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TORT

Topic: - ‘RIGHT TO REPUTATION IS ACKNOWLEDGED AS AN INHERENNT PERSONAL RIGHT OF EVERY PERSON AS A PART OF RIGHT TO OF PERSONAL SECURITY’.---ANALYSE THE CONCEPT OF DEFAMATION

Assistant Professor

MS. RUPA PRADHAN

TORT Topic: - ‘RIGHT TO REPUTATION IS ACKNOWLEDGED AS AN INHERENNT PERSONAL RIGHT OF EVERY PERSON

NAME: BONNY BASAK

ROLL NO.: 61 COURSE:LL.B. 3 YEARS (1 st SEMESTER)

TORT Topic: - ‘RIGHT TO REPUTATION IS ACKNOWLEDGED AS AN INHERENNT PERSONAL RIGHT OF EVERY PERSON

INDIAN INSTITUTE OF LEGAL STUDIES

2016

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ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I place on record my sincerest thanks to Ms RUPA PRADHAN, Assistant Professor, Indian Institute of Legal Studies, for his guidance, sound advice and affectionate attitude during the course of the study work.

There is no hesitation in saying that she molded raw clay into whatever we are through his incessant efforts and keen interest shown throughout the academic pursuit. It is due to his patient guidance that I have been able to complete the task.

I would also thank the Indian Institute of Legal Studies Library for the wealth of information therein. I express my regards to the Library staff for cooperating and making available the books for this project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me throughout the project work.

Date:

_____________________ BONNY BASAK LL.B (1 st Semester) Roll No: 61

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TABLE OF CONTENTS ___________________________________________________________

Research

Methodology……………………………………….

………………………………

..

……………….3

- 4

  • A. Aims

and

Objectives…………………………………………………………………… ..

………………3

  • B. Statement

of

Problem……………………………………………………………………….

………… 3

..

  • C. Research Hypothesis……………………………………………………. …………………….…………3

  • D. Research

Questions……………………………………………………….….

…………… ……………3 ..

  • E. Methodology of Research……………………………………………. ……………….………………4

  • F. Scope

 

and

 

Limitations…………………………………………………………………… ..

……………4

  • G. Literature………………………………………………………… ..

Review

of

 

…………….……………4

 
  • H. Mode

 

of

 

Citation…………………………………………………………………………….

………………4

Table

of

Cases………………………………………………………………………………………………

.……………….5

Chapter

1:

Introduction……………………………………………………………………………………

…………6

Chapter

2:

Slander

&

Libel

…………………………………………………………………………………………7

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Case………………………………………………………………………………

………………………7

Youssoupoff v. M.G.M. Pictures Ltd

Sonakka Gopalagowda Shanthaveri v. U.R. Anantha Murthy and Ors

Chapter 3: ……………………… ..

………………………………………………………………………………………… 8-10

..

Criminal

Defamation………………………………………………………………………

……….8

Essentials of

Defamation………………………………………………………………………

 

..

9

Chapter

4:

Defenses……………………………………………………… ..

…………………………………………….11-12

Chapter

5:

Conclusion………………………………………………………………………………………

……………….13

BIBLIOGRAPHY………………………………………………………………………………

……14

RESEARCH METHODOLOGY ___________________________________________________________

A. AIMS AND OBJECTIVES

The aims and objectives of this project are to understand the concept and the principle of Good

faith in The concept of Defamation. One of the aims of the project is to have a comparative study

on the provisions relating to Concept of Defamation.

B. STATEMENT OF PROBLEM

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Under criminal law says only libel has been recognized as an offence. Slander is

no offence. Why under English law slander has no offence? Why slander is only civil wrong in

England?

  • C. RESEARCH HYPOTHESIS

Research in common parlance refers to a search for knowledge. It is an original contribution to

the existing stock of knowledge making for its advancement Defamation is a tool to protect the

reputation of a individual and to regain his estimation on the eyes of other the Tort of Defamation

is highly misuse in India.

  • D. RESEARCH QUESTIONS

Based on the statement of problem and research hypothesis aforementioned, the following

research questions have been formulated:

  • 1. How is ‘defamation’ defined under Indian laws?

  • 2. How is criminal defamation law placed in the IPC?

  • 3. What is the procedural requirement for filling a criminal defamation case and how is the

law set into motion?

  • 4. How does defamation as a civil wrong work?

  • 5. How is a civil defamation case institute

E. METHODOLOGY OF RESEARCH

“Methodology” implies more than simply the methods the researcher used to collect data.

It is often necessary to include a consideration of the concepts and theories which

underlie the methods. The methodology opted for the study on the topic is Analytical and

Doctrinal. Doctrinal research in law field indicates arranging, ordering and analysis of the

legal structure, legal frame work and case laws by extensive surveying of legal literature

but without any field work.

  • F. SCOPE AND LIMITATIONS

The scope of the study refers to the parameters under which the study is operating. An extensive

attempt has been made in order to search for the quest with regard to the topic under this paper.

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Though there is ample scope to highlight on the principle of good faith and duty of disclosure

according to different Statutes, but the scope of research work is limited to a particular area in

search of answer. Therefore, the researcher confines to the materials which are available and

widely accepted.

  • G. REVIEW OF LITERATURE

The researcher while writing this project has taken recourse to various primary and secondary

sources. Primary sources would include various laws. Secondary sources would include books

and articles, reports and websites.

  • H. MODE OF CITATION

A Blue Book system of citation has been adopted throughout the project.

TABLE OF CASES

Youssoupoff v. M.G.M. Pictures Ltd Sonakka Gopalagowda Shanthaveri v. U.R. Anantha Murthy and

Ors Arvind Kejriwal vs. Arun Jaitley Ram Jethmalani v. Subramaniam swamy Newstead v. London Express Newspapers Ltd. Mahendra Ram vs. Harnandan Prasasd

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CHAPTER- 1

INTRODUCTION

First talk about the “Tort”. The word tort has been derived from the Latin term

‘tortum’ , which means ‘to twit’. Tort is breach of some duty independent of contract which has

caused damages to the plaintiff giving rise to civil cause of action and for which remedy is

available. If there is no remedy it cannot be called a tort because the essence of tort is to give

remedy to the person who has suffered injury.

The defamation laws exist to protect a person, business, group, government, religion or

nation’s reputation from harm. A defamatory statement come in two forms: a permanent

defamatory statement called libel {written or recorded (such as a film) in some other way} and

non permanent defamatory statement called Slander (unrecorded speech and gestures). In

England libel is a crime but slander is not. Slander is only a civil wrong in England. Criminal law

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in India does not make any such distinction between libel and slander. Both libel and slander are

criminal offences under section 499, I.P.C. The concept is very old and is backed up by various

judicial pronouncements.

A person who defames anther may be called a “defamer”, “famacide”, “libeler” or

“slanderer”.

Defamation is injury to the reputation of a person. If a person injuries the reputation of

another, he does so at his own risk, as in the case of an interference with the property. A man’s

reputation is the property, and if possible, more valuable, then other property 1 .

1. Dr. R.K Bangia, Law of Torts, Twenty-Third Edition p.146

CHAPTER-2

Defamaton: The Defamation statement can be made in the following ways:

Slander: The common law origins of defamation lie in the torts of “slander” (harmful

statement in a transient form, especially speech), each of which gives a common law right of

action.

“Defamation” is the general term used internationally, and is used in this article where it

is not necessary to distinguish between “slander” and “libel”. Libel and slander both require

publication. The fundamental distinction between libel and slander lies solely in the form in

which the defamatory matter is published. If the oending ma-terial is published in some fleeting

form, as by spoken words or sounds, sign language, gestures and the like, then this is slander.

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Libel: Libel is defined as defamation by written or printe dwords, pictures, or in any form

other than by spoken words or gestures. The law of libel originated in the 17 th century in

England. With the growth of publication came the growth of libel and development of the tort.

In a cinema film, not only the photographic part of it is considered to be libel but laso the

speech which synchronizes with it is also a libel. In Youssoupoff v. M.G.M. Pictures Ltd

..

,

in

the course of a film produced by an English Company called Metro Goldwyn Mayer Pictures

Ltd., a lady, Princess Nathasa, was shown as having relations of seduction or rape with the man

Rasputin, a man of the worst possible character. 2

In Sonakka Gopalagowda Shanthaveri v. U.R. Anantha Murthy and Ors 3 . The

Karnataka High Court adjudicated a claim for restraining republication of an allegedly

defamatory account of politician Gopala Gowda, as well as exhibition and screening of a film

based on the novel. The plaintiffs claim of merely one rupee was encouraged by the Court - “loss

of reputation and consequent loss of character and dignity in one’s life cannot by compensated in

terms of money”.

2. Dr. R.K Bangia, Law of Torts, Twenty-Third Edition p.146

3. AIR 1988 Kar. P. 255

Criminal defamation 4 :

CHAPTER-3

Many nations have criminal penalties for defamation in some situations, and different

conditions for determining whether an offense has occurred. ARTICLE 19, a free expression

advocacy group, has published global maps charting the existence of criminal defamation law

across the globe, as well as showing countries that have special protections for political leaders

or functionaries of the state. It should be noted that there can be regional statutes as well that

may differ from the national norm. For example, in the United States, defamation is generally

limited to the living. However, there are ten states (Colorado, Idaho, Georgia, Kansas, Louisiana,

Nevada, North Dakota, Oklahoma, Utah and Washington) that have criminal statutes regarding

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defamation of the dead. The Organization for Security and Co-operation in Europe (OSCE) has

also published a detailed database on criminal and civil defamation provisions in 55 countries,

including all European countries, all member countries of the Commonwealth of Independent

States, the United States and Canada. Many nations have criminal penalties for defamation in

some situations, and different conditions for determining whether an offense has occurred.

ARTICLE 19, a free expression advocacy group, has published global maps charting the

existence of criminal defamation law across the globe, as well as showing countries that have

special protections for political leaders or functionaries of the state. It should be noted that there

can be regional statutes as well that may differ from the national norm. For example, in the

United States, defamation is generally limited to the living. However, there are ten states

(Colorado, Idaho, Georgia, Kansas, Louisiana, Nevada, North Dakota, Oklahoma, Utah and

Washington) that have criminal statutes regarding defamation of the dead. The Organization for

Security and Co-operation in Europe (OSCE) has also published a detailed database on criminal

and civil defamation provisions in 55 countries, including all European countries, all member

countries of the Commonwealth of Independent States, the United States and Canada.[16] In a

2012 ruling on a complaint filed by a broadcaster who had been imprisoned for violating

Philippine libel law, the United Nations Commission on Human Rights held that the

criminalization of libel violates freedom of expression and is inconsistent with Article 19 of the

International Covenant on Civil and Political Rights.

CASE: Arvind Kejriwal vs. Arun Jaitley 5

Judgement:

The Supreme Court today dismissed Delhi Chief Minister Arvind

Kejriwal’s plea seeking stay on trial court proceedings in a criminal defamation case filed by

Finance Minister Arun Jaitley. A bench of Justices P C Ghose and U U Lalit, while dismissing

the plea, said that under the Evidence Act, a judgement given in a civil proceeding is not binding

on the criminal case.

Essentials of Defamation: An obvious question arises about essentials of defamation under

Indian Law. Because, whenever defamation is agitated before any Civil Court, the proof has to

travel around certain essentials. Therefore, it becomes necessary to try to enlist those essentials

or requisites constituting defamation as civil wrong. There are in general four essentials of the

tort of defamation, namely-

  • 1. The Statement must be defamatory

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  • 2. The defamatory statement must be understood by right thinking or reasonable minded

persons as referring to the plaintiff.

  • 3. The statement must be published

  • 1. The Statement must be defamatory:

Defamatory statement is one which tends to injury the reputation of the plaintiff.

Defamation statement is the publication of a statement which tends to lower a person of right

thinking members of society generally, or which to make them shun or avoid that person. An

imputation which exposes one to disgrace and humiliation, ridicule or contempt is defamatory.

Ram Jethmalani v. Subramaniam swamy, while a Commission of inquire was

examining the facts and circumstances relating to the assassination of late Shri Rajib Gandhi, the

defendant, ata après confence, alleged that the then Chief Minister of Tamil Nadu prior

information that the LTTE cadre would make an assassination bid on the life of late Shri Rajib

Gandhi. The plaintiff

wsa engaged as a senior council the then Chief Minister of Tamil Nadu. In

discharge of his professional duties, the plaintiff cross-examined the

defendant. During the proceedings, the defendant in the written conclusive

submission, alleged that the plaintiff had been receiving money from LTTE, a

banned organization. The statement made by the defendant was held to be

ex. facie defamatory. It ws held to be case of exceeding the privilege and

that by itself was held to be evidence of malice. The statement made bythe

defendant against the plaintiff wsa held to defendant was well established.

Counting the professional standing of the plaintiff and his stature in social

life, the Delhi High Court awarded damages of Rs. 5 lacs.

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The defamatory statement must be understood by right thinking or

reasonable minded persons as referring to the plaintiff:

In an action for defamation, the plaintiff has to prove that the statement of which he

companies referred tohim. It is immaterial that the defendant did not intend to defame the

plaintiff. If the person to whom the statement was published could reasonable infer that the

statement referred to the plaintiff, the defendant is nevertheless liable.

3. The Statement must be published:

Publication means making the defamatory mater known to some person other that the

person defamed, and unless that is done, no civil action for defamation lies. Communication to

the plaintiff himself Is not enough because defamation is injury to the reputation and reputation

consists in the estimation in which others hold him and not a man’s own opinion of himself.

Dictating a latter to one’s typist is enough publication. Sending the defamatory letter to the

plaintiff in a language supposed to be known to the plaintiff I no defamation. if a third person

wrongfully reads a letter meant for the plaintiff, the defendant is not liable.

Mahendra Ram vs. Harnandan Prasasd, the defendant sent a defamatory latter writing

in Urdu and therefore the same was read over to him by a third person. It ws held that the

defendant was not liable unless it was proved that at the time of writing the letterin Urdu

scribd,the defendant knew that the Urdu scribd was not known to the plaintiff and it would

necessitate reading of the letter by a third person.

  • 5 . Dr. R.K Bangia, Law of Torts, Twenty-Third Edition p.150

DEFENCES: 6

CHAPTER-4

The truth of defamatory is a complete defense to an action of libel or slander. It

would make no difference in law that the defendant had made a defamatory statement

without any belief in its truth, if it turned out afterwards to be true when made. If the

matter is true the purpose of motive with which it was published is irrelevant. If A says

that B told him that C was guilty of adultery, in a suit by C against A, A cannot succeed

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by merely proving that in truth B told him like that but by proving that C was in fact

found guilty of adultery.

It is enough if the statement though not perfectly accurate is substantially true, e.g. a

statement that the plaintiff was imprisoned for three weeks for travelling in a train

without ticket, when in reality he was imprisoned for three weeks for travelling in a train

without ticket, when in reality he was imprisoned for two weeks.

If there is a gross exaggeration, the plea of justification will fail, e.g. to say that a person

has been suspended for extortion three times when he has been suspended only once.

A fair and bona fide comment on a matter of public interest is no libel. Thus, legitimate

criticism is no tort. Matters of public interest are not to be understood in a narrow sense.

They include matters in which the public is legitimately interested as also matters in

which the public is legitimately concerned. The word ‘fair’ embraces the meaning of

honest and also of relevancy.

‘Privilege’ means that a person stands in such relation to the facts of the case that he is

justified in saying or writing what would be slanderous or libelous in any one else.

Privilege is of two kinds – Absolute and Qualified

A statement is absolutely privileged when no action lies for it even though it is false and

defamatory, and made with express malice. On certain occasions the interests of the

society require that a man should speak out his mind fully and frankly, without thought or

fear of consequences, e.g. in Parliamentary proceedings or in the course of judicial,

military, naval or state proceedings. To such occasions, therefore, the law attaches an

absolute privilege.

A statement is said to have a qualified privilege when no action lies for it even though it

is false and defamatory, unless the plaintiff proves express malice. In certain matters the

speaker is protected if there is absence of malice.

Where the defendant sets up the plea that the publication had a qualified privilege, the

plaintiff must prove the existence of express malice, which may be inferred either from

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the excessive language of the defamatory matter itself or from any facts which show that

the defendant was actuated by some indirect motive.

CHAPTER-5

CONCLUSION

The law of defamation protects your right to your good name. If a person makes a false statement

to another to your discredit you can sue for damages. But because of other competing rights in

our society, such as free speech and fair comment, there are cases where even the most

defamatory statement will not give rise to an award of damages.

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Our judiciary places great importance on the protection of reputation. U.S. judicial

developments place the Internet user, whether they are online service providers, companies, or

organizations hosting bulletin boards on their home pages, in a tedious position. By exercising

responsibility and attempting to regulate the nature of the content, they will be labelled a

publisher and thus vulnerable to a libel suit. Alternatively, if they take no action, while they may

escape liability as a publisher, under Canadian laws they may still incur liability for negligence.

However, for the Canadian perspective, we must remember that the reported decisions on the

issue of the publisher/distributor characterization are from U.S. and U.K. jurisprudence. For that

matter

Prodigy

is of a lower court on a summary judgment motion and is not binding in Canada.

However, with the recent

Lunney

and

Godfrey

decisions the Canadian situation is unclear.

Systems operators who take a "willful blindness" approach may get a rude surprise. In Canadian

law every sale or delivery of a libelous document is considered a publication. In the example of a

printed publication, everyone from the author to the retailing bookstore is potentially liable. If

this principle is applied to electronic media, liability would fall on the ISP, every Internet site

which receives and passes on the message in a newsgroup, as well as everyone who forwards the

message.

BIBLIOGRAPHY

A. PRIMARY SOURCES

I.

STATUTES:

1. LAW OF TORT

B. SECONDARY SOURCES

I. BOOKS

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Dr. R.K. Bangia, Law of Torts, Allahabad Law Agency

II.

WEBSITES