University of Mumbais GARWARWE INSTITUTE OF CAREER EDUCATION AND DEVELOPMENT P.G.D in English journalism Murahari Prem V Roll no.05 Faculty: - Prof.Mithun PillaiAn Analysis of the Law inIndia and the United Kingdom
An Analysis of the Law inIndia and the United KingdomA man’s reputation is his property and is more valuable than any other tangibleasset. Every man has the right to have his reputation preserved. It isacknowledged as an inherent personal right of every person. It is a jus in rem, aright good against all the people in the world. The degree of suffering caused byloss of reputation far exceeds that caused by loss of any material wealth.The Law of Defamation protects reputation. Defamation is defined as follows:Defamation is the publication of a statement which reflects on a person’sreputation and tends to lower him in the estimation of right-thinking members ofsociety generally or tends to make them shun or avoid him.In English Common Law, reputation is the most clearly protected and isremedied almost exclusively in civil law by an award of damages after trial by ajury. However reputation can rarely be assessed in financial terms but thedamages awarded in most defamation cases are substantial because these awardsreflect the juries’ ideas of the value of dignity and honour as well as reputation.At the same time, there is some tension between this wrong and the freedom ofspeech, particularly the freedom of the press and broadcast media and thecommon law which has felt the influence of the European Convention on HumanRights.However, the Law of Defamation like many other branches of tort law aims atbalancing the interests of the parties concerned. These are the rights that a personhas to his reputation vis-à-vis the right to freedom of speech. The Law ofDefamation provides defences to the wrong such as truth and privilege thus alsoprotecting right of freedom of speech but at the same time marking theboundaries within which it may be limited. In India tort law is obtained fromBritish Common Law and is yet uncodified. Therefore the existing law relating todefamation places reasonable restrictions on the fundamental right of freedom ofspeech and expression conferred by Article 19(1) (a) of the Constitution and issaved by clause (2) of Article 19.The wrong of defamation may be committed by making defamatory statementswhich are calculated to expose a person to hatred, contempt or ridicule, or toinjure him in his trade, business, profession, calling or office, or to cause him to
be shunned or avoided in society. This is known as ‚publication‛ of thestatement, which in its true legal sense means the communication of defamatorymatter to some person other than the person of whom it is written.These statements can be made in the following two ways:Libel: The publication of a false and defamatory statement tending to injure thereputation of another person without lawful justification or excuse. Thestatement must be in a printed form, e.g., writing, printing, pictures, cartoons,statue, waxwork effigy etc.Slander: A false and defamatory statement by spoken words and/or gesturestending to injure the reputation of others. It is in a transient form. It also involvesthe sign language used by the physically disabled.In Common law, a libel is a criminal offence as well as a civil wrong, but aslander is a civil wrong only. However in Indian law, both are criminal offencesunder Sec. 499 of the I.P.C. Libel is more favourable to the claimant because it isactionable per se and injury to reputation will be presumed. The FaulksCommittee in its report in 1975 recommended the abolition of this distinctionbetween libel and slander which when implemented will mean that no humanplaintiff need prove any special damage but institutional plaintiffs should provethat the words actually caused loss or were likely to do so. The weight of theauthorities is for discarding between libel and slander and making both of themactionable per se. However, whether the case is one of libel or slander, thefollowing elements must be proved by the claimant in order for the defendant tobe liable for the tort of defamation:The statement (the technically correct term is ‚imputation‛) is defamatory.It refers to the plaintiff i.e. identifies him.It has been published i.e. communicated to at least one person other than theclaimant.Defamation is a unique tort, especially when understood in its historical context.Until the 16thcentury in England, general jurisdiction over defamation wasexercised by the clergy. Thereafter, the common law courts developed an actionon the case for slander where ‘temporal’, as distinct from ‘spiritual’ damagecould be established. This progress became too rapid for the judges whoproceeded to hedge the action around with tighter restrictions. Later, thecommon law courts established a distinction between libel and slander on thebasis that damage could be presumed in libel, but that the plaintiff would haveto prove ‘special damage’ before an action for slander would lie.
In the late nineteenth and early twentieth centuries, liability in defamation wasextended because of the menace to reputations occasioned by the new, popularpress with its mass circulation. The recent history of defamation is marked bycontinuing conflict between the need to protect individuals from unjustifiablecharacter assassination and the right to freedom of the speech. The pressmaintains that the latter is often disregarded at the expense of open and honestcriticism of those in authority. But in Derbyshire County Council v TimesNewspapers Ltd the press scored a notable victory. The House of Lords ruled thata democratically elected body should be open to uninhibited public criticism andthat the threat of a defamatory action would surely inhibit the freedom of speechof the press. However, inReynolds V Times Newspapers Ltd The Court of Appealwas mindful of the fact that the European Rights Convention, which stressedupon the fundamentality of the right to freedom of speech, was destined tobecome a part of common law and that thus there should be allowed the defenceof qualified privilege to be raised by the press when commenting on publicfigures.Defamation actions have proved to be a popular recourse for wealthy publicfigures seeking, with the aid of expensive lawyers, to vindicate their reputationspublicly in the law courts. To a certain extent, the tort of defamation is a wealthyperson’s tort, for legal aid is available neither to pursue, nor to defend, adefamation action. On the other hand, in the past, a number of libel actions have,on occasion, been supported by private funds set up by wealth individuals withan axe to grind who have themselves suffered at the hands of the popular press.Another notable facet of defamation actions in recent years is the very high levelof damages awarded, which have not simply compensated the plaintiffs for theirloss of reputation but have also included a very sizeable amount of punitivedamages. The amount of damages is normally set by a jury. Also defamation hasbecome a very lucrative specialisation for lawyers too. Most of the decided casesof defamation reveal that they do not concern the essence of the claim itself, butrather, complex arguments on pleadings and particulars. In consequence, legalcosts consume large proportions of the claims itself.Defamation is a relatively new tort for Indian Law. Not many defamation suitswere filed in the country until recently and the only ones that were filed werethose by film stars and the rich and the famous, against the media, trying tosalvage their reputation. However, now after the media revolution in thiscountry, and with people becoming more aware of their rights, the frequency ofdefamation suits being filed is increasing. Recently, there have been a few caseswhere a few journalists have ‘exposed’ the corrupt side of the politicians by
discreetly filming a politician with a hidden camera when he was taking a bribefor posing questions in parliament or religious heads discreetly accepting bribesin order to go ahead and declare something about their religion,distorting completely the religious principles they are supposed to uphold andby misuse the authority vested in him/her. In India these days, it is this categoryof people who file defamation suits against the media for destroying theirreputation and questioning the veracity of these hidden recordings. Now, notonly are celebrities filing lawsuits, but many not-so-famous people are realizingthat if their right to reputation is violated, they can make sure that the offender ispunished and can walk away with a handsome sum as compensation too.Clearly, India is on its path to become a litigious society.The constituents of the Tort of DefamationRegardless of whether a defamation action is framed in libel or slander, theplaintiff must always prove that the words, pictures, gestures etc are defamatory.Equally, the plaintiff must show that they refer to him. Finally he must alsoprove that they were maliciously published. These are the three essentialelements in a defamation action.Elements of Defamation(A) The statement must be defamatoryAny imputation which exposes one to disgrace and humiliation, ridicule orcontempt, is defamatory. It could be made in different ways as in it could be oral,in writing, printed or by the exhibition of a picture, effigy or statue or by someconduct.According to Lord Atkins, whether a statement is defamatory or not dependsupon how the right thinking members of society the society are likely to take it.Yet the term ‘right-thinking members of society’ is highly ambiguous. Thestandard to be applied is that of a right-minded citizen, a man of fair averageintelligence, and not that of a special class of persons whose values are notshared or approved by the fair minded members of that society generally. If thelikely effect of the statement is the injury to the plaintiff’s reputation, it is nodefence to say that it was not intended to be defamatory. When the statementcauses anyone to be regarded with feelings of hatred, contempt, ridicule, fear,dislike, or disesteem, it is defamatory.In D.P. Choudhary v. Manjulata there was publication of a statement in a localdaily in Jodhpur that Manjulata on the pretext of attending her evening BAclasses ran away with a boy named Kamlesh. The girl belonged to a well
educated respectable family. She was seventeen years of age. The news item wasuntrue and had been irresponsibly published without any justification. This wasdefamatory and the defendants, the newspaper publishers were held liable.However, words spoken in anger or annoyance or in the heat of the moment arenot defamatory as they no way reflect on the character of the one being abused.However, sometimes the statement being used to defame may be primafacie innocent but becomes defamatory because of some latent or hiddenmeaning. In such a scenario the plaintiff must prove the hidden meaning, whichis the innuendo if s/he wants to file a suit for defamation. For instance in Cassidy VDaily Mirror Newspapers the newspaper published a picture of a lady and the racehorse owner with the caption underneath, ‚Mr. M. Corrigan, the race-horseowner and Miss X whose engagement has been announced‛. The newspaper washeld liable in a suit that said that the lady was the lawful wife of Mr. Corriganand complained that the words suggested that she had been living with him inimmortality. The liability of the defendants rested on their failure to makeindependent inquiry. This also brings forth another aspect of this tort thatintention to defame is not necessary and if the words are considered to bedefamatory by the persons to whom the statement is published, there isdefamation.(B) The statement must refer to the plaintiffThe plaintiff has to prove that the statement which is claimed to be defamatoryactually refers to him/her. It is immaterial that the defendant did not intend todefame the plaintiff, if the person to whom the statement was published couldreasonably infer that the statement referred to the plaintiff, the defendant isnevertheless liable.In Hulton Co. V Jones the defendants published a fictional article in theirnewspaper in which aspersions were cast on the morals of a fictitious character-Artemus Jones, stated to be a Churchwarden. On this basis one Artemus Jones, abarrister, brought an action against the defendants. The defendants pleaded thatArtemus was a fictional character and the plaintiff was not known to them andthus they had no intention to defame him. Notwithstanding this, they were heldliable because a substantial number of persons who knew the plaintiff and hadread the editorial would have assumed it to be referring to him.However, when the defamation refers to a class of persons, no member of thatgroup can sue unless he can prove that the words could reasonably beconsidered to be referring to him.
When the statement though generally referring to a class can be reasonablyconsidered to be referring to a particular plaintiff, his action will succeed. InFanu v. Malcomson, in an article published by the defendants, it was mentionedthat cruelty was practised upon employees in some of the Irish factories. Fromthe article as a whole including a reference to Waterford itself, it was consideredthat the plaintiff’s Waterford factory was aimed at in the article and the plaintiffwas, therefore, successful in his action for defamation.(C) The statement must be publishedPublication means making the defamatory matter known to some other thirdpart and unless that is done, no civil action for defamation can lie in court.Communication to the plaintiff wont count because defamation is injury to thereputation which consists in the estimation in which others hold him and not aman’s own opinion of himself. However, if a third party wrongfully interceptsand reads a letter sent to the plaintiff it is not defamation. However when thedefendant knows that the letter is likely to be read by someone else and itcontains some personal information only meant for the recipient, then he will beliable.Also, an injunction can be issued against the publication of a defamatorystatement which is likely to injure the reputation of one of the arties involved aswas done in Prameela Ravindran v. P. Lakshmikutty Amma .Also, in the eyes of the law, husband and wife are one person and thecommunication of a defamatory matter from the husband to the wife or viceversa is no publication.When the repetition of the defamatory matter is involved, the liability of theperson who repeats that defamatory matter is the same as that of the originator,because every repetition is a fresh publication giving rise to a fresh cause ofaction. Not only the author is liable but the editor, printer or publisher would beliable in the same way.Defences to the Tort of Defamation(A) Justification by truthIn a civil action for defamation, truth is a complete defence. However undercriminal law, it must also be proved that the imputation was made for the publicgood. Under the civil law, merely proving that the statement was true is a gooddefence the reason being that ‚the law will not permit a man to recover damagesin respect of an injury to a character which he either does no or ought not topossess‛
The defence is available even if the statement is made maliciously and if thestatement is substantially true but incorrect in respect of certain other minorparticulars, the defence will still be available.The Defamation Act, 1952 (England) provides that if there are several charges ofdefamation and the defendant is successful in proving the truth of only some ofthem, the defence of justification might still be available if the charges not proveddo not materially injure the reputation.Although there is no specific provision in India regarding the above, the law ispossibly the same as prevailing in England.(B) A fair and bona fide comment on a matter of public interestIt involves making fair comments on matters of public interest. For this defenceto be available, the following essentials are required:(i) It must be a comment, i.e., an expression of opinion rather than an assertion offact(ii) The comment must be fair, i.e., must be based on the truth and not on untrueor invented facts(iii) The matter commented upon must be of public interest.If due to malice on the part of the defendant, the comment is a distorted one, hiscomment ceases to be fair and he cannot take such a defence. In Gregory V Duke ofBrunswick the plaintiff, an actor, appeared on the stage of a theatre but thedefendant and other persons in malice started hooting and hissing and therebycaused him to lose his engagement. This was held to actionable and an unfaircomment on the plaintiff’s performance and the defendants were held to beguilty.(C) Privilege - It is of two kinds:· Absolute Privilege: Certain statements are allowed to be made when the largerinterest of the community overrides the interest of the individual. No action liesfor the defamatory statement even though it may be false or malicious. In suchcases, the public interest demands that an individuals right to reputation shouldgive way to the freedom of speech. This privilege is provided to:(i) Parliamentary proceedings,(ii) judicial proceedings,(iii) Military and Naval proceedings and(iv) State proceedings.
· Qualified Privilege: For communications made in the course of legal, social ormoral duty, for self-protection, protection of common interest, for public goodand proceedings at public meetings, provided the absence of malice is proved.Also, there must be an occasion for making the statement. To avail this defence,the following things must be kept in mind:(i) The statement should be made in discharge of a public duty or protection ofan interest(ii) Or, it is a fair report of parliamentary, judicial or other public proceedings(iii) The statement should be made without any malice. An Analysis of an English defamation case: douglas V hello! magazineIn this case, the upcoming glamorous wedding of the claimants, both Hollywoodcelebrities had received widespread coverage in the tabloid press. In November2000 OK! A tabloid journal entered into a contract with Michael Douglas andCatherine Zeta-Jones, for the exclusive right to publish photographs of theirforthcoming wedding on 18 November 2000 at the Plaza Hotel, New York. TheDouglases dealt with OK!, who paid them £1m for the rights, in preference to therival magazine Hello!, published by the respondent. The Douglases agreed toengage a photographer and to supply OK! with pictures they had chosen. Byclause 6 of the agreement they agreed to use their best efforts to ensure that noone else would take any photographs.The Douglases went to some lengths to comply with this obligation and nocriticism is made of their security precautions, but a freelance photographernamed Rupert Thorpe infiltrated the wedding and took photographs which hesold to Hello!. OK! obtained an ex parte injunction restraining publication byHello! but on 23 November 2000 the injunction was discharged by the Court ofAppeal and the photographs were published on the following day. A few hoursearlier on the same day OK! published its own photographs, having broughtforward its date of publication on account of what it knew to be the imminentpublication by Hello! Also on the same day, some of the unauthorized pictureswere, without objection by Hello!, published in national daily newspapers.OK! sued Hello! for breach of confidence and for the tort of causing loss byunlawful means.Lindsay J held Hello! liable for breach of confidence. He applied the well-knowncriteria summarized by Megarry J in Coco v AN Clark (Engineers) Ltd  RPC41, 47:‚First, the information itself…must ‘have the necessary quality of confidenceabout it. Secondly, that information must have been imparted in circumstances
importing an obligation of confidence. Thirdly, there must be an unauthoriseduse of that information to the detriment of the party communicating it.‛For this purpose the judge identified the information as being photographicimages of the wedding. Not information about the wedding generally; anyonewas free to communicate the information that the Douglases had been married,describe what the bride wore and so forth. The claim was only that there hadbeen a breach of an obligation of confidence in respect of photographic images.Lindsay J held that the three conditions were satisfied. As for the first,photographs of the wedding were confidential information in the sense that nonewere publicly available. As to the second, the Douglases had made it clear thatanyone admitted to the wedding was not to make or communicate photographicimages. They allowed people to witness their marriage, but only on the basis thatthe information which the spectators thereby obtained was not communicated inthe form of a photographic image. The judge said (at para 197):‚the very facts that Hello! and OK! competed for exclusivity as they did and thateach was ready to pay so much for it points to the commercial confidentiality ofcoverage of the event. The event was private in character and the elaborate stepsto exclude the uninvited, to include only the invited, to preclude unauthorizedphotography, to control the authorized photography and to have had theclaimants’ intentions in that regard made clear all conduce to that conclusion.Such images as were, so to speak, radiated by the event were imparted to thosepresent, including Mr Thorpe and his camera, in circumstances importing anobligation of confidence. Everyone there knew that was so.‛Furthermore, everyone knew that the obligation of confidence was imposed forthe benefit of OK! as well as the Douglases. To no one could this have beenclearer than to Mr Thorpe. The judge then went on to make findings about thecircumstances in which Hello! had acquired his photographs:‚198. As for the Hello! defendants, their consciences were, in my view, tainted;they were not acting in good faith nor by way of fair dealing. Whilst theirposition might have been worse had I held that the taking of unauthorisedpictures for use by them had been truly commissioned in advance, even withoutthat there is in my view enough to afflict their conscience. They knew that OK!had an exclusive contract; as persons long engaged in the relevant trade, theyknew what sort of provisions any such contract would include and that it wouldinclude provisions intended to preclude intrusion and unauthorisedphotography. Particularly would that be so where, as they knew, a veryconsiderable sum would have had to have been paid for the exclusive rightswhich had been obtained. … The surrounding facts were such that a duty of
confidence should be inferred from them. The Hello! defendants had indicated topaparazzi in advance that they would pay well for photographs and they knewthe reputation of the paparazzi for being able to intrude. The unauthorisedpictures themselves plainly indicated they were taken surreptitiously. Yet thesedefendants firmly kept their eyes shut lest they might see what they undeniablyknew would have become apparent to them.‛The obligation of confidence was therefore binding upon Hello! and the thirdrequirement of use to the detriment of OK! was plainly satisfied. Lindsay Jtherefore decided that Hello! was liable to OK! for the loss caused by thepublication, which he later assessed at £1,033,156.The Court of Appeal reversed the judge’s decision on the ground that theobligation of confidence for the benefit of OK! attached only to the photographswhich the Douglases authorized them to publish. They did not have the benefitof an obligation of confidence in respect of any other photographs. Theirpublication may have invaded a residual right of privacy retained by theDouglases but did not infringe any right of OK!In the researcher’s opinion Lindsay J was right. The point of which one shouldnever lose sight is that OK! had paid £1m for the benefit of the obligation ofconfidence imposed upon all those present at the wedding in respect of anyphotographs of the wedding. That was quite clear. Unless there is someconceptual or policy reason why they should not have the benefit of thatobligation, it cannot be seen why they were not entitled to enforce it. And thereare no such reasons. Provided that one keeps one’s eye firmly on the money andwhy it was paid, the case is, as Lindsay J held, quite straightforward.It is first necessary to avoid being distracted by the concepts of privacy andpersonal information. In recent years, English law has adapted the action forbreach of confidence to provide a remedy for the unauthorized disclosure ofpersonal information. This development has been mediated by the analogy of theright to privacy conferred by article 8 of the European Convention on HumanRights and has required a balancing of that right against the right to freedom ofexpression conferred by article 10. But this appeal is not concerned with theprotection of privacy. Whatever may have been the position of the Douglases,who recovered damages for an invasion of their privacy, OK!’s claim is to protectcommercially confidential information and nothing more. So there is no need tobe concerned with Convention rights. OK! has no claim to privacy under article 8nor can it make a claim which is parasitic upon the Douglases’ right to privacy.The fact that the information happens to have been about the personal life of theDouglases is irrelevant. It could have been information about anything that a
newspaper was willing to pay for. What matters is that the Douglases, by theway they arranged their wedding, were in a position to impose an obligation ofconfidence. They were in control of the information.The counsel for the respondent argued that the information in the photographicimages was not intended to be kept secret but to be published to the world byOK! and was so published at much the same time as the unauthorisedphotographs in Hello!. They also argued that once the approved photographswere published, the publication of the unauthorised photographs was not abreach of confidence and that the differences between the photographs were‚insufficiently significant to call for legal protection‛; ‚the unapproved picturescontained nothing not included in the approved pictures‛.However, since a substantial amount of money was inloved in the contract, thepoint of the transaction was that each picture would be treated as a separatepiece of information which OK! would have the exclusive right to publish. Thepictures published by OK! were put into the public domain and it would havehad to rely on the law of copyright, not the law of confidence, to prevent theirreproduction. But no other pictures were in the public domain and they did notenter the public domain merely because they resembled other pictures whichhadThe judge found that despite the massive publicity which accompanied thewedding, it was nonetheless ‚private‛. He also found that the contract with OKMagazine was ‚a means of reducing the risk of intrusion by unauthorisedmembers of the media and hence of preserving the privacy of *the wedding+.‛The judge made some important observations about the law of privacy indismissing the claimants’ claim in that respect. The main reason he gave fordismissing that part of the claimants’ action was that he doubted that UK lawhad a distinct right of privacy.The judge made some important observations about the law of privacy indismissing the claimants’ claim in that respect. The main reason he gave fordismissing that part of the claimants’ action was that he doubted that UK lawhad a distinct right of privacy. He observed that UK law did not adequatelyprotect the European Convention right in this respect. He said that Parliamentshould step in to correct this deficiency, but that if Parliament failed to grasp thenettle the court would ultimately have to do so. That would not happen until thecourt was faced (as it was not here) with a claim where breach of confidence didnot provide an adequate remedy.Apart from the privacy of the wedding, the other main issue before the court wasthe commercial benefit both to OK Magazine and to Douglas and Zeta-Jones of
the exclusive contract between them, and the ‚spoiling‛ publication ofunauthorised pictures by Hello! The significance of the judgment is that thejudge allowed the claimants to enforce the contract against Hello! on the basisthat the commercial effect of the contract was to create something akin to a tradesecret. The judge found that Hello! was not acting in good faith, and that it hadclearly breached the Press Complaints Commission Code since it was plain thatthe photographs that it purchased were obtained by subterfuge. Therefore theirconscience was ‚tainted‛ which meant that the claimants were entitled to enforcetheir equitable rights in the law of confidence against Hello!The judge held the defendants to be liable to the Claimants under the law as toconfidence. An important step in his coming to that conclusion had been that, onbalancing rights to confidence against freedom of express for the purpose ofgranting or withholding relief, he had been required by statute to pay regard tothe Code of the Press Complaints Commission. According to the judge, TheHello! Defendants broke their own industry’s Code.The important thing for the claimants is that they were granted their remedy.The common press practice of ’spoiling’ exclusives of this sort now carries a clearcommercial risk, since on the basis of this judgment such contracts will be upheldby the courts and enforced against anyone who is or ought to be aware of them.This reduces the value of such unauthorised photographs, and while furtherdoubt has been cast on the existence of a distinct law of privacy, the protectionthat the law will grant against this sort of press activity has been strengthened bythis judgmentThe Douglases and OK magazine won their actions for breach of confidenceagainst Hello! Magazine and its publishers, despite adjudications on someaspects of the claims in the defendants’ favour. However, a complex series ofquestions fell to be determined by the judge on the appropriate orders for costsbased on his previous judgments both as to liability and quantum.The judge awarded the claimants 85% of their costs for the hearing on quantumand he ordered that these too should be assessed on the standard basis. He wenton to order £120,000 interest on the award of over £1 million made to OK in theaction.The Douglases and OK magazine won their actions for breach of confidenceagainst Hello! magazine and its publishers, despite adjudications on someaspects of the claims in the defendants’ favour. However, a complex series ofquestions fell to be determined by the judge on the appropriate orders for costsbased on his previous judgments both as to liability and quantum.
The judge specifically took into account the judicial findings of misconductagainst Hello!, referring to the ‚lamentable incident‛ whereby an ‚untruthfuland misleading‛ letter had been procured by those defendants. A number ofharsh criticisms by the judge of the behaviour of Hello! in his judgment on theissue of costs clearly had an impact on his various awards.The judge considered that an award that merely looked at the number of issueswon respectively by the claimants and the defendants would not fairly reflect therealities of the case. Overall, the claimants had clearly won the liability hearing,and he considered therefore that the appropriate proportion of their costs whichthe defendants should pay was 75%. He assessed this on the ‚standard‛ basisbecause he considered that the award of ‚indemnity‛ costs at an earlier hearingwhere the misconduct by Hello! was exposed constituted sufficient punishment
ConclusionThe laws in place to counter the menace of defamation are both satisfactory andreasonable but in certain areas need to be made more stringent so as to dissuadethe celebrity crazy media from wantonly publishing and broadcastingfraudulent, defamatory matter in order to make instant money. Thus theprotection of privacy and the prevention of press harassment is also an importantissue which needs to be redressed with the better implementation of lawsalready existing.Since no cause of action survives the defamed person’s death, it is clear thatreputation is merely a transitory interest, which, by way of the defencesavailable, has to be balanced against the public interest. Similarly fair commentsprotect the press when expressing their views on the actions of politicians, publicservants and others in the public eye, provided they are true.Defamation does have significance and a very strong one at that as it protects aright which is essential to for the members of society to co-exist. Obviously, ifpeople do not respect that right and are allowed to say and publish whateverthey want without substantiating it with an honest reason to believe, then therewould be no harmony in society, insecurity would be rampant and societywould be in shambles. However there exists the question of balancing theinterest of both the parties concerned. This debate on how to achieve the correctbalance between the individual’s interest in his good name and freedom ofspeech is a vital attribute of democratic society. However, while trying to resolvethat debate via the development of the tort of defamation, the courts arehindered by the procedural game which characterises many libel actions, theunpredictability of the jury, and the absence of developed torts of invasion ofprivacy and breach of confidence. Thus more changes need to be taken which doaway with the superfluous procedural games thus leaving behind only the coreof the tort to be implemented. However, the tort of defamation has an ancienthistory and a capacity for survival which shall outlive more topical concerns.
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