INTRODUCTION

A man`s reputation is his property and is more valuable than any other tangib
le asset. Every
man has the right to have his reputation preserved inviolate. This ri
ght oI reputation is
acknowledged as an inherent personal right oI every person as part oI the person
al security
1
.
It is a jus in rem
2
, a right good against the entire world. A man`s reputation is his
property
more valuable than other property.
3
Indeed, iI we reIlect on the degree oI suIIering
occasioned by loss oI character, and compares it with that occasioned by loss oI
property; the
amount oI the Iormer injury Iar exceeds that oI the latter
4
. The term deIamation has been
deIined by many jurists and in many laws. Some oI the deIinitions ar
e:DeIamation is the
publication oI a statement which reIlects on a person`s reputation and tend
s to lower him in
the estimation oI right-thinking members oI society generally or tends to make
them shun or
avoid him.
5
Defamation is the infury to the reputation of a person. If a person
infuries the
reputation of another, he does so at his own risk as in the case o
f an interference with the
property.
6
As per the DeIinition contained in the Section 499 oI IPC, "Whoever by words eit
her spoken
or intended to be read, or by signs or by visible representations, m
akes or publishes any
imputation concerning any person intending to harm, or knowing or having reason
to believe
that such imputation will harm, the reputation oI such person, is sai
d, except in the cases
hereinaIter excepted, do deIame that person"
According to Black`s Law Dictionary, DeIamation is 'The act oI tendering the rep
utation oI
another by making a Ialse statement to the third person.
7
According to WinIield, 'DeIamation is the publication oI a statement which tends
to lowers a
person in the estimation oI right-thinking members oI the society generally; or
which tends to
make them shun or avoid that person.
8
But the law oI deIamation like many other branches oI the law oI To
rts provides Ior
balancing oI interests. The competing interest which has to be balance
d against the interest
which a person has in his reputation is the interest which every per
son has in Ireedom oI
speech. The Law oI DeIamation provides deIences to the wrong such as
truth and privilege
thus also protecting right oI Ireedom oI speech but at the same time markin
g the boundaries
1
8lacksLones CommenLary of Lhe Laws of Lngland vol 1 (lv LdlLlon) p 101
2
!us ln rem rlghL Lo a Lhlng
3
ulxon v Polden (1869) L8 7 Lq 488
4
ue Cresplgny v Wesllelley (1829) 3 8lng 392
3
Ayesha 1he 1orL Cf uefamaLlon hLLp//[urlsonllneln/2010/10/LheLorLofdefamaLlonananal
he
lawlnlndlaandLheunlLedklngdom/ Accessed on 31
sL
CcLober 2011
6
8anglaur 8k kumar ur narendra Law of 1orLs 20
Lh
LdlLlon Allahabad Law Agency 2010 p 183
7
Carner 8ryan A 8lack's Law ulcLlonary 9
Lh
LdlLlon WesL ubllcaLlons p 479
8
P Wlnfleld A 1exLbook of 1he Law of 1orL 3
Lh
LdlLlon 1930 242
within whi
9
ch it may be limited. In India, tort law is obtained Irom British Common Law and
is yet uncodiIied. ThereIore the existing law relating to deIamation p
laces reasonable
restrictions on the Iundamental right oI Ireedom oI speech and express
ion conIerred by
Article 19(1) (a) oI the Indian Constitution and is saved by clause (2) oI Artic
le 19.
The wrong oI deIamation is in the publication oI a Ialse and deIamatory statemen
t concerning
another person without lawIul justiIication. That person must be in be
ing. Hence not only
does an action oI deIamation not survive Ior or against the estate oI a decease
d person, but a
statement about a deceased or unborn person is not actionable at the
suit oI the relatives,
however great their plan and distress, unless the statement is in som
e way deIamatory oI
them.
10
Chapter One: Types of the Tort of Defamation
The wrong oI deIamation may be committed by making deIamatory statemen
ts which are
calculated to expose a person to hatred, contempt or ridicule, or to
injure him in his trade,
business, proIession, calling or oIIice, or to cause him to be shunne
d or avoided in society.
This is known as 'publication oI the statement, which in its true leg
al sense means the
communication oI deIamatory matter to some person other than the perso
n oI whom it is
written. These statements can be made in the Iollowing three ways:
Libel: The publication oI a Ialse and deIamatory statement tending to injure the
reputation oI
another person without lawIul justiIication or excuse. The statement mu
st be in a printed
Iorm, e.g., writing, printing, pictures, cartoons, statue, waxwork eIIigy etc.
Slander: A Ialse and deIamatory statement by spoken words and/or gestures tendin
g to injure
the reputation oI others. It is in a transient Iorm. It also involves the sign l
anguage used by the
physically disabled.
A learned judge oI MP High Court holds that there may be a hybrid type
oI deIamation not
Ialling within the recognized categories oI libel and slander. In that case
it was held that the
bride groom and his Iather in reIusing to take the bride to their h
ome aIter marriage in Iull
gaze oI the guests committed the tort oI deIamation and damages could be
awarded Ior loss
oI reputation.
11
Cyber Defamation: Nowadays, there is a new kind oI DeIamation through
the internet
space. It is termed as cyber deIamation. Internet provides us with a
very cheap and a quick
way oI communication. It has made the world a close nit organisation. Also, with
the growth
oI social networking sites like orkut, Iacebook, etc., lot oI personal
inIormation is shared
amongst many people thereIore, the chances oI deIamation through intern
et has become a
major threat in today`s world. Even iI a single deIamatory email is
Iorwarded, it becomes
very diIIicult to trace and stop its circulation. Any article published on a web
site is open Ior
9
SL8vAl ConsLlLuLlonal Law of lndla 3
rd
LdlLlon vol 1 p 493 SnM Abdl v rafulla k MahanLa Al8 2002
Cau 73 p 76
10
8lv PeusLon Salmond on Lhe Law of 1orLs 17
Lh
LdlLlon 1977 p 138
11
noor Mohd v Mohd !lauddln Al8 1992 M 244 p 249 (para 13)
the entire world to read. The damage or losses caused to the victim is very huge
 especially iI
the imputation is intended to harm the business oI an individual or
a business entity. Cyber
DeIamation would Iall in the category oI Cyber Crime Law. The concept
oI cyber crime is
not radically diIIerent Irom the concept oI conventional crime. Both i
nclude a conduct,
whether act or omission, which cause breach oI rules oI law and coun
terbalanced by the
sanction oI the state. Few examples oI Cyber Crime would be e-mail spooIing, u
nauthorized
control/access over computer system, transmitting virus, Cyber terrorism
against the
government organization. The InIormation Technology Act deals with the
various cyber
crimes in chapters IX & XI. The important sections are Ss. 43,65,66,6
7. Section 43 in
particular deals with the unauthorised access, unauthorised downloading, virus a
ttacks or any
contaminant, causes damage, disruption, denial oI access, interIerence w
ith the service
availed by a person. Section 65 deals with tampering with computer so
urce documents`.
Section 66 deals with hacking with computer system`. Further section 6
7 deals with
publication oI obscene material. However, the IT Act does not cover c
yber deIamation
speciIically, so to seek remedy against cyber deIamation, the aggrieved party wi
ll have to rely
mainly on IPC. 1lll now noL much cases of cyber defamaLlon have been heard of C
ne of Lhese ls
ma[or case whlch ls consldered as lndlas flrsL case of cyber defamaLlon SMC neumaLl
cs (lndla) vL
LLd v !ogesh kwaLra
12
ln Lhls case a company's employee (defendanL) sLarLed sendlng derogaLory
defamaLory and obscene emalls abouL lLs Managlng ulrecLor 1he emalls were
anonymous and
frequenL and were senL Lo many of Lhelr buslness assoclaLes Lo Larnlsh
Lhe lmage and goodwlll of
Lhe plalnLlff company 1he plalnLlff was able Lo ldenLlfy Lhe defendanL
wlLh Lhe help of a prlvaLe
compuLer experL and moved Lhe uelhl Plgh CourL 1he courL granLed an a
dlnLerlm ln[uncLlon and
resLralned Lhe employee from sendlng publlshlng and LransmlLLlng emalls whlch are d
efamaLory or
derogaLory Lo Lhe plalnLlffs 8ecenLly ln Lhe news Lhere was anoLher ca
se of lnLerneL defamaLlon
agalnsL a hoLel managemenL sLudenL 1he news read as kCLkA1A 8ldhannagar pollce on
1hursday
nlghL arresLed a Lhlrdyear hoLel managemenL sLudenL who llves as a payl
ng guesL ln SalL Lake on
charges of creaLlng a communlLy agalnsL Lhe lnsLlLuLe where he sLudles on
a soclal neLworklng slLe
Anuran AmrlL 22 was laLer released on ball A couple of weeks ago Lhe S
ecLor vbased hoLel
managemenL lnsLlLuLe had lodged a complalnL agalnsL AmrlL for cyber de
famaLlon 8ldhannagar
pollces cyber cell sLarLed a probe based on Lhe complalnL AmrlLs lnLerne
L proLocol address was
Lraced and hls emall lu found ouL ollce ralded hls home on 1hursday nl
ghL and arresLed hlm
uurlng lnLerrogaLlon he reporLedly admlLLed LhaL he had opened Lhe comm
unlLy Lo openly abuse
Lhe lnsLlLuLe as he had some personal grlevances agalnsL lL AmrlL was
produced ln 8ldhannagar
addlLlonal chlef [udlclal maglsLraLes courL on lrlday where he was released o
n ball"
13
1he Supreme
CourL and Plgh CourLs are empowered Lo lnLervene and punlsh Lhe publlcaLlon of a
ny maLLer whlch
causes pre[udlce Lo a pendlng proceedlng Lo keep Lhe sLream of [usLlce
clear and pure so LhaL
parLles may proceed wlLh safeLy boLh Lo Lhemselves and Lo Lhelr characLer no per
son can flouL Lhe
mandaLe of law of respecLlng Lhe courLs for esLabllshmenL of rule of law under L
he cloak of freedom
of speech and expresslon guaranLeed by Lhe ConsLlLuLlon nowadays Lhe sensaLlonall
sm lnvolved ln
cerLaln hlgh proflle crlmlnal cases has become very common wlLh Lhe s
pread of mass

12
8elng SulL no 1279/2001 avallable aL hLLp//cyberlawsneL/cyberlndla/defamaLlonhLm Acc
essed on 3
rd
november 2011
13
1lmes of lndla SLudenL held for Cyber uefamaLlon geLs ball" avallable aL
hLLp//arLlclesLlmesoflndlalndlaLlmescom/20100814/kolkaLa/28302349_1_cybercellhoLelma
enL
cyberdefamaLlon accessed on 3
rd
november 2011
communlcaLlon Lxample can be Laken from Lhe Aarushl murder case Moreover such medl
a Lrlals
unnecessarlly draw Lhe [udlclary lnLo Lhe publlc scanner ofLen maklng a
mockery of Lhe [usLlce
dellvery sysLem
Chapter Two: Essentials to the Tort of Defamation
These are the essentials Ior proving deIamation against the deIendant in a case:
-
1. The statement (the technically correct term is ~imputation) is defamatory.
DeIamatory statement is one which tends to injure the reputation oI the plainti
II. It is an
imputation which exposes one to disgrace and humiliation, ridicule or
contempt, is
deIamatory. It could be made in diIIerent ways as in it could be oral,
in writing, printed
or by the exhibition oI a picture, eIIigy or statue or by some conduct.
According to Lord Atkins, whether a statement is deIamatory or not depe
nds upon how
the right thinking members oI society the society are likely to take it. Yet the
term right-
thinking members oI society` is highly ambiguous. The standard to be applied is
that oI a
right-minded citizen, a man oI Iair average intelligence, and not that oI a spec
ial class oI
persons whose values are not shared or approved by the Iair minded m
embers oI that
society generally. II the likely eIIect oI the statement is the injur
y to the plaintiII`s
reputation, it is no deIence to say that it was not intended to be
deIamatory. When the
statement causes anyone to be regarded with Ieelings oI hatred, contempt,
ridicule, Iear,
dislike, or disesteem, it is deIamatory. In D.P. Choudhary v. Manjula
ta
14
there was
publication oI a statement in a local daily in Jodhpur that Manjulata
on the pretext oI
attending her evening BA classes ran away with a boy named Kamlesh.
The girl
belonged to a well educated respectable Iamily. She was seventeen year
s oI age. The
news item was untrue and had been irresponsibly published without any
justiIication.
This was deIamatory and the deIendants, the newspaper publishers were held liabl
e.
The ordinary man aIter reading a writing does not contemplate oI read
ing it again and
again Ior deriving its meaning. So the meaning oI words in an action
'is a matter oI
impression as an ordinary man gets on the Iirst reading, not a later
analysis.
15
The
layman reads an implication much more Ireely and unIortunately, as the
law oI
deIamation has to take into account, is especially prone to do so when it is der
ogatory. II
the deIamatory statement consists oI an article with a headline and a photograph
then the
whole oI the article including the headline and photograph has to be tak
en together and
considered whether in its natural and ordinary men it is deIamatory Ior the plai
ntiII.
16
However, words spoken in anger or annoyance or in the heat oI the m
oment are not
deIamatory as they no way reIlect on the character oI the one being
abused. However,
sometimes the statement being used to deIame may be prima Iacie innocent but bec
omes
deIamatory because oI some latent or hidden meaning. In such a scenar
io the plaintiII
must prove the hidden meaning, which is the innuendo iI s/he wants to
Iile a suit Ior
deIamation. For instance in Cassidy V Daily Mirror Newspaper
17
s the newspaper
published a picture oI a lady and the race horse owner with the caption undernea
th, 'Mr.
M. Corrigan, the race-horse owner and Miss X whose engagement has been announced.
14
Al8 1997 8a[ 170
13
Payword v 1hompson (1981) 3 All L8 430(438)(CA)
16
CharlesLon v news Croup newspapers LLd (1993) 2 All L8 313
17
(1929) 2 k8 331
The newspaper was held liable in a suit that said that the lady was the lawIul w
iIe oI Mr.
Corrigan and complained that the words suggested that she had been living
with him in
immortality. The liability oI the deIendants rested on their Iailure t
o make independent
inquiry. This also brings Iorth another aspect oI this tort that inten
tion to deIame is not
necessary and iI the words are considered to be deIamatory by the person
s to whom the
statement is published, there is deIamation. Where the words alleged to be deIam
atory do
not appear to be such on their Iace, the plaintiII must out the circumstances wh
ich made
them actionable and he must set Iorth in his pleading the deIamatory sen
se he attributes
to them.
18
. It refers to the plaintiff i.e. identifies him.
The plaintiII has to prove that the statement which is claimed to be de
Iamatory actually
reIers to him/her. It is immaterial that the deIendant did not intend to deIame
the plaintiII,
iI the person to whom the statement was published could reasonably in
Ier that the
statement reIerred to the plaintiII, the deIendant is nevertheless liable. It is
suIIicient iI he
is described by the initial letter oI his name, or even by a Iictitious name pro
vided he can
satisIy the Court that he was the person reIerred to.
19
It is immaterial whether the
deIendant intended the deIamatory statement to apply to the plaintiII,
or knew oI the
plaintiII`s existence, iI the statement might reasonably be understood by those
who knew
the plaintiII to reIer to him. When the words are considered to be
deIamatory by the
persons to whom the statement is published, there is deIamation, even though the
person
making the statement believed it to be innocent.
In Hulton Co. V Jone
20
s the deIendants published a Iictional article in their newspaper in
which aspersions were cast on the morals oI a Iictitious character-Artemus
Jones, stated
to be a Churchwarden. On this basis one Artemus Jones, a barrister,
brought an action
against the deIendants. The deIendants pleaded that Artemus was a Iict
ional character
and the plaintiII was not known to them and thus they had no intent
ion to deIame him.
Notwithstanding this, they were held liable because a substantial number oI pers
ons who
knew the plaintiII and had read the editorial would have assumed it
to be reIerring to
him. However, when the deIamation reIers to a class oI persons, no member oI tha
t group
can sue unless he can prove that the words could reasonably be considered to be
reIerring
to him. There can be no law that a deIamatory statement made oI a Iirm, or trust
ee, or the
tenants oI a particular building is not actionable, iI the words woul
d reasonably be
understood as published oI each member oI the Iirm or each trustee or each tenan
t.
21
. It has been published i.e. communicated to at least one person oth
er than the
claimant.
Publication means making the deIamatory matter known to some other thi
rd party and
unless that is done, no civil action Ior deIamation can lie in court. Communicat
ion to the
plaintiII won`t count because deIamation is injury to the reputation which consi
sts in the
estimation in which others hold him and not a man`s own opinion oI himselI. Howe
ver, iI
a third party wrongIully intercepts and reads a letter sent to the p
laintiII it is not
deIamation. However when the deIendant knows that the letter is likely
to be read by
someone else and it contains some personal inIormation only meant Ior
the recipient,
18
!acobs v AchmalLz (1890) 62 L1 121
19
Le lanu v Malcolmson (1848) 1 PLC 637 668
20
(1910) AC 20
21
knupffer v London Lxpress newspapers LLd (1944) 1 All L8 493
then he will be liable. Under English law each publication is a sepa
rate tort. A
communication to a husband or wiIe oI the charges against the wiIe o
r husband
constitutes a suIIicient publication.
22
Also, in the eyes oI the law, husband and wiIe are
one person and the communication oI a deIamatory matter Irom the husband to the
wiIe
or vice versa is no publication. An injunction can be issued against
the publication oI a
deIamatory statement which is likely to injure the reputation oI one
oI the parties
involved as was done in Prameela Ravindran v. P. Lakshmikutty Amma.
23
When the repetition oI the deIamatory matter is involved, the liability oI the
person who
repeats that deIamatory matter is the same as that oI the originator,
because every
repetition is a Iresh publication giving rise to a Iresh cause oI action. Not on
ly the author
is liable but the editor, printer or publisher would be liable in the same way.
Chapter Three: Defences to the Tort of Defamation
The deIences to an action Ior deIamation are:
1. ustification by truth
In a civil action Ior deIamation, truth is a complete deIence. However under cri
minal
law, it must also be proved that the imputation was made Ior the public good.
Under
the civil law, merely proving that the statement was true is a good deIence the
reason
being that 'the law will not permit a man to recover damages in respect
oI an injury
to a character which he either does no or ought not to possess. But it is not nec
essary
to justiIy every detail oI the charge or general terms oI abuse, provided that t
he gist oI
the libel is provided to be in substance correct, and that the detail, etc., whi
ch are not
justiIied produce no diIIerent eIIect on the mind oI the reader than
the actual truth
would do.
24
The deIence is available even iI the statement is made maliciously and iI
the statement is substantially true but incorrect in respect oI certai
n other minor
particulars, the deIence will still be available. The truth oI deIamat
ory word is
complete deIence to an action oI libel or slander though it is not
so in a criminal
trial.
25
It is not suIIicient justiIication to prove that there was some sort oI rumour;
it
must be proved that it was true.
26
The DeIamation Act, 1952 (England) provides that iI there are several
charges oI
deIamation and the deIendant is successIul in proving the truth oI only some oI
them,
the deIence oI justiIication might still be available iI the charges
not proved do not
materially injure the reputation. Although there is no speciIic provisi
on in India
regarding the above, the law is possibly the same as prevailing in England.
2. fair and bona fide comment on a matter of public interest
It involves making Iair comments on matters oI public interest. Thus
legitimate
criticism is no tort; should loss ensue to the plaintiII, it would b
e damnum sine
22
Wenman v Ash (1833) 13 C8 836
23
Al8 2001 Mad 223
24
er Lord uenman ln Cooper v Lawson (1838) 8 Au L 746 733
23
8aghunaLh uamodhar v !anardhan Copal (1891) 1 PC 133
26
WaLkln v Pall (1868) L83 C8 396
injuria. Matters oI public interest are not to be understood in a narrow sense.
For this
deIence to be available, the Iollowing essentials are required:
(i) It must be a comment, i.e., an expression oI opinion rather than an assertio
n oI Iact
(ii) The comment must be Iair, i.e., must be based on the truth and
not on untrue or
invented Iacts
(iii) The matter commented upon must be oI public interest.
The word Iair embraces the meaning oI honest and also oI relevancy.
Mere
exaggeration or gross exaggeration would not make the comment unIair.
27
The
comment to be Iair must be based on true Iacts and must be objectiv
ely Iair in the
sense that any man however, prejudiced and obstinate could have honest
ly held the
views expressed. II due to malice on the part oI the deIendant, the
comment is a
distorted one, his comment ceases to be Iair and he cannot take such
a deIence.
In Gregory V Duke oI Brunswic
28
k the plaintiII, an actor, appeared on the stage oI a
theatre but the deIendant and other persons in malice started hooting and hissi
ng and
thereby caused him to lose his engagement. This was held to actionable and an un
Iair
comment on the plaintiII`s perIormance and the deIendants were held to be guilty
.
3. Privilege
There are certain occasions when the law recognizes that the right oI
Iree speech
outweighs the plaintiII`s right to reputation: the law treats such occ
asions to be
privileged and a deIamatory statement made on such occasions is not a
ctionable.
Privilege is oI two kinds:
O bsolute Privilege
Certain statements are allowed to be made when the larger interest oI
the
community overrides the interest oI the individual. No action lies Ior
the
deIamatory statement even though it may be Ialse or malicious. In such cases,
the public interest demands that an individual`s right to reputation should give
way to the Ireedom oI speech. Absolute Privilege is recognized in the
Iollowing cases:
(i) Parliamentary Proceedings
Articles 105 (2) oI the Indian Constitution provided that a statement
made by a member oI either house oI Parliament in Parliament, and the
publication by or under the authority oI any report, paper, votes or
proceedings, cannot be questioned in a court oI law. A similar
privilege exists in respect oI state legislatures, according to Article
194(2).
(ii) udicial Proceedings
No action Ior libel or slander lies, whether against judges, counsels,
witnesses, or parties, Ior words written or spoken in the course oI
proceedings beIore any court recognized by law, even though the
words written or spoken were written or spoken maliciously without
any justiIication or excuse and Irom personal ill will and anger against
the person deIamed. Such a privilege also extends to proceedings oI
the tribunals possessing similar attributes.
(iii)Military and Naval proceedings
27
Merlvale v Carson (1887) 20 C8u 173
28
(1843) 6 M C 203
Proceedings oI naval and military tribunals are absolutely privileged.
Statements made beIore a naval or military Court oI Inquiry by a
military personal are protected. Reports made in the course oI military
or naval duty, such as adverse opinions expressed by one oIIicer oI the
conduct oI another, are absolutely privileged, even iI made maliciously
and without reasonable or probable cause.
29
(iv) State Proceedings
A statement made by an oIIicer oI the State to another in the course oI
oIIicial duty is absolutely privileged Ior reasons oI public policy. Such
privilege also extends to reports made in the course oI military and
naval duties. Communications relating to State Matters made by one
Minister to another or by a Minister to the Crown is also absolutely
privileged.
30
O "ualified Privilege
For communications made in the course oI legal, social or moral duty,
Ior
selI-protection, protection oI common interest, Ior public good and
proceedings at public meetings, provided the absence oI malice is prov
ed.
Also, there must be an occasion Ior making the statement. To avail t
his
deIence, the Iollowing things must be kept in mind:
(i) The statement should be made in discharge oI a public duty or protection
oI an interest
(ii) Or, it is a Iair report oI parliamentary, judicial or other
public
proceedings
(iii) The statement should be made without any malice.
The words oI the libel and the circumstance attending its publication
may
themselves aIIord evidence oI malice.
31
A privileged occasion in the present
context is an occasion when the person who makes a communication has
an
interest or a duty legal, social or moral to make it to the person to whom it
is
made has a corresponding interest or duty to receive it.

29
uawklns v Lord auleL (1869) L8 3 C8 94
30
ChaLLerLon v Secy of SLaLe for lndla ln Councll (1893) 2 C8 189
31
MoLl Lal 8aha v lndra naLh 8aner[ee (1909) lL8 36 Cal 907

Chapter four - Remedies for Defamation

Damages
The purpose oI damages in tort law is to compensate the victim and seek to place
him in the
position he would have been in had the tort not been committed against him.
In deIamation proceedings the jury determines the amount oI damages that the cla
imant shall
receive. As discussed in the introduction to this workbook awards are notoriousl
y high,
although evidence suggests they may be declining. In his evidence to the Calcutt
Committee
on Privacy and Related Matters (1991), Mr.Louis Blom-Cooper QC the then Chairman
oI the
Press Council Ielt that awards were high due to the attitude oI juries, he repor
ted, "they
reIlect the juries' disapproval oI the improper disclosure by newspapers oI inti
mate details oI
an individual's private liIe".
The damages that may be awarded in deIamation proceedings may be divided into tw
o broad
categories, compensatory damages and exemplary damages.

Compensatory Damages
Compensatory damages seek as Iar as is possible to compensate or 'make-up' Ior t
he damages
suIIered by the claimant's reputation as a result oI the deIamatory statement.
Within this category also Ialls damages to compensate the claimant Ior the distr
ess and
suIIering which has occurred as a result oI the deIamation. Where the claimant's
distress and
suIIering have been worsened by the deIendant's subsequent conduct the award may
be
increased to include 'aggravated damages', an example may be the deIendant's con
tinued
persistence oI a plea oI justiIication.
Compensatory damages may also include a 'speciIic' element to compensate Ior any
particular, identiIiable pecuniary loss.
Exemplary Damages
These were succinctly described by the Law Commission (Report No. 247) as damage
s
which "aim to punish the wrongdoer". The existence oI a punitive element within
the civil
law is controversial. In 1995 the Law Commission issued a consultation paper on
the Iuture
oI exemplary damages, 28 oI respondents were in Iavour oI their abolition. The La
w
Commission ultimately Iavoured retention.
There is guidance in statute and case-law as to the directions to be given to a
jury to
determine the level oI damages, the powers oI appellate courts and the general d
egree oI
damages, in relation to both compensatory and exemplary damages. These matters a
re
discussed below.
The traditional attitude oI the Court oI Appeal to awards oI damages which were
appealed on
the grounds that they were excessive was not to interIere with the jury's decisi
on. In
Blackshaw v Lord |1983| QB 1 Fox LJ stated that the Court oI Appeal "is not enti
tled to
seize the matter Irom the jury and set aside the award merely because our opinio
n as to the
proper amount oI damages diIIers Irom that oI a jury". As such this was the posi
tion when the
Court oI Appeal heard SutcliIIe v Pressdram |1991|. In that case a concession wa
s made as it
was held that an excessive award may be set aside iI it is unreasonable in the s
ense that no
reasonable jury could have awarded such a sum in the absence oI a misdirection,
accordingly
any such award would be re-assessed by a new jury. In that case an award oI 600,0
00 was
set aside and a new trial ordered.
Under section 8 Courts and Legal Services Act, 1990 the Court oI Appeal's powers
in relation
to cases appealed on the grounds oI excessive damages were extended to include t
he power to
'substitute Ior the sum awarded by the jury such sum as appears to the court to
be proper'.
The Court oI Appeal used this power in Rantzen v Mirror Group Newspapers Ltd |19
94|
where an award oI 250,000 was considered excessive and an award oI 110,000 was
substituted.. The Court oI Appeal considered how the jury should be directed on
assessing
damages and made several clear statements concerning:
Matters for consideration by the jury
Rantzen - matters
"It is to be hoped that in the course oI time a series oI decisions oI the Court
oI Appeal will
establish some standard as to what are, in the terms oI section 8 oI the Act oI
1990 'proper'
awards. In the meantime the jury should be invited to consider the purchasing po
wer oI any
award which they may make. In addition they should be asked to ensure that any a
ward they
make is proportionate to the damage which the plaintiII |claimant| had suIIered
and is a sum
which is necessary to award him to provide adequate compensation and re-establis
h his
reputation".
References to awards in previous cases
"We are not persuaded that at the present time it would be right to allow reIere
nces to be
made to awards by juries in previous cases. Until very recently it had not been
the practice to
give juries other than minimal guidance as to how they should approach their tas
k oI
awarding damages and in these circumstances previous awards cannot be regarded a
s
establishing a norm or standard to which reIerence can be made in the Iuture. Aw
ards made
by the Court oI Appeal in its exercise oI its powers under section 8 oI the Act
oI 1990 and
Ord. 58, r, 11(4) stand on a diIIerent Iooting. It seems to us that it must have
been the
intention oI the Iramers oI the Act oI 1990 that over a period oI time the award
s made by the
Court oI Appeal would provide a corpus to which reIerence could be made in subse
quent
cases".
References to awards in personal injury cases
"We see the Iorce oI the criticism oI the present practice whereby a plaintiII |
claimant| in an
action Ior libel may recover a much larger sum by way oI damages Ior an injury t
o his
reputation, which may prove transient in its eIIect, than the damages awarded Io
r pain and
suIIering to the victim oI an industrial accident who has lost an eye or the use
oI one or more
oI his limbs. We have come to the conclusion, however, that there is no satisIac
tory way in
which the conventional awards in actions Ior damages Ior personal injuries can b
e used to
provide guidance Ior an award in an action Ior deIamation. Despite...submissions
to the
contrary it seems to us that damages Ior deIamation are intended at least in par
t as a
vindication oI the plaintiII to the public.We thereIore Ieel bound to reject the
proposal that
the jury should be reIerred to awards made in actions involving serious personal
injuries."
The Court oI Appeal addressed these issues again in John v MGN Ltd |1996| and ma
de clear
statements on several matters, these represent current law:
Matters for consideration by the jury in assessing compensatory damages
"The sum must compensate him Ior the damage to his reputation; vindicate his goo
d name;
and take account oI the distress, hurt and humiliation which the deIamatory publ
ication has
caused. In assessing the appropriate damages Ior injury to reputation the most s
igniIicant
Iactor is the gravity oI the libel; the more closely it touches the plaintiII's
|claimant's|
personal integrity, proIessional reputation, honour, courage, loyalty and the co
re attributes oI
his personality, the more serious it is likely to be. The extent oI publication
is also very
relevant: a libel published to millions has a greater potential to cause damage
than a libel
published to a handIul oI people".
Matters for consideration by the jury in assessing exemplary damages
In summary the court held that in the case oI an award Ior exemplary damages the
jury must
be certain that the publisher lacked a belieI in the truth oI the deIamatory sta
tement and Iailed
to take any steps to address suspicion as to their truthIulness, and that the co
mpensatory
award was insuIIicient to contain a punitive element and to act as a deterrent t
o others. Thus
in the case itselI an exemplary award was considered necessary where a national
newspaper
had Iailed to ascertain whether or not the claimant musician had in Iact attende
d a party at
which the paper reported he was observed behaving in a such a way that he may be
medically
considered as suIIering Irom a Iorm oI the eating disorder bulimia.
References to awards in previous cases
"We wholly agree with the ruling in Rantzen that juries should not a present be
reminded oI
previous libel awards by juries. The awards will have been made in the absence o
I speciIic
guidance by the judge and may themselves by very unreliable markers".
References to awards in personal injury cases
"The conventional compensatory scales in personal injury cases must be taken to
represent
Iair compensation in such cases unless and until those scales are amended by the
courts or by
Parliament. It is in our view oIIensive to public opinion and rightly so, that a
deIamation
plaintiII |claimant| should recover damages Ior injury to reputation greater, pe
rhaps a by a
signiIicant Iactor, than iI that same plaintiII |claimant|had been rendered a he
lpless cripple or
an insensate vegetable. The time has in our view come when judges and counsel sh
ould be
Iree to draw the attention oI juries to these comparisons".
CONCLUSION
The laws in place to counter the menace oI deIamation are both satisIactory and
reasonable
but in certain areas need to be made more stringent so as to dissuade the celebr
ity crazy
media Irom wantonly publishing and broadcasting Iraudulent, deIamatory matter in
 order to
make instant money. Thus the protection oI privacy and the prevention oI press h
arassment is
also an important issue which needs to be redressed with the better implementati
on oI laws
already existing.
Since no cause oI action survives the deIamed person`s death, it is clear that r
eputation is
merely a transitory interest, which, by way oI the deIences available, has to be
balanced
against the public interest. Similarly Iair comments protect the press when expr
essing their
views on the actions oI politicians, public servants and others in the public ey
e, provided they
are true.
DeIamation does have signiIicance and a very strong one at that as it protects a
right which is
essential to Ior the members oI society to co-exist. Obviously, iI people do not
respect that
right and are allowed to say and publish whatever they want without substantiati
ng it with an
honest reason to believe, then there would be no harmony in society, insecurity
would be
rampant and society would be in shambles. However there exists the question oI b
alancing
the interest oI both the parties concerned. This debate on how to achieve the co
rrect balance
between the individual`s interest in his good name and Ireedom oI speech is a vi
tal attribute
oI democratic society. However, while trying to resolve that debate via the deve
lopment oI
the tort oI deIamation, the courts are hindered by the procedural game which cha
racterises
many libel actions, the unpredictability oI the jury, and the absence oI develop
ed torts oI
invasion oI privacy and breach oI conIidence. Thus more changes need to be taken
which do
away with the superIluous procedural games thus leaving behind only the core oI
the tort to
be implemented. However, the tort oI deIamation has an ancient history and a cap
acity Ior
survival which shall outlive more topical concerns.
Bibliography
Books
David Price and Korieh Duodu, DeIamation: Law, Procedure and Practise, Sweet a
nd
Maxwell, Third Edition, 2004, London
Justice G.P. Singh, Ratanlal and Dhirajlal, The Law oI Torts, Wadhwa and Compa
ny
Nagpur, Twenty-Fourth Edition, 2007, Delhi
Margaret Brazier and John Murphy, Street on Torts, Butterworths, Tenth Edition
, 1999,
London
R. K. Bangia, Law oI Torts, Allahabad Law Agency, Nineteenth Edition, 2006, Ha
ryana
S.K. Desai and Kumud Desai, Ramaswamy Iyer`s The Law oI Torts, Seventh Edition
,
1975, Bombay
W. V. H. Rogers, WinIield and Jolowicz on Tort, Sweet and Maxwell, Seventeenth
Edition, 2006, London
SERVAI, Constitutional Law oI India, 3
rd
Edition, Vol. 1
Law Dictionary
Garner, Bryan A. Black`s Law Dictionary, 9
th
Edition, West Publications, p. 479
Cases
Cassidy V Daily Mirror Newspapers Ltd (1929) 2 K.B. 331
Douglas V Hello! Ltd (2005) EWCA Civ 595; (2005) 3 W.L.R. 881
Megarry J in Coco v AN Clark (Engineers) Ltd |1969| RPC 41, 47
Gregory V Duke oI Brunswick (1843) 6 M. and G. 205
Derbyshire County Council v Times Newspapers Ltd |1993| AC 534, |1993| 1 A11 E
R
1011, HL
Reynolds V Times Newspapers Ltd |1998| 3 A11 ER 961, CA
Mst. Ramdhara v. Mst. Phulwatibai, 1969 Jab. L.J. 582: 1969 M.P.L.J 482: 1970
Cr. L.J.
286 (M.P.)
D.P. Choudhary v. Manjulata, A.I.R. 1997 Raj.170
Hulton Co. V Jones (1909) 2 K.B. 444
Fanu v. Malcomson, (1848) 1 H.L. Cas. 637
Prameela Ravindran v. P. Lakshmikutty Amma, A.I.R. 2001 Mad 225
De Crespigny v. Wesllelley, (1829) 5 Bing 39
Noor Mohd. V. Mohd. Jiauddin, AIR 1992 MP 244, p. 249 (para 15
Hayword v. Thompson, (1981) 3 All ER 450(458)(CA).
Charleston v. News Group Newspapers Ltd., (1995) 2 All ER 313
Jacobs v. Achmaltz, (1890) 62 LT 121
Le Fanu v. Malcolmson, (1848) 1 HLC 637, 668.
KnupIIer v. London Express Newspapers Ltd. (1944) 1 All ER 495
Wenman v. Ash, (1853) 13 CB 836
Per Lord Denman in Cooper v. Lawson, (1838) 8 AD & E 746, 753
Raghunath Damodhar v. Janardhan Gopal, (1891) 1 H&C 153
Watkin v. Hall, (1868) LR3 QB 396
Merivale v. Carson, (1887) 20 QBD 175
Dawkins v. Lord Paulet, (1869) LR 5 QB 94
Chatterton v. Secy oI State Ior India in Council, (1895) 2 Q.B. 189.
Moti Lal Raha v. Indra Nath Banerjee, (1909) ILR 36 Cal 907
Online Resources
www.jurisonline.com
www.timesoIindia.com
www.cyberlaws.net
www.legalindia.com
www.manupatra.com