Slander Defamation and Current Legal Solution

-Submitted by:

Achlesh Mishra

Division: ‘C’ BA. LLB. PRN - 14010223001

Batch of 2019

Of

Symbiosis Law School, NOIDA

In

March 2015

Under the guidance of :

Dr. Kiran Kale and Prof. Nitya Thakur

Symbiosis Law School, Noida

Symbiosis International University, Pune

CERTIFICATE

The Project titled “Slander Defamation and Current Legal Solution” for Law of Torts, MV Accident and Consumer Protection Laws as part of Internal assessment is based on my original work carried out under the guidance of Dr. Kiran Kale and Prof. Nitya

Thakur from December to March 2015. The research work has not been submitted elsewhere for award of any degree. The material borrowed from other sources and incorporated in the thesis has

been duly acknowledged. I understand that I myself could be held responsible and accountable for plagiarism, if any, detected later

on.

Signature of the candidate

Date

ACKNOWLEDGEMENT

It is a great pleasure for me to put on records my appreciation and gratitude towards Dr. Kiran Kale and Prof. Nitya Thakur, my

faculty (Project Guide) for their valuable support and suggestions for the improvement and editing of this project report and

immense support and encouragement all through the preparation of this report. Last but not the least I would like to thank all the persons who directly or indirectly helped me in completing this

project report.

ContentsIntroduction.............................................................................................................................................5

Origin of Defamation...........................................................................................................................5

DEFAMATION..........................................................................................................................................6

Damages for Defamation...................................................................................................................7

Defenses to Defamation.................................................................................................................7

Types of Defamation: Slander vs. Libel.........................................................................................8

The Elements of Slander....................................................................................................................8

Slander of title....................................................................................................................................9

slander of goods :-............................................................................................................................9

Legislative provision............................................................................................................................9

Judicial Decision...................................................................................................................................10

Suggestions..........................................................................................................................................12

A. Modern Remedies in Lieu of a Cause of Action for Defamation of the Dead........12

B. Legislative Solutions for Defamation of the Dead..........................................................12

Introduction“Sticks and stones will break my bones, but words will never hurt me” – so goes the popular adage. The law of defamation though, would beg to differ. If every sanction in this module can be imagined as a tussle between free expression and a competing value, then that value in the instance of Defamation law is the right to Reputation. Multiple understandings of the idea of reputation permeate and guide the development of Defamation law. The course material aims to unpack those variegations before proceeding to engage with the struggle between free expression and reputation. Lawrence Friedman categorizes reputation as being integrally a question of information flow.1 A study of reputation is a study of the flow of information about other people, and the power to control that flow. Reputation for many people is as much a product of what others do not know about them, as it is about publicly available information. Truth is a defense to a claim of defamation, but only in civil cases is it an absolute one, while in criminal defamation, there is a question of public interest involved. To that extent, the law clearly privileges a certain ambit of privacy claimed by an individual, acting as a deterrent from it crossing over into the public domain.

Defamation is an area of law that provides a civil remedy when someone's words end up causing harm to your reputation or your livelihood. Libel is a written or published defamatory statement, while slander is defamation that is spoken by the defendant. In this section, we'll explain what you need to prove if you're bringing a defamation lawsuit, and what to expect at each step of your case, including common defenses to a defamation claim.

Origin of DefamationWith the introduction of mass media, mass media had both positive and negative aspects. Mass Media systems differ from country to country on the basis of polity, economy, culture and religion of different societies. In the Indian scenario and its Parliamentary Democracy, the media is free but subject to some reasonable restrictions provided by the Indian Constitution. Before the Indian economic liberalization in 1991, the mass media was under governmental control to a large extent. It allowed the media to project only that image, things and happenings which the Govt. wanted the public to see. With the beginning of privatization and globalization, the situation has undergone a big change. Before the era of communication satellite, communication was mostly in the form of national media – public and private – in India as well as abroad. Then, „transnational media‟ arrived bringing in

an evolution of communication technologies like Satellite delivery and ISDN (Integrated services digital network) Consequently, local TV, global films and global information systems made the national and international media scene very complex and sophisticated. Due to this unprecedented media upsurge, it becomes unavoidable to put certain legal checks and balances on the transmission and communication of public content. Legal checks and balances – slander, libel, sedition, obscenity, censorship and the contempt of court cases appeared.

DEFAMATIONDefamation is a legal wrong emerging from an act of injuring a person’s reputation and sullying their character without lawful justification or excuse.

Libel and slander, both forms of defamation, are creatures of English common law, but they are not treated as distinct from each other in Indian jurisprudence. India offers the defamed a remedy both in civil law for damages and in criminal law for punishment. This is highly unusual since defamation as a crime is almost nonexistent anywhere in the world. While civil law for defamation is not codified as legislation and depends on judge-made law, criminal law is in the Indian Penal Code (section 499 creates a criminal offence of defamation.)

In a civil action, the claimant needs to prove that the statements injured the person’s reputation and were published. The onus then shifts to the defendant to prove that the imputations or statements were either true, or amounted to fair comment, or were uttered or stated in circumstances offering absolute or qualified privilege like Parliamentary or judicial proceedings.

In criminal law, the burden rests on the prosecution to prove beyond reasonable doubt that there was an offence of defamation committed and there was intent to do so.

Then it is up to the accused to substantiate that they are protected by one of the 10 exceptions listed under Section 499. These exceptions are extremely wide. They offer protection including: stating a true fact against a person for public good; expressing an opinion in good faith about an act of a public servant; or even making imputations on the character of another provided it’s in good faith and for the public good. The Indian Constitution protects

freedom of speech as a facet of fundamental rights under Article 19, subject to reasonable restrictions, including decency and defamation.

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.

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 magistrate’s court is often perceived as a greater threat and nuisance than a civil remedy that may take an age to come to fruition.

Indeed, just the threat of punitive criminal action can be enough to serve as an effective deterrent to the publishing of future allegations. Of course, along the way it also scuttles legitimate criticism and opinion. Only the thick-skinned will point fingers at public figures, since the uninitiated would want to avoid getting involved in court proceedings.

Damages for Defamation

Once the plaintiff has successfully proved defamation, "general damages"

are presumed. The plaintiff is not simply limited to damages reflecting his or

her economic losses, but the mental anguish and other emotional harm that

the law presumes to result from having one’s reputation harmed. Depending

on what the plaintiff proves about the defendant’s intentions, and the type of

defendant, punitive damages may also be awarded to the plaintiff. For more,

see our section on damages in a personal injury case.

Defenses to Defamation

Generally, if the defendant can prove that what he or she said or published

about the plaintiff was true, the plaintiff will lose the case. In the case of

defendants like certain media outlets (e.g. newspapers), the plaintiff must

prove the statement was untrue -- the media defendant is not required to

prove its publication was true to defend the case.

Another defense to defamation is privilege. When the defendant is a certain

type of public official or the statement was during certain official

proceedings, the statement was “privileged” and therefore the plaintiff

cannot successfully sue for defamation.

Types of Defamation: Slander vs. LibelBefore the advent of modern media, there were only two kinds of

communication available, spoken and written. Slander pertained to spoken

defamation and libel to written. Where defamatory statements published via

radio, television or the internet fit into these categories is not a clear-cut

matter. For now, it is easiest to think of slander as spoken defamation to a

small audience (or just one other person) and libel as any written

defamation or spoken or video defamation to a large audience. Generally, it

is up to the judge, and not the jury, in a defamation case to determine which

category the defamation fits into.

Slander:- Slander is the act of making a false, negative spoken

statement about someone.

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

The Elements of SlanderThere 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.

In law, the word slander is contrasted with libel, which is the act of making a false written statement about someone. The noun slander is from Old French slander, escandle"scandal," from Late Latin scandalum "stumbling block, offense."

For ex:- If you call your teacher a "dirty toad," you're going to get into trouble––she'll call you out on the slander.

There are two types of slander :-

Slander of title In an action for slander of title, slander of goods or other malicious falsehood, it is not necessary to allege or prove special damage,

(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or

(b) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by the plaintiff at the time of the publication.

slander of goods :-A false statement, written or oral, that casts doubt on a person’s ownership of property. See also bait and switch and disparagement.

Legislative provisionThere are no specific legislations regarding defamation in India. However, since defamation is a civil as well as criminal offence, it is governed by the provisions of the Indian Penal code 1860. Section 499 of the Indian Penal Code defines defamation as, ‘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 having reason to believe that such imputation will harm the reputation of such person, is said except in cases here in after expected, to defame that person.’ The section further elucidates on the topic of defamation of the deceased “To impute anything to a deceased person, if the imputation would harm the reputation of that person if living and is intended to be harmful to the feelings of his family or other near relatives”.

Chapter XXI, Section 500, 501, and 502 of the IPC deals with the punishment for defamation. The provisions of these sections are as follows –

Section 500: Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years or with fine or with both.Section 501: Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.Section 502: Whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to two years or with fine or with both.

Judicial DecisionCourts in India do not impose liability for defamation of the dead. One of the best comments on this issue was given by honorable Justice R Basant in the landmark case Raju vs Chacko on 5 September, 2005 (Equivalent citations: 2005 (4) KLT 197) “A claim for compensation for defamation under the civil law may not be maintainable in respect of defamation of a deceased person on the principle that a personal right of action dies with the person. (Actio personalis moritor cum persona). But still the law makers felt that defamation of a deceased person can legitimately give rise to a criminal prosecution for the offence of defamation against a deceased person.” The honorable court further elucidated “Any person may get triggered to commit offences and thus cause breach of the peace if a deceased member of his family or other near relative of his were defamed. Accepting this reality in life, Explanation-I has been added to Section 499 IPC to ensure that defamation of a deceased person is also culpable.” The Honorable court further explained who has the cause of action “The offending publication should not only be defamatory to the deceased. It must also be intended to be hurtful to the feelings of his family or other near relative, it is stipulated. Every lineal descendant or every person interested in the deceased cannot complain of defamation against the deceased. Firstly, such complainant must be a member of the family of the deceased or must be a near relative of his. The words “family or other near relative” significantly are not defined in Section 499 IPC. Such expressions are not defined in the Indian Penal Code. The expressions “family” and “other relative” are expressions which can have different shades of meaning depending on the circumstances and the purpose which a statutory provision is intended to achieve. Any attempt to understand the sweep, width and amplitude of the expressions “family or

other near relative” must certainly be made conscious of the purpose which Section 499 IPC and Explanation-I thereto have got to achieve.”

In the landmark caseMrs. Pat Sharpe vs Dwijendra Nath Bose on 12 July, 1963the Honorable court held that “Even if Netaji is dead, it is defamation because the imputation would have harmed his reputation if alive and the imputation must be said to have been intended to be hurtful to the feelings of his family or other near relatives, Thus in any view of the matter the words used do amount to defamation.”

In the case Sh. Raghu Nath Pandey And Anr. vs Sh. Bobby Bedi And Ors. on 22 February, 2006, the Honorable court held “No action for defamation can be taken in respect of a dead person since defamation is a personal wrong and the legal right does not survive and is not actionable after the death of the person in view of principle laid down in the maxim ‘actio personalist monitor cum persona’. c) The suit is bad for non-joinder of defendants No.3, 4, 6 and 7 who are the director, script writer, lead actor and lead actress respectively, are unnecessarily imp leaded even when no relief is claimed against them. Any false imputation amounts to defamation whether the concerned person is alive ordead. To defame a dead person is not a tort, but if such statement though expressly referring to the deceased reflects upon the dead person and affects his reputation, the legal representatives can maintain the action. (See: AIADMK, Madras v. K. Govindan Kutty (1996 (2) ALD 139).

In Basant Kumar Birla & Ors vs Prakash Jha & Ors on 11 October, 2012 there was no action in defamation lies against any libel or slander against dead persons. So the cause of action is of the present members of the family, who are the plaintiffs.

In Mahtab Singh vs Hub Lal And Anr. on 13 May, 1926A reference has been made on behalf of the appellants to Section 89 of the Probate and Administration Act which has now been replaced by Section 306 of Act 39 of 1925. This provision however only authorizes an executor or administrator to recover all demands due to a deceased parson, and to enforce all rights to prosecute or defend any suit or proceeding in favor of or against the person

at the time of his decease, except causes of action for defamation, assault or other personal injury not causing the death of the party concerned, and except also cases where after the death of the party the relief sought could not be enjoyed or the granting of it would be nugatory

Suggestions

A. Modern Remedies in Lieu of a Cause of Action Since courts today are not willing to impose liability for defamation of the dead, plaintiffs bringing action for the same have the option of 3 remedies available –

(1) Damages for emotional harms suffered because of the publication.

(2) Damages for financial losses resulting from the publication.

(3) A judicial declaration that the defamatory statement is false.

The plaintiff’s odds of being successful in each of these remedies is discussed in this part. This analysis further brings to light the need to impose liability for defamation of the dead, as these measures are inadequate in modern society.

B. Legislative Solutions The defamation is considered a very serious issue by some citizens and legislators, who still try to change the ancient rule through legislation, not deterred by the failed attempts to do the same in the past, such as in New York. This Part debates various conceivable legislative solutions to the issue. It further emphasizes the need to balance between freedom of speech and protection of individual rights, along with the appropriate relief. This section further independently analyses each of the alternate relief options discussed previously in light of the duty of the state to maintain balance between individual and societal interests.