MONSOON SEMESTER 2018-19

TORTS PROJECT
NAME: Aisiri Nanda
SECTION: A
ROLL NUMBER: 218006
 Issue 1
1. ISSUE: ARE PAYAL’S STATEMENTS DEFAMATORY?

RULE:

Defamation has occurred when the following conditions are met. Firstly, the statement is
defamatory, secondly, it must refer to the claimant, i.e. identify him and lastly it must be
published, i.e. communicated to at least one person other than the claimant1.

Essentially, the tortfeasor lowers the claimant in the estimation of reasonable, right-thinking
members of the society2, or causes such citizens to shun or avoid the claimant.

It is also a statement which is calculated to expose a person to hatred, contempt, or ridicule3,

or to injure him in his trade, business, profession, calling or office, or to cause him to be
shunned or avoided in society4.

ANALYSIS:

1.1. Payal Pahauti’s defence:

There were two statements made by Payal Pahauti. Statement A which was her view on MM5’s
failure and its consequences on her life; statement B) Her comment on Jadoo Andhera’s acting.

1.1.1. The first statement does not fulfil the condition of referring to Jadoo. Her
reference to “these people” is primarily the nepotistic families of Noojiwood and
the rampant casting couch problem. It was well known that Payal has also spoken
out against the casting couch problem before, and was not referring to any distinct
person. It was referring to a class of people. “If a libel applies to a class of persons,
an individual can only bring an action if he can show that it applies to himself”5.
Here thus, Jadoo cannot bring a claim for defamation when Payal is referring to

1
W. V. H. ROGERS, WINFIELD AND JOLOWICZ ON TORT 515 (17th ed., 2006)
2
Sim v. Stretch, (1936) 2 All ER 1237(HL), (1240) (Lord Atkin).

3
Nevill v. Fine Art and General Insurance Co. Ltd., 1897 AC 68: (1895-99) ALL ER Rep 164 (HL).
4
RATANLAL RANCHHODDAS AND DHIRAJLAL KESHAVLAL THAKORE, RATANLAL AND

DHIRAJLAL ON TORTS, 233 (23rd ed., 1999)

5
Id
 the whole class of nepotistic families in Noojiwood. In fact, contrary to what the
claimant is saying the statements are not an innuendo, and even if it is, “must be
supported by extrinsic facts or matter and cannot be founded on mere
interpretation”6. The statements are too vague to be able to be construed by
general public to refer to Jadoo.

1.1.2. The second statement while referring to Jadoo, is not defamatory as it is a simple
critique of his acting. There were also other critics who gave negative reviews of
his acting in MM5. Payal cannot be singled out. “Liberty of criticism must be
allowed, or we should neither have purity of taste nor of morals.”7.

Therefore, the elements of defamation are not fulfilled and Payal has not committed
defamation.

1.2. Jadoo Andhera’s defence:

Yes, both the statements by Payal Pahauti constitute defamation as they fulfil all the conditions
of defamation.

1.2.1. Firstly, while only the second statement B directly refers to the claimant, the
first statement was an innuendo which alluded to Jadoo Andhera. An innuendo8
being statements which may not seem defamatory but “the plaintiff must make out
the circumstances which made them actionable, and he must set forth in his
pleading the defamatory sense he attributes to them”9. An example could be
Monson V. Tussauds10. It is not always necessary that the claimant be described
by his name11. She had worked in MM5 with him, there were recent reports of her
alleged break up Jadoo Andhera and she was asked about MM5 on the show. Also,

6
Grubb v. Bristol United Press Limited, (1962) 2 All ER 380.

7
PER LORD ELLENBOROUGH IN Tabart v. Tipper, (1808) 1 Camp 350 (351, 352, 356).

8
Fullam v Newcastle Chronicle& Journal Ltd [1977] All ER 32(CA)

9
Jacobs v. Achmaltz, (1890) 62 LT 121.

10
[1894] 1 QB 671

11
Supra note 3.
 after her statements on the show, there were many people who came out in support
of Payal and condemned Jadoo because they had construed the person in first
statement to be Jadoo. “It was quite clear that an intelligent reader having
knowledge of the unique circumstance, would believe that the claimant was
referred to”12. In light of the controversy surrounding their rumoured relationship
and consequent break up after the failure of MM5, it was quite obvious for any
“reasonable man” to think that Payal was talking about Jadoo13.

1.2.2. Secondly, the statements were defamatory as the statements lowered Jadoo’s
estimation in the eye of others14. It can be seen in the backlash that he faced. A
man’s reputation is his property, more valuable than other property15. Especially
in the case of Jadoo, who was an actor, whose life revolves around public opinion
and perception.

1.2.3. Thirdly, Payal said those statements on a T.V. show which was broadcasted to
an audience, thereby fulfilling the condition of publishing the defamatory material
to third parties16. Not only that, Payal had a fan following on 20 million on various
social media platforms and was considered a youth icon by many, thereby
enlarging the audience base that would hear her statement.

Here, the statements made by Payal are false and made by reckless malice on her part. One
must consider that a layman’s capacity for implication is much greater than a lawyer’s17.
Thereby, increasing the damage done.

12
Morgan v. Odhams Press Ltd. (1971) 1 W.L.R. 1239.

13
Lewis v Daily Telegraph [1964]AC234

14
Supra note 3.
15
Dixon v. Holden, (1869) LR 7 Eq 488.

16
White v J&F Stone [1937] 2 KB 827

17
Supra note 3.
Issue 2

2. ISSUE: WHAT DEFENCES CAN PAYAL PAHAUTI AVAIL?

RULE: The defences to defamation are as follows18:

1. Truth

“If the tortfeasor can prove that his statement was true, he has a complete defence even if he
made the statement maliciously”.

“The tortfeasor must be able to identify specific conduct on the part of the claimant which
justifies such a suspicion”.

“One cannot claim an express claim of misconduct by generalised evidence of the claimant’s
behaviour”.

2. Consent of the Claimant

“The claimant must have expressly or implicitly consented to the publication”.

3. Honest comment

“They must constitute an honestly held opinion made by a person who did not believe the
statements to be untrue and who was not, therefore, actuated by malice”.

4. Apology.

“Where there is an apology and an acceptance thereof the defendant can resist the plaintiff’s
suit for damages for defamation.”

5. Amends

“This defence is available only to those defendants who did not know, or had no reason to
believe that the statement in question referred to the claimant and was untrue and defamatory
of him”.

18
JOHN MURPHY AND CHRISTIAN WITTING, STREET ON TORTS 533 (13th ed.,)
ANALYSIS:

2.1. Payal Pahauti’s defence

2.1.1. Regarding statement B, Payal has merely given critique on the performance of
Jadoo Andhera in MM5. As an actor, he has implicitly consented to the publication
of defamatory material19. As in Cookson v. Harewood20 and Douglas v Hello!21,
which showed how consent can eliminate a claim in tort22. As an actor, his
performance is open to criticism like in any other profession. Also, there were
other critics who gave negative reviews of his performance. Fair and honest
comment on matters related to public interest, which include theatres, concerts
and other forms of public entertainment23 do not constitute defamation. Payal had
a reputation for expressing her frank and honest opinion and in this instance can
be said to offer her criticism24. Also, On the show “Parda Faash”, celebrities are
expected are expected to give honest opinions and Payal did the same

2.1.2. As an actress coming from a non-film background, the failure of MM5 hit her
more than Jadoo, and she therefore expressed her honest opinion. And she had all
the reason to, her career was destroyed by the movie MM5, which starred Jadoo
Andhera and which was financed by his father, as she stopped receiving new
offers, and there were rumours of her being in a relationship with Jadoo. And as
stated in Branson v. Bower25, Eady J reached a conclusion that ‘honesty alone’ is
the touchstone of fair comment. Payal made those in the genuine belief. “Mere
exaggeration or even gross exaggeration would not make the comment unfair”26.

19
Supra note 3.
20
[1932] 2 KB 478
21
(2001) QB 967
22
S. I. STRONG & LIZ WILLIAMS, TORT LAW TEXT, CASES AND MATERIALS 322-325 (2008)
23
Supra note 3.
24
Mc Quire v. Western Morning News Co., (1903) 2 KB 100, 110.
25
[2001] EWCA Civ 791
26
Merivale v. Carson, (1887) 20 QBD 275.
 2.1.3. Payal can avail the defence of justification. The tortfeasor need not show that
the charge he seeks to justify is true in every particular, what matters is whether it
is substantially true27. Whatever that was said by Payal was true, there was a
casting couch problem in Noojiwood as well as nepotism which was known by
all. Also, it was a well-known fact that Jadoo’s father was one of Noojiwood’s
richest

2.1.4. Lastly, Payal offered an apology, even though she had not meant to defame
Jadoo, it so happened that her statements were construed that way. To Payal, she
was merely expressing her opinion.

2.2. Jadoo Andhera’s defence

2.2.1. Payal cannot claim the defence of apology as it was “the publication of a
contradiction and expression of regret by itself is not tantamount to an apology”.
Payal apologised out of the fear that Jadoo might sue her for defamation. Also,
nowhere is it mentioned that Jadoo accepted her apology which is an essential
aspect of the defence of apology.

2.2.2. Payal cannot claim the defence of fair comment as regarding statement B,
Payal’s comparison of Jadoo to a mannequin is similar to that of Berkoff v
Burchill28 where there was a comparison to Frankenstein, the court in that case
finally ruling that the kind of remarks made are usually not be classified as
defamatory but they became so because the claimant earned his living as an actor
and therefore the words made him an object of ridicule. Also, “malice may
negative fairness29”. Payal had malice towards Jadoo, she was unemployed
because of the failure of MM5, which was bankrolled by Jadoo’s family, there bad

27
Supra note 1.
28
[1996] 4 All ER 1008
29
Thomas v. Bradbury, Agnew & Co. Ltd., (1906) 2 KB 627
 reviews of her performance. She perceived Jadoo to be unaffected by the failure.
It is clear that these above factors contributed her statements.

2.2.3. The statements were false, as Jadoo and his father had in reality suffered huge
losses, such that they couldn’t commission any new projects. Hence, Payal cannot
claim the defence of truth. She is also alleging that he is sexually harassing women
in her last statement about “testing actresses in all ways possible”. Sexual
harassment is crime punishable by IPC. There is an imputation of a criminal
offence punishable with imprisonment.30 There is no substantial evidence that
proves that Jadoo tests actresses in “all ways possible”.

2.2.4. The defence of amends is a very subjective defence31. Also, this defence can be
invoked when the offer to make amends is made in a written form, while here
Payal gave a public apology. “In addition, the offer must satisfy three further
prerequisites: it must contain a correction to, and apology for, the original
statement; it must state a willingness to publish that correction and apology; it
must make clear that the publisher consents to pay to the aggrieved party such
sums may be agreed between them, or, as may be determined judicially”. None of
these prerequisites are fulfilled by Payal.

Issue 3

3. ISSUE: DOES JADOO HAVE ANY REMEDY AGAINST BLAH BLAH

TIMES’S DEPICTION OF HIM?

RULE: Blah Blah Times can plead the following:

1. Freedom of speech and expression i.e. Ar. 19(1) a.

2. Truth

30
Supra note 1.
31
Supra note 14.
 3. Fair comment

Jadoo Andhera’s defence:

3.1.1. While there was no express indication that the cartoon in Blah Blah Times was
Jadoo, the same can be inferred. The cartoon was akin to that of Jadoo’s character
in MM5, and there was a cartoon of Payal Panauti as well as a Noojiwood sign,
all pointing to the fact that it was a cartoon of Jadoo. The statement “Tu janta nahi
mera baap kaun hai!”, definitely points to Jadoo, it was a well-known fact that
Jadoo comes from a prominent film family and that his father was widely regarded
as one of the richest men of Noojiwood. It also subtly connotes that Jadoo does
not have the skills required. Thus, fulfilling one of the elements of defamation.

3.1.2. Also, the cartoon was published in a newspaper, which would have a wide
circulation, thereby fulfilling another element of defamation. There is clear
publication of the defamatory material to third parties. The caricature of Jadoo is
a form of a defamatory statement32.

3.1.3. The depiction of Jadoo in the cartoon by Blah Blah times is a blatant misuse of
Article 19 of the fundamental rights, which guarantee the freedom to speech and
expression. There are also reasonable restrictions to the freedom. Similar to the
case of Curtis Publishing Co. V. Butts33, where damages were awarded to a
football coach who was a public figure where the tortfeasor had displayed a lack
of professional standards and reported information that was recklessly gathered.
Here, the depiction of Jadoo is clearly based on other reports and not substantial
accurate data.

32
Supra note 3.
33
388 U.S. 130 (1967)
 3.1.3.1. Similarly, in the case of Jason Donovan v. The Face34, the singer was
able to successfully sue the magazine based on the argument that he had
always presented himself as a heterosexual and The Face was defaming him
by calling him gay. There was no concrete evidence that there on the
relationship between Jadoo and Payal, as well as any proof of Jadoo misusing
his father’s name.

3.1.4. Also, the Blah Blah times have a greater responsibility to guard against untruths
for the simple reason that the newspapers have a larger publication and are more
likely to be believed by the ignorant by reason of their appearing in print35.

34
1992
35
Khair-ud-din v. Tara Singh, (1926) ILR 7 Lah 491.
CONCLUSION
Regarding Payal Panauti, both statements made by her constitute defamation. One must take
into account circumstances of time and place36. Chiefly, the context in the interview took place
was one where Jadoo and Payal were in the limelight. Specific facts known to the reader gave
the statement a meaning other than, or additional to, its ordinary meaning. When she made her
comments, a reasonable man could not but allude them to Jadoo.

She cannot claim the defence of fair comment because it has been published with a malicious
intention to defame the claimant. Since it was broadcasted on T.V. those comments were able
to reach a large audience. After the interview, it was quite clear that many people thought less
of Jadoo and his family and he had to face many inhospitable comments from others.

Payal cannot claim the defence of truth as her statements were contrary to the reality. Jadoo
and his family were no longer rich, and were in fact forced to sell their film studio.

She cannot claim apology also, hence, there has been defamation on the part of Payal.

With regard to Blah Blah Times, there is no defamation. The cartoon was made to provide
comic relief and any reasonable man would not delve deeper into the meaning of the cartoon.
“Every person has a right to comment on those acts of public men which concern him as a
subject of the realm, if he does not make his commentary a cloak for malice or slander37.” Also,
whatever was depicted was the truth. There was some controversy surrounding Payal’s
comments concerning Jadoo, Jadoo had to sell the film studio Mannat as he was bankrupt.
Also, in a recent Madras High Court decision, “upholding cartoonists’ unbridled freedom of
expression, Justice Swaminathan stated that the art of the cartoonist is often not reasoned or
even-handed, but slashing and one-sided.” He further went on to say that, “Since a cartoonists’
task is to shape public opinion, the threshold for suing them for defamation must be much
higher than that of other cases”.

Thus, the suit against Blah Blah Times does not stand.

36
Supra note 14.

37
Tushar Kanti Ghose v. Bina Bhowmick, (1952) 57 CWN 378
BIBLIOGRAPHY
Online resources:
1. SCC Online
2. Hein Online
3. JStor
Books:
1. S. I. STRONG & LIZ WILLIAMS, TORT LAW TEXT, CASES AND MATERIALS
322-325 (2008)
2. JOHN MURPHY AND CHRISTIAN WITTING, STREET ON TORTS 533 (13th ed.,)
3. W. V. H. ROGERS, WINFIELD AND JOLOWICZ ON TORT 515 (17th ed., 2006)
4. RATANLAL RANCHHODDAS AND DHIRAJLAL KESHAVLAL THAKORE,
RATANLAL AND DHIRAJLAL ON TORTS, 233 (23rd ed., 1999)
Cases:
1. Tushar Kanti Ghose v. Bina Bhowmick, (1952) 57 CWN 378.
2. Khair-ud-din v. Tara Singh, (1926) ILR 7 Lah 491.
3. Jason Donovan v. The Face (1992).
4. Curtis Publishing Co. V. Butts 388 U.S. 130 (1967).
5. Thomas v. Bradbury, Agnew & Co. Ltd., (1906) 2 KB 627.
6. Berkoff v Burchill, [1996] 4 All ER 1008.
7. Merivale v. Carson, (1887) 20 QBD 275.
8. Branson v. Bower, [2001] EWCA Civ 791.
9. Mc Quire v. Western Morning News Co., (1903) 2 KB 100, 110.
10. Douglas v Hello! (2001) QB 967.
11. Cookson v. Harewood [1932] 2 KB 478.
12. Dixon v. Holden, (1869) LR 7 Eq 488.
13. Morgan v. Odhams Press Ltd. (1971) 1 W.L.R. 1239.
14. Jacobs v. Achmaltz, (1890) 62 LT 121.
15. Sim v. Stretch, (1936) 2 All ER 1237(HL), (1240) (Lord Atkin).
16. Grubb v. Bristol United Press Limited, (1962) 2 All ER 380.
17. Monson V. Tussauds [1894] 1 QB 671.
18. Tabart v. Tipper, (1808) 1 Camp 350 (351, 352, 356).
19. Nevill v. Fine Art and General Insurance Co. Ltd., 1897 AC 68: (1895-99) ALL ER
Rep 164 (HL).
20. Lewis v Daily Telegraph [1964] AC234.
21. White v J&F Stone [1937] 2 KB 827.
22. Fullam v Newcastle Chronicle& Journal Ltd [1977] All ER 32(CA).