Download Muslim women and how they have been used as pawns. and more Essays (university) Political Theory in PDF only on Docsity!
DEFAMATION: GENERAL PRINCIPLES AND INDIAN CONTEXT.
1. INTRODUCTION
The tort of defamation protects a person’s reputation and integrity from being harmed by the dissemination of false statements. The need to protect individual reputation was highlighted in Reynold v Times Newpapers [2001] 2 Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely – Lord Nicholls. Under article 10 of the ECHR 1950, everyone has the right to freedom of expression, including the right to hold opinions and to receive and impart information. However, the exercise of this right is subject to the conditions prescribed by law for, among other things, the protection of the reputation or rights of others. Thus, the tort of defamation seeks to balance the right to freedom of expression and the need to protect individual reputation, integrity and privacy. Freedom of expression is therefore, accompanied by a duty not to use that freedom to the detriment of others without justification. However, the tort of defamation does not protect someone’s feelings or opinion about himself or herself from being wounded or damaged; it only seeks to p rotect a person in relation to what other people think of, or how they relate with, him or her.
A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule -- Lord Wensleydale (then Parke B) in Parmiter v. Coupland (1840). A statement which tends to lower the claimant 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 and dis-esteem – Lord Atkin in Sim v Stretch [1936] A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule -- Lord Wensleydale (then Parke B) in Parmiter v. Coupland (1840). A statement which tends to lower the claimant 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 and dis-esteem – Lord Atkin in Sim v Stretch [1936]. See also the definitions in Youssopoff v MGM [1934] 50 TLR 581. A statement means “words, pictures, visual images, gestures or any other method of signifying meaning” – S. 17 Defamation Act 1996; s 15 Defamation Act
There are two types of defamation: libel and slander. Libel Libel refers to written or visual defamatory statement in a permanent form. This includes written statements, pictures, movies, postcards, and statues. Theatre performances and TV and radio broadcasts. Monson v Tussaud’s [1894] – a waxwork figure of the claimant with a gun close to the “Chamber of Horrors” in the defendant’s premises was held to be libellous; it suggested that the claimant (who had earlier been discharged on criminal trial) was a criminal. Youssoupoff v MGM [1934] -- a film (Rasputin and the empress) that suggested that the claimant, a princess of the Russian royal family, was seduced or raped by Rasputin (a Russian Mystic, also referred to as the “Mad Monk”) was held to be Libellous. Words recorded on a disc/CD/Tape are likely to be considered libel rather than slander because of their permanent character. In the past, libel was always actionable per se; there was a presumption that the statement was injurious.
[…] Not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on [the plaintiff's] part, but also if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on [the plaintiff's] part. It is for that reason that persons who have been alleged to have been insane, or be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour – Slesser L.J. Berkoff v Burchill [1996] […] Words may be defamatory, even though they neither impute disgraceful conduct to the plaintiff nor any lack of skill or efficiency in the conduct of his trade or business or professional activity, if they hold him up to contempt scorn or ridicule or tend to exclude him from society. On the other hand insults which do not diminish a man's standing among other people do not found an action for libel or slander – Lord Justice Neill. In Berkoff v Burchill, the statement: “film directors, from Hitchcock to Berkoff, are notoriously hideous-looking people” was held capable of being defamatory. According to the court: In the present case, it would in my view, be open to a jury to conclude that in the context the remarks about Mr Berkoff gave the impression that he was not merely physically unattractive in appearance but actually repulsive. It seems to me that to say this of someone in the public eye who makes his living, in part at least, as an actor, is capable of lowering his standing in the estimation of the public and of making him an object of ridicule – Lord Justice Neill. Armstrong v Times Newspapers and Others [2006] The defendants were sued for an article entitled “L.A. CONFIDENTIAL: The Secrets of Lance Armstrong”. The sub-title stated that a book co-authored by the 2nd defendant will “raise new questions about Lance Armstrong, five-time champion of the Tour de France and an icon of the sporting world”. The article cast aspersions on the claimants many Tour-de-France titles amidst suspicions of use of performance- enhancing drugs in the sport.
The claimant claimed that the words in their natural and ordinary meaning meant and were understood to mean that he had taken performance enhancing drugs; and that by taking drugs and denying it, he was a fraud, a cheat, and a liar. It was held that the words, in their natural and ordinary meaning were defamatory. (The judgment in this case would, of course, be different today given that Armstrong has been proven to have used prohibited substances to achieve all his Tour-de-France wins; and all the titles have been stripped from him by the cycling authorities). Contrast with: Byrne v Deane [1937] – someone had tipped off the police about the presence of a gaming machine in a golf club. Someone then posted a notice at the club stating: “but he who gave the game away, may he byrne in hell and rue the day”. The claimant (Byrne) claimed that the statement was defamatory of him in that it suggested that he was disloyal to his club. It was held that reporting a criminal activity could not be defamatory in the opinion of right-thinking members of the society. Where a statement is introduced by a caption or headline, the whole publication, not merely the caption or headline, would be considered for the purposes of defamation. Charleston v News Group Newspapers [1995] – the question was whether a picture of a near-naked man and woman (bearing the faces of the claimants) in a pornographic pose under a caption “Strewth! “What’s Harold up to with our Madge” was defamatory. The claimants played the characters Harold and Madge Bishop in the Soap “Neighbours”. The defendant was held not liable; the publication must be read as a whole to determine if the statement in question is defamatory: Whether the text of a newspaper article will, in any particular case, be sufficient to neutralise the defamatory implication of a prominent headline will sometimes be a nicely balanced question for the jury to decide and will depend not only on the nature of the libel which the headline conveys and the language of the text which is relied on to neutralise it but also on the manner in which the whole of the relevant materials is set out and presented. But the proposition that the prominent headline, or as here the photographs, may found a claim in libel in isolation from its related text, because some readers only read headlines, is to my mind quite unacceptable.
impecunious and unworthy of credit. The words were held not to be defamatory. Contrast this case with: Lewis v Daily Telegraph [1954] – a story that the claimant’s business was being investigated by the City of London Fraud Squad was held not to be defamatory; it did not carry an innuendo that the claimant was guilty of fraud. A derogatory statement may be so near the surface that it is hardly hidden at all or it may be more difficult to detect. If it is said of a man that he is a fornicator, the statement cannot be enlarged by innuendo. If it said of a man that he was seen going into a brothel, the same meaning would probably be conveyed to nine men out of ten. But the lawyer might say that in the latter case derogatory meaning was not a necessary one because a man might go to a brothel for an innocent purpose. An innuendo pleading that the words were understood to mean that he went there for an immoral purpose would not, therefore, be ridiculous. To be on the safe side, a pleader used an innuendo whenever the defamation was not absolutely explicit. That was very frequent, since scandalmongers are induced by the penalties for defamation to veil their meaning to some extent – Lord Devlin. True innuendo -- In this instance, the words in their ordinary meaning are not defamatory but become defamatory only when they are read by people who possess additional information which are not mentioned in the statement. To succeed, the claimant must make known these additional information and prove that the readers were aware of it. Tolley v Fry (1930). An amateur golfer was featured, without his consent, in the defendant’s advertisement of their chocolate creams. It was held to be defamatory in that it contained an innuendo that the defendant had behaved inappropriately as an amateur golfer by making money from an advertisement: The innuendo alleged that the ‘defendants meant and were understood to mean, that the plaintiff had agreed or permitted his portrait to be exhibited for the purpose of the advertisement of the defendants’ chocolate; that he had done so for gain and reward; that he had prostituted his reputation as an amateur golf player for advertising purposes, that he was seeking notoriety and gain by means aforesaid; and that he had been guilty of conduct unworthy of his status as an amateur golfer – Viscount Hailsham.
Cassidy v Daily Mirror (1929). The publication of the photograph of a man and woman with the caption “C and B whose engagement has been announced” was held to be defamatory by innuendo of C’s wife. The publication suggested that she was living immorally with her husband. Vulgar abuse would generally not amount to a defamatory statement. Vulgar abuses are statements of abuse made in the heat of passion or in the course of a quarrel. Field v Davis [1955] Times 25 May 1955 C was called a tramp by D. C claimed that the word was defamatory because it suggested she was a woman of loose and immoral character. It was held that the word amounted to a vulgar abuse and was not defamatory.
- Statement must refer to the Claimant The statement must refer to the claimant. However, the reference may be explicit or implied. If the claimant was named in the publication, there is little problem in finding that it referred to him. Where the claimant was not named in the publication or where the reference was not explicit, the statement could be said to refer to the claimant if reasonable people, who are aware of the special facts, would believe that the statement refers to him. The test therefore is whether the words could reasonably be understood as referring to the claimant. Hulton v Artemus Jones (1910) A publication about the misdeeds in Dieppe of a certain “Artemus Jones, a church warden from Peckham” (a fictitious character) was held to be a reference to the claimant who bears the same name even though he was not a church warden, was not from Peckham, and had not been to Dieppe: What does the tort consist in? It consists in using language which others knowing the circumstances would reasonably think to be defamatory of the person complaining of and injured by it – Greene MR. Newstead v London Express [1940] A publication on bigamy about “Harold Newstead, a 30 year-old Camberwell man who was jailed for nine months liked having two wives at once,” was held defamatory of the claimant who bore the same names and lived in Camberwell.
Where the defamation relates to a class of persons, individual members of the group may not be able to sue unless the statement pointed to them or could reasonably be taken to refer to them. If the class in question is small, it may be easier to find that the statement identified or referred to an individual member: Knuppfer v London Express Newspapers (1944) The claimant claimed that an article in the defendant’s newspaper critical of Russian political refugees (Mlado Russ) in general was libellous to him personally. The claimant was the head of the UK branch that had only 24 members. It was held that the publication did not refer to the claimant.
- Statement must be published. To be defamatory, the offending statement must be published. This means that the person who made it must express the statement to a third party. There would be such a publication if the defendant intended the statement to be received by third parties or ought to have foreseen such reception. Pullman v Hill [1891] – dictating a defamatory letter to one’s typist was held to be Publication. Huth v Huth [1915] – a defamatory statement in a letter addressed to a householder but opened by a butler without authorisation was held not to have been published. Where the defendant claims that he did not intend to publish the statement, the test is whether it is reasonably foreseeable that the statement would be seen by a third party. If the answer were to be yes, the defendant would be deemed to have published it, otherwise he would not be. Theaker v Richardson (1962) – The defendant sent a letter to the claimant in a Manila envelope, but the letter was opened by the claimant’s husband. It was held that the letter had been published. A defamatory statement made by the defendant to the claimant is not actionable since the claimant’s reputation has not been damaged. Similarly, there is no defamation if the claimant himself publishes the statement to a third party. There can be no publication between spouses but there can be publication to one spouse about the other. 3.1 Republication
Every repetition of a defamatory statement by another person is a new publication and creates a new cause of action; the repeater of the statement will be liable for the defamation. However, the originator of the statement may remain liable for the repetition if: (a) The repetition is a natural and probable consequence of the original publication (b) There was a significant risk of repetition; and (c) The statement was intended to be repeated; and (d) The first receiver of the statement has a moral duty to repeat it In McManus v Victoria Beckham (2002), the following statement allegedly made by the defendant in an autograph shop was repeated by newspapers: “Excuse me but do not buy any autographs from this shop, they are all fakes. This is not my husband’s signature out there.” It was held that the defendant would only be liable for the repetition if she knew or ought reasonably to appreciate that the statement was likely to be repeated by others. 3.2 The Single Publication” Rule In the past, not only would every republication of a libellous statement amount to a new publication, any republication by the same publisher of defamatory material in newspaper’s archives, would also amount to a new publication – Loutchansky v Times Newspapers [2002] In Times Newpapers v United Kingdom [2009] EMLR 14, the European Court of Human Rights held that this rule did not violate article 10 of the Human Rights Act
[…] The margin of appreciation afforded to states in striking the balance between the competing rights is likely to be greater where news archives or past events, rather than news reporting of current affairs, are concerned. In particular, the duty of the press to act in accordance with the principles of responsible journalism by ensuring the accuracy of historical, rather than perishable, information published is likely to be more stringent in the absence of any urgency in publishing the material. Publication on the Internet Although publication to a single person may be enough to justify a defamation action, publications on the Internet must be to a substantial audience within the jurisdiction. Dow Jones v Jameel [2005] – an online publication which was accessed by only five people in England in Wales was held not be sufficient publication to justify a libel action in England. It was therefore, an abuse of the court process.
and no further. Third Exception.—Conduct of any person touching any public question.—It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further. Illustration It is not defamation in A to express in good faith any opinion whatever respecting Z’s conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending a such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharges of the duties of which the public is interested. Fourth Exception.—Publication of reports of proceedings of Courts.—It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings. Explanation.—A Justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section. Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned.—It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further. Illustrations (a) A says—“I think Z’s evidence on that trial is so contradictory that he must be stupid or dishonest”. A is within this exception if he says this is in good faith, in as much as the opinion which he expresses respects Z’s character as it appears in Z’s conduct as a witness, and no further. (b) But if A says—“I do not believe what Z asserted at that trial because I know him to be a man without veracity”; A is not within this exception, in as much as the opinion which he express of Z’s character, is an opinion not founded on Z’s conduct as a witness. Sixth Exception.—Merits of public performance.—It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further. Explanation.—A performance may be substituted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public. Illustrations (a) A person who publishes a book, submits that book to the judgment of the public. (b) A person who makes a speech in public, submits that speech to the judgment of the public. (c) An actor or singer who appears on a public stage, submits his acting or signing in the judgment of the public.
(d) A says of a book published by Z—“Z’s book is foolish; Z must be a weak man. Z’s book is indecent; Z must be a man of impure mind”. A is within the exception, if he says this in good faith, in as much as the opinion which he expresses of Z respects Z’s character only so far as it appears in Z’s book, and no further. (e) But if A says—“I am not surprised that Z’s book is foolish and indecent, for he is a weak man and a libertine”. A is not within this exception, in as much as the opinion which he expresses of Z’s character is an opinion not founded on Z’s book. Seventh Exception.—Censure passed in good faith by person having lawful authority over another.—It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. Illustration A Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a school-master, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashier—are within this exception. Eighth Exception.—Accusation preferred in good faith to authorised person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation. Illustration If A in good faith accuse Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z’s master; if A in good faith complains of the conduct of Z, and child, to Z’s father—A is within this exception. Ninth Exception.—Imputation made in good faith by person for protection of his or other’s interests.—It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. Illustrations (a) A, a shopkeeper, says to B, who manages his business—“Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty”. A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests. (b) A, a Magistrate, in making a report of his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception. Tenth Exception.—Caution intended for good of person to whom conveyed or for public good.—It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good. COMMENTS Imputation without publication In section 499 the words “makes or publishes any imputation”
