MEDIA & TORT LAW. 6/1/00 Murali/Nalsar 1

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1 MEDIA & TORT LAW R.MURALIDHARAN ADVOCATE,PATENT ATTORNEY,RESEARCHER 10,19TH CROSS,KASHIMUTT ROAD, MALLESWARAM,BANGALORE Ph: ,telefax: /1/00 Murali/Nalsar 1

2 a fundamental right.whether it is an independent fundamental right on its own or is actually part of Freedom of Expression or Opinion is a moot point. As a matter of fact,even an ordinary right of the media gets enforced with more alacrity than the fundamental rights of the unorganized labor. 6/1/00 Murali/Nalsar 2

3 Backdrop In reality,at least in India,freedom of the press actually means the Freedom of the Publisher,which is often that of a family that controls the company.there is a need to balance the rights of the Publisher with that of the competing stake holders,such as the general public,journalists,workmen, distributors,retailers etc. 6/1/00 Murali/Nalsar 3

4 Backdrop :While the journalists, workmen and others have sufficient opportunities to work out their respective entitlements through contractual means,the general public do not have corresponding opportunities. Hence,there is a need to resort to civil(tort)and criminal laws,to achieve a harmony between the conflicting pulls of freedom of press and the right to individual privacy. 6/1/00 Murali/Nalsar 4

5 interaction with the Law of Tort was just restricted to the law of defamation in general and Libel in particular.but of late, there has been increased concern about: a)the right of individual privacy vis a vis paparazzi b)media and the law of contempt c)criminality of defamation and contempt d)pre -Publication injunctions e)the journalist s right to silence regarding his source of information(sought to be made an offence under POTO f)computer,as broadcaster has resulted in convergence,warranting a Convergence Bill g)issue of proprietary rights over information that is exchanged through media h)permission to foreign capital to participate in media 6/1/00 Murali/Nalsar 5

6 Types: 1) Libel 2) Slander 3) Innuendo It comprises in a)publication of false statement b)defamatory statement c)without legal Justification Distinguish between Injurious falsehood, Abuses from Defamation arising from hatred, ridicule or contempt. 6/1/00 Murali/Nalsar 6

7 Difference between Slander/Libel Slander non permanent publication of defamatory matter not actionable per se-only on proof of actual damage. Libel permanent proof of actual damage is necessary. 6/1/00 Murali/Nalsar 7

8 Slander becomes actionable per se in the following circumstances: An imputation that the Plaintiff has committed a criminal offence; An imputation that the plaintiff suffers from an existing contagious or infectious disease An imputation of unchastity against a woman An imputation against the Plaintiff in the way of his business or office 6/1/00 Murali/Nalsar 8

9 Innuendo Innuendo is an indirect form of defamation.but IPC does not distinguish between these technicalities.and treats it as an offence. But the quantum of punishment may vary depending on the type. 6/1/00 Murali/Nalsar 9

10 This is a striking example of innuendo being successfully pleaded.in that case an amateur golf champion sued a firm of chocolate manufacturers for an advertisement :a caricature of Mr.Tolley hitting a vigorous drive with a carton of Fry s chocolate sticking out of his pocket and a comic caddy with another carton of chocolate dancing and comparing, in doggerel,the excellence of the drive and the chocolate.offended by the bad taste of the ad,the fact that his permission had not been sought and the fact that he did not eat Fry s chocolate,he sued. 6/1/00 Murali/Nalsar 10

11 TOLLEY v.j.s.fry & SONS LTD. The innuendo alleged was that he had consented to to the use of his portrait as an advertisement for reward and had prostituted his reputation as an amateur golfer.the House of lords held that there was evidence to find the advertisement defamatory 6/1/00 Murali/Nalsar 11

12 CASSIDY S CASE:A man named Cassidy alias Corrigan, married a woman who called herself Mrs.Cassidy /Corrigan.Her husband occasionally stayed with her and her acquaintances met him. Cassidy was notorious in racing circles and for his indiscriminate relations with women, and was once photographed at a race meeting in the company of a lady,to whom he said he was engaged.the photograph was duly published with the caption: Mr.M.Corrigan,the racehorse owner and Miss X,whose engagement has been announced. 6/1/00 Murali/Nalsar 12

13 Cassidy s case:the innuendo placed upon these words by the Plaintiff was that she was an immoral woman who had cohabited with him and some of her acquaintances gave evidence that they had formed a bad opinion of her as a result of this publication.the jury found that the words did bear a defamatory meaning and awarded 500 pounds in damages.a majority in the Court of Appeal held that the verdict could not be disturbed. 6/1/00 Murali/Nalsar 13

14 Defences in Defamation: 1.Justification by Truth-unconfirmed reports-rumours 2.Privilege(Absolute/Qualified) 3.Fair Comment 4.Consent to Defamation 5.Apology 6/1/00 Murali/Nalsar 14

15 ABSOLUTE PRIVILEGE Any statement made in the course of and with reference to judicial proceedings by any judge, juryman, party,witness or advocate; Fair,accurate,and contemporaneous reports of public judicial proceedings published in a newspaper; Any statement made in Parliament by a member of either House; parliament papers published by the direction of either house,and any repetition thereof by any person in full; Certain statements made by one officer of State to another in the course of official duty; Communications between husband and wife 6/1/00 Murali/Nalsar 15

16 QUALIFIED PRIVILEGE Statements in performance of a duty Voluntary communication Professional communications 6/1/00 Murali/Nalsar 16

17 ROLE OF MALCE IN DEFAMATION Generally, under the law of tort,when one is entitled to do something,the fact that he/she does it maliciously does not make any difference.malice per se has no role in determining liability,which is done in accordance with the rights and duties of respective parties.but, if the law finds there is tortious liability, proof of malice will make a big difference in the computation of damages. 6/1/00 Murali/Nalsar 17

18 Privilege is forfeited,if exceeded newspapers do not have special right under law of defamation.newspapers have as much right as citizens both in finding the truth and expressing it.nothing more... 6/1/00 Murali/Nalsar 18

19 FAIR COMMENT 1.Comment 2.Fair Comment 3.Must relate to a matter of public interest 6/1/00 Murali/Nalsar 19

20 A fair comment on a matter which is a matter of public interest submitted for public criticism is not actionable.this is very fundamental to freedom of expression and opinion and hence cannot be whittled. 6/1/00 Murali/Nalsar 20