You are on page 1of 13

THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCES, KOLKATA

"DEFAMATION"
TORTS I

By:
Umang Poddar
214005

Who steals my purse steals trashbut he that filches from me my good name robs me of that
which not enriches him and makes me poor indeed
- Shakespeare in Othello

Page | 2

INTRODUCTION:
This problem broadly deals with the problem of defamation. There are two broad cateogries of
defamation i.e. libel and slander. The distinction is based primarily on the statement being in
permanent form which is seen as libel or in transient form which is slander. 1 While in many libel
is considered a crime and is actionable per se on the other hand in cases of slander special
damages must be shown2, in Indian context however both libel and slander are crimes. 3Thus, in
this case there is no need to determine whether this statement was a libel or slander.
In the problem at hand an actress, Safreena Kaif wants to file a suit against Saina Radukone,
Boom TV and Kamaal Dhamaal Khan . Saina Radukone was on the interview show, Toffee With
Taran. Upon being asked by the interviewer about what she thought of her contemporaries, she
told that most actress these days piggyback on their relationships with heroes to salvage their
careers. Then she referred to some intimate Ibiza photos and told that they might have been
planted into the media. Her reply statement was edited out by Boom TV and was not aired in
their final version. Subsequently, this segment was leaked on You Tube under the name of
Kammal Dhamal Khan and then got viral on other sites. Safreena Kaif felt insulted by this as she
was harassed by paparazzi when she was holidaying with her rumored boyfriend Besharam
Kapoor in Ibiza. She now wants to sue the actress along with Boom TV and Kamaal Dhamal
Khan.
This tutorial will focus on Safreena's course of action. Also any possible defences that may be
brought up against her during the proceedings of the suit are discussed.

ISSUES:

Whether the statement made by Saina Radukone were defamatory in nature?

1 Winfield.
2 Ibid.
3 Ibid.
Page | 3

Whether Boom TV can be held liable in this case?


Whether Kamaal Dhamaal Khan was liable for publication of the Toffee with Taran
footage?

Page | 4

SAFREENA'S ARGUMENTS
1. The Statement Made by Saina Radukone defames Safreena Kaif.
Defamation can be defined as the publication of a statement which reflects on a persons
reputation and tends to lower him in the estimation of right-thinking members of society
generally4 or tends to make them shun or avoid them.5
The elements which need to be proved in order to prove that a statement is defamatory are
(i)
(ii)
(iii)

The statement must be defamatory.


It must refer to the claimant, i.e. identify him
It must be published, i.e. communicated to at least one person other than the plaintiff.6

(i)

The statement must be defamatory:

The classic definition of defamatory statement is one which :

exposes plaintiff to hatred, contempt or ridicule.7


tends to injure his profession or trade, or
causes him to be avoided by his neighbors.8

In this case the statement made by Saina definitely lowers the reputation of Safreena Kaif among
the right thinking members of the society. Anyone who hears it in the first instance would
question the integrity of Safreena. It shows she has no moral values and her character would be
on shaky grounds. The following line: piggybacking on relationships with male co-stars

4 Sim v Stretch (1936) 52 T.L.R. 669, per Lord Atkin.


5 Winfield and Jolowicz on Tort, Sweet and Maxwell, 17th Edn.
6 Ibid.
7 Parmiter v. Coupland (1840) 6 M & W 105, 108; 151 ER 340.
8 Ratanlal & Dhirajlal The Law of Torts, Justice G P Singh, Butterworths Wadhwa, 26 th edition, pg 281.
Page | 5

disparages Safreena's image where a person would think she has loose professional ethics. 9 The
tests for proving a statement defamatory are met in this case. Thus

Saina's statement is

defamatory.
(ii)

The statement must refer to the plaintiff:

The plaintiff need not be named, for the issue is whether the statement may be understood by
reasonable people as referring to the plaintiff. It is sufficient if on the evidence it can be shown
that the imputation was directed towards a particular person.10The test for determining if a
statement to a plaintiff is whether ordinary sensible reader, having knowledge of the special
circumstances would believe that it referred to the plaintiff, this is a case of innuendo.11
In the present case, the general public, from the statement gets an idea that it referred to Safreena
since her Ibiza encounter was pretty well known. It is defamatory in the ordinary and natural
meaning whereby a viewer , only by his general knowledge would get to know the true meaning
of the statement.12
(iii)

The statement was published:

The statement made by Saina Radukone can safely be said to have been published since it was
communicated to some person other than her13, that was Taran Tohar. In Pullman v. Hill14 also it
was established that "Publication is the making none the defamatory matter after it has been
written to some person other than the person of whom it is written"

9 Mount Cook Group v. Johnstone Motors Ltd. (1990) 2 N.Z.L.R. 488


10 Raman v. Govinda Nair, (1963) 1 Cr LJ 535: 1962 Ker LT 796: 1962 Ker LT 538.
11 Morgan v. Odhams Press Ltd. [1971] 2 All ER 1156.
12 Jones v. Skelton (1963) 1 W.L.R. 1362 at 1370-1371, per Lord Morris.
13 Barrow v. Lewellin (1615) Hob. 62.
14 Pullman v. Hill & Co; CA 1891.
Page | 6

The publication was a direct and foreseeable consequence of Saina's conduct and she should
reasonably have anticipated publication.15
As supported by the fact that the originator would be held responsible for damages resulting
from repetition where the repetition was a probable consequence of his act 16, Saina Radukone
should have foreseen that her statement would be published since the show was supposed to be
broadcasted on national television.
2. Boom TV can be held liable in this case.
Boom T.V. can be held liable for playing a part in the publication of the footage. It has been
stated that whoever intentionally or negligently takes part in or authorize the publication of
defamatory material are potentially as responsible for publication as if they were the original
authors.17 Media houses can be held liable for negligence if any omission on their part in
defamation leads to injury to private individuals.18.
Negligence is the breach of a duty of care, caused by omission to do something which a
reasonable man would do, or caused by an act which a reasonable man would not do. 19 There are
therefore, three essential components of the tort of negligence, i.e. a duty of care, breach of that
duty, and injury that is caused by that breach.20
Boom TV in this case owed a duty of care to Safreena as they themselves had anticipated that the
statement contained defamatory material and could harm her reputation. Though they didn't air
15 Weld- Blundell v. Stephens [1920] AC 956, 975-6, 983, 986-91 ; Coulthard v. South Australia (1995)
63 SASR 531, 555-6; seen in Internet and defamation.
16 Ratanlal & Dhirajlals The Law of Torts, 26th edition, LexisNexis Buttersworth Wadhwa Nagpur, pg 305.
17 Webb v. Bloch (1928) 41 CLR 331, 363-6.
18 Gertz v. Robert Welch Inc, 418 US 313.
19 Poonam Varma v. Ashwin Patel (1996) 4 SCC 332
20 Jacob Mathew v. State of Punjab (2005) 6 SCC 1
Page | 7

Saina's statement, they breached that duty by not taking adequate measures which is clear by the
fact that it somehow got leaked on the Internet. Thirdly there has been injury caused to
Safreena's reputation because of the leaked video. She underwent mental anguish and was
gravely insulted by the same, not to mention her public image that was ruined because of this.
Therefore all the three points establish that there was negligence on Boom TV's part.
So, failure by Boom T.V. who was authorized and could have removed or amend defamatory
matter which is work of another, amounts to publication by them.21 Therefore, Boom TV can be
held liable even if they didn't intend the publication.22
All those who lend a hand in its publication at one stage or the other are liable for spereate cause
of action.23
3. Kamaal Dhamaal Khan was liable for publication of the Toffee with Taran footage.
Liability extends in an Internet context to person who played some part in the creation or
preparation of defamatory material ,which in this case is uploading of the content. 24
Intermediaries of Internet publications, who play no part in the creation or preparation of
defamatory material, but are involved in making that material available to Internet Users, might
be considered publishers for that material.25
Even if a person is not the author, writer or printer of the defamatory material, or in any way
connected to it, he may be held liable for its publication.26 For this three things must be satisfied:
first he must be aware that the statemtent is defamatory, second he must deliver it to some third
21 Byrne v Deane [1937] 1 KB 818, CA.
22 Vizetelly v Mudie's Select Library Ltd [1900] 2 QB 170.
23 V. Mitter page 108.
24 See eg Ezzo V. Grille [2004] NSWSC 522.
25 Internet and Defamation.
26 Mitter 99.
Page | 8

person and thirdly some third person should come to know about the content. Here in this case, it
is highly probable that he knew that the statement was defamatory. The rest two conditions have
been clearly satisfied.
Also, Kaikhusru Naoroji Kabraji v. Jehangir Byarmji Muzban established that repetition of a
defamatory material amounts of fresh publication, and hence, leads to a distinct cause of action. 27
Thus he is liable for the publication of the defamatory statement.
POSSIBLE DEFENCES:
BY SAINA RADUKONE:
Saina Radukone can take the defence that the statement was not defamatory in nature.
It is an established principle of law that to prove defamation using innuendo, special facts and
circumstances must not only be present but must also be known to the person to whom it is
published.28 There seems to be no substantive evidence to prove that Mr. Tohar was aware of any
special circumstances that would make Ms. Radukone's words convey any specific meaning.
The defence of fair and bonafide comment can also be used by Saina Radukone. To establish a
successful defense of fair comment the following must be satisfied:

The matter must be of public interest


It must be an observation or inference from facts, not an assertion.
It must be free from malice.29

In the present case the following requisites have been satisfied since it was a matter of public
interest keeping in mind that it dealt with the class of actresses of Indian cinema. This comment
was made with a view of informing the people about the prevalent practices in the Bollywood
industry. Also, it was just an inference and not an assertion since Saina spoke about her thoughts
27 Kaikhusru Naoroji Kabraji v Jehangir Byramji Murzban and another ILR 14 Bom (1889-90) 532-40;
Cutler v. McPhail [1962] 2 Q.B. 292.
28 J. Karnik v. Bharat Airways (1973) 1 Lab IC 100(104) (Cal).
29 Winfield and Jolowicz on Torts, p.553
Page | 9

and beliefs. A comment is expressed with malicious motive when it is made to injure someone. 30
Here in this case the comment can be said to be made without the intention of injuring the
reputation of Safreena as she didn't explicitly refer to her and just made a general remark.
The claim of fair comment can be countered by the plaintiff by showing that the private life of a
public performer31 was in question and therefore it is outside the ambit of the defence of fair
comment.
It has been also observed that if the words disparage the plaintiff in the eyes of a particular class
or group of persons that is not enough, they must have that effect in the eyes of persons
"generally".32 In this case the lowering of reputation would happen in the eyes of the "particular
class of people" who knew about the Ibiza incident.
Saina might also say that her comment referred to a class of persons, which is not actionable .33 A
defamatory material must be read together wholly,not merely parts of it 34
BY BOOM TV:
Boom TV can claim that they cannot be held liable as the publication was not due to negligence
on their part but due to the wrongful act amounting to breach of copyright committed by a third
party, Kamaal Dhamaal Khan35. Lord Esher clearly laid down in Pullman v. Hill 36 that any
unintentional or inadvertent publication is not sufficient publication if it has been caused by the
30 Merivale v. Carson (1887) 20 QBD 275, 281-2, 285.
31 London Artists Ltd. v. Littler, (1968) 1 All ER 1075.
32 WINFIELD AND JOLOWICZ ON TORT, SWEET AND MAXWELL, 17TH EDN. PG. 399.
33 Knupffer v. London Express Newspapers Ltd. , 1944 AC 116 (124): (1944) 1 All ER
495.
34 Australian Newspaper & Co v. Bennett [1894] AC 288.
35Per Lord Esher in Pullman v. Hill (1891) 1 QB 24 (527).
36 Supra 10.
Page | 10

wrongful act of some third person37, as is the case here, where Kamaal Dhamaal Khan is
responsible for the wrongfully publishing of the defamatory statements online.
In defamation proceedings a person has a defence if he shows that he took reasonable care in
relation to its publication.38Therefore, it can also be contended by Boom TV that they took
enough precautionary measures to make sure that the defamatory material was not published as
they edited out Saina's statement from the final version that was aired on television. The
publication of this statement was not in their control and thus they should not be held liable.
There was an unauthorised interception of the video which Boom TV could not have reasoably
foreseen. 39
BY KAMAAL DHAMAAL KHAN:
Kamaal Dhamaal Khan may can invoke the defence of innocent dissemination. He was neither
the author, printer, nor original publisher of the libel 40. In the defence of innocent dissemination,
the publisher can escape the charge of defamation as his dissemination of the defamatory matter
was innocent, and he was completely unaware of the defamatory nature of the same.41
Lord Romer in Vizetelly v. Mudies Select Library42 established the criteria to qualify for this
defence:
1. the person did not know that the publication complained of contained a libel;
2. that he had no grounds to suppose that it was likely to contain defamatory matter; and
3. the absence of knowledge was not due to any negligence on the his part.
37 V. Mitter, Law of Defamation & Malicious Prosecution, Universal Law (Delhi, 12th Edition 2012).
38 John Murphy, Street on Torts, Oxford University Press, 11th Edn.
39 Internet and Defamation.
40 Morrison v. Ritchie & Co., (1902) 2 F 615. (Ct of Sess).
41 Weldon v. Times Book Co. Ltd (1911) 28 TLR 143.
42 [1900] 2 QB 170.
Page | 11

Taking into account the above criteria required for a successful plea of innocent dissemination
the defendant might find hard to prove that all three of the above conditions were fulfilled by
him.
Kamaal Dhamaal Khan can also argue that the publication of the video was under the name of
Kamaal Dhamaal Khan thus there is no evidence that it was published by him. There is a great
possibility that another user under the same name might have posted the video, judging by the
fact the widespread malpractices prevalent in the cyber world such as hacking etc.
CONCLUSION:

The court will probably hold Saina liable for defamation. Her plea of fair comment would

fail as there was clearly a comment on the personal life of an artist.


As in case of Boom TV, the court might find the channel liable as it didn't take
precautionary measures to curtail the defamatory footage and it was published by a third

party, i.e. Kamaal Dhamaal Khan.


For Kamaal Dhamaal Khan, he must prove that the three points mentioned above for
innocent dissemination were satisfied, or he must prove that the video was not posted by
him but under his name only. Depending on how the facts of the case come out, the court
might rule accordingly.

Probably all three of them will be liable as the author, publisher and printer all are jointly liable
for publication, even though one or more of them have been quite ignorant that they were
publishing defamatory material.43

BIBLIOGRAPHY:
Compulsory Readings:
1. John Murphy, Street on Torts, Oxford University Press, 11th Edn.
2. Winfield and Jolowicz on Tort, Sweet and Maxwell, 17th Edn.
43 Mitter page 108.
Page | 12

3. Ratanlal & Dhirajlals The Law of Torts, 26th edition, LexisNexis Buttersworth Wadhwa
Nagpur.
Additional Readings:
1.

V. Mitter, Law of Defamation & Malicious Prosecution, Universal Law (Delhi, 12th
Edition 2012).

2.
3.
4.
5.

Gatley on Libel and Slander edited by Patrick Milmo and W H V Rogers, 11th ed.
Matthew Collins , The Law of Defamation and the Internet, 2nd ed.
Ramaswamy Iyer's, The Law Of Torts, A Lakshmiath M Sridhar, Tenth Edition.
Markesinis and Deakin's Tort Law, Sixth Edition by Simon Deaking, Angus Johston,

6.

And Basil Markesinis, Clarendon Press, Oxford.


Defamation Law, Procedure and Practice , Third Edition, David Price and Korieh
Duodu, London Sweet & Maxwell 2004.

Page | 13