Defamation- Libel and Slander
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Transcript of Defamation- Libel and Slander
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MEDIA LAWSMass Media systems differ from country tocountry on the basis of polity, economy, cultureand religion of different societies.
In the Indian scenario and its ParliamentaryDemocracy, the media is free but subject to
some reasonable restrictions provided by theIndian Constitution.
Before the Indian economic liberalisation in1991, 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. wantedthe public to see.
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With the beginning of privatization andglobalization, the situation has
undergone a big change. Before the era of communication
satellite, communication was mostly in
the form of national media publicand private in India as well asabroad.
Then, transnational media arrived
bringing in an evolution ofcommunication technologies likeSatellite delivery and ISDN (Integrated
Services Digital Network)
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Consequently, local TV, global filmsand global information systems made
the national and international mediascene very complex andsophisticated.
Due to this unprecedented mediaupsurge, it becomes unavoidable toput certain legal checks and balanceson the transmission and
communication of public content. Legal checks and balances slander,
libel, sedition, obscenity, censorshipand the contempt of court.
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Defamation : Libel and
Slander Defamation means a public
communication which is intended to
harm the reputation of an individual.
It comprises of both slander (oralones) and libel (written defamatory
statements).
In practice, the definition and meaningof defamation differs from jurisdiction
to jurisdiction.
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However, there is a common consensus
that a communication that is just
unflattering, irksome, annoying orembarrassing or for that matter hurts
only the plaintiffsfeeling and sentiments,
does not strictly qualify as defamation.According to the US Restatement
(Second) of Torts, defamation is a
communication that tendsso to harm the
reputation of another as to lower him inthe estimation of the community or to
deter third persons from associating or
dealing with him.
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In England, a court puts the inquiry
whether what has been published
would tend in the minds of people of
ordinary sense to bring the plaintiff
into contempt, hatred, or ridicule or to
injure his character. Other common tests include: lowering
the plaintiffs reputation by exposing
him to hatred, contempt or ridiculeand tending to make the plaintiff be
shunned and avoided.
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The elements found common in themajority of jurisdiction include a
statement, publication to a third partyor parties and the possibility todamage the plaintiffsstatus.
Section 499 of Indian Penal Codeprovides that:
Whoever by words either spoken orintended to be read, or by signs or by
visible representations, makes orpublishes any imputation concerningany person intending to harm, orknowing or having reason to
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believe that such imputation will
harm, the reputation of such person, is
said, except in the cases hereinafterexcepted, do defame that person
Explanation 1: It may amount to
defamation to impute anything to adeceased person., if the imputation
would harm the reputation of that
person if living, and is intended to behurtful to the feelings of his family or
other near relatives.
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Explanation 2: It may amount to
defamation to make an imputation
concerning a company or anassociation or collection of persons as
such.
Explanation 3: An imputation in theform of an alternative or expressed
ironically, may amount to defamation.
Explanation 4: No imputation is saidto harm a personsreputations, unless
that imputation directly or indirectly, in
the estimation of others, lowers the
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or intellectual character of that person,
or lowers the character of that person
in respect of his caste or of his calling,or lowers the credit of that person, or
causes it to be believed that the body
of that person is in a loathsome state,or in a state generally considered as
disgraceful.
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Exceptions
Imputation of truth public which goodrequires be making or publishing: It is
not defamation to impute anything,
which is true concerning any person, ifit be for the public good that the
imputation should be made or
published. Whether or not it is for thepublic good is a question of fact.
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Public conduct of public servants: It is
not defamation to express in good
faith any opinion whatever respectingthe conduct of a public servant in the
discharge of his public functions, or
respecting his character, so far as hischaracter appears in that conduct, and
no further.
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Conduct of any person touching any
public question: It is not defamation to
express in good faith any opinion
whatever respecting the conduct of
any person touching any public
question, and respecting his character,so far as his character appears in that
conduct, and no further.
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Publication of reports of proceedings
of Courts: It is not defamation to
publish a substantially true report ofthe proceedings of a Court of Justice,
or of the result of any such
proceedings. A justice of the peace orother officer holding an enquiry in
open Court preliminary to a trial in a
Court of Justice is a Court within themeaning of the above section.
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Merits of case decided in Court orconduct of witnesses and others
concerned: It is not defamation toexpress in good faith any opinionwhatever respecting the merits of anycase, civil or criminal, which has beendecided by a Court of Justice, orrespecting the conduct of any personas a party, witness or agent, in any
such case, or respecting the characterof such person, as far as his characterappears in that, and no further.
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Example of Defamation case
Defamation Case against Rahman,
Anil Kapoor (2009)
An office bearer of a slum dwellers'
body has filed a defamation caseagainst music director AR Rahman and
actor Anil Kapoor alleging that the
award winning film Slumdog Millionairecalls Indians dogs and slum dwellers
slum dogs.
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In a complaint filed before a local court
in Patna, Tapeshwar Vishwakarma,
general secretary of Slum-dwellersJoint Action Committee, has alleged
that the film depicted slum-dwellers in
bad taste as it used the derogatoryand objectionable title Slumdog
Millionaire thus calling Indians dogs
and slum dwellers slum dogs, which is
defamatory.
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Vishwakarma said he has already
approached the national and state
human rights commissions fornecessary action against Rahman and
Kapoor, who portrays the role of a
game show host in the film. Slumdog Millionaire, which tells the
rags-to-riches tale of an orphan from a
Mumbai slum, won four Golden Globeawards, including one for Rahman,
and has been nominated for 11
BAFTAs.
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Origin of defamation law
The origin of the law of defamationcan be drawn to ancient times.
Although it has evolved significantly,
the contemporary themes are quitenoticeable in its origins,.
The concept of civil law evolved fromthe Roman acto injuriarum, which
concentrated more on the intentionaland unjustified hurting of anothersfeelingsthan harm to public status.
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The Roman law heavily influenced theevolution of the common-law slander
and libel. During the time of Henry III (1216
1272) in England, libel got its definitionthe use of abusive languageaddressed to a man publicly or the actof inciting a crowd to beset a manshouse or to mob the man himself.
Civil and criminal punishments fordefamation were decided by the Courtof Star Chamber in England.
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The common law action developed
from the English ecclesiastical courts
inability to adequately deal with theproblem of defamation.
The church courts had the powers to
order the offenders to apologize;however, the victims usually found
such actions insufficient and took to
duels for revenge or satisfaction. The Scandalum Magnatum was
passed in 1275 to check this violence.
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It introduced two grounds of
justifications for the defamation law
which remains relevant even today:- The Parliament was eager to stop
insults targeting the nations best
men as it was apprehending threatsto the feudal order. This thought
developed into a concern that
unchecked criticism will throw outqualified people out of public service.
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The government, at that time the
Crown, wanted to suppress the critics
who were threatening its legitimacy.
During that time, the challenge was
put up by those who did not believe in
the idea that the king was ordained byGod to rule over them. By 1676, the
common law came to incorporate the
Scandalum Magnatum and itssuccessors.
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Today, almost all the states in the worldpossess a set of civil or criminal law to
guard the individual and institutionalreputation.
Modern jurisprudence is yet to take aclearly defined stand on the issue of
criminal defamation. Some of the courts think that this kind of
prosecution is inappropriate.
Others put the argument that the criminaldefamation laws intrinsically infringeupon the freedom of expression andhence must be abolished entirely.
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Despite these divergent opinions,various cases and commentaries
suggest a trend towards discouragingcriminal prosecutions for defamation.
Once the incident reaches trial, thecommon law has conventionally provided
three defenses to defamation: truth, faircomment and privilege.
Truth, or say justification, is a totaldefense for the statements of the fact. If
the defendants are able to prove thetruth and substance of a defamatorystatement, they are not held liable fordamages.
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In Britain, the defendant is just
required to show that the concerned
statement is substantiallycorrect.
This defense of reasonable and fair
comment provides protection to
express the opinions.Although, it might be easier to argue
and defend fair comments than justify
facts, the defense does not cover allthe opinions and viewpoints.
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The defendants are not required to
substantiate that they honestly hold
the opinion. They just have to prove
that a reasonable individual may hold
such an opinion.
Fair comment, unlike justification, maydefeated if the plaintiff is able to prove
that the defamer acted maliciously.
Privilege qualified or absolute isdesigned in a manner to protect the
expression made for the common
good.
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Absolute privilege provides a total
defense for the people with s public
duty to speak out. For example, the elected officials can
speak freely in Parliament; lawyers,
judges and witnesses cannot beprosecuted for what they say in the
court; certain government officials
cannot be held accountable for reportsabout state matters.
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In the absence of such defense,defamation threat deters these peoplefrom speaking freely, independently andin the public interest.
The qualified privilege, on the otherhand, offers protection to the expressionmade in public interest except when the
statements are made in malice. The defense is applicable to the
individuals bound with a social or moralresponsibility to report information, like
the incidence of crime, and to theauthorities having a responsibility toreceive and act upon complaints andcommunications.
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In English common law, certainstatements like accusing somebody of
lying, doing a crime or suffering from adespicable disease were consideredlibelousper se.
It meant these could not be considered
innocent in meaning and needed noextra information for the defamatorymeaning to be apparent.
On the other hand, libel per quodneeded extrinsic evidence, i.e., sayingthat a woman is pregnant will notdamage her reputation unlesssupplementary facts (for example, herhusband is out of the country for the last
1 year) is made known.
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In practice, modern-day sanctionsmake no difference between libel per
se and libelper quod. In case of falsity, the English common
law needed just considerable truth,which in practice meant that smallinconsistencies were excused.
The substantial truth principle is stillprevalent in the United States;
however, England and other Westerncountries put the onus ofsubstantiating truth on thecommunicator himself.
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Many countries do recognize the risk ofproviding the government the right totake legal action against its critics fordefamation.
In Derbyshire County Council vs. TimesNewspapers Ltd. (1993), The England
House of Lords made a ruling that thecommon law does not permit a localauthority to entertain an action for libel.
In this case, the County Council made an
attempt to prosecute the Sunday Timesand its staff for two articles thatquestioned the management of asuperannuation fund and council
investments.
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One year later, following the Derbyshires
lead, the Supreme Court of India, in
R.Rajagopal Vs. State of T.N (1994)found that TheGovt., local authority and
other organs and institutions exercising
powercannot exercise a defamation suit
for damages.
Taking a step further, the Court also
ruled that since the public officials do not
possess the right to privacy, they cannotask for damages for statements which
discuss their official conduct and
behavious.
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The US Supreme Court provided a
path-breaking test to secure the
freedom of expression. Realising thelimits of the customary truth defense,
New York Times Co. Vs. Sullivan
(1964) concentrated on thedefendants intention and instituted a
malice anf hatred requirement for
defamation. This test applies particularly to public
officials and moves the burden of
proof onto the plaintiff.
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Contrary to the conventional commonlaw defenses, the case was regarding
and advertisement appearing in theNew York Times and signed by,among others, four African Americanclergymen who were also among the
defendants.An elected police commissioner,
Sullivan, from Montgomery, Alabama,
made an allegation that theaccusations included in theadvertisement about police violenceagainst civil rights protestors hurt his
reputation.
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The court held the opinion that a
public official may demand
compensation only if he or she provesthat the statement was made with
actual malice, i.e., with knowledge
that it was false or with recklessdisregard for whether it was false or
not.
By transferring the burden andaltering the mens rea for defamation,
this case spared innocent mistakes
while protecting political criticism born
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Not mentioning the term malice
explicitly, it observed that the public
officials do not possess the right totake judicial remedy for damages
regarding official duties except when
they prove that the defendantpublished information with reckless
disregard for the truth.
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The present-day problems of libel andslander comprise jurisdictional and
other matters born of InternetCommunication.
In the landmark 2002 case Dow Jonesand Co. Vs. Gutnick, the High Courtof Australia held that an Australiancould sue an American publisher in
Australia for defamation, based on the
publication of online statements. In other words, the defamation
occurred at the place of reception andnot just at the place of publication.
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Another problem involves the effect ofInternet on the common law rule that
a re-publisher of libel or slander wasjust as culpable as the originator.
The US Congress in 1996 adopted aprovision protecting Internet serviceproviders from liability for libelspropagated by users in electronic mailmessages or on electronic bulletin
boards. However, few countries have gone
that far in immunizing the serviceproviders to that extent.
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Try answer these
What are the two forms ofdefamation?
Give the origin of the law of
defamation. Why modern law is yet to adopt a
clearly defined stand on criminal
defamation? What is the difference between libel
per se and libel per quod in the