project torts

8/2/2019 Project Torts

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PROJECTREPORT

ON

PUBLICATION AS AN ESSENTIAL OF DEFAMATION:

RECENT JUDICIAL TRENDS

Submitted To: Prof. Dr. Rajiv Kumar Khare (FACULTY - TORTS)

NATIONAL LAW INSTITUTE UNIVERSUTY

BHOPAL

Submitted By:

SRISHTI CHATURVEDI

SEMESTERI

2011 B.A. LL.B. 91


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INTRODUCTION-

Defamation is a false and unprivileged statement of fact that is defamatory, about the plaintiff,

and that published "with fault," meaning as a result of negligence or malice. Libel is a writtendefamation; slander is a spoken defamation. Publication is the essence of libel and slander

because the wrong is injury to reputation, not insult, and reputation is what others think of one,

and not ones own opinion about oneself.

Defamation and its essentials-Defamation is the communication of a statement that makes a claim, expresslystated or implied

to be factual, that may give an individual ,business, product, group, government, or nation anegative image. The essentials of defamation are:

The state made was defamatory i.e. could injure the reputation of a person The person referred to in the statement was the plaintiff The statement was published

Publication-Publication is an essential ingredient of defamation. However defamatory a persons thoughtsmay be, they will cause no damage to the reputation of anyone unless communicated to another.

It is usually a requirement that this claim be false and that the publication is communicated to

someone other than the person defamed. Laws are "intended primarily to protect the plaintiff'smentaloremotionalwell-being. If apublicationofinformationisfalse, then atortof defamationmight have occurred.
http://en.wikipedia.org/wiki/Plaintiffhttp://en.wikipedia.org/wiki/Plaintiffhttp://en.wikipedia.org/wiki/Plaintiffhttp://en.wikipedia.org/wiki/Mindhttp://en.wikipedia.org/wiki/Mindhttp://en.wikipedia.org/wiki/Emotionhttp://en.wikipedia.org/wiki/Emotionhttp://en.wikipedia.org/wiki/Emotionhttp://en.wikipedia.org/wiki/Publicationhttp://en.wikipedia.org/wiki/Publicationhttp://en.wikipedia.org/wiki/Publicationhttp://en.wikipedia.org/wiki/Informationhttp://en.wikipedia.org/wiki/Informationhttp://en.wikipedia.org/wiki/Informationhttp://en.wikipedia.org/wiki/Falsityhttp://en.wikipedia.org/wiki/Falsityhttp://en.wikipedia.org/wiki/Falsityhttp://en.wikipedia.org/wiki/Torthttp://en.wikipedia.org/wiki/Torthttp://en.wikipedia.org/wiki/Torthttp://en.wikipedia.org/wiki/Torthttp://en.wikipedia.org/wiki/Falsityhttp://en.wikipedia.org/wiki/Informationhttp://en.wikipedia.org/wiki/Publicationhttp://en.wikipedia.org/wiki/Emotionhttp://en.wikipedia.org/wiki/Mindhttp://en.wikipedia.org/wiki/Plaintiff


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RECENT INDIAN CASES

D.P. Choudhary And Ors. vs Kumari Manjulata on 4 April, 1997AIR 1997 Raj 170

Kumari Manjulata is the daughter of Mohan Singh. She was aged about 17 years and was livingwith her parents and brother. They are all educated. Even the plaintiff was a student of B.A.

Thus the plaintiff respondent was a member of distinguished family. In Jodhpur the communityof Malis to which the plaintiff respondent belonged was an uneducated community, therefore,

the family of the plaintiff respondent was regarded very high being an educated family.

On 18-12-77, Dainik Navjyoti published a news regarding Manjulata with unfair comments andfalse imputations. The news item was basically untrue and was published negligently with utter

irresponsibility and maliciously which created hatred against Manjulata and she was ridiculed.

The news item was published in order to dishonour Manjulata and her family members.

By publication of this news item Manjulata was defamed. It created problems for arranging

marriage of the plaintiff respondent. She was shocked and was ridiculed by persons who knewher. She suffered from inferiority complex because of the publication of this news. Parents of

Manjulata also suffered disrespect in the society as the news item was defamatory. A notice was

given to the defendant appellants but it was left unheeded. A sum of Rs. 10,100/- was claimed as

damages along with 12% interest.

After publication of news item in the Dainik Nayjyoti, marriage proposals for Manjulata wereminimised. PW-8 Mangilal has stated that he first tried to get his nephew betrothed with

Manjulata but after publication of this news item, the idea was dropped-So it is proved from the

evidence of plaintiff and her witnesses that her reputation has lowered down, marriage proposalswere dropped, she underwent mental tensions and her character was assassinated. The evidence

led by plaintiff and her witnesses was suf-ficient to lower down the prestige of Manjulata. It has

been stated on behalf of the appellant that there was no malice against the plaintiff respondent.

Needless to say that in such cases a man may be liable although he had not a particle of maliceagainst the person defamed. The intention or motive with which the words were employed is, as

a rule, immaterial. If the defendant has in fact injured the plaintiffs reputation, he is liable,

although he did not intend so to do, and had no such purpose in his mind when he wrote or spoke

the words. Every man must be presumed to know and to intend the natural and ordinaryconsequences of his acts. The words are actionable if false and defamatory, although published

accidentally or inadvertently

From the evidence of record it is found that the defendant appellants after having received

information from the policed without any proper verification published the news item, with the

result Manjulata and her parents lost their prestige in the society and in eyes of relatives as wellas the persons who knew them.


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Prameela Ravindran vs P. Lakshmikutty Amma And Anr. on 16 June, 2000

AIR 2001 Mad 225

The case in brief is as follows : The applicant/plaintiff filed a suit seeking damages for acts of

defamation committed by the respondents/defendants. The applicant married one Ravindran in

1983 at Mangulam Parasakthi Temple, East Pattom, Trivandrum, Kerala. There was anAgreement also on 16-12-1983 on the file of Sub-Registrar, Chalai, Kerala. Later, they moved to

Chennai and did business. Ravindran died in October, 1998 and till then, none of the defendants

disputed the validity of the marriage or the status of the applicant. After the death, the

respondents have resorted to dispute the validity of the marriage in order to deprive her of thelawful share in the estate of her husband. The first respondent issued a lawyer's notice dated 20-

11-1998 alleging that she was not the legally wedded wife. He had addressed three letterscontaining defamatory statements. On 23-11-1998 one letter was sent to Thiru K. M. Cherian,Manager-Sales, Instruments and Machines Inc., alleging that the deceased died as a bachelor

leaving behind the first respondent as the only legal heir. After the receipt of this letter, he

refused to co-operate with or take instructions from the applicant. He also discussed the contentsof the letter with the other employees. Later, he resigned on 20-1-1999. Another letter on the

same lines was also addressed to one Kutty Krishnan, Group Manager. Third letter was

addressed to the Branch Manager, Vijaya Bank, Chennai. Dr. Gopalakrishnan, Medical Director

of Premier Diagnostic and Research Centre has been influenced by these defamatory statementsand now refuses to report to the applicant or to take instructions from her. The respondents have

systematically proceeded to tarnish her reputation among the various group concerns established

by her husband. She has got a prima facie case and the balance of convenience is also in herfavour. Hence, the petition.

The second respondent filed a counter, adopted by the first respondent. They denied the variousallegations made in the affidavit. They also denied the alleged marriage as well as the alleged

agreement. The first respondent is the mother while the second respondent is the brother of the

deceased. The applicant is a poor Brahmin settled down in Trivandrum. She was working as aReceptionist in a comparatively low grade hotel in Trivandrum and the entire family was

maintained from her earnings. The deceased Ravindran had relationship with several women and

one of them was perhaps the applicant herein. To the best of the knowledge, the applicant had

not married anyone and the applicant cannot claim the status as his widow. It is possible that

Ravindran could have relationship with her. If the applicant is able to produce any marriagecertificate as evidence of her marriage, it can be accepted. The Agreement dated 14-12-1983

cannot have any legal sanction. They have not made any defamatory statement against the

applicant but only pointed out the truth. They have no intention of making any defamatorystatements and, as such, the application is liable to be dismissed.

The applicant/plaintiff claims herself to be the wife of deceased Ravindran. Learned counsel for

the applicant stated that the plaintiff married the said Ravindran in 1983 in the temple at


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Trivandrum and later, an agreement was also entered into between them on 14-12-1983 on the

file of Sub Registrar, Chalai, Kerala. Both of them moved to Chennai and did the business. Tillthe life of Ravindran, the respondents have not chosen to dispute the validity of the marriage and

only on the demise of Ravindran, the first respondent issued lawyer's notice dated 20-1-1998

alleging that the applicant is not the legally wedded wife. He had also addressed three letters on

23-11-1998 containing defamatory statements to three persons and because of this, the applicanthas come forward with a suit, claiming damages and also the relief of permanent injunction.

Per contra, learned counsel for the respondents contended that there is no record to show that the

applicant/plaintiff married the said Ravindran. The alleged agreement would not be valid under

law. To their knowledge, Ravindran had not married either the plaintiff or any other person. Hedied as a bachelor and whatever letter sent by them was only truth and they have no intention

whatsoever to defame the applicant.

The applicant has filed typed set of documents to show that she has got prima facie case and thebalance of convenience is in her favour. Receipt dated 14-12-1983 has been filed to show that

the amount has been paid in the Temple for the purpose of marriage. The copy of the MarriageCertificate dated 10-1-1984 was issued by Mangulam Parasakthi Temple authorities, wherein itis stated about the marriage between Prameela and one Ravindran. Apart from that, the marriage

agreement between Prameela and Ravindran dated 14-12-1983 is also filed. The deceased had

taken LIC policy dated 12-1-1997, wherein the applicant is described as his wife. Even in thepassport, she had been described as the wife of Ravindran. The aforesaid documents have been

pressed into service by the applicant in order to show that she has been described as the wife of

the deceased. It is therefore, evidently clear that the applicant has got prima facie case and the

balance of convenience is also in her favour.

Learned counsel for the respondents contended that the deceased died as a bachelor and he had

not married anyone. When several documents have been filed by the applicant, the burden isonly upon the respondents to show that they have been created for the purpose of this case. The

validity or otherwise of these documents can be established on the basis of legal evidence; but

for the purpose of this application, there is no reason to reject the documents filed by theapplicant. Even in the LIC policy the deceased had shown the applicant as the wife, is a strong

piece of evidence to prima facie establish the case of the applicant. It is further stated that there

are other cases also between the parties. However, I am of the view that the respondents have noright to address third parties disputing the validity of the marriage when the matter is pending

before a Court of Law. It appears that the respondents are deliberately sending communications

to the third parties only to harass and annoy the applicant. Whatever be the objections, it is

always open to the respondents to putforth the same in the Court and establish their case. Thereis no necessity or provocation on the part of the respondents to send any communication to the

third parties relating to legality or otherwise of the marriage of the applicant with the said

Ravindran. In the circumstance considering the documents filed on the side of the applicant. I am

of the view that the balance of convenience is also in favour of the applicant and the respondentsshould be restrained from making or sending any letters relating to the status of the applicant

pending disposal of the suit.


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M/S Frankfinn Aviation Services ... vs Surinder Bhardwaj on 28 April, 2009

Civil Revision No. 1350 of 2007 [1]

The plaintiff asserts to be engaged in highly specialized vocational training in aviation,

hospitality and travel industry. It also provides job assistance to the students after such a training.The plaintiff is stated to be an International Standard Organization 9001-2000 certified institute

and stated to be running its one of the institute / centres under the name and style of "Frankfinn

Institute of Air-Hostess Training, Chandigarh Centre". The plaintiff asserts to be a reputedorganization which has always upheld the student's interest and has toiled hard for what it

represent to the students in the advertisement / broucher/ prospectus and all such marketing

material. The advertisement of the plaintiff institute is informative, genuine and did not indulge

in false, objectionable and misleading claims in the advertisement. More than 100 students havegot the distinction of becoming Air hostesses/ Flight Stewards by now.

The defendant claiming himself to be the President of the Chandigarh Territorial Janta Dal(United) , in order to lower down the image of the plaintiff's institute in the eyes of the

candidates who are aspiring to join the institute and also in the eyes of the public at large issued a

press release in a press conference which he got held at his instance on 17.10.2006. He circulateda letter dated 16.10.2006 making absolutely false and reckless allegations against the petitioner

institute. The faculty and the students of the petitioner institute made a complaint to the Senior

Superintendent of Police and Station House Officer against the mischievous and malicious act of

the defendant in defaming, misleading and spreading rumors of incorrect facts of immoralactivities with respect to the plaintiff institute. But the defendant did not show any remorse /

repentance and got issued another press release on 13.11.2006 allegedly along with the parents of

some old students of the plaintiff institute but there was no complaint from any of the students orparents with regard to the working of the plaintiff institute. In view of the said facts, the plaintiff

institute filed an application for ad interim injunction to restrain the defendant to make any

defamatory, scandalous and libelous allegation against the plaintiff institute in any manner byissuing press release or any other similar manner.

The learned trial Court dismissed the application holding that no one can be restrained frommaking any statement or issuing any press release etc. If such press release or statement is

defamatory or derogatory, the plaintiff has equally efficacious remedy for damages available to

him. No temporary injunction can be granted when equally efficacious remedy is available.

Thereafter, the case was taken up on 06.08.2007 when the revision petition was admitted and therespondent was restrained from publishing any defamatory article or circulating brochure against

the plaintiff institute. Though section 41(h) of the Specific Relief Act, 1963, prohibits grant ofinjunction where efficacious remedy is available but in the present case, the allegations levelled

pertained to the reputation and working of the institute. If reckless allegations are made without

any reasonable proof of correctness of such allegations, it will cause irreparable damage to theworking of the plaintiff institute which damage cannot be compensated in terms of money.

Therefore, the plea that other efficacious remedy is available to the plaintiff institute is not


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acceptable. Therefore, in the facts of the present case, I am satisfied that the plaintiff-institute has

made out a case for grant of ad-interim injunction restraining the defendant from publishing anydefamatory article or distribute brochure.


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RECENT U.K. CASES

Mcdonalds Corp v. Steel

1995 3 All England Report 615

This is a claim for libel brought by McDonald's Corporation, the First Plaintiff, and McDonald's

Restaurants Limited, the Second Plaintiff, against Ms Helen Steel and Mr Dave Morris, the First

and Second Defendants, and a counterclaim for libel brought by Ms Steel and Mr Morris againstMcDonald's Restaurants Limited. McDonald's Corporation and its subsidiaries, including

McDonald's Restaurants Ltd, see an attractive image as commercially vital to themselves, their

joint venture partners and franchisees, all of whom depend on the brand name and, therefore, onthe attraction of the brand image to existing and potential customers. From some time in the

early or mid 1980s a group of people calling itself "Greenpeace [London]" or "London

Greenpeace" ran an anti-McDonald's campaign. From 1986 onwards, a six page leaflet - "What'swrong with McDonald's? Everything they don't want you to know." - was at the heart of the

campaign. The leaflet accused McDonald's of being responsible for starvation in the Third

World, of destroying vast areas of Central American rainforest, of serving unhealthy food with a

very real risk of cancer of the breast or bowel and heart disease and food poisoning, of lyingwhen it claimed to use recycled paper, of exploiting children with its advertising and marketing,

of cruelty to animals, and of treating its employees badly; all the while deceiving the public and

hiding its true nature behind a clean, bright image. In 1989 a decision was made to try to stop

further publication of the leaflet. Attempts were made to obtain cogent evidence identifying themembers of London Greenpeace, who were responsible for publishing the leaflet, and in

September,1990, proceedings were started against Ms Steel, Mr Morris and three others, Paul

Gravett, Andrew Clarke and Jonathan O'Farrell. The writ and Statement of Claim soughtdamages and an injunction restraining further publication of the words complained of in the

leaflet. Ever alert to public perceptions, McDonald's became concerned about the leaflet,

particularly in this country where it originated. The leaflet was seen as defamatory ofMcDonald's Corporation as the body responsible for McDonald's as a whole, and of McDonald's

Restaurants Limited as the company operating in the country where the leaflet was produced. Its

contents were seen by people inside McDonald's as completely untrue and going beyond any

legitimate criticism, and as part of a campaign to destroy the businesses of McDonald's

Corporation and McDonald's Restaurants Limited, to "smash" McDonald's, regardless of thetruth.

In 1989 a decision was made to try to stop further publication of the leaflet. Attempts were made

to obtain cogent evidence identifying the members of London Greenpeace, who were responsible

for publishing the leaflet, and in September,1990, proceedings were started against Ms Steel, MrMorris and three others, Paul Gravett, Andrew Clarke and Jonathan O'Farrell. The writ and

Statement of Claim sought damages and an injunction restraining further publication of the


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words complained of in the leaflet. So Ms Steel and Mr Morris counterclaimed damages for libel

from the U.K. company which took issue with the meaning of the words complained of andalleged that what had been said was true or protected by qualified privilege as a necessary,

reasonable and legitimate response to a public attack made on it, or prompted, by Ms Steel and

Mr Morris. Ms Steel and Mr Morris denied this.

A successful trading corporation Plaintiff in a defamation action is entitled to recover, as general

compensatory damages, such sums as will compensate it for the wrong it has suffered. That summust compensate it for the damage to its trading reputation and goodwill, and vindicate its good

name such as it may be, but it does not take account of distress, hurt and humiliation as damages

to an individual Plaintiff must do, because a corporation does not have feelings to be hurt,however much the defamatory material may have hurt the feelings of individual officers who feel

themselves affected by it. The extent of publication is also very relevant to the amount of

damages. The important charges of deception made against the Plaintiffs in the leaflet have not

been justified, but some of the Plaintiffs' publicity material has been shown to be misleading.

The extent of publication of the libels was the same in relation to each Plaintiff, and theseriousness of the unjustified charges and the extent of any allowance to be made for partialjustification, were broadly the same in respect of each Plaintiff.

In assessing the appropriate damages for injury to reputation the most important factor is thegravity of the libel. The more closely it touches its trading reputation, the more serious it is likely

to be. The fact that others may have defamed a Plaintiff in the same or similar respects is

irrelevant. There is no basis upon which I could find that either Plaintiff in this case has agenerally bad reputation. It follows that there will be judgment for the First Plaintiff for 30,000

against Mr Morris and for 27,500 against Ms Steel. Mr Morris is severally liable for the whole

30,000 awarded to the First Plaintiff. He and Ms Steel are jointly and severally liable for

27,500 of the 30,000 awarded to the First Plaintiff.


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Reynolds v Times Newspapers Ltd

3 WLR 862, [1998]

The plaintiff, a prominent public figure in Ireland, began proceedings for defamation against the

defendants, the publishers of an article contained in the British mainland edition of a national

newspaper. The publication related to the political crisis in Ireland in 1994 culminating in theplaintiff's resignation as Taoiseach, and the collapse of his coalition government which had,

during its course, progressed the peace process in Northern Ireland. The plaintiff claimed that the

words complained of bore the meaning that he had deliberately and dishonestly misled the Dil

by suppressing crucial information about the Irish Attorney-General, whose appointment to thePresidency of the High Court he had sought to promote, and had similarly misled his cabinet

colleagues by withholding the information and by lying as to when he had obtained it. The

defendants pleaded, inter alia, the defence of qualified privilege at common law on the ground

that, consonant with article 10 of the European Convention for the Protection of Human Rightsand Fundamental Freedoms,fn1 the public interest in the general publication of information and

discussion relating to political issues and the public conduct of elected politicians engaged inthem justified such protection. The judge ruled that the defence was not available. The juryreturned a verdict in the plaintiff's favour and he was awarded the sum of 1p by way of damages.

The common convenience and welfare of a modern plural democracy such as ours are bestserved by an ample flow of information to the public concerning, and by vigorous public

discussion of, matters of public interest to the community. By that we mean matters relating to

the public life of the community and those who take part in it, including within the expression'public life' activities such as the conduct of government and political life, elections (subject to s

10 of the 1952 Act, so long as it remains in force) and public administration, but we use theexpression more widely than that, to embrace matters such as (for instance) the governance of

public bodies, institutions and companies which give rise to a public interest in disclosure, butexcluding matters which are personal and private, such that there is no public interest in their

disclosure. As it is the task of the news media to inform the public and engage in public

discussion of matters of public interest, so is that to be recognised as its duty. The cases citedshow acceptance of such a duty, even where publication is by a newspaper to the public at large.

In modern conditions what we have called the duty test should, in our view, be rather more

readily held to be satisfied.

The circumstances in which Mr Reynolds' government fell from power were matters of

undoubted public interest to the people of Great Britain. We think it clear that the defendants hada duty to inform the public of these matters and the public had a corresponding interest to receive

that information. So the duty and interest tests were, in general, satisfied. We cannot, however,

regard the circumstantial test as satisfied:

The allegation that Mr Reynolds had lied was attributed in the article to an unidentified

colleague of Mr Spring. This source was later identified, as a result of the exchange of witness

statements, as a Mr Finlay, who was not a deputy but was described in the Dail as 'Mr Spring's


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programme manager'. There was no evidence before the jury that Mr Spring authorised Mr

Finlay to accuse Mr Reynolds of lying, and Mr Finlay (although present in court for part of thetrial) was never called as a witness. In the bitter aftermath of these events, a member of the staff

of one of Mr Reynolds' leading political opponents could scarcely be judged an authoritative

source for so serious a factual allegation.

Mr Spring did not in terms accuse Mr Reynolds of lying to the Dail. He did, in his speech on

Wednesday, 16 November, strongly criticise Mr Reynolds for failing to disclose what he had

known on Tuesday, 15 November about the Duggan case; but his criticism was consistent withan honest but mistaken omission on Mr Reynolds' part.

The defendants wholly failed to record Mr Reynolds' own account of his conduct, as described

by him when addressing the Dail in the Wednesday debate.

The defendants did not, between the debate on Wednesday and publication on Sunday, alert Mr

Reynolds to their highly damaging conclusion that he had lied to his coalition colleagues andknowingly misled the Dail so as to obtain his observations on it.

The defendants failed to resolve whether Mr Reynolds was a victim of circumstance, as

conveyed to Irish readers in the 'House of Cards' article, or a devious liar, as conveyed to readers

on the mainland of Britain. It should have been obvious that he could not be both.

Given the nature, status and source of the defendants' information, and all the circumstances of

the publication, this was not in our judgment a publication which should in the public interest be

protected by privilege in the absence of proof of actual malice.


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Loutchansky v Times Newspapers

[2002] 1 All ER 652

The Times sought unsuccessfully to challenge the meaning of publication in the context of

storing archive materials on the internet. The traditional rule was upheld: a "publication" takes

place every time material is made available, and there is no exception for materials kept on the

internet.

The Respondent was an international businessman of Russian and Israeli dual nationality. BeforeDecember 1994, he was a regular visitor to England and had a large number of personal business

contacts here. In that month, the Home Secretary personally directed his exclusion from the UK

on the ground that his presence here would not be conducive to the public good. The Respondenthad been challenging that decision ever since.

The Times ran articles on 8 September 1999 and 14 October 1999 containing material about theRespondent that the Appellants admitted were defamatory, alleging as they did that the

Respondent was involved in Russian crime organisations and money laundering activities. In

accordance with the practice of the Times web site, these articles had been stored and continued

to be available on the web site even after the Respondents letter before action of 17 November1999 and subsequent complaints about the continuing publication of the articles. A qualification

was added to the web site on 23 December 2000 in relation to the first article.

In relation to these first claims of defamation the Appellants did not attempt to justify the

articles. This was because there was simply no admissible evidence to plead even the lesser

ground of justification (justification being a defence to alleged defamation)that of reasonablegrounds for suspicion.

This second action was brought a year after the first. It related to the continuing publication of

the articles on the internet and was prompted by the Respondents discovery that they were being

published without any qualification. The defence adopted was, as in the first action, qualified

privilege. In addition the Appellants relied on the fact that it maintained on its web site apublicly available archive of past issues as a service to the general public, both in this country

and abroad.

The judge at first instance had said:

To succeed in a defence of qualified privilege the defendants had to show that they had beenunder a duty to publish the articles on the internet. Only in exceptional circumstances can such a


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duty arise if the publisher has no honest belief in the truth of the matter published. No such

special circumstances attended the publication on the internet. Mr Brett [in-house lawyer for TheTimes] had conceded that the defendants had no honest belief in the truth of what they had

published. This was fatal to a defence of qualified privilege.

. The Appellants wanted to amend their pleading to enable them to advance the case that thelimitation period began to run as soon as the allegedly defamatory article was first posted on the

web site and that subsequent occasions upon which the web site was accessed did not give rise toseparate causes of action, each with its own individual cause of action. The judge at first instance

refused leave to amend because he thought that the Appellants argument was unsustainable.

The Appellants counsel conceded that success for the Appellants would involve the creation ofnew law. It is a well established principle of English defamation law that each individual

publication of a libel gives rise to a separate cause of action, subject to its own limitation period.

The Appellants suggested that the law should be changed. The argument was that keeping backnumbers of a newspaper on a web site meant that publication would happen every time a user

accessed the back issue. This would give rise in effect to an indefinite limitation period and runcounter to the one year limitation period introduced by section 4A for libel and slander. TheAppellants contended that section 4A should be interpreted in a different way and the one year

limitation period, which under section 4A started from the date on which the cause of action

accrued, should be taken to mean the date of initial publication. In the Appellants view,maintaining an archive accessible on the internet of back issues was a very valuable service to

the public. If it rendered a newspaper liable to claims in defamation for years and even decades

after the initial hard copy and internet publication, this rule would affect the readiness of

newspapers to provide such a service at all and would lead to the limitation of freedom ofexpression.

Against this, the Respondent argued that Article 10 itself recognised that the right of freedom ofexpression could properly be restricted for the protection of the reputation or rights of others. In

this case, the Appellants could have protected themselves by retaining the articles on the web site

but with a suitable qualification.

However, a subsidiary reason for the judges decision to strike out was that the Appellants had

repeatedly republished on the internet defamatory material that was not only the subject of adefamation action but, in which they were not seeking to justify the truth of the allegation. The

Appellants had not published any qualification to draw the readers attention to the fact that the

truth of the articles was hotly contested. The judge was right to consider that the circumstances

of the republication of back issues of the Times on the internet were materially different fromthose at the time of the original publication of the hard copy newspaper.

The failure to attach any qualifications to the articles published over the period of a year on the

Times web site could not be described as responsible journalism. It could not be argued that the

Times had aReynolds duty to publish those articles in that way without qualification.

The judge was therefore right to strike out the qualified privilege defence in the second action,

but not for the primary reason he gave.


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George Galloway MP v Telegraph Group Ltd

2004 EWHC 2786

In December 2004 George Galloway, an ex- Labour MP, was awarded 150,000 in libel

damages from The Daily Telegraph after the newspaper published allegations that he was in the

pay of Saddam Husseins regime.The articles were published by The Daily Telegraph in April

2003, just over a month after the invasion of Iraq by the coalition forces.

Eady J concluded that the articles meant that: (1) Galloway had been in the pay of

Saddam Husseins regime and had secretly received at least 375,000 a year; (2) he

had diverted money from the Oil for Food programme so depriving Iraqi citizens,

whose interests he claimed to represent, of food and medicine; (3) he had used theMariam Appeal as a front for his own financial advantage; and (4) what he had done

amounted to making money from enemy regimesthat is, treason.

The Daily Telegraph did not attempt to defend the allegations as true. Its onlydefence was that ofReynolds qualified privilege. It claimed that its coverage of the

story had been no more than neutral reportage of documents discovered by a

reporter in the badly damaged Foreign Ministry of Baghdad, which it believed wereauthentic. Reportage refers to the neutral reporting of attributed allegations, rather

than their adoption by a newspaper. It was successfully relied upon as a defence in the

Al Fagih case.In addition, The Daily Telegraph argued that it had a duty to report the

allegations contained in the Baghdad documents because the public had a right toknow their contents, whether true or false.

Eady J did not uphold the defence of qualified privilege or responsible journalism,as it has come to be known. He considered the ten criteria for the defence as set out by

Lord Nicholls inReynolds v Times Newspapers Ltd.They include the seriousness of

the allegation, their source, the steps taken to verify it, the urgency of the matter,whether the claimant was asked to comment and give his or her side of the story and

the tone of the article.

Although Galloway had been interviewed by telephone prior to publication, he wasnot given an opportunity to read the Iraqi documents beforehand, nor were they read

out to him in full. Neither was he given an opportunity to respond to the allegation of

personal enrichment. In the circumstances, the judge held that the newspaper, did not have asocial or moral duty to make the allegations about Galloway.

The Judge also held that the newspapers reporting was not neutral. It did not merely

adopt the allegations contained in the documents. Instead The Daily Telegraph,

embraced them with relish and fervour.

Eady J made a damages award of 150,000 in order to restore Galloways reputation.


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The award would have been even greater but for the downturn in the level of libel

damages in the UK in recent years. The allegations were serious enough, however, for

the award to be at the high end of the bracket. Galloways treatment in court

aggravated the situation and increased the damages payable.

The decision underlines the danger of relying solely on a defence of qualifiedprivilege, that is without pleading justification. It also makes it clear that, in order to

rely on the qualified privilege defence successfully the media must comply fully with Lord

Nicholls criteria as first set out inReynolds.


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Jameel and Another v Wall Street Journal Europe

[2005] EWCA Civ 74

The Wall Street Journal published an article in February 2002 that identified Mr Jameels group

of companies as being among those whose bank accounts were being monitored by Saudi

authorities, at the US governments request, in connection with the actual or potential funding ofterrorism. In an action brought by the main company in the Group and by Mr Jameel, the

Defendant contended that the publication was protected by Reynolds privilege and disputed the

Claimants reasonable grounds to suspect meaning, contending it was not defamatory or at

worst bore the lowest tier of gravity meaning grounds to investigate.

The action was tried before a jury in December 2003. In answer to a shopping list of questions

put to the jury, the jury accepted that the words bore a defamatory meaning of the Claimants but

rejected the journalists case as to his contact with 4 out of 5 of his anonymous sources in SaudiArabia (none of whom were called). The jury also did not accept his account of his attempts to

verify the story and contact the Claimants in advance of publication. Subject to the defence ofqualified privilege, the jury awarded damages of 30,000 to Mr Jameel and 10,000 to the

company. On the basis of the jurys findings of fact, Eady J rejected the defence of qualified

privilege. The Defendants appealed on qualified privilege, presumption of falsity and

presumption of damage.

The Wall Street Journal lost their appeal in what will be seen by the media as a setback for

Reynolds privilege: many media defendants had hoped that the Court of Appeal would relax thetest for Reynolds privilege which Eady J had formulated as being: whether the media had an

obligation to publish and whether the public had a need to have the information contained withinit in the sense that it would be wrong to deprive the public of it. The Court of Appeal declinedto interfere with this test holding that on the facts of this case it does not seem to us that theprecise definition of Reynolds privilege was material.

The common law rule by which special damage was not required to be proved in order to

establish a cause of action in libel, damage being presumed once the libel was proved, was

unaffected by art10 of the Human Rights Convention in respect of a corporation. The same ruleapplied to a foreign corporation with a trading reputation within the jurisdiction.

LORD PHILLIPS OF WORTH MATRAVERS MR, giving the judgment of the court, said that

the jury concluded that the claimant company, a substantial Saudi Arabian trading company ofwhich the first claimant was the general manager and president, had been defamed by the article

published by the defendants and that the appropriate award of damages was 10,000.Those

findings were made after directions on English law by the judge that they should awardappropriate damages if they found that the claimant company had a trading reputation in England

and that the article bore a defamatory meaning that was apt to damage that trading reputation.

The company had not attempted to prove that the article had caused it any specific financial lossby way of special damages. In interlocutory proceedings before the trial Mr Robertson contended


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that the Human Rights Act 1998 required the court to redefine the English law of libel as it

related to corporations or foreign corporations. If English law was to be compatible with art 10of the Human Rights Convention it had to require proof of special damage as an essential

element in the cause of action in libel. The judge rejected that submission. There was no dispute

as to the relevant principles of English law prior to the coming into force of the 1998 Act. Mr

Robertson submitted that it was not necessary in order to protect the reputation of others to allowa corporation to recover damages for libel when it had not demonstrated that the libel had caused

it pecuniary damage; the effect on freedom of the press afforded by English law before the 1998

Act was disproportionate to the object that it was intended to achieve. Their Lordships said thatthe difficulty that a trading corporation would often have in proving that a defamation calculated

to cause damage to its trading reputation had resulted in specific financial loss was obvious. A

requirement to prove special damage would leave many an injured corporation without remedy.The Commission saw no objection in principle to a foreign corporation receiving the same

protection for its reputation within the British jurisdiction as a British corporation. Their

Lordships saw every reason why they should receive the same treatment. Differential treatment

would be likely to constitute discrimination in the accordance of art 6 rights, contrary to the

prohibition imposed by art 14. It was likely in practice that a foreign corporation which tradedoutside this jurisdiction but not within it would have greater difficulty in establishing that it had a

trading reputation within this jurisdiction. If it succeeded however, the interests of justicerequired that the same principles of law should apply to its claim for defamation.


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FINAL ANALYSIS

D.P. Choudhary and Ors v. Kumari Manjulata

Girl was a minor Reputated family Navjyoti published a defamatory article regarding her with false allegations. Published irresponsibly and maliciously to dishonor her and family Suffered inferiority complex and disrespected. Problems in arranging her marriage. Defendant claimed that there was no malice. But the court held them liable as intention

didnt matter.

General damages awarded as the words were actionable per se.

Prameela Ravindran v. P. Lakshmikutty Amma and Anr.

Applicant married to Ravindran Till Ravindran died, none of the defendants disputed the validity of the marriage Then disputed to deprive her of the lawful share of the husbands estate. First respondents lawyer issued a notice that she was not the legal wife Sent 3 defamatory letters regarding her to Thiru K. M. Cherian, Manager-Sales,

Instruments and Machines Inc., alleging that the deceased died as a bachelor leaving

behind the first respondent as the only legal heir. After the receipt of this letter, he

refused to co-operate with or take instructions from the applicant. He also discussed the

contents of the letter with the other employees. Another letter on the same lines was also

addressed to one Kutty Krishnan, Group Manager. Third letter was addressed to the

Branch Manager, Vijaya Bank, Chennai. Dr. Gopalakrishnan, Medical Director of

Premier Diagnostic and Research Centre has been influenced by these defamatory

statements and now refuses to report to the applicant or to take instructions from her. The

respondents have systematically proceeded to tarnish her reputation among the various

group concerns established by her husband. She has got a prima facie case and the

balance of convenience is also in her favour.

Receipt dated 14-12-1983 has been filed to show that the amount has been paid in theTemple for the purpose of marriage. The copy of the Marriage Certificate dated 10-1-

1984 was issued by Mangulam Parasakthi Temple authorities, wherein it is stated about

the marriage between Prameela and one Ravindran. Apart from that, the marriage


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agreement between Prameela and Ravindran dated 14-12-1983 is also filed. The deceased

had taken LIC policy dated 12-1-1997, wherein the applicant is described as his wife.

Even in the passport, she had been described as the wife of Ravindran.

Injunction

M/S Frankfinn Aviation Services v. Surinder Bhardwaj

Plaintiff engaged in highly specialized vocation training in aviation The defendant claiming himself to be the President of the Chandigarh Territorial Janta

Dal (United) , in order to lower down the image of the plaintiff's institute in the eyes of

the candidates who are aspiring to join the institute and also in the eyes of the public at

large issued a press release in a press conference. He circulated a letter dated 16.10.2006

making absolutely false and reckless allegations against the petitioner institute.

the plaintiff institute filed an application for ad interim injunction Court dismissed the application holding that no one can be restrained from making any

statement or issuing any press release. No temporary injunction can be granted when

equally efficacious remedy is available.

Revision petition was admitted. If reckless allegations are made without any reasonableproof of correctness of such allegations, it will cause irreparable damage to the working

of the plaintiff institute which damage cannot be compensated in terms of money.

plaintiff-institute has made out a case for grant of ad-interim injunction restraining thedefendant from publishing any defamatory article or distribute brochure.


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Mcdonalds Corp v. Steel

Claim for libel by mcdonalds. From some time in the early or mid 1980s a group of people calling itself "Greenpeace

[London]" or "London Greenpeace" ran an anti-McDonald's campaign. From 1986

onwards, a six page leaflet - "What's wrong with McDonald's? Everything they don'twant you to know." - was at the heart of the campaign. The leaflet accused McDonald's

of being responsible for starvation in the Third World, of destroying vast areas of Central

American rainforest, of serving unhealthy food with a very real risk of cancer of the

breast or bowel and heart disease and food poisoning, of lying when it claimed to userecycled paper, of exploiting children with its advertising and marketing, of cruelty to

animals, and of treating its employees badly; all the while deceiving the public and hiding

its true nature behind a clean, bright image. A successful trading corporation Plaintiff in a defamation action is entitled to recover, as

general compensatory damages, such sums as will compensate it for the wrong it has

suffered. He and Ms Steel are jointly and severally liable for 27,500 of the 30,000

awarded to the First Plaintiff.

Reynolds v. Times Newspapers Ltd

The plaintiff, a prominent public figure in Ireland, began proceedings for defamationagainst the defendants, the publishers of an article contained in the British mainlandedition of a national newspaper

The plaintiff claimed that the words complained of bore the meaning that he haddeliberately and dishonestly misled the Dil by suppressing crucial information about theIrish Attorney-General, whose appointment to the Presidency of the High Court he had

sought to promote, and had similarly misled his cabinet colleagues by withholding the

information and by lying as to when he had obtained it.

The defendants pleaded, the defence of qualified privilege at common law on the groundthat, the public interest in the general publication of information and discussion relating

to political issues and the public conduct of elected politicians engaged in them justified

such protection.

The defendants failed to resolve whether Mr Reynolds was a victim of circumstance, asconveyed to Irish readers in the 'House of Cards' article, or a devious liar, as conveyed to

readers on the mainland of Britain. It should have been obvious that he could not be both.

Circumstantial test was not satisfied. This was not a publication which should in thepublic interest be protected by privilege in the absence of proof of actual malice.


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Loutchansky v. Times Newspapers

The Times sought unsuccessfully to challenge the meaning of publication in thecontext of storing archive materials on the internet.

The Times ran articles containing material about the Respondent that the Appellantsadmitted were defamatory, alleging as they did that the Respondent was involved inRussian crime organizations and money laundering activities. In accordance with the

practice of the Times web site, these articles had been stored and continued to be

available on the web site even after the Respondents letter before action and subsequentcomplaints about the continuing publication of the articles. A qualification was added to

the web site later in relation to the first article.

The defence adopted was, as in the first action, qualified privilege. The Appellants reliedon the fact that it maintained on its web site a publicly available archive of past issues as

a service to the general public, both in this country and abroad.

The Appellants suggested that the law should be changed. The argument was that keepingback numbers of a newspaper on a web site meant that publication would happen every

time a user accessed the back issue. This would give rise in effect to an indefinite

limitation period. The Appellants contended that section 4A should be interpreted in adifferent way and the one year limitation period, which under section 4A started from the

date on which the cause of action accrued, should be taken to mean the date of initial

publication.

The Appellants had not published any qualification to draw the readers attention to the factthat the truth of the articles was hotly contested. The judge was right to consider that the

circumstances of the republication of back issues of the Times on the internet were materially

different from those at the time of the original publication of the hard copy newspaper. The

traditional rule was upheld: a "publication" takes place every time material is made

available, and there is no exception for materials kept on the internet.

George Galloway v. Daily Telegraph Group Ltd.

George Galloway, an ex- Labour MP, was awarded 150,000 in libel damages from TheDaily Telegraph after the newspaper published allegations that he was in the pay of

Saddam Husseins regime.

The Daily Telegraph did not attempt to defend the allegations as true. Its onlydefence was that ofReynolds qualified privilege. It claimed that its coverage of the

story had been no more than neutral reportage of documents discovered by a

reporter in the badly damaged Foreign Ministry of Baghdad, which it believed wereauthentic and that it had a duty to report the allegations contained in the Baghdad

documents because the public had a right to know their contents, whether true or false.

The Judge also held that the newspapers reporting was not neutral. It did not merelyadopt the allegations contained in the documents. Instead The Daily Telegraph,


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embraced them with relish and fervour. Eady J made a damages award of 150,000 in order to

restore Galloways reputation.

Jameel and another v. Wall Street Journal Europe

The Wall Street Journal published an article in February 2002 that identified Mr Jameelsgroup of companies as being among those whose bank accounts were being monitored bySaudi authorities, at the US governments request, in connection with the actual orpotential funding of terrorism.

Defendant contended that the publication was protected by Reynolds privilege. the jury concluded that the claimant company, a substantial Saudi Arabian trading

company of which the first claimant was the general manager and president, had been

defamed by the article published by the defendants and that the appropriate award of

damages was 10,000.

Their Lordships said that requirement to prove special damage would leave many aninjured corporation without remedy. The Commission saw no objection in principle to a

foreign corporation receiving the same protection for its reputation within the Britishjurisdiction as a British corporation. It was likely in practice that a foreign corporationwhich traded outside this jurisdiction but not within it would have greater difficulty in

establishing that it had a trading reputation within this jurisdiction. If it succeeded

however, the interests of justice required that the same principles of law should apply toits claim for defamation.


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BIBLIOGRAPHY

Referred websites

www.ilt.eff.org/index.php www.injury.findlaw.com www.law.unimelb.edu.au Mavrkydefamationcaselaw.blogspot.com

Referred books

Basic elements of defamation law- By Greg Abott The law of defamation
http://www.law.unimelb.edu.au/http://www.law.unimelb.edu.au/http://www.law.unimelb.edu.au/

project torts

Documents