Defamation is an attack on reputation. Reputation has such an importance in a person’s life that it is considered protected under article 21 of the constitution of India.
Meaning of the term “defamation”
Salmond & Heuston on the Law of Torts, 20th Edn.7 define a defamatory statement as under: –
“A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right – thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right thinking member of society…”
Halsbury’s Laws of England, Fourth Edition, Vol. 28, defines ‘defamatory statement’ as under: –
“A defamatory statement is a statement which tends to lower a person in the estimation of right thinking members of the society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling trade or business.”
Defamation, according to Chambers Twentieth Century Dictionary, means to take away or destroy the good fame or reputation; to speak evil of; to charge falsely or to asperse.
According to Salmond: –
“The wrong of defamation, consists in the publication of a false and defamatory statement concerning another person without lawful justification. The wrong has always been regarded as one in which the Court should have the advantage of the personal presence of the parties if justice is to be done. Hence, not only does an action of defamation not survive for or against the estate of a deceased person, but a statement about a deceased person is not actionable at the suit of his relative”.
Carter Ruck on Libel and Slander has carved out some of the tests as under:
“(1) a statement concerning any person which exposes him to hatred, ridicule, or contempt, or which causes him to be shunned or avoided, or which has a tendency to injure him in his office, professional or trade.
(2) a false statement about a man to his discredit.
(3) would the words tend to lower the plaintiff in the estimation of right thinking members of society generally”
Concept of reputation
International Covenants
Various International Covenants have stressed on the significance of reputation and honour in a person’s life. The Universal Declaration on Human Rights, 1948 has explicit provisions for both, the right to free speech and right to reputation.
Article 12 of the said Declaration provides that: –
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
The International Covenant on Civil and Political Rights (ICCPR) contains similar provisions. Article 19 of the Covenant expressly subjects the right of expression to the rights and reputation of others. It reads thus: –
“1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or imprint, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (order public), or of public health or morals”.
Articles 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) provide: –
“Article 10. Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, maybe subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The international covenants reflect the purpose and concern and recognize reputation as an inseparable right of an individual. They juxtapose the right to freedom of speech and expression and the right of reputation thereby accepting restrictions, albeit as per law and necessity. That apart, they explicate that the individual honour and reputation is of great value to human existence being attached to dignity and all constitute an inalienable part of a complete human being.
Courts on United Kingdom on Reputation
Lord Denning explained the distinction between character and reputation in Plato Films Ltd. v. Spiede[1] in a succinct manner. We quote: –
“A man’s “character,” it is sometimes said, is what he in fact is, whereas his “reputation” is what other people think he is. If this be the sense in which you are using the words, then a libel action is concerned only with a man’s reputation, that is, with what people think of him: and it is for damage to his reputation, that is, to his esteem in the eyes of others, that he can sue, and not for damage to his own personality or disposition.”
“In so far as the estimate spreads outwards from those who know him and circulates among people generally in an increasing range, it becomes his “reputation,” which is entitled to the protection of the law just as much as his character.”
“The law can take no notice of a reputation which has no foundation except the gossip and rumour of busybodies who do not know the man. Test it this way. Suppose an honourable man becomes the victim of groundless rumour. He should be entitled to damages without having this wounding gossip dragged up against him. He can call people who know him to give evidence of his good character.
On the other hand, suppose a “notorious rogue” manages to conceal his dishonesty from the world at large. He should not be entitled to damages on the basis that he is a man of unblemished reputation. There must, ones would think, be people who know him and can come and speak to his bad character.”
In regard to the importance of protecting an individual’s reputation Lord Nicholls of Birkenhead observed in Reynolds v. Times Newspapers Ltd[2]:-
‘Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser.”
In Rosenblatt v. Baer[3] Mr. Justice Stewart observed that: –
“The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty.”
Indian Courts
In Kiran Bedi v. Committee of Inquiry and another[4], a three-Judge Bench, while dealing with the petition for quashing of the inquiry report against the petitioner therein, referred to Section 8-B of the Commissions of Inquiry Act, 1952 and opined that the importance has been attached with regard to the matter of safeguarding the reputation of a person being prejudicially affected in clause (b) of Section 8-B of the Commissions of Inquiry Act and proceeded to quote:-
“It is stated in the definition Person, that legally the term “person” includes not only the physical body and members, but also every bodily sense and personal attribute, among which is the reputation a man has acquired. Blackstone in his Commentaries classifies and distinguishes those rights which are annexed to the person, jura personarum, and acquired rights in external objects, jura rerum;
and in the former he includes personal security, which consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. And he makes the corresponding classification of remedies. The idea expressed is that a man’s reputation is a part of himself, as his body and limbs are, and reputation is a sort of right to enjoy the good opinion of others, and it is capable of growth and real existence, as an arm or leg.”
In Mehmood Nayyar Azam v. State of Chhatisgarh and others[5], while discussing the glory of honourable life, the Court observed,
“The essence of dignity can never be treated as a momentary spark of light or, for that matter, “a brief candle”, or “a hollow bubble”. The spark of life gets more resplendent when man is treated with dignity sans humiliation, for every man is expected to lead an honourable life which is a splendid gift of “creative intelligence”. When a dent is created in the reputation, humanism is paralysed….”
In Vishwanath Agrawal v. Saral Vishwanath Agrawal[6] this Court observed that reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is a revenue generator for the present as well as for the posterity.
In Umesh Kumar v. State of Andhra Pradesh and another,[7] the Court observed that personal rights of a human being include the right of reputation. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property and as such it has been held to be a necessary element in regard to right to life of a citizen under Article 21 of the Constitution.
In Om Prakash Chautala v. Kanwar Bhan and others[8] it has been held that reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance on posterity. It is a nobility in itself for which a conscientious man would never barter it with all the tea of China or for that matter all the pearls of the sea. The said virtue has both horizontal and vertical qualities. When reputation is hurt, a man is half-dead. It is an honour which deserves to be equally preserved by the downtrodden and the privileged.
The aroma of reputation is an excellence which cannot be allowed to be sullied with the passage of time. It is dear to life and on some occasions it is dearer than life. And that is why it has become an inseparable facet of Article 21 of the Constitution. No one would like to have his reputation dented, and it is perceived as an honour rather than popularity.
[1] (1961) 1 All. E.R. 876
[2] [2001] 2 AC 127 at 201
[3] 383 U.S. 75 (1966)
[4] (1989) 1 SCC 494
[5] 648 (2012) 8 SCC 1
[6] (2012) 7 SCC 288
[7] (2013) 10 SCC 591
[8] (2014) 5 SCC 417