ANALYSIS OF THE SCOPE OF LAW OF LIBEL AND SLANDER

In fulfillment of Torts Assignment

Submitted By:

Submitted To:

Shubh Dixit

Shyam Kaushik

B.A. LLB (Hons.)

Faculty of Law

Semester II

NATIONAL LAW UNIVERSITY, JODHPUR

WINTER SESSION
(JANUARY- MAY, 2015)

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Contents
INTRODUCTION TO LAW OF TORTS..................................................................................3
DEFAMATION..........................................................................................................................4
ESSENTIALS OF DEFAMATION...........................................................................................5
DEFENCE..................................................................................................................................6
LIBEL........................................................................................................................................7
CELEBRITY LIBEL CASES............................................................................................9
SLANDER.................................................................................................................................9
CYBER DEFAMATION SOCIO ECONOMIC OFFENCE.................................................10
Position In India...................................................................................................................12

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INTRODUCTION TO LAW OF TORTS

The word Tort is derived from a Latin word 'Tortus' which means 'twisted' or 'cooked act'. In
English it means, 'wrong'. The Expression 'Tort' is of French Origin. The term 'Tort' means a
wrongful act committed by a person, causing injury or damage to another, thereby the injured
institutes (files) an action in Civil Court for a remedy viz., unliquidated damages or
injunction or restitution of property or other available relief.1
The development in Indian law need not be on the same lines as in England. In M.C. Mehta v.
Union of India2, Justice Bhagwati said, we have to evolve new principles and lay down new
norms which will adequately deal with new problems which arise in a highly industrialized
economy. We cannot allow our judicial thinking to be constructed by reference to the law as it
prevails in England or for the matter of that in any foreign country. We are certainly prepared
to receive light from whatever source it comes but we have to build our own jurisprudence. It
has also been held that section 9 of The Code of Civil Procedure, which enables the civil
court to try all suits of a civil nature, impliedly confers jurisdiction to apply the Law of Torts
as principles of justice, equity and good conscience. In a more recent judgement of Jay Laxmi
Salt Works (p) ltd. v. State of Gujarat 3, Sahai, J., observed: truly speaking the entire law of
torts is founded and structured on morality. Therefore, it would be primitive to close strictly
or close finally the ever expanding and growing horizon of tortuous liability. Even for social
development, orderly growth of the society and cultural refineness the liberal approach to
1 http://www.lawnotes.in/Law_of_Torts.

2 1988 AIR 1115, 1988 SCR (2) 530.

3 1994 SCC (4) 1, JT 1994 (3) 492.

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tortious liability by court would be conducive. 4 Indian courts have been relatively mild in
dealing with issues of defamation, unlike U.K. courts, which are notorious for awarding
astronomical damages for libel.
Tardiness in the Indian legal process also leads to more criminal complaints being filed than
civil actions for damages because a criminal case followed by a summons from the
magistrates court is often perceived as a greater threat and nuisance than a civil remedy that
may take an age to come to fruition.

DEFAMATION

There is always a thin line between one person's right to freedom of speech and another's
right to protect their reputation. It is often hard to know which personal remarks are proper
and which run afoul of defamation law.
A defamatory statement is one which injures the reputation of another by exposing him to
hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking
members of society.5 If the statement is made in writing and published, the defamation is
called "libel." If the hurtful statement is spoken, the statement is "slander." Defamation law,
for as long as it has been in existence in the United States, has had to walk a fine line between
the right to freedom of speech and the right of a person to avoid defamation. On one hand,
people should be free to talk about their experiences in a truthful manner without fear of a
lawsuit if they say something mean, but true, about someone else. On the other hand, people

4 http://www.legalserviceindia.com/articles/torts_s.htm.

5 http://www.lawteacher.net/lecture-notes/tort-law/defamation-lecture.php.
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have a right to not have false statements made that will damage their reputation. Discourse is
essential to a free society, and the more open and honest the discourse, the better for society. 6

ESSENTIALS OF DEFAMATION

1. DEFAMATORY WORDS
The statement must be defamatory. According to Lord Atkin, the statement must tend
to lower the claimant in the estimation of right-thinking members of society generally,
and in particular cause him to be regarded with feelings of hatred, contempt, ridicule,
fear and disesteem.
2. REFERENCE TO THE CLAIMANT :
The statement must refer to the claimant, ie, identify him or her, directly or indirectly.
For instance, if a class of people is defamed, there will only be an action available to
individual members of that class if they are identifiable as individuals. "If a man
wrote that all lawyers were thieves, no particular lawyer could sue him unless there
was something to point to the particular individual."
3. PUBLICATION
The statement must be published, ie communicated, to a person other than the
claimant.
For example, dictating a defamatory letter to a typist is probably slander (Salmond
and Heuston on the Law of Torts, 1996, p154), but when the letter is published to a
third party it is libel. However, in Bryanston Finance v De Vries [1975] QB 703 it was
held that where a letter was written to protect the interests of the business there was a

6 http://injury.findlaw.com/torts-and-personal-injuries/defamation-law-the-basics.html.
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common interest between the employer and employee, and so a letter dictated to a
secretary in the normal course of business was protected by qualified privilege.7

DEFENCE

1. TRUTH
Only false statements are actionable, so if the statement made about the claimant is
true, there can be no action for defamation. The burden of proof is on the defendant to
prove that the statement made is true, rather than on the claimant to prove that it was
false.
2. FAIR COMMENT:
The defence of fair comment is frequently relied upon by the press, as it is designed to
protect statements of opinion on matters of public concern. Lord Esher, in Merivale v
Carson (1887) 20 QBD 275, stated that the test was:
"Would any fair man, however prejudiced he may be, however exaggerated or
obstinate his views, have said that which this criticism has said of the work which is
criticised?"
The defence only applies to comments made on matters of public interest, eg
comments on works of literature, music, art, plays, radio and television; and also the
activities of public figures.8
3. PRIVILEGE:
There are certain occasions on which the law regards freedom of speech as essential,
7 Supra note 7.

8 http://www.lawteacher.net/lecture-notes/tort-law/defamation-lecture.php
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and provides a defence of absolute privilege which can never be defeated, no matter
how false or malicious the statements may be.

LIBEL

Libel is a method of defamation expressed by print, writing, pictures, signs, effigies, or any
communication embodied in physical form that is injurious to a person's reputation, exposes a
person to public hatred, contempt or ridicule, or injures a person in his/her business or
profession.
Libel is a tort governed by State law. State courts generally follow the common law of libel,
which allows recovery of damages without proof of actual harm. Under the traditional rules
of libel, injury is presumed from the fact of publication. However, the U.S. Supreme Court
has held that freedom of expression secured by the First Amendment limits a State's power to
award damages in actions for libel.
In New York Times Co. v. Sullivan, the Court held that proof of actual malice is required for
an award of damages in an action for libel involving public figures or matters of public
concern. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964). The Court reasoned that
speech related to matters of public concern is at the heart of the protections guaranteed by the
First Amendment, and outweighs the State's interest in compensating individuals for damage
to their reputations.9

9 https://www.law.cornell.edu/wex/libel.
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Libel can be personal libel or trade libel, which is also known as "product disparagement."
Product disparagement can include a product, service or entire company. Libelous statements,
whether against persons or products, are published statements that are false and damaging.
To prevail in a libel case against you, in addition to showing that your statement is untrue and
caused significant harm, a public official or a public figure must also prove "malice" -- that
you acted in reckless disregard to the facts known to you and with intent to harm.
Obviously, because of this stipulation, you enjoy considerable protection when it comes to
public personages, since proving malice (intent to harm) places a heavy burden on the
prosecution. Who are these public people? The status of "public official" is relatively easy to
determine from public records. The trick comes in determining who falls into the category of
"public figure.
The courts have determined that there are two types of public figures:
A "general purpose public figure" is someone who enjoys social prominence. Entertainers
are in this category.
A "limited purpose public figure" -- someone who has intentionally placed themselves into
prominence, such as a vocal activist on a given issue.10
An early example of libel is the case of John Peter Zenger in 1735. Zenger was hired to
publish New York Weekly Journal. When he printed another man's article that criticized
William Cosby, who was then British Royal Governor of Colonial New York, Zenger was
accused of Seditious Libel.[9] The verdict was returned as Not Guilty on the charge of
seditious libel, because it was proved that all the statements Zenger had published about
Cosby had been true, so there was not an issue of defamation. Another example of libel is the
10 http://www.writing-world.com/rights/libel.shtml.
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case of New York Times Co. v. Sullivan (1964). The U.S. Supreme Court overruled a State
court in Alabama that had found The New York Times guilty of libel for printing an
advertisement that criticized Alabama officials for mistreating student civil rights activists.
Even though some of what The Times printed was false, the Court ruled in its favor, saying
that libel of a public official requires proof of Actual Malice, which was defined as a
"knowing or reckless disregard for the truth".11
CELEBRITY LIBEL CASES
Cameron Diaz - The British Sun newspaper hinted that Diaz had an affair with Shane
Nickerson, a friend. When the article was published, she and Nickerson were in relationships
and the hardly recognizable imaged posted with the article caused damage to both
relationships, so Diaz sued for defamation. But no one is sure of the amount of money Diaz
was awarded.12
Kiera Knightley - The Daily Mail published accusations that Knightley had an eating disorder
and had been responsible for the death of a young lady with anorexia. The actress went to
court and was awarded several thousand dollars which she handed over to a charity.13

SLANDER
Also known as oral defamation, in which someone tells one or more persons an untruth about
another, which untruth will harm the reputation of the person defamed. Slander is a civil
11 Ibid.

12 http://www.insidecounsel.com/2014/11/18/6-most-successful-celebrity-libel-and-slandercase?page=2.

13 Ibid.
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wrong (tort) and can be the basis for a lawsuit. Damages (payoff for worth) for slander may
be limited to actual (special) damages unless there is malicious intent, since such damages are
usually difficult to specify and harder to prove. Some statements, such as an untrue
accusation of having committed a crime, having a loathsome disease or being unable to
perform one's occupation, are treated as slander per se since the harm and malice are obvious
and therefore usually result in general and even punitive damage recovery by the person
harmed. Words spoken over the air on television or radio are treated as libel (written
defamation) and not slander on the theory that broadcasting reaches a large audience as much
as if not more than printed publications.14
There are two types of slander: slander and slander per se. In the first kind of slander, the
plaintiff must prove the defendant made a defamatory statement to at least one other person
(i.e. the essential defamation elements) and that the plaintiff suffered what are referred to as
special damages as a result of the defamation. Special damages are actual harm like loss of
customers, being fired, or some other financial harm.

A slander per se claim does not require that the plaintiff prove special damages. This is
because slander per se claims involve categories of defamatory statements that are presumed
to be damaging to the plaintiff. While the categories may change a little for state to state, and
evolve over the years, some of the most common slander per se categories are:
imputing criminal conduct to the plaintiff
saying that the plaintiff has certain types of communicable diseases, and
any harmful statement about the plaintiff's profession or business.15
14 http://dictionary.law.com/Default.aspx?selected=1969.
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CYBER DEFAMATION SOCIO ECONOMIC OFFENCE

The definition of what constitutes a crime in cyber space is still being developed. In the past,
the states and federal government defined cyber crime activities to include the destruction or
theft of computer data and programs. More recently the definition has expanded to include
activities such as forgery, illegal gambling, cyber stalking, cyber defamation etc.
There are several areas on the internet where there is a real risk of liability for defamation.
The fact that a user is "alone" with his computer and distanced from other users creates a
sense of intimacy. There is no spoken/telephonic conversation or dictated correspondence that
would normally instill some caution. In addition, the notion that the internet is a "free-for-all"
cyberspace where there are no limits or boundaries results in a user's sense of social norms
and propriety generally getting blurred.
The Web results in an instant global publication of information at a very low cost.
Information, which would not normally have been revealed prior to the dawning of the
internet, can now be unearthed by practically anyone. Intranets are intended to be exclusively
used by a company. However, information from an intranet can be easily downloaded and
forwarded by e-mail or otherwise to third parties. Information posted to a bulletin board can
be accessed by anyone. This means that anyone can place defamatory allegations on the
bulletin board. E-mail users generally tend to treat their correspondence as a kind of
conversation rather than a written interaction. Users forget that e-mails are stored and can be
retrieved as hard copies and that their contents then cannot be disputed. One message can be
circulated to literally hundreds of people. As a defamatory allegation need only be disclosed
to one person for publication to be proved, every time e-mail is forwarded to another person,
it is published again and an additional cause of action for defamation arises.

15 http://www.alllaw.com/articles/nolo/personal-injury/defamation-libel-slander.htm.
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The scope of every firm having a cyber presence to liability for defamation is global. Internet
sites can be accessed in most countries throughout the world; huge amounts of data can be
transmitted simultaneously to several different destinations; and e-mail can be forwarded to
an indefinite number of recipients without the original author having any control over the
transmission. While a legal action based on defamation is usually aimed at stopping the
defamatory allegations, the harm in most cases has already been done. Consequently, the
most important relief claimed in a defamatory action is damages. The amount of damages
granted will depend on the nature of the defamation sought and the extent of publication.
Furthermore, a defamation claim can be instituted in any jurisdiction in which a cause of
action arises.
Cyber defamation need not necessarily be directed against an individual victim, but it could
be harmful to the whole society. No doubt, at times, it could be directed against an individual
('victim'), but the criminal act is potentially capable of harming a large number of persons and
that is the principal object behind punishing it. In short it is an offence, which affects the
health or material welfare of the community as a whole and not merely of the individual
victim.
Position In India
IPC on Defamation:
Chapter XXI of the IPC exclusively talks of defamation. Section 499 prescribes the offence:
Whoever, by words either spoken or intended to be read, or by signs or by visible
representations, makes or publishes any imputation concerning any person intending to harm,
or knowing or having reason to believe that such imputation will harm, the reputation of such
person, is said . . . to defame that person.

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Explanation 2. - It may amount to defamation to make an imputation concerning a company

or an association or collection of persons as such.
Section 500 prescribes the punishment in such cases:
Whoever defames another shall be punished with simple imprisonment for a term, which may
extend to two years, or with fine, or with both.16

16 http://www.legalservicesindia.com/articles/defcy.htm.
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