Defences against Defamation under Law of Torts

Edited By Ritika Jonwal | Updated on Jul 02, 2025 05:48 PM IST

According to the Law of Torts, defamation is the damage done to someone's reputation. According to Section 499 of the Indian Penal Code (IPC) 1860, a person is considered to have defamed another person if they have published or made any false statements about them with the intent to harm their reputation, or if they have knowledge or reasonable belief that such statements will be taken as false and could cause them harm.

This Story also Contains

Essentials of Defamation
Types of Defamation
Difference Between Libel and Slander
Defamation by Two or More Persons
Measures for Damages for Defamatory Under Tort
Defences in Defamation under the Law of Torts
Conclusion

Defences against Defamation under Law of Torts

A guy has the right to defend his reputation since it is regarded as valuable property. This right is recognized as an inalienable individual right and as a jus in rem, or a right that is superior to all other people. Defamation is defined as any written or spoken word that damages the reputation of another person.

Essentials of Defamation

Such Statements Should be Made

To convey a point, one can utilize spoken or written words, signs, or other tangible images. For example, A is questioned regarding the theft of B's diamond jewellery. A motion to C to give the impression that C took the diamond ring. That is why this is defamation.

Such Statement Should Refer to the Plaintiff

The defamatory statement must be directed towards a specific person, group of people, or trustees of a business. The allusion could be made explicitly or subtly. If the plaintiff is still identifiable, it is not required to disclose him by name. A defamation suit on behalf of a deceased person may only be filed if the person submitting the suit has an interest in the subject of the defamatory remark, regardless of whether the target of the statement is alive or deceased.

In the case of, Newstead v. London Express Newspapers Ltd.

In this case, The defendant wrote a story for a newspaper claiming that XYZ was found guilty of bigamy. The story was accurate, but another barber in the same area with the same name was being defamed afterwards. The defendant was held liable since it was believed that their statements were directed at the plaintiff.

Such a Statement Must be Defamatory

A statement is the beginning of defamation, and someone who speaks disparagingly could face legal action for defamation. A false statement has the power to lessen the positive perceptions that other people have of the subject and to cause others to view him with contempt, dread, or hatred. Using abusive words to describe a man as a hypocrite or a chronic drinker is one example of defamatory language. A few examples to help you understand what constitutes and does not constitute defamation. It is libellous to say that a driver is irresponsible. Product criticism is not slander. It is defamatory to claim that a baker's bread is invariably unhealthy. It is defamatory to say that someone lacks the level of expertise that they believe themselves to possess.

The intention of the Wrongdoer

The person making the defamatory statement is aware that it will harm the reputation of the person it is directed against and that there is a good likelihood that other people would take it to be genuine.

Such a Statement Should be False

A false statement must be made for it to be considered defamatory because the truth protects one from it. Since the statement's falsity is a prerequisite for defamation, there cannot be defamation if the statement is true. Speaking the truth, even if it is unappealing, is not illegal.

Such Statements Must be Published

Publication of the statement is a requirement for defamation to occur. A third party should be informed of the statement. A comment delivered as a private communication or written in a personal diary does not constitute defamation; however, it does if the sender is aware that the statement is likely to be viewed by a third party.

In the case of, Ram Jethmalani v. Subramaniyam Swamy

In this case, A panel of inquiry was established to look into the details surrounding the assassination of the late Shri Rajiv Gandhi. During a press briefing, the dependent stated that the Tamil Nadu chief minister was aware of the assassination beforehand. Furthermore, the plaintiff's reputation was harmed by the statement, which made it ex-facie defamatory.

Types of Defamation

Libel

For an action to be deemed libellous, the relevant evidence must be proven to be false, defamatory, made public, or in writing. The allegedly defamatory statement must also show proof of a proper relationship between the speaker and the plaintiff, as well as mention the plaintiff directly or indirectly.

It is not necessary to name the defendant, even in situations when it is unclear what their intentions are. Defamation, however, cannot be committed against a deceased individual or a class of individuals, like physicians. Therefore, under these circumstances, the live person may be sued for defamation if the slander damages their reputation.

Essentials of Libel

A written assertion was made that was not true.
Through publication or other channels, the comment was made public to third parties.
The defendant was at fault (either by negligence or malicious intent).
In addition to financial loss and reputational harm, the plaintiff experienced public hatred, humiliation, disgust, and contempt.

Slander

Libel and slander are often quite similar. When you scream obscenities at your clerk and she types it on a letterhead, you are communicating a message you want someone else to see. Therefore, in this case, the transmission technique is considered transitory.

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Difference Between Libel and Slander

Libel	Slander
A libel is a defamatory statement that has been made permanently, such as in writing or print.	Slander is a temporary kind of slander, such as verbal or physical abuse.
It is both a civil wrong and a criminal offence.	While it is just a civil wrong, section 499 of the IPC makes it illegal if the words are blasphemous, seditious, or obscene.
There is a right being violated, and proof of actual damages is not required to support legal action.	A defamatory statement can only be legally pursued if it causes demonstrable harm or if it propagates specific innuendos.

Defamation by Two or More Persons

If two or more people agree to write or say something that defames another person and one of them does so in front of other people who have also agreed, then all of them could be sued as joint tortfeasors if the plaintiff or other people have seen the published defamatory content.

Measures for Damages for Defamatory Under Tort

When determining whether to award damages for a defamatory publication, the Court must take the following factors into account:

The actions of the Plaintiff
His status and place in the community
What constitutes libel?
the lack of libel retraction or apology, or their rejection.
the defendant's entire behaviour between the date of the decree and the libel publication.

Defences in Defamation under the Law of Torts

Justification of Truth

Under criminal law, proving a statement made is not a defence; nevertheless, under civil law, a person need only demonstrate that the statement made is truthful. The defendant argued that the language utilized up to this point adequately and significantly reflected the conviction. In the matter of Eknath v. Radheshyam Tiwari, The defendant's failure to provide evidence to support the facts he published led to his conviction for defamation.

For example- Y initiates a lawsuit against X after X claims in an interview that Y indulges in gambling. X will be able to refute or prove it, in which case Y's claim will be rejected.

Fair Comment

Nothing is disparaging, which is a reasonable assessment of a topic of public concern. The defendant may raise this defence if all he has done is make a legitimate observation on a matter of public interest. This defence is based on public policy, which gives anybody the right to freely comment and criticize, without intent, the acts of public servants, athletes, authors, performers, and other people whose livelihoods depend on public recognition. As long as an opinion is accurate and reasonable regarding a matter of public importance, it is protected even if it is false. There is no definition for the word "matter of public interest". Generally speaking, a subject that attracts public attention and is open to discussion or critique might be deemed to be of public interest.

Privilege

Law recognizes certain situations as privileged where the plaintiff has the right to their reputation and where the law has acknowledged the right to freedom of speech. There are two other sorts of these situations. For instance, a member of parliament has complete confidentiality about all remarks he makes in the house. Such statements are completely immune from prosecution for defamation under the Constitution. There are occasionally similar privileges in legal procedures as well. There are two types of privilege, they are-

Absolute Privilege

It offers the speaker complete freedom to express themselves, even in derogatory ways, and protects them from legal repercussions in the event of a defamation action. In general, slanderous remarks uttered are excused by absolute privilege.

In the course of legal processes,
by representatives of the government,
by lawmakers during parliamentary discussions,
during the parliamentary sessions during political speeches, and,
dialogue between partners.

Qualified Privilege

The qualified privilege defence is permissible when the speaker has a moral, legal, or social need to speak out and the audience is interested in what they have to say. The following situations allow for the use of this defence

reference for a candidate for a job,
Responding to the police's questions,
In a review, a fair critique of a released book or movie,
dialogue between educators and parents,
dialogue between employers and workers,
Qualified privilege safeguards all communications between credit agencies and traders.

Honest Opinion

In an honest opinion, the defendant must establish three main points. They are-

The issue was not a declaration of facts, but rather the defendant's view; and
The viewpoint regarding an issue of public concern; and
The opinion is supported by appropriate evidence.

Innocent Dissemination

In cases where the defendant was a subordinate distributor, the defence of innocent distribution may be used. A subordinate distributor is a person who wasn't the main distributor or author of a publication, and who didn't have any editorial control over its content. Librarians, electronic distributors, and newsagents are a few examples of subordinate distributors. Three conditions must be met for the defence to be effective, they are-

The defendant only disseminated the information in their position as an agent or employee of a lesser distributor; and
The defendant had no reasonable way of knowing that the content was defamatory, nor should they have; and
The defendant did not act carelessly in the circumstances leading to their ignorance.

Triviality

When a defendant can show that the plaintiff was not likely to suffer any harm as a result of the publication, they may invoke the defence of triviality. Triviality is a threshold test that takes the accusation's nature into account instead of the audience's size. A magazine article claiming that a man who had been married seven times "ran through women like a herd of hungry goats on an island" is an example of a remark that failed to harm someone's reputation.

Conclusion

The defamation laws in India are established to protect the reputation of a person. The reputation of a person is harmed when a person publishes a false statement which some way or the harms the reputation of a person. However, the provisions under the defamation are a reasonable restriction under the fundamental rights in the Constitution of India under Article 19(1)(a). The meaning of defamation is the publishing of false statements which harm the reputation of a person. This article explores defamation under the ambit of the Law of Torts and mentions the defences available.

Frequently Asked Questions (FAQs)

1. What is the section for Defamation under IPC?

Section 499 of the IPC deals with Defamation.

2. What is the meaning of Defamation?

The meaning of defamation is the publishing of false statements which harm the reputation of a person.

3. Who can file a defamation case?

When someone feels that remarks made about them have harmed their reputation, they have the right to launch a defamation lawsuit in India.

4. What are the principles of Defamation?

The three main components of the cause of action are as follows: (1) the communication was made public to a third party; (2) it names or discusses that individual; and (3) it is defamatory.

5. What is defamation in the Law of Torts?

Defamation is defined as any deliberate false communication, whether it be spoken or written, that causes injury to a person's reputation, diminishes the respect, esteem, or confidence that others have for them, or fosters contemptuous, hostile, or disagreeable attitudes or feelings against them.

6. How does the concept of "group defamation" affect defamation claims and defenses?

Group defamation refers to defamatory statements made about a large group of people. Generally, individual members of a large group cannot claim defamation unless the statement can reasonably be understood to refer to them specifically. This principle limits defamation claims based on broad statements about groups, protecting free speech while still allowing recourse for targeted individuals.

7. What is the "innocent dissemination" defense and how does it apply to internet service providers?

The innocent dissemination defense protects those who unknowingly distribute defamatory material. For internet service providers (ISPs), this defense may apply if they can show they were unaware of the defamatory content and acted promptly to remove it once notified. Laws like the U.S. Communications Decency Act provide additional protections for ISPs against defamation claims for user-generated content.

8. How does the concept of "defamatory meaning" impact defamation defenses?

Defamatory meaning is a crucial element in defamation cases. Defendants can argue that the alleged defamatory statement, when properly understood in context, does not actually convey a defamatory meaning. This defense involves analyzing how a reasonable person would interpret the statement, considering factors like tone, context, and common understanding of language.

9. How does the "incremental harm doctrine" work as a defense in defamation cases?

The incremental harm doctrine posits that if a publication contains both defamatory and non-defamatory statements, and the non-defamatory content alone would have caused the same damage to the plaintiff's reputation, then the defamatory statements are not actionable. This defense focuses on the actual additional harm caused by the allegedly defamatory statements.

10. How does the defense of truth work in defamation cases?

The defense of truth, also known as justification, allows defendants to avoid liability if they can prove that the allegedly defamatory statement is substantially true. Even if the statement is damaging to the plaintiff's reputation, truth is an absolute defense in most jurisdictions.

11. What is the difference between absolute privilege and qualified privilege in defamation defenses?

Absolute privilege provides complete immunity from defamation claims, regardless of the defendant's motives. It typically applies to statements made in legislative proceedings, judicial proceedings, or by high-ranking government officials. Qualified privilege, on the other hand, offers protection only if the statement was made without malice and for a legitimate purpose, such as providing a job reference.

12. What is the "fair comment" defense in defamation cases?

The fair comment defense protects statements of opinion on matters of public interest, provided they are based on true facts. This defense encourages open discussion and criticism of public figures and issues. To succeed, the defendant must show that the comment was on a matter of public interest, based on true facts, and represents the honest opinion of the speaker.

13. How does consent work as a defense against defamation?

If the plaintiff consented to the publication of the allegedly defamatory statement, they cannot later claim defamation. This defense is based on the principle that one cannot complain about an act to which they have agreed. However, the consent must be clear and the publication must not exceed the scope of the consent given.

14. What is the "innocent dissemination" defense?

The innocent dissemination defense protects individuals who unknowingly distribute defamatory material, such as newsagents or librarians. To use this defense, the distributor must show that they did not know the material was defamatory, had no reason to believe it was defamatory, and that this lack of knowledge was not due to negligence.

15. What is the "small penis rule" in defamation and how does it relate to fiction writing?

The "small penis rule" is an informal strategy used by some authors to avoid defamation claims. By giving a character based on a real person an embarrassing feature (like a small penis) that the real person wouldn't want to claim, the author discourages lawsuits. While not a legal defense, it illustrates the complexities of defamation in fiction.

16. How does the concept of "libel-proof plaintiff" work as a defense?

The libel-proof plaintiff doctrine suggests that some individuals have such poor reputations that they cannot be further damaged by defamatory statements. While not universally accepted, this concept argues that such plaintiffs should not be able to recover damages for defamation because their reputation couldn't be lowered further.

17. What is the "wire service defense" and how does it apply to modern online publications?

The wire service defense, traditionally protecting news outlets that republish content from reputable news agencies, has been adapted for the digital age. It may now apply to online publications that rely on content from established sources. However, the ease of verification in the digital era may impose higher standards of care on online publishers.

18. What is the "wire service defense" and how has it evolved in the digital age?

The wire service defense traditionally protected news outlets that republished content from reputable news agencies without independent verification. In the digital age, this defense has evolved to potentially cover online publications that rely on established sources. However, the ease of online fact-checking may impose higher standards of care on digital publishers.

19. How does the defense of "neutral reportage" work?

The neutral reportage privilege protects media outlets that accurately and objectively report allegations made by a responsible, prominent organization against a public figure, even if those allegations turn out to be false. This defense aims to promote the free flow of information on matters of public concern, but it's not recognized in all jurisdictions.

20. What is defamation in tort law?

Defamation in tort law refers to a false statement that harms someone's reputation. It can be either written (libel) or spoken (slander). The law aims to balance the right to free speech with protecting individuals from unjust damage to their reputation.

21. Can opinion be considered defamatory?

Generally, pure opinions are not considered defamatory because they cannot be proven true or false. However, if an opinion implies undisclosed defamatory facts, it may still be actionable. The key is whether a reasonable person would interpret the statement as expressing or implying provable facts.

22. What is the "innocent construction rule" in defamation law?

The innocent construction rule, applied in some jurisdictions, states that if a statement can reasonably be interpreted in a non-defamatory way, it should be. This rule favors defendants by requiring courts to choose non-defamatory interpretations of ambiguous statements when possible, thus limiting potential liability.

23. What is the "self-censorship effect" and how does it relate to defamation law and its defenses?

The self-censorship effect refers to the potential chilling of free speech due to fear of defamation lawsuits. This concept underlies many defamation defenses and the higher standards for public figure plaintiffs. Courts and legislators often consider this effect when shaping defamation law to balance protection of reputation with freedom of expression.

24. How does the concept of "limited-purpose public figure" affect defamation defenses?

A limited-purpose public figure is someone who voluntarily injects themselves into a particular public controversy. In defamation cases, these individuals must prove actual malice for statements related to their involvement in that controversy, similar to public officials. This status can significantly impact defamation defenses by raising the bar for plaintiffs in specific contexts.

25. How does retraction or correction of a defamatory statement affect a defamation case?

While not a complete defense, a prompt and prominent retraction or correction can mitigate damages in a defamation case. In some jurisdictions, it may even be a prerequisite to filing a lawsuit. A sincere and timely retraction demonstrates good faith and can help limit the harm to the plaintiff's reputation.

26. What is the "single publication rule" in defamation law?

The single publication rule states that a defamatory statement gives rise to only one cause of action, which occurs at the time of first publication. This rule prevents multiple lawsuits for the same statement and starts the statute of limitations clock at the initial publication date, even if the material remains accessible (e.g., online) for an extended period.

27. What is the "incremental harm doctrine" in defamation law?

The incremental harm doctrine posits that if a publication contains both defamatory and non-defamatory statements, and the non-defamatory statements alone would have caused the same damage to the plaintiff's reputation, the defamatory statements are not actionable. This doctrine focuses on the actual harm caused by the defamatory statements beyond what would have occurred anyway.

28. How does the statute of limitations apply to defamation cases?

The statute of limitations sets a time limit within which a defamation lawsuit must be filed. This period varies by jurisdiction but typically ranges from one to three years from the date of publication. Understanding the applicable statute of limitations is crucial, as failing to file within this period can bar the claim entirely.

29. What is the role of "actual malice" in defamation cases involving public figures?

Actual malice, established in the landmark U.S. case New York Times v. Sullivan, requires public figure plaintiffs to prove that the defendant made the defamatory statement with knowledge that it was false or with reckless disregard for its truth. This higher standard aims to protect free speech and robust public debate about public figures and issues.

30. How does the concept of "defamation per se" affect defenses in defamation cases?

Defamation per se refers to statements so inherently harmful that damages are presumed (e.g., allegations of criminal activity or professional incompetence). In such cases, the defendant may face a higher burden in their defense, as the plaintiff doesn't need to prove actual damages. Defenses like truth become even more crucial in these situations.

31. How does the concept of "actual malice" apply to defamation cases involving matters of public concern?

Actual malice, requiring knowledge of falsity or reckless disregard for the truth, is not limited to cases involving public figures. Some jurisdictions apply this standard to private individuals in cases involving matters of public concern. This extension of the actual malice standard aims to protect robust debate on important societal issues.

32. How does the defense of "opinion" work in the context of online reviews and social media posts?

The opinion defense protects statements that cannot be proven true or false. In the context of online reviews and social media, courts often consider the overall context, including the platform and language used, to determine if a reasonable reader would understand the statement as opinion rather than fact. However, opinions implying false facts may still be actionable.

33. What is the "libel-proof plaintiff" doctrine and how does it function as a defense?

The libel-proof plaintiff doctrine suggests that some individuals have such poor reputations that they cannot be further damaged by defamatory statements. While not universally accepted, this concept argues that such plaintiffs should not recover damages for defamation. It's a controversial defense that requires careful consideration of the plaintiff's existing reputation.

34. How does the defense of "qualified privilege" apply to employee references?

Qualified privilege often protects employers giving references for former employees. The privilege recognizes the social utility of honest job references. However, the protection is lost if the employer acts with malice or goes beyond what is reasonably necessary in providing the reference.

35. How does the defense of "fair use" apply in defamation cases involving copyrighted material?

While primarily a copyright concept, fair use can intersect with defamation law when copyrighted material is used in a way that could be considered defamatory. Fair use may protect limited use of copyrighted material for purposes such as criticism or commentary, even if that use portrays the copyright holder negatively. This intersection highlights the balance between intellectual property rights, free speech, and reputation protection.

36. What is the "fair report privilege" and how does it protect reporting on official proceedings?

The fair report privilege protects accurate and impartial reports of official proceedings or public meetings. This defense allows media to report on government activities without fear of defamation claims, even if the reported information turns out to be false. The report must be substantially accurate and not made with malice.

37. What is the "wire service defense" in defamation law?

The wire service defense protects news organizations that republish information from reputable news sources without independent verification. This defense recognizes the practical impossibility of verifying every piece of information received from established news agencies. However, if the republisher had reason to doubt the accuracy of the information, this defense may not apply.

38. How does the defense of "substantial truth" differ from absolute truth in defamation cases?

The defense of substantial truth acknowledges that minor inaccuracies in a statement do not necessarily make it defamatory. If the "gist" or "sting" of the statement is true, even if some details are incorrect, the defense may still succeed. This recognizes that perfect accuracy is often impossible and protects defendants from liability for inconsequential errors.

39. How does the defense of "fair report privilege" work in defamation cases?

The fair report privilege protects accurate reports of official proceedings or public meetings. This defense allows media to report on government activities without fear of defamation claims, promoting transparency and informed public discourse. The report must be substantially accurate and not made with malice.

40. What is the "self-defense" privilege in defamation law?

The self-defense privilege allows individuals to make otherwise defamatory statements to protect their own interests or reputation. For example, if someone is falsely accused of wrongdoing, they may respond with statements that might otherwise be considered defamatory. This privilege is limited and must be proportional to the attack being defended against.

41. What is the significance of the "public interest" defense in defamation cases?

The public interest defense, recognized in some jurisdictions, protects statements made on matters of public concern, even if they contain some inaccuracies. This defense aims to promote free speech and debate on important societal issues. To succeed, the defendant must show that the statement was on a matter of public interest and that they acted responsibly in publishing it.

42. How does the defense of "rhetorical hyperbole" work in defamation cases?

Rhetorical hyperbole refers to exaggerated statements that no reasonable person would take literally. Courts recognize that such language, often used in heated debates or as rhetorical devices, is not meant to be taken as fact and therefore cannot be defamatory. This defense protects colorful language and vigorous debate, especially in contexts like political discourse.

43. What is the "rolled-up plea" in defamation defenses?

The rolled-up plea is a defense strategy that combines justification (truth) and fair comment. It argues that insofar as the statement consists of facts, they are true, and insofar as it consists of opinions, they are fair comment on true facts. This approach allows defendants to cover multiple bases in their defense.

44. How does the "right of reply" concept relate to defamation defenses?

While not a defense per se, the right of reply can mitigate damages in defamation cases. Some jurisdictions require media outlets to provide an opportunity for individuals to respond to potentially defamatory statements. Offering and publishing such a reply can demonstrate fairness and potentially reduce liability.

45. What is the "reportage defense" in defamation law?

The reportage defense protects neutral reporting of disputes or controversies. It allows media to report on ongoing disputes without adopting the truth of either side's allegations. To use this defense, the report must be balanced, attribute statements to their sources, and avoid endorsing any particular view.

46. What is the "substantial truth" doctrine and how does it differ from absolute truth in defamation defenses?

The substantial truth doctrine holds that minor inaccuracies in a statement do not make it false for defamation purposes if the "gist" or "sting" of the statement is true. Unlike absolute truth, which requires every detail to be accurate, substantial truth recognizes that minor errors are common and shouldn't negate an otherwise true statement's defense against defamation claims.

47. What is the "neutral reportage privilege" and how does it protect journalists?

The neutral reportage privilege protects journalists who accurately report allegations made by one prominent person against another, even if those allegations are false. This defense aims to ensure that the press can report on newsworthy accusations without fear of liability. However, the report must be accurate, balanced, and not endorse the allegations.

48. How does the defense of "consent" work in the context of reality TV shows and public appearances?

Consent can be a defense against defamation claims in contexts like reality TV or public appearances where individuals agree to be portrayed or discussed. However, the scope of consent is crucial - participants may consent to some portrayals but not others. Courts consider the nature of the agreement and whether the allegedly defamatory statements fall within its scope.

49. How does the "single publication rule" apply to online defamation cases?

The single publication rule, traditionally applied to print media, states that a defamatory statement gives rise to only one cause of action at the time of first publication. In online contexts, courts have grappled with how to apply this rule to continuously accessible web content. Some jurisdictions treat each access as a new publication, while others apply the rule from the initial posting date.