Development of defamation in England, however, must not be ignored, as it is English Law which laid down the foundations of defamation. However, English laws seem to have followed the opposite direction, as modern defamation law in England is touted by experts as being restrictive of free speech.[14] Although cases like Derbyshire County Council v Times Newspaper Ltd[15] have made public officials open to uninhibited public criticism, and the fundamentality of the right to freedom of speech has been confirmed by the court in Reynolds v Times Newspapers Ltd[16], it appears that the Courts in England have incorporated free speech only till the extent of public officials, and have not accepted the American preference for free expression.[17] Authorities have called English law as equally respectful of reputation and freedom of expression; and the American preference as ‘hallowed’[18].
However, it appears both the press[19] and the English Parliament are questioning the legitimacy of this attitude held by the English law, as defamation suits are extremely difficult to maintain in practice, as they are extremely expensive, and little hope lies in defending them.[20] The phenomenon of libel tourism seems to support this; London has even called the libel capital of the world[21]. Further, defamation laws are surrounded by artificial and technical rules, adding even more complications.[22]
Thus, it appears that both systems have problems, practically speaking, when it comes to defamation. However, it is not easy to say which is ‘better’, especially for the researcher, as defamation law inherently is complex, and a comparison of the two will reflect that complexity. However, one must consider the objective of this comparison, as the researcher wishes to compare the two systems, and suggest what is suitable for India, as the two reflect almost polar attitudes towards defamation, and their comparison in relation to the current situation in our country will help in deciding which is ‘better’ for the Indian legal system.
However, it is important to point out why one needs to recommend a system for India; this is because of, as per the researcher, the lack of any cohesive stand on defamation. The basis of defamation lies in the interpretation of ‘reasonable restrictions’ on the freedom of speech and expression, public opinion,[23] and sections 499 and 500 of the IPC[24]. The treatment of defamation is based on common law, but also extremely different, as there is no difference between libel and slander in India, but defamatory claims can be both criminal and civil, a system which has been called ‘draconian’[25]. The criminal system of defamation, although initiated to remove the dowry menace, is heavily misused, and circumstantial evidence is the main basis on which courts must make their decisions. Allegations are numerous and often mala fide, making the job for investigative agencies and courts, a difficult one.[26] Civil defamation, however, remains largely uncodified and attempts in the past have been opposed heavily by the media as being too harsh.[27]
Also, despite being defined in Kautilya’s Arthashastra[28], defamation is relatively a young tort for India, and the approach of the legal system is complex and subject to a variety of interpretations[29] and even the effect of the Constitution on the law of defamation has been questioned[30]. Thus the researcher feels that the law of defamation in India requires a stand that is less objectionable, while also accommodating to the variety of unique conditions that Indian society and media brings into the fray. For this purpose, a basic approach must be chosen and the two prominent options, as per the researcher, are the US and UK approaches to defamation. Thus, a comparison of the two entails.
Chapter 2: Defamation in the US and UK: A Comparison
The following chapter hopes to provide a comprehensive comparison of the two approaches on a number of elements, both practical and theoretical. A comparison of the two stances with respect to Internet defamation has also been provided, due to its emergence as an important and diverse aspect of the law, in a modern context.
Chapter 3: Suggestions for India
The researcher has found two complications in his attempt to recommend a defamation system for India.
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Defamation is an extremely complex tort, with several jurisprudential difficulties and lack of clarity with respect to its treatment,[66]
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Both systems, that is, the American ‘free speech’ and UK ‘plaintiff-centric’ systems of defamation law are riddled with problems on several levels, and assessing a suitable model for India is a complex problem as societal factors play in on a much higher level. Further, both models are constantly evolving, and their position remains forever unclear.[67]
Further, the Indian defamation law is based primarily on common law. However, it varies significantly as well when compared to modern defamation law of the UK. India makes no distinction between Libel and Slander[68]. Also, defamation is both a civil wrong and a criminal offence, as has been stated before. Indian case law indicates that the meaning of defamation includes several societal factors like questioning one’s professional capabilities[69], Indian abuses[70], calling someone a goonda[71],etc. Defenses like provision of apology are not easily accepted and the wordings of the IPC also bring in problems, for example, the definition of the word ‘infirmity’.[72] Further cases like R. Rajagopal v State of T.N.[73]indicate the controversy around the issue, and the government’s reluctance to deal with sensitive issues surrounding defamation of public officials and matters of public importance.
In light of these additional complexities along with the initial problems stated in the first chapter, the researcher feels that bringing about changes in the Indian defamation would require the creation of a unique defamation law that suits the Indian society rather than simply emulating English or American law; a law that also covers the gaping hole in Indian defamation law concerning Internet defamation. In light of these factors, the researcher proposes certain changes that could impart clarity to the Indian scenario-
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Classification of defamation as only a civil tort. – Due to the advent of the Internet, and the need for an Indian position for Internet defamation, limiting defamation to the civil sphere of law would be prudent, as a defendant in an Internet defamation case could end up in jail simply for providing a forum to publish (possibly libellous) statements on the Internet. Criminal Defamation severely hampers freedom of speech, and defamation in itself is essentially between two individuals. Thus involvement of the State could lead unnecessarily high punishments, abuse by influential persons, and lack of any compensation for the victims.[74] Further, the criminal system does not regard absolute privileges or vicarious liability, and also creates complications with respect to violation of a grave via defamation.
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Codification of civil law- In order to accommodate a comprehensive stance, civil law must be codified, in a manner that suits the Indian media, as they are the primary parties concerned.[75] Further, a codified civil law on defamation might, as per the researcher, introduce more equity in to the current situation, and prevent situations like the case of Times Now v Justice P.B. Sawant where a media house was forced to pay Rs 100 Crore for a five-second lapse.[76]
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Adoption of the single publication rule- The US single publication rule is both practically more efficient and jurisprudentially more respectful of justice and imposition of liability. Thus the researcher advocates adoption of this rule.
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Clarity with respect to the role of Internet Service Providers- This aspect is heavily disputed in many countries including Canada, the US, and the UK[77], and thus, the researcher feels that the issue must be adequately addressed in the shortest time possible, as the Internet grows on an exponential rate.[78]
-
A balance with respect to the burden of proof- The English concept of defamatory statements being presumed false has been heavily criticised as favouring the plaintiffs, and making it easier to restrict free speech.[79] In light of India, and the influence of the media, a balance needs to be found between the desire to respect private reputation and the desire to protect free speech.
Despite having given these recommendations, the researcher must warn that the changes be made carefully and in a gradual manner, as one must not forget the sheer complexity of both defamation law, as well the unique Indian society.
Conclusion
It is submitted that in this research paper, the researcher’s analysis of the defamation laws of the US and UK, has raised three points. Firstly, that defamation is a tort which varies greatly in theory, application, and principles. The societal factors and fundamental notions of the concerned countries and its social actors play a huge role in determining its development. Secondly, the US and the UK follow contrasting policies on defamation, and have taken opposite sides on the debate between reputation and free speech. Thirdly, India’s own position is a confused one, a mixture of archaic statutes and case law.
Thus, the main purpose of suggesting a system for India to follow has been difficult to implement, and the researcher has proved his opinion on the issues to be dealt with and how to deal with them, keeping in mind the laws of US and UK on defamation. The researcher believes that India’s law must develop a unique system that works for its society and media, while absorbing the positive aspects of defamation law from abroad, in order to attain the central goals of judicial stability and clarity.
Bibliography
Articles
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Anon. ,Unruly world of Internet leads to rise in libel cases, CanWest MediaWorks Publications Inc., ( MARCH 17, 2006)
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D. Linder, The Trial of John Peter Zenger: An Account (2001).
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D.Simons, Defamation ABC, ARTICLE 19 (November 2006)
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ET Bureau., Times Now verdict appalling, says International Press Institute, Economic Times, (Nov. 22, 2011)
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F.Schauer, The Exceptional First Amendment (2005)
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P.K. Jones, Roman Law Basis of Suretyship in Some Modern Civil Codes, 52, Tulane Law Review, 129, (1977).
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R. Greenslade, Obama seals off US journalists and authors from Britain’s libel laws, the Guardian, (11 Aug. 2010)
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R. Sylvester ,UK experts debate libel law’s threat to global free speech, Kyiv Post (Jan 14,2011)
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S. Swamy, Defamation litigation: a survivor's kit, The Hindu,(Sep. 2004)
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S.Singh, English libel law is a vulture circling the world, Guardian UK (March 10,2011)
Books
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A.Lakshminath MSridhar, Ramaswamy Iyer’s the Law of Torts, (10th edn., 2007)
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B. Manna, Mass Media and Related Laws in India, (1st edn.,1998)
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Black’s Law Dictionary, (9th edn.,2009)
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P.Thorton, Sports Law,300, (2nd edn., 2010)
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Salmond, J W, Salmond’s Law of Torts, (8th edn., 1934)
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[1] Paras Dass son of Jugal Kishore v Shri Paras Dass 1969 Delhi LT 241 (Delhi High Court); MC Verghese v T.J. Poonam (1969) 1 SCC 37 (Supreme Court of India).
[2] Salmond, J W, Salmond’s Law of Torts, (8th edn., 1934)
[3] V.Mitter, Law of Defamation and Malicious Prosecution, (11th edn.,2008)
[4] Markesins & Deakins, Tort Law, (6th edn.,2008)
[5] Black’s Law Dictionary, (9th edn.,2009)
[6] Supra note 4.
[7] Supra note 3.
[8] V.V. Veeder, The History of the Law of Defamation in Select Essays in Anglo-American History, Vol .3, Part VII, (Association of American Law Schools, 1909)
[9] D. Linder, The Trial of John Peter Zenger: An Account (2001). Available at SSRN: http://ssrn.com/abstract=1021258 (Last visited on November 20th 2011)
[10]New York Times Co. v Sullivan, 376 US 254,270(1964) (United States Supreme Court)
[11] Id, at 1064.
[12] Supra note 4 at 865.
[13] F.Schauer, The Exceptional First Amendment (2005) Available at SSRN: http://ssrn.com/abstract=668543 or doi:10.2139/ssrn.668543 (Last visited on November 20th 2011)
[14] R. Sylvester ,UK experts debate libel law’s threat to global free speech, Kyiv Post (Jan 14,2011) available at http://www.kyivpost.com/news/nation/detail/94771/#ixzz1e4ip3VcW (Last visited on November 20th, 2011)
[15] Derbyshire County Council v Times Newspaper Ltd [1993] A.C. 534 (House of Lords)
[16] Reynolds v Times Newspapers Ltd [1998] 3 WLR 862 (House of Lords)
[17] Street, The Law of Torts, (11th edn.,2003)
[18] Supra note 4 at 870.
[19] S.Singh, English libel law is a vulture circling the world, Guardian UK (March 10,2011) available at http://www.guardian.co.uk/commentisfree/libertycentral/2011/mar/10/english-libel-law-simon-singh (Last visited on November 20th, 2011)
[20] Supra note 13.
[21] Anon, Libel Tourism-A Growing Threat to Free Speech, Freedom of Speech (2003) available at http://www.article19.org/data/files/pdfs/publications/uk-libel-tourism.pdf
[22] Supra note 3.
[23] S. Swamy, Defamation litigation: a survivor's kit, The Hindu,(Sep. 2004) available at
http://www.hindu.com/2004/09/21/stories/2004092103551000.htm (Last visited on November 20th, 2011)
[24] Sections 499, 500, Indian Penal Code, 1860.
[25] Supra note 21.
[26] Supra note 3.
[27] B. Manna, Mass Media and Related Laws in India, 62, (1st edn.,1998)
[28] Supra note 3.
[29] Krishna Behari Sen v The Corporation of Calcutta, (1904) ILR 31 Cal 993, (Calcutta High Court); Gandhiji Mareppa v Firm of Marwadi Vannajee, (1917) 38 I.C., 823 (Madras High Court)
[30] Supra note 3 at 31.
[31] Supra note 4 at 871.
[32] Greenbelt Cooperative Publishing Ass’n v Bressler. 398 U.S. 6 (1970) (United States Supreme Court)
[33] Ollman v Evans, 471 U.S. 1127 (1985) (United States Supreme Court)
[34] Milkovich v Lorain Journal Co. 497 U.S. 1 (1990) (United States Supreme Court)
[35] Supra note 4.
[36] Gertz v Robert Welch Inc, 418 US 323 (1974) (United States Supreme Court)
[37] Supra note 15.
[38] Supra note 3.
[39] Supra note 4
[40] Supra note 15.
[41] A.Lakshminath MSridhar, Ramaswamy Iyer’s the Law of Torts, (10th edn., 2007)
[42] Supra note 10.
[43] P.Thorton, Sports Law,300, (2nd edn., 2010)
[44] Ammerman v Hubbard Broadcasting Co ,91 NM 250 (United States Supreme Court)
[45] Cohen v Marx, 211 P.2d 320 (California Dist. Ct.)
[46] Brewer v Rogers, 439 S.E.2d 77 (Georgia Court of Appeals)
[47] Supra note 4.
[48] Rinaldi v. Viking Penguin, Inc. , 52 N.Y.2d 422 (1981) (New York Supreme Court)
[49] Karaduman v. Newsday, Inc. , 51 N.Y.2d 531, 554 (1980) (New York Supreme Court)
[50] Lehman v. Discovery Communications, Inc. , 332 F.Supp.2d 534, 539 (United States District Court, E.D. New York.)
[51] Rivera v. NYP Holdings, Inc. , 847 N.Y.S.2d 904 (New York Supreme Court)
[52] Smith &Bird, Internet Law & Regulation, (4th edn, 2007)
[53] Godfrey v Demon Internet Service [2001] QB 201 (High Court, Queen's Bench Division)
[54] Tim Crook, Comparative Media Law and Ethics, (2nd edn., 2010)
[55] Supra note 4.
[56] Supra note 17.
[57] Supra note 4.
[58] Supra note 4.
[59] Global Green v CBS inc., 286 F 3d 281(United States Court of Appeals, Fifth Circuit.)
[60] T.Eide, The Defamation Law of the United States Of America, (1st edn, 1987)
[61] Supra note 4.
[62] Supra note 4 at 880.
[63] Supra note 4 at 880.
[64] Supra note 4 at 881
[65] R. Greenslade, Obama seals off US journalists and authors from Britain’s libel laws, the Guardian, (11 Aug. 2010)
[66] Supra note 17.
[67] Supra note 4 at 883.
[68] Supra note 3.
[69] Mitha Rustomji v Nusserwanji Nowroji AIR 1941 Bom 278 (Bombay High Court)
[70] Harakh Chand v Ganga Prasad AIR 1925 All 371, (Supreme Court Of India)
[71] Sadaiba v Banisdhar AIR 1962 Orissa 115 (Orissa High Court)
[72] Hamsa v Ibrahim, (1993) 2 Ker LJ 698. (Kerala High Court)
[73] R. Rajagopal v State of T.N 1995 AIR 264 (Supreme Court of India)
[74] D.Simons, Defamation ABC, ARTICLE 19 (November 2006) available at http://www.article19.org/data/files/pdfs/tools/defamation-abc.pdf
[75] Supra note 27 at 63.
[76] ET Bureau., Times Now verdict appalling, says International Press Institute, Economic Times, (Nov. 22, 2011) available at- http://economictimes.indiatimes.com/news/politics/nation/times-now-verdict-appalling-says-international-press-institute/articleshow/10823312.cms
[77] Supra note 3.
[78] Anon. ,Unruly world of Internet leads to rise in libel cases, CanWest MediaWorks Publications Inc., ( MARCH 17, 2006) available at http://www.canada.com/saskatoonstarphoenix/news/story.html?id=44633f5a-6d26-422c-be8b-53a785a6d6dd&k=37041
[79] Supra note 45.