Law of Defamation, Newspaper Publication & Journalistic Improprieties

Preface:

Defamation means to take away or destroy the good fame or reputation; to speak evil of; to charge falsely or to asperse. According to Winfield, ‘defamation’ is the publication of statement which tends to lower a person in the estimation of right-thinking members of society generally or which tends to make them shun or avoid that person. It is “libel” if the statement be in permanent form and “slander” if it consists in significant words spoken or gestures. In the matter of: Parmiter V/s Coupland, 1840 (6) MLW 105, it was observed that, defamation means a publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule. Further, in the matter of: Myroft V/s Sleight, 1921 (37) TLR 646, it was observed that, a defamatory statement is a statement concerning any person which exposes him to hatred, ridicule or contempt or which causes him to be shunned or avoided or which has tendency to injure him in his office, profession or trade. In India, by virtue of report in the matter of: Manisha Koirala V/s Shashi Lal Nair & Ors, 2003 (2) BCR 136, following test was laid down in order to determine whether or not a particular statement is defamatory:

  1. A statement concerning any person which exposes him to hatred, ridicule, or contempt, or which causes him to be shunned or avoided, or which has tendency to injure him in his office, profession or trade is defamatory;
  2. A false statement about a man to his discredit is defamatory; and,
  3. Words which tend to lower the plaintiff in the estimation of right-thinking members of society generally, are defamatory.

Essential ingredients of the tort of defamation:

  1. Malice (The words must have been published maliciously);
  2. They must be defamatory;
  3. The words must have reference to the plaintiff; and,
  4. They must be published.

Decision in the matter of: Subramanian Swamy V/s Union of India, Ministry & Ors, (2016) 7 SCC 221:

In the matter of: Subramanian Swamy (Supra) it was observed that-

  1. A defamatory statement is one which has tendency to injure the reputation of the person to whom it refers; which tends to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-thinking member of society. (See: Bata India Ltd. V/s A.M. Turaz & Ors, 2013 (53) PTC 536, and, Pandey Surindra Nath Sinha V/s Bageshwari, AIR 1961 Pat 164)
  2. According to the Halsbury’s Laws of England, Fourth Edition, Volume 28:

…A defamatory statement is a statement which tends to lower a person in the estimation of ‘right thinking’ members of the society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business…

  • A defamatory statement is nothing but a false statement about a man to his discredit. (See: Scott V/s Sampson, 1882 QBD 491)
  • The wrong of defamation consists in the publication of a false and defamatory statement concerning another person without lawful justification. The wrong has always been regarded as one in which the court should have the advantage of the personal presence of the parties if justice is to be done. Thus, not only does an action of defamation not survive for or against the estate of a deceased person, but a statement about a deceased person is not actionable at the suit of his relative.
  • Sections 499 to 502 of the Indian Penal Code, 1860 are constitutionally valid. Reputations cannot be allowed to be sullied on the anvils of free speech and right to free speech is not an absolute right.

Newspaper Publication:

A newspaper is in no different position from an individual and it cannot give currency to a defamatory statement and escape upon the ground that, it showed that it did not believe that which it had published; this may have some bearing on the question of damages but not upon the question of liability. The responsibility in either case is the same. The degree of care and attention is in no way less in the case of newspaper publications other than that required from ordinary men. There can be no doubt that fair comments upon any matter of public interest in which are included publications in a newspaper are protected in absence of malice.

In the matter of: Publishers and Editors of Divya Himachal & Anr V/s Prakash Chand & Ors, RFA No. 153/2003, High Court of Himachal Pradesh, Date of Decision: 11.12.2017, Coram: Tarlok Singh Chauhan, J., it was observed that:

…34. A newspaper has no privilege beyond any other member of the community in commenting (on) any matter of public interest and no privilege whatsoever attaches to his (its) position. When the defendant in a case for damages, takes the plea of fair comment, he is not required to justify the comment and it is sufficient for him if he can satisfy the Court that it is “fair” comment. If the words complained of, are justified as comment and the words also contain allegations of fact, the defendant is required to prove that such allegations of fact are true and it is not sufficient for him to plead that he bona fide believed them to be true. In other words, the distinction between comment and allegations of fact must be always be borne in mind in determining whether the plea of fair comment can be sustained.

35. As regards the publication by the editor, printer and publisher, it is the duty of an editor of a newspaper to check up the news of the information that is supplied to him, before publishing the same in his paper, especially when the news might be defamatory would make the editor responsible for publishing any defamatory material in his paper.

36. As regards the publisher, he would be liable for every publication, wherein any imputation concerning another person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of the other person and would be guilty of defaming the other person. …”

Further, in the matter of: Langlands V/s John Leng Ltd., 1916 S.C. (H.L.) 102 (at p. 110), it was observed that, a newspaper has the right and no greater/higher right to make comment upon a public officer or a person occupying a public situation than an ordinary citizen.

Lastly, in the matter of: Mitha Rustomji Murzban V/s Nusserwanji, AIR 1941 Bom 278, it was held that, the newspapers are subject to the same rules as for other media, and have no special right or privilege, and in spite of the latitude allowed to them, it does not mean that they have any special right to make unfair comments, or to make imputations upon the character of a person, or imputations upon or in respect of a person’s profession/calling.

Duties & Rights of the Journalists:

  1. A journalist like any other citizen has the right to comment fairly and if necessary, severally on a matter of public interest, provided that the allegations of facts he makes are accurate and truthful, however, defamatory they may be otherwise.
  2. In the matter of: Rustom K. Karanjia V/s Krishnaraj M.D. Thackersey, AIR 1970 Bom 424, it was held that, since the right of a journalist to comment on matters of public interest is recognized by law, the journalist obviously owes an obligation to the public to have his facts right. Where a journalist himself makes an investigation, he must make sure that all his facts are accurate and true, so that if challenged, he would be able to prove the same, so that the public interests are better served in that way.
  3. To bring publication of a scandalous imputation under the penal law, it is not necessary to prove that it was done out of any ill-will or malice or that the complainant had actually suffered from it. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant. Every sane man is presumed to have intended the consequences, which normally follow his act. (See: G. Chandrasekhara Pillai V/s G. Raman Pillai, AIR 1964 Ker 277)
  4. In the matter of: Khair-ud-din V/s Tara Singh, AIR 1927 Lah. 22 (p. 23), it was observed that:
  5. It is the duty of a journalist to only publish complaints which he is satisfied are true and if he publishes complaints of a defamatory nature, which are not true he must suffer the consequences;
  6. A journalist who publishes a statement about an individual is in the eyes of law precisely in the same position as is any other person; he is not specially privileged as to what he may say. On the contrary, he has far greater responsibility to guard against untruths, for the simple reason that his utterances have a far greater circulation than the utterances of an individual, and they are more likely to be believed by the ignorant by reason of their appearing in print.
  7. The Press Council of India on 21.01.1993 had issued the following guidelines for guarding against the commission of the following journalistic improprieties and/or un-ethicalities:
  8. Distortion/exaggeration of facts/incidents in relation to communal matters or giving currency to unverified rumours/suspicions/inferences as if they were facts and base their comment, on them;
  9. Employment of intemperate/unrestrained language in the presentation of news/views, even as a piece of literary flourish or for the purpose of rhetoric or emphasis;
  10. While it is the legitimate function of the Press to draw attention to the genuine and legitimate grievance of any community with a view to having the same redressed by all peaceful legal and legitimate means, it is improper and a breach of journalistic ethics to invent grievances, or to exaggerate real grievances, as these tend to promote communal ill-feeling and accentuate discord;
  11. Scurrilous and untrue attacks on communities, or individuals, particularly when this is accompanied by charges attributing misconduct to them as due to their being members of a particular community/caste;
  12. Falsely giving a communal colour to incidents which might occur in which members of different communities happen to be involved.
  13. Publishing alarming news which in substance is untrue and/or exaggerating actual happenings to achieve sensationalism and/or publication of news which adversely affect communal harmony with banner headlines of distinctive types.
  14. Making disrespectful, derogatory or insulting remarks on or reference to the different religions or faiths or their founders.
  15. The Law Commission of India in its 200th Report on Trial by Media, Free Speech and Fair Trial under Criminal Procedure Code, 1973 (August, 2006) stated as follows:

…The freedom of the media not being absolute, media persons, connected with the print and electronic media have to be equipped with sufficient inputs as to the width of the right under Article 19(1)(a) and about what is not permitted to be published under Article 19(2). Aspects of constitutional law, human rights, protection of life and liberty, law relating to defamation and Contempt of Court are important from the media point of view. It is necessary that the syllabus in Journalism should cover the various aspects of law referred to above. It is also necessary to have Diploma and Degree Course in Journalism and the Law…

Trial by Media:

The prejudice that results from reporting was taken note by the Hon’ble Supreme Court of India in the matter of: R.K. Anand V/s Registrar, Delhi High Court, (2009) 8 SCC 106 and while explaining the meaning of “trial by media”, the Hon’ble Court held as under:

…The impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. During high publicity court cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but means that, regardless of the result of the trial, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny…

In the matter of: Court on its Own Motion V/s State & Ors, 2009 Crl. L.J. 677, it was observed that:

… before a cause is instituted in a Court of law, or is otherwise not imminent, the media has full play in the matter of legitimate ‘investigative journalism’. This is in accord with our Constitutional principles of freedom of speech and expression and is in consonance with the right and duty of the media to raise issues of public concern and interest. This is also in harmony with a citizen’s right to know particularly about events relating to the investigation in a case, or delay in investigation or soft-pedaling on investigations pertaining to matters of public concern and importance…

Further, in the matter of: Manu Sharma V/s State (NCT of Delhi), (2010) 6 SCC 1, it was observed by the Hon’ble Supreme Court of India that:

  1. Despite the significance of the print and electronic media in the present day, it is not only desirable but the least that is expected of the persons at the helm of affairs in the field is to ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defence of the accused in any manner whatsoever. It will amount to travesty of justice if either of this causes impediments in the accepted judicious and fair investigation and trial.
  2. Every effort should be made by the print and electronic media to ensure that the distinction between trial by media and informative media should always be maintained. Trial by media should be avoided particularly, at a stage when the suspect is entitled to the constitutional protections. Invasion of his rights is bound to be held as impermissible.

Lastly, in the matter of: Dr. Shashi Tharoor V/s Arnab Goswami & Anr, CS (OS) 253/2017, High Court of Delhi, Date of Decision: 01.12.2017 (Coram: Manmohan, J.) it was observed that-

41…This Court is of the opinion that it is the function and right of the media to gather and convey information to the public and to comment on the administration of justice, including cases before, during and after trial, without violating the presumption of innocence. In fact, presumption of innocence and fair trial are the heart of criminal jurisprudence and in a way important facets of a democratic polity that is governed by rule of law. Journalists are free to investigate but they cannot pronounce anyone guilty and/or pre-judge the issue and/or prejudice the trial. The grant of the fairest of the opportunity to the accused to prove his innocence is the object of every fair trial. Conducting a fair trial is beneficial both to the accused as well as to the society. A conviction resulting from unfair trial is contrary to the concept of justice…

Prior Restraint Orders Against Press:

  1. In the matter of: Reliance Petrochemicals V/s Proprietors of Indian Express Newspapers Bombay, (1988) 4 SCC 592, it was observed that, the test for any preventive injunction against press must be “based on reasonable grounds for keeping the administration of justice unimpaired” and that there must be reasonable ground to believe that the danger apprehended is real and imminent. The Hon’ble Court went by the doctrine of clear, present and imminent danger.
  2. Similarly, in the matter of: Sahara India Real Estate V/s SEBI, (2012) 10 SCC 603, it was observed that, prior restraint per se is not unconstitutional, but it should be passed only when necessary to prevent real and substantial risk to the fairness of the trial and that to if reasonable alternative methods such as, change of venue or postponement of trial, will not prevent the said risk and when the salutary effects of such orders outweigh the deleterious effects to the free expression of those affected by prior restraint.
  3. The Press Council of India’s Reference Guide on the norms of journalistic conduct states that, “…in a conflict between the fair trial and freedom of speech, fair trial has to necessarily prevail because any compromise of fair trial for an accused will cause immense harm and defeat the justice delivery system…
  4. In the matter of: His Holiness Shamar Rimpoche V/s Lea Terhune & Ors, AIR 2005 Del 167, following the decision in the matter of: Khushwant Singh V/s Maneka Gandhi, AIR 2002 Del 58, the Hon’ble Court observed that:

… This court is bound by the judgment of the Division Bench in Khushwant Singh’s case (supra). The sum and substance of the said judgment is that in case of an article/publication of an allegedly offending and defamatory nature, pre-publication injunction of restraint should not be granted in case the defendant who supports the publication cites truth as a defence and pleads justification. In such a case as per Khushwant Singh’s case, damages are the appropriate remedy…”   

Excursus:

  1. The Constitution of India, 1950 is not absolute with respect to freedom of speech and expression, as enshrined in the First Amendment to the American Constitution. One of the permissible heads of restrictions on freedom of expression is defamation.
  2. Freedom of expression and democracy are the cornerstones of the Constitution of India, 1950. The framers of the Constitution of India, 1950 were of the opinion that a well-informed citizenry governs itself better. Freedom of expression as defined in Article 19 of the Constitution of India, 1950 does not specifically mention ‘freedom of press’, but the Hon’ble Supreme Court of India in catena of cases has held that freedom of the media is included in Article 19(1)(a) of the Constitution of India, 1950 and it constitutes one of the essential foundations of democratic society in India. (See: Indian Express Newspaper (Bombay) (P) Ltd. V/s Union of India, (1985) 1 SCC 641)
  3. A free and healthy press is indispensable to the functioning of a true democracy. The primary function of the press is to provide comprehensive and objective information of all aspects of the country’s political, social, economic and cultural life. Press plays an important role in molding public opinion and it is an instrument of social change.
  4. If a newspaper publishes what is improper, mischievously false or illegal and abuses its liberty then it makes itself liable to be punished by the court of law; further, the editor of a newspaper/journal has the responsibility to guard against untruthful news and publications for a simple reason that a newspaper/journal has far greater circulation and impact than any other media and public at large generally believes that which is published in a newspaper.
  5. It is the duty of a true and responsible journalist to strive to inform the people with accurate and impartial presentation of news and their views after dispassionate evaluation of the facts and information received by them and to be published as a news item. The presentation of the news has to be truthful, objective and comprehensive without any false and distorted expression. (See: Surya Prakash Khatri V/s Madhu Trehan, 2001 (92) DLT 665)
  6.  A large number of people tend to believe as correct that which appears in the print or electronic media and for these reasons alone, the mass media has to be circumspect while dealing with news. (See: Rajendra Sail V/s M.P. High Court Bar Association, (2005) 6 SCC 109)
  7. In India, ‘freedom of speech’ is not an absolute/unlimited right. Article 19 (2) of the Constitution of India, 1950 provides reasonable restrictions on what is guaranteed by Article 19 (1) (a) of the Constitution of India, 1950. The mass media is obliged to maintain high professional standards and is expected to verify the correctness of the news disseminated.
  8. Publication of false/fake news is a great disservice to the public. Moreover, the constitutional guarantee of free speech (Article 19(1)(a) of the Constitution of India, 1950) does not confer a right to defame persons and harm their reputation by false and baseless allegations and by innuendoes and insinuations.
  9. In India there can be criminal prosecution for defamation with imprisonment for up to two years and a fine. There is also the civil remedy of damages for defamation.
  10. Every individual/accused has a right to silence. Under the Constitution of India, 1950, no person can be compelled to give testimony or answer questions which may incriminate him. Undoubtedly, an individual affected by a news story must be given an option to give his version, but he cannot be compelled to speak, if he does not want to. The culture of thrusting a microphone in the face of a person needs to be deprecated.

Examination of Section 66A of the Information Technology Act

Technology changes the dimension of the society. Obscenity in electronic form, morphing  of images, defamation, text bullying, stalking, spamming, unsolicited emails, criminal intimidation, extortion, public mischief, insult, threat to cause injury have penetrated in this modern society with the help of cyber technology. Under this back drop the legislative body incorporated section 66 A under the Information Technology Act. The Information Technology Act, 2000 was amended in 2008. The amended Act which received the assent of the President on February 5, 2009, contains section 66A.

Section 66 A of the Information Technology Act, 2000 runs as under:

“66A. Punishment for sending offensive messages through communication device, etc.-Any person who sends, by means of a computer resource or a communication device,—

(a)    any information that is grossly offensive or has menacing character; or

(b)    any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or

(c)     any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,

shall be punishable with imprisonment for a term which may extend to three years and with fine.

Explanation.— For the purpose of this section, terms “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.”

 

Area of controversy:

Free speech is the life blood of a democracy. Now the free speech is becoming un-free due to vague section in Information Technology Act.  Section 66 (A) provides for a jail term of up to three years for anyone who uses a computer or any other communication device to send information that is grossly offensive, menacing’, causes annoyance or hatred. Section 66(A) fails to define the term grossly offensive and annoyance. Under the banner of the word grossly offensive and causes annoyance police can arrest any person because it gives the police unfetter power to arrest anyone in this modern technological age. It is very true that the mental ability of tolerance and annoyance differ person to person, place to place and time to time. Different persons with different mental structure have their different level of annoyance.An April Fool joke ca not also get exemption under Section 66A of the Information Technology Act.

Under this purview it can be said that Section 66 is vague and hence violative of Art 14 of the Constitution. Unfetter power of the police affects the very right of freedom of speech and expression under Article 19(1)(a) of the Constitution. Threat to public order, defamation, incitement to offence, contravening decency and morality, committing contempt of court, etc. are listed in Article 19(2) as grounds to limit freedom but not the matter of grossly offensive and annoyance, menacing character or causing inconvenience, danger, obstruction or insult. Right to life and personal liberty is a guaranteed right under Article 21 of the Constitution and by the virtue of the Section 66A the police gets the unfetter power to arrest any person to consider a tweet or blog ‘grossly offensive’ or ‘of menacing character’, or causing ‘inconvenience, annoyance, danger, obstruction or insult’, is also a great threat to Article 21.

 

Conclusion:

From the above noted observation it can be said that Section 66A of the Information Technology Act is in conflict with Article 14,19(1)(a) and 21 of the Constitution as because Section 66A  absolutely  provides the police with the power to arrest any person under the banner of the word ‘grossly offensive’ or ‘of menacing character’, or causing ‘inconvenience, annoyance, danger, obstruction or insult’ after considering  e-mails, SMSes, blog, vblog, tweets, image, sound(VoIP). It is the need of the hour to amend this draconian section of the Information Technology Act.

Media & Tort of Defamation

Freedom of Media

One of the paradoxes is that Freedom of the Media to which our Founding Fathers were greatly attached finds no mention in Part III of our Constitution which guarantees certain fundamental rights. There is no specific guarantee of Freedom of the Media as in the Constitutions of other countries.

In the course of the Constituent Assembly debates, Dr. B.R. Ambedkar expressed the same view, and thought that “no special mention is necessary of the Freedom of the Media at all”. This view has been vindicated by the Supreme Court of India. In a series of decisions from 1950 onwards the Supreme Court has ruled that Freedom of the Media is implicit in the guarantee of freedom of speech and expression in Article 19(1)(a) of the Constitution. Thus Freedom of the Media by judicial interpretation has been accorded the constitutional status of a fundamental right. However there is a strong body of opinion which favours specific mention of Freedom of the Media as a fundamental right.

The fundamental right guaranteed is not merely the individual right of the proprietor of the newspaper, or the editor or the journalist. It includes within its capacious content the collective right of the community, the right of citizens to read and to be informed, to impart and receive information. In substance, it is right of the people to know.

When we are speaking about the Freedom of the Media it must be remembered that freedom of expression and Freedom of the Media are not absolute and unlimited. Under our constitutional scheme Freedom of the Media also can be restricted provided three distinct and independent prerequisites are satisfied. The restriction imposed must have the authority of law to support it. The law must fall squarely within one or more heads of restrictions specified in Article 19(2), namely,

a)      Security of the State

b)      Sovereignty and integrity of India

c)      Friendly relations with foreign States

d)       Public order

e)      Decency or morality

f)       Contempt of court

g)      Defamation

h)      Incitement to an offence.

 

The restriction must be reasonable.

One of the permissible heads of restrictions is defamation. In our country there can be criminal prosecution for defamation with imprisonment up to two years and fine. There is also the civil remedy for damages for defamation. The possibility of criminal prosecution and imposition of heavy damages in civil suits against the press can have a chilling effect which can at times be freezing. Thus the potentiality of clash between Freedom of the Media and laws or measures protecting reputation which is the purpose of the law of defamation is inevitable. This is a real problem.

The constitutional guarantee of free speech and Freedom of the Press does not confer a fundamental right to defame persons and harm their reputations by false and baseless allegations and by innuendoes and insinuations. The Press enjoys no talismanic immunity from legal proceedings when it has indulged in malicious falsehoods. A person’s right to good name and honor is also a basic human right.

Defamation

Salmond define the wrong of defamation as publication of a defamatory statement about a person without any lawful justification. Blackburn and George define tort of defamation as publication of a statement which brings down reputation of a person before the right thinking members of the society generally. The word “to bring down reputation of a person before the right thinking members of the society generally” is taken from the test suggested by Lord Atkin.

The difference between libel and slander

As mentioned above, libel is tends to be in permanent form whereas slander is spoken words. Legislation has made clear that TV broadcasts or theatre plays are to be treated as libel. For other methods of communication it is necessary to consult the common law which applies a test of permanence or transience of the statement.

In Monson vTussauds, the court had to decide whether a wax statue was capable of being libel. The court hold that it was, the court said that anything which has a permanent of lasting form can be libel including an effigy or chalk marks on a wall. Lopes, J. said that libel need not be always written and can be of any other permanent form.

Another important distinction is that libel is actionable per se, which means without any proof of damage. Whereas slander, like most areas of law, requires proof of some injury before a lawsuit can be brought.

 

What kind of injury can be shown?

Mere damage to reputation is insufficient, so is the loss of friends (though losing out on the hospitality of friends may be sufficient). Something like loss of a job or reduced business profits would be sufficient.

As an aside, the requirement of damage has often been criticized. It is not clear why libel should be more easily actionable. It is true that words in permanent form, such as book, have more potential to reach large numbers of people than simply spoken words, but this may not necessarily be the case where someone is making a speech to large groups of people.

There are, however, some types of slander actionable per se:

• Imputation of criminal conduct – Where a Defendant accuses the Claimant of criminal conduct which is punishable by imprisonment; there is no need for proof of damage. However, words which express suspicion will not be actionable per se.

• Imputation of a contagious disease – This rule is largely outdated but would have had significance during the periods where serious diseases were rampant. Clearly an imputation that someone has a disease can lead to job loss or social exclusion. This exception would be applicable today for something like HIV/AIDS.

• Imputation of unchastity – This applies to the imputation of adultery or unchastity to a woman or girl or even homosexual is actionable per se. The imputation of unchastity was introduced throughout England by Slander of Women Act 1891.  There is no version for men.

• Imputation in unfitness to run a business – It used to be the case that the exception only applied to comments directed at specific professional tasks, thus accusing the boss of an affair with the caretaker would not be under this exception. It would have been if they were accused of an affair with an employee as that affects how they do their job. Now, however, the exception is much broader and applies to the whole job generally.

Requirements to Take Defamation Action

1.      The Statement must be Defamatory

The first requirement for a defamation action is that the statement is defamatory. A defamatory comment is one that injures a person’s reputation. The basic test is from Partimerv. Coupland“[Was the statement] calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule.”

It does not matter if the statement is not believed in fact by the people they are published to, but it does matter if no reasonable person would believe them, in which case they are not actionable. The statement must be assessed in its context and regard must be had to the characteristics of the Claimant. In Monson v. Tussuads, a wax statue of the Claimant had been placed in the same room as some murders next to the Chamber of Horrors. The Claimant had been tried for murder but a verdict of ‘not proven’ was entered and he was successful in his claim.

Defamation must go beyond mere insults and strike at the claimant’s reputation. Insults and jokes may hurt people and even be the cause of a civil action in employment law i.e. between employees, but discourtesy and insults are not on the same level as defamation. Defamation is one of the only areas of civil law to retain a jury, and it would be for the jury to decide whether the words were defamatory.

2.      The Statement Must Refer to the Claimant

The Claimant doesn’t have to be identified by name but as long as a reasonable inference can be made this criterion is satisfied.

However, it is important to remember that the question is not who the publisher intended to hit, but who they actually hit. Thus in Hulton v Jones, Artemus Jones was a barrister who brought an action against the defendants in respect of a newspaper article which allegedly referred to him. The article referred to a man called Artemus Jones who worked as a warden and alleged that he had behaved immorally during a motor festival. The Claimant had contributed pieces to the newspaper before. The Defendants argued that they had never intended the ‘real’ Artemus Jones but instead had created a fictional character and given it a fancy name. The Defendants lost at trial, in the Court of Appeal and in the House of Lords. This case has been called ‘the most famous case in the law of libel’ and has been heavily criticized. Arguably it is quite unfair to the newspaper. At the same time, however, it is not open to anyone with the same name to sue. Rather the jury must reasonably believe that the person in the statement is the Claimant. It will be hard to convince them when the Claimant has no connection at all with any of the facts.

However, in Morgan v.Odhams Press, the court said that ordinary members of the public do not read a newspaper article surgically, as a lawyer would, but simply skim over it. Thus if a person would think the article was referring to the Claimant after a brief skim then that will be sufficient, even if upon a close reading it is clear that it did not refer to the Claimant. However, what often happen in cases where the evidence against the Defendant isn’t strong is that the jury will find the Defendant liable but only give nominal damages.

In cases where there the article accidentally refers to an unintended person, the publisher can make an offer of amends. This is situations where the Defendant neither knew nor had reason to suspect that the statement referred to the claimant or was likely to be understood as referring to the claimant. The offer of amends requires the Defendant to publish an apology and offer to pay compensation.

3.      The Statement must be published

In defamation, ‘publish’ does not have its ordinary definition meaning the printing of words in a book or leaflet. Publishing, here, means communicating the defamatory statement to a third party, whether that is in a conversation or the people at home who are watching a television show in which a defamatory comment is made.

A statement can be published in many ways including by omission, such as where you have a duty to clear graffiti from the walls. The one exception is that communication to the Defendant’s spouse is not publication but communication to the Claimant’s spouse may be.

In Theaker v. Richardson, a husband opened a letter which defamed his wife. It was held that the defamation had been published to the husband as it natural and probable that the husband would open it.

A particular problem for the courts is not the first communication by the Defendant himself but any subsequent communication. Every repetition of a defamatory statement gives rise to a new cause of action against the Defendant provided it was foreseeable the document would be passed on.

In Slipper v BBC, the Claimant was a retired police officer was the subject of a film about trying to capture some men who had committed the Great Train Robbery. The Claimant alleged that the film showed him as a complete idiot. The film had been shown to some journalists before its release to the public and those journalists had published reviews contained the defamatory sting of the film i.e. that he was an incompetent police officer. The Claimant sued not only for the release to the public but the repetitions in the journalists’ reviews. The defendants argued that the repetitions are only actionable where the defendant has authorized them. The court rejected this argument and said that the Defendant can be liable for any re-publication of the defamatory material as long as it was reasonably foreseeable.

The rule of re-publications is stricter in respect of publication on the internet. Every time an internet user accesses an article on a website there is a fresh publication. In Loutchanksyv. Times Newspapers, the defendant argued that the court should adopt a single publication rule as in some US states where an article put online is published once regarding of many times it is accessed. The court rejected this though accepted that the rule may be disproportionate and was somewhat at odds with the 12 limitation period for defamation.

Times Global Broadcasting Co. Ltd. and anr.v. ParshuramBabaramSawant2011(113)BomLR3801

 

The progress of the case, Times Global Broadcasting Co. Ltd. and anr.v.ParshuramBabaramSawantwas watched closely by all news media, politicians, celebrities and other targets of alleged defamation. The verdict of this case is expected to change the face of media reporting forever and also verdicts in pending defamation cases. The verdict of this case was applauded as well as criticized by different sections of judiciary and media. Some argued that this will make media and press more responsible in their reporting while other said that this will discourage media reporting as verdict was too harsh on the defendant. The verdict of this case is also expected to encourage more number of people to file defamation case for damages. Also, some critics of this case expressed their concern because they felt that the verdict was partial because the plaintiff belongs to the legal fraternity and wondered if same damage would have been awarded if the plaintiff would have belonged to some other section of the society.

Facts of the case:

  • The plaintiff has stated that, he is the former judge of Supreme Court, former chairman of the Press Council of India, the former president of the World Association of Press Councils.
  • The defendant no. 1 is a duly incorporated company in the business of news reporting and broadcasting. It belongs to well known “Times Group”. It runs a news channel by the name “Times Now”.
  • The defendant no. 2 is the employee of defendant no. 1 and is the Editor in chief of the said News Channel and as such responsible for all its publication.
  • On 10.9.2008, while the News relating to Provident Fund scam was being telecast by the said channel, a photograph of the plaintiff was flashed as that of Justice P.K. Samantha (an accused in the said scam).
  • The said flashing of photograph created false impression amongst all the viewers in India and abroad that plaintiff was involved in PF Scam which is per se highly defamatory.
  • The said channel stopped publishing the photograph of the plaintiff when the mistake was brought to their notice.

Proceedings before the trial court:

  • The plaintiff filed a suit against the defendant stating that the defendant took belated action which cannot undo the wrong committed.

Questions before the trial court

  • Was the telecast defamatory per se of the plaintiff?
  • Whether the plaintiff is entitled for the damages?

Arguments of the respondent:

  • The defendants argued that the photograph of the plaintiff was only flashed only once for a short duration. It was without malice and without any intention.
  • The defendants have corrected the mistake by withdrawing it from all subsequent news on the channel. Therefore, the act of the defendants was quick and therefore denied carrying any defamation.
  • The defendants have submitted that they have not received any queries from the public.
  • The claim with regard to compensation is baseless and therefore is liable to be dismissed.

Decision of the trial court

  • The court gave decision in the favour of the plaintiff.
  • The court held that:
  • In the light of broadcasting of photo of the plaintiff, according to him, the act of the plaintiff is nothing but a tort for which the plaintiff defamed in the society.
  • The plaintiff is entitled to damage for Rs.100 Crores.

Question before the high court

  • Whether the trial court is correct in its finding?
  • Whether the damages awarded to the plaintiff viable or not?

Decision of the high court

  • The high court gave decision in the favour of the plaintiff.
  • The court asked the defendant to deposit the damage amount to the bank as directed by the court.

 

 

TRIAL BY MEDIA-“a legal dilemma”

RAJ PRASHAR

Introduction

The media is the gatekeeper and watch dog of the society. The media acts as multifaceted institution with multiple activities.

It takes the message simultaneously from all the parties involved and builds the opinion on an issue,with definitely threatens the establishment from violating rights with the growth of the number of news channels and in increasing popularity of” breaking news” Electronic Media has come to play a major role in stirring public opinion and consciousness public advocacy outside the court through well- established mechanism like lobbying, negotiations and mobilization of public opinion has been effectively undertaken by the media.

The current trend of media on reporting cases commonly known as “Trial by media” has witnessed the sensation of self- manifested stories, half- baked truth resulting in the violation of right of individuals, resulting media reporting transforming into media circus.

Trial by media is a phrase popular in the last few decades to describe the impact of television and print media coverage on a case by creating a wide spread perception of guilt on part of accuse regardless of any verdict in a court of law and hence the accuse is held guilty even prior to his trial. The blatantly violate the code is sell their story and boost their TRP, leaving far reaching injury to the reputation of the accused. The media involves itself so intensely and during such high publicity court cases the media sensationalises the case and provokes atmosphere of public hysteria which not only makes a free and fair trial impossible but also maligns in the reputations of the accused to such degraded level that their rest of life comes under public- hatred and had scrutiny.

Suspects and accused apart, even victim and witnesses suffer from excessive publicity and invasion of their privacy rights.

On the other facet, the trial by media interferes with the administration of justice and tends to lower the authority of courts and finally hampering the functioning of democracy because an independent judiciary to dispense justice without fear or favour is necessary and it strength is the faith of the public in general in that institution.

Further the media meddles with into the investigation thereby, misdirecting the investigation or hindering the functioning of investigating agencies.

Examples –

The media has effectively undertaken the cause of justice for the cases of Jessica Lall, Priyadarshini Mattoo, Nitish Katera, BMW case, Arushi murder case and many more simultaneously, it has on one hand without considering about the inherent or intended effect interfered with the rights of people involved in the case and on the other hand tried to usurp the prerogative of the courts to try the cases.

Freedom and restrictions on freedom of press-

In words of Blackstone “The liberty of press indeed essential to the nature of a free state. Every free man has an undoubted right to lay what sentiment he pleased before the public, to forbid this is to destroy the freedom of the press. But if be published what is improper, mischievous or illegal he must take the consequence of his own temerity.”

Article 19(1)(a) of the constitution of India grant freedom of speech and expression to the citizens of India. The freedom of press is a necessary concomitant of the freedom of expression that involves a right to receive and impart information without which democracy becomes an empty slogan.

But the right is not absolute and is subjected to the reasonable restrictions of defamation and contempt of court among other mentioned in clause(2).

Defamation-

The law of defamation seeks to protect individual reputation. Its central problem is how to reconcile this purpose with the competing demands of free speech. Both interests are highly valued in our society, the one as perhaps the most dearly prized attribute of civilised man, the other foundation of a democratic community.

Without restriction under article 19(1) it is well settled principle of equity at that once freedom to move his arm ends where somebody’s nose starts.

The freedom of speech and expression does not entitle the per cent to injure another in his trade and or to lower him in the esteem or the fellow- beings or to expose him to hatred ridicule or justification.

Truth is the defence in a suit of defamation, but truth cannot be pleaded as defence for publishing derogatory, scurrilous and defamatory material against a private person where no public interest is involved.

The media has to publish that is in public interest and not what “public is interested in.”

Contempt of court and right to free and fair trial-

Under the cover of freedom of speech and expression know no party can be given a licence to misinterpret the proceedings and order of the court and deliberately paint an absolute wrong and incomplete picture which has to tendency to scandalize and bring it into this repute and ridicule.

Lord Denning in Times case observed

“We must not allow trial by a newspaper, a trial by television or trial by any other medium other than a court of law. But in so stating the law, I would emphasise that it applies only when litigation is spending and is actively in suit before the court.To which I would add that there must appears to be a real and substantial danger of prejudice to the trial of the case or the settlement of it”.

A judge is not immune from the society and he’s also suspect able to aura created by the media against the accused.

There is immense likelihood of bias creeping into judges’ mind subconsciously. A judge has to guard himself against any such pressure and he is too guided strictly by rules of law. The malicious and slanderous publication inculcates in mind of people a general dissatisfaction on the judicial determination and indisposes year their elegance to obey them, if the people allegiance to law is fundamentally shaken, it is the most vital and dangerous obstruction of justice.

Right to privacy-

The right to privacy an independent and distinctive concept, like the concept of defamation originated in the field of ‘Torts’.

In trial by media the trend shows that suspects and accused apart even victim and witnesses suffer from excessive publicity and invasion of their privacy rights.

If a private person or agency unilaterally conducts a string operation, it would be violating the privacy of another person and would make it liable for action at law.

Media should refrain from making public any activities or materials related to an individual’s personal and private affairs or which invades an individual’s privacy unless there is an identifiable large public interest.

Conclusion-

Media forms the backbone of the society, as many authors say “eyes and ears of the general public”.

A responsible media needs to take into the consideration the reliance intrusted on it by the general public and confidence and faith as to blindly accept that truth of the news published by media.

In doing so the media should follow certain norms in reporting a crime which is globally accepted:

1. Accuracy and fairness shall be maintained in reporting.

2. Factual accuracy of the report shall be verified before publication.

3. Every caution shall be undertaken against defamatory writings.

4. Right to privacy shall not be intruded or invaded unless over weighted by genuine overriding public interest.

5. Due care shall be exercised in making fair criticism of judgement and reporting court proceedings.

6. Reports shall not be published based on conjecture or surmises or in suspicion.

7. Glorification of an act of violence shall be forbidden.

8. The heading shall not be sensational or provocative and it must justify the matter printed under them.

9. Correction shall be made or published without any delay in cases of error.