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Defences in Tort Law

Defences in Tort Law
Defences in Tort Law


Defences to Defamation

1. Justification or Truth

In both civil and criminal actions for defamation, truth serves as a complete defence. However, under criminal law, merely proving the truth of a statement is insufficient. Section 499 of the Indian Penal Code mandates that the imputation must also demonstrate a contribution to the public good. 

Conversely, in civil law, establishing the truthfulness of a statement is a valid defence. This is grounded in the principle that one cannot claim damages for harm to a character they either lack or shouldn't possess.

Notably, this defence remains viable even if the publication was made with malicious intent. Minor inaccuracies do not nullify the defence, as seen in the case of Alexander v. North Eastern Ry.

2. Fair Comment

Commenting on matters of public interest provides a defence against defamation. To avail this defence, certain criteria must be met:

(i) Nature of Comment: The expression must be an opinion rather than a statement of fact.

(ii) Fairness: The comment must be fair and based on true facts.

(iii) Public Interest: The subject of the comment must be of public interest.

(i) Nature of Comment

Distinguishing between opinion and fact is crucial. While fair comment stands as a defence, statements of fact require justification or privilege for exoneration. Whether a statement qualifies as a comment depends on the language used and the context. 

For instance, criticising a book authored by Z constitutes fair comment if done in good faith, whereas attributing personal traits to Z based on the book crosses into the realm of factual assertion.

(ii) Fairness of Comment

Fairness hinges on the truthfulness of the underlying facts. Comments founded on invented or false information are not deemed fair. For example, falsely attributing immorality to a play in a review undermines the fairness of the comment. 

Additionally, if serious allegations of dishonesty are made without substantiation, the defence of fair comment collapses.

(iii) Public Interest

The matter under comment must pertain to public interest, encompassing various spheres such as government administration, public figures, institutions, and cultural productions.


3. Privilege

Privilege denotes certain occasions where the right to free speech takes precedence over the plaintiff's right to reputation, rendering a defamatory statement non-actionable. This privilege comes in two forms: 'Absolute' and 'Qualified'.

Absolute Privilege

Absolute privilege confers immunity from legal action for defamatory statements, regardless of their truth or malicious intent. Such immunity is deemed necessary to uphold the freedom of speech over an individual's reputation. Notable instances of absolute privilege include:

  1. Parliamentary Proceedings: Both the Constitution (Article 105(2)) and its state-level counterparts grant absolute privilege to statements made within parliamentary sessions or publications authorised by the respective legislative bodies.

  2. Judicial Proceedings: Judicial proceedings enjoy absolute privilege, shielding judges, counsels, witnesses, and parties from defamation suits arising from statements made during court proceedings, even if made maliciously or without justification. This protection extends to tribunals with analogous attributes. Judicial officers in India are further safeguarded by the Judicial Officers Protection Act, 1850.

  3. State Communications: Statements exchanged between state officials during official duties or military and naval reports are absolutely privileged. Similarly, communications between ministers or between a minister and the Crown enjoy this immunity.


Qualified Privilege

In contrast, qualified privilege offers a limited defence against defamation claims, contingent upon the absence of malice and the existence of a privileged occasion.

This form of privilege applies when statements are made in the discharge of duty, protection of interests, or in the form of reports on public proceedings such as parliamentary or judicial sessions. 

To invoke qualified privilege, the defendant must demonstrate:

  1. Privileged Occasion: The statement was made in discharge of duty or protection of an interest, or it constitutes a fair report of parliamentary, judicial, or other public proceedings.

  2. Absence of Malice: The statement was made without any malicious intent.

Duty or Protection of Interest

A qualified privilege arises when there is a duty—be it legal, social, or moral—to make a statement, or when there is an interest that necessitates the communication of the statement.

This principle is rooted in reciprocity, where both the communicator and the recipient have corresponding interests or duties.

Section 499 of the Indian Penal Code recognizes such privilege in its Ninth Exception, stating that defamation is not applicable if the imputation is made in good faith for the protection of interests.


  • A shopkeeper advising against extending credit to a customer due to doubts about their honesty.

  • A magistrate reporting to a superior officer about a person's conduct.

In instances such as an employer providing a character reference for a former employee or a creditor disclosing a debtor's financial condition to another creditor, a privileged occasion exists.

However, if such statements are made with the intent to harm rather than fulfil the duty or protect the interest, the defence of qualified privilege cannot be invoked.

Requirement of Malice

The exemption from liability under qualified privilege is contingent upon the absence of malice. Malice, in this context, refers to an evil motive. If malice is present, it nullifies the defence of qualified privilege.

Malice can manifest as a desire to injure the person being defamed, and it must be the dominant motive behind the defamatory publication to negate the privilege.


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