January 31, 2013

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Does Law Really Protect Conscience Or Reputation?

- Debolina Partap, AVP & Head Legal [ Wockhardt Group ]

Debolina Partap

"Freedom of expression is not absolute, and may be subject to restrictions provided by law and proportionate to the legitimate aims pursued. Protection of the reputation of others is one such legitimate aim. The civil and criminal defamation laws in various global jurisdictions need to traverse a huge leap because media is growing at a pace faster than the law."

Defamation is communication about a person that tends to hurt the person’s reputation which is ultimately the conscience. Defamation is a strict liability tort, which means that the intentions of the defamer are not relevant. The communication must be made to other people, not just to the person it’s about. The statement must be false to be classified as defamation. If it is spoken, then defamation is termed "slander". If it is written, it is termed "libel". It can also be a gesture, which is a type of slander.

The law protects your reputation against defamation. If someone defames you, you can sue them to pay money (called "damages") for harming your reputation. The law doesn’t protect you from a personal insult or a remark that injures only your pride; it protects reputation, not feelings. So if someone calls you a lazy slob, you might be hurt, but you probably don’t have a good reason to sue. If he goes on to say you cheat in your business dealings, you probably do have a good reason to sue, as long as he says it to someone else, not just to you. If he says it only to you, you can’t sue because he has not hurt your reputation. Defamation can be a crime under the Criminal Code.

Libel is the type of defamation with a permanent record, like a newspaper, a letter, a website posting, an email, a picture, or a radio or TV broadcast. If you can prove that someone libelled you, and that person does not have a good defence (see the section on defences below), then a court will presume that you suffered damages and award you money to pay for your damaged reputation. Slander is the type of defamation with no permanent record. Normally it’s a spoken statement. It can also be a hand gesture or something similar. The law treats slander differently than libel; with slander, you have to prove you suffered damages, in the form of financial loss, to get compensation. But with libel, the law presumes you suffered damages. That’s why most slander cases never go to court.

A slander lawsuit may succeed without your proving financial loss. Even though there’s no permanent record of the slander, the law will presume damages, as if it were libel, if someone:

    1. accuses you of a crime (unless they made the accusation to the police)
    2. accuses you of having a contagious disease
    3. makes negative remarks about you in your trade or business
    4. accuses you of adultery

The law protects a person’s reputation but this protection can restrict other rights, such as the right to free speech. The law tries to balance these competing rights. Sometimes, even though someone made a defamatory statement that hurt a person’s reputation, the law considers other rights more important. The law allows the following defences for a person who makes a defamatory statement.

If someone sues for defamation, the most common defences are:

    1. truth (known in law as "justification")
    2. absolute privilege
    3. qualified privilege
    4. fair comment
    5. responsible communication on matters of public interest

Some of the largest media defamation cases across the globe.

After more than three years of strongly defended litigation, terms of settlement have been agreed resolving 40 libel actions brought by Lord Stevens, Sir Hugh Orde and 18 other members of the Stevens 3 Inquiry Team in the Northern Ireland Courts. Jeremy Clarke-Williams and Adele Ashton acted for the team in conjunction with Johnsons, a Northern Ireland firm of solicitors.

The cases were described in the Northern Ireland media as the largest libel litigation in the country’s history. The cases were pursued against two Northern Irish papers – Sunday World and Sunday Life – over articles published in November 2006, which alleged that the team had failed to act on information which allowed a loyalist paramilitary to continue with its murderous activities.

In a statement read in open Court on Monday, May 24, 2010, the newspapers accepted "without reservation that the allegations they published were untrue and that no members of the Stevens 3 Inquiry Team acted unprofessionally or in dereliction of their duty as police officers. The publishers of Sunday Life and Sunday World acknowledge that Lord Stevens and all members of the Stevens 3 Inquiry Team were dedicated police officers of the highest reputation and integrity."

The statement went on to "apologize to Lord Stevens and to each member of his team for the damage caused to their reputation and for the upset and embarrassment that may have been caused to them. To demonstrate the sincerity of this apology, they have also agreed to pay the Stevens 3 Inquiry Team members damages together with their legal costs."In September 2008, while reporting a provident fund scam, Times Now had, by mistake, displayed Justice P B Sawant’s image for 15 seconds. The report alleged that several judges were involved in the scam.

Justice Sawant promptly sent a legal notice. Times Now’s expression of regret for 5 days in the scroll news apparently did not satisfy Justice Sawant, who took the matter to court. The Pune District Court found Times Now guilty and ordered it to pay `100 crore! When Times Now appealed against the decision in the Bombay High Court, it was ordered to deposit '20 crore and furnish a bank guarantee for the balance. The third objection relates to the obviously unreasonable damages sanctioned by courts. Pune Civil Court’s verdict against Times Now is seen in some quarters as one such case. The cost of appealing against the decision is also proving to be high for Times Now.

Defamation cases against the media are nothing new. In fact, it is an occupational hazard. What the Bombay High Court direction has done is to simply revive media's oft-repeated criticism of the defamation laws. Criminal provisions relating to defamation, the haste with which lower courts order remedies to the plaintiff, and the unreasonable damages awarded by Courts are some of its major concerns.

In India, defamation is an offence punishable under section 500 of the IPC with imprisonment for a period of 2 years and/or fine. While in many countries, defamation is just a civil matter, India still retains the criminal provisions. Unless the defendant, who in many cases, happens to be a journalist, is able to prove that his actions fall under one of the 10 exceptions provided in Section 499 of IPC, he goes behind the bars. Jayalalithaa government’s intolerance to adverse media reports resulted in widespread misuse of these criminal provisions in 2003-04.

Sec 66A of the Information Technology Act, 2000, makes defamation through the Internet and other electronic means punishable with 3 years’ imprisonment and/ or fine. It is this section which is used against bloggers. Recently, Digvijay Singh lodged a complaint against bloggers/ websites under this section.

Ironically, while Sec 500 of IPC is criticized as an archaic, draconian and a legacy of British Raj for treating defamation as a criminal offence, even the IT Act enacted by the Indian Government in 2000 provides for similar, in fact worse jail sentence! Another irony is that while the mainstream media demands deletion of Sec 499-502 of IPC, it does not mind using the IT Act to sue bloggers. For example, when Chyetanya Kunte, a blogger criticized NDTV’s coverage of 26/11 terrorist attack in Mumbai as shoddy journalism, little did he expect a defamation notice from Barkha Dutt.

Reverting to the media’s grouse on defamation laws, earlier this year, IIPM succeeded in getting an injunction against Caravan directing it to remove an article against it. Caravan is published from Delhi and the injunction was obtained from the distant Silchar Civil Court, Assam! Further it was an ex-parte injunction. In 2010, the same IIPM sued Rashmi Bansal, a blogger for defamation in the same Silchar Civil Court. While Caravan was able to get a stay on the Silchar court verdict, Rashmi had to settle for removing the article from her site. It is this unseemly haste of some lower courts in granting remedies, which has been a major cause of concern to media.

While there is a case for decriminalizing defamation and codifying the civil law relating to it, it is imperative to strike the right balance between ensuring freedom of speech to the media and offering sufficient, meaningful protection to the likely victims of defamation. Otherwise, it could result in miscarriage of justice to the victim.In 2007, Live India channel conducted a sting operation against Uma Khurana, a schoolteacher in Delhi, and alleged that she forced her students into prostitution. The sting operation turned out to be a fake. She had to take the channel to court. The channel was banned temporarily. The case was settled out of court within a year. Pure civil action sans recourse to the Indian Penal Code may not, perhaps have forced the Channel to agree to such an early out-of-court settlement.

Also while media unequivocally condemns defamation cases being foisted against it, it would like to retain the right to sue others.The Hindu, for example, argued in 2004, when it faced a deluge of defamation cases from the Tamil Nadu government that the defamation law violated the freedom of speech guaranteed by Article 19 and as such, was ultra vires the Constitution. But when Archana Shukla broke the story of The Hindu’s Boardroom battles in March, 2010, N Ram, the erstwhile champion of freedom of speech did not have any qualms in slapping a defamation notice on her and The Indian Express!

It appears that media, at least some prominent personalities of media, would like to view defamation differently when it is their right. Needless to say that media has to be able to get over this obvious inconsistency in its thinking.Finally, softening of the defamation laws will place huge moral responsibility on the media. Media would be required to exercise due restraint in its reporting. In the 24x7 news coverage where intrusive coverage secures the Channel a place ahead of competition, if media loses the restraint, it will be a serious disservice to the freedom guaranteed by Article 19. A recent newsflash purported futuristic defamation cause of action against NDTV.

The growth of social networking sites has seen the number of defamation cases involving online content more than double in the 12 months to June.The number of reported defamation court cases in the UK, in which the subject was allegedly defamed on blogs or on social media jumped from seven to 16 in the year to May 31 2011, according to research from legal information specialists Sweet & Maxwell.Some of the 16 cases have been settled, the research indicates, and only one arose from an online story produced by a newspaper publisher. This was the successful action brought against Express Newspapers in July last year for a 2009 online article in which untrue allegations of support for Hamas and terrorism by the charity Interpol were made.

None of the cases – which include the case being brought by New Zealand cricketer Chris Cairns over comments posed on Twitter by former Indian Premier League (IPL) commissioner Lalit Modi in the high court – involve established media companies.The research also reveals a big drop in reported defamation cases involving celebrities, down 59% from 22 in 2009/10 to just 9 in 2010/11. It appears that celebrities are increasingly relying on privacy law to prevent potentially damaging stories from even being published.

In addition, the research reveals that more businesses are now suing for defamation in order to protect their reputation, with an increase from five cases in 2009/10, to 16 cases in 2010/11.With businesses under increasing financial pressure, many are increasingly using litigation in order to protect their reputation. There was a small overall increase in reported defamation cases in the last year, up 4% to 86 compared with 83 cases the year before.

Freedom of expression is not absolute and may be subject to restrictions that are provided by law and are proportionate to the legitimate aims pursued. Protection of reputation of others is one such legitimate aim. The civil and criminal defamation laws in various global jurisdictions need to traverse a huge leap because media is growing at a pace faster than the law.


Disclaimer–This article is based on the author's research from the internet and does not portray the views of the company.

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