Defamation is a relatively new tort for Indian Law. Not many defamation suits were filed in the country until recently and the only ones that were filed were those by film stars and the rich and the famous, against the media, trying to salvage their reputation. However, now after the media revolution in this country, and with people becoming more aware of their rights, the frequency of defamation suits being filed is increasing. Recently, there have been a few cases where a few journalists have ‘exposed’ the corrupt side of the politicians by discreetly filming a politician with a hidden camera when he was taking a bribe for posing questions in parliament or religious heads discreetly accepting bribes in order to go ahead and declare something about their religion, distorting completely the religious principles they are supposed to uphold and by misuse the authority vested in him/her. In India these days, it is this category of people who file defamation suits against the media for destroying their reputation and questioning the veracity of these hidden recordings. Now, not only are celebrities filing lawsuits, but many not-so-famous people are realizing that if their right to reputation is violated, they can make sure that the offender is punished and can walk away with a handsome sum as compensation too. Clearly, India is on its path to become a litigious society.
Chapter One: The constituents of the Tort of Defamation
Regardless of whether a defamation action is framed in libel or slander, the plaintiff must always prove that the words, pictures, gestures etc are defamatory. Equally, the plaintiff must show that they refer to him. Finally he must also prove that they were maliciously published. These are the three essential elements in a defamation action.
Elements of Defamation
(A) The statement must be defamatory
Any imputation which exposes one to disgrace and humiliation, ridicule or contempt, is defamatory. It could be made in different ways as in it could be oral, in writing, printed or by the exhibition of a picture, effigy or statue or by some conduct.
According to Lord Atkins, whether a statement is defamatory or not depends upon how the right thinking members of society the society are likely to take it. Yet the term ‘right-thinking members of society’ is highly ambiguous. The standard to be applied is that of a right-minded citizen, a man of fair average intelligence, and not that of a special class of persons whose values are not shared or approved by the fair minded members of that society generally. If the likely effect of the statement is the injury to the plaintiff’s reputation, it is no defence to say that it was not intended to be defamatory. When the statement causes anyone to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem, it is defamatory.
In D.P. Choudhary v. Manjulata there was publication of a statement in a local daily in Jodhpur that Manjulata on the pretext of attending her evening BA classes ran away with a boy named Kamlesh. The girl belonged to a well educated respectable family. She was seventeen years of age. The news item was untrue and had been irresponsibly published without any justification. This was defamatory and the defendants, the newspaper publishers were held liable.
However, words spoken in anger or annoyance or in the heat of the moment are not defamatory as they no way reflect on the character of the one being abused.
However, sometimes the statement being used to defame may be prima facie innocent but becomes defamatory because of some latent or hidden meaning. In such a scenario the plaintiff must prove the hidden meaning, which is the innuendo if s/he wants to file a suit for defamation. For instance in Cassidy V Daily Mirror Newspapers the newspaper published a picture of a lady and the race horse owner with the caption underneath, “Mr. M. Corrigan, the race-horse owner and Miss X whose engagement has been announced”. The newspaper was held liable in a suit that said that the lady was the lawful wife of Mr. Corrigan and complained that the words suggested that she had been living with him in immortality. The liability of the defendants rested on their failure to make independent inquiry. This also brings forth another aspect of this tort that intention to defame is not necessary and if the words are considered to be defamatory by the persons to whom the statement is published, there is defamation.
(B) The statement must refer to the plaintiff
The plaintiff has to prove that the statement which is claimed to be defamatory actually refers to him/her. It is immaterial that the defendant did not intend to defame the plaintiff, if the person to whom the statement was published could reasonably infer that the statement referred to the plaintiff, the defendant is nevertheless liable.
In Hulton Co. V Jones the defendants published a fictional article in their newspaper in which aspersions were cast on the morals of a fictitious character-Artemus Jones, stated to be a Churchwarden. On this basis one Artemus Jones, a barrister, brought an action against the defendants. The defendants pleaded that Artemus was a fictional character and the plaintiff was not known to them and thus they had no intention to defame him. Notwithstanding this, they were held liable because a substantial number of persons who knew the plaintiff and had read the editorial would have assumed it to be referring to him.
However, when the defamation refers to a class of persons, no member of that group can sue unless he can prove that the words could reasonably be considered to be referring to him.
When the statement though generally referring to a class can be reasonably considered to be referring to a particular plaintiff, his action will succeed. In Fanu v. Malcomson, in an article published by the defendants, it was mentioned that cruelty was practised upon employees in some of the Irish factories. From the article as a whole including a reference to Waterford itself, it was considered that the plaintiff’s Waterford factory was aimed at in the article and the plaintiff was, therefore, successful in his action for defamation.
(C) The statement must be published
Publication means making the defamatory matter known to some other third part and unless that is done, no civil action for defamation can lie in court. Communication to the plaintiff wont count because defamation is injury to the reputation which consists in the estimation in which others hold him and not a man’s own opinion of himself. However, if a third party wrongfully intercepts and reads a letter sent to the plaintiff it is not defamation. However when the defendant knows that the letter is likely to be read by someone else and it contains some personal information only meant for the recipient, then he will be liable.
Also, an injunction can be issued against the publication of a defamatory statement which is likely to injure the reputation of one of the arties involved as was done in Prameela Ravindran v. P. Lakshmikutty Amma .
Also, in the eyes of the law, husband and wife are one person and the communication of a defamatory matter from the husband to the wife or vice versa is no publication.
When the repetition of the defamatory matter is involved, the liability of the person who repeats that defamatory matter is the same as that of the originator, because every repetition is a fresh publication giving rise to a fresh cause of action. Not only the author is liable but the editor, printer or publisher would be liable in the same way.
Chapter Two: Defences to the Tort of Defamation
(A) Justification by truth
In a civil action for defamation, truth is a complete defence. However under criminal law, it must also be proved that the imputation was made for the public good. Under the civil law, merely proving that the statement was true is a good defence the reason being that “the law will not permit a man to recover damages in respect of an injury to a character which he either does no or ought not to possess”
The defence is available even if the statement is made maliciously and if the statement is substantially true but incorrect in respect of certain other minor particulars, the defence will still be available.
The Defamation Act, 1952 (England) provides that if there are several charges of defamation and the defendant is successful in proving the truth of only some of them, the defence of justification might still be available if the charges not proved do not materially injure the reputation.
Although there is no specific provision in India regarding the above, the law is possibly the same as prevailing in England.
(B) A fair and bona fide comment on a matter of public interest
It involves making fair comments on matters of public interest. For this defence to be available, the following essentials are required:
(i) It must be a comment, i.e., an expression of opinion rather than an assertion of fact
(ii) The comment must be fair, i.e., must be based on the truth and not on untrue or invented facts
(iii) The matter commented upon must be of public interest.
If due to malice on the part of the defendant, the comment is a distorted one, his comment ceases to be fair and he cannot take such a defence. In Gregory V Duke of Brunswick the plaintiff, an actor, appeared on the stage of a theatre but the defendant and other persons in malice started hooting and hissing and thereby caused him to lose his engagement. This was held to actionable and an unfair comment on the plaintiff’s performance and the defendants were held to be guilty.
(C) Privilege - It is of two kinds:
· Absolute Privilege: Certain statements are allowed to be made when the larger interest of the community overrides the interest of the individual. No action lies for the defamatory statement even though it may be false or malicious. In such cases, the public interest demands that an individuals right to reputation should give way to the freedom of speech. This privilege is provided to:
(i) Parliamentary proceedings,
(ii) judicial proceedings,
(iii) Military and Naval proceedings and
(iv) State proceedings.
· Qualified Privilege: For communications made in the course of legal, social or moral duty, for self-protection, protection of common interest, for public good and proceedings at public meetings, provided the absence of malice is proved. Also, there must be an occasion for making the statement. To avail this defence, the following things must be kept in mind:
(i) The statement should be made in discharge of a public duty or protection of an interest
(ii) Or, it is a fair report of parliamentary, judicial or other public proceedings
(iii) The statement should be made without any malice.
Chapter Three: An Analysis of an English defamation case: douglas V hello! magazine
In this case, the upcoming glamorous wedding of the claimants, both Hollywood celebrities had received widespread coverage in the tabloid press. In November 2000 OK! A tabloid journal entered into a contract with Michael Douglas and Catherine Zeta-Jones, for the exclusive right to publish photographs of their forthcoming wedding on 18 November 2000 at the Plaza Hotel, New York. The Douglases dealt with OK!, who paid them £1m for the rights, in preference to the rival magazine Hello!, published by the respondent. The Douglases agreed to engage a photographer and to supply OK! with pictures they had chosen. By clause 6 of the agreement they agreed to use their best efforts to ensure that no one else would take any photographs.
The Douglases went to some lengths to comply with this obligation and no criticism is made of their security precautions, but a freelance photographer named Rupert Thorpe infiltrated the wedding and took photographs which he sold to Hello!. OK! obtained an ex parte injunction restraining publication by Hello! but on 23 November 2000 the injunction was discharged by the Court of Appeal and the photographs were published on the following day. A few hours earlier on the same day OK! published its own photographs, having brought forward its date of publication on account of what it knew to be the imminent publication by Hello! Also on the same day, some of the unauthorized pictures were, without objection by Hello!, published in national daily newspapers.
OK! sued Hello! for breach of confidence and for the tort of causing loss by unlawful means.
Lindsay J held Hello! liable for breach of confidence. He applied the well-known criteria summarized by Megarry J in Coco v AN Clark (Engineers) Ltd [1969] RPC 41, 47:
“First, the information itself…must ‘have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”
For this purpose the judge identified the information as being photographic images of the wedding. Not information about the wedding generally; anyone was free to communicate the information that the Douglases had been married, describe what the bride wore and so forth. The claim was only that there had been a breach of an obligation of confidence in respect of photographic images.
Lindsay J held that the three conditions were satisfied. As for the first, photographs of the wedding were confidential information in the sense that none were publicly available. As to the second, the Douglases had made it clear that anyone admitted to the wedding was not to make or communicate photographic images. They allowed people to witness their marriage, but only on the basis that the information which the spectators thereby obtained was not communicated in the form of a photographic image. The judge said (at para 197):
“the very facts that Hello! and OK! competed for exclusivity as they did and that each was ready to pay so much for it points to the commercial confidentiality of coverage of the event. The event was private in character and the elaborate steps to exclude the uninvited, to include only the invited, to preclude unauthorized photography, to control the authorized photography and to have had the claimants’ intentions in that regard made clear all conduce to that conclusion. Such images as were, so to speak, radiated by the event were imparted to those present, including Mr Thorpe and his camera, in circumstances importing an obligation of confidence. Everyone there knew that was so.”
Furthermore, everyone knew that the obligation of confidence was imposed for the benefit of OK! as well as the Douglases. To no one could this have been clearer than to Mr Thorpe. The judge then went on to make findings about the circumstances in which Hello! had acquired his photographs:
“198. As for the Hello! defendants, their consciences were, in my view, tainted; they were not acting in good faith nor by way of fair dealing. Whilst their position might have been worse had I held that the taking of unauthorised pictures for use by them had been truly commissioned in advance, even without that there is in my view enough to afflict their conscience. They knew that OK! had an exclusive contract; as persons long engaged in the relevant trade, they knew what sort of provisions any such contract would include and that it would include provisions intended to preclude intrusion and unauthorised photography. Particularly would that be so where, as they knew, a very considerable sum would have had to have been paid for the exclusive rights which had been obtained. … The surrounding facts were such that a duty of confidence should be inferred from them. The Hello! defendants had indicated to paparazzi in advance that they would pay well for photographs and they knew the reputation of the paparazzi for being able to intrude. The unauthorised pictures themselves plainly indicated they were taken surreptitiously. Yet these defendants firmly kept their eyes shut lest they might see what they undeniably knew would have become apparent to them.”
The obligation of confidence was therefore binding upon Hello! and the third requirement of use to the detriment of OK! was plainly satisfied. Lindsay J therefore decided that Hello! was liable to OK! for the loss caused by the publication, which he later assessed at £1,033,156.
The Court of Appeal reversed the judge’s decision on the ground that the obligation of confidence for the benefit of OK! attached only to the photographs which the Douglases authorized them to publish. They did not have the benefit of an obligation of confidence in respect of any other photographs. Their publication may have invaded a residual right of privacy retained by the Douglases but did not infringe any right of OK!
In the researcher’s opinion Lindsay J was right. The point of which one should never lose sight is that OK! had paid £1m for the benefit of the obligation of confidence imposed upon all those present at the wedding in respect of any photographs of the wedding. That was quite clear. Unless there is some conceptual or policy reason why they should not have the benefit of that obligation, it cannot be seen why they were not entitled to enforce it. And there are no such reasons. Provided that one keeps one’s eye firmly on the money and why it was paid, the case is, as Lindsay J held, quite straightforward.
It is first necessary to avoid being distracted by the concepts of privacy and personal information. In recent years, English law has adapted the action for breach of confidence to provide a remedy for the unauthorized disclosure of personal information. This development has been mediated by the analogy of the right to privacy conferred by article 8 of the European Convention on Human Rights and has required a balancing of that right against the right to freedom of expression conferred by article 10. But this appeal is not concerned with the protection of privacy. Whatever may have been the position of the Douglases, who recovered damages for an invasion of their privacy, OK!’s claim is to protect commercially confidential information and nothing more. So there is no need to be concerned with Convention rights. OK! has no claim to privacy under article 8 nor can it make a claim which is parasitic upon the Douglases’ right to privacy. The fact that the information happens to have been about the personal life of the Douglases is irrelevant. It could have been information about anything that a newspaper was willing to pay for. What matters is that the Douglases, by the way they arranged their wedding, were in a position to impose an obligation of confidence. They were in control of the information.
The counsel for the respondent argued that the information in the photographic images was not intended to be kept secret but to be published to the world by OK! and was so published at much the same time as the unauthorised photographs in Hello!. They also argued that once the approved photographs were published, the publication of the unauthorised photographs was not a breach of confidence and that the differences between the photographs were “insufficiently significant to call for legal protection”; “the unapproved pictures contained nothing not included in the approved pictures”.
However, since a substantial amount of money was inloved in the contract, the point of the transaction was that each picture would be treated as a separate piece of information which OK! would have the exclusive right to publish. The pictures published by OK! were put into the public domain and it would have had to rely on the law of copyright, not the law of confidence, to prevent their reproduction. But no other pictures were in the public domain and they did not enter the public domain merely because they resembled other pictures which had
The judge found that despite the massive publicity which accompanied the wedding, it was nonetheless “private”. He also found that the contract with OK Magazine was “a means of reducing the risk of intrusion by unauthorised members of the media and hence of preserving the privacy of [the wedding].”
The judge made some important observations about the law of privacy in dismissing the claimants’ claim in that respect. The main reason he gave for dismissing that part of the claimants’ action was that he doubted that UK law had a distinct right of privacy.
The judge made some important observations about the law of privacy in dismissing the claimants’ claim in that respect. The main reason he gave for dismissing that part of the claimants’ action was that he doubted that UK law had a distinct right of privacy. He observed that UK law did not adequately protect the European Convention right in this respect. He said that Parliament should step in to correct this deficiency, but that if Parliament failed to grasp the nettle the court would ultimately have to do so. That would not happen until the court was faced (as it was not here) with a claim where breach of confidence did not provide an adequate remedy.
Apart from the privacy of the wedding, the other main issue before the court was the commercial benefit both to OK Magazine and to Douglas and Zeta-Jones of the exclusive contract between them, and the “spoiling” publication of unauthorised pictures by Hello! The significance of the judgment is that the judge allowed the claimants to enforce the contract against Hello! on the basis that the commercial effect of the contract was to create something akin to a trade secret. The judge found that Hello! was not acting in good faith, and that it had clearly breached the Press Complaints Commission Code since it was plain that the photographs that it purchased were obtained by subterfuge. Therefore their conscience was “tainted” which meant that the claimants were entitled to enforce their equitable rights in the law of confidence against Hello!
The judge held the defendants to be liable to the Claimants under the law as to confidence. An important step in his coming to that conclusion had been that, on balancing rights to confidence against freedom of express for the purpose of granting or withholding relief, he had been required by statute to pay regard to the Code of the Press Complaints Commission. According to the judge, The Hello! Defendants broke their own industry’s Code.
The important thing for the claimants is that they were granted their remedy. The common press practice of ’spoiling’ exclusives of this sort now carries a clear commercial risk, since on the basis of this judgment such contracts will be upheld by the courts and enforced against anyone who is or ought to be aware of them. This reduces the value of such unauthorised photographs, and while further doubt has been cast on the existence of a distinct law of privacy, the protection that the law will grant against this sort of press activity has been strengthened by this judgment
The Douglases and OK magazine won their actions for breach of confidence against Hello! Magazine and its publishers, despite adjudications on some aspects of the claims in the defendants’ favour. However, a complex series of questions fell to be determined by the judge on the appropriate orders for costs based on his previous judgments both as to liability and quantum.
The judge awarded the claimants 85% of their costs for the hearing on quantum and he ordered that these too should be assessed on the standard basis. He went on to order £120,000 interest on the award of over £1 million made to OK in the action.
The Douglases and OK magazine won their actions for breach of confidence against Hello! magazine and its publishers, despite adjudications on some aspects of the claims in the defendants’ favour. However, a complex series of questions fell to be determined by the judge on the appropriate orders for costs based on his previous judgments both as to liability and quantum.
The judge specifically took into account the judicial findings of misconduct against Hello!, referring to the “lamentable incident” whereby an “untruthful and misleading” letter had been procured by those defendants. A number of harsh criticisms by the judge of the behaviour of Hello! in his judgment on the issue of costs clearly had an impact on his various awards.
The judge considered that an award that merely looked at the number of issues won respectively by the claimants and the defendants would not fairly reflect the realities of the case. Overall, the claimants had clearly won the liability hearing, and he considered therefore that the appropriate proportion of their costs which the defendants should pay was 75%. He assessed this on the “standard” basis because he considered that the award of “indemnity” costs at an earlier hearing where the misconduct by Hello! was exposed constituted sufficient punishment
Conclusion
The laws in place to counter the menace of defamation are both satisfactory and reasonable but in certain areas need to be made more stringent so as to dissuade the celebrity crazy media from wantonly publishing and broadcasting fraudulent, defamatory matter in order to make instant money. Thus the protection of privacy and the prevention of press harassment is also an important issue which needs to be redressed with the better implementation of laws already existing.
Since no cause of action survives the defamed person’s death, it is clear that reputation is merely a transitory interest, which, by way of the defences available, has to be balanced against the public interest. Similarly fair comments protect the press when expressing their views on the actions of politicians, public servants and others in the public eye, provided they are true.
Defamation does have significance and a very strong one at that as it protects a right which is essential to for the members of society to co-exist. Obviously, if people do not respect that right and are allowed to say and publish whatever they want without substantiating it with an honest reason to believe, then there would be no harmony in society, insecurity would be rampant and society would be in shambles. However there exists the question of balancing the interest of both the parties concerned. This debate on how to achieve the correct balance between the individual’s interest in his good name and freedom of speech is a vital attribute of democratic society. However, while trying to resolve that debate via the development of the tort of defamation, the courts are hindered by the procedural game which characterises many libel actions, the unpredictability of the jury, and the absence of developed torts of invasion of privacy and breach of confidence. Thus more changes need to be taken which do away with the superfluous procedural games thus leaving behind only the core of the tort to be implemented. However, the tort of defamation has an ancient history and a capacity for survival which shall outlive more topical concerns.
Bibliography
Books
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David Price and Korieh Duodu, Defamation: Law, Procedure and Practise, Sweet and Maxwell, Third Edition, 2004, London
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Justice G.P. Singh, Ratanlal and Dhirajlal, The Law of Torts, Wadhwa and Company Nagpur, Twenty-Fourth Edition, 2007, Delhi
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Margaret Brazier and John Murphy, Street on Torts, Butterworths, Tenth Edition, 1999, London
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R. K. Bangia, Law of Torts, Allahabad Law Agency, Nineteenth Edition, 2006, Haryana
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S.K. Desai and Kumud Desai, Ramaswamy Iyer’s The Law of Torts, Seventh Edition, 1975, Bombay
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W. V. H. Rogers, Winfield and Jolowicz on Tort, Sweet and Maxwell, Seventeenth Edition, 2006, London
CASES
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Cassidy V Daily Mirror Newspapers Ltd (1929) 2 K.B. 331
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Douglas V Hello! Ltd (2005) EWCA Civ 595; (2005) 3 W.L.R. 881
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Megarry J in Coco v AN Clark (Engineers) Ltd [1969] RPC 41, 47
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Gregory V Duke of Brunswick (1843) 6 M. and G. 205
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Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, [1993] 1 A11 ER 1011, HL
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Reynolds V Times Newspapers Ltd [1998] 3 A11 ER 961, CA
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Mst. Ramdhara v. Mst. Phulwatibai, 1969 Jab. L.J. 582: 1969 M.P.L.J 482: 1970 Cr. L.J. 286 (M.P.)
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D.P. Choudhary v. Manjulata, A.I.R. 1997 Raj.170
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Hulton Co. V Jones (1909) 2 K.B. 444
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Fanu v. Malcomson, (1848) 1 H.L. Cas. 637
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Prameela Ravindran v. P. Lakshmikutty Amma, A.I.R. 2001 Mad 225
