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The Tort of Defamation: An Analysis of the Law in India and the United Kingdom

A mans reputation is his property and is more valuable than any other tangible asset.
Every man
has the right to have his reputation preserved. It is acknowledged as an inherent personal
right of every person. It is a
jus in rem
, a right good against all the people in the world. The degree of suffering caused by loss
of reputation far exceeds that caused by loss of any material wealth.The Law of
Defamation protects reputation. Defamation is defined as follows:
Defamation is the publication of a statement which reflects on a persons reputation and
tends to
lower him in the estimation of right-thinking members of society generally or tends to
make themshun or avoid him.
In English Common Law, reputation is the most clearly protected and is remedied
almostexclusively in civil law by an award of damages after trial by a jury. However
reputation canrarely be assessed in financial terms but the damages awarded in most
defamation cases are
substantial because these awards reflect the juries ideas of the value of dignity and
honour as
well as reputation. At the same time, there is some tension between this wrong and the
freedomof speech, particularly the freedom of the press and broadcast media and the
common law whichhas felt the influence of the European Convention on Human
Rights.However, the Law of Defamation like many other branches of tort law aims at
balancing theinterests of the parties concerned. These are the rights that a person has to
his reputation vis--visthe right to freedom of speech. The Law of Defamation provides
defences to the wrong such astruth and privilege thus also protecting right of freedom of
speech but at the same time markingthe boundaries within which it may be limited. In
India tort law is obtained from BritishCommon Law and is yet uncodified. Therefore the
existing law relating to defamation placesreasonable restrictions on the fundamental right
of freedom of speech and expression conferredby Article 19(1) (a) of the Constitution and
is saved by clause (2) of Article 19.The wrong of defamation may be committed by
making defamatory statements which arecalculated to expose a person to hatred,
contempt or ridicule, or to injure him in his trade,business, profession, calling or office,
or to cause him to be shunned or avoided in society. Thisis kno
wn as publication of the statement, which in its true legal sense means the
communication of defamatory matter to some person other than the person of whom it is
written.These statements can be made in the following two ways:
1. Libel:
The publication of a false and defamatory statement tending to injure the reputation of

another person without lawful justification or excuse. The statement must be in a

printedform, e.g., writing, printing, pictures, cartoons, statue, waxwork effigy etc.
2. Slander:
A false and defamatory statement by spoken words and/or gestures tending toinjure the
reputation of others. It is in a transient form. It also involves the sign languageused by the
physically disabled.In Common law, a libel is a criminal offence as well as a civil wrong,
but a slander is a civilwrong only. However in Indian law, both are criminal offences
under Sec. 499 of the I.P.C. Libelis more favourable to the claimant because it is
actionable per se and injury to reputation will bepresumed. The Faulks Committee in its
report in 1975 recommended the abolition of thisdistinction between libel and slander
which when implemented will mean that no human plaintiff need prove any special
damage but institutional plaintiffs should prove that the words actuallycaused loss or
were likely to do so. The weight of the authorities is for discarding between libeland
slander and making both of them actionable per se. However, whether the case is one of
libelor slander, the following elements must be proved by the claimant in order for the
defendant tobe liable for the tort of defamation:
1. The statement (the technically correct term is imputation) is defamatory.
2. It refers to the plaintiff i.e. identifies him.
3. It has been published i.e. communicated to at least one person other than the
claimant.Defamation is a unique tort, especially when understood in its historical context.
Until the16 th century in England, general jurisdiction over defamation was exercised by
the clergy.Thereafter, the common law courts developed an action on the case for slander
where temporal,as distinct from spiritual damage could be established. This progress
became too rapid for the judges who proceeded to hedge the action around with tighter
restrictions. Later, the commonlaw courts established a distinction between libel and
slander on the basis that damage could be presumed in libel, but that the plaintiff would
have to prove special damage before an action for slander would lie.In the late
nineteenth and early twentieth centuries, liability in defamation was extended becauseof
the menace to reputations occasioned by the new, popular press with its mass circulation.
Therecent history of defamation is marked by continuing conflict between the need to
protectindividuals from unjustifiable character assassination and the right to freedom of
the speech. Thepress maintains that the latter is often disregarded at the expense of open
and honest criticism of those in authority. But in Derbyshire County Council v Times
Newspapers Ltd the press scored anotable victory. The House of Lords ruled that a
democratically elected body should be open touninhibited public criticism and that the
threat of a defamatory action would surely inhibit thefreedom of speech of the press.
However, in Reynolds V Times Newspapers Ltd The Court of Appeal was mindful of the
fact that the European Rights Convention, which stressed upon the fundamentality of the
right to freedom of speech, was destined to become a part of common lawand that thus
there should be allowed the defence of qualified privilege to be raised by the presswhen
commenting on public figures.Defamation actions have proved to be a popular recourse
for wealthy public figures seeking,with the aid of expensive lawyers, to vindicate their
reputations publicly in the law courts. To a certain extent, the tort of defamation is a
wealthy persons tort, for legal aid is available neither to pursue, nor to defend, a
defamation action. On the other hand, in the past, a number of libelactions have, on

occasion, been supported by private funds set up by wealth individuals with anaxe to
grind who have themselves suffered at the hands of the popular press.Another notable
facet of defamation actions in recent years is the very high level of damagesawarded,
which have not simply compensated the plaintiffs for their loss of reputation but havealso
included a very sizeable amount of punitive damages. The amount of damages is
normallyset by a jury. Also defamation has become a very lucrative specialisation for
lawyers too. Mostof the decided cases of defamation reveal that they do not concern the
essence of the claim itself,but rather, complex arguments on pleadings and particulars. In
consequence, legal costs consumelarge proportions of the claims itself.Defamation is a
relatively new tort for Indian Law. Not many defamation suits were filed in thecountry
until recently and the only ones that were filed were those by film stars and the rich
andthe famous, against the media, trying to salvage their reputation. However, now after
the mediarevolution in this country, and with people becoming more aware of their rights,
the frequency of defamation suits being filed is increasing. Recently, there have been a
few cases where a few journalists haveexposed the corrupt side of the politicians by
discreetly filming a politicianwith a hidden camera when he was taking a bribe for posing
questions in parliament or religiousheads discreetly accepting bribes in order to go ahead
and declare something about their religion,distorting completely the religious principles
they are supposed to uphold and by misuse theauthority vested in him/her. In India these
days, it is this category of people who file defamationsuits against the media for
destroying their reputation and questioning the veracity of thesehidden recordings. Now,
not only are celebrities filing lawsuits, but many not-so-famous peopleare realizing that if
their right to reputation is violated, they can make sure that the offender ispunished and
can walk away with a handsome sum as compensation too. Clearly, India is on itspath to
become a litigious society.
Chapter One: The constituents of the Tort of Defamation
Regardless of whether a defamation action is framed in libel or slander, the plaintiff must
alwaysprove that the words, pictures, gestures etc are defamatory. Equally, the plaintiff
must show that they refer to him. Finally he must also prove that they were maliciously
published. These are thethree essential elements in a defamation action.
Elements of Defamation
(A) The statement must be defamatory
Any imputation which exposes one to disgrace and humiliation, ridicule or contempt,
isdefamatory. It could be made in different ways as in it could be oral, in writing, printed
or by theexhibition of a picture, effigy or statue or by some conduct.According to Lord
Atkins, whether a statement is defamatory or not depends upon how the right thinking
members of society the society are likely to take it. Yet the term right-thinkingmembers
of society is highly ambiguous. The standard to be applied is that of a rightmindedcitizen, a man of fair average intelligence, and not that of a special class of
persons whose valuesare not shared or approved by the fair minded members of that
society generally. If the likely effect of the statement is the injury to the plaintiffs
reputation, it is no defence to say that it was not intended to be defamatory. When the
statement causes anyone to be regarded with feelings of hatred, contempt, ridicule, fear,
dislike, or disesteem, it is defamatory.In D.P. Choudhary v. Manjulata there was
publication of a statement in a local daily in Jodhpurthat Manjulata on the pretext of

attending her evening BA classes ran away with a boy namedKamlesh. The girl belonged
to a well educated respectable family. She was seventeen years of age. The news item
was untrue and had been irresponsibly published without any justification.This was
defamatory and the defendants, the newspaper publishers were held liable.However,
words spoken in anger or annoyance or in the heat of the moment are not defamatoryas
they no way reflect on the character of the one being abused.However, sometimes the
statement being used to defame may be prima facie innocent butbecomes defamatory
because of some latent or hidden meaning. In such a scenario the plaintiff must prove the
hidden meaning, which is the innuendo if s/he wants to file a suit for defamation.For
instance in Cassidy V Daily Mirror Newspapers the newspaper published a picture of a
lady and the race horse owner with the caption underneath, Mr. M. Corrigan, the race
-horse owner and Miss X whose engagement has been announced. The newspaper was
held liable in a suit that said that the lady was the lawful wife of Mr. Corrigan and
complained that the wordssuggested that she had been living with him in immortality.
The liability of the defendants restedon their failure to make independent inquiry. This
also brings forth another aspect of this tort thatintention to defame is not necessary and if
the words are considered to be defamatory by thepersons to whom the statement is
published, there is defamation.
(B) The statement must refer to the plaintiff
The plaintiff has to prove that the statement which is claimed to be defamatory actually
refers tohim/her. It is immaterial that the defendant did not intend to defame the plaintiff,
if the person towhom the statement was published could reasonably infer that the
statement referred to theplaintiff, the defendant is nevertheless liable.In Hulton Co. V
Jones the defendants published a fictional article in their newspaper in whichaspersions
were cast on the morals of a fictitious character-Artemus Jones, stated to be
aChurchwarden. On this basis one Artemus Jones, a barrister, brought an action against
thedefendants. The defendants pleaded that Artemus was a fictional character and the
plaintiff wasnot known to them and thus they had no intention to defame him.
Notwithstanding this, theywere held liable because a substantial number of persons who
knew the plaintiff and had read theeditorial would have assumed it to be referring to
him.However, when the defamation refers to a class of persons, no member of that group
can sueunless he can prove that the words could reasonably be considered to be referring
to him.When the statement though generally referring to a class can be reasonably
considered to bereferring to a particular plaintiff, his action will succeed. In Fanu v.
Malcomson, in an articlepublished by the defendants, it was mentioned that cruelty was
practised upon employees insome of the Irish factories. From the article as a whole
including a reference to Waterford itself, it was considered that the plaintiffs Waterford
factory was aimed at in the article and the plaintiff was, therefore, successful in his action
for defamation.
(C) The statement must be published
Publication means making the defamatory matter known to some other third part and
unless thatis done, no civil action for defamation can lie in court. Communication to the
plaintiff wontcount because defamation is injury to the reputation which consists in the
estimation in which others hold him and not a mans own opinion of himself. However, if
a third party wrongfully intercepts and reads a letter sent to the plaintiff it is not

defamation. However when thedefendant knows that the letter is likely to be read by
someone else and it contains some personalinformation only meant for the recipient, then
he will be liable.Also, an injunction can be issued against the publication of a defamatory
statement which islikely to injure the reputation of one of the arties involved as was done
in Prameela Ravindran v.P. Lakshmikutty Amma .Also, in the eyes of the law, husband
and wife are one person and the communication of adefamatory matter from the husband
to the wife or vice versa is no publication.When the repetition of the defamatory matter is
involved, the liability of the person who repeatsthat defamatory matter is the same as that
of the originator, because every repetition is a fresh publication giving rise to a fresh
cause of action. Not only the author is liable but the editor,printer or publisher would be
liable in the same way.
Chapter Two: Defences to the Tort of Defamation
(A) Justification by truth
In a civil action for defamation, truth is a complete defence. However under criminal law,
it mustalso be proved that the imputation was made for the public good. Under the civil
law, merelyproving that the statement was true is a good defence the reason be ing that
the law will not permit a man to recover damages in respect of an injury to a character
which he either does no or ought not to possess
The defence is available even if the statement is made maliciously and if the statement
issubstantially true but incorrect in respect of certain other minor particulars, the defence
will stillbe available.The Defamation Act, 1952 (England) provides that if there are
several charges of defamation andthe defendant is successful in proving the truth of only
some of them, the defence of justificationmight still be available if the charges not proved
do not materially injure the reputation.Although there is no specific provision in India
regarding the above, the law is possibly the sameas prevailing in England.
(B) A fair and bona fide comment on a matter of public interest
It involves making fair comments on matters of public interest. For this defence to be
available,the following essentials are required:(i) It must be a comment, i.e., an
expression of opinion rather than an assertion of fact(ii) The comment must be fair, i.e.,
must be based on the truth and not on untrue or invented facts(iii) The matter commented
upon must be of public interest.If due to malice on the part of the defendant, the comment
is a distorted one, his comment ceasesto be fair and he cannot take such a defence. In
Gregory V Duke of Brunswick the plaintiff, anactor, appeared on the stage of a theatre
but the defendant and other persons in malice startedhooting and hissing and thereby
caused him to lose his engagement. This was held to actionable and an unfair comment
on the plaintiffs performance and the defendants were held to be guilty.
(C) Privilege - It is of two kinds
: Absolute Privilege: Certain statements are allowed to be made when the larger interest
of thecommunity overrides the interest of the individual. No action lies for the
defamatory statementeven though it may be false or malicious. In such cases, the public
interest demands that anindividuals right to reputation should give way to the freedom of
speech. This privilege is provided to:
(i) Parliamentary proceedings,

(ii) judicial proceedings,

(iii) Military and Naval proceedings and
(iv) State proceedings.
Qualified Privilege: For communications made in the course of legal, social or moral
duty, forself-protection, protection of common interest, for public good and proceedings
at publicmeetings, provided the absence of malice is proved. Also, there must be an
occasion for makingthe statement. To avail this defence, the following things must be
kept in mind:(i) The statement should be made in discharge of a public duty or protection
of an interest
(ii) Or, it is a fair report of parliamentary, judicial or other public proceedings
(iii) The statement should be made without any malice.
Chapter Three: An Analysis of an English defamation case: douglas V hello! magazine
In this case, the upcoming glamorous wedding of the claimants, both Hollywood
celebrities hadreceived widespread coverage in the tabloid press. In November 2000 OK!
A tabloid journalentered into a contract with Michael Douglas and Catherine Zeta-Jones,
for the exclusive right topublish photographs of their forthcoming wedding on 18
November 2000 at the Plaza Hotel,New York. The Douglases dealt with OK!, who paid
them 1m for the rights, in preference tothe rival magazine Hello!, published by the
respondent. The Douglases agreed to engage aphotographer and to supply OK! with
pictures they had chosen. By clause 6 of the agreementthey agreed to use their best
efforts to ensure that no one else would take any photographs.The Douglases went to
some lengths to comply with this obligation and no criticism is made of their security
precautions, but a freelance photographer named Rupert Thorpe infiltrated thewedding
and took photographs which he sold to Hello!. OK! obtained an ex parte
injunctionrestraining publication by Hello! but on 23 November 2000 the injunction was
discharged by theCourt of Appeal and the photographs were published on the following
day. A few hours earlieron the same day OK! published its own photographs, having
brought forward its date of publication on account of what it knew to be the imminent
publication by Hello! Also on thesame day, some of the unauthorized pictures were,
without objection by Hello!, published innational daily newspapers.OK! sued Hello! for
breach of confidence and for the tort of causing loss by unlawful means.Lindsay J held
Hello! liable for breach of confidence. He applied the well-known criteriasummarized by
Megarry J in Coco v AN Clark (Engineers) Ltd [1969] RPC 41, 47:
First, the information itselfmust have the necessary quality of confidence about it.
Secondly, that information must have been imparted in circumstances importing an
obligation of confidence. Thirdly, there must be an unauthorised use of that information
to the detriment of the party communicating it.
For this purpose the judge identified the information as being photographic images of
thewedding. Not information about the wedding generally; anyone was free to
communicate theinformation that the Douglases had been married, describe what the
bride wore and so forth. Theclaim was only that there had been a breach of an obligation
of confidence in respect of photographic images.Lindsay J held that the three conditions
were satisfied. As for the first, photographs of thewedding were confidential information

in the sense that none were publicly available. As to thesecond, the Douglases had made
it clear that anyone admitted to the wedding was not to make orcommunicate
photographic images. They allowed people to witness their marriage, but only onthe basis
that the information which the spectators thereby obtained was not communicated in
theform of a photographic image. The judge said (at para 197):
the very facts that Hello! and OK! competed for exclusivity as they did and that each
was ready to pay so much for it points to the commercial confidentiality of coverage of
the event. The event was private in character and the elaborate steps to exclude the
uninvited, to include only theinvited, to preclude unauthorized photography, to control
the authorized photography and to have had the claimants intentions in that regard made
clear all conduce to that conclusion.
Such images as were, so to speak, radiated by the event were imparted to those
present,including Mr Thorpe and his camera, in circumstances importing an obligation of
Everyone there knew that was so.
Furthermore, everyone knew that the obligation of confidence was imposed for the
benefit of OK! as well as the Douglases. To no one could this have been clearer than to
Mr Thorpe. The judge then went on to make findings about the circumstances in which
Hello! had acquired hisphotographs:
198. As for the Hello! defendants, their consciences were, in my view, tainted; they were
not acting in good faith nor by way of fair dealing. Whilst their position might have been
worse had I held that the taking of unauthorised pictures for use by them had been truly
commissioned inadvance, even without that there is in my view enough to afflict their
conscience. They knew that OK! had an exclusive contract; as persons long engaged in
the relevant trade, they knew what sort of provisions any such contract would include and
that it would include provisions intended to preclude intrusion and unauthorised
photography. Particularly would that be so where, asthey knew, a very considerable sum
would have had to have been paid for the exclusive rightswhich had been obtained.
The surrounding facts were such that a duty of confidence should be inferred from them.
The Hello! defendants had indicated to paparazzi in advance that theywould pay well for
photographs and they knew the reputation of the paparazzi for being able tointrude. The
unauthorised pictures themselves plainly indicated they were taken surreptitiously.Yet
these defendants firmly kept their eyes shut lest they might see what they undeniably
knew would have become apparent to them.
The obligation of confidence was therefore binding upon Hello! and the third requirement
of useto the detriment of OK! was plainly satisfied. Lindsay J therefore decided that
Hello! was liableto OK! for the loss caused by the publication, which he later assessed at
The Court of Appeal reversed the judges decision on the ground that the obligation of
confidence for the benefit of OK! attached only to the photographs which the
Douglasesauthorized them to publish. They did not have the benefit of an obligation of
confidence inrespect of any other photographs. Their publication may have invaded a
residual right of privacyretained by the Douglases but did not infringe any right of OK!
In the researchers opinion Lindsay J was right. The point of which one should never lose

sight isthat OK! had paid 1m for the benefit of the obligation of confidence imposed
upon all thosepresent at the wedding in respect of any photographs of the wedding. That
was quite clear.Unless there is some conceptual or policy reason why they should not
have the benefit of thatobligation, it cannot be seen why they were not entitled to enforce
it. And there are no such reasons. Provided that one keeps ones eye firmly on the money
and why it was paid, the case is, as Lindsay J held, quite straightforward.It is first
necessary to avoid being distracted by the concepts of privacy and personal
information.In recent years, English law has adapted the action for breach of confidence
to provide a remedyfor the unauthorized disclosure of personal information. This
development has been mediated bythe analogy of the right to privacy conferred by article
8 of the European Convention on HumanRights and has required a balancing of that right
against the right to freedom of expressionconferred by article 10. But this appeal is not
concerned with the protection of privacy. Whatevermay have been the position of the
Douglases, who recovered damages for an invasion of their privacy, OK!s claim is to
protect commercially confidential information and nothing more. Sothere is no need to be
concerned with Convention rights. OK! has no claim to privacy under article 8 nor can it
make a claim which is parasitic upon the Douglases right to privacy. The fact that the
information happens to have been about the personal life of the Douglases is irrelevant.It
could have been information about anything that a newspaper was willing to pay for.
Whatmatters is that the Douglases, by the way they arranged their wedding, were in a
position toimpose an obligation of confidence. They were in control of the information.
The counsel for the respondent argued that the information in the photographic images
was notintended to be kept secret but to be published to the world by OK! and was so
published at muchthe same time as the unauthorised photographs in Hello!. They also
argued that once theapproved photographs were published, the publication of the
unauthorised photographs was not a breach of confidence and that the differences
between the photographs were insufficiently significant to call for legal protection; the
unapproved pictures contained nothing not includedin the approved pictures.
However, since a substantial amount of money was inloved in the contract, the point of
thetransaction was that each picture would be treated as a separate piece of information
which OK!would have the exclusive right to publish. The pictures published by OK!
were put into thepublic domain and it would have had to rely on the law of copyright, not
the law of confidence,to prevent their reproduction. But no other pictures were in the
public domain and they did notenter the public domain merely because they resembled
other pictures which hadThe judge found that despite the massive publicity which
accompanied the wedding, it was nonetheless private. He also found that the contract
with OK Magazine was a means of reducing the risk of intrusion by unauthorised
members of the media and hence of preserving the privacy of [the wedding].
The judge made some important observations about the law of privacy in dismissing the
claimants claim in that respect. The main reason he gave for dismissing that part of
theclaimants action was that he doubted that UK law had a distinct right of privacy.
The judge made some important observations about the law of privacy in dismissing the
claimants claim in that respect. The main reason he gave for dismissing that part of
theclaimants action was that he doubted that UK law had a distinct right of privacy. He
observed that UK law did not adequately protect the European Convention right in this

respect. He saidthat Parliament should step in to correct this deficiency, but that if
Parliament failed to grasp thenettle the court would ultimately have to do so. That would
not happen until the court was faced(as it was not here) with a claim where breach of
confidence did not provide an adequate remedy.Apart from the privacy of the wedding,
the other main issue before the court was the commercialbenefit both to OK Magazine
and to Douglas and Zeta-Jones of the exclusive contract between them, and the spoiling
publication of unauthorised pictures by Hello! The significance of the judgment is that
the judge allowed the claimants to enforce the contract against Hello! on thebasis that the
commercial effect of the contract was to create something akin to a trade secret.The judge
found that Hello! was not acting in good faith, and that it had clearly breached thePress
Complaints Commission Code since it was plain that the photographs that it purchased
were obtained by subterfuge. Therefore their conscience was tainted which meant that
the claimants were entitled to enforce their equitable rights in the law of confidence
against Hello!The judge held the defendants to be liable to the Claimants under the law as
to confidence. Animportant step in his coming to that conclusion had been that, on
balancing rights to confidenceagainst freedom of express for the purpose of granting or
withholding relief, he had beenrequired by statute to pay regard to the Code of the Press
Complaints Commission. According to the judge, The Hello! Defendants broke their own
industrys Code.
The important thing for the claimants is that they were granted their remedy. The
common press
practice of spoiling exclusives of t
his sort now carries a clear commercial risk, since on thebasis of this judgment such
contracts will be upheld by the courts and enforced against anyonewho is or ought to be
aware of them. This reduces the value of such unauthorised photographs,and while
further doubt has been cast on the existence of a distinct law of privacy, the protectionthat
the law will grant against this sort of press activity has been strengthened by this
judgmentThe Douglases and OK magazine won their actions for breach of confidence
against Hello!Magazine and its publishers, despite adjudications on some aspects of the
claims in the defendants favour. However, a complex series of questions fell to be
determined by the judge on the appropriate orders for costs based on his previous
judgments both as to liability and quantum.The judge awarded the claimants 85% of their
costs for the hearing on quantum and he orderedthat these too should be assessed on the
standard basis. He went on to order 120,000 interest onthe award of over 1 million
made to OK in the action.The Douglases and OK magazine won their actions for breach
of confidence against Hello!magazine and its publishers, despite adjudications on some
aspects of the claims in the defendants favour. However, a complex series of questions
fell to be determined by the judge onthe appropriate orders for costs based on his
previous judgments both as to liability and quantum.The judge specifically took into
account the judicial findings of misconduct against Hello!,referring to the lamentable
incident whereby an untruthful and misleading letter had been procured by those
defendants. A number of harsh criticisms by the judge of the behaviour of Hello! in his
judgment on the issue of costs clearly had an impact on his various awards.The judge
considered that an award that merely looked at the number of issues won respectivelyby
the claimants and the defendants would not fairly reflect the realities of the case. Overall,

theclaimants had clearly won the liability hearing, and he considered therefore that the
appropriateproportion of their costs which the defendants should pay was 75%. He
assessed this on the standard basis because he considered that the award of indemnity
costs at an earlier hearing where the misconduct by Hello! was exposed constituted
sufficient punishment.
The laws in place to counter the menace of defamation are both satisfactory and
reasonable butin certain areas need to be made more stringent so as to dissuade the
celebrity crazy media fromwantonly publishing and broadcasting fraudulent, defamatory
matter in order to make instantmoney. Thus the protection of privacy and the prevention
of press harassment is also animportant issue which needs to be redressed with the better
implementation of laws alreadyexisting.
Since no cause of action survives the defamed persons death, it is clear that reputation is
merely a transitory interest, which, by way of the defences available, has to be balanced
against thepublic interest. Similarly fair comments protect the press when expressing
their views on theactions of politicians, public servants and others in the public eye,
provided they are true.Defamation does have significance and a very strong one at that as
it protects a right which isessential to for the members of society to co-exist. Obviously,
if people do not respect that rightand are allowed to say and publish whatever they want
without substantiating it with an honestreason to believe, then there would be no harmony
in society, insecurity would be rampant andsociety would be in shambles. However there
exists the question of balancing the interest of boththe parties concerned. This debate on
how to achieve the correct balance between the individuals interest in his good name
and freedom of speech is a vital attribute of democratic society. However, while trying to
resolve that debate via the development of the tort of defamation, the courts are hindered
by the procedural game which characterises many libelactions, the unpredictability of the
jury, and the absence of developed torts of invasion of privacyand breach of confidence.
Thus more changes need to be taken which do away with thesuperfluous procedural
games thus leaving behind only the core of the tort to be implemented.However, the tort
of defamation has an ancient history and a capacity for survival which shalloutlive more
topical concerns.
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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 of Brunswick (1843) 6 M. and G. 205
Derbyshire County Council v Times Newspapers Ltd
[1993] AC 534, [1993] 1 A11 ER 1011,HL
Reynolds V Times Newspapers Ltd
[1998] 3 A11 ER 961, CA
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Choudhary v. Manjulata, A.I.R. 1997 Raj.170Cassidy V Daily Mirror Newspapers Ltd
(1929) 2 K.B. 331Hulton Co. V Jones (1909) 2 K.B. 444Fanu v. Malcomson, (1848) 1
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3 W.L.R. 881Megarry J in Coco v AN Clark (Engineers) Ltd [1969] RPC 41, 47Margaret
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