MEDIA LAW

NEWSPAPER LIBEL – AN INTRODUCTION

WITH SPECIAL EMPHASIS ON INDIAN
CASES

SUBMITTED BY:

SRINIVAS AC

BA0130060

V Year
TABLE OF CONTENTS

 INTRODUCTION

 EXAMINING NEWSPAPER LIBEL

o The Rights of Newspapers

o Conflict with Freedom of Expression

 NEWSPAPER LIBEL IN INDIAN CASE LAW

o With Regard to Elements of Libel

o With Regard to Defences

o With Regard to Remedies

 CONCLUSION

 REFERENCES
 INTRODUCTION

The research paper has tried to answer a few basic questions about newspaper libel and its position
in Indian case law. In order to do so, it has done the analysis on the definition of defamation,
distinctions under defamation and the elements, defences and remedies of libel with regard to case
law. Commentaries on tort law have also been widely used.

The researcher believes that in order to begin analysis of newspaper libel, it is extremely important
to first understand the basics of libel, and consequently defamation. Hence, the first section is
solely concerned with facilitating this understanding, so that the following sections can be read
with clarity.

The second section scrutinises newspaper libel by detailing the development of the various rights
available for and against newspapers in the event of publication of libel and its historical conflict
with the freedom of expression. Among other things, the Reynolds Defence and the newspaper
rule have been looked into. The historical value of the right to reputation has been considered as
well as modern developments regarding newspaper libel. The researcher has examined how, with
the growing importance of human rights and consequently freedom of speech, the balance is
gradually getting more evened out between protecting reputation and protecting freedom of speech
and expression.

In the third and final section, the researcher has investigated newspaper libel and its various
elements along with the defences and remedies available, with respect to Indian law. In this section,
Indian cases have been heavily looked into. Further, the landmark Supreme Court decision in the
Nakheeran case has been analysed.
 EXAMINING NEWSPAPER LIBEL

The Rights of Newspapers

Newspapers have no special right or privilege, and have no special right to make unfair comments,
or make assertions upon a person’s character, or assertions in respect of or upon a person’s
profession. The range of a journalist’s criticism is not wider than that of any other subject. Further,
a journalist has a greater responsibility to guard against falsehood as his expressions have a larger
publication than that of an individual’s expressions, and are more likely to be believed by a lay
person since they appear in print.1

Moreover, since a journalist’s right to comment on matters of public interest is acknowledged by

law, the journalist owes an obligation to the public to have his facts right.2 Indeed, whenever
commenting on matter of public interest, the newspaper must follow the rule of “responsible
journalism”3 as per the ten conditions set out by Lord Nicholls. In this sense, Reynolds is a seminal
case in modern newspaper libel. This is also known as the “Reynolds Defence.”4 The Reynolds
Defence was further advanced by Jameel v. Wall Street Journal5 and Seaga v. Harper,6 and it has
been held that the Reynolds Defence “was intended to give and has given a wider ambit of privilege
to certain types of communication to the public in general than would have been afforded by the
traditional rules of law.”7 The historical importance of these decisions will be explained a little
further on in the section.

Moving on, investigative journalism does not enjoy any special right or protection. Thus, any
statement accusing or implying criminal guilt against anyone as a result of the newspaper’s own
investigation, does not allow the newspaper to plead the defence of qualified privilege.8

1
Khair-ud-Din v. Tara Singh, (1926) ILR 7 Lah 491.
2
Rustom K. Karanjia v. Thackersey, (1969) 72 Bom LR 94.
3
Reynolds v. Times Newspapers Ltd., (1999) 4 All ER 609.
4
Supra, note 3, at 291.
5
(2006) 4 All ER 1279 (H.L.)
6
(2008) 1 All ER 965 (H.L.)
7
Id
8
Grobbelaar v. News Group Newspapers Ltd., (2001) 2 All ER 437 (CA) 9
There also exists a “newspaper rule,” according to which newspapers are not compelled to disclose
their information sources at the interim stage in answer to interrogatories. This rule was applied in
India in Nishi Prem v. Javed Akhtar.9 However, it must be noted that except in respect of
interrogatories, newspapers are compellable to disclose their information sources.10

In all cases of joint publication, each defendant is liable for the resultant damage. Thus, the
publisher, editor, printer and proprietor can be sued either separately or together in cases of
newspaper libel. Further, the proprietor is liable for any libel appearing in the newspaper’s columns
even though the publication is made without his knowledge, in absence or even contrary to his
orders.11

Moreover, the sale of each copy of the newspaper containing libel is, on the face of it, a publication,
thereby rendering both the distributor and the principal responsible. However, the defendant can
be excused if it is proved that he was ignorant of the libel; his ignorance was not due any negligence
on his part; and he had no ground for supposing that the newspaper was likely to contain libel.12
Nonetheless, this principle is only applicable to defendants who had a subordinate role in
disseminating the newspaper.13This principle will thus cover only persons concerned with the
mechanical distribution of the newspaper like newspaper vendors.14

Lastly, if a witness’ statement made in judicial proceedings is reported and commented upon in a
newspaper, and the statement turns out to be false; the plea of fair comment can be used in
subsequent libel proceedings.15

Conflict with Freedom of Expression

Protection of reputation is a concept that predates the concept of human rights, as we understand
it today. Indeed, protection of reputation is a concept that goes as far back as the 16th century. 16
As libel relating to newspapers has developed over time, it has historically tended to preserve the
right of the individual. However, with the passing of the Human Rights Act, 1998 in the United

9
AIR 1988 Bombay 222
10
McGuinnes v. Attorney General of Victoria, (1940) 63 CLR 73
11
Dina Nath v. Sayad Habib, (1929) ILR 10 Lah 816
12
Emmens v. Pottle, (1885) 16 QBD 354
13
Sun Life Assurance Co. of Canada v. W.H. Smith & Sons Ltd., (1934) 150 LT 211
14
Goldsmith v. Sperrings Ltd., (1977) 2 All ER 566
15
Grech v. Odhams Press, (1958) 1 QB 310
16
Supra, note 24, at 754.
Kingdom, reputation and freedom of expression are competing in a new context and the balance
between them is gradually tilting towards the latter.17 Indeed, before this, one of the few exceptions
to judgments sympathetic towards reputation could be that of Desmond v. Thorn,18 wherein it was
held that the prosecution needs to prove that the libel is serious and the leave of a High Court judge
is required before proceedings can be initiated against a newspaper.

A case which brought out the conflict with freedom of expression was the aforementioned
Reynolds v. Times Newspapers Ltd.19 It is a historically important case in English law as it defined
freedom of expression in terms of the public interest in receiving and imparting information in the
context of a democratic society. Consequently, the decision is considered to be significantly
influenced by the Human Rights Act, 1998. Thus, Reynolds set forth a new direction in tort law
by interpreting freedom of expression as a positive right reinforced by the public interest.20

At the same time, there has been an interesting, and controversial, development in English law to
protect the reputation of a public figure. This is the notion of the “super-injunction” which has
been popularised by Mr. Justice Eady. An ordinary injunction by a public figure which prevents a
newspaper from printing a story, when he believes that he is about to be libelled, is a recognized
precedent. However, a super-injunction prevents the existence of that very injunction from being
reported.21

In Indian law, it must be remembered that Article 19 of the Indian Constitution protects certain
rights in the freedom of speech and expression, considering them to be fundamental in nature.
Thus, freedom of speech and expression is constitutionally protected in India, with respect to
reasonable restrictions which are examined through case law in the last section.

17
Supra, note 24, at 754
18
(1983) 1 W.L.R. 163
19
Geoffrey Samuel, CASES AND MATERIALS ON TORTS, 273 (2006)
20
Id, at 274
21
Vir Sanghvi, Law and Libel (May 20, 2011), MEDIUM TERM, available at
http://blogs.hindustantimes.com/medium-term/2011/05/20/law-and-libel/ (Last visited on April 18, 2018)
 NEWSPAPER LIBEL IN INDIAN CASE LAW

With Regard to Elements of Libel

As discussed above, the importance of publication becomes far more amplified, as it is primarily
the mode of publication which distinguishes libel from slander22. The researcher feels that due to
the lack of a clear distinction under Indian law between slander and libel, it becomes necessary to
highlight what constitutes libel in the Indian scenario and how these elements are specified by
Indian cases.
Let us consider the elements of libel and Indian case law:

The statement must be false

Libel necessitates that the concerned statement must be a false one, as the expression of a fact
backed by sufficient evidence cannot be concerned defamatory. This element is true for defamation
in general, but is particularly pertinent in the case of libel, as the facts are usually published in a
far more public forum in comparison to slander, and thus, the scope for damage to reputation is
much greater due to the more permanent nature of the statement. Cases involving newspaper, this
is best exhibited. The case of Radheshyam Tiwari v. Eknath23 is a clear cut example, where the
defendants were accused of printing false statements regarding the plaintiff alleging that he
accepted bribes, issued false certificates, etc. These statements were presented in the newspaper as
fact, but were found to false, and thus the defendants were found guilty of defamation. In fact,
cases like Jawaharlal Darda v. Manoharrao Ganpatrao Kapiskar,24 and Abdul Wahab Galadari v.
Indian Express Newspapers Bombay) Ltd.,25 indicate how the publishing of the truth is not
considered to be libellous.

The statements must be in reference to the plaintiff

For a statement to cause damage to the reputation of a person, it must be in reference to this
person directly. Indian judgements provide a clear cut explanation of this element, as seen in

22
BM Gandhi, LAW OF TORTS, (9th Edn., 2006)
23
AIR 1985 Bom 285
24
AIR 1998 SC 2117
25
AIR 1994 Bom 69
the case of T.V Ramasubha Iyer v. AMA Mohindeenf26, which laid down that if the libellous
statement does not directly imply the involvement of the plaintiff, then no action can be taken by
the plaintiff (In this case, the defendants were not even aware of the existence of the plaintiff).
This is an important concept, as it limits the scope of defamation to the targeted person only.
Further, the case of Dhirendra Nath Sen v. Rajat Kanti Bhadra27 showed that libellous statements
against a head of a community do not enable a member of this community to take action. Thus
only those persons towards whom the defamatory statements are directly focused on, have any
right of action. In certain cases, where the meaning of the statements was ambiguous, the Supreme
Court ruled that for an implied allegation against a person to be defamatory, it must be proven that
those statements are directed towards the person and that person alone, as seen in the Manmohan
Kalia v. Yash28 case.

Another element to be considered in this aspect is when libellous statements are published against
a partnership firm. As it is not a legal entity, it is regarded as defamatory against its members, as
seen in the PK Oswal Hosiery Mill v. Tilak Chand29 case.

Against companies however, libellous statements can be made with respect to its business or
reputation. In a Bombay case,30 a company’s reputation was damaged by a libellous statement
which claimed that the company was exploited, and subsequently the company was successfully
able to claim damages.

The statements must be published

It is the publication aspect which is essential to libel simply by definition. The importance of
publication was first highlighted in 1896 in the Ratan v. Bhaga31 case. Publication is an important
factor because, the audience in the case of libellous wordings are far larger especially in the case
of daily and weekly publications, and thus the damage that can be caused by them is greater as
well.

26
AIR 1972 Mad 398
27
AIR 1970 Cal.216
28
AIR 1984 SC 1161
29
AIR 1969 Punjab 150
30
Union Benefit Guarantee Co v. Thakorlal, AIR 1936 Bom 114
31
1896 PJ 376. 85 AIR 2002 Guahati 75
The importance of publication in libel is further pointed out by the case of SNM Abdi v. Prafulla
Kumar Mohanta, 85 where the sheer publication of implied statements regarding Prafulla Kumar
Mohanta was considered libellous.

However, in libel, publishing as well as distribution becomes important, as if there is no evidence

of distribution by the accused, and then he cannot be held liable as seen in Nemichand v.
Khemraj.32

Further, in the case of repeated publications, each new publication will regarded as a fresh libellous
statement, and thus newspapers must be particularly careful in this regard, even though the law
does show a certain level of flexibility on this issue.

The statements must be defamatory

Cases like Mitha Rustomji Murzban v. Nusserwanji Engineer,33 and DP Chaudhary v. Kumari
Manjulata34 indicate how the statements published must be defamatory, for action to be taken
against the publishers. The definition of what is defamatory does come into play as seen in cases
like Narayanan v. Naryana35, the calling of a person as ‘Godseite’ and implying that he uses
political assassinations to achieve goals, was regarded as highly defamatory. However, in certain
cases the ambiguity of words involved may lead to the necessity to provide evidence for proving
that they are libellous, as seen in Cooppoosami Chetty v. Duraisami Chetty36. Further, the DP
Chaudhary case could be considered as an important one, as it laid down that intention or motive
to defame is immaterial. The loss of reputation is also immaterial as long as a defamatory statement
has been published, as was seen in the case of Sadasiba Panda v. Bansidhar Sahu37 .

Further, the publishing of incorrect information in a newspaper does not save the editor unless
there is a contract of that effect, as seen in the Gurbachan Singh v. Babu Ram case38 .

However, the elements of falsity and defamatory nature go hand in hand. If the information
published is not false, then there can be no questions raised about their defamatory nature. Further,

32
AIR 1973 Raj 240
33
(1941) 43 Bom LR 631
34
AIR 1997 Raj 170
35
Supra, note 34
36
(1909) 33 Mad 67
37
AIR 1962 Ori 115
38
AIR 1969 Punjab 201
one cannot claim action against the publishing of possibly defamatory material that one has already
consented to. The case of Simi Garewal v. TN Ramachandran39 is a classic example, where it is
held that the information the defendant wanted to publish (a nude photograph of the plaintiff from
a film) could not be considered defamatory, as the plaintiff herself had consented to that
photograph being taken, and thus she had no right to claim it was defamatory.

With Regard to Defences

There are certain main defences to an action of a libel which are as follows:

Justification by truth

Criminal trials being an exception40, the truth of defamatory words is a complete defence to an
action of libel, as the truth shows that the plaintiff has no right to recover damages. However,
belief of truth is not a defence, as the defendant will still be held liable even if s/he believes the
libellous statement to be true.

The burden of proof does lie on the defendant; she/he has to prove that the published material is
true in every material part41.

In criminal law, the IPC requires that not only is the statement true, but also for the public good.42

Fair and bona fide comment

Comments that are fair and bona fide are not considered to be libellous as indicated by Dainik
Bhaskar v. Madhusudan Bhaskar43. Legitimate comments may cause loss to plaintiff, but are
considered as damnum sine injuria. However, it is necessary that such comments are legitimate
and the public is interested or concerned with such comments, for example - matters of national
importance, or matters concerning performances of artists but not their private lives.44 Fairness
necessitates proof of fact as seen in Subhas Chandra Bose v. R Knight and Sons.45

39
(1976) 78 BOMLR 623
40
Raghunath Damodhar v. Janardhan Gopral. (1891) ILR 15 Bom 599
41
Supra, note 54
42
Altaf Hossein v. Tasuddook Hossein, (1867) 2 Agra H C 87
43
AIR 1991 MP 162
44
Supra note 3
45
(1928) ILR 55 Cal 1121. 100 Supra, note 3
Further comments must prove their bona fide intentions and the commentators must not use such
comments as vehicles of disguised malice.

Comments however are opinions based upon, and not assertions of facts, and the differentiation
between the two is pointed out in Section 499 of the IPC46.

Thus, this defence is a difficult one to substantiate, especially for newspapers , as they have no
special privileges, and the comments published must be backed by facts47.

Privilege

Privilege means that a person stands in such relation to the facts of the case that he is justified in
saying or writing what would be slanderous or libellous in any one else48.

The general principle behind privilege is that statements were made in the general interest of
society. There are two kinds.

Absolute privileges are those where no action can be taken against defamatory statements even if
the element of malice is present. An example would be the ability of men to speak their mind
without fear in Parliamentary proceedings. The case of Lala Lajpat Rai v. The Englishman Ltd.49,
best exemplifies this. Further article 105(2) of the Constitution of India, no Member of Parliament
shall be liable for the statements made in Parliamentary proceedings, and any other committee.50

Qualified privileges are those, where the presence of express malice can allow for action to be
taken. In this case, if the defendant sets up a plea that a publication had a qualified privilege, then
the burden of proving the existence of express malice lies upon the plaintiff, which could be drawn
out from the language of or the motives behind the statement(s).51

Consent

46
Supra, note 3, at 260
47
Sewakram Sobhani v. R.K. Karanjia, (1981) 3 SCC 208
48
Supra, note 3, at 262. 104 (1909) 13 CWN 895
49
(1909) 13 CWN 895.
50
Tejkiran Jain v. Sanjiva Reddy, AIR 1970 SC 1573
51
Maroti Sadashi v. Godabhai, (1958) 61 Bom LR 143
A valid defence could be that the plaintiff has expressly or impliedly consented to the publication
concerning which the complaint has been made.52

Apology

The defence has been provided by the Libel Act of 1843, and the Defamation Act 1952. Under
this, the provision of apology and its acceptance can enable the defendant to resist a suit for
damages. However, a mere publication of a contradiction and/or expression of regret will not have
the same effect.53

With Regard to Remedies

Under remedies for defamation, a suit for damages may be brought, or the publication of
defamatory statements may be restricted by injunction either under section 38 or 39 of the Specific
Relief Act of 196354 . However, the right to sue remains restricted to the person defamed, and not
even close relations can do so.55 Damages recoverable will depend upon the nature and character
of the libel, the extent of its circulation, the position in life of the parties, and the surrounding
circumstances of the case56. However costs incurred cannot be included in the compensation57.
Damages can be aggravated or mitigated depending upon the language used, the presence of
malice, apologies provided, reputation of the plaintiff, and the presence or absence of
provocation.58

Injunctive relief depends upon the satisfaction of the Court as to the falsity of the statements, and
the level of pressing injury that is possible. Injunctions may be granted to prevent publication of
libellous statements, when the intention is to harm the plaintiff. The case of Harishankar v. Kailash
Narain59 indicates this; here, a newspaper was barred from publishing a libel which was intended
to blackmail the plaintiff.

52
Supra, note 93
53
K.P. Narayanan v. Mahendrasingh, ILR 1956 Nag 439
54
Supra, note 3, at 280
55
Luckumsey Rowji v. Hurtun Nursey, (1881) ILR 5 Bom 580
56
Supra, note 3, at 281
57
Supra, note 55
58
Supra, note 3, at 283
59
1981 MPLJ 589. 115 (1994) 6 SCC 632
A historic Supreme Court judgement must be mentioned here, where the government was
restricted from imposing a prior restraint on the publication of an autobiography which was going
to be defamatory or the chance that it violates of a right to privacy. This case of R. Rajagopal v.
State of Tamil Nadu was definitive in nature, as the Court held that authorities do not have the
ability to impose an injunction on a publication on the basis of it being defamatory of some public
officials, and if need be, they can opt for the remedies already available, but only after publication.
The Court also held that the press cannot be prosecuted for publication based on ‘public records’.
The basis of this judgement was the independent rule that in the case of public officials, no right
to privacy is available with respect to acts relevant to the discharge of their official duties.60
Further, the Supreme Court further pointed out that the State cannot maintain a suit for damages
when the defamation is regarding activities and institutions exercising governmental power. The
aspect of public records was further explained, as matters once they enter public record, cannot be
protected by the right to privacy. Exceptions for the issue of decency may exist, but matters of
public record can be freely commented upon by the media, without the threat of a suit for damages
on the basis of defamation.61

The researcher believes that this case contributed significantly to Indian law in general, but more
importantly, to the prevalent law on newspaper libel in particular. In his opinion, the fact that the
government attempted to impose an injunction on a newspaper, a Tamil weekly called Nakheeran,
for the purpose of protecting the involved public officials, would have (if the government had been
successful) laid down an extremely impactful precedence, which would have given the government
a loophole to effectively prevent any exposure of information that would have been relevant from
the point of view of the public, by claiming that the information would be defamatory. With respect
to newspaper libel, the media would have to deal with the possibility of the government imposing
injunctions on publications, by claiming defamation.

The Supreme Court’s judgement too, was extremely well drafted, as while they clarified the
position of the law with respect to the imposing of injunctions on possible libel not yet published,
they also gave a note of caution and clearly said that these principles are not ‘exhaustive or all-
comprehending’, but they are broad principles, and that a law on such a matter, should evolve in a

60
Ramaswamy Iyer, THE LAW OF TORTS, 402, (10th Ed., 2010)
61
Id
case-by-case development.62 Two cases were used by the Supreme Court while formulating the
judgement63, thus further strengthening its legitimacy, as their decision was backed by both
English as well as American case law, thus allowing for a wider interpretation of both the freedom
of the press, as well as of the concept of libel in the Indian context, while also preventing the
possibility of abuse of the law.

CONCLUSION

Defamation is a tort which protects the inherent personal right of an individual against the world.
The definition of what constitutes a violation of an individual’s reputation has been done through
the passing of various judgments such as in Sim v. Stretch and Berkoff v. Burchill. Further, certain
important differences between defamation under English law and Indian law have emerged in the
past century. English law has acts, namely the Defamation Acts of 1952 and 1996 that lay down
defamation as understood in the United Kingdom and through the various judgments passed before
it. Indian law, on the other hand, has defined libel and slander under Section 499 of the Indian
Penal Code and has no specific legislation meant to deal with the tort of defamation. It is hoped
that such legislation will be passed one day in India, especially since Indian law does not recognize
the difference between libel and slander.

Important cases in the development of libel be said to be Sim v. Stretch in laying down the concept
of “right thinking members of society,” Lewis v. Daily Telegraph Ltd with respect to innuendo in
libel, Vizetelly v. Mudies Select Library Ltd with respect to publication. In order to understand the
development of newspaper libel, it is important to understand the obvious conflict that arises
between the right to reputation and the freedom of expression. With this in mind, an extremely
important and recent case is that of Reynolds v. Times Newspapers Ltd which put forward the idea
of “responsible journalism.” Indeed, this is known as the Reynolds Defence. Further, it showed
the growing influence of human rights by defining freedom of expression in the context of a
democratic society. It put forward a new direction in tort law by understanding freedom of

62
Supra, note 115, at 27
63
New York Times v. Sullivan, 376 US 254; Derbyshire County Council v. Times Newspaper Ltd, (1993) 2 WLR
449
expression to be a positive right reinforced in the public interest. Additionally, the newspaper rule
and intriguing development of the “super-injunction” were discussed.

Indian case law was elaborated upon with regard to elements of libel, defences and remedies
available. A landmark SC case is that of Rajagopal v. State of Tamil Nadu, also known as the
Nakheeran case which clarified the law on injunctions on unpublished libel and wisely said that
the principles were not narrow and exhaustive; and law should evolve on a case by case basis.
Further, it allowed for a broader understanding of both the freedom of the press as well as libel in
the Indian context while checking the possibility of abuse of the law.

REFERENCES

1. BM Gandhi, LAW OF TORTS, (9th edn, 2006).

2. G.P. Singh, RATANLAL & DHIRAJLAL’S THE LAW OF TORTS, (26th edn, 2010).

3. Geoffrey Samuel, CASES AND MATERIALS ON TORTS, (2006).

4. Jenny Steele, TORT LAW: TEXT, CASES AND MATERIALS, (2nd edn, 2010).

5. R.F.V. Heuston and R.A. Buckley, SALMOND AND HEUSTON ON THE LAW OF TORTS,
(19th edn, 1987).

6. Ramaswamy Iyer, THE LAW OF TORTS, (10th edn, 2010).

7. Report of the Faulks Committee on Defamation, Cmnd 5909 (1975).

8. Vir Sanghvi, Law and Libel (May 20, 2011), MEDIUM TERM, available at
http://blogs.hindustantimes.com/medium-term/2011/05/20/law-and-libel/.

9. W. V. H. Rogers, WINFIELD & JOLOWICZ ON TORT, (18th edn, 2010).