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Defamation Law in India
 

Defamation Law in India

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Defamation law in India, law of defamation in India

Defamation law in India, law of defamation in India

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    Defamation Law in India Defamation Law in India Document Transcript

    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 Overview of Evolution of the Law of Defamation and its Practice in India S almond defines the wrong of defamation as the publication of a false and defamatory statement about another person without lawful justification1. According to Underhills, such a statement becomes defamation if it is made about another without just cause or excuse, whereby he suffers injury to his reputation (not to his self-esteem)2. He considers defamatory statement as one which imputes conduct or qualifies tending to disparage or degrade any person, or to expose him to contempt, ridicule or public hatred or to prejudice him in the way of his office, profession or trade. Blackburn and George define defamation as the tort of publishing a statement which tends to bring a person into hatred, contempt or ridicule or to lower his reputation in the eyes of right thinking members of society generally‖3. The words ―to lower his reputation in the eyes of right thinking members of society generally‖ are taken from the test suggested by Lord Atkin in Sim v. Stretch, viz. ―would the words tend to lower the plaintiff in the estimation of right thinking members of the society generally‖. Fraser thinks that a statement becomes defamatory if it exposes on 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, profession or trade. However, Winfield does not agree with this definition. According to him, defamation is the publication of a statement which tends to lower a person in the estimation of the right thinking members of society generally or which tends to made them shun or avoid that person. He thinks that a statement may possibly be defamatory even if it does not excite in reasonable people feelings quite so strong as hatred contempt or ridicule‖. The phrase ―right thinking members of society‖ excludes a lay or morally blunt men or hypersensitive and conscious persons.4 Defamation may thus be defined as any intentional false communication, either written or spoken, that harms a person's reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person5. The wrong of defamation may be committed by making defamatory statements which are calculated to expose a person to hatred, contempt or ridicule, or to injure him in his trade, business, profession, calling or office, or to cause him to be shunned or avoided in society. Defamation is a unique tort, especially when understood in its historical context. Until the 16th century in England, general jurisdiction over defamation was exercised by the clergy. Thereafter, the common law courts developed an action on the case for slander where ‗temporal‘, as distinct from ‗spiritual‘ damage 1 th Salmond on Torts,13 1961 edition. P361 th Law Torts, Underhills,18 1946 edition p 23 3 nd Elements of the Law of Torts by Blackstone and George,2 1949 edition p. 167 4 th Winfield, Tort, 7 edition 1963, P.574 5 http://legal-dictionary.thefreedictionary.com/defamation 2 1
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 could be established. In the late nineteenth and early twentieth centuries, liability in defamation was extended because of the menace to reputations occasioned by the new, popular press with its mass circulation. In Derbyshire County Council v Times Newspapers Ltd the press scored a notable victory. The House of Lords ruled that a democratically elected body should be open to uninhibited public criticism and that the threat of a defamatory action would surely inhibit the freedom of speech of the press. However, in Reynolds V Times Newspapers Ltd, the Court of Appeal was mindful of the fact that the European Rights Convention, which stressed upon the fundamentality of the right to freedom of speech, was destined to become a part of common law and that thus there should be allowed the defense of qualified privilege to be raised by the press when commenting on public figures. Defamation is a relatively new tort for Indian Law. Not many defamation suits were filed in the country until recently and the only ones that were filed were those by film stars and the rich and the famous, against the media, trying to salvage their reputation. However, now after the media revolution in this country, and with people becoming more aware of their rights, the frequency of defamation suits being filed is increasing. Recently, there have been a few cases where 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 bribe for posing questions in parliament or religious heads discreetly accepting bribes in order to go ahead and declare something about their religion, distorting completely the religious principles they are supposed to uphold and by misuse the authority vested in him/her. In English Common Law, reputation is the most clearly protected and is remedied almost exclusively in civil law by an award of damages after trial by a jury. However, the Law of Defamation like many other branches of tort law aims at balancing the interests of the parties concerned. These are the rights that a person has to his reputation vis-à-vis the right to freedom of speech. The Law of Defamation provides defenses to the wrong such as truth and privilege thus also protecting right of freedom of speech but at the same time marking the boundaries within which it may be limited. In India tort law is obtained from British Common Law and is yet uncodified, except for few areas. Therefore the existing law relating to defamation places reasonable restrictions on the fundamental right of freedom of speech and expression conferred by Article 19(1) (a) of the Constitution and is saved by clause (2) of Article 19. Defamation is defined as ―the publication of a statement which reflects on a person‘s reputation and tends to lower him in the estimation of rightthinking members of society generally or tends to make them shun or avoid him.‖ Defamatory statements can be made as libel or as slander as discussed in the succeeding paragraphs. Libel: The publication of a false and defamatory statement tending to injure the reputation of another person without lawful justification or excuse. The 2
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 statement must be in a printed form, e.g., writing, printing, pictures, cartoons, statue, waxwork effigy etc. Lopes, J., in Monson V. Tussauds points out that libels need not always be in writing or writing. The defamatory matter may be conveyed in some other permanent form as a statue, a caricature, an effigy, chalk mark on a wall, sign or pictures. Conversely, the spoken work is the most obvious example of a form of expression which is slander; other examples are gestures, and perhaps, inarticulate expressions of disapproval such as hissing or booing, or cat calls and significant gestures, such as winking etc., In Manson V. Tussauds case, the defendants, who kept a wax works exhibition, had exhibited a wax model of the plaintiff with a gun, in a room adjoining the ‗Chamber of Horrors‘ (a room in the basement, in which the wax models of notorious criminals were kept). The plaintiff has been tried for murder in Scotland and released on a verdict of ‗Not proven‘ and a representation of the scene of the alleged murder was displayed in the chamber of horrors. The Court of Appeal held that the exhibition was libel. 6 Thus it is libelous to write and publish of a man that he is a rogue or a rascal, a swindler, a crook, a coward, a liar, a hypocrite, a villain, a blackguard, a blackleg, a libeller, a scandalmonger or a habitual drunkard, or that he is dishonest or immoral or wanting ingratitude. It is libelous to write that man has been guilty of oppressive insulting, intolerant or unbrotherly conduct. In such cases the onus lies on the defendant to prove from the context in which the words were used or from the manner of their publication, e.g., in slander the tone in which the words were uttered or other facts known to those to whom the words were published, that words could not be understood by reasonable men to convey the imputation suggested by the mere consideration of the words themselves i.e., they were understood merely as a joke or (in an action for slander) a mere abuse or as in no sense defamatory of the plaintiff. In the second class of cases the language is ambiguous as where it is equally capable on the face of it of two meanings, the one defamatory and the other innocent. In Tolley vs. Fry, Tolley was a champion amateur golfer and member of a sports club. The rules of the club prohibited members from associating themselves with any advertisement media. The defendants, Fry, who were manufacturers of chocolates – caused to appear in certain newspapers an advertisement of their chocolate, and a caricature of the plaintiff playing a stroke at golf with defendant‘s chocolate protruding from his pocket. It was held by the House of Lords that the innuendo was proved in view of the circumstances and therefore, the defendants were liable. Slander: A false and defamatory statement by spoken words and/or gestures tending to injure the reputation of others. It is in a transient form. It also involves the sign language used by the physically disabled. While libel is actionable per se without proof of special damage, the slander is actionable only on proof of special damage. Special damage signifies that no damages are 6 1895 1 Q..B. 671) 3
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 recoverable merely for loss of reputation by reason of the slander, and that the plaintiff must prove loss of money or of some temporal or material advantage estimable in money. If there is only loss of the society or consortium of one‘s friends, that is not enough. Where there is no need to prove special damage in defamation, the plaintiff can recover general damages or the injury to his reputation without adducing any evidence that it has in fact been harmed, for the English law presumes that some damage will arise in the ordinary course of things. It is enough that the immediate tendency of the words is to impair his reputation. If the plaintiff contends that special damage has been suffered in addition to general damages, he must allege it in his pleadings and prove it at the trial but even if he breaks down on this point, he can still recover general damages. In India the between libel and slander on the point whether it is actionable without proof of special damage has not been recognized. Here, both libel and slander are criminal offences under the Indian Penal Code and both of them are actionable in civil law without proof of special damage as in Ms. Ramdhara v. Phulwatibai7. Slander may be the result of a sudden provocation uttered in the heat of the moment, while the libel implies grater deliberation and raises a suggestion of malice. Libel is likely to cause more harm to the person defamed than slander because there is a strong tendency everywhere on the part of most people to believe anything they see in print. In general slander is actionable only on proof of special damage, but in the following exceptional cases slander is actionable per se or without proof of special damage. Words which are not defamatory in their ordinary sense may, nevertheless, convey a defamatory meaning owing to the circumstances in which they are spoken. Such words are actionable if it is proved that would be understood as defamatory by the persons to whom they were published. In Boydell V. Jones8 a lawyer even took objection to the description of ―an honest lawyer‖ which was applied to him in the heading of a paragraph containing some details of a case in which he was concerned; and it was held that the phrase was capable of meaning the exact opposite of what it said or light therefore be libelous. In Cassidy V. Daily Mirror Newspapers Ltd., a majority of the court of Appeal held the innuendo was established and the Jury entitled her to damages as they held that the publication conveyed to reasonable person an aspersion on the plaintiff‘s moral character. Imputation of Criminal Offence: When the slander imputes that the plaintiff has committed a crime punishable with imprisonment, there must be direct imputation of the offence, not merely suspicion of it and it is not enough if the offence imputed is punishable with fine. The words imputing a suspicion of a crime, even though the offence is punishable corporal, are not actionable without proof of special damage. But the words ―you are a rogue and I will prove you are 7 1969 Jab.L.J.582 1838.4M&W. P.446 8 4
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 rogue, for you forged my name‖ are not mere imputation of a suspicion and are actionable per se. Again the words ―you are guilty (innuendo) of the murder of D‖ have been held to amount to a charge of murder and are actionable without proof of actual damage. The crime imputed need not be indictable; it is sufficient if it is punishable corporal. Nor it is necessary that the words should specify any particular offence. Where the imputation of crime is accompanied by an express reference to a transaction which merely amounts to a civil wrong, slander is not actionable per se. Where the crime imputed is impossible and has not been committed with the knowledge of all parties etc., where the defendant said to the plaintiff‖ Thou has killed by wife and she was then alive within the knowledge of all, there is no such imputation as can be made the basis of a suit without proof of special damage. Libel, if it tends to provoke the breach of the peace is a crime as well as tort; Slander as such is never criminal although spoken words may be punishable as being reasonable, seditious, and blasphemous or the like. This distinction between libel and slander is not recognized in India. In England while libel is both a crime and civil wrong, slander is only a civil wrong. In India, However both are criminal offences. Indian decisions relating to slander may be classified under three heads, viz. vulgar abuse, imputation of unchastity to a woman and aspersion of caste. Imputation of disease: Imputation that the plaintiff is suffering from an unpleasant, contagious or infectious disease tending likely to exclude the plaintiff from society is actionable per se. Imputation of unfitness or incompetence: An imputation of unfitness, dishonesty or incompetence in any office, profession, calling, trade or business held or carried on by the plaintiff at the time when slander is published is actionable per se. The words ‗sala,‘ ‗haramjada,‘ ‗sooar and ‗bapar beta’ were held to be mere abuse. Where however, an abusive language is not only insulting but amounts to defamation as well as action will lie even without proof of special damage. It has been held by the Oudh Chief Court that to say of a high caste woman that she belongs to a low caste is a slander which is actionable per se not only at the instance of the woman herself, but also at the instance of her husband.9 Imputation of Unchastity: Imputation of unchastity or adultery to a woman or girls is also actionable per se. It has been held that imputation of unchastity includes that of lesbian or homosexual vice. Formerly imputation of unchastely to women or girls was not actionable per se, except in the City of London Slander of Women Act 1891 that extended its purview to all over the Country. In Parvathi V. Manner the defendant abused the plaintiff and said that she was not the legally married wife of her husband, but a woman who had been ejected from several 9 Gaya Din Singh v Mahabir Singh, 1. Luck 386 5
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 places for unchastely. It was held that the defendant was liable. The Common Law rule that slander is not actionable per se has not been followed in India. The reason given is that the rule is not founded in any obvious reason or principle and that it is not in consonance with ―Justice, equity and good conscience‖ English law itself underwent a change by the Slander of Women Act. In Common law, a libel is a criminal offence as well as a civil wrong, but a slander is a civil wrong only. However in Indian law, both are criminal offences under Sec. 499 of the I.P.C. Libel is more favorable to the claimant because it is actionable per se and injury to reputation will be presumed. However, whether the case is one of libel or slander, the following elements must be proved by the claimant in order for the defendant to be 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. is communicated to at least one person other than the claimant. Regardless of whether a defamation action is framed in libel or slander, the plaintiff must always prove that the words, pictures, gestures etc are defamatory. Equally, the plaintiff must show that they refer to him. Finally he must also prove that they were maliciously published. These are the three essential elements in a defamation action that are discussed in detail in the succeeding paragraphs. The statement must be defamatory: Any imputation which exposes one to disgrace and humiliation, ridicule or contempt, 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 some conduct. According to Lord Atkins, whether a statement is defamatory or not depends upon 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. The standard to be applied is that of a right-minded citizen, a man of fair average intelligence, and not that of a special class of persons whose values are not shared or approved by the fair minded members of that society generally. If the likely effect of the statement is the injury to the plaintiff‘s reputation, it is no defense to say that it was not intended to be defamatory. When the statement causes 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 local daily in Jodhpur that Manjulata on the pretext of attending her evening BA classes 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 was untrue and had been irresponsibly published without any justification. This was defamatory and the defendants, the newspaper publishers were held liable. However, words spoken in anger or annoyance or in the heat of the moment are not defamatory as they no way reflect on the character of the one 6
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 being abused. The standard applied in determining whether or not a statement is defamatory is that of a right minded citizen, a man of fair intelligence, and not that of a special class of persons whose values are not shared or approved by the fair minded members of society generally. If the likely effect of that statement is injury to the plaintiff‘s reputation, it is no defense to say that it was not intended to be defamatory. Mere hasty expression spoken in anger, or vulgar abuse to which no hearer would attribute any set purpose to injure character would not be actionable. Words which merely injure the feelings or cause annoyance but in no way reflect on character or reputation are not libelous. Sometimes the statement being used to defame may be prima facie innocent but becomes defamatory because of some latent or hidden meaning. In such a scenario the plaintiff must prove the hidden meaning, which is the innuendo if s/he wants to file a suit for defamation. For instance in Cassidy V Daily Mirror Newspapers the newspaper published a picture of a lady and the race horse owner with the caption underneath, Mr. M. Corrigan, the race-horse owner and Miss X whose engagement has been announced. The newspaper was held liable in a suit that said that the lady was the lawful wife of Mr. Corrigan and complained that the words suggested that she had been living with him in immortality. The liability of the defendants rested on their failure to make independent inquiry. This also brings forth another aspect of this tort that intention to defame is not necessary and if the words are considered to be defamatory by the persons to whom the statement is published, there is defamation. Another feature of the law of defamation is that innuendo is also penalized if it is defamatory. This is illustrated by the case of Sumatibai v. Nandkumar Deshpande. In this case there was a newspaper article about how the bowls brought by kindergarten children were not returned after they left the institution. There was an innuendo that there was no account for the unreturned bowls and the only person who knew what became of them was Sumatibai. It was held that the article was abusive and reprehensible and the suggestion of misappropriation of the bowls by Sumatibai was defamatory.10 In Liberace v Daily Mirror Newspapers Ltd (1959), the American pianist Liberace, who at the time was very famous for his glittering costumes and effeminate manner, sued the Mirror over an article which described him as a ‗deadly, winking, niggering, chromium-plated, scent-impregnated, luminous, quivering, giggling, fruit-flavoured, mincing, icecovered heap of mother-love‘.11 Liberace claimed that the article implied he was homosexual, which he denied. Similarly, in 1986 the Star published a gossip column story about Lord Gowrie, an ex-Cabinet Minister, who had stepped down from his post the year before. Questioning why he had resigned, the story referred to ‗expensive habits‘, and said that Lord Gowrie would ‗snort‘ at the idea 10 11 Extracted on Sep 13, 2013 from http://www.indiankanoon.org/doc/1352591/ Extracted on Sep 14, 2013, from catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearson... 7
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 that he had been ‗born with a silver spoon round his neck‘. Lord Gowrie sued, arguing that references to expensive habits, snorting and a silver spoon implied that he habitually took cocaine. He won his case.12 A statement is prima facie defamatory when its natural and obvious meaning leads to that conclusion. At times though a statement may be prima facie innocent but some latent or secondary meaning may be considered defamatory, the burden to prove the latent meaning lies on the plaintiff. For example, saying even A is an angel may be slander if the statement was understood to refer to a criminal gang known as ―The Angels.‖ In 1988 the business magazine Stationery Trade News carried an article about counterfeit stationery products which were being imported into the UK. Towards the end of the story, it mentioned a different problem, involving envelopes which were not made in the UK being marketed under a brand name which sounded British. The makers of these envelopes sued the magazine, claiming that the story implied that they were selling counterfeit envelopes. 13 They won their case. The statement must refer to the plaintiff: The plaintiff has to prove that the statement which is claimed to be defamatory actually refers to him/her. It is immaterial that the defendant did not intend to defame the plaintiff, if the person to whom the statement was published could reasonably infer that the statement referred to the plaintiff, the defendant is nevertheless liable. In R.K.Karanjia Vs. KMD Thackaresey14 it was observed that the burden of proving malice in law for every false and defamatory statement, is always on the plaintiff. In Sadosiba Panda Vs. Bansidhar Sadhu15, it was held that proof of actual loss of reputation is not necessary. It is sufficient to establish that the defamatory statement made would damage one's reputation. In Hulton Co. V Jones the defendants published a fictional article in their newspaper in which aspersions were cast on the morals of a fictitious character-Artemus Jones, stated to be a Church warden. On this basis one Artemus Jones, a barrister, brought an action against the defendants. The defendants pleaded that Artemus was a fictional character and the plaintiff was not known to them and thus they had no intention to defame him. Notwithstanding this, they were held liable because a substantial number of persons who knew the plaintiff and had read the editorial would have assumed it to be referring to him. However, when the defamation refers to a class of persons, no member of that group can sue unless he can prove that the words could reasonably be considered to be referring to him. When the statement though generally referring to a class can be reasonably considered to be referring to a particular plaintiff, his action will succeed. In Fanu v. Malcomson, in an article published by the defendants, it was mentioned that cruelty was practiced upon 12 Extracted on Sep 14, 2013, from catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearson... Extracted on Sep 14, 2013, from catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearson... 14 AIR 1970 Bom. 424 15 AIR 1962 Orissa 115 13 8
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 employees in some of the Irish factories. From the article as a whole including a reference to Waterford itself, it was considered that the plaintiff‘s Waterford factory was aimed at in the article and the plaintiff was, therefore, successful in his action for defamation. The statement must be published: Publication means making the defamatory matter known to some other third party and unless that is done, no civil action for defamation can lie in court. Communication to the plaintiff won‘t count because defamation is injury to the reputation which consists in the estimation in which others hold him and not a man‘s own opinion of himself. However, if a third party wrongfully intercepts and reads a letter sent to the plaintiff it is not defamation. However when the defendant knows that the letter is likely to be read by someone else and it contains some personal information only meant for the recipient, then he will be liable. Also, an injunction can be issued against the publication of a defamatory statement which is likely to injure the reputation of one of the parties involved as was done in Prameela Ravindran v. P. Lakshmikutty Amma. When the repetition of the defamatory matter is involved, the liability of the person 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 of action. Not only the author is liable but the editor, printer or publisher would be liable in the same way. Publication means making a defamatory matter known to some person other than the person defamed. Therefore communicating to the plaintiff himself is not enough for defamation, however it will be defamation if the defendant knew or ought to have known that the letter although sent to the plaintiff will be read by a third person for example writing in a language not known to the plaintiff which would required a translator. Dictating a defamatory letter to the typist or sending it via postcard or telegram is defamation since it is likely to be read by someone else. A father opening the son‘s letter or a butler opening and reading a sealed letter meant for his employer is not defamation since there was no publication. If a third party wrongfully reads a letter meant for the plaintiff, the defendant is not liable. A husband and wife being one person under the eyes of the law, communication of the defamatory matter from the husband to the wife or vice versa is no publication. However communication of matter defamatory of one spouse to the other is sufficient publication. Every person who repeats the defamatory matter is liable in the same way as the originator, because every repetition is a fresh publication giving rise to a fresh cause of action. Under Section 499 of the Indian Penal Code, defamation is committed by ―Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.‖ The aim of the law of defamation is to protect 9
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 one‘s reputation, honor, integrity, character and dignity in the society. Defamation is both a crime and a civil wrong. An aggrieved person may file a criminal prosecution as well as a civil suit for damages for defamation. There is no statutory law of defamation in India except Chapter XXI (Section 499-502) of the Indian Penal Code. Under Section 500 of the Indian Penal Code, defamation shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or both. As far as civil liability of defamation is concerned, it has been long settled in the country that an action for damages would lie in proper cases. A large number of artificial and technical rules have grown around this branch of law in England. Though courts in India are not bound by them however, the dicta may be helpful in that they can be applied to Indian cases as principles of equity, justice and good conscience. The following are some defenses which may be invoked against the crime of defamation:  Truth published for public interest;  Any expression in good faith on the conduct or character of a public servant on a public question.  Publication of a substantially true report.  It is not defamation to express in good faith any opinion regarding the merits of any case, which has been decided by a Court of Justice, or the conduct of any person as a party, or the witness or the agent, in such case.  It is not defamation to express in good faith any opinion regarding the merits of any performance which an author has submitted to the judgment of the public.  It is not defamation if a person having any authority over another person, either conferred by law or arising out of a lawful contract, to pass in good faith any censures on the conduct of that other in matters to which such lawful authority relates.  It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation.  It is not defamation to make an imputation on the character of another person, provided it is made in good faith by person for protection of his or other‘s interests.  It is not defamation to convey a caution, intended for the good of a person to whom conveyed or for public good. In India, defamation through the internet is punishable under Article 66A of the Information Technology Act of 2000 and may be punishable for imprisonment 10
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 upto three (3) years, and a fine. However, by virtue of Section 79 of the Information Technology Amendment Act 2008 which became a law on February 5, 2009, social networking websites or known as intermediaries ―shall not be liable for any third party information, data, or communication link made available by him‖ and provided the following requisites are present — (a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored; or (b) the intermediary does not— (i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission. Section 468 (2) (c ) of the Criminal Procedure Code, stipulates that the limitation for prosecution of offenses punishable with imprisonment for a term more than one (1) year but not exceeding three (3) years shall be three (3) years. Under Section 199(5) of the Criminal Procedure Code, if the offense for defamation is committed against the President/Vice President of India, Governor of the State, Minister of a Union or of a State, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions, the action shall prescribe if the Complaint to be initiated in writing by the Public Prosecutor shall not be made within a period of six (6) months from the time of the commission of the offense. As far as defamation under tort law is concerned, as a general rule, the focus is on libel (i.e. written defamation) and not on slander (i.e. spoken defamation). In order to establish that a statement is libelous, it must be proved that it is (i) false, (ii) written; (iii) defamatory, and (iv) published. However, there are defenses to the Tort of Defamation that are discussed in the succeeding paragraphs. Justification by truth: In a civil action for defamation, truth is a complete defense. However under criminal law, it must also be proved that the imputation was made for the public good. Under the civil law, merely proving that the statement was true is a good defense the reason being that the law will not permit a man to recover damages in respect of an injury to a character which he either does no or ought not to possess. In a civil action for defamation, the truth of the defamatory matter is a complete defense because by such publication, the reputation of an individual is brought to the level he deserves. The defense is available even if the publication was made maliciously. If a statement is substantially true but incorrect in certain minor particulars, the defense will still be available. In Subhash Chandra Bose V. Knight & Sons, The Statesman published in its issue of 26th November,1924, passage commenting on the speech of Lord 11
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 Lytton, the then Governor of Bengal, where-in it was stated that the Governor said Mr. Subhash Chandra Bose was arrested under Regulation 3 and alleged that he was the brain behind the terrorist conspiracy. The plaintiff‘s complaint was that the writer stated a fact that he was a member and a directing brain of a terrorist movement. The Court held that although the defendants were entitled to refer to the fact that the Viceroy and the Governor, had caused the arrest of the plaintiff because they were satisfied that he was a terrorist, but in a matter of so great importance to the plaintiff it was very necessary that they should refrain from conveying to the ordinary reader an opinion of their own which was in effect the reiteration of a charge of criminal conspiracy. A fair and bona fide comment on a matter of public interest: It involves making fair comments on matters of public interest. For this defense to be available, the following essentials are required:  It must be a comment, i.e., an expression of opinion rather than an assertion of fact  The comment must be fair, i.e., must be based on the truth and not on untrue or invented facts  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, his comment ceases to be fair and he cannot take such a defense. In Gregory V Duke of Brunswick the plaintiff, an actor, appeared on the stage of a theatre but the defendant and other persons in malice started hooting and hissing and thereby caused him to lose his engagement. This was held to actionable and an unfair comment on the plaintiff‘s performance and the defendants were held to be guilty. For example, a former employer has a moral duty to state a servant‘s character to a person who is going to employ the person. But if the former employer without any enquiry publishes the character of his servant with a motive to harm the servant, the defense of qualified privilege cannot be taken. Such communications may also be made in the case of confidential relationships like those of husband and wife, father and son and daughter, guardian and ward, master and servant, principal and agent. In modern times it includes everything relating to national or local government, the administration of public institutions whether of State or Private aided, or charitable or educational institutions; the public conduct not only of all public officials but of all persons as priests, clergyent, judges, barristers, political candidates, and agitation‘s who take part in public affairs, in short it includes the conduct of every man and institution of public concern. Privilege: It is of two kinds, viz. absolute and qualified as discussed in the succeeding paragraphs. Absolute Privilege: Certain statements are allowed to be made when the larger interest of the community overrides the interest of the individual. No action 12
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 lies for the defamatory statement even though it may be false or malicious. In such cases, the public interest demands that an individual‘s right to reputation should give way to the freedom of speech. This privilege is provided to Parliamentary, judicial proceedings, Military and Naval and State proceedings. Art. 105(2) of our Constitution provides that (a) statements made by a member of either House of Parliament in Parliament, and (b) the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings, cannot be questioned in a Court of law. A similar privilege exists in respect of State Legislatures, according to Art. 194(2). No action for libel or slander lies whether against Judges, Counsels, Witnesses, or Parties, for words written or spoken in the course of any proceedings before any court recognized by law, even though the words written or spoken were written or spoken maliciously, without any justification of excuse, and from personal ill-will, and anger against the person, defamed. Such a privilege also extends to proceedings of the tribunals possessing similar attributes. Protection to the judicial officers in India has been granted by the Judicial Officer‘s protection Act, 1850. The counsel has also been granted absolute privilege in respect of any words spoken by him in the course of pleading the case of his client. If, however the words spoken by the counsel are irrelevant not having any relevance to the matter before the Court, such a defence cannot be pleaded. The privilege claimed by a witness is also subject to a similar limit. A statement made by one officer of the State to another in the course of official duty is absolutely privileged for reasons of public policy. Such privilege also extends to reports made in the course of military and naval duties in the publication. Qualified Privilege: For communications made in the course of legal, social or moral duty, for self-protection, protection of common interest, for public good and proceedings at public meetings, provided the absence of malice is proved. Also, there must be an occasion for making the statement. Indian Penal Code contains such a privilege in its ninth exception to Section 499. To avail this defense, the following things must be kept in mind:  The statement should be made in discharge of a public duty or protection of an interest  Or, it is a fair report of parliamentary, judicial or other public proceedings  The statement should be made without any malice. In India, the Parliamentary Proceedings (Protection of Publication) Act, 1977, grants qualified privilege to the publication of reports of proceedings of parliament. According to Sec. 3 (1) ―no person shall be liable to any proceedings, civil or criminal, if any court in respect of the publication in a newspaper of a substantially true report of any proceedings, of either House of Parliament unless the publication is proved o have been made with malice.‖ Art. 361-A which was inserted by Amendment in 1978 provides protection of publication of 13
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 proceedings of Parliament and State Legislatures. The above stated protection is not available unless the publication has been made for public good. Thus, to claim qualified privilege in respect of parliamentary proceedings the publication should be without malice, and for public good. While courts have awarded damages broadly in consonance with the principles enumerated above, they have also resorted to legal precedent and created newer case law and legal precedent. In Byrne v Deane (1937), the claimant was a member of a golf club, whose owners illegally kept gambling machines on the premises. Someone reported them to the police and afterwards a poem was posted up in the club, implying that the claimant had been the informant. He sued, and won the original case, but on appeal the courts held that the suggestion was not defamatory, because a right-thinking member of society (or as it might be expressed today, an ordinary, reasonable person) would not think less well of someone for telling the police about a crime. In 1997, a columnist on the Express on Sunday’s magazine mentioned a newspaper story which had stated that the film star Nicole Kidman had insisted that builders working on her house should face the wall whenever she walked past. A judge initially found that the story, though unpleasant, was not capable of being defamatory, but Ms Kidman appealed. The Court of Appeal agreed with her that the statement was capable of being defamatory. In the event the case was settled out of court. Section 499 of the Indian Penal Code (IPC) defines defamation as: Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Explanation 1 states that it may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2 states that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3 provides that an imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4 states that no imputation is said to harm a person' s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. 14
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 Section 499 of the IPC also provides ten exceptions to defamation16 that are broadly in consonance with the generic principles and exceptions discussed above. The first is the imputation of truth which public good requires be making or publishing. It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. The second relates to public conduct of public servants. It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further. The third exception relates to the conduct of any person touching any public question. It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further. Thus, it is not defamation in A to express in good faith any opinion whatever respecting Z‘s conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending at such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharge of the duties of which the public is interested. The fourth exception relates to the publication of reports of proceedings of courts. It is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings. The fifth exception relates to merits of cases decided in Court or conduct of witnesses and others concerned. It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further. Thus, A says-" I think Z' s evidence on that trial is so contradictory that he must be stupid or dishonest." A is within this exception if he says this in good faith, inasmuch as the opinion which he expresses respects Z' s character as it appears in Z' s conduct as a witness, and no farther. However, if A says that "I do not believe what Z asserted at that trial because I know him to be a man without veracity"; A is not within this exception, inasmuch as the opinion which expresses of Z‘s character, is an opinion not founded on Z‘s conduct as a witness. The sixth exception states that it is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no farther. A performance may be submitted to the judgment of the public expressly or by acts 16 Extracted on Sep 14, 2013, from http://www.indiankanoon.org/doc/1041742/ 15
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 on the part of the author which imply such submission to the judgment of the public. Thus, a person who publishes a book submits that book to the judgment of the public. Similarly, a person who makes a speech in public submits that speech to the judgment of the public. Likewise, A says of a book published by Z-" Z‘s book is foolish; Z must be a weak man. Z‘s book is indecent; Z must be a man of impure mind." A is within the exception, if he says this in good faith, inasmuch as the opinion which he expresses of Z respects Z' s character only so far as it appears in Z' s book, and no further. However, if A says-" I am not surprised that Z‘s book is foolish and indecent, for he is weak and a libertine." A is not within this exception, inasmuch as the opinion which he expresses of Z' s character is an opinion not founded on Z' s book. The seventh exception relates to censure passed in good faith by person having lawful authority over another. It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. Thus, a Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a schoolmaster, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils are within this exception. The eighth exception states that it is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject- matter of accusation. Thus, if A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z' s master; if A in good faith complains of the conduct of Z, a child, to Z' s father- A is within this exception. The ninth exception states that it is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good. Thus, A, a shopkeeper, says to B, who manages his business-" Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty." A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests. Likewise, A, a Magistrate, in making a report to his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception. The last and tenth exception states that it is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good. Libel and slander are creatures of English common law, but they are not treated as distinct from each other in Indian jurisprudence. India offers the 16
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 defamed a remedy both in civil law for damages and in criminal law for punishment. This is unusual since defamation as a crime is almost nonexistent anywhere in the world. While civil law for defamation is not codified as legislation and depends on judge-made law, criminal law is in the IPC (section 499 creates a criminal offence of defamation). In a civil action, the claimant needs to prove that the statements injured the person‘s reputation and were published. The onus then shifts to the defendant to prove that the imputations or statements were either true, or amounted to fair comment, or were uttered or stated in circumstances offering absolute or qualified privilege like Parliamentary or judicial proceedings. In criminal law, the burden rests on the prosecution to prove beyond reasonable doubt that there was an offence of defamation committed and there was intent to do so. Then it is up to the accused to substantiate that they are protected by one of the ten exceptions listed under Section 499. These exceptions are extremely wide. They offer protection including: stating a true fact against a person for public good; expressing an opinion in good faith about an act of a public servant; or even making imputations on the character of another provided it‘s in good faith and for the public good. The Indian Constitution protects freedom of speech as a facet of fundamental rights under Article 19, subject to reasonable restrictions, including decency and defamation. However, in R. Rajagopal vs State Of Tamil Nadu on 7 October, 1994, the Supreme Court lay down certain principles17: The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own…..none can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages…..So far as the Government, local authority and other organs and institutions……are concerned, they cannot maintain a suit for damages for defaming them. Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media. There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media. As is evident from the foregoing discussion, the definition of defamation is wide-ranging and constantly expanding, though not for practice, particularly in India. Majorly, defamation in contemporary times is coterminous with the rapid rise of the media industry. Needless to add, many, if not most, defamation suits have been filed by celebrities as far back as over a century ago. In Annie Oakley's libel case, Annie Oakley was a female sharpshooter who traveled with Buffalo Bill's Wild West show in the late 19th century. In 1903, William Randolph Hearst ran a 17 Extracted on Sep 14, 2013, from http://www.indiankanoon.org/doc/501107/ 17
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 story in 55 newspapers alleging that Oakley stole a man's pants in order to buy cocaine, when in fact the woman arrested for the crime falsely gave her name as Annie Oakley. Even though most of the papers printed a retraction, Oakley sued all 55 newspapers for libel. She spent the next six years pursuing these lawsuits, eventually winning all but one18. Similarly, on April 16, 1996, Oprah Winfrey had Howard Lyman, a vegetarian activist, on her show to talk about mad cow disease and the dangers of beef production. At one point, Oprah stated that she wouldn't eat a burger ever again, prompting a group of Texas cattlemen to sue Winfrey and Lyman under the False Disparagement of Perishable Food Products Act of 1995. The judge ruled that the cattlemen couldn't sue under this act, treating the case as a regular trade libel lawsuit, which is the intentional disparagement of a business' goods and services. Winfrey emerged victorious because the judge said that the plaintiff didn't prove that Winfrey and Lyman acted out of a flagrant disregard for the truth. Likewise, in July 2002, Vanity Fair printed a piece alleging that Roman Polanski, the director of such films as Rosemary's Baby, propositioned a woman on his way to his wife's funeral in 1969. (Polanski's wife was murdered by Charles Manson's cult followers). Polanski, who left the United States because of a child sex charge, received permission to testify from France. In 2005, a United Kingdom high court awarded Polanski £50,000 (US $81,380) in damages after the magazine admitted that some details about the event were inaccurate.19 However, Indian courts have been conservative in awarding damages for defamation. Several high profile cases filed against or on behalf of politicians like Arvind Kejriwal, Smriti Irani, Sheila Dixit20, and Home Minister Shinde21, industry like Tata Sons v. Outlook magazine22 and Zee News v. Naveen Jindal v.23, movie actors like Vijaykanth24, Manoj Kumar v. Shah Rukh Khan25. Damages awarded by Indian courts too have been equally conservative. For instance, a Delhi court reduced to Rs 9,000 from Rs 15,000 costs imposed on Narmada Bachao Andolan (NBA) activist Medha Patkar for her failure to appear in the 13-year-old crosscases lodged against each other by her and the head of an Ahmedabad-based 18 Extracted on Sep 14, 2013, from http://www.tree.com/legal/learning-about-famous-libelcases.aspx 19 Extracted on Sep 14, 2013, from http://www.tree.com/legal/learning-about-famous-libelcases.aspx 20 Extracted on Sep 14, 2013, http://www.dnaindia.com/india/1862619/report-no-relief-for-delhibjp-leader-in-sheila-dikshit-s-defamation-case 21 Extracted on Sep 14, 2013, http://www.hindustantimes.com/India-news/NewDelhi/Courtdismisses-defamation-case-against-Shinde/Article1-1085938.aspx 22 Extracted on Sep 14, 2013, from http://articles.timesofindia.indiatimes.com/keyword/defamation 23 Extracted on Sep 14, 2013, from http://www.rediff.com/news/report/zee-editor-filesdefamation-case-against-jindal/20121221.htm 24 Extracted on Sep 14, 2013, from http://articles.timesofindia.indiatimes.com/2013-0904/chennai/41764553_1_vijayakanth-public-prosecutor-writ 25 Extracted on Sep 14, 2013, from http://www.indianexpress.com/news/manoj-kumar-files-caseagainst-shah-rukh-khan-for-defamation/1096678/ 18
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 NGO, V K Saxena, the President of NGO National Council for Civil Liberties (NCCL)26. It is only in very few cases such as Justice PB Sawant v. Times Now (2011)27 that courts have awarded damages, in the interim, in the form of a Rs. 20 crore surety from Times Now to be invested and returned to the winner of this case. Defamation law is gradually evolving in India with demands being made to remove the criminal liability arising from defamation in line with global best practice. However, rampant delays in courts have somewhat caused dilution of the law of defamation with parties remaining mostly content with administering threats of criminal defamation and filing suits for damages accordingly as a punitive measure rather than with any real expectation of damages being eventually awarded by courts, unlike their UK counterparts. 26 Extracted on Sep 14, 2013, from http://zeenews.india.com/news/delhi/defamation-cases-fineimposed-on-medha-patkar_862878.html 27 Extracted on Sep 14, 2013, from http://indiatoday.intoday.in/story/times-now-defamation-casers-100-cr-fine-justice-sawant/1/161563.html 19
    • KUNAL BASU LLB SEM.-I LAW OF TORTS FACULTY: Ms. SUMITI AHUJA DATE: SEP 25, 2013 Bibliography Books David Price and Korieh Duodu, Defamation: Law, Procedure and Practise, Sweet and Maxwell, Third Edition, 2004, London Justice G.P. Singh, Ratanlal and Dhirajlal, The Law of Torts, Wadhwa and Company Nagpur, Twenty-Fourth Edition, 2007, Delhi Margaret Brazier and John Murphy, Street on Torts, Butterworths, Tenth Edition, 1999, London R. K. Bangia, Law of Torts, Allahabad Law Agency, Nineteenth Edition, 2006, Haryana S.K. Desai and Kumud Desai, Ramaswamy Iyer’s The Law of Torts, Seventh Edition, 1975, Bombay W. V. H. Rogers, Winfield and Jolowicz on Tort, Sweet and Maxwell, Seventeenth Edition, 2006, London 20