TORTS II – PROJECT

DEFAMATION LAW:

A Comparative Study of the US and the UK

SUBMITTED BY:

VARUN SEN BAHL (ID No. : 1943)

II TRIMESTER, I YEAR, B.A., LL.B. (HONS)

Table of Contents

TABLE OF CONTENTS..................................................................................................................2

TABLE OF CASES........................................................................................................................3

Indian Cases...............................................................................................................................3

English Cases.............................................................................................................................3

American Cases..........................................................................................................................3

INTRODUCTION...........................................................................................................................5

CHAPTER 1: DEFAMATION: A DEFINITION AND THE ELEMENTS................................................6

CHAPTER 2: DEFAMATION IN THE US AND UK: A COMPARISON............................................10

CHAPTER 3: SUGGESTIONS FOR INDIA......................................................................................19

CONCLUSION.............................................................................................................................22

BIBLIOGRAPHY.........................................................................................................................23

Articles.....................................................................................................................................23

Books........................................................................................................................................23

Essays.......................................................................................................................................24

Statutes.....................................................................................................................................24

2

TABLE OF CASES

I N D I A N C A S E S

Gandhiji Mareppa v Firm of Marwadi Vannajee, (1917) 38 I.C., 823 (Madras High Court)

Hamsa v Ibrahim, (1993) 2 Ker LJ 698. (Kerala High Court)

Harakh Chand v Ganga Prasad AIR 1925 All 371, (Supreme Court Of India)

Krishna Behari Sen v The Corporation of Calcutta, (1904) ILR 31 Cal 993, (Calcutta High

Court)

MC Verghese v T.J. Poonam (1969) 1 SCC 37 (Supreme Court of India).

Mitha Rustomji v Nusserwanji Nowroji AIR 1941 Bom 278 (Bombay High Court)

Paras Dass son of Jugal Kishore v Shri Paras Dass 1969 Delhi LT 241 (Delhi High Court)

R. Rajagopal v State of T.N 1995 AIR 264 (Supreme Court of India)

Sadaiba v Banisdhar AIR 1962 Orissa 115 (Orissa High Court)

E N G L I S H C A S E S

Derbyshire County Council v Times Newspaper Ltd [1993] A.C. 534 (House of Lords)

Godfrey v Demon Internet Service [2001] QB 201 (High Court, Queen's Bench Division)

Reynolds v Times Newspapers Ltd [1998] 3 WLR 862 (House of Lords)

A M E R I C A N C A S E S

Ammerman v Hubbard Broadcasting Co ,91 NM 250 (United States Supreme Court)

Brewer v Rogers, 439 S.E.2d 77 (Georgia Court of Appeals)

Cohen v Marx, 211 P.2d 320 (California Dist. Ct.)

Gertz v Robert Welch Inc, 418 US 323 (1974) (United States Supreme Court)

Global Green v CBS inc., 286 F 3d 281(United States Court of Appeals, Fifth Circuit.)

Greenbelt Cooperative Publishing Ass’n v Bressler. 398 U.S. 6 (1970) (United States

Supreme Court)

Karaduman v. Newsday, Inc. , 51 N.Y.2d 531, 554 (1980) (New York Supreme Court)

Lehman v. Discovery Communications, Inc. , 332 F.Supp.2d 534, 539 (United States District

Court, E.D. New York.)

3

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

Ollman v Evans,  471 U.S. 1127 (1985) (United States Supreme Court)

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

Rivera v. NYP Holdings, Inc. , 847 N.Y.S.2d 904 (New York Supreme Court)

4

INTRODUCTION

The tort of defamation is one that has been heavily contested, developed, and detailed. It is an

admixture of case law, statutory definitions, legislations, and the play of society that has left

it riddled with complex principle differences across states, and harrowing substantive and

procedural difficulties. The advent of the Internet as a new mode of publication has further

worsened the situation.

The main debate behind the tort of defamation is the conflict between free speech and

reputation. While the US through its First Amendment values free speech above all, the UK

emphasizes reputation as well, and the phenomenon of libel tourism has aggravated the clash

between the two ideologies.

India’s position, however, in the researcher’s opinion, is unclear, and the confusion between

civil and criminal defamation has resulted in confusion and incomprehensibility, making the

task of tackling this tort a heavy one.

Thus, the researcher’s main aim of this project is to analyze the defamation laws of US and

UK. At the culmination of that analysis, the researcher shall attempt identifying the best

practices of these different systems, and suggest a position of law for India that may be able

to incorporate the positive aspects of these systems.

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CHAPTER 1: DEFAMATION: A DEFINITION AND THE ELEMENTS.

Although no exhaustive definition of defamation emerges from common law, a broad

meaning of defamation must be attached to it. Several Indian cases1 take defamation as a false

and damaging statement, while Salmond has defined it as a wrong that consists in the

publication of a false and defamatory statement respecting another without lawful

justification.2 A variety of other definitions have been provided, all of which may avoid

certain difficulties, but may provide others.3 Thus, a statutory definition is best avoided.4

For the purpose of this project, the researcher is utilizing the following definition-

Defamation is that which tends to injure reputation; to diminish the esteem, respect, goodwill

or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant

feelings or opinions against him5.

This definition, as per the researcher, provides a basic understanding of what may be

defamatory.

Certain elements of liability under defamation exist:

1. The Allegation must be defamatory

2. The Defamatory statement must refer to the claimant

3. Publication6

However, these elements again fall under the broad meaning. When we speak of the

treatment of defamation under English Law, or Law in the US, or even Indian Law, the scope

of defamation differs greatly in terms of both basic principles and nuances, despite the fact

that essentially the origin of all three dates back to common law.7 However, while the origins

of defamation in England dates back to the middle ages8, in the USA, defamation in an

unique form started to take form around the time of the American Revolution, with the trial

1 Paras Dass son of Jugal Kishore v Shri Paras Dass 1969 Delhi LT 241 (Delhi High Court); MC Verghese v T.J. Poonam (1969) 1 SCC 37 (Supreme Court of India).2 Salmond, J W, SALMOND’S LAW OF TORTS, (8th edn., 1934) 3 V.Mitter, LAW OF DEFAMATION AND MALICIOUS PROSECUTION, (11th edn.,2008)4 Markesins & Deakins, TORT LAW, (6th edn.,2008)5 BLACK’S LAW DICTIONARY, (9th edn.,2009)6 Supra note 4.7 Supra note 3.8 V.V. Veeder, The History of the Law of Defamation in SELECT ESSAYS IN ANGLO-AMERICAN HISTORY, Vol .3, Part VII, (Association of American Law Schools, 1909)

6

of John Peter Zenger in 1734.9 This case laid down truth as an absolute defense against

defamation; an important defense not introduced by English law till before. This case marked

the beginning of US defamation law as an entity distinct in its identity from English Law.

THE QUESTION OF FREE SPEECH V REPUTATION.

Since then, the American perspective on defamation had followed a more-or-less parallel

path to the English perspective. However, the 1960s (the civil rights era in the US) brought

about a change, as up till then defamation or libel suits could be slapped with little evidence;

this particular loophole was greatly abused by southern groups against northern newspapers,

and they claimed over 300 million dollars’ worth of lawsuits. In 1964, New York Times Co. v

Sullivan10 (hereinafter the New York Times case) drastically altered this, by changing the

entire landscape of how defamation and libel is handled in the US. The American

perspective became centered around the line, “Whatever is added to the field of libel is taken

from the field of free debate”,11 and free expression became of utmost importance, to the

point where defamation was no longer a threat, and victims of defamatory falsehood had a

huge burden fall on them.12 Any resemblance to English law on defamation became

superficial and technical, and the protection granted to free speech became almost absolute in

comparison.

Since then, American defamation has been continuously going through several changes and

upheavals, particularly due to the introduction of defamation possibilities on the Internet, but

the courts have remained convinced of the fact that privacy is simply not as important as

freedom of speech. This makes defamation in the US extremely difficult to impose, as the

defense of ‘free speech’ seems easy to throw at the claimants.13

Development of defamation in England, however, must not be ignored, as it is English Law

which laid down the foundations of defamation. However, English laws seem to have

followed the opposite direction, as modern defamation law in England is touted by experts as

9 D. Linder, The Trial of John Peter Zenger: An Account (2001). Available at SSRN: http://ssrn.com/abstract=1021258 (Last visited on November 20th 2011)10New York Times Co. v Sullivan, 376 US 254,270(1964) (United States Supreme Court)11 Id, at 1064.12 Supra note 4 at 865.13 F.Schauer, The Exceptional First Amendment (2005) Available at SSRN: http://ssrn.com/abstract=668543 or doi:10.2139/ssrn.668543 (Last visited on November 20th 2011)

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

Newspaper Ltd15 have made public officials open to uninhibited public criticism, and the

fundamentality of the right to freedom of speech has been confirmed by the court in Reynolds

v Times Newspapers Ltd16, it appears that the Courts in England have incorporated free

speech only till the extent of public officials, and have not accepted the American preference

for free expression.17 Authorities have called English law as equally respectful of reputation

and freedom of expression; and the American preference as ‘hallowed’18.

However, it appears both the press19 and the English Parliament are questioning the

legitimacy of this attitude held by the English law, as defamation suits are extremely difficult

to maintain in practice, as they are extremely expensive, and little hope lies in defending

them.20 The phenomenon of libel tourism seems to support this; London has even called the

libel capital of the world21. Further, defamation laws are surrounded by artificial and technical

rules, adding even more complications.22

Thus, it appears that both systems have problems, practically speaking, when it comes to

defamation. However, it is not easy to say which is ‘better’, especially for the researcher, as

defamation law inherently is complex, and a comparison of the two will reflect that

complexity. However, one must consider the objective of this comparison, as the researcher

wishes to compare the two systems, and suggest what is suitable for India, as the two reflect

almost polar attitudes towards defamation, and their comparison in relation to the current

situation in our country will help in deciding which is ‘better’ for the Indian legal system.

However, it is important to point out why one needs to recommend a system for India; this is

because of, as per the researcher, the lack of any cohesive stand on defamation. The basis of

defamation lies in the interpretation of ‘reasonable restrictions’ on the freedom of speech and

14 R. Sylvester ,UK experts debate libel law’s threat to global free speech, KYIV POST (Jan 14,2011) available at http://www.kyivpost.com/news/nation/detail/94771/#ixzz1e4ip3VcW (Last visited on November 20th, 2011) 15  Derbyshire County Council v Times Newspaper Ltd [1993] A.C. 534 (House of Lords)16 Reynolds v Times Newspapers Ltd [1998] 3 WLR 862 (House of Lords)17 Street, THE LAW OF TORTS, (11th edn.,2003)18 Supra note 4 at 870.19 S.Singh, English libel law is a vulture circling the world, GUARDIAN UK (March 10,2011) available at http://www.guardian.co.uk/commentisfree/libertycentral/2011/mar/10/english-libel-law-simon-singh (Last visited on November 20th, 2011)20 Supra note 13.21 Anon, Libel Tourism-A Growing Threat to Free Speech, FREEDOM OF SPEECH (2003) available at http://www.article19.org/data/files/pdfs/publications/uk-libel-tourism.pdf22 Supra note 3.

8

expression, public opinion,23 and sections 499 and 500 of the IPC24. The treatment of

defamation is based on common law, but also extremely different, as there is no difference

between libel and slander in India, but defamatory claims can be both criminal and civil, a

system which has been called ‘draconian’25. The criminal system of defamation, although

initiated to remove the dowry menace, is heavily misused, and circumstantial evidence is the

main basis on which courts must make their decisions. Allegations are numerous and often

mala fide, making the job for investigative agencies and courts, a difficult one.26 Civil

defamation, however, remains largely uncodified and attempts in the past have been opposed

heavily by the media as being too harsh.27

Also, despite being defined in Kautilya’s Arthashastra28, defamation is relatively a young tort

for India, and the approach of the legal system is complex and subject to a variety of

interpretations29 and even the effect of the Constitution on the law of defamation has been

questioned30. Thus the researcher feels that the law of defamation in India requires a stand

that is less objectionable, while also accommodating to the variety of unique conditions that

Indian society and media brings into the fray. For this purpose, a basic approach must be

chosen and the two prominent options, as per the researcher, are the US and UK approaches

to defamation. Thus, a comparison of the two entails.

23 S. Swamy, Defamation litigation: a survivor's kit, THE HINDU,(Sep. 2004) available at http://www.hindu.com/2004/09/21/stories/2004092103551000.htm (Last visited on November 20th, 2011)24 Sections 499, 500, Indian Penal Code, 1860.25 Supra note 21.26 Supra note 3.27 B. Manna, MASS MEDIA AND RELATED LAWS IN INDIA, 62, (1st edn.,1998)28 Supra note 3.29 Krishna Behari Sen v The Corporation of Calcutta, (1904) ILR 31 Cal 993, (Calcutta High Court); Gandhiji Mareppa v Firm of Marwadi Vannajee, (1917) 38 I.C., 823 (Madras High Court)30 Supra note 3 at 31.

9

CHAPTER 2: DEFAMATION IN THE US AND UK: A COMPARISON

The following chapter hopes to provide a comprehensive comparison of the two approaches

on a number of elements, both practical and theoretical. A comparison of the two stances

with respect to Internet defamation has also been provided, due to its emergence as an

important and diverse aspect of the law, in a modern context.

ASPECT United States of America. United Kingdom.

10

1. Meaning of

Defamatory

Although protection of reputation is

the objective, the US approach,

notoriously harsh on the claimants,

does not take into consideration

words of mere opinion, and

vigorously protect satire and other

varieties of humour; the intentions

of the author have been considered,

as is seen in the Evil Knievel

Case.31 Rhetoric excesses that

would actionable in the UK are

completely protected. The US

courts require that statements be

literally defamatory; calling

someone a ‘blackmailer’ would not

be actionable if the context

indicates the statement to be

rhetoric.32 In terms of opinions, US

courts look at

1. The common usage of the

language

2. The statement’s verifiability

3. The journalistic context

4. The nature of the subject

being discussed.

These complicate the situation

further, as it allows defendants to

escape liability on a variety of

grounds. Lower US courts have

In UK, the meaning of

‘defamatory’ rests on Lord

Atkin’s test, and the

interpretation held in Byrne v

Deakin.37 The essence of the tort

rests on the protection of

reputation; Words of abuse or

opinion in the proper context can

be considered as defamatory.

Humorous statements have been

considered defamatory, and the

intention of the author is

generally immaterial.38 Rhetorical

excesses have been known to be

actionable in England39

More importantly, the major

feature is that defamatory

statements are presumed false

until proven true by the

defendant.40

31 Supra note 4 at 871.32 Greenbelt Cooperative Publishing Ass’n v Bressler. 398 U.S. 6 (1970) (United States Supreme Court)37 Supra note 15.38 Supra note 3.39 Supra note 440 Supra note 15.

11

even said that opinions are

absolutely protected.33 Cases like

Milkovich v Lorain Journal34 have

made it easy to state opinion as a

defence.

The major difference, however,

remains that the New York Times

case made it so that practically

speaking defamatory statements are

considered true per se35 and the

burden of proving its falsity falls on

the plaintiff. The case of Gertz v

Robert Welch, Inc36 only reinforced

this, making it virtually impossible

for plaintiffs to have any claim, if

sufficient proof is not provided of

the falsity of the statement.

2. Parties

involved-

public and

private

figures41.

The American courts believe public

has a right to criticize the people

who govern them, so they give the

least protection from defamation to

public officials. When officials are

accused of something that involves

their behaviour in office, they have

to prove all of the elements of

defamation and they must also

prove that the defendant acted with

"actual malice, which was defined

in the New York Times case as

In the UK, there is no such clear

distinction between private and

public plaintiffs. A plaintiff is a

plaintiff, and has to simply, but

clearly prove that s/he was

defamed by the defendant, and

how.

The element of public or private

figures comes in only terms of

defenses, that is, in terms of

justification (for public good) or

in terms of privileges. Thus, the

33 Ollman v Evans,  471 U.S. 1127 (1985) (United States Supreme Court)34 Milkovich v Lorain Journal Co. 497 U.S. 1 (1990) (United States Supreme Court) 35 Supra note 4.36 Gertz v Robert Welch Inc, 418 US 323 (1974) (United States Supreme Court)41 A.Lakshminath MSridhar, RAMASWAMY IYER’S THE LAW OF TORTS, (10th edn., 2007)

12

"knowledge that the

information was false" or that it

was published "with reckless

disregard of whether it was false or

not.".42

People who aren't elected can still

be considered public figures

because they are influential or

famous -- like movie stars – and

thus also have to prove that

defamatory statements were made

with actual malice, in most cases.43

Private people who are defamed

have more protection than public

figures -- freedom of speech isn't as

important when the statements

don't involve an issue of public

interest. A private person who is

defamed can prevail without having

to prove that the defamer acted

with actual malice. In fact, in their

focus on free speech, the US courts

have even granted constitutional

rules for private defendants, in case

the matter is of a public concern.

However, the system is not without

flaws. Public officials can include

even a deputy sheriff.44The case of

Cohen v Marx45, as well as the New

York Times case indicate that

job here is much easier for the

plaintiff, as no ‘actual malice’ is

necessary, and malice only comes

in for availing special damages.

Further, unintentional defamation

is easier for the plaintiff to argue,

and still avail damages, than it is

for the US plaintiff. This concept

of unintentional defamation

imposes much greater

responsibility on UK defendants,

as it makes it even harder for

them to verify what they publish.

42 Supra note 10.43 P.Thorton, SPORTS LAW,300, (2nd edn., 2010)44 Ammerman v Hubbard Broadcasting Co ,91 NM 250 (United States Supreme Court)45 Cohen v Marx, 211 P.2d 320 (California Dist. Ct.)

13

American courts not only define

public figures as any person in the

public limelight, to the extent that a

high school coach was considered a

public figure in a defamation case,

(Brewer v Rogers 439 S.E.2d 77.46

The impact of this unclear

definition results in low success

rates for the plaintiff- A study

indicates that only 10 per cent of

media defamation cases result in

success for the plaintiff in the US.47

3. Publication The US follow a single publication

rule, where any one edition of a

book or newspaper, or any one

radio or television broadcast is

considered a single publication,

with a statute of limitations that

begins from the date of publication;

there can only be one action for

damages per plaintiff for that

publication. All subsequent actions

arising out of the same publication,

regardless of the number of people

to whom, or the number of states in

which it is circulated, are

precluded. The logic behind this is

to level the playing field for both

plaintiffs and defendants. However,

what constitutes a ‘new

The English courts follow the

multiple publication rule, which

allows each new publication

(both temporally and

geographically) to be treated as a

separate defamatory offence, and

thus, as a separate tort claim. This

allows plaintiffs to simply slap

multiple defamation claims on the

accused, and tort claims can

continue almost indefinitely. As a

result, this rule has the impact of

keeping the press in a reluctant

state to say anything that could be

defamatory; this is the logic

behind this rule as per the English

courts.

The concept of Internet

46 Brewer v Rogers, 439 S.E.2d 77 (Georgia Court of Appeals)47 Supra note 4.

14

publication’ is difficult to say, as

there have been cases where the

rebinding into paperback of a

hardcover book48, the publication of

a newspaper series in book form49,

the rebroadcast of a television

program,50 or even later issues of a

newspaper have been considered as

new publications51.

The advent of the Internet poses

new complications, as Internet

defamation ensures repeated

publication to occur with

unprecedented ease. US statutes

make no difference with regards to

internet publication and

distribution, and only hold the

originator of the message liable.

Thus, an Internet service provider

(which is not the first publisher)

can redistribute defamatory

statements easily and without fear

of being held liable, thanks to the

immunity that has been granted to

them.52

defamation does not fit well with

the rule of multiple publications.

Internet Service Providers will be

held responsible for everything

they publish, and this monitoring

combined with the preference

given to plaintiffs, could lead to

the removal of any and every

controversial piece of information

upon request, thus severely

hampering freedom of speech on

the Internet in the UK. The case

of Godfrey v Demon Internet

Service 53, a landmark case for

online defamation, clearly

highlights this fact.

Thus, the attitude of judgement

by subjectivity of readership

leads to an inherent injustice in

English defamation law.54

4. Distinction

between Libel

Different states have different

policies regarding the definition of

The same policy of libel and

slander is followed throughout,

48 Rinaldi v. Viking Penguin, Inc. , 52 N.Y.2d 422 (1981) (New York Supreme Court)49 Karaduman v. Newsday, Inc. , 51 N.Y.2d 531, 554 (1980) (New York Supreme Court)50 Lehman v. Discovery Communications, Inc. , 332 F.Supp.2d 534, 539 (United States District Court, E.D. New York.)51 Rivera v. NYP Holdings, Inc. , 847 N.Y.S.2d 904 (New York Supreme Court)52 Smith &Bird, INTERNET LAW & REGULATION, (4th edn, 2007)53 Godfrey v Demon Internet Service [2001] QB 201 (High Court, Queen's Bench Division)54 Tim Crook, COMPARATIVE MEDIA LAW AND ETHICS, (2nd edn., 2010)

15

and Slander

libel and slander; some states

refuse to make any distinction at

all.55

making decisions easier for the

judges at various levels. 56

5. Burden of

proof

Thanks to their focus on free

speech and the developments of the

New York Times case, US courts

require defendants to prove the

falsity of the statement as well as

actual malice, except in the case of

private plaintiffs in most cases. For

plaintiffs, the job is much easier. A

plaintiff does not even have to

specifically identify the words or

meaning that they claim have a

defamatory meaning; they have to

simply allege that they have been

defamed by the defendant’s

published article or broadcast.57

Even the defendants can provide a

rough approximation for proving

the truth, leading to more confusion

and lack of clarity.

British courts apply a far less

stringent standard than U.S.

courts for recovery in defamation

claims.  Defamatory statements

are thus presumed to be false,

unless the defendant can prove

their truth. Thus, under British

law, the burden of proof rests

with the defendant to prove the

truth of the statements in dispute,

while the plaintiff only has to

show that the statement harms his

reputation, without having to

show that any damage has

actually been suffered. However,

the plaintiffs have to show that

the concerned statement actually

is defamatory, and the rules

regarding pleading of innuendo

ensure that no wasteful confusion

with regards to what the

defamatory statement is or

means, is indulged in. The same

preciseness is extended to

defendants as well with regards to

proving the truth of the

accusatory statement.58

55 Supra note 4.56 Supra note 17.57 Supra note 4.

16

6. Privileges

Although the American laws

provide the same common law

privileges, with regards to public

proceedings, the privilege to report

is much broader, as a journalist can

gain access to virtually any

material, including leaked

information, when reporting about

a public proceeding. A few courts

have extended this to a general

privilege to repeat defamatory

allegations, as long as they are

accurately reported.59 Thus, the US

courts seem to protect accurate

repetition to quite an extent. With

regards to conditional privileges, an

important point is that US courts do

not easily dismiss these privileges

as the English courts do, with the

excuse of ‘improper motive’.60

The common law privileges of

absolute and qualified privileges

are well established in the UK,

and indicate that the UK does

respect freedom of speech as

well, but in practice, English Law

prefers plaintiffs, and qualified

privileges can be dismissed by

claiming ‘malice’.61

7. Element of

Actual Injury

The US courts define actual injury

include humiliation and mental

anguish along with pecuniary

losses, and if ‘actual malice’ is

provided, a plaintiff may enjoy

punitive damages as well.

In common law, actual injury

allows plaintiffs to avail special

damages much more easily,

making the toll on defendants

even heavier.

8. The Law in In practice,62 American libel suits In England, the defendants are

58 Supra note 4.59 Global Green v CBS inc., 286 F 3d 281(United States Court of Appeals, Fifth Circuit.)60 T.Eide, THE DEFAMATION LAW OF THE UNITED STATES OF AMERICA, (1st edn, 1987)61 Supra note 4.

17

Practice and

Libel Tourism

are not as biased towards

defendants as they may doctrinally

seem. Although American

defendants are less likely to lose

than their counterpoints in England,

the multi-million dollar judgements

and expensive litigation make

American defamation both few and

heavily publicised.

Privacy for the defendants is an

issue, as pre-trials discovery

procedures allow the plaintiff to

search through records, and

interview the defendants’

employees. The media coverage

ensures that defamation can be a

great threat to the media houses

beyond just the statutory

disadvantages.

Plaintiffs may avail legal aid, and

conditional fee structures to avail

easy legal representation.

However attempts have been made

to relieve American defendants in

the form of Anti-SLAPP (strategic

lawsuit against public policy)

statutes, which allow defendants to

plead to the judge for determining

the merit of the suit against them.

Thus, the plaintiffs may occur

certain costs and proceedings as

granted a ‘right to make amends’-

a correction, apology and an offer

to provide compensation to the

plaintiffs. This does not exist in

American law. 63

Further defendants in England,

can use a variety of pecuniary

tools to bring an end to

proceedings, primarily revolving

around pre-trial settlement.

Rejection of such offers can

impose great expense on the

plaintiffs. Further claimants do

not avail legal aid and conditional

fee systems for availing counsels

are not easily granted. 64

However, due to the doctrinal

preference given to plaintiffs,

libel tourism is greatly indulged

in by US defendants in

defamatory claims. Utilising

Internet publication loopholes,

US plaintiffs can bring the claim

to the UK and easily win. In order

to discourage this, a recent

Speech Act of 2010 has been

passed, indicating that all

judgements passed abroad not

following the First Amendment

protections, will not accepted in

American jurisdictions.65

62 Supra note 4 at 880.63 Supra note 4 at 880.64 Supra note 4 at 881

18

well.

CHAPTER 3: SUGGESTIONS FOR INDIA

The researcher has found two complications in his attempt to recommend a defamation

system for India.

1. Defamation is an extremely complex tort, with several jurisprudential difficulties and

lack of clarity with respect to its treatment,66

2. Both systems, that is, the American ‘free speech’ and UK ‘plaintiff-centric’ systems

of defamation law are riddled with problems on several levels, and assessing a

suitable model for India is a complex problem as societal factors play in on a much

higher level. Further, both models are constantly evolving, and their position remains

forever unclear.67

Further, the Indian defamation law is based primarily on common law. However, it varies

significantly as well when compared to modern defamation law of the UK. India makes no

distinction between Libel and Slander68. Also, defamation is both a civil wrong and a criminal

offence, as has been stated before. Indian case law indicates that the meaning of defamation

includes several societal factors like questioning one’s professional capabilities69, Indian

65 R. Greenslade, Obama seals off US journalists and authors from Britain’s libel laws, THE GUARDIAN, (11 Aug. 2010)66 Supra note 17.67 Supra note 4 at 883.68 Supra note 3.69 Mitha Rustomji v Nusserwanji Nowroji AIR 1941 Bom 278 (Bombay High Court)

19

abuses70, calling someone a goonda71,etc. Defenses like provision of apology are not easily

accepted and the wordings of the IPC also bring in problems, for example, the definition of

the word ‘infirmity’.72 Further cases like R. Rajagopal v State of T.N.73indicate the

controversy around the issue, and the government’s reluctance to deal with sensitive issues

surrounding defamation of public officials and matters of public importance.

In light of these additional complexities along with the initial problems stated in the first

chapter, the researcher feels that bringing about changes in the Indian defamation would

require the creation of a unique defamation law that suits the Indian society rather than

simply emulating English or American law; a law that also covers the gaping hole in Indian

defamation law concerning Internet defamation. In light of these factors, the researcher

proposes certain changes that could impart clarity to the Indian scenario-

1. Classification of defamation as only a civil tort. – Due to the advent of the Internet,

and the need for an Indian position for Internet defamation, limiting defamation to the

civil sphere of law would be prudent, as a defendant in an Internet defamation case

could end up in jail simply for providing a forum to publish (possibly libellous)

statements on the Internet. Criminal Defamation severely hampers freedom of

speech, and defamation in itself is essentially between two individuals. Thus

involvement of the State could lead unnecessarily high punishments, abuse by

influential persons, and lack of any compensation for the victims.74 Further, the

criminal system does not regard absolute privileges or vicarious liability, and also

creates complications with respect to violation of a grave via defamation.

2. Codification of civil law- In order to accommodate a comprehensive stance, civil law

must be codified, in a manner that suits the Indian media, as they are the primary

parties concerned.75 Further, a codified civil law on defamation might, as per the

researcher, introduce more equity in to the current situation, and prevent situations

like the case of Times Now v Justice P.B. Sawant where a media house was forced to

pay Rs 100 Crore for a five-second lapse.76

70 Harakh Chand v Ganga Prasad AIR 1925 All 371, (Supreme Court Of India) 71 Sadaiba v Banisdhar AIR 1962 Orissa 115 (Orissa High Court)72 Hamsa v Ibrahim, (1993) 2 Ker LJ 698. (Kerala High Court)73 R. Rajagopal v State of T.N 1995 AIR 264 (Supreme Court of India)74 D.Simons, Defamation ABC, ARTICLE 19 (November 2006) available at http://www.article19.org/data/files/pdfs/tools/defamation-abc.pdf75 Supra note 27 at 63.

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3. Adoption of the single publication rule- The US single publication rule is both

practically more efficient and jurisprudentially more respectful of justice and

imposition of liability. Thus the researcher advocates adoption of this rule.

4. Clarity with respect to the role of Internet Service Providers- This aspect is

heavily disputed in many countries including Canada, the US, and the UK77, and thus,

the researcher feels that the issue must be adequately addressed in the shortest time

possible, as the Internet grows on an exponential rate.78

5. A balance with respect to the burden of proof- The English concept of defamatory

statements being presumed false has been heavily criticised as favouring the plaintiffs,

and making it easier to restrict free speech.79 In light of India, and the influence of the

media, a balance needs to be found between the desire to respect private reputation

and the desire to protect free speech.

Despite having given these recommendations, the researcher must warn that the changes

be made carefully and in a gradual manner, as one must not forget the sheer complexity

of both defamation law, as well the unique Indian society.

76 ET Bureau., Times Now verdict appalling, says International Press Institute, ECONOMIC TIMES, (Nov. 22, 2011) available at- http://economictimes.indiatimes.com/news/politics/nation/times-now-verdict-appalling-says-international-press-institute/articleshow/10823312.cms77 Supra note 3.78 Anon. ,Unruly world of Internet leads to rise in libel cases, CANWEST MEDIAWORKS PUBLICATIONS INC., ( MARCH 17, 2006) available at http://www.canada.com/saskatoonstarphoenix/news/story.html?id=44633f5a-6d26-422c-be8b-53a785a6d6dd&k=3704179 Supra note 45.

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CONCLUSION

It is submitted that in this research paper, the researcher’s analysis of the defamation laws of

the US and UK, has raised three points. Firstly, that defamation is a tort which varies greatly

in theory, application, and principles. The societal factors and fundamental notions of the

concerned countries and its social actors play a huge role in determining its development.

Secondly, the US and the UK follow contrasting policies on defamation, and have taken

opposite sides on the debate between reputation and free speech. Thirdly, India’s own

position is a confused one, a mixture of archaic statutes and case law.

Thus, the main purpose of suggesting a system for India to follow has been difficult to

implement, and the researcher has proved his opinion on the issues to be dealt with and how

to deal with them, keeping in mind the laws of US and UK on defamation. The researcher

believes that India’s law must develop a unique system that works for its society and media,

while absorbing the positive aspects of defamation law from abroad, in order to attain the

central goals of judicial stability and clarity.

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BIBLIOGRAPHY

A R T I C L E S

1. Anon. ,Unruly world of Internet leads to rise in libel cases, CanWest MediaWorks

Publications Inc., ( MARCH 17, 2006)

2. D. Linder, The Trial of John Peter Zenger: An Account (2001).

3. D.Simons, Defamation ABC, ARTICLE 19 (November 2006)

4. ET Bureau., Times Now verdict appalling, says International Press Institute,

Economic Times, (Nov. 22, 2011)

5. F.Schauer, The Exceptional First Amendment (2005)

6. P.K. Jones, Roman Law Basis of Suretyship in Some Modern Civil Codes, 52, TULANE

LAW REVIEW, 129, (1977).

7. R. Greenslade, Obama seals off US journalists and authors from Britain’s libel laws,

the Guardian, (11 Aug. 2010)

8. R. Sylvester ,UK experts debate libel law’s threat to global free speech, Kyiv Post

(Jan 14,2011)

9. S. Swamy, Defamation litigation: a survivor's kit, The Hindu,(Sep. 2004)

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

10,2011)

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B O O K S

1. A.Lakshminath MSridhar, Ramaswamy Iyer’s the Law of Torts, (10th edn., 2007)

2. B. Manna, Mass Media and Related Laws in India, (1st edn.,1998)

3. Black’s Law Dictionary, (9th edn.,2009)

4. Markesins & Deakins, Tort Law, (6th edn.,2008)

5. P.Thorton, Sports Law,300, (2nd edn., 2010)

6. Salmond, J W, SALMOND’S 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)

E S S A Y S

1. 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)

S T A T U T E S

1. INDIAN PENAL CODE, 1860.

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