Torts in the Cyber World

Introduction
With the invention of computers and the emergence of the internet, a new
category of tort has sprung into existence, namely cyber torts, such torts are
committed in various ways which are explained later on in this article, but the
medium through which they are committed are always virtual machines, such
as, a computer, a mobile phone, or any device which can be used to access
the internet and change information there.

What is a tort?
A tort is a civil wrong for which a remedy is given in terms of damages, the
damages that are paid to the plaintiff (the person who suffers the damage and
brings the suit to the court of law) against the defendant (the person who
commits the tort against the plaintiff and has to prove of his innocence in the
court) in terms of unliquidated damages (those damages whose amount for
the remedy is not fixed, it is fixed in accordance with the tort which is
committed against that person).

The word “tort” originates from the French language, in English, it is equivalent
to term “wrong” and it is derived from the Latin word “tortum” which means
“wrong or injury” and the word tortum is developed from the word “torquere”
which means “to twist”. It is simply a breach of duty which amounts to a civil
wrong.

A person who commits a tort is called as a tortfeasor and if there are multiple
persons involved, then they are called joint tortfeasor as they are jointly liable
for the tortious act and they can be sued individually or jointly.

Essential Elements of a tort

There are three essential elements which constitute a tort, these are

(1) A Wrongful act

A wrongful act is any act which is violative of the law.

(2) A duty imposed by the law, and

A duty which is legally enforceable in the courts if violated.

(3) The act must give rise to legal or actual

damage.
The wrongful act must give rise to a remedy in a suit for either liquidated
damages (fixed value) or unliquidated damages(value not fixed).

What are Cyber wrongs?

Computer wrongs include both civil wrongs as well as criminal wrongs, Cyber
wrongs are the wrongful acts committed over the internet, the only difference
between a wrong and a cyber wrong is that a cyber wrong involves the usage
of technology in the commission of it i.e. the medium through which a cyber
wrong is committed is through technology, in the cyber world, cyber wrongs
are of two kinds, namely,

1. Civil cyber wrongs, such as a cyber tort, or

2. Criminal cyber wrongs.

Civil Cyber Wrongs

A civil cyber wrong is one which is committed online and is civil in nature, such
as a tort of defamation committed online through a computer (or any device
which has access to the internet and is able to modify the information or post
anything online, such as a mobile phone, or a tablet) is used as a tool to
commit that kind of wrong. Although not defined or addressed as civil cyber
wrongs, the essence of civil liability is defined under section 43 of the IT Act,
2000.

Criminal Cyber Wrongs

A criminal cyber wrong is a serious threat and it must be dealt with as soon as
possible, a criminal cyber wrong is a criminal wrong committed online through
the use of technology, crimes such as Hacking, information theft, denial of
service attacks, etc. Although not addressed as criminal cyber wrongs in any
acts, but various wrongs of criminal nature are defined under the IT Act, 2000,
such as Child pornography defined under Section 67-A of the act.
The distinction between a conventional and
a cyber tort
There is basically no difference between a conventional tort and a cyber tort
other than the fact that a cyber tort is committed through a virtual medium,
such as a computer, a mobile phone, a tablet, etc.

Example: A, a reporter, publishes an article in a renowned newspaper about

B, making derogatory statements about B’s sexual preference without B’s
approval. Thus resulting in B being secluded by his friends, and family, who
have read about B in the newspaper. Here B can sue A for the tort of
defamation. Suppose if the defamation was done online by an article published
on the newspaper’s website by A with the same information then it will be
addressed as cyber defamation.

The distinction between cybercrime and a

cyber tort
A cyber tort is a key factor in the infringement of a person’s right to privacy in
the cyber world as well as in the real world, while on the other hand,
cybercrime is a very heinous crime which affects not only the individual himself
but the society also. Though both of these may include similar offences such
as cyberstalking or cyber obscenity, they differ in terms of the intensity of the
offence committed.

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How technology has changed the entire

world
1. Over the years, technology has changed our world in a revolutionary
way, it has created amazing tools and resources which put very useful
information at the fingertips of each and every individual.
2. Digital revolution has been both a boon, as e-filing in the courtrooms
has now become a consistent thing and now information regarding
cases is being posted online on the websites and a curse since the
wrongs which were previously possible in the real world, some of
them are also possible in the virtual world, such as, digital
defamation, cyberstalking, etc.
3. Through e-governance, it has become very easy for the government
of India for giving government services, exchange of information, etc
thus resulting in the minimalistic usage of paper and promoting the
 technological sector. It becomes easier to access everything online
rather than through papers and files.
4. The cyber world has a different set of rules from that of the real world
as a large or small nation can field a cyber technology capability for
legitimate or even illegitimate reasons, even terrorist organisations
such as ISIS can field a powerful cyber organizations by using social
media for their propaganda and have cyber units which can hack
sensitive information from larger and more advanced nations, such
as the United States of America.
5. India is new to the digital world and still needs some more time to
have an effective stand in the cyber world. The cyber technology
poses huge security issues as well, as battlefield tactics, sensitive
information regarding the nation, the deals that the nation is about
to do with some other nations, can also be hacked and leaked online.
6. The expanded number of complexities in the field of online security
has resulted in a continuing need for career personnel in the law
enforcement, security protection, and counterterrorism fields. All of
these require individuals to have a solid educational background as
well as the job requirements. Even online legal education platforms
have launched various courses including courses.

What is Cyber World?

Through the ascension of technology and the evolution of digital age, a new
virtual world has been created online which is called a cyber world. It is still
new and developing every day and in some ways is very much similar to the
real world except for the person being virtually present in the cyber world
instead of the real world. Technology and the rise of the cyber world have
resulted in ease of communication, ease of payment, ease of gathering
information, etc. But this has also resulted in misuse of these privileges by
some individuals with mala fide(Evil) intention, thus cyber wrongs are
committed when such privileges available online are taken advantage of.

Concept of tort in the cyber world

A tort, as mentioned previously, is a negligent or an intentional act which is
done by someone that injures someone else in some way, either physically or
through violating their legal rights. Cyber torts are torts committed over
cyberspace. These are very important as they are on the rise and can have
serious repercussions on society. Everyone in society should be aware of the
dangers and the damage that is caused due to cyber torts because technology
has become an essential part of everyone’s life.

Some examples of Cyber tort are harassment via e-mails, cyberstalking or

cyber harassment, or cyber defamation.
Various Kinds of cyber torts
Cyber torts are committed in various ways, these include:

1. Cyber Stalking or Cyber Harassing.

2. Harassment via E-mails
3. Cyber Stalking or Cyber Harassing.
4. Harassment via E-mails
5. Cyber defamation.
6. Cyber-vandalism.
7. Unauthorised access over someone’s virtual machine.
8. Trafficking.
9. Fraud and Cheating.

Cyber Stalking
Cyberstalking involves following a person’s online presence on various social
media or other websites, by posting messages which can be threatening also
as well as posting on bulletin boards.

Harassment via e-mails

Harassment via emails is a very old concept and has been there since the initial
days of electronic mails, it is very much similar to the concept of harassment
via letters in real life.

Cyber Obscenity
Pornography on the internet has various forms. It may also include prohibited
material such as child pornography, which is a heinous crime in real life as
well.

Cyber Defamation
Defamation is an act of making a statement about an individual which may
lower his reputation in the eyes of the right thinking people. It can be written
and oral also. Cyber defamation is very similar to defamation in real life except
for the involvement of a virtual machine. Cyber defamation is that kind of
defamation which is done through the virtual medium.

Cyber-Vandalism
Conventional vandalism means to deliberately destroy or damage the property
of someone. Thus cyber-vandalism means to deliberately put any kind of
physical harm to anybody’s computer or virtual machine. These acts may be
in the form of theft of a computer or any peripheral of the computer also.

Unauthorised access over someone’s virtual

machine
The activity of gaining access to someone else’s virtual machine without their
consent is also a cyber tort as it is a violation of their private space.

Trafficking
Trafficking is of many kinds, it may be in drug, ammunition, or even human
beings, etc. Trafficking is taken a form with the ascension of the internet as
cyber trafficking has also developed, where the process of trafficking is done
online through the use of a virtual machine.

Fraud and Cheating

Online fraud and cheating have become one of the biggest threats the
government has to deal with. These include Credit card crimes, fake job
offerings, misappropriation, etc.

Example: Some organisations of hackers are specifically made to create fake

links and send them as emails in order to gather information related to the
credit cards.

Modes of Committing a cyber wrong

There are many ways in which a cyber tort is committed, many of which are
discussed below,

1. Email bombing: This kind of mode refers to sending a good number

of emails to an individual thus overloading the server.
 2. Social Media: Posting Wrong information publicly about a specific
individual via social media.
3. Theft of information: Certain spam emails are sent to every email
account, clicking on which, and filling information in which results in
the loss of personal information.
Example: When a person receives random emails containing links to an
exact replica of any website which requires personal information to be filled
to log in, filling the information gives the user whoever has created the
replica all the information and access to the account which, the victim was
trying to access.

4. Message boards or Chat rooms: Message boards or chat rooms

may lead to cyberstalking.
Example: Certain groups of people create websites targeting individuals
suffering from mental illness or depression and are made to believe that there
is no hope in continuing with their lives anymore through these message
boards or chat rooms.

5. Trojan attacks: Also called as Trojan horse, these are the kind of
software which gets installed in the computer by acting as an
authorised software while not being an authentic software originally.
This software gains administrative access to the computers passively
without letting the real owner know.
6. Data dwindling: These kinds of attacks involve changing raw data
before a computer process is complete and then restoring the
information back to how it was previously.
7. Denial of service attack: In this kind of mode, a server is flooded
by requests which may end up crashing the server, thus preventing
the site to function.
8. Virus’: These are the programmes which attach themselves to a
computer and start multiplying to stop fill the data of the computer
by gaining administrative access to the computer.

People who may commit a cyber wrong

1. People between the age group of 6-16

years(Juveniles).
People of this age group are not mentally developed well enough to know of
the outcome of the act they may end up committing, generally cyber wrongs
committed by these individuals are committed without even realising that such
a wrong is being committed.
2. People who are unaware of cyber wrongs.
There is still a large group of people in India who are unaware of the wrongs
which they may end up committing online without realising of the outcome of
their actions or the penalties of the offences that they may commit, usually
people in underdeveloped countries may do these wrongs as there aren’t
proper rules and regulations against these because technology may still a
relatively new term in these nations.

3. Organised hackers
Certain organisations are formed by hackers whose only goal is to fulfil political
bias, or fundamentalism, etc.

Example: Organised hackers hired unofficially by political parties to work

online and post stuff against their competitors which a person would normally
not do, or even hack their official website and change the entirety of it. Such
as when BJP’s official website was hacked in March, 2019.

4. Professional hackers
Independent hackers are normally responsible for all kinds of cyber wrongs
that are committed online.

Example: Individual hackers who are not affiliated with any organisation are
hired by individuals to do a specific task online against any individual.

5. Terrorist groups
Terrorist organisations play an important role in the world of cyber wrongs, as
they are the ones responsible for motivating and hiring youth into their
organisations to fulfil their agendas, such a thing is fulfilled by using social
media as a medium to connect to possible individuals and thus they are
manipulated over the internet to do certain acts which may be against an
individual or against the state.

Information Technology Act, 2000

In order to deal with the wrongs happening in the cyber world, the Information
technology act was adopted in the year 2000.
 1. The main purpose of this act was to provide legal recognition to
facilitate electronic records with the government. India has many laws
that are codified very well and are relevant to this day and age,
however, with the ascension of the internet, came new legal issues
related to it.
2. The existing laws that were enacted in the past were enacted while
keeping in mind of the society back then, the political, economic, as
well as, in accordance with the culture back then. There was no
internet in the past so there was no need for cyber laws, however,
that is not the case anymore, as we have entered the cyber era and
to deal with the legal issues related to the internet and the cyber
world.
3. The laws which were in India could not be interpreted in the context
of the offence committed online hence the need for creation and
enactment for cyber laws was felt as none of the already existing laws
gave any legal validity to the activities in the cyber world.
4. According to its section 1(2), the act extends to the whole of India
and also applies to any offence or contravention committed by anyone
outside of the Indian territory as well, this is further mentioned
in section 75 of the act. But without a signed extradition treaty
arrangement, a trial of such wrongs is very complicated.
5. The act has been made to deal with all the cyber wrongs that could
happen over the cyberspace.
6. The Act was amended in the year 2008, and the establishment of
cyber appellate tribunals was defined under the Section 48 of the act,
the tribunal was established to deal with all the issues related to the
cyber world in India and it has the same powers as that of a civil
court.
7. The amendment of 2008 made many changes and also added many
changes to the act, such as, redefining the term “communication
devices” as well as making the corporations liable for the breaches
which may occur due to security issues due to poor implementation
of data security practices.

Conclusion
It is not possible for any government of any nation to prevent cyber torts or
any other online wrongs committed on a daily basis by people. But it is possible
for the governments to adapt and evolve their technology and keep a check
on the online activities of everyone in the cyberspace.

As historically speaking, there has been no legislation in any world which has
been able to eliminate a wrong against which it has been created. Same goes
for the cyber laws in India as the cyber world is ever growing, more new ways
are developing every day in which loopholes on the internet are being found
and wrongs are being committed.
As a lot of people may be unaware of the wrongs that can happen online and
the penalties associated with them, the government should devise a strategy
to publicise the offences and the penalties associated with them so that even
a regular individual can be informed of the outcome of such actions.

Ubi Jus Ibi Remedium

We all human beings deserve some basic rights and freedom to live in vicinity which is
known to us as basic human rights .They apply to all regardless of your place of origin or
your beliefs or your way of living. They are based on shared values like dignity, equality,
fairness, independence and respect.

These rights maintain our freedom of life. They are needed to be protected in case of any
breach against them would happen and here the legal maxim, i.e. Ubi Jus Ibi Remedium,
comes into play. There is always a remedy in life in case of any breach in our rights living
under article 21of the constitution of India. In English law the word remedy means a right
of action.

Ubi jus ibi remedium is a Latin maxim which meanAs that �wherever there is a right,
there is remedy�. It consists of two main ingredients of the doctrine jus and remedium.
Where jus means legal authority to do or demand something from and �remedium�
means rights of action. It simply gives us a meaning that if there is any violation of the legal
right, then the law provides a remedy to the affected person.

�Everyone in the vicinity has the right to have a good legal remedy by the competent
national tribunals for the acts which violate your fundamental rights and human rights
which are granted to him by the constitution or by any law in the vicinity.�

Case I: Donoghue v Stevenson

This case is also known as the snail in the beer bottle case. This event took place in
Paisley, Scotland in 1928, where Ms. May Donoghue was given a bottle of ginger beer which
had bought by her friend. Since, the bottle was opaque in colour from outside nothing is
visible inside. Donoghue consumed most of its contents before she became aware of the
snail had been there inside the bottle and she later fell ill.

Donoghue then took a legal action against the manufacture of the ginger beer, Mr. David
Stevenson. The house of lord held that the manufacture owed a duty of care to her, which
was breached because it was reasonably foreseeable that failure to ensure the product�s
safety would lead to her to consumers. There was also a sufficiently proximate relationship
between consumers and product manufacturers.
Development Of Ubi Jus Ibi Remedium:
The law of tort is said to be the development of the maxim ubi jus ibi remedium. The
word jus means legal authority to do something .the word remedium means that the
person has the right of action in the court of law. The literal meaning of the maxim is that
where there is right there is remedy.

The maxim also says that there is no remedy without any wrong and the persons whose
right is being violated has a right to stand before the court of law. This principle also states
that if the rights are available to a person then it is required to be maintained by that person
only and remedy is available only when he is injured in the exercise of duty or enjoyment of
it; it is useless to imagine and think a right without a remedy sought or to be obtained
should be legal. There are many moral and political wrong but are out actionable or it does
not give many sufficient reasons to take legal actions as they are not recognised by law. The
maxim does not mean that there is a legal remedy for every wrong committed.

This doesn�t mean that for every wrong there is a remedy. it is appropriately said by justice
Stephen that maxim would be correctly stated if maxim were to be reversed to say that
�where there is no legal remedy, there is no legal wrong�.

Essentials Of Ubi Jus Ibi Remedium:

• This legal maxim is applicable only when any legal injury has occurred to any person,
if no legal injury is caused then the legal maxim damnum sine injuria is used which
implies that any harm without any legal injury
• Any unlawful of wrongful act must have been done which violates the legal rights of
a person.
• This maxim can be used only when sufficient relief has not been provided by the
court to the person who sustained the injury.
• This maxim can only be applied wherever this right exists and can be recognized by
the court of law.

Limitations Of Ubi Jus Ibi Remedium:

• We cannot apply this maxim if any proper remedy is given in case of any breach of
rights under law.
• This maxim cannot be applied to moral and political wrong which are not actionable.
• If plaintiff is negligent or there is negligence by the side of the plaintiff then this
maxim will not be applicable.
• In case of public nuisance unless a plaintiff shows that he suffered more injured then
other members of the society , this maxim will not be applicable.
Case II:- Bhim Singh V. State Of Jammu And Kashmir
In this case, there is an applicant who is the MLA of the Jammu and Kashmir parliamentary
gathering. While he was on his way to the parliamentary meeting, he was inappropriately
captured by a cop and he was not able to be introduced before the judge on time and he
had a lawful right to go to the gathering.

His fundamental right under article 21 under the Indian constitution has been violated. The
Supreme Court considered that the respondent was liable for violating the applicant�s
rights and it granted him a damage of rupees 50000 to the candidate for encroachment of
his fundamental right.

Ingredients:

• The nature of this act is different in various situations

• The remedy is there only for the damages.
• There must be a legal right that must be recognised by law.
• There should a violation of such right which caused damage or some loss to the
plaintiff.

Exceptions

• Breach of trusts like personal commitments or marriage or promises vows without

consideration.
• If plaintiff itself is the wrong doer.
• If there is no legal damage then this maxim will not be liable.

Case III: Ashby V. White

This is basically a case of English tort law which is related to the violation of right and
remedy provided by law. Plaintiff Mr. Ashby is a registered voter but he was interrupted
from voting in the elections. So there is a violation of fundamental right which is �Right to
vote�, by the officer Mr. white. The candidate, whom he wanted to vote, won the election.
Now, he wants the compensation of the violation of his legal right. The court held that
however, the plaintiff has suffered any damage because he wished to vote in the election,
his right has been infringed and he was interrupted from exercising his legal right.
Therefore the plaintiff was awarded compensation in the form of damages.

Case IV: Maretti V. William:

In the case of maretti v. william, the plaintiff has deposited his fund in defendant�s bank
and the accused refused to honour cheque to the plaintiff although he has sufficient
balance in his account. So the court in this case held that the defendant is liable for all the
loss incurred by the plaintiff. There is legal violation of this legal maxim too, so this maxim
was invoked to render justice to the plaintiff stating that the legal right of the plaintiff has
been revoked.
Conclusion:
So, here we conclude that if any right of any human being is being infringed then there is
always the law that provides and make sure that no rights of people will be infringed. If
there is any violation of legal or fundamental right then it ensures the proper damage and
compensations by invoking the maxim �UBI JUS IBI REMEDIUM�. Under this maxim no off-
base will be unredeemable on the off chance that it very well may be cured by the court. No
rights exist without a remedy.

Mental Element in Tort

Tort law is a complex area of jurisprudence that deals with civil wrongs and the liability
that arises from them. Determining liability often hinges on the intent of the
wrongdoer or mental element in torts.

Unlike criminal law, where mens rea (guilty mind) is a fundamental concept, tort law is
more flexible in its approach to mental states. In this article, we will explore the
importance of the mental element in tort law, how it varies across different torts, and
its impact on liability.

Contents hide

1. Understanding the Mental Element in Tort

2. What Comprises Mental Element in Torts?
3. Relevancy of Mental Element in Torts
4. Intentional Omission As Mental Element in Tort
5. Motive As Mental Element in Tort
6. Exceptions to the Rule
7. Distinction Between Motive and Intention
8. Conclusion

Understanding the Mental Element in Tort

The mental element in tort refers to the state of mind or mental state of an individual
when they engage in actions that lead to harm or injury to another person. It is a crucial
factor in determining whether someone can be held liable for their actions in a civil
lawsuit, also known as a tort claim.

In tort law, the mental element can encompass various aspects, including intention,
motive, recklessness, and negligence. Understanding the mental element is essential
in establishing liability in different types of tort cases. Here are some key components
of the mental element in tort:

Intention: Intention involves a person deliberately and purposefully engaging in

actions that result in harm to another individual or their property. In intentional torts,
the wrongdoer acts with the specific aim of causing harm or violating someone’s rights.

Motive: Motive relates to the underlying reason or purpose behind a person’s actions.
While motive can provide insight into a person’s behaviour, it is generally less relevant
in tort law. Tort cases often focus on the actions themselves rather than the motive
behind them.

Recklessness: Recklessness pertains to situations where a person engages in actions

without due care for the potential harm they might cause to others. It involves
consciously disregarding a known risk or being indifferent to the consequences of
one’s actions.

Negligence: Negligence is a significant aspect of the mental element in tort law. It

occurs when a person fails to exercise reasonable care, resulting in harm to another
party. Negligence cases focus on whether the individual’s actions met the standard of
care expected in a given situation.

What Comprises Mental Element in Torts?

Now, let’s talk about the mental element in tort law. We want to understand how
important a person’s state of mind is when it comes to being held responsible for their
actions. To do this, we need to look at concepts like intention, motive, malice,
negligence, recklessness, and fault.

We can divide torts into two main categories based on a person’s intention:

Intentional Tort: This happens when someone deliberately does something to harm
or invade another person’s rights. For example, things like battery, assault, false
imprisonment, trespassing on someone’s land, taking their property without
permission or intentionally causing severe emotional distress. To hold someone
responsible, it’s enough to show that they knew with reasonable certainty that their
actions would cause harm.

Unintentional Tort: This type of tort occurs when someone injures another person,
but it wasn’t their intention. It’s more like an accident. This happens when a person is
careless or not careful enough. In these cases, we can see that the harm resulted from
the person failing to meet the “duty of care,” which means they didn’t act as a
reasonable and careful person should have.
So, in simple terms, intentional torts involve harmful actions that someone is meant to
do, while unintentional torts involve harm caused by someone’s carelessness or
recklessness. In both cases, the mental state of the person is considered, but it’s not
always necessary to prove a bad intent to hold them responsible.

The question we want to answer is how important a person’s state of mind is when it
comes to holding them accountable for their actions in lines of mental element in torts.
Let’s explore this further.

Relevancy of Mental Element in Torts

The importance of intention in tort law doesn’t always mean having a bad purpose or
wanting to harm someone. Instead, it means intending to cause a result that harms
someone’s interests in a way that the law doesn’t allow.

In tort law, there are two main theories when it comes to intent: subjectivist and
objectivist.

The subjectivist theory focuses on the mental state of the wrongdoer, aiming to hold
them accountable for intentionally or at least knowingly breaking the implicit rules of
the law. It believes that the wrongdoer’s state of mind is crucial in deciding if they
should be held responsible.

On the other hand, the objectivist theory looks at establishing tort liability separately
from the wrongdoer’s mental state.

For instance, in the case of trespass, you can be held responsible for it even if you
didn’t intend to trespass. Imagine if someone points an unloaded gun at another
person, believing the gun is empty. They could still be held liable for assault, even if
they genuinely thought the other person knew the gun was unloaded. In assault cases,
the intent to harm or cause immediate fear is really important, and the wrongdoer
can’t use lack of intent as a defence.

It’s also important to note that in some situations, not having an intention or making
an honest mistake can be a valid defence. For example, if a servant makes a mistake
that’s outside their job duties, it might relieve the master from being held responsible.

In simple terms, “intention” means that the person doing something is fully aware of
their actions and the likely consequences. They also have a strong desire for those
consequences to happen. Even if they claim they didn’t mean to harm someone, as
long as they knew the probable results of their actions, they can still be held liable.

In the case of Wilkinson v. Downston, the defendant made a joke to the plaintiff
about her husband having an accident and being in the hospital. This news shocked
her so much that she got seriously ill and decided to sue the defendant for damages
under tort law. The defendant argued that he didn’t want to harm the plaintiff and was
just joking. However, the court rejected this argument and held him responsible. They
explained that it doesn’t matter whether he intended harm; what matters is that he
knew what was likely to happen, which caused harm to the plaintiff. So, he was liable,
even if he didn’t mean to do it.

Intentional Omission As Mental Element in Tort

In some situations, there’s no need for a specific intention in tort cases. For example,
if a nurse lets a child get into a dangerous situation, knowing it could lead to harm,
she can be held responsible. It’s not about her intentionally leaving the child in danger;
it’s about her failing in her duty to care for the child.

As we discussed earlier, intention alone doesn’t make a good defence in tort cases. We
can’t really know what’s going on in the defendant’s mind. Chief Justice Brian wisely
said, “It is common knowledge that the thought of man shall not be tried, for the devil
himself knoweth not the thought of man.”

Motive As Mental Element in Tort

Motive is what inspires a person to do something. It’s like the reason behind their
actions. But, just like intention, motive is often not important for mental elements in
tort law. What matters most is the act itself, regardless of the motive behind it. If the
act causes harm and legal injury, the motive, no matter how bad it is, doesn’t really
matter.

The decision in the case of Allen v. Flood made it clear that motive is not relevant in
torts. It stated that while motive might be important in criminal cases, in England,
motive is not considered when determining a civil wrong. Any violation of someone’s
civil rights is a legal wrong, and the person responsible has to fix the harm they caused,
regardless of whether their motive was good, bad or neutral.

Indian courts have also emphasised that motive is generally irrelevant in tort cases,
except in situations like malicious prosecution, defamation, and conspiracy. What’s
usually looked at is whether the act was unlawful. In most cases, the motive behind the
act doesn’t matter much.

In summary, having a good motive doesn’t justify illegal acts, and having a bad motive
doesn’t necessarily make a lawful act wrongful. What’s most important in tort law is
the act itself and the harm it causes, not the motive behind it.

Exceptions to the Rule

While the motive is generally not a big deal as a mental element in tort law, there are
some cases where it matters. Here are some examples where motive can be an
essential element in deciding if someone is liable:

• Deceit, Malicious Prosecution, Injurious Falsehood, and Defamation: In

these cases, motive can be relevant, especially if there’s a defence like
privilege or fair comment. The defence of qualified privilege is only available if
the information was shared in good faith.
• Conspiracy, Interference with Trade or Contractual Relations: In cases
involving conspiracy or interfering with trade or contracts, motive can play a
role in determining liability.
• Nuisance: When someone causes personal discomfort with a bad motive, it
can turn a lawful act into a nuisance. This was seen in the case of Palmer v.
Loder in 1962.

Distinction Between Motive and Intention

Motive and intention are two terms often used interchangeably, but they have distinct
meanings:

Motive: Motive is the ultimate reason behind an action. It’s the bigger goal or purpose
someone has when they do something. For example, if A writes a defamatory letter
about B to C, A’s intention may be to harm B’s reputation, but the motive could be to
warn C, who might be thinking of hiring B, about B’s character to prevent C from hiring
B. Even if A had bad intentions, a good motive can make A’s action legal.

Intention: On the other hand, intention is more about the immediate purpose of an
action. It’s what a person aims to achieve right at that moment. For instance, if A steals
a loaf of bread from B’s bakery, A’s intention might not be to harm B, but to feed their
hungry child. Despite having a good motive, A is still liable for theft and trespass, not
because they wanted to hurt B, but because they intended to take B’s bread without
permission.

Conclusion
The mental element in tort law plays a pivotal role in determining liability for civil
wrongs. Whether through intention, recklessness or negligence, a person’s state of
mind when committing an action can significantly impact their legal responsibility.
While motive can provide context, it is generally of less significance in tort cases, where
the focus is primarily on the actions and their consequences.

Understanding the nuances of the mental element in tort law is vital in differentiating
between intentional and unintentional torts, as well as in establishing liability in a wide
range of tort claims. Ultimately, the mental element serves as a key factor in ensuring
that individuals are held accountable for their actions when they cause harm or injury
to others in the realm of civil law.

Malice in law of Torts

Given the ambiguity surrounding the word 'malice', the past's judiciary has tried to define
it.[1]Attempt was made in Brown v Hawkes where court calls malice as:
Some other motive than the desire to bring to justice a person whom he [the accuser]
honestly believes to be guilty.[2]

However, as per Winfield, this definition fails to account that motives may often be various
and mixed.[3]Then the court in Bromage v Prosser did the distinction between malice in
law and malice in fact, as per the court:
"Malice in common acceptation means ill-will or improper motive against a person, but in its
legal sense it means a wrongful act, done intentionally, without reasonable and probable
cause."[4]

Thus, malice in law is expressed as implied malice, where the wrongful intention is
presumed concerning the unlawful act. Lord Campbell calls malice in law as 'conscious
violation of the law to the prejudice of another' Whereas, malice, in fact, is called express
malice.[5]

In this paper, the author will expound upon the distinction of malice. Further, elaboration of
malice as a primary ingredient and secondary ingredient in the imposition of liability, and an
end will take malicious prosecution where malice is the primary factor and defamation
where malice is a secondary factor.

Torts where malice is used:

While deciding personal liability, malice or motive is not considered a relevant factor for
most cases.[6] E.g. In Bradford Corporations V. Pickels, here defendant in the early 1890s
began constructing a series of tunnels and shafts over his land, Which affected water supply
to the town and plaintiffs land. As a result price of the defendants land skyrocketed. Plaintiff
claimed that the actions were done to coerce the plaintiff to purchase the defendants land
at a high price. It was held by the court that "If the act apart from motive gives rises to
damage without legal injury, the motive, however reprehensible, will not supply that
element".[7]

Malice as a primary or secondary element

Malice is a crucial ingredient for the imposition of liability in case of malicious prosecution,
abuse of process, misfeasance in a public office and conspiracy. However, it has been
argued that the aforementioned torts are more in terms of abuse of public power than
malice. For E.g. misfeasance applies only to public officers who act in bad faith.[8]This is
evident by the court decision in Gregory v Portsmouth City Council where it held that
while deciding malicious prosecution, it needs to be proved that "the defendant has abused
the coercive powers of the state".[9]

Whereas, in torts like a private nuisance and defamation malice is not a precondition to
liability. Here, malice plays a Contingent and a secondary role, where malice's relevance
depends upon the case's factors. Malice in such cases sheds light on the genuinely
fundamental question of whether the particular defence is available or not.[10]

Malicious prosecution
Apart from showing that reasonable and probable cause was absent, it also needs to be
proved that the prosecution was initiated in a malicious spirit or with an improper motive
and not in furtherance to bring the law into effect.[11]Thus malice, in fact, needs to be
established than malice in law, where the burden of proof falls on the plaintiff.[12]

It also needs to be noted that malice is kept separate and independent of reasonable and
probable cause as there may arise honest belief in the accusation. This view is further
propounded by Lord Esher in Brown v Hawkes, the claimant in the case of malicious
prosecution must prove malice with some independent evidence, for the simple reason that
malicious motives may exist at the same time as a genuine, truthful belief in the guilt of the
accused.[13] Also, the plaintiff's mere acquittal does not prove malice, factors like the spirit
of reprisal, recklessness, long-standing animosity e.t.c need to be proved.[14]

Defamation
Malice is not an essential ingredient in defamation which is evident by Lord Bramwell's
remark that:
A person may be the publisher of a libel without a particle of malice or ill-spite.[15]

Malice becomes an important determinant while determining defence of truth, fair

comment and qualified privilege.[16] Fair comment is considered free of malice, a rule to
determine if a statement is a fair comment or malice has been laid down in Turner v.
Metro-Goldwyn-Mayer.[17]

The court held that it doesn't matter what the defendant said, what matters to establish is if
a truthful man would have made the same condemnation. Malice, as a factor becomes
important while claiming qualified privilege. To claim qualified privilege, it needs to be
proved that statement was made on a privileged occasion, and it is free from malice. If a
person uses the occasion for some other motive than for which it was meant, he loses the
defence.[18]
The mode of publication can also be a determinant of malice.[19] An unnecessary
circulation of the publication frequently notices this. E.g. In Sadgrove v. Hole.[20]Hole sent
a postcard to a third party, containing scandalous statements about the plaintiff. Though
the plaintiff's name was not written, the defendant was still held liable as a third party
acquainted with both plaintiff and defendant. Lack of faith in the truth of the made can also
be taken as evidence of malice. Nevertheless, arriving at any conclusion in carelessness or
following any opinion due to irrational bias cannot be constituted as malice. E.g. Same was
held In Broadway Approvals Ltd. v. Odhams Press Ltd.[21]

Conclusion
In the end, the research paper has engaged critically with the subject matter of the project,
by having complete a comprehensive breakdown of malice into malice of law and fact and
then seeing its essence as a primary and secondary ingredient in respective torts as
mentioned in the paper.