Defamation Law: A Comparative Study of the US and the UK

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TORTS II – Project

Defamation Law:

A Comparative Study of the US and the UK

Submitted by:

Varun Sen Bahl (ID No. : 1943)

II Trimester, I Year, B.A., LL.B. (Hons)


Table of Contents


Table of Cases

Indian Cases


Gandhiji Mareppa v Firm of Marwadi Vannajee, (1917) 38 I.C., 823 (Madras High Court)



Hamsa v Ibrahim, (1993) 2 Ker LJ 698. (Kerala High Court)



Harakh Chand v Ganga Prasad AIR 1925 All 371, (Supreme Court Of India)



Krishna Behari Sen v The Corporation of Calcutta, (1904) ILR 31 Cal 993, (Calcutta High Court)



MC Verghese v T.J. Poonam (1969) 1 SCC 37 (Supreme Court of India).



Mitha Rustomji v Nusserwanji Nowroji AIR 1941 Bom 278 (Bombay High Court)



Paras Dass son of Jugal Kishore v Shri Paras Dass 1969 Delhi LT 241 (Delhi High Court)



R. Rajagopal v State of T.N 1995 AIR 264 (Supreme Court of India)



Sadaiba v Banisdhar AIR 1962 Orissa 115 (Orissa High Court)


English Cases


Derbyshire County Council v Times Newspaper Ltd [1993] A.C. 534 (House of Lords)



Godfrey v Demon Internet Service [2001] QB 201 (High Court, Queen's Bench Division)



Reynolds v Times Newspapers Ltd [1998] 3 WLR 862 (House of Lords)


American Cases


Ammerman v Hubbard Broadcasting Co ,91 NM 250 (United States Supreme Court)



Brewer v Rogers, 439 S.E.2d 77 (Georgia Court of Appeals)



Cohen v Marx, 211 P.2d 320 (California Dist. Ct.)



Gertz v Robert Welch Inc, 418 US 323 (1974) (United States Supreme Court)



Global Green v CBS inc., 286 F 3d 281(United States Court of Appeals, Fifth Circuit.)



Greenbelt Cooperative Publishing Ass’n v Bressler. 398 U.S. 6 (1970) (United States Supreme Court)



Karaduman v. Newsday, Inc. , 51 N.Y.2d 531, 554 (1980) (New York Supreme Court)



Lehman v. Discovery Communications, Inc. , 332 F.Supp.2d 534, 539 (United States District Court, E.D. New York.)



New York Times Co. v Sullivan, 376 US 254,270(1964) (United States Supreme Court).



Ollman v Evans,  471 U.S. 1127 (1985) (United States Supreme Court)



Rinaldi v. Viking Penguin, Inc. , 52 N.Y.2d 422 (1981) (New York Supreme Court)



Rivera v. NYP Holdings, Inc. , 847 N.Y.S.2d 904 (New York Supreme Court)



Introduction

The tort of defamation is one that has been heavily contested, developed, and detailed. It is an admixture of case law, statutory definitions, legislations, and the play of society that has left it riddled with complex principle differences across states, and harrowing substantive and procedural difficulties. The advent of the Internet as a new mode of publication has further worsened the situation.

The main debate behind the tort of defamation is the conflict between free speech and reputation. While the US through its First Amendment values free speech above all, the UK emphasizes reputation as well, and the phenomenon of libel tourism has aggravated the clash between the two ideologies.

India’s position, however, in the researcher’s opinion, is unclear, and the confusion between civil and criminal defamation has resulted in confusion and incomprehensibility, making the task of tackling this tort a heavy one.

Thus, the researcher’s main aim of this project is to analyze the defamation laws of US and UK. At the culmination of that analysis, the researcher shall attempt identifying the best practices of these different systems, and suggest a position of law for India that may be able to incorporate the positive aspects of these systems.


Chapter 1: Defamation: A Definition and the Elements.

Although no exhaustive definition of defamation emerges from common law, a broad meaning of defamation must be attached to it. Several Indian cases[1] take defamation as a false and damaging statement, while Salmond has defined it as a wrong that consists in the publication of a false and defamatory statement respecting another without lawful justification.[2] A variety of other definitions have been provided, all of which may avoid certain difficulties, but may provide others.[3] Thus, a statutory definition is best avoided.[4]

For the purpose of this project, the researcher is utilizing the following definition-

Defamation is that which tends to injure reputation; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him[5].

This definition, as per the researcher, provides a basic understanding of what may be defamatory.

Certain elements of liability under defamation exist:

  1. The Allegation must be defamatory
  2. The Defamatory statement must refer to the claimant
  3. Publication[6]

However, these elements again fall under the broad meaning. When we speak of the treatment of defamation under English Law, or Law in the US, or even Indian Law, the scope of defamation differs greatly in terms of both basic principles and nuances, despite the fact that essentially the origin of all three dates back to common law.[7] However, while the origins  of defamation in England dates back to the middle ages[8], in the USA, defamation in an unique form started to take form around the time of the American Revolution, with the trial of John Peter Zenger in 1734.[9] This case laid down truth as an absolute defense against defamation; an important defense not introduced by English law till before. This case marked the beginning of US defamation law as an entity distinct in its identity from English Law.

The Question of Free Speech v Reputation.

Since then, the American perspective on defamation had followed a more-or-less parallel path to the English perspective. However, the 1960s (the civil rights era in the US) brought about a change, as up till then defamation or libel suits could be slapped with little evidence; this particular loophole was greatly abused by southern groups against northern newspapers, and they claimed over 300 million dollars’ worth of lawsuits.  In 1964, New York Times Co. v Sullivan[10] (hereinafter the New York Times case) drastically altered this, by changing the entire landscape of how defamation and libel is handled in the US.  The American perspective became centered around the line, “Whatever is added to the field of libel is taken from the field of free debate”,[11] and free expression became of utmost importance, to the point where defamation was no longer a threat, and victims of defamatory falsehood had a huge burden fall on them.[12] Any resemblance to English law on defamation became superficial and technical, and the protection granted to free speech became almost absolute in comparison.

Since then, American defamation has been continuously going through several changes and upheavals, particularly due to the introduction of defamation possibilities on the Internet, but the courts have remained convinced of the fact that privacy is simply not as important as freedom of speech.  This makes defamation in the US extremely difficult to impose, as the defense of ‘free speech’ seems easy to throw at the claimants.[13]

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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 ...

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