ANALYSIS OF THE SCOPE OF LAW OF LIBEL AND SLANDERIn fulfillment of Torts Assignment Submitted By: Submitted To:Shubh Dixit Shyam Kaushik B.A. LLB (Hons.) Faculty of Law Semester II National Law University, JodhpurWinter Session(January- May, 2015)

ContentsINTRODUCTION TO LAW OF TORTS3DEFAMATION4ESSENTIALS OF DEFAMATION5DEFENCE6LIBEL7CELEBRITY LIBEL CASES9SLANDER9CYBER DEFAMATION SOCIO ECONOMIC OFFENCE10Position In India12

INTRODUCTION TO LAW OF TORTS

The word Tort is derived from a Latin word 'Tortus' which means 'twisted' or 'cooked act'. In English it means, 'wrong'. The Expression 'Tort' is of French Origin. The term 'Tort' means a wrongful act committed by a person, causing injury or damage to another, thereby the injured institutes (files) an action in Civil Court for a remedy viz., unliquidated damages or injunction or restitution of property or other available relief.[footnoteRef:1] [1: http://www.lawnotes.in/Law_of_Torts.]

The development in Indian law need not be on the same lines as in England. In M.C. Mehta v. Union of India[footnoteRef:2], Justice Bhagwati said, we have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence. It has also been held that section 9 of The Code of Civil Procedure, which enables the civil court to try all suits of a civil nature, impliedly confers jurisdiction to apply the Law of Torts as principles of justice, equity and good conscience. In a more recent judgement of Jay Laxmi Salt Works (p) ltd. v. State of Gujarat[footnoteRef:3], Sahai, J., observed: truly speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to close strictly or close finally the ever expanding and growing horizon of tortuous liability. Even for social development, orderly growth of the society and cultural refineness the liberal approach to tortious liability by court would be conducive.[footnoteRef:4] Indian courts have been relatively mild in dealing with issues of defamation, unlike U.K. courts, which are notorious for awarding astronomical damages for libel. [2: 1988 AIR 1115, 1988 SCR (2) 530.] [3: 1994 SCC (4) 1, JT 1994 (3) 492.] [4: http://www.legalserviceindia.com/articles/torts_s.htm.]

Tardiness in the Indian legal process also leads to more criminal complaints being filed than civil actions for damages because a criminal case followed by a summons from the magistrates court is often perceived as a greater threat and nuisance than a civil remedy that may take an age to come to fruition.DEFAMATION

There is always a thin line between one person's right to freedom of speech and another's right to protect their reputation. It is often hard to know which personal remarks are proper and which run afoul of defamation law. A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society.[footnoteRef:5] If the statement is made in writing and published, the defamation is called "libel." If the hurtful statement is spoken, the statement is "slander." Defamation law, for as long as it has been in existence in the United States, has had to walk a fine line between the right to freedom of speech and the right of a person to avoid defamation. On one hand, people should be free to talk about their experiences in a truthful manner without fear of a lawsuit if they say something mean, but true, about someone else. On the other hand, people have a right to not have false statements made that will damage their reputation. Discourse is essential to a free society, and the more open and honest the discourse, the better for society. [footnoteRef:6] [5: http://www.lawteacher.net/lecture-notes/tort-law/defamation-lecture.php.] [6: http://injury.findlaw.com/torts-and-personal-injuries/defamation-law-the-basics.html.]

ESSENTIALS OF DEFAMATION

1. DEFAMATORY WORDS The statement must be defamatory. According to Lord Atkin, the statement must tend to lower the claimant in the estimation of right-thinking members of society generally, and in particular cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem. 2. REFERENCE TO THE CLAIMANT :The statement must refer to the claimant, ie, identify him or her, directly or indirectly. For instance, if a class of people is defamed, there will only be an action available to individual members of that class if they are identifiable as individuals. "If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to the particular individual."3. PUBLICATIONThe statement must be published, ie communicated, to a person other than the claimant.For example, dictating a defamatory letter to a typist is probably slander (Salmond and Heuston on the Law of Torts, 1996, p154), but when the letter is published to a third party it is libel. However, in Bryanston Finance v De Vries [1975] QB 703 it was held that where a letter was written to protect the interests of the business there was a common interest between the employer and employee, and so a letter dictated to a secretary in the normal course of business was protected by qualified privilege.[footnoteRef:7] [7: Supra note 7.]

DEFENCE

1. TRUTHOnly false statements are actionable, so if the statement made about the claimant is true, there can be no action for defamation. The burden of proof is on the defendant to prove that the statement made is true, rather than on the claimant to prove that it was false.2. FAIR COMMENT: The defence of fair comment is frequently relied upon by the press, as it is designed to protect statements of opinion on matters of public concern. Lord Esher, in Merivale v Carson (1887) 20 QBD 275, stated that the test was:"Would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work which is criticised?"The defence only applies to comments made on matters of public interest, eg comments on works of literature, music, art, plays, radio and television; and also the activities of public figures.[footnoteRef:8] [8: http://www.lawteacher.net/lecture-notes/tort-law/defamation-lecture.php]

3. PRIVILEGE:There are certain occasions on which the law regards freedom of speech as essential, and provides a defence of absolute privilege which can never be defeated, no matter how false or malicious the statements may be.

LIBEL

Libel is a method of defamation expressed by print, writing, pictures, signs, effigies, or any communication embodied in physical form that is injurious to a person's reputation, exposes a person to public hatred, contempt or ridicule, or injures a person in his/her business or profession.Libel is a tort governed by State law. State courts generally follow the common law of libel, which allows recovery of damages without proof of actual harm. Under the traditional rules of libel, injury is presumed from the fact of publication. However, the U.S. Supreme Court has held that freedom of expression secured by the First Amendment limits a State's power to award damages in actions for libel.In New York Times Co. v. Sullivan, the Court held that proof of actual malice is required for an award of damages in an action for libel involving public figures or matters of public concern. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964). The Court reasoned that speech related to matters of public concern is at the heart of the protections guaranteed by the First Amendment, and outweighs the State's interest in compensating individuals for damage to their reputations.[footnoteRef:9] [9: https://www.law.cornell.edu/wex/libel.]

Libel can be personal libel or trade libel, which is also known as "product disparagement." Product disparagement can include a product, service or entire company. Libelous statements, whether against persons or products, are published statements that are false and damaging. To prevail in a libel case against you, in addition to showing that your statement is untrue and caused significant harm, a public official or a public figure must also prove "malice" -- that you acted in reckless disregard to the facts known to you and with intent to harm.Obviously, because of this stipulation, you enjoy considerable protection when it comes to public personages, since proving malice (intent to harm) places a heavy burden on the prosecution. Who are these public people? The status of "public official" is relatively easy to determine from public records. The trick comes in determining who falls into the category of "public figure.The courts have determined that there are two types of public figures: A "general purpose public figure" is someone who enjoys social prominence. Entertainers are in this category. A "limited purpose public figure" -- someone who has intentionally placed themselves into prominence, such as a vocal activist on a given issue.[footnoteRef:10] [10: http://www.writing-world.com/rights/libel.shtml.]

An early example of libel is the case of John Peter Zenger in 1735. Zenger was hired to publish New York Weekly Journal. When he printed another man's article that criticized William Cosby, who was then British Royal Governor of Colonial New York, Zenger was accused of Seditious Libel.[9] The verdict was returned as Not Guilty on the charge of seditious libel, because it was proved that all the statements Zenger had published about Cosby had been true, so there was not an issue of defamation. Another example of libel is the case of New York Times Co. v. Sullivan (1964). The U.S. Supreme Court overruled a State court in Alabama that had found The New York Times guilty of libel for printing an advertisement that criticized Alabama officials for mistreating student civil rights activists. Even though some of what The Times printed was false, the Court ruled in its favor, saying that libel of a public official requires proof of Actual Malice, which was defined as a "knowing or reckless disregard for the truth".[footnoteRef:11] [11: Ibid.]

CELEBRITY LIBEL CASESCameron Diaz - The British Sun newspaper hinted that Diaz had an affair with Shane Nickerson, a friend. When the article was published, she and Nickerson were in relationships and the hardly recognizable imaged posted with the article caused damage to both relationships, so Diaz sued for defamation. But no one is sure of the amount of money Diaz was awarded.[footnoteRef:12] [12: http://www.insidecounsel.com/2014/11/18/6-most-successful-celebrity-libel-and-slander-case?page=2.]

Kiera Knightley - The Daily Mail published accusations that Knightley had an eating disorder and had been responsible for the death of a young lady with anorexia. The actress went to court and was awarded several thousand dollars which she handed over to a charity.[footnoteRef:13] [13: Ibid.]

SLANDERAlso known as oral defamation, in which someone tells one or more persons an untruth about another, which untruth will harm the reputation of the person defamed. Slander is a civil wrong (tort) and can be the basis for a lawsuit. Damages (payoff for worth) for slander may be limited to actual (special) damages unless there is malicious intent, since such damages are usually difficult to specify and harder to prove. Some statements, such as an untrue accusation of having committed a crime, having a loathsome disease or being unable to perform one's occupation, are treated as slander per se since the harm and malice are obvious and therefore usually result in general and even punitive damage recovery by the person harmed. Words spoken over the air on television or radio are treated as libel (written defamation) and not slander on the theory that broadcasting reaches a large audience as much as if not more than printed publications.[footnoteRef:14] [14: http://dictionary.law.com/Default.aspx?selected=1969.]

There are two types of slander: slander and slander per se. In the first kind of slander, the plaintiff must prove the defendant made a defamatory statement to at least one other person (i.e. the essential defamation elements) and that the plaintiff suffered what are referred to as special damages as a result of the defamation. Special damages are actual harm like loss of customers, being fired, or some other financial harm.

A slander per se claim does not require that the plaintiff prove special damages. This is because slander per se claims involve categories of defamatory statements that are presumed to be damaging to the plaintiff. While the categories may change a little for state to state, and evolve over the years, some of the most common slander per se categories are: imputing criminal conduct to the plaintiff saying that the plaintiff has certain types of communicable diseases, and any harmful statement about the plaintiff's profession or business.[footnoteRef:15] [15: http://www.alllaw.com/articles/nolo/personal-injury/defamation-libel-slander.htm.]

CYBER DEFAMATION SOCIO ECONOMIC OFFENCEThe definition of what constitutes a crime in cyber space is still being developed. In the past, the states and federal government defined cyber crime activities to include the destruction or theft of computer data and programs. More recently the definition has expanded to include activities such as forgery, illegal gambling, cyber stalking, cyber defamation etc. There are several areas on the internet where there is a real risk of liability for defamation. The fact that a user is "alone" with his computer and distanced from other users creates a sense of intimacy. There is no spoken/telephonic conversation or dictated correspondence that would normally instill some caution. In addition, the notion that the internet is a "free-for-all" cyberspace where there are no limits or boundaries results in a user's sense of social norms and propriety generally getting blurred. The Web results in an instant global publication of information at a very low cost. Information, which would not normally have been revealed prior to the dawning of the internet, can now be unearthed by practically anyone. Intranets are intended to be exclusively used by a company. However, information from an intranet can be easily downloaded and forwarded by e-mail or otherwise to third parties. Information posted to a bulletin board can be accessed by anyone. This means that anyone can place defamatory allegations on the bulletin board. E-mail users generally tend to treat their correspondence as a kind of conversation rather than a written interaction. Users forget that e-mails are stored and can be retrieved as hard copies and that their contents then cannot be disputed. One message can be circulated to literally hundreds of people. As a defamatory allegation need only be disclosed to one person for publication to be proved, every time e-mail is forwarded to another person, it is published again and an additional cause of action for defamation arises. The scope of every firm having a cyber presence to liability for defamation is global. Internet sites can be accessed in most countries throughout the world; huge amounts of data can be transmitted simultaneously to several different destinations; and e-mail can be forwarded to an indefinite number of recipients without the original author having any control over the transmission. While a legal action based on defamation is usually aimed at stopping the defamatory allegations, the harm in most cases has already been done. Consequently, the most important relief claimed in a defamatory action is damages. The amount of damages granted will depend on the nature of the defamation sought and the extent of publication. Furthermore, a defamation claim can be instituted in any jurisdiction in which a cause of action arises.Cyber defamation need not necessarily be directed against an individual victim, but it could be harmful to the whole society. No doubt, at times, it could be directed against an individual ('victim'), but the criminal act is potentially capable of harming a large number of persons and that is the principal object behind punishing it. In short it is an offence, which affects the health or material welfare of the community as a whole and not merely of the individual victim. Position In IndiaIPC on Defamation:Chapter XXI of the IPC exclusively talks of defamation. Section 499 prescribes the offence:Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said . . . to defame that person.Explanation 2. - It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.Section 500 prescribes the punishment in such cases:Whoever defames another shall be punished with simple imprisonment for a term, which may extend to two years, or with fine, or with both.[footnoteRef:16] [16: http://www.legalservicesindia.com/articles/defcy.htm.]

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