. A statement that is true for one person could be false and defamatory against another. However, in recent times in cases like Dainik Bhaskar and Anr. v. Madhusudan Bhargava and Anr., ( AIR 1991 MP 162)the liability to pay damages has been extinguished by an “offer of amends”. In case of an innocent publication of defamatory material, you agree to take such steps as are reasonably practicable for notifying persons to whom the alleged defamatory material has been distributed. If the offer is accepted, the cause for seeking damages is extinguished; else it can be pleaded that the publication was innocent and the offer made is indicative of lack of malice.
Effect: The general rule is that even if a statement is published with no intention of defaming a person, the publisher can still be held liable for defamation in a civil suit.
4.      What is malice?
Answer:  In general, malice means the intent, without just cause or reason, to commit a wrongful act that will result in harm to another. In the context of the tort of defamation, malice does not refer to your motive or internal dislike of a person but refers to the lack of just cause or excuse for the publication. If you detest the person you’re writing about but have a valid reason to be criticizing the person, the law will not deem your criticism malicious.
Reasoning: In the tort of defamation, malice is only important to establish that there was no justification for the defamatory material. If there is justification for the alleged defamatory content then no malice is attributed under tort of defamation.
Effect: The intention of the person is not important. If the person has just cause for publishing the defamatory statement then he is not liable for defamation.
5.      What can I do to ensure that my work establishes a lack of malice? Will establishing lack of malice negate the charge of defamation? If not, how does it help?
Answer: In a civil suit for defamation if there is a just cause for the publication of the defamatory content then no question of malice arises. Malice is, by and large, immaterial to decide a charge of defamation because intention is largely ignored in civil defamation cases.
Reasoning: Malice is irrelevant in civil defamation as the emphasis is only on compensation as distinct from criminal law. However, while taking a plea of a fair comment or that of unintentional defamation, the lack of malice must be proven for the defence to have any weight. Malice negates the defences of fair comment and unintentional defamation.
Effect: A person has to ensure that his publication is based on verifiable facts to avoid a case of malice. For defences of fair comment and unintentional malice, it has to be proved that there was no malice on your part.
6.      Is truth a complete defence against a charge of defamation?
Answer: Yes, truth is a complete defence in civil defamation proceedings. A publication based on verifiable facts can extinguish liability for defamation. But the same is not true in case of criminal defamation. There truth is not a complete defence.
Reasoning: The main purpose of an action for defamation is to protect the reputation of the defamed person. However, the law will not allow a person to claim damages for an injury to character when the person does not, or ought not, possess such character. The truth in question need not be absolute; as long as the statement is true substantially and in all the material aspects, the defence stands.
Effect: A person can publish any statement he wants. However, he bears the risk of being sued for defamation if the publication is based on false facts. Truth will act as a complete defence from any civil action for defamation.
7.      Do I need to prove the truth in my statement or does the plaintiff (the person allegedly defamed) need to prove its falsity?
Answer: The burden to prove the truth in the alleged defamatory publication lies on the person asserting that the statement is true. The law presumes the falsity of the statement. The defendant has to prove that the statements made are actually true.
Reasoning: In a civil suit for defamation, the plaintiff only has to prove that a defamatory publication took place. It is presumed that the alleged defamatory content is false. The burden of proof is on the defendant to prove the veracity of the statements that have been published.

Effect: The burden of the proof is initially on the plaintiff that a defamatory statement has been published. Then the onus of proof shifts on the defendant that the statement is true.

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