Defamation Laws - Comparative Public Law

Page 1 of 14 Svkm’s Kirit P.
Mehta School Of Law (Comparative Public Law)
Conceptual Analysis of defamation and legislative position in India and UK
SUBMITTED BY- PRANJALI DIXIT

SAP ID- 81072100023
BRANCH- LLM (CONSTITUTIONAL LAW)
SUBJECT- COMPARATIVE PUBLIC LAW
SUBMITTED TO - Mr. Anant Vijay

(FACULTY COMPARATIVE PUBLIC LAW)
KIRIT P. MEHTA SCHOOL OF LAW, NMIMS.

Page 2 of 14 Svkm’s Kirit P. Mehta School Of Law (Comparative Public Law)
ACKNOWLEDGEMENT
I would like to extend my special thanks to my subject teacher Mr. Anant Vijay as well as our
respected Dean Dr. Alok Misra who gave me this opportunity to attempt this Article on the topic
“Conceptual Analysis of defamation and legislative position in India and UK”, which also helped
me in clarifying and diversifying my knowledge on this aspect because of which I understood this
topic so well. I am really thankful to all who helped me completing my project.
Pranjali Dixit
LLM (Constitutional Law)
SAP ID- 81072100023

Table of Contents
Sr. No. Content

1. Cover Page & Topic Name
2. Acknowledgment
3. Table of Contents
4. Chapters
5. 1. Introduction
6. 2. Legislative position in India
7. 3. Legislative position in UK
8. 4. Study of relevant case laws
9. 5. Conclusion & Bibliography

CHAPTER 1
INTRODUCTION
Defamation cases often ‘lift the carpet’ on things people want kept out of public view. It is fair to
say that the media thrives on gossip stories about celebrities, trying to find any given opportunity
to expose the lives of famous people and the royals.
Publication of false and defamatory statements about another person without lawful justification. A
statement made without just cause/excuse whereby he suffers injury to his reputation, not to his
self-esteem. It degrades a person, expose him to contempt, ridicule or public hatred, or to prejudice
him in his way of his office, profession, trade.
There are two types of defamation: libel, when the defamatory statement is in writing (also including
broadcasting); and slander, when it is spoken. Material is libellous where it is communicated in a
permanent form or broadcast, or forms part of a theatrical performance. If the material is spoken or
takes some other transient form, then it is classed as slander. Whether material is defamatory is a
matter for the courts to determine. If it is a publication which is in a permanent form, such as a
book, magazine or fi lm, then it is libel. Here follows a summary of the definition of defamation as
established in common law:
a) An imputation which is likely to lower the person in the estimation of right-thinking people;
b) An imputation which injures a person’s reputation, by exposing them to hatred, contempt or
ridicule;
c) An imputation which intends to make a person be shunned or avoided.
The statement has to lower the claimant in the estimation of right- thinking members of society. If
the statement affects only a limited group but not society in general then it would not be defamatory.
An insult or vulgar abuse is not considered to be defamatory because generally it is not considered
likely to lower the reputation of the claimant in the estimation of right- thinking members of society.
Publication (libel) Words need to be published to a third party. Section 5 of the Defamation Act
2013 provides a defence to persons who are not authors, editors or commercial publishers of
websites if they take reasonable care in the publication and did not know or had any reason to
believe that what they had inadvertently contributed to the publication (online) of a defamatory
statement. This covers printers, distributors, online device providers etc. An internet service
provider (ISP) who provides news content is not deemed to have behaved in a defamatory manner.
If, however, once notified of the offending material the provider fails to remove the defamatory
material (words or phrases), then the ISP is deemed not to have acted reasonably and the above
defence would then not be available.
Identification
The claimant must show that the defamatory statement referred to him, which is normally not too
difficult. If the claimant is not identified by name, then he has to show that the words complained
of are understood by some readers to be referring to him.
Juxtaposition
Although a statement may be quite innocent, it can become defamatory in relation to the article if
read as a whole or if placed next to a picture.

Libel & Slander

Libel is written, printed defamation, addressed to eye, also a crime, while slander is spoken,
addressed to ear, generally civil wrong, except when seditious, obscene, contempt of court, or
blasphemous. Libel is in permanent form, produced with deliberations, slander is uttered in the
heatt thus not in permanent form. Libel’s result in damage, is serious and permanent, whereas,
slander’s damage is transitory.
Libel is crime: Libel may injure the peace of society, whereas slander is of less serious
consequences. Libel – always actionable per se, Broadcast, visual images, gestures, speech in
cinema are permanent form – libels.
Slander is actionable per se, in :
(a) Imputing un-chastity
(b) Imputation of crime
(c) Imputation of contagious disorder or
(d) To disparage him in his office for eg. Doctor not fit to treat, Leader corrupt, those who
come to him for advice are fools (lawyer)

Chapter 3
Legislative position in India
Article 19 of the Constitution grants various freedoms to its citizens. However, Article
19(2) has imposed reasonable exemption to freedom of speech and expression granted
under Article 19(1) (a). Contempt of court, defamation and incitement to an offence are
some exceptions.
Defamation is an offence under both the civil and criminal law. In civil law, defamation is
punishable under the Law of Torts by imposing punishment in the form of damages to be
awarded to the claimant. Under the Criminal law, Defamation is a bailable, non-cognizable
offence and compoundable offence. Hence a policeman may arrest only with an arrest
warrant issued by a magistrate. The Indian Penal Code punishes the offence with a simple
imprisonment up to two years, or with fine, or both.
1. Essentials of Civil Defamation

i. Words must be defamatory
ii. Words must refer to the plaintiff
iii. They must be published
iv. Defamatory statements can be made in different forms, oral, visual, written,
printed, pictorial, statue, or effigy etc.
2. Criminal Defamation:
It is nothing but a defamation for which simple imprisonment may be awarded. Under a
criminal suit, intention to defame is necessary. The allegation should be made with malice
intent to defame another or at least the knowledge that the publication is likely to defame
another is essential. It has to be proved beyond reasonable doubt that the act was being
done to lower the reputation of another. Section 499 of the Indian Penal Code, 1860
defines what is defamation and its exceptions. Words or signs imputed intending to harm
or with the knowledge that such imputation will cause harm. It may amount to defamation
if anything is imputed against a deceased person, if such imputation would harm the
reputation had the person been alive. The class of persons shall include company or
associations. It is no defamation unless the alleged defamatory statement either directly
or indirectly lowers the moral or intellectual character or his respect of his caste or his
calling in the estimation of others.
3. Slander is also actionable per se, generally and a crime under IPC S.499, 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 of
such person, is said to defame that person.

Section 499 of IPC

A. Crime of Defamation:
i. Imputation concerning any person
ii. Making or publishing by words, or signs or visible representations
iii. Intending to harm, knowing or reason to believe, that it will harm reputation.
B. Explanation 4 to Section 499 of IPC:
No imputation is said to harm a person’s reputation, unless that imputation
directly or indirectly,
(i) In the estimation of others, or in respect of his caste, or his calling.
(ii) Lowers the morale or intellectual character of that person
(iii) Lowers credit of that person
(iv) Causes it to be believed that the body of that person is in a loathsome state or
in disgraceful state.
3. Republication and liability
a) Every repetition is republication.
b) Tale bearers are as bad as tale makers
c) All those connected with press are jointly or severally liable irrespective of intension.
d) Cassidy: The photograph as well as caption is defamatory.
e) Newspaper has no special privilege, public interest is no defence in libel.
4. Liability of original publisher

a) Where he authorized or intended the person to whom he published words to repeat
b) Where republication is natural and probable result of the original publication,
c) Where the person to whom, original publication was made, was under a morale duty to
repeat or republish to third person.
5. Defences
Persons who make defamatory statements are exempted from punishments if they fall in one
of the ten exceptions provided in Section 499. They are:
a) Attribution of any truth made for public good. Truth is seldom defense unless made for a
public good.
b) Any opinion made in good faith regarding the conduct of a public servant in the discharge
of his public functions.
c) Any opinion made in good faith respecting the conduct of any person which relates to a
public question.
d) Publication of true reports of the proceedings of the Courts or the result of the proceedings
is not defamation.
e) Any opinion made in good faith regarding the merits of any civil or criminal case decided
by the Court of Justice, or the conduct of any person as a party, witness or agent to that
case and no further.
f) Opinions made about the merits of any performance which its author has submitted to the
judgement of the public, or about the author is not defamation if made in good faith.

g) Censures passed by persons neither having authority over another either conferred by a
law or from a lawful contract in good faith is nor defamation. Censure is formal statement
of severe disapproval.
h) Accusation of offence to any person having lawful authority over the alleged person in
good faith is an exception to defamation. Complaints about servants to masters and
children to parents are examples to the exception.
i) Statements made about the character of character is not defamation if it is made in order to
protect the interests of the person making it, or any other person, or for the public good.
j) Cautions conveyed to one person against another are not defamation if it is intended for
the good of the conveyed person, or any other, or for public good.

Chapter 4
Legislative position in U.K
Defamation Act, 2013
Defamation law is one of the most criticized areas of English law and it is its complexity
which of ten confuses students (and journalists) studying English ‘libel’ laws. Over recent
times a sustained campaign spearheaded by the Guardian newspaper among others has
vigorously argued for reform of what is seen as a complex law which thwarts media freedom
but does not provide genuine redress for those libelled, particularly if they are not wealthy
– thus failing both claimants and defendants. For this reasons it is important to note that the
Defamation Act 2013 reforms aspects of the law of defamation which means that common
law continues to co- exist alongside statute (i.e. the Defamation Acts of 1952 and 1996 and
now the 2013 Act). It is for this reason that this chapter explains the historic origins of
common law, the vast body of case law which still exists (unless put on a statutory footing)
and the co- existence of the 1996 and the 2013 statutes.
The Defamation Act 2013 was enacted on 25 April 2013. Though this chapter has already
covered some of the major sections of the Act and their meaning, this section will summarize
the Act and discuss some likely practical implications. The aim of the 2013 Act was to
reform the law of defamation to ensure that a fair balance is struck between the right to
freedom of expression and the protection of reputation. The Act makes a number of
substantive changes to the law of defamation, but it does not codify existing law into a single
statute. For this reason, as mentioned before, common law co- exists alongside the three
main statutes, namely the Defamation Acts of 1952, 1996, and 2013.
Case Study
Rothschild (the Hon. Nathaniel Philip Victor James) v Associated Newspapers Ltd [2012]
EWHC 177 (QB)
Precedent: It is a complete defence to a defamatory action that the words complained of are
true. The meaning of a defamatory statement must be understood as such by a hypothetical
reasonable reader.
Facts: The claimant, Mr Rothschild, sued the defendant newspaper publishers, Associated
Newspapers Ltd (ANL), for libel on the article headed: ‘EXCLUSIVE: Mandelson, an
oligarch and a £500m deal’, published on Saturday 22 May 2010. The article was described
as a ‘special investigation’, and extended over the front page and pages 2, 8 and 9 of that
issue. The headline on page 9 read: ‘Revealed: the astonishing story of the night Lord
Mandelson was fl own to Moscow by private jet to join a billionaire friend desperate to
strike a deal that cost British jobs’
Decision: Tugendhat J found that some elements in the Daily Mail article were incorrect and
that the paper had withdrawn the claim that Mr Rothschild facilitated Lord Mandelson’s

Page 10 of 14 Svkm’s Kirit P. Mehta School Of Law (Comparative Public
Law)
attend ance at a dinner at a Moscow restaurant which sealed a £500m deal involving
aluminium plants owned by Mr Deripaska (Lord Mandelson had responsibility at the time
for EU metals tariffs). But the judge said Mr Rothschild should have known that Lord
Mandelson’s travelling from Moscow to Siberia on Deripaska’s private jet and staying at
the tycoon’s chalet would give ‘at the very least reasonable grounds’ for confusion, as
outlined in the EU Commissioners’ Code of Conduct. The Daily Mail argued that
Rothschild’s conduct was ‘inappropriate in a number of respects’. In deciding whether the
words complained of bore a defamatory meaning, which, read by a reasonable person, would
amount to libellous allegations, the court stated that it was not concerned with what the
writer or publisher intended, nor with what any actual reader may have understood.
Tugendhat J said that there must be a single meaning, ‘that is a meaning which the court fi
nds would be understood by the hypothetical reasonable reader’
Tugendhat J concluded: In my judgment, that conduct foreseeably brought Lord

Mandelson’s public offi ce and personal integrity into disrepute and exposed him to
accusations of conflict of interest, and it gave rise to the reasonable grounds to suspect that
Lord Mandelson had engaged in improper discussions with Mr Deripaska about aluminium.
The court held that ANL had established that the words complained of by Mr Rothschild
were substantially true (notwithstanding the admitted inaccuracies); that the allegation – that
the purpose of the visit to Moscow was for Lord Mandelson to assist in the closing of the
Alcoa deal by discussing tariffs – was so serious that it precluded the fi nding that the court
made, namely that the facts surrounding the trip to Siberia for the joint venture proved that
the meaning of the article was substantially true.
Analysis The general principle is that it is a complete defence to an action for libel that the
words complained of are substantially and materially true. Though ANL were able to prove
only part of the defamatory allegations made against Mr Rothschild, the law is clear in that
a defendant may nevertheless succeed if he can prove, on the balance of probabilities, that
what he has alleged is substantially true
Defences available
a) Justification that the material is true (s 5 Defamation Act 1952).
b) Fair comment (now repealed) 123 – this in the past protected statements of opinion or
c) Comment on matters of public interest (with no malice) (s 6 Defamation Act 1952).
d) Absolute privilege which guarantees immunity from liability in certain situations
e) such as in parliamentary and court proceedings (s 14 Defamation Act 1996).
f) Qualified privilege which grants limited protection on public policy grounds to statements
in the media provided that certain requirements are met (s 15 Defamation Act 1996).
g) Honest opinion replaces common law defence of ‘fair comment’ (see above) (s 3
Defamation Act 2013).
h) Publication on matter of public interest (s 4 Defamation Act 2013).
i) Peer- reviewed statement in scientific or academic journal etc. (s 6 Defamation Act 2013).

Law)
Chapter 5
Study of relevant case law
Tamiz (Payam) v Google Inc, Google UK Ltd [2012] EWHC 449 (QB)
Precedent
An ISP is only a ‘host’ and is granted immunity in defamation actions under Regulation
19 of the Electronic Commerce (EC Directive) Regulations 2002.
The Internet Service Provider (ISP) ‘Google Inc’ is not a publisher according to
common law principles
Facts
The Claimant in this libel action, Mr Payam Tamiz (T), sued both Google Inc and Google UK
Ltd in relation to eight comments which were said to be defamatory of him and which were
posted on a blog bearing the name ‘London Muslim’ at various times between 28 and 30 April
2011. T had been in the news in 2011, following allegations that his resignation as
Conservative Party candidate for local elections in Thanet had come about after he had made
inappropriate remarks online. The blog posts on the ‘London Muslim’ website appeared under
a photograph of Mr Tamiz, saying:
. . . Payam Tamiz a Tory Muslim council candidate with a 5 o’clock shadow has resigned
from the party after calling Thanet girls ‘sluts’.
. . . Tamiz who on his Twitter page describes himself as an ‘ambitious British Muslim’ is
bizarrely studying law so one would have though (sic) this Tory prat with Star Trek Spock
ears might have engaged the odd brain cell before making these offensive remarks.
There were other serious and abusive allegations, and T used the ‘report abuse’ function on
the website to complain immediately about these messages in April. In June he sent a letter
of claim to Google UK, who passed it on to Google Inc. They asked his permission to contact
the author of the blog, and the claimant subsequently complained about five further
comments. The comments were eventually removed by the blogger himself in August. A
claim was issued shortly afterwards, and T was granted permission to serve the claim form
on Google Inc in California on a without notice application on 22 September.
Catrin Evans, acting for the fi rst defendant (Google Inc), submitted that the Claimant had
not pleaded that a ‘real and substantial tort’ had been committed in ‘this jurisdiction’ (i.e.
the UK) because it could not be proved that a substantial number of readers had downloaded
or accessed the words complained of (see: Jameel (Yousef) v Dow Jones & Co Inc.(2005)
203 ). Ms Evans also argued that the content of the words complained of did not reach the
necessary ‘threshold of seriousness required to establish a cause of action in libel’. The
defence further submitted that Google Inc is not a publisher for the purposes of the English
law of defamation. And even if Google Inc were to be regarded as a publisher of the words
complained of, Ms Evans argued that it would be protected against liability by Regulation

Law)
Decision
Eady J considered the defence submission that there was a lack of evidence of a ‘real and
substantial’ tort in British defamation law. The judge examined some witness statements
which the claimant had adduced and found that at least three of them were relevant to
potential damage to reputation. Eady J then addressed the more problematic question of
whether Google Inc is a publisher according to common law principles, fi nding that there
is as yet no common law decision establishing how web publishers fi t into the traditional
framework of defamation law. Referring to the judgment by HHJ Parkes QC in Davison v
Habeeb (2011), 206 where it was said that Google was a publisher and was liable post- notifi
cation, Eady J suggested that the position ‘may well be fact sensitive’, pointing to the
differences between the position in law of the ISPs in Godfrey v Demon Internet (2011) 207
(see also: Bunt v Tilley (2006); 208 Metropolitan International Schools Ltd (t/a Skills Train
and/or Train2Game) v Designtechnica Corpn (t/a Digital Trends) (2009) 209 ). On the
question of whether Google Inc. could be liable after notification, the judge referred to the
Blogger.com platform which contained more than half a trillion words, with 250,000 new
words added every minute. He held that accepting the responsibility to notify the offending
bloggers did not necessarily change Google’s status: The fact that an entity in Google Inc’s
position may have been notified of a complaint does not immediately convert its status or
role into that of a publisher. It is not easy to see that its role, if confined to that of a provider
or facilitator beforehand, should be automatically expanded thereafter into that of a person
who authorises or acquiesces in publication. Finally, the judge turned to the statutory
‘hosting’ defence, found under Regulation 19 of the Electronic Commerce (EC Directive)
Regulations 2002, which succeeded in Davison. The provision protects the provider of an
‘information society service’, which consists of the storage of information, where that
service is provided ‘for remuneration, at a distance, by means of electronic equipment for
the processing (including digital compression) and storage of data, and at the individual
request of a recipient of a service. On the evidence, Google Inc was the provider of the
service and the ‘London Muslim’ blogger its recipient. For the defence to succeed there must
be ‘no actual knowledge of unlawful information’, and with trillions of pieces of
unsubstantiated information posted every second on the web, the ISP host cannot possibly
have actual knowledge of every alleged illegality posted on the World Wide Web. This point
was reinforced by Regulation 22 of the e-Commerce Directive, which concerns the notice
by means of which knowledge is imputed, and requires it to include details of the unlawful
nature of the activity or information in question (see also: L’Oréal SA v eBay International
AG (2012) 213 ). In reaching his conclusion, Eady J ruled that Google Inc should not be
regarded as a publisher of the offending words, in accordance with common law principles;
and that, in any event, the ISP was exempted from liability in accordance with Regulation
Analysis
Mr Justice Eady’s decision in March 2012 in the Payam Tamiz case is an important one. He
found against the former Conservative council candidate, about whom some outrageously
defamatory falsehoods had been posted on Google’s blogger.com platform. The court held

Law)
that the ISP’s role was purely passive, that of a host or ‘wall’ on which any graffi ti could
be freely posted. Google Inc was not held to be a ‘publisher’ and was not capable of having
‘authorized’ the defamatory publications. Matthew Parris, commenting on the case in The
Spectator magazine, wrote: May this not mean that bloggers and tweeters can scoop
professional journalists and journals with material that the latter dare not risk publishing? .
. . Aren’t court judgments like these going to lead in the end to the death of the civil tort of
defamation, and of privacy too? Google Inc availed itself of the ‘hosting’ defence provided
by Regulation 19 of the Electronic Commerce Regulations 2002 in respect of bloggers and
similar social networking services. Tamiz confirms the broad protection under EU law, confi
rmed by the European Court of Justice in relation to notifi cation in L’Oréal SA v eBay
(2012). The case sends a message of positive inaction taken by the UK courts towards those
individuals who are being defamed online. Judge Eady made the position of ISPs abundantly
clear in that they are purely passive hosts.

Law)
Chapter 6
Conclusion & Bibliography
Conclusions
Several countries adopted or are about to adopt laws to fight the spread of false news on
society. These new provisions are often the subject of major notice by those who fear that
they violate the freedom of expression. However, it can be concluded that the government
of the UK has promoted a clearest and explicit law that goes against the spreading of false
news on social media platforms, with the firm purpose of ensuring political and social
stability, religious harmony and private life of its citizens in the digital space. The effort is
necessary to guarantee an open and democratic society, especially when electoral processes
are approaching.
Bibliography
1. LIST OF LEGISLATIONS
❖ The Indian Penal Code
❖ The Defamation Act, 2013 (U.K.)
2. DICTIONARIES
❖ Oxford Dictionary.
❖ Merriam-Webster Dictionary.
3. ONLINE DATABASE
❖ www.legalservicesindia.com
❖ www.indiankanoon.com
❖ www.manupaptra.com
❖ www.scconline.com

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Page 1 of 14 Svkm’s Kirit P.

Mehta School Of Law (Comparative Public Law)

Conceptual Analysis of defamation and legislative position in India and UK

SUBMITTED BY- PRANJALI DIXIT

SUBMITTED TO - Mr. Anant Vijay

Conceptual Analysis of defamation and legislative position in India and UK

Conceptual Analysis of defamation and legislative position in India and UK

Sr. No. Content

Conceptual Analysis of defamation and legislative position in India and UK

Conceptual Analysis of defamation and legislative position in India and UK

Libel & Slander

Conceptual Analysis of defamation and legislative position in India and UK

1. Essentials of Civil Defamation

Conceptual Analysis of defamation and legislative position in India and UK

Section 499 of IPC

4. Liability of original publisher

Conceptual Analysis of defamation and legislative position in India and UK

Conceptual Analysis of defamation and legislative position in India and UK

Defamation Act, 2013

Conceptual Analysis of defamation and legislative position in India and UK

Tugendhat J concluded: In my judgment, that conduct foreseeably brought Lord

Conceptual Analysis of defamation and legislative position in India and UK

Conceptual Analysis of defamation and legislative position in India and UK

Conceptual Analysis of defamation and legislative position in India and UK

Conceptual Analysis of defamation and legislative position in India and UK

Conceptual Analysis of defamation and legislative position in India and UK

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