INTRODUCTION

A man`s reputation is his property and is more valuable than any

other tangible asset. Every
man has the right to have his reputation preserved inviolate.
This right oI reputation is
acknowledged as an inherent personal right oI every person as part
oI the personal security
1
.
It is a jus in rem
2
, a right good against the entire world. A man`s reputation is
his property
more valuable than other property.
3
Indeed, iI we reIlect on the degree oI suIIering
occasioned by loss oI character, and compares it with that
occasioned by loss oI property; the
amount oI the Iormer injury Iar exceeds that oI the latter
4
. The term deIamation has been
deIined by many jurists and in many laws. Some oI the
deIinitions are:DeIamation is the
publication oI a statement which reIlects on a person`s
reputation and tends to lower him in
the estimation oI right-thinking members oI society generally or
tends to make them shun or
avoid him.
5
Defamation is the infury to the reputation of a person. If a
person infuries the
reputation of another, he does so at his own risk as in the
case of an interference with the
property.
6
As per the DeIinition contained in the Section 499 oI IPC, "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 oI such person,
is said, except in the cases
hereinaIter excepted, do deIame that person"
According to Black`s Law Dictionary, DeIamation is 'The act oI
tendering the reputation oI
another by making a Ialse statement to the third person.
7

According to WinIield, 'DeIamation is the publication oI a statement

which tends to lowers a
person in the estimation oI right-thinking members oI the society
generally; or which tends to
make them shun or avoid that person.
8
But the law oI deIamation like many other branches oI the
law oI Torts provides Ior
balancing oI interests. The competing interest which has to be
balanced against the interest
which a person has in his reputation is the interest which
every person has in Ireedom oI
speech. The Law oI DeIamation provides deIences to the
wrong such as truth and privilege
thus also protecting right oI Ireedom oI speech but at the same
time marking the boundaries
1
8lacksLones CommenLary of Lhe Laws of Lngland vol 1 (lv
LdlLlon) p 101
2
!us ln rem rlghL Lo a Lhlng
3
ulxon v Polden (1869) L8 7 Lq 488
4
ue Cresplgny v Wesllelley (1829) 3 8lng 392
3
Ayesha 1he 1orL Cf uefamaLlon hLLp//
[urlsonllneln/2010/10/LheLorLofdefamaLlonananalyslsof
Lhe
lawlnlndlaandLheunlLedklngdom/ Accessed on 31
sL
CcLober 2011
6
8anglaur 8k kumar ur narendra Law of 1orLs 20
Lh
LdlLlon Allahabad Law Agency 2010 p 183
7
Carner 8ryan A 8lack's Law ulcLlonary 9
Lh
LdlLlon WesL ubllcaLlons p 479
8
P Wlnfleld A 1exLbook of 1he Law of 1orL 3
Lh
LdlLlon 1930 242
within whi
9

ch it may be limited. In India, tort law is obtained Irom British

Common Law and
is yet uncodiIied. ThereIore the existing law relating to
deIamation places reasonable
restrictions on the Iundamental right oI Ireedom oI speech and
expression conIerred by
Article 19(1) (a) oI the Indian Constitution and is saved by clause (2)
oI Article 19.
The wrong oI deIamation is in the publication oI a Ialse and
deIamatory statement concerning
another person without lawIul justiIication. That person must
be in being. Hence not only
does an action oI deIamation not survive Ior or against the estate oI
a deceased person, but a
statement about a deceased or unborn person is not
actionable at the suit oI the relatives,
however great their plan and distress, unless the statement is
in some way deIamatory oI
them.
10
Chapter One: Types of the Tort of Defamation
The wrong oI deIamation may be committed by making
deIamatory statements which are
calculated to expose a person to hatred, contempt or ridicule,
or to injure him in his trade,
business, proIession, calling or oIIice, or to cause him to be
shunned or avoided in society.
This is known as 'publication oI the statement, which in its
true legal sense means the
communication oI deIamatory matter to some person other
than the person oI whom it is
written. These statements can be made in the Iollowing three ways:
Libel: The publication oI a Ialse and deIamatory statement tending
to injure the reputation oI
another person without lawIul justiIication or excuse. The
statement must be in a printed
Iorm, e.g., writing, printing, pictures, cartoons, statue, waxwork
eIIigy etc.
Slander: A Ialse and deIamatory statement by spoken words and/or
gestures tending to injure
the reputation oI others. It is in a transient Iorm. It also involves the
sign language used by the
physically disabled.
A learned judge oI MP High Court holds that there may be a
hybrid type oI deIamation not
Ialling within the recognized categories oI libel and slander. In
that case it was held that the

bride groom and his Iather in reIusing to take the bride to

their home aIter marriage in Iull
gaze oI the guests committed the tort oI deIamation and
damages could be awarded Ior loss
oI reputation.
11
Cyber Defamation: Nowadays, there is a new kind oI
DeIamation through the internet
space. It is termed as cyber deIamation. Internet provides us
with a very cheap and a quick
way oI communication. It has made the world a close nit
organisation. Also, with the growth
oI social networking sites like orkut, Iacebook, etc., lot oI
personal inIormation is shared
amongst many people thereIore, the chances oI deIamation
through internet has become a
major threat in today`s world. Even iI a single deIamatory
email is Iorwarded, it becomes
very diIIicult to trace and stop its circulation. Any article published
on a website is open Ior
9
SL8vAl ConsLlLuLlonal Law of lndla 3
rd
LdlLlon vol 1 p 493 SnM Abdl v rafulla k MahanLa Al8
2002
Cau 73 p 76
10
8lv PeusLon Salmond on Lhe Law of 1orLs 17
Lh
LdlLlon 1977 p 138
11
noor Mohd v Mohd !lauddln Al8 1992 M 244 p 249 (para 13)
the entire world to read. The damage or losses caused to the victim
is very huge especially iI
the imputation is intended to harm the business oI an
individual or a business entity. Cyber
DeIamation would Iall in the category oI Cyber Crime Law. The
concept oI cyber crime is
not radically diIIerent Irom the concept oI conventional crime.
Both include a conduct,
whether act or omission, which cause breach oI rules oI law
and counterbalanced by the
sanction oI the state. Few examples oI Cyber Crime would be email spooIing, unauthorized
control/access over computer system, transmitting virus, Cyber
terrorism against the

government organization. The InIormation Technology Act deals

with the various cyber
crimes in chapters IX & XI. The important sections are Ss.
43,65,66,67. Section 43 in
particular deals with the unauthorised access, unauthorised
downloading, virus attacks or any
contaminant, causes damage, disruption, denial oI access,
interIerence with the service
availed by a person. Section 65 deals with tampering with
computer source documents`.
Section 66 deals with hacking with computer system`. Further
section 67 deals with
publication oI obscene material. However, the IT Act does not
cover cyber deIamation
speciIically, so to seek remedy against cyber deIamation, the
aggrieved party will have to rely
mainly on IPC. 1lll now noL much cases of cyber defamaLlon have
been heard of Cne of Lhese ls
ma[or case whlch ls consldered as lndlas flrsL case of cyber
defamaLlon SMC neumaLlcs (lndla) vL
LLd v !ogesh kwaLra
12
ln Lhls case a company's employee (defendanL) sLarLed sendlng
derogaLory
defamaLory and obscene emalls abouL lLs Managlng
ulrecLor 1he emalls were anonymous and
frequenL and were senL Lo many of Lhelr buslness assoclaLes
Lo Larnlsh Lhe lmage and goodwlll of
Lhe plalnLlff company 1he plalnLlff was able Lo ldenLlfy Lhe
defendanL wlLh Lhe help of a prlvaLe
compuLer experL and moved Lhe uelhl Plgh CourL 1he courL
granLed an adlnLerlm ln[uncLlon and
resLralned Lhe employee from sendlng publlshlng and LransmlLLlng
emalls whlch are defamaLory or
derogaLory Lo Lhe plalnLlffs 8ecenLly ln Lhe news Lhere was
anoLher case of lnLerneL defamaLlon
agalnsL a hoLel managemenL sLudenL 1he news read as
kCLkA1A 8ldhannagar pollce on 1hursday
nlghL arresLed a Lhlrdyear hoLel managemenL sLudenL who
llves as a paylng guesL ln SalL Lake on
charges of creaLlng a communlLy agalnsL Lhe lnsLlLuLe where
he sLudles on a soclal neLworklng slLe
Anuran AmrlL 22 was laLer released on ball A couple of
weeks ago Lhe SecLor vbased hoLel
managemenL lnsLlLuLe had lodged a complalnL agalnsL AmrlL
for cyber defamaLlon 8ldhannagar
pollces cyber cell sLarLed a probe based on Lhe complalnL
AmrlLs lnLerneL proLocol address was

Lraced and hls emall lu found ouL ollce ralded hls home
on 1hursday nlghL and arresLed hlm
uurlng lnLerrogaLlon he reporLedly admlLLed LhaL he had
opened Lhe communlLy Lo openly abuse
Lhe lnsLlLuLe as he had some personal grlevances agalnsL lL
AmrlL was produced ln 8ldhannagar
addlLlonal chlef [udlclal maglsLraLes courL on lrlday where he
was released on ball"
13
1he Supreme
CourL and Plgh CourLs are empowered Lo lnLervene and punlsh Lhe
publlcaLlon of any maLLer whlch
causes pre[udlce Lo a pendlng proceedlng Lo keep Lhe
sLream of [usLlce clear and pure so LhaL
parLles may proceed wlLh safeLy boLh Lo Lhemselves and Lo Lhelr
characLer no person can flouL Lhe
mandaLe of law of respecLlng Lhe courLs for esLabllshmenL of rule
of law under Lhe cloak of freedom
of speech and expresslon guaranLeed by Lhe ConsLlLuLlon
nowadays Lhe sensaLlonallsm lnvolved ln
cerLaln hlgh proflle crlmlnal cases has become very common
wlLh Lhe spread of mass
12
8elng SulL no 1279/2001 avallable aL
hLLp//cyberlawsneL/cyberlndla/defamaLlonhLm Accessed on 3
rd
november 2011
13
1lmes of lndla SLudenL held for Cyber uefamaLlon geLs ball"
avallable aL
hLLp//arLlclesLlmesoflndlalndlaLlmescom/20100814/kolkaLa
/28302349_1_cybercellhoLelmanagemenL
cyberdefamaLlon accessed on 3
rd
november 2011
communlcaLlon Lxample can be Laken from Lhe Aarushl murder
case Moreover such medla Lrlals
unnecessarlly draw Lhe [udlclary lnLo Lhe publlc scanner
ofLen maklng a mockery of Lhe [usLlce
dellvery sysLem
Chapter Two: Essentials to the Tort of Defamation
These are the essentials Ior proving deIamation against the
deIendant in a case:1. The statement (the technically correct term is ~imputation) is
defamatory.
DeIamatory statement is one which tends to injure the reputation oI
the plaintiII. It is an

imputation which exposes one to disgrace and humiliation,

ridicule or contempt, is
deIamatory. It could be made in diIIerent ways as in it could be
oral, in writing, printed
or by the exhibition oI a picture, eIIigy or statue or by some conduct.
According to Lord Atkins, whether a statement is deIamatory or
not depends upon how
the right thinking members oI society the society are likely to take
it. Yet the term rightthinking members oI society` is highly ambiguous. The standard to
be applied is that oI a
right-minded citizen, a man oI Iair average intelligence, and not that
oI a special class oI
persons whose values are not shared or approved by the Iair
minded members oI that
society generally. II the likely eIIect oI the statement is the
injury to the plaintiII`s
reputation, it is no deIence to say that it was not intended to
be deIamatory. When the
statement causes anyone to be regarded with Ieelings oI hatred,
contempt, ridicule, Iear,
dislike, or disesteem, it is deIamatory. In D.P. Choudhary v.
Manjulata
14
there was
publication oI a statement in a local daily in Jodhpur that
Manjulata on the pretext oI
attending her evening BA classes ran away with a boy named
Kamlesh. The girl
belonged to a well educated respectable Iamily. She was
seventeen years oI age. The
news item was untrue and had been irresponsibly published
without any justiIication.
This was deIamatory and the deIendants, the newspaper publishers
were held liable.
The ordinary man aIter reading a writing does not contemplate
oI reading it again and
again Ior deriving its meaning. So the meaning oI words in an
action 'is a matter oI
impression as an ordinary man gets on the Iirst reading, not a
later analysis.
15
The
layman reads an implication much more Ireely and
unIortunately, as the law oI
deIamation has to take into account, is especially prone to do so
when it is derogatory. II
the deIamatory statement consists oI an article with a headline and
a photograph then the

whole oI the article including the headline and photograph has

to be taken together and
considered whether in its natural and ordinary men it is deIamatory
Ior the plaintiII.
16
However, words spoken in anger or annoyance or in the heat
oI the moment are not
deIamatory as they no way reIlect on the character oI the one
being abused. However,
sometimes the statement being used to deIame may be prima Iacie
innocent but becomes
deIamatory because oI some latent or hidden meaning. In
such a scenario the plaintiII
must prove the hidden meaning, which is the innuendo iI s/he
wants to Iile a suit Ior
deIamation. For instance in Cassidy V Daily Mirror Newspaper
17
s the newspaper
published a picture oI 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.
14
Al8 1997 8a[ 170
13
Payword v 1hompson (1981) 3 All L8 430(438)(CA)
16
CharlesLon v news Croup newspapers LLd (1993) 2 All L8 313
17
(1929) 2 k8 331
The newspaper was held liable in a suit that said that the lady was
the lawIul wiIe oI Mr.
Corrigan and complained that the words suggested that she had
been living with him in
immortality. The liability oI the deIendants rested on their
Iailure to make independent
inquiry. This also brings Iorth another aspect oI this tort that
intention to deIame is not
necessary and iI the words are considered to be deIamatory by
the persons to whom the
statement is published, there is deIamation. Where the words
alleged to be deIamatory do
not appear to be such on their Iace, the plaintiII must out the
circumstances which made
them actionable and he must set Iorth in his pleading the
deIamatory sense he attributes
to them.

18
. It refers to the plaintiff i.e. identifies him.
The plaintiII has to prove that the statement which is claimed to
be deIamatory actually
reIers to him/her. It is immaterial that the deIendant did not intend
to deIame the plaintiII,
iI the person to whom the statement was published could
reasonably inIer that the
statement reIerred to the plaintiII, the deIendant is nevertheless
liable. It is suIIicient iI he
is described by the initial letter oI his name, or even by a Iictitious
name provided he can
satisIy the Court that he was the person reIerred to.
19
It is immaterial whether the
deIendant intended the deIamatory statement to apply to the
plaintiII, or knew oI the
plaintiII`s existence, iI the statement might reasonably be
understood by those who knew
the plaintiII to reIer to him. When the words are considered to
be deIamatory by the
persons to whom the statement is published, there is deIamation,
even though the person
making the statement believed it to be innocent.
In Hulton Co. V Jone
20
s the deIendants published a Iictional article in their newspaper in
which aspersions were cast on the morals oI a Iictitious
character-Artemus Jones, stated
to be a Churchwarden. On this basis one Artemus Jones, a
barrister, brought an action
against the deIendants. The deIendants pleaded that Artemus
was a Iictional character
and the plaintiII was not known to them and thus they had
no intention to deIame him.
Notwithstanding this, they were held liable because a substantial
number oI persons who
knew the plaintiII and had read the editorial would have
assumed it to be reIerring to
him. However, when the deIamation reIers to a class oI persons, no
member oI that group
can sue unless he can prove that the words could reasonably be
considered to be reIerring
to him. There can be no law that a deIamatory statement made oI a
Iirm, or trustee, or the
tenants oI a particular building is not actionable, iI the words
would reasonably be

understood as published oI each member oI the Iirm or each trustee

or each tenant.
21
. It has been published i.e. communicated to at least one
person other than the
claimant.
Publication means making the deIamatory matter known to
some other third party and
unless that is done, no civil action Ior deIamation can lie in court.
Communication to the
plaintiII won`t count because deIamation is injury to the reputation
which consists in the
estimation in which others hold him and not a man`s own opinion oI
himselI. However, iI
a third party wrongIully intercepts and reads a letter sent to
the plaintiII it is not
deIamation. However when the deIendant knows that the letter
is likely to be read by
someone else and it contains some personal inIormation only
meant Ior the recipient,
18
!acobs v AchmalLz (1890) 62 L1 121
19
Le lanu v Malcolmson (1848) 1 PLC 637 668
20
(1910) AC 20
21
knupffer v London Lxpress newspapers LLd (1944) 1 All L8 493
then he will be liable. Under English law each publication is a
separate tort. A
communication to a husband or wiIe oI the charges against
the wiIe or husband
constitutes a suIIicient publication.
22
Also, in the eyes oI the law, husband and wiIe are
one person and the communication oI a deIamatory matter Irom
the husband to the wiIe
or vice versa is no publication. An injunction can be issued
against the publication oI a
deIamatory statement which is likely to injure the reputation oI
one oI the parties
involved as was done in Prameela Ravindran v. P. Lakshmikutty
Amma.
23
When the repetition oI the deIamatory matter is involved, the
liability oI the person who

repeats that deIamatory matter is the same as that oI the

originator, because every
repetition is a Iresh publication giving rise to a Iresh cause oI action.
Not only the author
is liable but the editor, printer or publisher would be liable in the
same way.
Chapter Three: Defences to the Tort of Defamation
The deIences to an action Ior deIamation are:
1. ustification by truth
In a civil action Ior deIamation, truth is a complete deIence.
However under criminal
law, it must also be proved that the imputation was made Ior the
public good. Under
the civil law, merely proving that the statement was true is a good
deIence the reason
being that 'the law will not permit a man to recover damages in
respect oI an injury
to a character which he either does no or ought not to possess. But
it is not necessary
to justiIy every detail oI the charge or general terms oI abuse,
provided that the gist oI
the libel is provided to be in substance correct, and that the detail,
etc., which are not
justiIied produce no diIIerent eIIect on the mind oI the reader
than the actual truth
would do.
24
The deIence is available even iI the statement is made maliciously
and iI
the statement is substantially true but incorrect in respect oI
certain other minor
particulars, the deIence will still be available. The truth oI
deIamatory word is
complete deIence to an action oI libel or slander though it is
not so in a criminal
trial.
25
It is not suIIicient justiIication to prove that there was some sort oI
rumour; it
must be proved that it was true.
26
The DeIamation Act, 1952 (England) provides that iI there are
several charges oI
deIamation and the deIendant is successIul in proving the truth oI
only some oI them,
the deIence oI justiIication might still be available iI the
charges not proved do not

materially injure the reputation. Although there is no speciIic

provision in India
regarding the above, the law is possibly the same as prevailing in
England.
2. fair and bona fide comment on a matter of public interest
It involves making Iair comments on matters oI public interest.
Thus legitimate
criticism is no tort; should loss ensue to the plaintiII, it would
be damnum sine
22
Wenman v Ash (1833) 13 C8 836
23
Al8 2001 Mad 223
24
er Lord uenman ln Cooper v Lawson (1838) 8 Au L 746 733
23
8aghunaLh uamodhar v !anardhan Copal (1891) 1 PC 133
26
WaLkln v Pall (1868) L83 C8 396
injuria. Matters oI public interest are not to be understood in a
narrow sense. For this
deIence to be available, the Iollowing essentials are required:
(i) It must be a comment, i.e., an expression oI opinion rather than
an assertion oI Iact
(ii) The comment must be Iair, i.e., must be based on the
truth and not on untrue or
invented Iacts
(iii) The matter commented upon must be oI public interest.
The word Iair embraces the meaning oI honest and also oI
relevancy. Mere
exaggeration or gross exaggeration would not make the
comment unIair.
27
The
comment to be Iair must be based on true Iacts and must be
objectively Iair in the
sense that any man however, prejudiced and obstinate could
have honestly held the
views expressed. II due to malice on the part oI the
deIendant, the comment is a
distorted one, his comment ceases to be Iair and he cannot
take such a deIence.
In Gregory V Duke oI Brunswic
28
k the plaintiII, an actor, appeared on the stage oI a
theatre but the deIendant and other persons in malice started
hooting and hissing and

thereby caused him to lose his engagement. This was held to

actionable and an unIair
comment on the plaintiII`s perIormance and the deIendants were
held to be guilty.
3. Privilege
There are certain occasions when the law recognizes that the
right oI Iree speech
outweighs the plaintiII`s right to reputation: the law treats
such occasions to be
privileged and a deIamatory statement made on such
occasions is not actionable.
Privilege is oI two kinds:
O bsolute Privilege
Certain statements are allowed to be made when the larger
interest oI the
community overrides the interest oI the individual. No action
lies Ior the
deIamatory statement even though it may be Ialse or malicious. In
such cases,
the public interest demands that an individual`s right to reputation
should give
way to the Ireedom oI speech. Absolute Privilege is recognized
in the
Iollowing cases:
(i) Parliamentary Proceedings
Articles 105 (2) oI the Indian Constitution provided that a
statement
made by a member oI either house oI Parliament in Parliament, and
the
publication by or under the authority oI any report, paper,
votes or
proceedings, cannot be questioned in a court oI law. A similar
privilege exists in respect oI state legislatures, according to
Article
194(2).
(ii) udicial Proceedings
No action Ior libel or slander lies, whether against judges,
counsels,
witnesses, or parties, Ior words written or spoken in the
course oI
proceedings beIore any court recognized by law, even though
the
words written or spoken were written or spoken maliciously
without
any justiIication or excuse and Irom personal ill will and anger
against
the person deIamed. Such a privilege also extends to
proceedings oI
the tribunals possessing similar attributes.

(iii)Military and Naval proceedings

27
Merlvale v Carson (1887) 20 C8u 173
28
(1843) 6 M C 203
Proceedings oI naval and military tribunals are absolutely
privileged.
Statements made beIore a naval or military Court oI Inquiry
by a
military personal are protected. Reports made in the course oI
military
or naval duty, such as adverse opinions expressed by one oIIicer oI
the
conduct oI another, are absolutely privileged, even iI made
maliciously
and without reasonable or probable cause.
29
(iv) State Proceedings
A statement made by an oIIicer oI the State to another in the course
oI
oIIicial duty is absolutely privileged Ior reasons oI public policy. Such
privilege also extends to reports made in the course oI
military and
naval duties. Communications relating to State Matters made
by one
Minister to another or by a Minister to the Crown is also
absolutely
privileged.
30
O "ualified Privilege
For communications made in the course oI legal, social or
moral duty, Ior
selI-protection, protection oI common interest, Ior public good
and
proceedings at public meetings, provided the absence oI
malice is proved.
Also, there must be an occasion Ior making the statement. To
avail this
deIence, the Iollowing things must be kept in mind:
(i) The statement should be made in discharge oI a public duty or
protection
oI an interest
(ii)
Or, it is a Iair report oI parliamentary, judicial or other
public
proceedings
(iii) The statement should be made without any malice.

The words oI the libel and the circumstance attending its

publication may
themselves aIIord evidence oI malice.
31
A privileged occasion in the present
context is an occasion when the person who makes a
communication has an
interest or a duty legal, social or moral to make it to the person to
whom it is
made has a corresponding interest or duty to receive it.

29
uawklns v Lord auleL (1869) L8 3 C8 94
30
ChaLLerLon v Secy of SLaLe for lndla ln Councll (1893) 2 C8
189
31
MoLl Lal 8aha v lndra naLh 8aner[ee (1909) lL8 36 Cal 907
Chapter four - Remedies for Defamation
Damages
The purpose oI damages in tort law is to compensate the victim and
seek to place him in the
position he would have been in had the tort not been committed
against him.
In deIamation proceedings the jury determines the amount oI
damages that the claimant shall
receive. As discussed in the introduction to this workbook awards
are notoriously high,
although evidence suggests they may be declining. In his evidence
to the Calcutt Committee
on Privacy and Related Matters (1991), Mr.Louis Blom-Cooper QC the
then Chairman oI the
Press Council Ielt that awards were high due to the attitude oI juries,
he reported, "they
reIlect the juries' disapproval oI the improper disclosure by
newspapers oI intimate details oI
an individual's private liIe".

The damages that may be awarded in deIamation proceedings may

be divided into two broad
categories, compensatory damages and exemplary damages.
Compensatory Damages
Compensatory damages seek as Iar as is possible to compensate or
'make-up' Ior the damages
suIIered by the claimant's reputation as a result oI the deIamatory
statement.
Within this category also Ialls damages to compensate the claimant
Ior the distress and
suIIering which has occurred as a result oI the deIamation. Where
the claimant's distress and
suIIering have been worsened by the deIendant's subsequent
conduct the award may be
increased to include 'aggravated damages', an example may be the
deIendant's continued
persistence oI a plea oI justiIication.
Compensatory damages may also include a 'speciIic' element to
compensate Ior any
particular, identiIiable pecuniary loss.
Exemplary Damages
These were succinctly described by the Law Commission (Report No.
247) as damages
which "aim to punish the wrongdoer". The existence oI a punitive
element within the civil
law is controversial. In 1995 the Law Commission issued a
consultation paper on the Iuture
oI exemplary damages, 28 oI respondents were in Iavour oI their
abolition. The Law
Commission ultimately Iavoured retention.
There is guidance in statute and case-law as to the directions to be
given to a jury to
determine the level oI damages, the powers oI appellate courts and
the general degree oI
damages, in relation to both compensatory and exemplary
damages. These matters are
discussed below.
The traditional attitude oI the Court oI Appeal to awards oI damages
which were appealed on
the grounds that they were excessive was not to interIere with the
jury's decision. In
Blackshaw v Lord |1983| QB 1 Fox LJ stated that the Court oI Appeal
"is not entitled to
seize the matter Irom the jury and set aside the award merely
because our opinion as to the

proper amount oI damages diIIers Irom that oI a jury". As such this

was the position when the
Court oI Appeal heard SutcliIIe v Pressdram |1991|. In that case a
concession was made as it
was held that an excessive award may be set aside iI it is
unreasonable in the sense that no
reasonable jury could have awarded such a sum in the absence oI a
misdirection, accordingly
any such award would be re-assessed by a new jury. In that case an
award oI 600,000 was
set aside and a new trial ordered.
Under section 8 Courts and Legal Services Act, 1990 the Court oI
Appeal's powers in relation
to cases appealed on the grounds oI excessive damages were
extended to include the power to
'substitute Ior the sum awarded by the jury such sum as appears to
the court to be proper'.
The Court oI Appeal used this power in Rantzen v Mirror Group
Newspapers Ltd |1994|
where an award oI 250,000 was considered excessive and an
award oI 110,000 was
substituted.. The Court oI Appeal considered how the jury should be
directed on assessing
damages and made several clear statements concerning:
Matters for consideration by the jury
Rantzen - matters
"It is to be hoped that in the course oI time a series oI decisions oI
the Court oI Appeal will
establish some standard as to what are, in the terms oI section 8 oI
the Act oI 1990 'proper'
awards. In the meantime the jury should be invited to consider the
purchasing power oI any
award which they may make. In addition they should be asked to
ensure that any award they
make is proportionate to the damage which the plaintiII |claimant|
had suIIered and is a sum
which is necessary to award him to provide adequate compensation
and re-establish his
reputation".
References to awards in previous cases
"We are not persuaded that at the present time it would be right to
allow reIerences to be
made to awards by juries in previous cases. Until very recently it
had not been the practice to

give juries other than minimal guidance as to how they should

approach their task oI
awarding damages and in these circumstances previous awards
cannot be regarded as
establishing a norm or standard to which reIerence can be made in
the Iuture. Awards made
by the Court oI Appeal in its exercise oI its powers under section 8 oI
the Act oI 1990 and
Ord. 58, r, 11(4) stand on a diIIerent Iooting. It seems to us that it
must have been the
intention oI the Iramers oI the Act oI 1990 that over a period oI time
the awards made by the
Court oI Appeal would provide a corpus to which reIerence could be
made in subsequent
cases".
References to awards in personal injury cases
"We see the Iorce oI the criticism oI the present practice whereby a
plaintiII |claimant| in an
action Ior libel may recover a much larger sum by way oI damages
Ior an injury to his
reputation, which may prove transient in its eIIect, than the
damages awarded Ior pain and
suIIering to the victim oI an industrial accident who has lost an eye
or the use oI one or more
oI his limbs. We have come to the conclusion, however, that there is
no satisIactory way in
which the conventional awards in actions Ior damages Ior personal
injuries can be used to
provide guidance Ior an award in an action Ior deIamation.
Despite...submissions to the
contrary it seems to us that damages Ior deIamation are intended at
least in part as a
vindication oI the plaintiII to the public.We thereIore Ieel bound to
reject the proposal that
the jury should be reIerred to awards made in actions involving
serious personal injuries."
The Court oI Appeal addressed these issues again in John v MGN Ltd
|1996| and made clear
statements on several matters, these represent current law:
Matters for consideration by the jury in assessing compensatory
damages
"The sum must compensate him Ior the damage to his reputation;
vindicate his good name;
and take account oI the distress, hurt and humiliation which the
deIamatory publication has

caused. In assessing the appropriate damages Ior injury to

reputation the most signiIicant
Iactor is the gravity oI the libel; the more closely it touches the
plaintiII's |claimant's|
personal integrity, proIessional reputation, honour, courage, loyalty
and the core attributes oI
his personality, the more serious it is likely to be. The extent oI
publication is also very
relevant: a libel published to millions has a greater potential to
cause damage than a libel
published to a handIul oI people".
Matters for consideration by the jury in assessing exemplary
damages
In summary the court held that in the case oI an award Ior
exemplary damages the jury must
be certain that the publisher lacked a belieI in the truth oI the
deIamatory statement and Iailed
to take any steps to address suspicion as to their truthIulness, and
that the compensatory
award was insuIIicient to contain a punitive element and to act as a
deterrent to others. Thus
in the case itselI an exemplary award was considered necessary
where a national newspaper
had Iailed to ascertain whether or not the claimant musician had in
Iact attended a party at
which the paper reported he was observed behaving in a such a way
that he may be medically
considered as suIIering Irom a Iorm oI the eating disorder bulimia.
References to awards in previous cases
"We wholly agree with the ruling in Rantzen that juries should not a
present be reminded oI
previous libel awards by juries. The awards will have been made in
the absence oI speciIic
guidance by the judge and may themselves by very unreliable
markers".
References to awards in personal injury cases
"The conventional compensatory scales in personal injury cases
must be taken to represent
Iair compensation in such cases unless and until those scales are
amended by the courts or by
Parliament. It is in our view oIIensive to public opinion and rightly so,
that a deIamation
plaintiII |claimant| should recover damages Ior injury to reputation
greater, perhaps a by a

signiIicant Iactor, than iI that same plaintiII |claimant|had been

rendered a helpless cripple or
an insensate vegetable. The time has in our view come when judges
and counsel should be
Iree to draw the attention oI juries to these comparisons".
CONCLUSION
The laws in place to counter the menace oI deIamation are both
satisIactory and reasonable
but in certain areas need to be made more stringent so as to
dissuade the celebrity crazy
media Irom wantonly publishing and broadcasting Iraudulent,
deIamatory matter in order to
make instant money. Thus the protection oI privacy and the
prevention oI press harassment is
also an important issue which needs to be redressed with the better
implementation oI laws
already existing.
Since no cause oI action survives the deIamed person`s death, it is
clear that reputation is
merely a transitory interest, which, by way oI the deIences available,
has to be balanced
against the public interest. Similarly Iair comments protect the press
when expressing their
views on the actions oI politicians, public servants and others in the
public eye, provided they
are true.
DeIamation does have signiIicance and a very strong one at that as
it protects a right which is
essential to Ior the members oI society to co-exist. Obviously, iI
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 oI balancing
the interest oI both the parties concerned. This debate on how to
achieve the correct balance
between the individual`s interest in his good name and Ireedom oI
speech is a vital attribute
oI democratic society. However, while trying to resolve that debate
via the development oI
the tort oI deIamation, the courts are hindered by the procedural
game which characterises
many libel actions, the unpredictability oI the jury, and the absence
oI developed torts oI
invasion oI privacy and breach oI conIidence. Thus more changes
need to be taken which do

away with the superIluous procedural games thus leaving behind

only the core oI the tort to
be implemented. However, the tort oI deIamation has an ancient
history and a capacity Ior
survival which shall outlive more topical concerns.

Bibliography
Books
David Price and Korieh Duodu, DeIamation: Law, Procedure and
Practise, Sweet and
Maxwell, Third Edition, 2004, London
Justice G.P. Singh, Ratanlal and Dhirajlal, The Law oI Torts, Wadhwa
and Company
Nagpur, Twenty-Fourth Edition, 2007, Delhi
Margaret Brazier and John Murphy, Street on Torts, Butterworths,
Tenth Edition, 1999,
London
R. K. Bangia, Law oI Torts, Allahabad Law Agency, Nineteenth
Edition, 2006, Haryana
S.K. Desai and Kumud Desai, Ramaswamy Iyer`s The Law oI Torts,
Seventh Edition,
1975, Bombay
W. V. H. Rogers, WinIield and Jolowicz on Tort, Sweet and Maxwell,
Seventeenth
Edition, 2006, London
SERVAI, Constitutional Law oI India, 3
rd
Edition, Vol. 1
Law Dictionary
Garner, Bryan A. Black`s Law Dictionary, 9
th

Edition, West Publications, p. 479

Cases
Cassidy V Daily Mirror Newspapers Ltd (1929) 2 K.B. 331
Douglas V Hello! Ltd (2005) EWCA Civ 595; (2005) 3 W.L.R. 881
Megarry J in Coco v AN Clark (Engineers) Ltd |1969| RPC 41, 47
Gregory V Duke oI Brunswick (1843) 6 M. and G. 205
Derbyshire County Council v Times Newspapers Ltd |1993| AC 534,
|1993| 1 A11 ER
1011, HL
Reynolds V Times Newspapers Ltd |1998| 3 A11 ER 961, CA
Mst. Ramdhara v. Mst. Phulwatibai, 1969 Jab. L.J. 582: 1969 M.P.L.J
482: 1970 Cr. L.J.
286 (M.P.)
D.P. Choudhary v. Manjulata, A.I.R. 1997 Raj.170
Hulton Co. V Jones (1909) 2 K.B. 444
Fanu v. Malcomson, (1848) 1 H.L. Cas. 637
Prameela Ravindran v. P. Lakshmikutty Amma, A.I.R. 2001 Mad 225
De Crespigny v. Wesllelley, (1829) 5 Bing 39
Noor Mohd. V. Mohd. Jiauddin, AIR 1992 MP 244, p. 249 (para 15
Hayword v. Thompson, (1981) 3 All ER 450(458)(CA).
Charleston v. News Group Newspapers Ltd., (1995) 2 All ER 313
Jacobs v. Achmaltz, (1890) 62 LT 121
Le Fanu v. Malcolmson, (1848) 1 HLC 637, 668.
KnupIIer v. London Express Newspapers Ltd. (1944) 1 All ER 495
Wenman v. Ash, (1853) 13 CB 836
Per Lord Denman in Cooper v. Lawson, (1838) 8 AD & E 746, 753
Raghunath Damodhar v. Janardhan Gopal, (1891) 1 H&C 153
Watkin v. Hall, (1868) LR3 QB 396
Merivale v. Carson, (1887) 20 QBD 175
Dawkins v. Lord Paulet, (1869) LR 5 QB 94
Chatterton v. Secy oI State Ior India in Council, (1895) 2 Q.B. 189.
Moti Lal Raha v. Indra Nath Banerjee, (1909) ILR 36 Cal 907
Online Resources
www.jurisonline.com
www.timesoIindia.com
www.cyberlaws.net
www.legalindia.com
www.manupatra.com