These categories developed and came to be accepted widely over time. Insofar as the principles based on which they were enunciated, the categories are in themselves not unreasonable. However their extremely restricted and skewed interpretation and implementation; caused mainly due to a flood of frivolous claims, was what led to the wholly unsatisfactory law of defamation that developed. The hasty steps taken to mitigate the claims did ultimate harm to the development of common law action for defamation.
Very fine and highly absurd distinctions, resulting from the rule to take the imputation in ‘mitiori sensu’ made by the courts rendered recovery of damages by the claimant practically impossible. For example to say, “Thou art a thief and thou hast stolen my trees,” was actionable, but to say “thou art a thief for thou hast stolen my trees” was not because in the last words in the latter statement were explanatory and did not show the commission of a crime.
A study of the cases that follow make it quiet clear that the application of such fine distinctions by the judges as to the actionable quality of words made it something of a lottery whether a particular statement or words would be taken as defamatory or not. The researcher must state here however that in principle the rule of mitiori sensu was not flawed. Had it been applied to those cases where there was a genuine doubt as to the meaning of the words no trouble would have occurred, but the judges of the time applied it indiscriminately to every case and created an absolute mess of the law.
At this time there was practically no difference between written and oral defamation. The law of slander was applicable even to written defamation. This distinction developed in the Court of the Star Chamber where criminal cases were tried. Libel, then was defined to include writing, such as “an epigram, rhime or other writing…composed or published to the scandal or contumely of another or pictures or signs which could be libellous though containing no written words.” And it was probably this dichotomy of the criminal law that spilled over to the civil law after the Star Chamber was abolished. The civil courts decided to maintain status quo and treat written defamation as actionable per se.
The earliest decision in this aspect was that of King v. Lake. Hale C.B. for the first time used the libel – slander distinction in a civil case and held that, “Although such general words spoken once, without writing or publishing them would not be actionable; yet they being writ and published, which contains more malice, than if they had but been once spoken, they are actionable.”
The next case to base its decision on the distinction was Austin v. Culpepper. In the next seventy five years two cases followed which largely embedded the distinction between libel and slander. These were Harman v. Delany and Villers v. Monsley. However it is interesting to note that one of the Judges in Villers, believed that the distinction between libel and slander was very fine.
This thought finds a repetition in the case of Kaye v. Bailey tried in the Court of the Exchequer Chamber where a dissent was expressed against the distinction. However, in Thorley v. Kerry which followed three years later, the distinction between libel and slander was so firmly embedded in English law that there has been no changing it. A bizarre fact of this decision is that Sir Mansfield, when deciding for the plaintiff honoured a doctrine in which he did not believe and ended up precluding anyone else from making modifications in the future.
In contemporary England the law still remains as before. Libel is actionable per se and is a criminal wrong as well as a civil wrong. On the other hand slander is actionable on proof of special damages and is only treated as a civil wrong. The special damage must not be too remote but a legal and natural consequence of the words spoken. The common law also provides for four exceptions where slander is actionable per se. These are; (1) the imputation is of a criminal offence punishable with imprisonment, (2) the imputation of a disease that will lead to exclusion from society, (3) imputation of uncastity to a female which was made actionable per se by the Slander of Women Act 1891 and (4) imputation of unfitness or incompetence in any office, profession, calling, trade or business.
It may be noted that the distinction between libel and slander is heavily criticised and its abolishment was advocated as early as 1843 by the Select Committee of the House of Lords. This was followed up by a similar recommendation by the Faulks Committee report in 1975. But the distinction still persists. As opposed to this certain jurisdictions have done away with the distinction on all counts, India, a common law country and also a colony of Britain being one such country. The following chapter will go on to examine the position of law as regards the libel – slander distinction in India.
Chapter 2
The Libel – Slander Distinction and the Indian Law
What is the position of law in India as regards the distinction between libel and slander?
The position of law in India is different from that of England. The difference is mainly in the law relating to slander. As opposed to Common Law, where slander is not actionable per se except for a few highly technical situations in India both libel and slander are treated at par i.e. no special damages need to be proved to maintain an action for slander. Added to this, as per Section 499 of the Indian Penal Code both libel and slander are criminal offences.
The Indian Law Commission headed by Lord Macaulay demonstrated the inconsistency and irrationality of the English law pertaining to defamation. The recommendation to not include the distinction was accepted and approved by the British Indian Legislature, who justified their stand saying that the rule was “not founded on natural justice and should not be imported into British India.”
They rejected the Crown’s stand that no civil remedy can be availed of unless pecuniary damages are proved. Instead they came up with the concept that if a person has a reasonable apprehension that the alleged slanderous statement made will injure his reputation, under the given time and circumstances, as a consequence of which he undergoes a mental hardship, he has a valid claim.
Similar to the exceptions that are prevalent in England, cases in India fall under the following categories as regards to slander; (1) imputation of crime, (2) imputation of unchastity to women, (3) vulgar abuse and (4) aspersions on caste.
In the case of imputation of a criminal act, an action is maintainable for a cognizable offence. If, however, the words alleging slander are made in a bout of anger or haste or in such a like manner; or if they are so incredible that no person would believe in them; then such words are not actionable.
An imputation of unchastity to a woman is actionable per say in England under the Slander of Women Act, 1891. This law however does not extend to India but is applicable “only as nearly as the circumstances of the place and the inhabitants admitted”. In Sukan Teli v. Bipal Teli the High Court of Calcutta held that such words were actionable without proof of special damage. A similar judgement was passed by the Madras High Court in Narayana Sah v. Kannamma Bai.
Any imputation that a person belongs to a lower caste, when in fact he does not, and such imputation not being bona fide, entitles a plaintiff to recover damages. If such imputations are made of a woman her husband may recover too, as such an imputation implies that that husband married into a lower caste.
The position of Indian law on vulgar abuse is most distinct from common law. A distinction has been made as regards speech which is only insulting and abusive and that which is insulting as well as defamatory. While in the former case, English law has been adopted and there is no cause for action; in the case of the latter, there has been a complete and welcome departure from common law. If the imputation is insulting as well as slanderous, action lies without proof of special damages.
The leading case in this is that of Parvathi v. Mannar. In this case the defendant alleged that the plaintiff was not the legally married wife of her husband and that she was unchaste. Held that the defendant was liable; for though words that are merely insulting and cause mental distress are not actionable, words that are insulting as well as defamatory – casting direct aspersions on a persons character – and lead to mental distress and actionable without special damages. In this case the common law rule was not followed in India. The decision is this case has been followed on numerous occasions.
Four years later, in Dawan Singh v. Mahip Singh, the High Court of Allahabad further emphasised the distinction between the common law and the law in India regarding the libel – slander distinction. The above to precedent was upheld Harakh Chand v. Ganga Prasad Rai where the Allahabad High Courts held that; “an abuse uttered in circumstance tending, if not vindicated, to lower the person addressed in the estimation of the people present or to bring him into ridicule or contempt, will amount to defamation and is actionable without proof of special damage.”
Therefore it can be observed that the law in India regarding the contentious issue of slander developed quiet differently from the law in England. Such a departure has been hailed by many. However the question remains as to why this disparity exists between the law regarding libel and slander and whether such a disparity is justified.
Chapter 3
The Debate: “Libel & Slander” – Two Torts or One?
The libel – slander distinction has the makings of a very interesting debate. Libel being written was of a more permanent nature and the fact that the defamer to the trouble to put in down in writing was indicative of greater degree of malice; and was distinguished from slander which being oral was transient and hence not capable of causing as much harm to reputation.
Holdsworth upheld the distinction stating its advantages as follows (1) it shifted the importance of the cause for action from damage to the insult, (2) it pulled the courts out of the morass of deciding whether the words spoken could have led to a temporal damage as a natural consequence and (3) being actionable per se, the courts were no longer required to determine which special category a particular imputation fell into. Not only did this achievement stabilise the provisions of the tort of defamation, but by abolition of the rule of mitiori sensu and various other necessary changes the law relating to slander was also corrected. An unfortunate impact of the improvement though was the distinction that became permanent.
As is apparent from the Thorley judgement, even the obvious logical reasons for the distinction were pushed into the background and forgotten once the law was reformed. In this case Mansfield C.J. would have liked to assimilate libel and slander but was prevented from doing so because it would have resulted in a return to the previous confusion that had existed. His decision was a result of circumstances. Hence today too, circumstances must dictate whether judges should uphold this “absurd” distinction.
Due to the advent of modern communications media such as televisions, radios, tape recorders, compact discs and gramphones and the internet into out lives the libel – slander distinction is becoming increasingly blurred. The new forms of media though need to be categorised. A compact disk has a permanent form but any sound that emanates from it is experienced in a transient manner. Therefore is it libel or slander if a compact disk contains defamatory speech?
Due to this conflict the permanent – transient criterion now also includes audible – visual criterion. Under this rule anything with an audible quality will constitute slander while that having a visual quality will constitute libel. The same holds for the internet. It is generally accepted that what is illegal offline is illegal online as well, and that in general the current laws will hold good except with some modification.
Though in every new case that arose concerning modern technology, the court has managed to classify every situation into libel and slander how long will it continue to do so before these distinctions to take on the fine nature of the past? Libel and slander then need to be assimilated.
However the researcher believes that there can’t be a permanent removal of the distinction, as some slanders do not deserve the degree of damages of others which holds true for libels as well. One cant advocate a complete revamping of the law, but instead of doing away with the distinction which is some scenarios might actually be valid, what should be done is the removal of the gross biasness that exists towards libel. That is, certain libels can be made actionable only on proof of special damages or the strictness of special damages in case of slanders can be removed in those countries where it exists. This, the researcher believes is how the law relating to defamation should evolve further in order that the present confusion can be solved.
Conclusion
The libel – slander distinction arose due to a deficiency in the law that preceded it. As the distinction gained solid footing however its true meaning was made obscure by the various decisions passed in the courts. Moreover this obscure and incorrect distinction became the accepted norm, to the extent that it could not be changed even by the best of judges despite several attempts. But the researcher believes that to make this distinction obsolete would return the law of defamation to its previous morass. Other viable steps must be taken to correct this seemingly absurd distinction.
Hence, this distinction is too entrenched in the law to be completely discarded. It is justified, if implemented properly and if one considers the real reason as to why the distinction came about in the first place. However it must be modified to the extent that it incorporates the changes that have occurred in contemporary times and this is the next step that should be taken by the courts and judges in evolving the law of defamation.
Bibliography
ARTICLES
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Anonymous, “The Pre – Thorley v. Kerry Case Law of the Libel Slander Distinction”, 23(1) The University of Chicago Law Review 132 (1955).
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J.M. Kaye, “Libel and Slander – Two Torts or One”, 91 Law Quarterly Review 524 (1975).
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W.S. Holdsworth, “Defamation in the Sixteenth and Seventeenth Centuries”, 41 Law Quarterly Review 13 (1925).
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Anonymous, “Libel and Slander: Necessity for Allegation of Special Damages in Action for Defamation Not Shown Libellous per se”, 35(3) Michigan Law Review 500 (1937).
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R. Knox – Mawer, “Defamation: Some Indian Precedents and the Common Law”, 5(2) The International and Comparitive Law Quarterly 282 (1956).
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Anonymous, “Libel and Slander. In General. Extemporaneous Remarks Made during Television Program Give Rise to Action for Libel. Shor v. Billingsley (N.Y. Sup. Ct. 1957)”, 71(2) Harvard Law Review 384 (1957).
- Anonymous, “Application of Defamation Laws to the Internet”, published by Global Internet Policy Initiative, October 2001.
BOOKS
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Ratanlal and Dhirajlal, The Law of Torts (G.P. Singh ed., 23rd edn. Reprint, Nagpur: Wadhwa & Co. Law Publishers 2002)(1897).
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W.V.H. Rogers, Winfield and Jolowicz on Tort (16th Ed., London: Sweet and Maxwell 2002).
WEBSITES
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National Law School of India University, Bangalore
Dixon v. Holden, (1896) LR 7 Eq 488.
W.V.H. Rogers, Winfield and Jolowicz on Tort, 404 (16th Ed., London: Sweet and Maxwell 2002).
In the former monetary redress accompanied the clearing of the victim’s name in the presence of those people who were witness to the defamation while in the latter only an apology and an acknowledgement of the baselessness of the allegation was provided.
Anonymous, “The Pre – Thorley v. Kerry Case Law of the Libel Slander Distinction”, 23(1) The University of Chicago Law Review 132, 134 – 135 (1955).
“All scandalous words which touch or concern a man in his life, liberty or member, or any corporal punishment; or which scandal a man in his office or place of trust, or tend to the slandering of his title, or his advancement, or preferment, or any other particular damage; or lastly which charge a man to have any dangerous infectious disease, by reason of which he ought to be separated by the law from the society of men: all such words are actionable.” J.M. Kaye, “Libel and Slander – Two Torts or One”, 91 Law Quarterly Review 524, 527(1975).
W.S. Holdsworth, “Defamation in the Sixteenth and Seventeenth Centuries”, 40 Law Quarterly Review 397, 404 (1924).
‘Mitiori sensu’ means that the words will not be held defamatory if a non – defamatory meaning can be twisted out of it. Supra note 4, at 138.
Supra note 7, at 405 – 406.
W.S. Holdsworth, “Defamation in the Sixteenth and Seventeenth Centuries”, 41 Law Quarterly Review 13, 16 (1925).
Hardres, 470 c.f. W.S. Holdsworth, “Defamation in the Sixteenth and Seventeenth Centuries”, 41 Law Quarterly Review 13, 16 (1925).
“And ‘twas said that to say of anybody that he is a dishonest man is not actionable, but to publish so, or put it up upon posts is actionable,” per Skinner at 124; S.C. 2 Show. 313.
Harman v. Delany, (1731) 93 Eng. Rep. 925.
Villers v. Monsley, (1769) 2 Wils. 403.
Thorley v. Kerry, 4 Taunt. 355.
In Ellesworth v. Martindale – Hubbell Law Directory Inc., (N.D.1936) 268 N.W. 400 the courts did not take into account the long established tradition of libel being actionable per se and slander being actionable on proof of special damages. Instead they held that the case was one of liber per quod where the libel could be understood only by taking into account certain extrinsic facts. Hence in the United States of America a distinction also exists between libel and not all libels are actionable per se. Anonymous, “Libel and Slander: Necessity for Allegation of Special Damages in Action for Defamation Not Shown Libelous per se”, 35(3) Michigan Law Review 500, 500 – 501 (1937).
Supra note 2, at 408 – 409.
R. Knox – Mawer, “Defamation: Some Indian Precedents and the Common Law”, 5(2) The International and Comparitive Law Quarterly 282 (1956).
Ratanlal and Dhirajlal, The Law of Torts 254 (G.P. Singh ed., 23rd edn. Reprint, Nagpur: Wadhwa & Co. Law Publishers 2002) (1897).
Supra note 29, at 254 – 257.
Clause 51 states: “Words spoken and published which impute unchastity or adultery to any woman or girl shall not require special damage to render them actionable. Provided always, that in any action for words spoken and made actionable by this Act, a plaintiff shall not recover more costs than damages, unless the judge shall certify that there was reasonable ground for bringing the action.”
Hirabai v. Dinshaw, (1927) ILR 51 Bom 167 per Marten C.J.
Sukan Teli v. Bipal Teli, (1905) 4 CLJ 388.
Another important point to note is that in this case the husband was allowed to recover as well, because words imputing his wife’s unchastity constituted a defamation of the husband also. There is a contradiction however. In a preceding case the High Court had applied common law and held such an imputation not actionable without special damages.
Narayana Sah v. Kannamma Bai, (1931) ILR 55 Mad 727.
Supra note 28, at 283 – 284.
Parvathi v. Mannar, (1884) ILR 8 Mad 175.
Dawan Singh v. Mahip Singh, (1888) ILR 10 All 425. In this case the words conveyed that the plaintiff’s decent was illegitimate.
Harakh Chand v. Ganga Prasad Rai, (1924) ILR 47 All 391.
This position of the Indian law was upheld by the British colonial court of Aden by using the above cases as precedents in a judgement and till date there has been no appeal. Hence the law in India as regards the lack of distinction has been adopted as the law of Aden.
Supra note 13, at 17 – 18.
Anonymous, “Libel and Slander. In General. Extemporaneous Remarks Made during Television Program Give Rise to Action for Libel. Shor v. Billingsley (N.Y. Sup. Ct. 1957)”, 71(2) Harvard Law Review 384 (1957).
In practice recordings on video tapes and cassettes are held to be libel as they are permanent in nature. However, Winfield is of the opinion that they should be regarded as slander. He argues that though such material is embodied in a permanent form its publication occurs in a transient one.
The internet doesn’t pose as great a problem when it comes to application of law to determine liability for a particular illegal act. What is problematic is determining which court or nation may exercise its jurisdiction when a particular offence is committed transnationally. Anonymous, “Application of Defamation Laws to the Internet” 1 – 2 published by Global Internet Policy Initiative, October 2001.
