Defamation law in India is rooted in a few fundamental elements: (i) the statement must be false and defamatory; (ii) it must be published to someone other than the person defamed; (iii) it must clearly refer to the plaintiff; and (iv) there must be no valid legal defence such as truth, justification or privilege. Among these, the requirement of publication has historically required direct communication of the defamatory material to a third party. However, the Delhi High Court (“Court“) has now held that compelled self-publication, where the plaintiff is left with no reasonable alternative but to disclose the defamatory content, can also satisfy the requirement of publication. The decision in Abhijit Mishra v. Wipro Limited1 marks a significant expansion of the Indian jurisprudential understanding of defamation and aligns more closely with the evolving global trends.
Background of the Case
Abhijit Mishra (“Employee“) was employed by Wipro Limited (“Employer“) as a Principal Consultant, until his services were terminated via a termination letter (“Termination Letter“). The Termination Letter did more than merely notify him of cessation of his employment, it included remarks referring to his conduct as ‘malicious‘ and cited ‘complete loss of trust‘, which according to the Employer, had irreparably damaged the employer-employee relationship.
The Employee filed a suit claiming damages for defamation and sought, among other reliefs, the issuance of a fresh termination letter, free of any disparaging observations. He argued that the contents of the Termination Letter were both factually incorrect and reputationally damaging. Further, he asserted that in the ordinary course of seeking new employment, he would be required to share the Termination Letter, thereby amplifying its adverse impact.
The Employer contested the claim by arguing that the termination was contractually valid under a clause that allowed for termination without cause, that the statements were justified, and crucially, that there had been no publication of the Termination Letter to any third party by the Employer itself.
While the Court upheld the Employer's right to terminate the employment under a determinable contract, it found that the remarks in the Termination Letter were defamatory and unsupported by any documentary evidence. More importantly, it held that the claim could still succeed under the doctrine of compelled self-publication.
Defamation and Compelled Self-Publication
In a detailed analysis, the Court reaffirmed the four established elements of defamation and then turned its attention to the element of publication. Traditionally, a claim for civil defamation would fail if the allegedly defamatory statement was made only to the plaintiff. The rationale being that defamation harms reputation, which necessarily requires perception by others. However, the Court departed from this narrow understanding by acknowledging that certain employment contexts create situations where the plaintiff is practically compelled to share defamatory documents, such as during background checks, reference requests, or interviews. Where such disclosure is reasonably foreseeable, the defendant can be held liable for having caused the harmful material to enter the public domain, even indirectly.
The Court noted that, “the liability for publication in civil defamation cases, does not depend only upon the presence of malice or intent to harm; rather, it is premised on the role of the originator in triggering a foreseeable chain of events that results in the dissemination of defamatory material. As such, the tort of defamation is akin to other civil wrongs predicated upon causative responsibility. It is enough to establish that an act or omission caused the defamatory statement to be read by someone other than the plaintiff, either due to compulsive self-disclosure of the defamed person or foreseeable disclosure.”
The Court's Assessment of the Employer's Defence
The Employer argued that it had not sent the Termination Letter to any third party and that any disclosure would have been entirely the Employee's own doing. However, the Court rejected this argument on two key grounds.
First, the statements in the Termination Letter, particularly terms like ‘malicious conduct‘ and ‘loss of trust‘, were held to be inherently defamatory. This conclusion was supported by evidence, the Employee's previous performance appraisals and internal surveys had rated him highly, with no mention of misconduct. The Employer had also failed to produce any inquiry reports or disciplinary findings to justify the assertions in the Termination Letter.
Second, and more significantly, the Court found that the Employer ought to have foreseen that an employee seeking future employment would be compelled to disclose the Termination Letter to his potential employer. It observed that it is common practice in professional settings to submit past employment documents during recruitment processes. In that context, the Employer's knowledge of foreseeable third-party disclosure rendered the act of including defamatory content in the Termination Letter, actionable in law.
The Court emphasized that the law of defamation must not be interpreted rigidly in a manner that allows employers to insulate themselves by keeping defamatory communication ostensibly confidential, when in practice, it is bound to resurface.
Conclusion
This judgment marks a significant development in Indian defamation jurisprudence, particularly in the employment context. It highlights the responsibility of employers to refrain from including stigmatic or defamatory remarks in termination communications, even if such letters are privately addressed. Where it is reasonably foreseeable that an employee would be forced to disclose such remarks, liability may arise.
The case serves as a caution to employers – while termination may be contractually permissible, the language used in termination letters must be carefully considered. Unsupported and damaging allegations, particularly those that the employee is effectively compelled to disclose, can amount to actionable defamation.
Footnote
1. CS(OS) 31/2021
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