GUJARAT NATIONAL LAW UNIVERSITY

DISPARAGEMENT: A HARD NUT TO CRACK UNDER THE REGIME OF FREE SPEECH

(Critique)

Name of the scholar Abstract

Freedom of speech and expression is one of most important human rights which have been recognized by many international conventions and UN declaration. At the same time different nations have made defamation either as a civil or criminal offence and made it punishable. Law of communication has developed a lot especially after first amendment and the case of New York Times which brought the doctrine of public criticism as a conditional privilege. But since then this right has been misused by media under the garb of fair and public criticism and by advertisers under the garb of puffing. This whole development has resulted in revolution in law of defamation. Now requirement of actual malice has been made mandatory to establish a claim of disparagement or defamation. Further the presumption is always against falsity. Therefore it has almost become an impossible task to seek relief in such cases because any kind of prior restraint has been held as unconstitutional. Therefore, it is justified to say that disparagement is a hard nut to crack under the aegis of free speech regime.

1. INTRODUCTION
The object of this paper is to analyze the extent and true meaning of freedom of speech expression and opinion which is one of the most important human rights recognized by various international conventions and UN declaration.1 However my analysis will be restricted to the realm of commercial world and commercial speech because there has been a considerable increase in claiming free speech protection by companies in the matter of disparaging advertisements and up to some extent they have succeeded in bringing the concept of puffing which I have dealt latter in this report.

Art. 19 of Universal Declaration on Human Right. Art. 19 of ICCPR

GUJARAT NATIONAL LAW UNIVERSITY It will be pertinent to note that almost all civilized nations have recognized the above right either in the form of constitutional right or legal right in their respective municipal laws but at the same time these nations have made defamation and disparagement either as civil or criminal offence. From time immemorial there has been a tussle between these two legal concepts but earlier it was easy to make a distinction between these two but now in the era of twenty first century and especially in the wake of human right jurisprudence it has become a tough task for judiciary to decide whether a particular statement is defamatory or not. This happens so because the restrictions upon free speech are available on very limited grounds like defamation, national security, integrity. Indeed defamation is one of the grounds for putting reasonable restriction but to establish defamation one has to crack the iron nut. Firstly, the burden to establish defamation is upon the aggrieved party. Secondly, it has almost become an impossible job to establish defamation, particularly after the requirement to prove malice in defamatory statement has been made mandatory. Thirdly, it has become a constitutional norm not to put any prior restraint upon free speech because of the danger of chilling effect. Fourthly, public criticism even if half information or misinformation has been held as non-punishable. These all developments in law have left the innocent party in the lurch. Therefore, it has become important to know the extent and true meaning of free speech because there is a popular misconception that since free speech is a fundamental right it will override the law of defamation.

2. SIGNIFICANCE OF FREEDOM OF SPEECH AND EXPRESSION

Freedom of speech is vital for any democracy to survive. It has been rightly said that freedom of expression is a keystone and indispensable in forming public opinion.2 In short, it enables the community, when exercising its options either in democratic process or any other commercial activity, to be sufficiently informed3 so that they can take a better decision. Opinion of public in a democracy is of paramount importance. In this regard Thirteenth Human Rights Report4 has reported that, A free media is essential in the political process. The free communication of information and ideas about public and
2 3

Schenck v. U.S. 630 F. 2d 876 (1980) (US Circuit Court of Appeals, 2nd Circuit). Schenck v. U.S. 630 F. 2d 876 (1980) (US Circuit Court of Appeals, 2nd Circuit). 4 13 UN HRC, General Comment 25, issued 12 July 1996.

GUJARAT NATIONAL LAW UNIVERSITY political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. Various authorities are of the view that right to know comes within the purview of freedom of speech and expression. Hence this right gets more importance during the time of elections. Election campaign is a perfect example where this right is exercised so as to enable the voters to know about their candidates. Here comes the role of press which initiates public debate on various issues so that public at large becomes aware of their representatives.

2.1 Public debate and democracy

Public debate forms part and parcel of Rule of Law.5 In a democracy, the active role of the free press is inevitable.6 Courts have always recognized the importance of public questions and have held that, Freedom of expression upon public questions is secured by the First Amendmentand has been fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. 7 Such public criticism is against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.8 Once Madison had said, Some degree of abuse is inseparable from the proper use of every thing, and in no instance is this more true than in that of the press.9 In a democratic society, one who assumes to act for the citizens in an executive, legislative, or judicial capacity must expect that his official acts will be commented upon and criticized.10 Such criticism cannot be muzzled or deterred by the courts at the instance of public officials under the label of libel.11 Hence it is submitted that a society which is not well informed is not a society that is truly free.12 This means that any formality, condition, restriction or sanction imposed in
5 6

Thorgeirson v. Iceland, 63, Appli. No. 13778/88, 25 June 1992. Advisory Jurisdiction, Case of Costa Rica , Int. Am. Crt., No. OC-5/85 November 13, 1985 7 Roth v. U.S., 354 U.S. 476, 484. 8 Terminiello v. Chicago, 337 U.S. 1, 4; See also, De Jonge v. Oregon, 299 U.S. 353, [271] 365. 9 4 ELLIOT'S DEBATES ON THE FEDERAL CONSTITUTION (1876), P. 571. 10 Criticism of Public Officers and Candidates for Office, 23 AM. L. REV. 346 (1889). 11 MABRA GLENN ABERNATHY, BARBARA ANN PERRY, CIVIL LIBERTIES UNDER THE CONSTITUTION ( 6TH EDITION, UNIVERSITY OF SOUTH CAROLINE PRESS), AT.297-298 12 Arts. 13 and 29, American Convention on Human Rights, (Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism) 70.

GUJARAT NATIONAL LAW UNIVERSITY that respect, should be proportionate to the legitimate end sought.13 The U.S. Supreme Court has described the media as a vast democratic foray and has granted highest protection.14 Press is a watchdog15 and it is incumbent on its part to disseminate information16 amongst the citizenry to create a workable democracy. Thus media play a vital role in encouraging public debate so that a better and efficient democracy is flourished but this is the situation where conflict starts. Whenever public debate starts criticism creeps in and some time authors cross all the limits of criticism and it becomes a mean of personal vendetta. But legally speaking public criticism like criticizing government and its functions are conditionally protected against liability of defamation even if it is half truth or misinformation.

2.2 Public criticism a conditional privilege against defamation

Criticizing a political figure forms part and parcel of medias role in active democracy. Working of the public officials is often portrayed as Charges of gross incompetence, disregard of the public interest, communist sympathies, and the like usually have filled the air, and hints of bribery, embezzlement, and other criminal conduct are not infrequent.17 It is well accepted that media forms the forth pillar of democracy hence it becomes inevitable to protect this pillar from collapsing and that is the reason why public criticism has been granted conditional privilege.18 Such privilege is available even though the utterance contains half-truths and misinformation.19 The rational behind providing such protection is even if the criticism is erroneous, it is inevitable in

13

African Commission on Human and Peoples' Rights(under African Charter of Human rights), Media Rights Agenda and Constitutional Rights Project v. Nigeria, Communication Nos. 105/93, 128/94, 130/94 and 152/96, Decision of 31 October, 1998, 54 ; See also, Dichand and Others v. Austria, 26 February 2002, Appli. No. 29271/95 14 Reno v. ACLU, 521 U.S. 844 (1997). 15 The Observer and Guardian v. UK, 59, Appli. No. 13585/88, 26 November 1991; See also, The Sunday Times v. UK (II), 65, Appli. No. 13166/87, 26 November 1991. 16 The Observer and Guardian v. UK, 59, Appli. No. 13585/88, 26 November 1991; See also, The Sunday Times v. UK (II), 65, Appli. No. 13166/87, 26 November 1991. See also Castells v. Spain, 43 Appli. No. 11798/85, 24 April 1992. 17 Noel, Defamation of Public Officers and Candidates, 49 Col. L. Rev. 875 (1949); See also, Chase, Criticism of Public Officers and Candidates for Office, 23 Am. L. Rev. 346 (1889). 18 New York Times v. Sullivan 376 U.S. 254, 265-292 ; See also W. PAGE KEETON ET. AL, PROSSER AND KEETON ON THE LAW OF TORTS 113 (2D ED., 1955), 95. 19 Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997). p, 342, 343, 345. http://pacer.ca4.uscourts.gov/opinion.pdf/971523.P.pdf

GUJARAT NATIONAL LAW UNIVERSITY free debate, and that it must be protected if the freedoms of expression are to have the breathing space that they need . . . to survive20 Thus it has become vary tough to hold media liable unless government proves actual malice. Even a false statement has been deemed to make a valuable contribution to public debate, and it is claimed that it brings about the clearer perception and livelier impression of truth, produced by its collision with error. 21 With due respect, I would like to say that it is an innovative way to justify falsity on the ground of bringing clearer picture. Thus scrutinizing government on the touchstone of non-sleazing is undoubtedly of great magnitude but it should be within a limit.

3. COMMERCIAL SPEECH ARE ALSO PROTECTED UNDER FREE SPEECH DOCTRINE

Protection of free speech doctrine was earlier available only to an individual but now it has been extended even to commercial advertisements. The logic is still the same that in order to make consumer aware, well informed and help them in making a better choice it is necessary to accord protection to commercial advertisers.22 It has been further contended that advertisements should be protected in order to make consumer aware of qualities of product which has been accepted by courts. But here comes the misuse of commercial speech. Companies in their never ending greed of profit making has started finding out new methods of disparaging the products of another. One of such innovative method is disparagement under the garb of puffing. Thus there is a need to put restrictions upon such unbridled and unfettered exercise of right.

3.1 Restrictions upon free speech and expression

After discussing the doctrine of public criticism and role of free media in democracy, the immediate question is whether there can be any restriction upon such right? Whether this right is an unfettered and unbridled horse? The answer is in negative. The African
20

NAACP v. Button, 371 U.S. 415, 433; See also, Sweeney v. Patterson 76 U.S. App. D.C. 23, 24, 128 F.2d 457, 458 (1942). 21 MILL, ON LIBERTY (OXFORD: BLACKWELL, 1947), AT 15; See also, MILTON, AREOPAGITIA, IN PROSE WORKS (YALE, 1959), VOL. II, AT 561.
22

Tata press Ltd. V. Mahanagar Telephone Nigam Ltd., AIR 1995 SC 2438

GUJARAT NATIONAL LAW UNIVERSITY Commission on Human and Peoples Rights23, The United Nations Human Rights Committee24, ICCPR, UDHR, and ECHR are of the view that there can be reasonable restriction on the ground of defamation, national security, and integrity and in case if restriction is inevitable then it must be proportionate and closely tailored to the accomplishment of the legitimate governmental objective necessitating it.25 European council of human rights has also recalled that there is little scope under the Convention26 for restrictions on political speech or debates on questions of public interest27 Restriction can be justified, if at all, only by a clear and present danger of the obstruction of justice.28

4. FREE SPEECH VIS--VIS LAW OF DISPARAGEMENT

New York time decision has brought revolution in the law of communication specially the first amendment in United States has completely changed the law of defamation and now it has become very difficult to establish a claim of defamation as the requirement to prove actual malice is very difficult. This has become a common defence in all the cases of defamation because at any time it can be said that malice was not actual. This simple statement is very difficult to be refuted as malice is a mental state of a person. Now in order to understand why it is difficult to establish disparagement in free speech regime it will be pertinent to know what defamation is? Because both these concepts are quite similar. Defamation in plain vanilla is a publication without justification or excuse, which is calculated to injure the reputation of another, by exposing him to shame and ridicule.29 As articulated by the court in Kimmerles case,30 defamatory statements are words which tend to expose one to public hatred, shame, obloquy, contumely,
23

African Commission on Human and Peoples' Rights(under African Charter of Human rights), Media Rights Agenda and Constitutional Rights Project v. Nigeria, Communication Nos. 105/93, 128/94, 130/94 and 152/96, Decision of 31 October, 1998, 54 ; See also, Dichand and Others v. Austria, 26 February 2002, Appli. No. 29271/95 24 U.N. HRC, Aduayom et al. v. Togo (422/1990, 423/1990 and 424/1990), Rep. of July 12, 1996, 7.4. 25 Arts. 13 and 29, American Convention on Human Rights, (Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism) 70. see also The Sunday Times v. UK (II), 65, Appli. No. 13166/87, 26 November 1991. 26 ART 10 2 of the E.C 27 Srek v. Turkey (no. 1) [GC], no. 26682/95, 6 at 5711, ECHR 1999-IV; Hungary Case [GC], no. 25390/94, 34, ECHR 1999-III; Rekvnyi and Feldek v. Slovakia, 56, ECHR no. 29032/95, 2001-VIII). 28 Craig v. Harney, 331 U.S. 367; See also, Wood v. Georgia, 370 U.S. 375. 29 Parmiter v. Coupland, 151 Eng. Rep. 340 (1840), cited in PROSSER & KEETON, LAW OF TORTS 773 N.17 (5TH ED. 1984) 30 Kimmerle v. New York Evening Journal Inc, 262 N.Y. 99, 102 (1933).

GUJARAT NATIONAL LAW UNIVERSITY odium, contempt, ridicule, aversion, ostracism, degradation or disgrace ... and to deprive one of their confidence and friendly intercourse in society 31 International law contemplates three essentials of defamation, which are (1) there must be a publication of defamatory statement made voluntarily by the defendant with malice (2) there must be injury and (3) there must not be any justification or excuse. 32 If we see the definition of disparagement it is quite similar to defamation but the object of two differs. Defamation attacks the reputation of a person while disparagement attacks on the reputation of product with a primary aim of profit making. It is stated that commercial disparagement is a false statement made with the intent to call into question the quality of a competitors goods or services and to inflict pecuniary harm.33 In order to constitute a tort of disparagement certain ingredients must be fulfilled (1) intentional (2) unprivileged (3) publication of (4) a false statement that (5) disparages the property of another (6) in a manner that can be measured.34 In addition, it is necessary to distinguish that disparagement actions protect property interests while defamation actions protect only reputation.35 4.1 How is it difficult to establish disparagement? Coming back to the main issue i.e. how is it difficult to establish product defamation or trade libel in the free speech regime? In order to establish this difficulty we will take each ingredient of disparagement separately and analyze how far it is feasible for the plaintiff to establish all the essential requirements so as to claim relief. And at same time we will also see how far it is possible for a defendant to avoid its liability in case of disparagement we will also see what measures can be adopted by defendant so as to circumvent the law of disparagement. Now let us take all the ingredients one by one. 4.2 Falsity of advertisement must be proved

31 32

Kimmerle v. New York Evening Journal Inc, 262 N.Y. 99, 102 (1933). Statsky William.P, Essentials of Torts, 2001, Thomson Delmer Learning at p.264 33 Restatement (Second) Of Torts at p. 630 (1976), Picker Intl, Inc. v. Leavitt, 865 F. Supp. 951, 964 (D. Mass. 1994). 34 Id. See also Clorox Co. Puerto Rico v. Proctor & Gamble Commercial Co., 228 F.3d 24, 33 no.6 (1st Cir. 2000). 35 Supra Note 68 at Pg. 623

GUJARAT NATIONAL LAW UNIVERSITY It is well established that in order to bring an action for disparagement, falsity of statement must be proved which may be either literally false or likely to mislead and confuse consumers.36 Further, law does not stop favoring defaulter here. It goes on to say that presumption is always in the favour of truthfulness of statement. In addition, most often, the plaintiff are required to presents evidence of consumer reaction through consumer surveys37 which is again a difficult task and the sufferer (plaintiff) has to suffer more because truth is an absolute defense in such cases.38 Consumer surveys are required to check the effect of the impugned (disputed) statement upon the consumers who are likely to be affected by such misleading, false or disparaging statement. It will be pertinent to note that conducting a market survey takes considerable time. In the mean time while survey is being conducted the reputation of product will keep suffering. In addition, a representation is deemed to be false if it is false in substance and in fact; and the test by which the representation is to be judged is to see whether the discrepancy between the represented fact and the actual fact is such as would be considered material by a reasonable representee.39 Therefore, in other word it can be said that false statement if not substantial will not amount to disparagement. Thus we can conclude that legally it is permissible to utter false up to some extent. I am surprised how far this free speech regime will extend excluding the liability for libel and slender. Thus we see that first essential is tilted in the favour of defaulter. 4.3 Impugned commercial must refer to competitors product The second requirement to establish a claim of disparagement is that the impugned commercial must refer to competitors product. In order to escape liability generally companies use generic words in their advertisement which has not acquired a secondary meaning so as to disparage anothers product without being liable. 40 For example
36

Restatement (Second) Of Torts at p. 630 (1976), Picker Intl, Inc. v. Leavitt, 865 F. Supp. 951, 964 (D. Mass. 1994). 37 id; see also Gillette Co.v. Norelco Consumer Prods. Co, 946 F. Supp. 115, 128 (D. Mass. 1996). 38 Abdul Wahab Galadari v. Indian Express Newspapers (Bombay), Limited, AIR 1994 Bom 69 39 Halsbury's Laws of England, vol 4 40 Win-Medicare Limited v. Somacare Laboratories, 1997 PTC (17); Registrar of Trade Marks Vs. Hamdard National Foundation, AIR 1980 Del.182; Prakash Roadline Ltd. v Prakash Parcel Service (P)

GUJARAT NATIONAL LAW UNIVERSITY Britania Company produces Good Day Biscuits. Recently its competitor started an advertisement campaign wherein the slogan used was why have a Good Day when you can have a better day. Thus by using generic words they are ridiculing others product and bypassing liability. Another technique of disparaging others product without being liable is comparing your product with a fictitious product which can be very much similar to competitors product. We have a classic example of coca cola using the name Pappi in its advertisement to ridicule Pepsi. Thus legally speaking one can avoid liability of defamation by simply using generic words. 4.4 Commercial speech must be discrediting competitors product It has been held that a statement is considered as defamatory if it tends to injure a persons reputation in the community.41 Therefore, test is whether, under the circumstances, the statement discredits the plaintiff in the minds of any considerable and respectable class of the community.42 Promoters of free speech contend that the effect of advertisement is subjective and not objective hence it can not ridicule or disparage another product. Furthermore, statements that contain minor inaccuracies but are substantially true are subject to the fair reporting privilege.43 Therefore, we see that yet again this requirement is difficult to establish. Because a statement might be considered as defamatory at one place and might not be considered at other place. Thus a clever advertiser can select his place of commercial in such a way where his statement will not amount to defamatory. Thus we see that yet again aggrieved party may be left in lurch. 4.5 Puffing and disparagement sitting cross-head to each other

Ltd,. 1992(2)Arb LR 274 (Del.) at 23; Allianz Aktiengesellschaft Holding vs Allianz Capital & Management Services Ltd., 2002 (24) PTC 177 (Del); Mrs. Ishi Khosla vs Anil Aggarwal, 2007(34) PTC370(Del) - 16; Aktiebolaget Volvo Of Sweden vs Volvo Steels Ltd. Of Gujarat (India), (O.O.C.J. Appeal No. 570/1995 in Notice of Motion No. 950/95, Decided On: 16.10.1997) 41 Flotech Inc. v. E.I. Du Pont de Nemours Co., 627 F. Supp. 358, 367 (D. Mass. 1985), affd, 814 F.2d 775 (1st Cir. 1987) 42 Vodafone Group Plc and Anr. v. Orange Personal Communications Services Limited, 1997 F.S.R. 34; Flotech, Inc. v. E.I. Du Pont de Nemours Co., 627 F. Supp. at 367; Ricciardi v. Latif, 3 Mass. App. Ct. 714, 71415, 323 N.E.2d 913, 914 (1975); Bratt v. Intl Bus. Mach. Corp., 392 Mass. 508, 517, 467 N.E.2d 126, 133 (1984); Shafir v. Steele, 431 Mass. 365, 373, 727 N.E.2d 1140, 1146 (2000); Draghetti v. Chmielewski, 416 Mass. 808, 812, 626 N.E.2d 862, 866 (1994); A.M.F. Corp. v. Corporate Aircraft Mgmt., 626 F. Supp. 1533, 1551 (D. Mass. 1985); Smith v. Suburban Rests., Inc., 374 Mass. 528, 530, 373 N.E.2d 215, 217 (1978) 43 Brown v. Hearst Corp., 862 F. Supp. 622, 630 (D. Mass. 1994), affd, 54 F.3d 21 (1st Cir. 1995).

GUJARAT NATIONAL LAW UNIVERSITY There is a unique privilege of puffing which allows a seller to tout his products as superior to those of a competitor even if the seller knows that they are not. 44 It has been contended that this privilege to puff ones goods ensures that commercial speech is given some breathing space. In addition, it is now a settled law that mere puffing of goods is not actionable45 and the tradesman can say that, his goods are the best or better even if it is false.46 It is to be noted that while determining the true meaning of statements courts have always considered that the public expect a certain amount of hyperbole in advertising.47 Moreover, advertisements are nothing more than probity and are aimed at pocking fun at the advertisements of the others which is permissible in Law. 48 The law permits an advertiser to proclaim that its product is the best which necessarily implies that all other similar products are inferior.49 Thus legally one can easily avoid the liability of disparagement by simply incorporating a puffery clause in its advertisement. Furthermore, in such cases, courts have become very strict in granting any kind of prior restraint in the form of injunction. 4.6 Means and methods to avoid liability for disparagement Thus after discussing all the essential ingredients of disparagement, we can elicit some of the methods by which a defendant can avoid his liability all together or at least avoid temporary relief (interlocutory or temporary injunction) which might be granted against him. These methods are as follows; 1. Prove that the impugned statement was substantially true if not completely true. 2. Prove that the impugned statement was containing minor inaccuracy. 3. Prove that the impugned statement was not pointing to plaintiffs product. This can be done by incorporating generic words in impugned statement.

44

Flotech Inc. v. E.I. Du Pont de Nemours Co., 627 F. Supp. 358, 367 (D. Mass. 1985), affd, 814 F.2d 775 (1st Cir. 1987); Restatement (Second) of Torts 623A, 649 (1979). 45 Colgate Palmolive v. Hindustan Lever Limited; Reckitt & Colman of India Ltd. v. M.P. Ramchandran and Anr., 1999 PTC (19) 741; Reckitt & Colman of India v. Kiwi TTK Ltd., 1996 PTC (16) 393 46 id 47 Vodafone Group Plc and Anr. v. Orange Personal Communications Services Limited, 1997 F.S.R. 34 48 Pepsi Co., Inc. And Ors. vs Hindustan Coca Cola Ltd., 2003 (27) PTC 305 (Del) 49 Dabur India Limited v. Wipro Limited, Bangalore, 2006 (32) PTC 677 (Del.)

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GUJARAT NATIONAL LAW UNIVERSITY 4. Prove that there was no actual malice to disparage or belittle the quality of plaintiffs goods. 5. Prove that the impugned commercial was not misleading the consumer. It can be done either by showing absence of consumer survey report or conducting a counter survey having a conclusion contrary to the report of plaintiffs survey. 6. Prove that the commercial/advertisement was merely to puff up his product which is an exercise of freedom of speech and expression. 7. Prove that the impugned statement was having a nature of public debate. 8. Prove that the effect of commercial is subjective not objective in nature. 9. Lastly, but most importantly prove that the impugned statement/commercial was true. 10. In case the impugned statement/commercial is yet not published injunction can not be granted as prior restraint upon speech is unconstitutional. Hence we see that by adopting one of the means shown above defendant can easily circumvent his liability.

5. Criticism
No doubt freedom of speech and expression is oxygen of democracy but when it is misinformation it becomes poison for the democracy. The growth in this regard has completely changed the law of defamation and it has almost become an impossible task to establish a claim of defamation. Hence there is a need to bring change in law which says that even half truth and misinformation should be protected. Further with due respect to J.S. Mill, I would like to say that in order to prove veracity of a statement it is not necessary to give space to falsity so that it can challenge and more clear picture can come up. This is not the true spirit of criticism in order to criticize government there is no need of any support of falsity. Criticism can be done only and only with the help of truth. Thus criticism should always be positive rather negative and the moment it turns negative it should be stopped.

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6. CONCLUSION
Law with regard to communication and especially disparagement has undergone a considerable change after the growth of human right jurisprudence. Recognition of free speech as a fundamental right in India has made it unconstitutional to put any prior restraint on the exercise of this right. After discussing the importance of free speech protection and all the essential requirements of disparagement and defamation, one can easily say that this right is being misused by media under the garb of public criticism and at the same time freedom of commercial speech is being misused under the veil of puffing. Thus practically speaking establishing a claim of disparagement has become a hard nut to crack

7. BIBLIOGRAPHY
Constitutions and Convention 1. 2. 3. 4. 5. African Charter on Protection of people and Human Right Constitution of India European convention on Human Rights International Convention on civil and political Rights United Nation Declaration on Human Right

Cases Referred

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GUJARAT NATIONAL LAW UNIVERSITY 1. Abdul Wahab Galadari v. Indian Express Newspapers (Bombay), Limited, AIR 1994 Bom 69 2. Advisory Jurisdiction, Case of Costa Rica , Int. Am. Crt., No. OC-5/85 3. Brown v. Hearst Corp., 862 F. Supp. 622, 630 (D. Mass. 1994) 4. Castells v. Spain, 43 Appli. No. 11798/85, 24 April 1992. 5. Colgate Palmolive v. Hindustan Lever Limited. 6. Craig v. Harney, 331 U.S. 367 Parmiter v. Coupland, 151 Eng. Rep. 340 (1840), 7. Dabur India Limited v. Wipro Limited, Bangalore, 2006 (32) PTC 677 (Del.) 8. De Jonge v. Oregon, 299 U.S. 353, [271] 365. 9. Flotech Inc. v. E.I. Du Pont de Nemours Co., 627 F. Supp. 358, 367 (D. Mass. 1985 10. Kimmerle v. New York Evening Journal Inc, 262 N.Y. 99, 102 (1933). 11. New York Times v. Sullivan 376 U.S. 254 12. Pepsi Co., Inc. And Ors. vs Hindustan Coca Cola Ltd., 2003 (27) PTC 305 (Del) 13. Reckitt & Colman of India Ltd. v. M.P. Ramchandran 14. Reckitt & Colman of India v. Kiwi TTK Ltd., 1996 PTC (16) 393 15. Roth v. U.S., 354 U.S. 476, 484. 16. Shafir v. Steele, 431 Mass. 365, 373, 727 N.E.2d 1140, 1146 (2000) 17. Sunday Times v. UK (II), 65, Appli. No. 13166/87, 26 November 1991 18. Srek v. Turkey (no. 1) [GC], no. 26682/95 19. Tata press Ltd. V. Mahanagar Telephone Nigam Ltd., AIR 1995 SC 2438 20. Terminiello v. Chicago, 337 U.S. 1, 4 21. Thorgeirson v. Iceland, 63, Appli. No. 13778/88, 25 June 1992 22. Vodafone Group Plc and Anr. v. Orange Personal Communications Services Limited, 1997 F.S.R. 34 23. Wood v. Georgia, 370 U.S. 375. 24. Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997). p, 342, 343, 345. Books referred 1. Criticism of Public Officers and Candidates for Office, 23 AM. L. REV. 346 (1889). 2. Halsbury's Laws of England 3. MABRA GLENN ABERNATHY, BARBARA ANN PERRY, CIVIL LIBERTIES UNDER THE CONSTITUTION ( 6TH EDITION, UNIVERSITY OF SOUTH CAROLINE PRESS), AT.2974. MILL, ON LIBERTY (OXFORD: BLACKWELL, 1947), AT 15 5. Restatement (Second) Of Torts at p. 630 (1976), 6. Statsky William.P, Essentials of Torts, 2001, Thomson Delmer Learning at p.264 ARTICLES REFERRED 1. Chase, Criticism of Public Officers and Candidates for Office, 23 Am. L. Rev. 346 (1889). 2. Criticism of Public Officers and Candidates for Office, 23 AM. L. REV. 346 (1889). 3. Noel, Defamation of Public Officers and Candidates, 49 Col. L. Rev. 875 (1949)

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