tort assignment

8/11/2019 Tort Assignment

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TORT

ASSIGNMENTON

DEFAMATIONSubmitted By:

Harsha

A8111110018B.A.LL.B.(hons.)

VII Semester


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DEFAMATION

ACKNOWLEDGEMENT

We want to acknowledge this assignment to a lot many people who have

helped us in preparing it. Without their help, assistance and guidance in

the preparatory process of this assignment it would have been a daunting

task to complete it.

We are heartily Thankful to our Subject Teacher, Smt. Archana

Shukla whose encouragement, guidance and support from the initial to

the final level enabled us to develop an understanding of the subject.

Lastly, we offer our regards to our parents and our friends for helping us

in any respect during the completion of the assignment.We are humbled in gratitude by receiving all their generous help. They

have made our endeavour a successful one.

Thanking You


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DEFAMATION

ESSENTIAL OF DEFAMATION

The plaintiff has to prove the following in order to establish the existenceof defamation:

that the statement was defamatory;

that the statement referred to the plaintiff; that the statement was published

TYPES OF DEFAMATION

Slander

The common law origins of defamation lie in the torts of "slander" (harmful statement in a

transitory form, especially speech), each of which gives a common law right of action.

"Defamation" is the general term used internationally, and is used in this article where it is not

necessary to distinguish between "slander" and "libel". Libel and slander both require

publication. The fundamental distinction between libel and slander lies solely in the form in

which the defamatory matter is published. If the offending material is published in some fleeting

form, as by spoken words or sounds, sign language, gestures and the like, then this is slander.

Libel

Libel is defined as defamation by written or printed words, pictures, or in any form other than by

spoken words or gestures. The law of libel originated in the 17th century in England. With the

growth of publication came the growth of libel and development of the tort of libel.

Cases involving libel

An early example of libel would be the case of John Peter Zenger in 1735. Zenger was hired to

publish New York Weekly Journal. When he printed another man's article that criticized William

Cosby, who was then British Royal Governor of Colonial New York, Zenger was accused of

Seditious Libel. The verdict was returned as Not Guilty on the charge of seditious libel, having

proved that all the statements Zenger had published about Cosby had been true, so there was not

an issue of defamation. Another example of libel would be the case of New York Times Co. v.

Sullivan (1964). The U.S. Supreme Court overruled a State court in Alabama that had found TheNew York Times guilty of libel for printing an advertisement that criticized Alabama officials

for mistreating student civil rights activists. Even though some of what The Times printed was

false, the Court ruled in its favor, saying that libel of a public official requires proof of Actual

Malice, which was defined as a "knowing or reckless disregard for the truth".


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DEFAMATION

How to prove libel

There are several ways a person must go about proving that libel has taken place. For example,

in the United States, first, the person must prove that the statement was false. Second, the person

must prove that the statement caused harm. Third, the person must prove that the statement was

made without adequate research into the truthfulness of the statement. These steps are for anordinary citizen. For a celebrity or a public official, the person must prove the first three steps

and that the statement was made with the intent to do harm or with reckless disregard for the

truth.[citation needed] Usually specifically referred to as "proving malice".

DEFENCE IN DEFAMATION

Even if a statement is defamatory, there are circumstances in which such statements are

permissible in law.

Truth

In many legal systems, adverse public statements about legal citizens presented as fact must be

proven false to be defamatory or slanderous/libellous.[citation needed] Proving adverse public

character statements to be true is often the best defence against a prosecution for libel or

defamation. Statements of opinion that cannot be proven true or false will likely need to apply

some other kind of defence. The use of the defence of justification has dangers, however; if the

defendant libels the plaintiff and then runs the defence of truth and fails, he may be said to have

aggravated the harm.

Another important aspect of defamation is the difference between fact and opinion. Statements

made as "facts" are frequently actionable defamation. Statements of opinion or pure opinion are

not actionable. From 'Other Defences' (below), under the 'Opinion' section: "However, some

jurisdictions decline to recognize any legal distinction between fact and opinion. The United

States Supreme Court, in particular, has ruled that the First Amendment does not require

recognition of an opinion privilege." To win damages in a libel case, the plaintiff must first show

that the statements were "statements of fact or mixed statements of opinion and fact" and second

that these statements were false. Conversely, a typical defence to defamation is that the

statements are opinion. One of the major tests to distinguish whether a statement is fact or

opinion is whether the statement can be proved true or false in a court of law. If the statementcan be proved true or false, then, on that basis, the case will be heard by a jury to determine

whether it is true or false. If the statement cannot be proved true or false, the court may dismiss

the libel case without it ever going to a jury to find facts in the case.

Under English common law, proving the truth of the allegation was originally a valid defence

only in civil libel cases. Criminal libel was construed as an offence against the public at large


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DEFAMATION

"Qualified privilege" may be available to the journalist as a defence in circumstances where it is

considered important that the facts be known in the public interest; an example would be public

meetings, local government documents, and information relating to public bodies such as the

police and fire departments. Qualified privilege has the same effect as absolute privilege, but

does not protect statements that can be proven to have been made with malicious intent.

Other defences

Defences to claims of defamation include:

Statements made in a good faith and reasonable belief that they were true are generally treated

the same as true statements; however, the court may inquire into the reasonableness of the belief.

The degree of care expected will vary with the nature of the defendant: an ordinary person might

safely rely on a single newspaper report, while the newspaper would be expected to carefully

check multiple sources.

Opinion is a defence recognized in nearly every jurisdiction. If the allegedly defamatory

assertion is an expression of opinion rather than a statement of fact, defamation claims usually

cannot be brought because opinions are inherently not falsifiable. However, some jurisdictions

decline to recognize any legal distinction between fact and opinion. The United States Supreme

Court, in particular, has ruled that the First Amendment does not require recognition of an

opinion privilege.

Mere vulgar abuse is an insult that is not necessarily defamatory because it is not intended to be

taken literally or believed, or likely to cause real damage to a reputation. Vituperative statements

made in anger, such as calling someone "an asshole" during a drunken argument, would likely be

considered mere vulgar abuse and not defamatory.

Fair comment on a matter of public interest, arguments made with an honest belief in their

soundness on a matter of public interest (such as regarding official acts) are defendable against a

defamation claim, even if such arguments are logically unsound; if a reasonable person could

honestly entertain such an opinion, the statement is protected.

Consent is an uncommon defence and makes the claim that the claimant consented to the

dissemination of the statement.

Innocent dissemination is a defence available when a defendant had no actual knowledge of the

defamatory statement or no reason to believe the statement was defamatory. The defence can be

defeated if the lack of knowledge was due to negligence. Thus, a delivery service cannot be held

liable for delivering a sealed defamatory letter.

Claimant is incapable of further defamatione.g., the claimant's position in the community is so

poor that defamation could not do further damage to the plaintiff. Such a claimant could be said

to be "libel-proof", since in most jurisdictions, actual damage is an essential element for a libel


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DEFAMATION

claim. Essentially, the defence is that the person had such a bad reputation before the libel, that

no further damage could possibly have been caused by the making of the statement.

Statute of limitations. Most jurisdictions require that a lawsuit be brought within a limited period

of time. If the alleged libel occurs in a mass media publication such as a newspaper or the

Internet, the statute of limitations begins to run at the time of publication, not when the plaintifffirst learns of the communication.

No Third-party communication: If an employer were to bring an employee into a sound-proof,

isolated room, and accuse him of embezzling company money, the employee would have no

defamation recourse, since no one other than the would-be plaintiff and would-be defendant

heard the false statement.

No actual injury: If there is third-party communication, but the third-party hearing the

defamatory statement does not believe the statement, or does not care, then there is no injury,

and therefore, no recourse.

In addition to the above, the defendant may claim that the allegedly defamatory statement is not

actually capable of being defamatoryan insulting statement that does not actually harm

someone's reputation is prima facie not libelous. Also, the public figure doctrine, also called the

absence of malice rule, may be used as a defence.

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