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GUJARAT NATIONAL LAW U NIVERSITY

DISPARAGEMENT: A HARD NUT TO CRACK UNDER THE

REGIME OF FREE SPEECH

(Critique)

Name of the scholar

Abstract

Freedom of speech and expression is one of most important human rights which have

been recognized by many international conventions and UN declaration. At the same

time different nations have made defamation either as a civil or criminal offence and

made it punishable. Law of communication has developed a lot especially after firstamendment and the case of New York Times which brought the doctrine of public

criticism as a conditional privilege. But since then this right has been misused by media

under the garb of fair and public criticism and by advertisers under the garb of puffing.

This whole development has resulted in revolution in law of defamation. Now

requirement of actual malice has been made mandatory to establish a claim of

disparagement or defamation. Further the presumption is always against falsity.

Therefore it has almost become an impossible task to seek relief in such cases because

any kind of prior restraint has been held as unconstitutional. Therefore, it is justified to

say that disparagement is a hard nut to crack under the aegis of free speech regime.

1. INTRODUCTION

The object of this paper is to analyze the extent and true meaning of freedom of speech

expression and opinion which is one of the most important human rights recognized by

various international conventions and UN declaration.1 However my analysis will be

restricted to the realm of commercial world and commercial speech because there has

been a considerable increase in claiming free speech protection by companies in the

matter of disparaging advertisements and up to some extent they have succeeded in

bringing the concept of puffing which I have dealt latter in this report.

1Art. 19 of Universal Declaration on Human Right. Art. 19 of ICCPR

1




It will be pertinent to note that almost all civilized nations have recognized the above

right either in the form of constitutional right or legal right in their respective municipal

laws but at the same time these nations have made defamation and disparagement either

as civil or criminal offence. From time immemorial there has been a tussle between these

two legal concepts but earlier it was easy to make a distinction between these two but

now in the era of twenty first century and especially in the wake of human right

jurisprudence it has become a tough task for judiciary to decide whether a particular

statement is defamatory or not.

This happens so because the restrictions upon free speech are available on very limited

grounds like defamation, national security, integrity. Indeed defamation is one of the

grounds for putting reasonable restriction but to establish defamation one has to crack the

iron nut. Firstly, the burden to establish defamation is upon the aggrieved party.

Secondly, it has almost become an impossible job to establish defamation, particularly

after the requirement to prove malice in defamatory statement has been made mandatory.

Thirdly, it has become a constitutional norm not to put any prior restraint upon free

speech because of the danger of chilling effect. Fourthly, public criticism even if half

information or misinformation has been held as non-punishable. These all developments

in law have left the innocent party in the lurch. Therefore, it has become important to

know the extent and true meaning of free speech because there is a popular

misconception that since free speech is a fundamental right it will override the law of

defamation.

2. SIGNIFICANCE OF FREEDOM OF SPEECH AND EXPRESSION

Freedom of speech is vital for any democracy to survive. It has been rightly said that

freedom of expression is a keystone and indispensable in forming public opinion.2

In

short, it enables the community, when exercising its options either in democratic process

or any other commercial activity, to be sufficiently informed3 so that they can take a

better decision. Opinion of public in a democracy is of paramount importance. In this

regard Thirteenth Human Rights Report4 has reported that, “A free media is essential in

the political process. The free communication of information and ideas about public and

2Schenck v. U.S. 630 F. 2d 876 (1980) (US Circuit Court of Appeals, 2nd Circuit).

3Schenck v. U.S. 630 F. 2d 876 (1980) (US Circuit Court of Appeals, 2nd Circuit).

413 UN HRC, General Comment 25, issued 12 July 1996.

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political issues between citizens, candidates and elected representatives is essential. This

implies a free press and other media able to comment on public issues without censorship

or restraint and to inform public opinion.” Various authorities are of the view that right to

know comes within the purview of freedom of speech and expression. Hence this right

gets more importance during the time of elections. Election campaign is a perfect

example where this right is exercised so as to enable the voters to know about their

candidates. Here comes the role of press which initiates public debate on various issues

so that public at large becomes aware of their representatives.

2.1 Public debate and democracy

Public debate forms part and parcel of Rule of Law.5 In a democracy, the active role of

the free press is inevitable.6 Courts have always recognized the importance of public

questions and have held that, “Freedom of expression upon public questions is secured

by the First Amendment…and has been fashioned to assure unfettered interchange of

ideas for the bringing about of political and social changes desired by the people.”7 Such

public criticism is against the background of a profound national commitment to the

principle that debate on public issues should be uninhibited, robust, and wide-open, and

it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on

government and public officials.8 Once Madison had said, “Some degree of abuse is

inseparable from the proper use of every thing, and in no instance is this more true than

in that of the press.”9 In a democratic society, one who assumes to act for the citizens in

an executive, legislative, or judicial capacity must expect that his official acts will be

commented upon and criticized.10 Such criticism cannot be muzzled or deterred by the

courts at the instance of public officials under the label of libel. 11

Hence it is submitted that a society which is not well informed is not a society that is

truly free.12 This means that any formality, condition, restriction or sanction imposed in

5Thorgeirson v. Iceland, ¶63, Appli. No. 13778/88, 25 June 1992.

6Advisory Jurisdiction, Case of Costa Rica , Int. Am. Crt., No. OC-5/85 November 13, 1985

7Roth v. U.S., 354 U.S. 476, 484.

8Terminiello v. Chicago, 337 U.S. 1, 4; See also, De Jonge v. Oregon, 299 U.S. 353, [271] 365.

94 ELLIOT'S DEBATES ON THE FEDERAL CONSTITUTION (1876), P. 571.

10Criticism of Public Officers and Candidates for Office, 23 AM. L. REV. 346 (1889).

11MABRA GLENN ABERNATHY, BARBARA ANN PERRY, CIVIL LIBERTIES UNDER THE

CONSTITUTION ( 6TH EDITION, UNIVERSITY OF SOUTH CAROLINE PRESS), AT.297-29812Arts. 13 and 29, American Convention on Human Rights, (Compulsory Membership in an Association

Prescribed by Law for the Practice of Journalism) ¶ 70.

3




that respect, should be proportionate to the legitimate end sought. 13 The U.S. Supreme

Court has described the media as a “vast democratic foray” and has granted highest

protection.14 Press is a watchdog15 and it is incumbent on its part to disseminate

information16 amongst the citizenry to create a workable democracy. Thus media play a

vital role in encouraging public debate so that a better and efficient democracy is

flourished but this is the situation where conflict starts. Whenever public debate starts

criticism creeps in and some time authors cross all the limits of criticism and it becomes

a mean of personal vendetta. But legally speaking public criticism like criticizing

government and its functions are conditionally protected against liability of defamation

even if it is half truth or misinformation.

2.2 Public criticism a conditional privilege against defamation

Criticizing a political figure forms part and parcel of media’s role in active democracy.

Working of the public officials is often portrayed as “Charges of gross incompetence,

disregard of the public interest, communist sympathies, and the like usually have filled

the air, and hints of bribery, embezzlement, and other criminal conduct are not

infrequent.17 It is well accepted that media forms the forth pillar of democracy hence it

becomes inevitable to protect this pillar from collapsing and that is the reason why

“ public criticism has been granted conditional privilege”.18 Such privilege is available

even though the utterance contains “half-truths” and “misinformation”.19 The rational

behind providing such protection is even if the criticism is erroneous, it is inevitable in

13African Commission on Human and Peoples' Rights(under African Charter of Human rights), Media

Rights Agenda and Constitutional Rights Project v. Nigeria, Communication Nos. 105/93, 128/94, 130/94and 152/96, Decision of 31 October, 1998, ¶54 ; See also, Dichand and Others v. Austria, 26 February

2002, Appli. No. 29271/9514

Reno v. ACLU, 521 U.S. 844 (1997).15

The Observer and Guardian v. UK, ¶ 59, Appli. No. 13585/88, 26 November 1991; See also, The

Sunday Times v. UK (II), ¶ 65, Appli. No. 13166/87, 26 November 1991.16

The Observer and Guardian v. UK, ¶ 59, Appli. No. 13585/88, 26 November 1991; See also, The

Sunday Times v. UK (II), ¶ 65, Appli. No. 13166/87, 26 November 1991. See also Castells v. Spain, ¶ 43

Appli. No. 11798/85, 24 April 1992.17

Noel, Defamation of Public Officers and Candidates, 49 Col. L. Rev. 875 (1949); See also, Chase,

Criticism of Public Officers and Candidates for Office, 23 Am. L. Rev. 346 (1889).18

New York Times v. Sullivan 376 U.S. 254, 265-292 ; See also W. PAGE KEETON ET. AL, PROSSER

AND KEETON ON THE LAW OF TORTS 113 (2D ED., 1955), § 95.19Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997). p, 342, 343, 345.

http://pacer.ca4.uscourts.gov/opinion.pdf/971523.P.pdf

4




free debate, and that it must be protected if the freedoms of expression are to have the

“breathing space” that they “need . . . to survive”20

Thus it has become vary tough to hold media liable unless government proves actual

malice. Even a false statement has been deemed to make a valuable contribution to

public debate, and it is claimed that it brings about “the clearer perception and livelier

impression of truth, produced by its collision with error.”21 With due respect, I would like

to say that it is an innovative way to justify falsity on the ground of bringing clearer

picture. Thus scrutinizing government on the touchstone of non-sleazing is undoubtedly

of great magnitude but it should be within a limit.

3. COMMERCIAL SPEECH ARE ALSO PROTECTED UNDER

FREE SPEECH DOCTRINE

Protection of free speech doctrine was earlier available only to an individual but now it

has been extended even to commercial advertisements. The logic is still the same that in

order to make consumer aware, well informed and help them in making a better choice it

is necessary to accord protection to commercial advertisers.22

It has been further contended that advertisements should be protected in order to make consumer aware of

qualities of product which has been accepted by courts. But here comes the misuse of

commercial speech. Companies in their never ending greed of profit making has started

finding out new methods of disparaging the products of another. One of such innovative

method is disparagement under the garb of puffing. Thus there is a need to put

restrictions upon such unbridled and unfettered exercise of right.

3.1 Restrictions upon free speech and expression

After discussing the doctrine of public criticism and role of free media in democracy, the

immediate question is whether there can be any restriction upon such right? Whether this

right is an unfettered and unbridled horse? The answer is in negative. The African

20NAACP v. Button, 371 U.S. 415, 433; See also, Sweeney v. Patterson 76 U.S. App. D.C. 23, 24, 128

F.2d 457, 458 (1942).21

MILL, ON LIBERTY (OXFORD: BLACKWELL, 1947), AT 15; See also, MILTON, AREOPAGITIA,IN PROSE WORKS (YALE, 1959), VOL. II, AT 561.22

Tata press Ltd. V. Mahanagar Telephone Nigam Ltd., AIR 1995 SC 2438

5




Commission on Human and Peoples’ Rights23, The United Nations Human Rights

Committee24, ICCPR, UDHR, and ECHR are of the view that there can be reasonable

restriction on the ground of defamation, national security, and integrity and in case if

restriction is inevitable then it must be proportionate and closely tailored to the

accomplishment of the legitimate governmental objective necessitating it.25 European

council of human rights has also recalled that there is little scope under the Convention26

for restrictions on political speech or debates on questions of public interest27 Restriction

can be justified, if at all, only by a clear and present danger of the obstruction of justice. 28

4. FREE SPEECH VIS-À-VIS LAW OF DISPARAGEMENT

New York time decision has brought revolution in the law of communication specially

the first amendment in United States has completely changed the law of defamation and

now it has become very difficult to establish a claim of defamation as the requirement to

prove actual malice is very difficult. This has become a common defence in all the cases

of defamation because at any time it can be said that malice was not actual. This simple

statement is very difficult to be refuted as malice is a mental state of a person.

Now in order to understand why it is difficult to establish disparagement in free speech

regime it will be pertinent to know what defamation is? Because both these concepts are

quite similar. Defamation in plain vanilla is “a publication without justification or

excuse, which is calculated to injure the reputation of another, by exposing him to shame

and ridicule.”29 As articulated by the court in Kimmerle’s case,30 defamatory statements

are words which tend to “expose one to public hatred, shame, obloquy, contumely,

23African Commission on Human and Peoples' Rights(under African Charter of Human rights), Media

Rights Agenda and Constitutional Rights Project v. Nigeria, Communication Nos. 105/93, 128/94, 130/94

and 152/96, Decision of 31 October, 1998, ¶54 ; See also, Dichand and Others v. Austria, 26 February

2002, Appli. No. 29271/9524

U.N. HRC, Aduayom et al. v. Togo (422/1990, 423/1990 and 424/1990), Rep. of July 12, 1996, ¶ 7.4.25

Arts. 13 and 29, American Convention on Human Rights, (Compulsory Membership in an Association

Prescribed by Law for the Practice of Journalism) ¶ 70. see also The Sunday Times v. UK (II), ¶ 65,

Appli. No. 13166/87, 26 November 1991.26

ART 10 § 2 of the E.C27

Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 6 at 5711, ECHR 1999-IV; Hungary Case [GC], no.

25390/94, § 34, ECHR 1999-III; Rekvényi and Feldek v. Slovakia, § 56, ECHR no. 29032/95, 2001-VIII).28

Craig v. Harney, 331 U.S. 367; See also, Wood v. Georgia, 370 U.S. 375.29

Parmiter v. Coupland, 151 Eng. Rep. 340 (1840), cited in PROSSER & KEETON, LAW OF TORTS773 N.17 (5TH ED. 1984)30

Kimmerle v. New York Evening Journal Inc, 262 N.Y. 99, 102 (1933).

6




odium, contempt, ridicule, aversion, ostracism, degradation or disgrace ... and to

deprive one of their confidence and friendly intercourse in society” 31 International law

contemplates three essentials of defamation, which are (1) there must be a publication of

defamatory statement made voluntarily by the defendant with malice (2) there must be

injury and (3) there must not be any justification or excuse.32 If we see the definition of

disparagement it is quite similar to defamation but the object of two differs. Defamation

attacks the reputation of a person while disparagement attacks on the reputation of

product with a primary aim of profit making. It is stated that commercial disparagement

is a false statement made with the intent to call into question the quality of a competitor’s

goods or services and to inflict pecuniary harm.33 In order to constitute a tort of

disparagement certain ingredients must be fulfilled (1) intentional (2) unprivileged (3)

publication of (4) a false statement that (5) disparages the property of another (6) in a

manner that can be measured.34 In addition, it is necessary to distinguish that

disparagement actions protect property interests while defamation actions protect only

reputation.35

4.1 How is it difficult to establish disparagement?

Coming back to the main issue i.e. how is it difficult to establish product defamation or

trade libel in the free speech regime? In order to establish this difficulty we will take

each ingredient of disparagement separately and analyze how far it is feasible for the

plaintiff to establish all the essential requirements so as to claim relief. And at same time

we will also see how far it is possible for a defendant to avoid it’s liability in case of

disparagement we will also see what measures can be adopted by defendant so as to

circumvent the law of disparagement. Now let us take all the ingredients one by one.

4.2 Falsity of advertisement must be proved

31Kimmerle v. New York Evening Journal Inc, 262 N.Y. 99, 102 (1933).

32Statsky William.P, Essentials of Torts, 2001, Thomson Delmer Learning at p.264

33Restatement (Second) Of Torts at p. 630 (1976), Picker Int’l, Inc. v. Leavitt, 865 F. Supp. 951, 964 (D.

Mass. 1994).34

Id. See also Clorox Co. Puerto Rico v. Proctor & Gamble Commercial Co., 228 F.3d 24, 33 no.6 (1stCir. 2000).35

Supra Note 68 at Pg. 623

7




It is well established that in order to bring an action for disparagement, falsity of

statement must be proved which may be either literally false or likely to mislead and

confuse consumers.36 Further, law does not stop favoring defaulter here. It goes on to say

that presumption is always in the favour of truthfulness of statement. In addition, most

often, the plaintiff are required to presents evidence of consumer reaction through

consumer surveys37 which is again a difficult task and the sufferer (plaintiff) has to suffer

more because truth is an absolute defense in such cases.38

Consumer surveys are required to check the effect of the impugned (disputed) statement

upon the consumers who are likely to be affected by such misleading, false or

disparaging statement. It will be pertinent to note that conducting a market survey takes

considerable time. In the mean time while survey is being conducted the reputation of

product will keep suffering.

In addition, a representation is deemed to be false if it is false in substance and in fact;

and the test by which the representation is to be judged is to see whether the discrepancy

between the represented fact and the actual fact is such as would be considered material

by a reasonable representee.39 Therefore, in other word it can be said that false statement

if not substantial will not amount to disparagement. Thus we can conclude that legally it

is permissible to utter false up to some extent. I am surprised how far this free speech

regime will extend excluding the liability for libel and slender. Thus we see that first

essential is tilted in the favour of defaulter.

4.3 Impugned commercial must refer to competitor’s product

The second requirement to establish a claim of disparagement is that the impugned

commercial must refer to competitor’s product. In order to escape liability generally

companies use generic words in their advertisement which has not acquired a secondary

meaning so as to disparage another’s product without being liable.40 For example

36 Restatement (Second) Of Torts at p. 630 (1976), Picker Int’l, Inc. v. Leavitt, 865 F. Supp. 951, 964 (D.

Mass. 1994).37

id; see also Gillette Co.v. Norelco Consumer Prods. Co, 946 F. Supp. 115, 128 (D. Mass. 1996).38

Abdul Wahab Galadari v. Indian Express Newspapers (Bombay), Limited, AIR 1994 Bom 6939

Halsbury's Laws of England, vol 440Win-Medicare Limited v. Somacare Laboratories, 1997 PTC (17); Registrar of Trade Marks Vs.

Hamdard National Foundation, AIR 1980 Del.182; Prakash Roadline Ltd. v Prakash Parcel Service (P)

8




Britania Company produces Good Day Biscuits. Recently its competitor started an

advertisement campaign wherein the slogan used was “why have a Good Day when you

can have a better day”. Thus by using generic words they are ridiculing other’s product

and bypassing liability. Another technique of disparaging other’s product without being

liable is comparing your product with a fictitious product which can be very much

similar to competitor’s product. We have a classic example of coca cola using the name

“Pappi” in its advertisement to ridicule Pepsi. Thus legally speaking one can avoid

liability of defamation by simply using generic words.

4.4 Commercial speech must be discrediting competitor’s product

It has been held that a statement is considered as “defamatory” if it tends to injure a

person’s reputation in the community.41 Therefore, test is whether, under the

circumstances, the statement discredits the plaintiff in the minds of any considerable and

respectable class of the community.42 Promoters of free speech contend that the effect of

advertisement is subjective and not objective hence it can not ridicule or disparage

another product. Furthermore, statements that contain minor inaccuracies but are

substantially true are subject to the fair reporting privilege.43 Therefore, we see that yet

again this requirement is difficult to establish. Because a statement might be considered

as defamatory at one place and might not be considered at other place. Thus a clever

advertiser can select his place of commercial in such a way where his statement will not

amount to defamatory. Thus we see that yet again aggrieved party may be left in lurch.

4.5 Puffing and disparagement sitting cross-head to each other

Ltd,. 1992(2)Arb LR 274 (Del.) at ¶ 23; Allianz Aktiengesellschaft Holding vs Allianz Capital &

Management Services Ltd., 2002 (24) PTC 177 (Del); Mrs. Ishi Khosla vs Anil Aggarwal, 2007(34)

PTC370(Del) - ¶ 16; Aktiebolaget Volvo Of Sweden vs Volvo Steels Ltd. Of Gujarat (India), (O.O.C.J.

Appeal No. 570/1995 in Notice of Motion No. 950/95, Decided On: 16.10.1997)41

Flotech Inc. v. E.I. Du Pont de Nemours Co., 627 F. Supp. 358, 367 (D. Mass. 1985), aff’d, 814 F.2d

775 (1st Cir. 1987)42

Vodafone Group Plc and Anr. v. Orange Personal Communications Services Limited, 1997 F.S.R. 34;

Flotech, Inc. v. E.I. Du Pont de Nemours Co., 627 F. Supp. at 367; Ricciardi v. Latif, 3 Mass. App. Ct.

714, 714–15, 323 N.E.2d 913, 914 (1975); Bratt v. Int’l Bus. Mach. Corp., 392 Mass. 508, 517, 467 N.E.2d

126, 133 (1984); Shafir v. Steele, 431 Mass. 365, 373, 727 N.E.2d 1140, 1146 (2000); Draghetti v.

Chmielewski, 416 Mass. 808, 812, 626 N.E.2d 862, 866 (1994); A.M.F. Corp. v. Corporate Aircraft

Mgmt., 626 F. Supp. 1533, 1551 (D. Mass. 1985); Smith v. Suburban Rests., Inc., 374 Mass. 528, 530, 373 N.E.2d 215, 217 (1978)43

Brown v. Hearst Corp., 862 F. Supp. 622, 630 (D. Mass. 1994), aff’d, 54 F.3d 21 (1st Cir. 1995).

9




There is a unique privilege of puffing which allows a seller to tout his products as

superior to those of a competitor even if the seller knows that they are not. 44 It has been

contended that this privilege to “puff” one’s goods ensures that commercial speech is

given some “breathing space”. In addition, it is now a settled law that mere puffing of

goods is not actionable45 and the tradesman can say that, his goods are the best or better

even if it is false.46 It is to be noted that while determining the true meaning of statements

courts have always considered that the public expect a certain amount of hyperbole in

advertising.47 Moreover, advertisements are nothing more than probity and are aimed at

pocking fun at the advertisements of the others which is permissible in Law.48 The law

permits an advertiser to proclaim that its product is the best which necessarily implies

that all other similar products are inferior.49 Thus legally one can easily avoid the liability

of disparagement by simply incorporating a puffery clause in its advertisement.

Furthermore, in such cases, courts have become very strict in granting any kind of prior

restraint in the form of injunction.

4.6 Means and methods to avoid liability for disparagement

Thus after discussing all the essential ingredients of disparagement, we can elicit some of

the methods by which a defendant can avoid his liability all together or at least avoid

temporary relief (interlocutory or temporary injunction) which might be granted against

him. These methods are as follows;

1. Prove that the impugned statement was substantially true if not completely

true.

2. Prove that the impugned statement was containing minor inaccuracy.

3. Prove that the impugned statement was not pointing to plaintiff’s product.This can be done by incorporating generic words in impugned statement.

44 Flotech Inc. v. E.I. Du Pont de Nemours Co., 627 F. Supp. 358, 367 (D. Mass. 1985), aff’d, 814 F.2d

775 (1st Cir. 1987); Restatement (Second) of Torts §§ 623A, 649 (1979).45

Colgate Palmolive v. Hindustan Lever Limited; Reckitt & Colman of India Ltd. v. M.P. Ramchandran

and Anr., 1999 PTC (19) 741; Reckitt & Colman of India v. Kiwi TTK Ltd., 1996 PTC (16) 39346

id47

Vodafone Group Plc and Anr. v. Orange Personal Communications Services Limited, 1997 F.S.R. 3448

Pepsi Co., Inc. And Ors. vs Hindustan Coca Cola Ltd., 2003 (27) PTC 305 (Del)49

Dabur India Limited v. Wipro Limited, Bangalore, 2006 (32) PTC 677 (Del.)

10




4. Prove that there was no actual malice to disparage or belittle the quality of

plaintiff’s goods.

5. Prove that the impugned commercial was not misleading the consumer. It

can be done either by showing absence of consumer survey report or

conducting a counter survey having a conclusion contrary to the report of

plaintiff’s survey.

6. Prove that the commercial/advertisement was merely to puff up his product

which is an exercise of freedom of speech and expression.

7. Prove that the impugned statement was having a nature of public debate.

8. Prove that the effect of commercial is subjective not objective in nature.

9. Lastly, but most importantly prove that the impugned statement/commercial

was true.

10. In case the impugned statement/commercial is yet not published injunction

can not be granted as prior restraint upon speech is unconstitutional.

Hence we see that by adopting one of the means shown above defendant can easily

circumvent his liability.

5. Criticism

No doubt freedom of speech and expression is oxygen of democracy but when it is

misinformation it becomes poison for the democracy. The growth in this regard has

completely changed the law of defamation and it has almost become an impossible task

to establish a claim of defamation. Hence there is a need to bring change in law which

says that even half truth and misinformation should be protected. Further with due

respect to J.S. Mill, I would like to say that in order to prove veracity of a statement it is

not necessary to give space to falsity so that it can challenge and more clear picture can

come up. This is not the true spirit of criticism in order to criticize government there is

no need of any support of falsity. Criticism can be done only and only with the help of

truth. Thus criticism should always be positive rather negative and the moment it turns

negative it should be stopped.

11




6. CONCLUSION

Law with regard to communication and especially disparagement has undergone a

considerable change after the growth of human right jurisprudence. Recognition of free

speech as a fundamental right in India has made it unconstitutional to put any prior

restraint on the exercise of this right. After discussing the importance of free speech

protection and all the essential requirements of disparagement and defamation, one can

easily say that this right is being misused by media under the garb of public criticism and

at the same time freedom of commercial speech is being misused under the veil of

puffing. Thus practically speaking “establishing a claim of disparagement has become

a hard nut to crack”

7. BIBLIOGRAPHY

Constitutions and Convention

1. African Charter on Protection of people and Human Right

2. Constitution of India

3. European convention on Human Rights

4. International Convention on civil and political Rights

5. United Nation Declaration on Human Right

Cases Referred

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1. Abdul Wahab Galadari v. Indian Express Newspapers (Bombay), Limited, AIR

1994 Bom 69

2. Advisory Jurisdiction, Case of Costa Rica , Int. Am. Crt., No. OC-5/85

3. Brown v. Hearst Corp., 862 F. Supp. 622, 630 (D. Mass. 1994)

4. Castells v. Spain, ¶ 43 Appli. No. 11798/85, 24 April 1992.

5. Colgate Palmolive v. Hindustan Lever Limited.6. Craig v. Harney, 331 U.S. 367 Parmiter v. Coupland, 151 Eng. Rep. 340 (1840),

7. Dabur India Limited v. Wipro Limited, Bangalore, 2006 (32) PTC 677 (Del.)

8. De Jonge v. Oregon, 299 U.S. 353, [271] 365.

9. Flotech Inc. v. E.I. Du Pont de Nemours Co., 627 F. Supp. 358, 367 (D. Mass.

1985

10. Kimmerle v. New York Evening Journal Inc, 262 N.Y. 99, 102 (1933).

11. New York Times v. Sullivan 376 U.S. 254

12. Pepsi Co., Inc. And Ors. vs Hindustan Coca Cola Ltd., 2003 (27) PTC 305 (Del)

13. Reckitt & Colman of India Ltd. v. M.P. Ramchandran

14. Reckitt & Colman of India v. Kiwi TTK Ltd., 1996 PTC (16) 393

15. Roth v. U.S., 354 U.S. 476, 484.16. Shafir v. Steele, 431 Mass. 365, 373, 727 N.E.2d 1140, 1146 (2000)

17. Sunday Times v. UK (II), ¶ 65, Appli. No. 13166/87, 26 November 1991

18. Sürek v. Turkey (no. 1) [GC], no. 26682/95

19. Tata press Ltd. V. Mahanagar Telephone Nigam Ltd., AIR 1995 SC 2438

20. Terminiello v. Chicago, 337 U.S. 1, 4

21. Thorgeirson v. Iceland, ¶63, Appli. No. 13778/88, 25 June 1992

22. Vodafone Group Plc and Anr. v. Orange Personal Communications Services

Limited, 1997 F.S.R. 34

23. Wood v. Georgia, 370 U.S. 375.

24. Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997). p, 342, 343, 345.

Books referred

1. Criticism of Public Officers and Candidates for Office, 23 AM. L. REV. 346

(1889).

2. Halsbury's Laws of England

3. MABRA GLENN ABERNATHY, BARBARA ANN PERRY, CIVIL

LIBERTIES UNDER THE CONSTITUTION ( 6TH EDITION, UNIVERSITY

OF SOUTH CAROLINE PRESS), AT.297-

4. MILL, ON LIBERTY (OXFORD: BLACKWELL, 1947), AT 15

5. Restatement (Second) Of Torts at p. 630 (1976),6. Statsky William.P, Essentials of Torts, 2001, Thomson Delmer Learning at p.264

ARTICLES REFERRED

1. Chase, Criticism of Public Officers and Candidates for Office, 23 Am. L. Rev.

346 (1889).

2. Criticism of Public Officers and Candidates for Office, 23 AM. L. REV. 346

(1889).

3. Noel, Defamation of Public Officers and Candidates, 49 Col. L. Rev. 875 (1949)

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