defamation- libel and slander

8/10/2019 Defamation- Libel and Slander

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MEDIA LAWSMass Media systems differ from country tocountry on the basis of polity, economy, cultureand religion of different societies.

In the Indian scenario and its ParliamentaryDemocracy, the media is free but subject to

some reasonable restrictions provided by theIndian Constitution.

Before the Indian economic liberalisation in1991, the mass media was under governmental

control to a large extent.It allowed the media to project only that image,things and happenings which the Govt. wantedthe public to see.


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With the beginning of privatization andglobalization, the situation has

undergone a big change. Before the era of communication

satellite, communication was mostly in

the form of national media publicand private in India as well asabroad.

Then, transnational media arrived

bringing in an evolution ofcommunication technologies likeSatellite delivery and ISDN (Integrated

Services Digital Network)


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Consequently, local TV, global filmsand global information systems made

the national and international mediascene very complex andsophisticated.

Due to this unprecedented mediaupsurge, it becomes unavoidable toput certain legal checks and balanceson the transmission and

communication of public content. Legal checks and balances slander,

libel, sedition, obscenity, censorshipand the contempt of court.


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Defamation : Libel and

Slander Defamation means a public

communication which is intended to

harm the reputation of an individual.

It comprises of both slander (oralones) and libel (written defamatory

statements).

In practice, the definition and meaningof defamation differs from jurisdiction

to jurisdiction.


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However, there is a common consensus

that a communication that is just

unflattering, irksome, annoying orembarrassing or for that matter hurts

only the plaintiffsfeeling and sentiments,

does not strictly qualify as defamation.According to the US Restatement

(Second) of Torts, defamation is a

communication that tendsso to harm the

reputation of another as to lower him inthe estimation of the community or to

deter third persons from associating or

dealing with him.


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In England, a court puts the inquiry

whether what has been published

would tend in the minds of people of

ordinary sense to bring the plaintiff

into contempt, hatred, or ridicule or to

injure his character. Other common tests include: lowering

the plaintiffs reputation by exposing

him to hatred, contempt or ridiculeand tending to make the plaintiff be

shunned and avoided.


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The elements found common in themajority of jurisdiction include a

statement, publication to a third partyor parties and the possibility todamage the plaintiffsstatus.

Section 499 of Indian Penal Codeprovides that:

Whoever by words either spoken orintended to be read, or by signs or by

visible representations, makes orpublishes any imputation concerningany person intending to harm, orknowing or having reason to


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believe that such imputation will

harm, the reputation of such person, is

said, except in the cases hereinafterexcepted, do defame that person

Explanation 1: It may amount to

defamation to impute anything to adeceased person., if the imputation

would harm the reputation of that

person if living, and is intended to behurtful to the feelings of his family or

other near relatives.


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Explanation 2: It may amount to

defamation to make an imputation

concerning a company or anassociation or collection of persons as

such.

Explanation 3: An imputation in theform of an alternative or expressed

ironically, may amount to defamation.

Explanation 4: No imputation is saidto harm a personsreputations, unless

that imputation directly or indirectly, in

the estimation of others, lowers the


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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.


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Exceptions

Imputation of truth public which goodrequires be making or publishing: It is

not defamation to impute anything,

which is true concerning any person, ifit be for the public good that the

imputation should be made or

published. Whether or not it is for thepublic good is a question of fact.


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Public conduct of public servants: It is

not defamation to express in good

faith any opinion whatever respectingthe conduct of a public servant in the

discharge of his public functions, or

respecting his character, so far as hischaracter appears in that conduct, and

no further.


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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.


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Publication of reports of proceedings

of Courts: It is not defamation to

publish a substantially true report ofthe proceedings of a Court of Justice,

or of the result of any such

proceedings. A justice of the peace orother officer holding an enquiry in

open Court preliminary to a trial in a

Court of Justice is a Court within themeaning of the above section.


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Merits of case decided in Court orconduct of witnesses and others

concerned: It is not defamation toexpress in good faith any opinionwhatever respecting the merits of anycase, civil or criminal, which has beendecided by a Court of Justice, orrespecting the conduct of any personas a party, witness or agent, in any

such case, or respecting the characterof such person, as far as his characterappears in that, and no further.


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Example of Defamation case

Defamation Case against Rahman,

Anil Kapoor (2009)

An office bearer of a slum dwellers'

body has filed a defamation caseagainst music director AR Rahman and

actor Anil Kapoor alleging that the

award winning film Slumdog Millionairecalls Indians dogs and slum dwellers

slum dogs.


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In a complaint filed before a local court

in Patna, Tapeshwar Vishwakarma,

general secretary of Slum-dwellersJoint Action Committee, has alleged

that the film depicted slum-dwellers in

bad taste as it used the derogatoryand objectionable title Slumdog

Millionaire thus calling Indians dogs

and slum dwellers slum dogs, which is

defamatory.


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Vishwakarma said he has already

approached the national and state

human rights commissions fornecessary action against Rahman and

Kapoor, who portrays the role of a

game show host in the film. Slumdog Millionaire, which tells the

rags-to-riches tale of an orphan from a

Mumbai slum, won four Golden Globeawards, including one for Rahman,

and has been nominated for 11

BAFTAs.


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Origin of defamation law

The origin of the law of defamationcan be drawn to ancient times.

Although it has evolved significantly,

the contemporary themes are quitenoticeable in its origins,.

The concept of civil law evolved fromthe Roman acto injuriarum, which

concentrated more on the intentionaland unjustified hurting of anothersfeelingsthan harm to public status.


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The Roman law heavily influenced theevolution of the common-law slander

and libel. During the time of Henry III (1216

1272) in England, libel got its definitionthe use of abusive languageaddressed to a man publicly or the actof inciting a crowd to beset a manshouse or to mob the man himself.

Civil and criminal punishments fordefamation were decided by the Courtof Star Chamber in England.


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The common law action developed

from the English ecclesiastical courts

inability to adequately deal with theproblem of defamation.

The church courts had the powers to

order the offenders to apologize;however, the victims usually found

such actions insufficient and took to

duels for revenge or satisfaction. The Scandalum Magnatum was

passed in 1275 to check this violence.


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It introduced two grounds of

justifications for the defamation law

which remains relevant even today:- The Parliament was eager to stop

insults targeting the nations best

men as it was apprehending threatsto the feudal order. This thought

developed into a concern that

unchecked criticism will throw outqualified people out of public service.


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The government, at that time the

Crown, wanted to suppress the critics

who were threatening its legitimacy.

During that time, the challenge was

put up by those who did not believe in

the idea that the king was ordained byGod to rule over them. By 1676, the

common law came to incorporate the

Scandalum Magnatum and itssuccessors.


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Today, almost all the states in the worldpossess a set of civil or criminal law to

guard the individual and institutionalreputation.

Modern jurisprudence is yet to take aclearly defined stand on the issue of

criminal defamation. Some of the courts think that this kind of

prosecution is inappropriate.

Others put the argument that the criminaldefamation laws intrinsically infringeupon the freedom of expression andhence must be abolished entirely.


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Despite these divergent opinions,various cases and commentaries

suggest a trend towards discouragingcriminal prosecutions for defamation.

Once the incident reaches trial, thecommon law has conventionally provided

three defenses to defamation: truth, faircomment and privilege.

Truth, or say justification, is a totaldefense for the statements of the fact. If

the defendants are able to prove thetruth and substance of a defamatorystatement, they are not held liable fordamages.


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In Britain, the defendant is just

required to show that the concerned

statement is substantiallycorrect.

This defense of reasonable and fair

comment provides protection to

express the opinions.Although, it might be easier to argue

and defend fair comments than justify

facts, the defense does not cover allthe opinions and viewpoints.


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The defendants are not required to

substantiate that they honestly hold

the opinion. They just have to prove

that a reasonable individual may hold

such an opinion.

Fair comment, unlike justification, maydefeated if the plaintiff is able to prove

that the defamer acted maliciously.

Privilege qualified or absolute isdesigned in a manner to protect the

expression made for the common

good.


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Absolute privilege provides a total

defense for the people with s public

duty to speak out. For example, the elected officials can

speak freely in Parliament; lawyers,

judges and witnesses cannot beprosecuted for what they say in the

court; certain government officials

cannot be held accountable for reportsabout state matters.


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In the absence of such defense,defamation threat deters these peoplefrom speaking freely, independently andin the public interest.

The qualified privilege, on the otherhand, offers protection to the expressionmade in public interest except when the

statements are made in malice. The defense is applicable to the

individuals bound with a social or moralresponsibility to report information, like

the incidence of crime, and to theauthorities having a responsibility toreceive and act upon complaints andcommunications.


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In English common law, certainstatements like accusing somebody of

lying, doing a crime or suffering from adespicable disease were consideredlibelousper se.

It meant these could not be considered

innocent in meaning and needed noextra information for the defamatorymeaning to be apparent.

On the other hand, libel per quodneeded extrinsic evidence, i.e., sayingthat a woman is pregnant will notdamage her reputation unlesssupplementary facts (for example, herhusband is out of the country for the last

1 year) is made known.


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In practice, modern-day sanctionsmake no difference between libel per

se and libelper quod. In case of falsity, the English common

law needed just considerable truth,which in practice meant that smallinconsistencies were excused.

The substantial truth principle is stillprevalent in the United States;

however, England and other Westerncountries put the onus ofsubstantiating truth on thecommunicator himself.


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Many countries do recognize the risk ofproviding the government the right totake legal action against its critics fordefamation.

In Derbyshire County Council vs. TimesNewspapers Ltd. (1993), The England

House of Lords made a ruling that thecommon law does not permit a localauthority to entertain an action for libel.

In this case, the County Council made an

attempt to prosecute the Sunday Timesand its staff for two articles thatquestioned the management of asuperannuation fund and council

investments.


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One year later, following the Derbyshires

lead, the Supreme Court of India, in

R.Rajagopal Vs. State of T.N (1994)found that TheGovt., local authority and

other organs and institutions exercising

powercannot exercise a defamation suit

for damages.

Taking a step further, the Court also

ruled that since the public officials do not

possess the right to privacy, they cannotask for damages for statements which

discuss their official conduct and

behavious.


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The US Supreme Court provided a

path-breaking test to secure the

freedom of expression. Realising thelimits of the customary truth defense,

New York Times Co. Vs. Sullivan

(1964) concentrated on thedefendants intention and instituted a

malice anf hatred requirement for

defamation. This test applies particularly to public

officials and moves the burden of

proof onto the plaintiff.


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Contrary to the conventional commonlaw defenses, the case was regarding

and advertisement appearing in theNew York Times and signed by,among others, four African Americanclergymen who were also among the

defendants.An elected police commissioner,

Sullivan, from Montgomery, Alabama,

made an allegation that theaccusations included in theadvertisement about police violenceagainst civil rights protestors hurt his

reputation.


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The court held the opinion that a

public official may demand

compensation only if he or she provesthat the statement was made with

actual malice, i.e., with knowledge

that it was false or with recklessdisregard for whether it was false or

not.

By transferring the burden andaltering the mens rea for defamation,

this case spared innocent mistakes

while protecting political criticism born


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Not mentioning the term malice

explicitly, it observed that the public

officials do not possess the right totake judicial remedy for damages

regarding official duties except when

they prove that the defendantpublished information with reckless

disregard for the truth.


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The present-day problems of libel andslander comprise jurisdictional and

other matters born of InternetCommunication.

In the landmark 2002 case Dow Jonesand Co. Vs. Gutnick, the High Courtof Australia held that an Australiancould sue an American publisher in

Australia for defamation, based on the

publication of online statements. In other words, the defamation

occurred at the place of reception andnot just at the place of publication.


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Another problem involves the effect ofInternet on the common law rule that

a re-publisher of libel or slander wasjust as culpable as the originator.

The US Congress in 1996 adopted aprovision protecting Internet serviceproviders from liability for libelspropagated by users in electronic mailmessages or on electronic bulletin

boards. However, few countries have gone

that far in immunizing the serviceproviders to that extent.


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Try answer these

What are the two forms ofdefamation?

Give the origin of the law of

defamation. Why modern law is yet to adopt a

clearly defined stand on criminal

defamation? What is the difference between libel

per se and libel per quod in the

defamation- libel and slander

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