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
.........................................................................................................................................................1 TORTS II Project.........................................................................................................................1 Defamation Law:............................................................................................................................1 A Comparative Study of the US and the UK.................................................................................1 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............................................................9 Chapter 3: Suggestions for India..................................................................................................19 Conclusion....................................................................................................................................22 Bibliography.................................................................................................................................23 Articles..........................................................................................................................................23 Books............................................................................................................................................24 Essays............................................................................................................................................24 Statutes..........................................................................................................................................24

TABLE OF CASES
INDIAN CASES 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)

ENGLISH CASES 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)

AMERICAN CASES 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 Assn 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.) New York Times Co. v Sullivan, 376 US 254,270(1964) (United States Supreme Court). 3

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)

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. Indias position, however, in the researchers 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 researchers 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.

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 definitionDefamation 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 of John
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, SALMONDS 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 BLACKS 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)

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 being restrictive of free speech.14 Although cases like Derbyshire County Council v Times
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) 10 New 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)
14

R. Sylvester ,UK experts debate libel laws 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)

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 hallowed18. 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 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
15 16

Derbyshire County Council v Times Newspaper Ltd [1993] A.C. 534 (House of Lords) 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.pdf 22 Supra note 3. 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.

between libel and slander in India, but defamatory claims can be both criminal and civil, a system which has been called draconian25. 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 Kautilyas 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.

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
25 26

Supra note 21. 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.

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.

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 statements verifiability 3. The journalistic context 4. The nature of the subject being discussed. These complicate the situation

In UK, the meaning of defamatory rests on Lord Atkins 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 32

Supra note 4 at 871. Greenbelt Cooperative Publishing Assn v Bressler. 398 U.S. 6 (1970) (United States Supreme Court)

10

further, as it allows defendants to escape liability on a variety of grounds. Lower US courts have 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

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

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.

involvedpublic and private figures41.

33 34

Ollman v Evans, 471 U.S. 1127 (1985) (United States Supreme Court) 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) 37 Supra note 15. 38 Supra note 3. 39 Supra note 4 40 Supra note 15. 41 A.Lakshminath MSridhar, RAMASWAMY IYERS THE LAW OF TORTS, ( 10th edn., 2007)

11

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 "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
42 43

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 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.

Supra note 10. P.Thorton, SPORTS LAW ,300, (2nd edn., 2010)

12

Cohen v Marx45, as well as the New York Times case indicate that 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 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 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
44 45

The English courts follow the multiple publication rule, which 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 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.

book or newspaper, or any one radio allows each new publication (both

subsequent actions arising out of the claims can continue almost

Ammerman v Hubbard Broadcasting Co ,91 NM 250 (United States Supreme Court) Cohen v Marx, 211 P.2d 320 (California Dist. Ct.) 46 Brewer v Rogers, 439 S.E.2d 77 (Georgia Court of Appeals) 47 Supra note 4.

13

defendants. However, what constitutes a new publication is difficult to say, as there have been cases where the rebinding into 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 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

The concept of Internet defamation does not fit well with the rule of multiple publications. Internet Service Providers will be 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 Thus, the attitude of judgement by subjectivity of readership leads to an inherent injustice in English defamation law.54

paperback of a hardcover book48, the held responsible for everything

internet publication and distribution, highlights this fact.

48 49

Rinaldi v. Viking Penguin, Inc. , 52 N.Y.2d 422 (1981) (New York Supreme Court) 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)

14

Different states have different 4. Distinction between Libel and Slander policies regarding the definition of libel and slander; some states refuse to make any distinction at all.55

The same policy of libel and slander is followed throughout, making decisions easier for the judges at various levels. 56

55 56

Supra note 4. Supra note 17.

15

Thanks to their focus on free speech and the developments of the New York Times case, US courts require 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 5. Burden of proof simply allege that they have been defamed by the defendants published article or broadcast.57 Even the defendants can provide a 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 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 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

defendants to prove the falsity of the claims. Defamatory statements

rough approximation for proving the actually is defamatory, and the

57 58

Supra note 4. Supra note 4.

16

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 including leaked information, when reporting about a public proceeding. general privilege to repeat 6. Privileges 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 US courts define actual injury include humiliation and mental 7. Element of Actual Injury anguish along with pecuniary losses, and if actual malice is provided, a plaintiff may enjoy punitive damages as well.

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 plaintiffs, and qualified privileges can be dismissed by claiming

gain access to virtually any material, practice, English Law prefers

A few courts have extended this to a malice.61

In common law, actual injury allows plaintiffs to avail special damages much more easily, making the toll on defendants even heavier.

59 60

Global Green v CBS inc., 286 F 3d 281(United States Court of Appeals, Fifth Circuit.) T.Eide, THE DEFAMATION LAW OF THE UNITED STATES OF AMERICA , (1st edn, 1987) 61 Supra note 4.

17

8. The Law in Practice and Libel Tourism

In practice,62 American libel suits as they may doctrinally seem. Although American defendants are less likely to lose than their counterpoints in England, the multimillion 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

In England, the defendants are 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 pretrial 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

are not as biased towards defendants granted a right to make amends-a

62 63

Supra note 4 at 880. Supra note 4 at 880. 64 Supra note 4 at 881

18

certain costs and proceedings as well.

jurisdictions.65

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
65

R. Greenslade, Obama seals off US journalists and authors from Britains libel laws, THE GUARDIAN, (11 Aug. 2010) 66 Supra note 17. 67 Supra note 4 at 883. 68 Supra note 3.

19

offence, as has been stated before. Indian case law indicates that the meaning of defamation includes several societal factors like questioning ones professional capabilities69, Indian 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 governments 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 scenario1. 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
69 70

Mitha Rustomji v Nusserwanji Nowroji AIR 1941 Bom 278 (Bombay High Court) 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.pdf 75 Supra note 27 at 63.

20

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

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-saysinternational-press-institute/articleshow/10823312.cms 77 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=44633f5a6d26-422c-be8b-53a785a6d6dd&k=37041 79 Supra note 45.

21

CONCLUSION
It is submitted that in this research paper, the researchers 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, Indias 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 Indias 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. 22

BIBLIOGRAPHY
ARTICLES 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) F.Schauer, The Exceptional First Amendment (2005) P.K. Jones, Roman Law Basis of Suretyship in Some Modern Civil Codes, 52, TULANE LAW REVIEW, 129, (1977). R. Greenslade, Obama seals off US journalists and authors from Britains libel laws, the Guardian, (11 Aug. 2010)

5. 6.

7.

23

8.

R. Sylvester ,UK experts debate libel laws threat to global free speech, Kyiv Post (Jan 14,2011) S. Swamy, Defamation litigation: a survivor's kit, The Hindu,(Sep. 2004) 10,2011)

9.

10. S.Singh, English libel law is a vulture circling the world, Guardian UK (March

BOOKS 1. A.Lakshminath MSridhar, Ramaswamy Iyers the Law of Torts, (10th edn., 2007) 2. B. Manna, Mass Media and Related Laws in India, (1st edn.,1998) 3. Blacks Law Dictionary, (9th edn.,2009) 4. Markesins & Deakins, Tort Law, (6th edn.,2008) 5. P.Thorton, Sports Law,300, (2nd edn., 2010) 6. Salmond, J W, SALMONDS LAW OF TORTS, (8th edn., 1934) 7. Smith &Bird, Internet Law & Regulation, (4th edn, 2007) 8. T.Eide, The Defamation Law of the United States Of America, (1st edn, 1987) 9. Tim Crook, Comparative Media Law and Ethics, (2nd edn., 2010)
10. V.Mitter, LAW OF DEFAMATION AND MALICIOUS PROSECUTION , (11th edn.,2008)

ESSAYS 1. V.V. Veeder, The History of the Law of Defamation in Select Essays in AngloAmerican History, Vol .3, Part VII, (Association of American Law Schools, 1909)

STATUTES 1. INDIAN PENAL CODE, 1860.

24