TORTS II – PROJECT DEFAMATION LAW: A Comparative Study of the US and the UK SUBMITTED BY: VARUN SEN BAHL (ID No. : 1943) II TRIMESTER, I YEAR, B.A., LL.B. (HONS)
TORTS II – PROJECT
DEFAMATION LAW:
A Comparative Study of the US and the UK
SUBMITTED BY:
VARUN SEN BAHL (ID No. : 1943)
II TRIMESTER, I YEAR, B.A., LL.B. (HONS)
Table of Contents
TABLE OF CONTENTS..................................................................................................................2
TABLE OF CASES........................................................................................................................3
Indian Cases...............................................................................................................................3
English Cases.............................................................................................................................3
American Cases..........................................................................................................................3
INTRODUCTION...........................................................................................................................5
CHAPTER 1: DEFAMATION: A DEFINITION AND THE ELEMENTS................................................6
CHAPTER 2: DEFAMATION IN THE US AND UK: A COMPARISON............................................10
CHAPTER 3: SUGGESTIONS FOR INDIA......................................................................................19
CONCLUSION.............................................................................................................................22
BIBLIOGRAPHY.........................................................................................................................23
Articles.....................................................................................................................................23
Books........................................................................................................................................23
Essays.......................................................................................................................................24
Statutes.....................................................................................................................................24
2
TABLE OF CASES
I N D I A N C A S E S
Gandhiji Mareppa v Firm of Marwadi Vannajee, (1917) 38 I.C., 823 (Madras High Court)
Hamsa v Ibrahim, (1993) 2 Ker LJ 698. (Kerala High Court)
Harakh Chand v Ganga Prasad AIR 1925 All 371, (Supreme Court Of India)
Krishna Behari Sen v The Corporation of Calcutta, (1904) ILR 31 Cal 993, (Calcutta High
Court)
MC Verghese v T.J. Poonam (1969) 1 SCC 37 (Supreme Court of India).
Mitha Rustomji v Nusserwanji Nowroji AIR 1941 Bom 278 (Bombay High Court)
Paras Dass son of Jugal Kishore v Shri Paras Dass 1969 Delhi LT 241 (Delhi High Court)
R. Rajagopal v State of T.N 1995 AIR 264 (Supreme Court of India)
Sadaiba v Banisdhar AIR 1962 Orissa 115 (Orissa High Court)
E N G L I S H C A S E S
Derbyshire County Council v Times Newspaper Ltd [1993] A.C. 534 (House of Lords)
Godfrey v Demon Internet Service [2001] QB 201 (High Court, Queen's Bench Division)
Reynolds v Times Newspapers Ltd [1998] 3 WLR 862 (House of Lords)
A M E R I C A N C A S E S
Ammerman v Hubbard Broadcasting Co ,91 NM 250 (United States Supreme Court)
Brewer v Rogers, 439 S.E.2d 77 (Georgia Court of Appeals)
Cohen v Marx, 211 P.2d 320 (California Dist. Ct.)
Gertz v Robert Welch Inc, 418 US 323 (1974) (United States Supreme Court)
Global Green v CBS inc., 286 F 3d 281(United States Court of Appeals, Fifth Circuit.)
Greenbelt Cooperative Publishing Ass’n v Bressler. 398 U.S. 6 (1970) (United States
Supreme Court)
Karaduman v. Newsday, Inc. , 51 N.Y.2d 531, 554 (1980) (New York Supreme Court)
Lehman v. Discovery Communications, Inc. , 332 F.Supp.2d 534, 539 (United States District
Court, E.D. New York.)
3
New York Times Co. v Sullivan, 376 US 254,270(1964) (United States Supreme Court).
Ollman v Evans, 471 U.S. 1127 (1985) (United States Supreme Court)
Rinaldi v. Viking Penguin, Inc. , 52 N.Y.2d 422 (1981) (New York Supreme Court)
Rivera v. NYP Holdings, Inc. , 847 N.Y.S.2d 904 (New York Supreme Court)
4
INTRODUCTION
The tort of defamation is one that has been heavily contested, developed, and detailed. It is an
admixture of case law, statutory definitions, legislations, and the play of society that has left
it riddled with complex principle differences across states, and harrowing substantive and
procedural difficulties. The advent of the Internet as a new mode of publication has further
worsened the situation.
The main debate behind the tort of defamation is the conflict between free speech and
reputation. While the US through its First Amendment values free speech above all, the UK
emphasizes reputation as well, and the phenomenon of libel tourism has aggravated the clash
between the two ideologies.
India’s position, however, in the researcher’s opinion, is unclear, and the confusion between
civil and criminal defamation has resulted in confusion and incomprehensibility, making the
task of tackling this tort a heavy one.
Thus, the researcher’s main aim of this project is to analyze the defamation laws of US and
UK. At the culmination of that analysis, the researcher shall attempt identifying the best
practices of these different systems, and suggest a position of law for India that may be able
to incorporate the positive aspects of these systems.
5
CHAPTER 1: DEFAMATION: A DEFINITION AND THE ELEMENTS.
Although no exhaustive definition of defamation emerges from common law, a broad
meaning of defamation must be attached to it. Several Indian cases1 take defamation as a false
and damaging statement, while Salmond has defined it as a wrong that consists in the
publication of a false and defamatory statement respecting another without lawful
justification.2 A variety of other definitions have been provided, all of which may avoid
certain difficulties, but may provide others.3 Thus, a statutory definition is best avoided.4
For the purpose of this project, the researcher is utilizing the following definition-
Defamation is that which tends to injure reputation; to diminish the esteem, respect, goodwill
or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant
feelings or opinions against him5.
This definition, as per the researcher, provides a basic understanding of what may be
defamatory.
Certain elements of liability under defamation exist:
1. The Allegation must be defamatory
2. The Defamatory statement must refer to the claimant
3. Publication6
However, these elements again fall under the broad meaning. When we speak of the
treatment of defamation under English Law, or Law in the US, or even Indian Law, the scope
of defamation differs greatly in terms of both basic principles and nuances, despite the fact
that essentially the origin of all three dates back to common law.7 However, while the origins
of defamation in England dates back to the middle ages8, in the USA, defamation in an
unique form started to take form around the time of the American Revolution, with the trial
1 Paras Dass son of Jugal Kishore v Shri Paras Dass 1969 Delhi LT 241 (Delhi High Court); MC Verghese v T.J. Poonam (1969) 1 SCC 37 (Supreme Court of India).2 Salmond, J W, SALMOND’S LAW OF TORTS, (8th edn., 1934) 3 V.Mitter, LAW OF DEFAMATION AND MALICIOUS PROSECUTION, (11th edn.,2008)4 Markesins & Deakins, TORT LAW, (6th edn.,2008)5 BLACK’S LAW DICTIONARY, (9th edn.,2009)6 Supra note 4.7 Supra note 3.8 V.V. Veeder, The History of the Law of Defamation in SELECT ESSAYS IN ANGLO-AMERICAN HISTORY, Vol .3, Part VII, (Association of American Law Schools, 1909)
6
of John Peter Zenger in 1734.9 This case laid down truth as an absolute defense against
defamation; an important defense not introduced by English law till before. This case marked
the beginning of US defamation law as an entity distinct in its identity from English Law.
THE QUESTION OF FREE SPEECH V REPUTATION.
Since then, the American perspective on defamation had followed a more-or-less parallel
path to the English perspective. However, the 1960s (the civil rights era in the US) brought
about a change, as up till then defamation or libel suits could be slapped with little evidence;
this particular loophole was greatly abused by southern groups against northern newspapers,
and they claimed over 300 million dollars’ worth of lawsuits. In 1964, New York Times Co. v
Sullivan10 (hereinafter the New York Times case) drastically altered this, by changing the
entire landscape of how defamation and libel is handled in the US. The American
perspective became centered around the line, “Whatever is added to the field of libel is taken
from the field of free debate”,11 and free expression became of utmost importance, to the
point where defamation was no longer a threat, and victims of defamatory falsehood had a
huge burden fall on them.12 Any resemblance to English law on defamation became
superficial and technical, and the protection granted to free speech became almost absolute in
comparison.
Since then, American defamation has been continuously going through several changes and
upheavals, particularly due to the introduction of defamation possibilities on the Internet, but
the courts have remained convinced of the fact that privacy is simply not as important as
freedom of speech. This makes defamation in the US extremely difficult to impose, as the
defense of ‘free speech’ seems easy to throw at the claimants.13
Development of defamation in England, however, must not be ignored, as it is English Law
which laid down the foundations of defamation. However, English laws seem to have
followed the opposite direction, as modern defamation law in England is touted by experts as
9 D. Linder, The Trial of John Peter Zenger: An Account (2001). Available at SSRN: http://ssrn.com/abstract=1021258 (Last visited on November 20th 2011)10New York Times Co. v Sullivan, 376 US 254,270(1964) (United States Supreme Court)11 Id, at 1064.12 Supra note 4 at 865.13 F.Schauer, The Exceptional First Amendment (2005) Available at SSRN: http://ssrn.com/abstract=668543 or doi:10.2139/ssrn.668543 (Last visited on November 20th 2011)
7
being restrictive of free speech.14 Although cases like Derbyshire County Council v Times
Newspaper Ltd15 have made public officials open to uninhibited public criticism, and the
fundamentality of the right to freedom of speech has been confirmed by the court in Reynolds
v Times Newspapers Ltd16, it appears that the Courts in England have incorporated free
speech only till the extent of public officials, and have not accepted the American preference
for free expression.17 Authorities have called English law as equally respectful of reputation
and freedom of expression; and the American preference as ‘hallowed’18.
However, it appears both the press19 and the English Parliament are questioning the
legitimacy of this attitude held by the English law, as defamation suits are extremely difficult
to maintain in practice, as they are extremely expensive, and little hope lies in defending
them.20 The phenomenon of libel tourism seems to support this; London has even called the
libel capital of the world21. Further, defamation laws are surrounded by artificial and technical
rules, adding even more complications.22
Thus, it appears that both systems have problems, practically speaking, when it comes to
defamation. However, it is not easy to say which is ‘better’, especially for the researcher, as
defamation law inherently is complex, and a comparison of the two will reflect that
complexity. However, one must consider the objective of this comparison, as the researcher
wishes to compare the two systems, and suggest what is suitable for India, as the two reflect
almost polar attitudes towards defamation, and their comparison in relation to the current
situation in our country will help in deciding which is ‘better’ for the Indian legal system.
However, it is important to point out why one needs to recommend a system for India; this is
because of, as per the researcher, the lack of any cohesive stand on defamation. The basis of
defamation lies in the interpretation of ‘reasonable restrictions’ on the freedom of speech and
14 R. Sylvester ,UK experts debate libel law’s threat to global free speech, KYIV POST (Jan 14,2011) available at http://www.kyivpost.com/news/nation/detail/94771/#ixzz1e4ip3VcW (Last visited on November 20th, 2011) 15 Derbyshire County Council v Times Newspaper Ltd [1993] A.C. 534 (House of Lords)16 Reynolds v Times Newspapers Ltd [1998] 3 WLR 862 (House of Lords)17 Street, THE LAW OF TORTS, (11th edn.,2003)18 Supra note 4 at 870.19 S.Singh, English libel law is a vulture circling the world, GUARDIAN UK (March 10,2011) available at http://www.guardian.co.uk/commentisfree/libertycentral/2011/mar/10/english-libel-law-simon-singh (Last visited on November 20th, 2011)20 Supra note 13.21 Anon, Libel Tourism-A Growing Threat to Free Speech, FREEDOM OF SPEECH (2003) available at http://www.article19.org/data/files/pdfs/publications/uk-libel-tourism.pdf22 Supra note 3.
8
expression, public opinion,23 and sections 499 and 500 of the IPC24. The treatment of
defamation is based on common law, but also extremely different, as there is no difference
between libel and slander in India, but defamatory claims can be both criminal and civil, a
system which has been called ‘draconian’25. The criminal system of defamation, although
initiated to remove the dowry menace, is heavily misused, and circumstantial evidence is the
main basis on which courts must make their decisions. Allegations are numerous and often
mala fide, making the job for investigative agencies and courts, a difficult one.26 Civil
defamation, however, remains largely uncodified and attempts in the past have been opposed
heavily by the media as being too harsh.27
Also, despite being defined in Kautilya’s Arthashastra28, defamation is relatively a young tort
for India, and the approach of the legal system is complex and subject to a variety of
interpretations29 and even the effect of the Constitution on the law of defamation has been
questioned30. Thus the researcher feels that the law of defamation in India requires a stand
that is less objectionable, while also accommodating to the variety of unique conditions that
Indian society and media brings into the fray. For this purpose, a basic approach must be
chosen and the two prominent options, as per the researcher, are the US and UK approaches
to defamation. Thus, a comparison of the two entails.
23 S. Swamy, Defamation litigation: a survivor's kit, THE HINDU,(Sep. 2004) available at http://www.hindu.com/2004/09/21/stories/2004092103551000.htm (Last visited on November 20th, 2011)24 Sections 499, 500, Indian Penal Code, 1860.25 Supra note 21.26 Supra note 3.27 B. Manna, MASS MEDIA AND RELATED LAWS IN INDIA, 62, (1st edn.,1998)28 Supra note 3.29 Krishna Behari Sen v The Corporation of Calcutta, (1904) ILR 31 Cal 993, (Calcutta High Court); Gandhiji Mareppa v Firm of Marwadi Vannajee, (1917) 38 I.C., 823 (Madras High Court)30 Supra note 3 at 31.
9
CHAPTER 2: DEFAMATION IN THE US AND UK: A COMPARISON
The following chapter hopes to provide a comprehensive comparison of the two approaches
on a number of elements, both practical and theoretical. A comparison of the two stances
with respect to Internet defamation has also been provided, due to its emergence as an
important and diverse aspect of the law, in a modern context.
ASPECT United States of America. United Kingdom.
10
1. Meaning of
Defamatory
Although protection of reputation is
the objective, the US approach,
notoriously harsh on the claimants,
does not take into consideration
words of mere opinion, and
vigorously protect satire and other
varieties of humour; the intentions
of the author have been considered,
as is seen in the Evil Knievel
Case.31 Rhetoric excesses that
would actionable in the UK are
completely protected. The US
courts require that statements be
literally defamatory; calling
someone a ‘blackmailer’ would not
be actionable if the context
indicates the statement to be
rhetoric.32 In terms of opinions, US
courts look at
1. The common usage of the
language
2. The statement’s verifiability
3. The journalistic context
4. The nature of the subject
being discussed.
These complicate the situation
further, as it allows defendants to
escape liability on a variety of
grounds. Lower US courts have
In UK, the meaning of
‘defamatory’ rests on Lord
Atkin’s test, and the
interpretation held in Byrne v
Deakin.37 The essence of the tort
rests on the protection of
reputation; Words of abuse or
opinion in the proper context can
be considered as defamatory.
Humorous statements have been
considered defamatory, and the
intention of the author is
generally immaterial.38 Rhetorical
excesses have been known to be
actionable in England39
More importantly, the major
feature is that defamatory
statements are presumed false
until proven true by the
defendant.40
31 Supra note 4 at 871.32 Greenbelt Cooperative Publishing Ass’n v Bressler. 398 U.S. 6 (1970) (United States Supreme Court)37 Supra note 15.38 Supra note 3.39 Supra note 440 Supra note 15.
11
even said that opinions are
absolutely protected.33 Cases like
Milkovich v Lorain Journal34 have
made it easy to state opinion as a
defence.
The major difference, however,
remains that the New York Times
case made it so that practically
speaking defamatory statements are
considered true per se35 and the
burden of proving its falsity falls on
the plaintiff. The case of Gertz v
Robert Welch, Inc36 only reinforced
this, making it virtually impossible
for plaintiffs to have any claim, if
sufficient proof is not provided of
the falsity of the statement.
2. Parties
involved-
public and
private
figures41.
The American courts believe public
has a right to criticize the people
who govern them, so they give the
least protection from defamation to
public officials. When officials are
accused of something that involves
their behaviour in office, they have
to prove all of the elements of
defamation and they must also
prove that the defendant acted with
"actual malice, which was defined
in the New York Times case as
In the UK, there is no such clear
distinction between private and
public plaintiffs. A plaintiff is a
plaintiff, and has to simply, but
clearly prove that s/he was
defamed by the defendant, and
how.
The element of public or private
figures comes in only terms of
defenses, that is, in terms of
justification (for public good) or
in terms of privileges. Thus, the
33 Ollman v Evans, 471 U.S. 1127 (1985) (United States Supreme Court)34 Milkovich v Lorain Journal Co. 497 U.S. 1 (1990) (United States Supreme Court) 35 Supra note 4.36 Gertz v Robert Welch Inc, 418 US 323 (1974) (United States Supreme Court)41 A.Lakshminath MSridhar, RAMASWAMY IYER’S THE LAW OF TORTS, (10th edn., 2007)
12
"knowledge that the
information was false" or that it
was published "with reckless
disregard of whether it was false or
not.".42
People who aren't elected can still
be considered public figures
because they are influential or
famous -- like movie stars – and
thus also have to prove that
defamatory statements were made
with actual malice, in most cases.43
Private people who are defamed
have more protection than public
figures -- freedom of speech isn't as
important when the statements
don't involve an issue of public
interest. A private person who is
defamed can prevail without having
to prove that the defamer acted
with actual malice. In fact, in their
focus on free speech, the US courts
have even granted constitutional
rules for private defendants, in case
the matter is of a public concern.
However, the system is not without
flaws. Public officials can include
even a deputy sheriff.44The case of
Cohen v Marx45, as well as the New
York Times case indicate that
job here is much easier for the
plaintiff, as no ‘actual malice’ is
necessary, and malice only comes
in for availing special damages.
Further, unintentional defamation
is easier for the plaintiff to argue,
and still avail damages, than it is
for the US plaintiff. This concept
of unintentional defamation
imposes much greater
responsibility on UK defendants,
as it makes it even harder for
them to verify what they publish.
42 Supra note 10.43 P.Thorton, SPORTS LAW,300, (2nd edn., 2010)44 Ammerman v Hubbard Broadcasting Co ,91 NM 250 (United States Supreme Court)45 Cohen v Marx, 211 P.2d 320 (California Dist. Ct.)
13
American courts not only define
public figures as any person in the
public limelight, to the extent that a
high school coach was considered a
public figure in a defamation case,
(Brewer v Rogers 439 S.E.2d 77.46
The impact of this unclear
definition results in low success
rates for the plaintiff- A study
indicates that only 10 per cent of
media defamation cases result in
success for the plaintiff in the US.47
3. Publication The US follow a single publication
rule, where any one edition of a
book or newspaper, or any one
radio or television broadcast is
considered a single publication,
with a statute of limitations that
begins from the date of publication;
there can only be one action for
damages per plaintiff for that
publication. All subsequent actions
arising out of the same publication,
regardless of the number of people
to whom, or the number of states in
which it is circulated, are
precluded. The logic behind this is
to level the playing field for both
plaintiffs and defendants. However,
what constitutes a ‘new
The English courts follow the
multiple publication rule, which
allows each new publication
(both temporally and
geographically) to be treated as a
separate defamatory offence, and
thus, as a separate tort claim. This
allows plaintiffs to simply slap
multiple defamation claims on the
accused, and tort claims can
continue almost indefinitely. As a
result, this rule has the impact of
keeping the press in a reluctant
state to say anything that could be
defamatory; this is the logic
behind this rule as per the English
courts.
The concept of Internet
46 Brewer v Rogers, 439 S.E.2d 77 (Georgia Court of Appeals)47 Supra note 4.
14
publication’ is difficult to say, as
there have been cases where the
rebinding into paperback of a
hardcover book48, the publication of
a newspaper series in book form49,
the rebroadcast of a television
program,50 or even later issues of a
newspaper have been considered as
new publications51.
The advent of the Internet poses
new complications, as Internet
defamation ensures repeated
publication to occur with
unprecedented ease. US statutes
make no difference with regards to
internet publication and
distribution, and only hold the
originator of the message liable.
Thus, an Internet service provider
(which is not the first publisher)
can redistribute defamatory
statements easily and without fear
of being held liable, thanks to the
immunity that has been granted to
them.52
defamation does not fit well with
the rule of multiple publications.
Internet Service Providers will be
held responsible for everything
they publish, and this monitoring
combined with the preference
given to plaintiffs, could lead to
the removal of any and every
controversial piece of information
upon request, thus severely
hampering freedom of speech on
the Internet in the UK. The case
of Godfrey v Demon Internet
Service 53, a landmark case for
online defamation, clearly
highlights this fact.
Thus, the attitude of judgement
by subjectivity of readership
leads to an inherent injustice in
English defamation law.54
4. Distinction
between Libel
Different states have different
policies regarding the definition of
The same policy of libel and
slander is followed throughout,
48 Rinaldi v. Viking Penguin, Inc. , 52 N.Y.2d 422 (1981) (New York Supreme Court)49 Karaduman v. Newsday, Inc. , 51 N.Y.2d 531, 554 (1980) (New York Supreme Court)50 Lehman v. Discovery Communications, Inc. , 332 F.Supp.2d 534, 539 (United States District Court, E.D. New York.)51 Rivera v. NYP Holdings, Inc. , 847 N.Y.S.2d 904 (New York Supreme Court)52 Smith &Bird, INTERNET LAW & REGULATION, (4th edn, 2007)53 Godfrey v Demon Internet Service [2001] QB 201 (High Court, Queen's Bench Division)54 Tim Crook, COMPARATIVE MEDIA LAW AND ETHICS, (2nd edn., 2010)
15
and Slander
libel and slander; some states
refuse to make any distinction at
all.55
making decisions easier for the
judges at various levels. 56
5. Burden of
proof
Thanks to their focus on free
speech and the developments of the
New York Times case, US courts
require defendants to prove the
falsity of the statement as well as
actual malice, except in the case of
private plaintiffs in most cases. For
plaintiffs, the job is much easier. A
plaintiff does not even have to
specifically identify the words or
meaning that they claim have a
defamatory meaning; they have to
simply allege that they have been
defamed by the defendant’s
published article or broadcast.57
Even the defendants can provide a
rough approximation for proving
the truth, leading to more confusion
and lack of clarity.
British courts apply a far less
stringent standard than U.S.
courts for recovery in defamation
claims. Defamatory statements
are thus presumed to be false,
unless the defendant can prove
their truth. Thus, under British
law, the burden of proof rests
with the defendant to prove the
truth of the statements in dispute,
while the plaintiff only has to
show that the statement harms his
reputation, without having to
show that any damage has
actually been suffered. However,
the plaintiffs have to show that
the concerned statement actually
is defamatory, and the rules
regarding pleading of innuendo
ensure that no wasteful confusion
with regards to what the
defamatory statement is or
means, is indulged in. The same
preciseness is extended to
defendants as well with regards to
proving the truth of the
accusatory statement.58
55 Supra note 4.56 Supra note 17.57 Supra note 4.
16
6. Privileges
Although the American laws
provide the same common law
privileges, with regards to public
proceedings, the privilege to report
is much broader, as a journalist can
gain access to virtually any
material, including leaked
information, when reporting about
a public proceeding. A few courts
have extended this to a general
privilege to repeat defamatory
allegations, as long as they are
accurately reported.59 Thus, the US
courts seem to protect accurate
repetition to quite an extent. With
regards to conditional privileges, an
important point is that US courts do
not easily dismiss these privileges
as the English courts do, with the
excuse of ‘improper motive’.60
The common law privileges of
absolute and qualified privileges
are well established in the UK,
and indicate that the UK does
respect freedom of speech as
well, but in practice, English Law
prefers plaintiffs, and qualified
privileges can be dismissed by
claiming ‘malice’.61
7. Element of
Actual Injury
The US courts define actual injury
include humiliation and mental
anguish along with pecuniary
losses, and if ‘actual malice’ is
provided, a plaintiff may enjoy
punitive damages as well.
In common law, actual injury
allows plaintiffs to avail special
damages much more easily,
making the toll on defendants
even heavier.
8. The Law in In practice,62 American libel suits In England, the defendants are
58 Supra note 4.59 Global Green v CBS inc., 286 F 3d 281(United States Court of Appeals, Fifth Circuit.)60 T.Eide, THE DEFAMATION LAW OF THE UNITED STATES OF AMERICA, (1st edn, 1987)61 Supra note 4.
17
Practice and
Libel Tourism
are not as biased towards
defendants as they may doctrinally
seem. Although American
defendants are less likely to lose
than their counterpoints in England,
the multi-million dollar judgements
and expensive litigation make
American defamation both few and
heavily publicised.
Privacy for the defendants is an
issue, as pre-trials discovery
procedures allow the plaintiff to
search through records, and
interview the defendants’
employees. The media coverage
ensures that defamation can be a
great threat to the media houses
beyond just the statutory
disadvantages.
Plaintiffs may avail legal aid, and
conditional fee structures to avail
easy legal representation.
However attempts have been made
to relieve American defendants in
the form of Anti-SLAPP (strategic
lawsuit against public policy)
statutes, which allow defendants to
plead to the judge for determining
the merit of the suit against them.
Thus, the plaintiffs may occur
certain costs and proceedings as
granted a ‘right to make amends’-
a correction, apology and an offer
to provide compensation to the
plaintiffs. This does not exist in
American law. 63
Further defendants in England,
can use a variety of pecuniary
tools to bring an end to
proceedings, primarily revolving
around pre-trial settlement.
Rejection of such offers can
impose great expense on the
plaintiffs. Further claimants do
not avail legal aid and conditional
fee systems for availing counsels
are not easily granted. 64
However, due to the doctrinal
preference given to plaintiffs,
libel tourism is greatly indulged
in by US defendants in
defamatory claims. Utilising
Internet publication loopholes,
US plaintiffs can bring the claim
to the UK and easily win. In order
to discourage this, a recent
Speech Act of 2010 has been
passed, indicating that all
judgements passed abroad not
following the First Amendment
protections, will not accepted in
American jurisdictions.65
62 Supra note 4 at 880.63 Supra note 4 at 880.64 Supra note 4 at 881
18
well.
CHAPTER 3: SUGGESTIONS FOR INDIA
The researcher has found two complications in his attempt to recommend a defamation
system for India.
1. Defamation is an extremely complex tort, with several jurisprudential difficulties and
lack of clarity with respect to its treatment,66
2. Both systems, that is, the American ‘free speech’ and UK ‘plaintiff-centric’ systems
of defamation law are riddled with problems on several levels, and assessing a
suitable model for India is a complex problem as societal factors play in on a much
higher level. Further, both models are constantly evolving, and their position remains
forever unclear.67
Further, the Indian defamation law is based primarily on common law. However, it varies
significantly as well when compared to modern defamation law of the UK. India makes no
distinction between Libel and Slander68. Also, defamation is both a civil wrong and a criminal
offence, as has been stated before. Indian case law indicates that the meaning of defamation
includes several societal factors like questioning one’s professional capabilities69, Indian
65 R. Greenslade, Obama seals off US journalists and authors from Britain’s libel laws, THE GUARDIAN, (11 Aug. 2010)66 Supra note 17.67 Supra note 4 at 883.68 Supra note 3.69 Mitha Rustomji v Nusserwanji Nowroji AIR 1941 Bom 278 (Bombay High Court)
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abuses70, calling someone a goonda71,etc. Defenses like provision of apology are not easily
accepted and the wordings of the IPC also bring in problems, for example, the definition of
the word ‘infirmity’.72 Further cases like R. Rajagopal v State of T.N.73indicate the
controversy around the issue, and the government’s reluctance to deal with sensitive issues
surrounding defamation of public officials and matters of public importance.
In light of these additional complexities along with the initial problems stated in the first
chapter, the researcher feels that bringing about changes in the Indian defamation would
require the creation of a unique defamation law that suits the Indian society rather than
simply emulating English or American law; a law that also covers the gaping hole in Indian
defamation law concerning Internet defamation. In light of these factors, the researcher
proposes certain changes that could impart clarity to the Indian scenario-
1. Classification of defamation as only a civil tort. – Due to the advent of the Internet,
and the need for an Indian position for Internet defamation, limiting defamation to the
civil sphere of law would be prudent, as a defendant in an Internet defamation case
could end up in jail simply for providing a forum to publish (possibly libellous)
statements on the Internet. Criminal Defamation severely hampers freedom of
speech, and defamation in itself is essentially between two individuals. Thus
involvement of the State could lead unnecessarily high punishments, abuse by
influential persons, and lack of any compensation for the victims.74 Further, the
criminal system does not regard absolute privileges or vicarious liability, and also
creates complications with respect to violation of a grave via defamation.
2. Codification of civil law- In order to accommodate a comprehensive stance, civil law
must be codified, in a manner that suits the Indian media, as they are the primary
parties concerned.75 Further, a codified civil law on defamation might, as per the
researcher, introduce more equity in to the current situation, and prevent situations
like the case of Times Now v Justice P.B. Sawant where a media house was forced to
pay Rs 100 Crore for a five-second lapse.76
70 Harakh Chand v Ganga Prasad AIR 1925 All 371, (Supreme Court Of India) 71 Sadaiba v Banisdhar AIR 1962 Orissa 115 (Orissa High Court)72 Hamsa v Ibrahim, (1993) 2 Ker LJ 698. (Kerala High Court)73 R. Rajagopal v State of T.N 1995 AIR 264 (Supreme Court of India)74 D.Simons, Defamation ABC, ARTICLE 19 (November 2006) available at http://www.article19.org/data/files/pdfs/tools/defamation-abc.pdf75 Supra note 27 at 63.
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3. Adoption of the single publication rule- The US single publication rule is both
practically more efficient and jurisprudentially more respectful of justice and
imposition of liability. Thus the researcher advocates adoption of this rule.
4. Clarity with respect to the role of Internet Service Providers- This aspect is
heavily disputed in many countries including Canada, the US, and the UK77, and thus,
the researcher feels that the issue must be adequately addressed in the shortest time
possible, as the Internet grows on an exponential rate.78
5. A balance with respect to the burden of proof- The English concept of defamatory
statements being presumed false has been heavily criticised as favouring the plaintiffs,
and making it easier to restrict free speech.79 In light of India, and the influence of the
media, a balance needs to be found between the desire to respect private reputation
and the desire to protect free speech.
Despite having given these recommendations, the researcher must warn that the changes
be made carefully and in a gradual manner, as one must not forget the sheer complexity
of both defamation law, as well the unique Indian society.
76 ET Bureau., Times Now verdict appalling, says International Press Institute, ECONOMIC TIMES, (Nov. 22, 2011) available at- http://economictimes.indiatimes.com/news/politics/nation/times-now-verdict-appalling-says-international-press-institute/articleshow/10823312.cms77 Supra note 3.78 Anon. ,Unruly world of Internet leads to rise in libel cases, CANWEST MEDIAWORKS PUBLICATIONS INC., ( MARCH 17, 2006) available at http://www.canada.com/saskatoonstarphoenix/news/story.html?id=44633f5a-6d26-422c-be8b-53a785a6d6dd&k=3704179 Supra note 45.
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CONCLUSION
It is submitted that in this research paper, the researcher’s analysis of the defamation laws of
the US and UK, has raised three points. Firstly, that defamation is a tort which varies greatly
in theory, application, and principles. The societal factors and fundamental notions of the
concerned countries and its social actors play a huge role in determining its development.
Secondly, the US and the UK follow contrasting policies on defamation, and have taken
opposite sides on the debate between reputation and free speech. Thirdly, India’s own
position is a confused one, a mixture of archaic statutes and case law.
Thus, the main purpose of suggesting a system for India to follow has been difficult to
implement, and the researcher has proved his opinion on the issues to be dealt with and how
to deal with them, keeping in mind the laws of US and UK on defamation. The researcher
believes that India’s law must develop a unique system that works for its society and media,
while absorbing the positive aspects of defamation law from abroad, in order to attain the
central goals of judicial stability and clarity.
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BIBLIOGRAPHY
A R T I C L E S
1. Anon. ,Unruly world of Internet leads to rise in libel cases, CanWest MediaWorks
Publications Inc., ( MARCH 17, 2006)
2. D. Linder, The Trial of John Peter Zenger: An Account (2001).
3. D.Simons, Defamation ABC, ARTICLE 19 (November 2006)
4. ET Bureau., Times Now verdict appalling, says International Press Institute,
Economic Times, (Nov. 22, 2011)
5. F.Schauer, The Exceptional First Amendment (2005)
6. P.K. Jones, Roman Law Basis of Suretyship in Some Modern Civil Codes, 52, TULANE
LAW REVIEW, 129, (1977).
7. R. Greenslade, Obama seals off US journalists and authors from Britain’s libel laws,
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10,2011)
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B O O K S
1. A.Lakshminath MSridhar, Ramaswamy Iyer’s the Law of Torts, (10th edn., 2007)
2. B. Manna, Mass Media and Related Laws in India, (1st edn.,1998)
3. Black’s Law Dictionary, (9th edn.,2009)
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6. Salmond, J W, SALMOND’S LAW OF TORTS, (8th edn., 1934)
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E S S A Y S
1. V.V. Veeder, The History of the Law of Defamation in Select Essays in Anglo-
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S T A T U T E S
1. INDIAN PENAL CODE, 1860.
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