TORTS TUTORIAL

ON

DEFAMATION

MONSOON SEMESTER 2015

ISHANI MOULIK
512034

SUMMARY OF THE FACTS

Mr. Sardard Aurlekar is a prominent middle-aged actor. He belongs to a family of politically inclines
persons belonging to the Bhaartiya Dhaarmic party (BDP). On 3 rd August 2015, the Times of Vacuousness
(ToV) carried an article on Mr. Sardard Aurlekar titled: Where is the DHARM in BDP: SLEAZY Sardard
Aurlekars affair with actress. The article contained lurid details of Mr. Sardard Aurlekar being spotted at
Pattus Party Paradise with Ms. Pretoria Smith, who was a model of Australian descent. The article
claimed that the 45 year old Sardard Aurlekar had made explicit advances towards the young actress, with
promises of helping her secure a three movie deal with Mockery of Intelligence Productions (MIP).It
claimed that the ToV reporter had clicked some photographs and was in possession of a tell-all MMS clip
of what transpired between the actor and the actress. It sardonically advised Mrs. Aurlekar to keep her
husband on a tighter leash, and remarked that that this MMS clip would lead to deleterious consequences
for the BDP, whose General Secretary was none other than Mr.Sardard Aurlekars father. The MMS clip
was also released by ToV on MeTube. Two weeks after the publication of the article, the All Important
Ramblers (AIR) organized a show which was based on the article. The show ended with a song entitled
Good Bye Dear BDP starring all the actors. The show gained such popularity that AIR uploaded the
video of the show on MeTube.

The tort of defamation has been committed as there has been the communication of the defamatory
matter to a third party, for it is the opinion held of the person defamed that matters. 1
The defamation is of two types: libel, which is generally written and slander which is generally oral. In
Indian jurisprudence they are not treated as distinct from each other.
In order to found an action for libel it must be proved that the statement complained of is (1) false; (2) in
writing; (3) defamatory; (4) publication2

Who is entitled to file a suit for defamation in this matter?

Mr. Sardard Aurlekar can file a suit against the Times of Vacuouness, for publishing a defamatory article
on him which was read by a large number of people due to which his reputation was lowered in the
estimation of the right thinking members of the society. 3 As the veracity of the assertion cannot be
determined and it was defamatory, malice is assumed, as in all the defamatory cases. 4 The title of the
article which used the word sleazy for Mr. Aurlekar and the main body of the article claimed that the
reporter who worked for the tabloid overheard him urging Ms. Pretoria to humour him in return of
favours. It went on to call him adulterous and connected it with the downfall of the political party BDP,
with which his family had connections. A defamation suit can be filed as the language that was used to
1 John Murphy, Street on Tort, 477(11th ed.,2003).
2 Ratanlal and Dhirajlal, The Law of Torts, 235(23rd ed.,)
3 Sim vs Stretch (1936) 52 T.L.R. 669
4 Oglivie v. The Punjab Akhbarat & Press Co. (1929) ILR Lah 45

refer to him had exposed the plaintiff to contempt, ridicule and obloquy 5. Mr. Aurlekar can also file a
suit against All Important Ramblers (AIR) for they published a defamatory statement which was known to
the persons to whom the statement was published. It is not necessary for the claimant to be named if the
statement is understood by reasonable people as referring to the claimant. 6 Therefore even if there is no
direct reference to him, he can still file a suit against the AIR.
Ms. Pretoria Smith, was referred to as a nymphet can also sue the newspaper for defamation for this
exposed her to ridicule, and injured her in her profession 7 as she lost out on the advertising assignment
she had signed up for. Applying the similar reasoning as mentioned above, Ms. Pretoria Smith can too file
a suit against AIR.
The article in the tabloid had the concluding statement which said, conclusion: there is no DHARM in
BDP. In this case the libel applies to the class of persons (the members of BDP). In such cases an
individual can only bring an action if he can show that that it applies to himself. In Knupffer v London
Express Newspapers Limited8, a British newspaper alleged that the Young Russia Party was pro-Hitler but
with no reference to any particular member in the article. It was held that action would be available to the
individual members of the class only id a specific reference is made to them or they are identifiable as
individual. The defamatory article however, had referred to Mr. Chavan Aurlekar, the father of Mr.
Sardard Aurlekar who was also the General Secretary of BDP. As he holds a post that symbolizes the
political party and he can be considered the face of the party and defemation suit can be filed by him as
well.

Against whom should a suit be filed?

In the case of newspapers, not only the author but also the editor, the printer, and anyone who participated
in the publication is considered to be liable. 9 In fact the liability is so wide that the proprietor is liable for
any libel which appears in the columns of the newspaper even if the publication is made in his absence,
without his knowledge and even contrary to his orders. 10 The newspapers have no special rights to make
imputations on a persons character. Because something interests the public, it is not necessarily in public
interest to publish it.11
In the present case, a suit would be filed against the tabloid, The Times of Vacuousness for publishing a
defamatory article on Mr. Sardard Aurlekar and Ms. Pretoria Smith. The article was written so as to injure
the reputation of these people by exposing them to condemnation and ridicule. Hence, a suit can be filed
5 Ratanlal and Dhirajlal, The Law of Torts, 236(23rd ed.,)
6 Winfield & Jolowicz on Tort, 530 (W.V.H. Rogers, 16th ed.,2006).
7 Coward vs Wellington (1836) 7C & P 531
8 (1944) A.C. 116.
9 Winfield & Jolowicz on Tort, 426 (W.V.H. Rogers, 16th ed.,2006).
10 Dina Nath v. Sayad Habib (1929) ILR 10 Lah 816
11 Ratanlal and Dhirajlal, The Law of Torts, 249(23rd ed., 1997)

against the author, editor, printer and everyone who participated in the publication of the defamatory
article.
Online publishers, here MeTube, will be liable in the ordinary way for the material published by them. A
difficulty here is that, when the third parties (AIR) are allowed to put material on the site, will the
publisher be liable in case the material is defamatory. The publisher is potentially liable as a participant in
the publication of the material.12 The liability also depends on the terms and conditions that were specified
when the third party uploaded the video on the website.
All Important Ramblers (AIR), who are the independent group of comedians who conducted the show
depicting the incidents from the aforementioned incident, are the party against whom the suit can be filed
as well. In their show titled, In Dharm We Trust, the defamatory material was published and viewed by a
large number of people and more so because it was later uploaded on MeTube by the AIR. The claimant
can file a suit against AIR because even though the claimant was not mentioned in the statement,when the
ordinary sensible people who do have special knowledge of the facts as they did in the case, and
reasonably believe that the statement is referred to the claimant, it is considered to be defamatory. 13

What are the grounds available in this situation for filing a suit for defamation?

An author who writes in a paper can comment on the conduct of a public man in the strongest terms but if
those words are dishonest, the author must justify it. 14 If he cannot justify he will be held liable for
defamation.
In the defamation claim the courts are only concerned with the natural and ordinary meaning. This means
how the words would be understood by a man on streets. The language of the article imputes
The newspapers have no rights to make unfair comments or make unjust imputations on a persons
character.15 The ToV made claims in the article saying that Mr. Sardard was a sleaze and adulterous. The
said words lowered Mr. Aurlekar in the estimation of the right minded people. 16
Ms. Smith can file a suit for defamation as the newspaper article as the journalists who published it had a
greater responsibility to guard against the untruths for the fact that their utterances have a larger
publication and an ignorant person reading that is likely to believe the false statement made. 17 The article
was in no way written in the public interest and was only to cater to the mass interests.

12David Price and Korieh Duodu, Defamation Law, Procdure and Practice, 425 (3rd ed.)
13 Morgan v Odhams Press Ltd (1971) 2 All ER 1156
14 Campbell v. Spottiswoode (1863) 3B & S 769
15 Ratanlal and Dhirajlal, The Law of Torts, 249(23rd ed., 1997)
16 Supra 3.
17 Khair-ud-Din v. Tara Singh (1926) ILR 7 Lah 491

In addition to this, the newspaper article mentioned a video clip that they had put on the web. The article
claimed that people can see what transpired between them(Mr. Aurlekar and Ms. Smith) in the clip. The
clip was blurry and had poor sound and video quality and therefore the defendant has to justify the said
meaning that they gave to the clip which was defamatory as they showed the actor and the model in a bad
light. Almost all publications on electronic media, such as internet and email have sufficient permanence
to be considered libel (defamatory). 18
The show conducted by the AIR can be considered defamatory and the group can be sued on the grounds
that they made imputations on them as was clear due to the fact that the circulation of the newspaper that
published the article on them, was wide and a large number of people had knowledge of the incident that
was depicted and could clearly draw parallels between the two. It has been recognized that sometimes
facts relied upon to support an innuendo may be sufficiently widely known to enable the claimant to rely
on a presumption or inference that some readers will have known them. 19 Moreover, as the play ended
with the song that was titled Good Bye Dear BDP, the reference was completely lucid and left no room
for doubt about whom it pertained to. For an action under defamation the plaintiff must show that the
defamatory statement refers to him. It is not necessary that the plaintiff should be described by his own
name, if he can satisfy the court that he was the person referred to. 20 The video of the play was also
uploaded by AIR on MeTube, which must have further increased its viewership.

What defences, if any, can the defendant(s) raise?

In the general sense, a defendant can claim defence if he can show that he was not the author, editor or
publisher and that he did not know, had no reason to believe that what he caused or contributed to the
publication of the defamatory statement. He also has to prove that his ignorance was not due to any
negligence on his part. This defence is however, limited only to a defendant who is not the printer or the
main publisher of the work containing libel, but has had only a subordinate part in disseminating it. 21
The truth of defamatory words is a complete defence to an action of libel(defamation). In these cases the
motive of the defendant is irrelevant. If the statement that the defendant made is true, the purpose or
motive with which it was made becomes irrelevant. In such cases, even if the minute details of the
libelous statement are not justified given that they do not any different effect on the mind of the reader. If
the defendant can prove that his statement was true, he will have a complete defence despite him making
the statement maliciously.22 The rationale behind this is the fact that the law will not permit a man to
recover the damages in respect of an injury to a characterthat he does not possess. 23 However the truth
in the statement cannot be judged because as per the facts the basis of the article is the newspaper
reporters observation and the MMS clip that was recorded which had poor audio and video quality. So
18David Price and Korieh Duodu, Defamation Law, Procedure and Practice , 39 (3rd ed.).
19 Fullam v. Newcastle Chronicle and Journal Ltd., (1977), Lord Denning
20 Le Fanu v. Malcolmson (1848) 1HLC 637
21 Vizetelly v. Mudies Select Library Ltd (1900) 2 Q.B. 170
22 John Murphy, Street on Tort, 502(11th ed.,2003).
23 MPherson v. Daniels (1829) 10 B & C 263

we can conclude that this defence if raised would fail. Similarly, if the statement contains an innuendo,
that has to be justified too. The AIR therefore, will have to justify not only the innuendo but also the
primary meaning of the words used, as they are a part of a separate claim. 24
Communication, where information is given for the purpose of securing public morals is considered
privileged, however the person must be competent to deal with the subject-matter 25, otherwise there can
be no privilege. AIR and ToV, may take this defence, only if they can prove that the public who were the
readers of the newspaper or the audience in the show were competent to deal with it.
CONCLUSION
The distinction that is well recognized in the English law between libel and slander has been severely
criticized by the framers of the Indian Penal Code. 26 This, however, doesnt defeat the fact that defamation
may be committed either by way of writing, or its equivalent, by way of speech. In the present case,
Mr.Sardard Aurlekar, was vilified by ToV and AIR and it had severely affected his reputation. He has the
right to file a suit against both. Ms. Pretorias reputation was sullied too. The statement was made without
ascertaining the veracity of the apparent facts and therefore, defamation can be claimed as malice is in
such cases is assumed. Mr. Chavan Aurlekar, who being the General Secretary of BDP has been defamed
and he too can file a suit for defamation. The tabloid ToV, The comedian group, AIR and the website
MeTube can be held liable for defamation, i.e. lowering down the reputation of someone in the estimation
of the right thinking members of the society.

BIBLIOGRAPHY
BOOKS

David Price and Korieh Duodu, Defamation Law, Procedure and Practice, 3rd edition.
John Murphy, Street on Tort, 11th edition.
Ratanlal and Dhirajlal, The Law of Torts, 23rd edition.
Winfield & Jolowicz on Tort, 16th edition.

24 Supra 12
25 Bindeshwari Prasad Tiwari v. Hanuman Prasad Tiwari, (1923) 22 ALJR 65
26 Ratanlal and Dhirajlal, Law of Crimes, 23rd ed, s.499, Comment