Media Law

Parshuram Babaram Sawant v Times Global Broadcasting Limited

By

MANISH SATI

Symbiosis Law School NOIDA

INTRODUCTION

Defamation can be defined as an offense of intentional false communication, either written or spoken, that harms a person’s reputation or character; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.

“A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers and lowers him in the estimation of right-thinking members of society generally. Further, it can cause him to be regarded with “feeling of hatred, contempt, ridicule, fear, dislike or disesteem.”[1]

The wrong of defamation consist in the publication of a false and defamatory statement about another person without lawful justification or excuse.

A statement is said to be defamatory when it injuries the reputation of the person to whom it refers and exposes him to hatred, ridicule or contempt or which causes him to be shunned or avoided or which has a tendency to injure him in his office, profession or calling.[2]

Defamation may be a criminal or civil charge. It encompasses both written statements, known as libel, and spoken statements, called slander. If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander.

Libel is any Defamation that can be seen, such as a writing, printing, effigy, movie, or statue. Elements for libel:-

For a statement to be found as libelous, it must be proved that the statement is a) false; b) in writing; c) defamatory; & d) published

Slander is any defamation that is spoken and heard and collectively known as defamation, libel and slander are civil wrongs. that harm a reputation; decrease respect, regard, or confidence; or induce disparaging, hostile, or disagreeable opinions or feelings against an individual or entity. The injury to one’s good name or reputation is affected through written or spoken words or visual images. The laws governing these torts are identical.

  • If one were to put the distinction between slander and libel, slander is addressed to the ear and libel to the eye.
  • In libel, the defamatory statement is made in some permanent and visible form, such as writing, printing pictures, or effigies.
  • Slander, on the other hand, is transitory in nature.
  • Slander is a spoken defamation, while libel is a written defamation.
  • Under English law, libel is an actionable tort as well as a criminal offence, if severe enough;
  • Slander is only a civil injury. Libel is in all cases actionable per se e. without proof of actual damage; slander is, save in special cases, actionable only on proof of actual damage.

Since defamation is an injury to a person’s reputation which is regarded a part of his property, it constitutes an actionable wrong and gives rise to the civil remedy of damages. It also constitutes a criminal offence under section 499 of IPC. The criminal law of defamation is codified in India[3]. If state wants to prohibit a particular conduct it has to specifically define it and pass a law to prospectively punish such conduct. This is a constitutional right. The civil wrong of defamation is not a codified law in India thus in a civil suit for damages the court must apply the corresponding rules of English common law in so far as they are consistent with principles of justice, equity and good conscience.[4]

Under English common law, the essence of the crime of private libel is its tendency to cause a breach of peace  hence even where the defamatory matter is not published to a third party it will support an indictment if it is likely to cause breach of peace.[5] In India, on the other hand, publication is an essential condition for a criminal offence under section 499 as in an action for damages.

In a civil action the intention of the defendant is immaterial and it is no defense to plead that the defendant did not intend to defame the plaintiff. On the other hand, under section 499 of IPC the plaintiff must prove that the publication was intending to harm or knowing or having reasons to believe that such imputation will harm. Good faith on the part of the defendant is thus a good defense in a criminal prosecution but not in civil action.

Defamation is both a crime and a civil wrong. The criminal law of defamation is codified in India[6]. If state wants to prohibit a particular conduct it has to specifically define it and pass a law to prospectively punish such conduct. This is a constitutional right. The civil wrong of defamation is not a codified law in India and the rules and principles of liability that are applied by our courts are mostly those borrowed from common law as explained in UK.

A journalist working for any media is supposed to know that he has a duty not to injure the reputation of another person by false publication with or without intention because every citizen has right to reputation, this right is guaranteed by article 21 of the constitution.

Supreme Court of India held that, where an authority in discharge of his duties Traverses into the realm of personal reputation, it must provide a chance to the person concerned to have a say in the matter[7]. Reputation is the most important thing is every one’s life.

Defenses to an action for defamation

  • Justification
  • Fair Comment
  • Privileges
  • The alleged Statement was not published.
  • The Statement did not refer to the Plaintiff.
  • The Statement was true.


Essentials of Defamation

  1. The statement must be defamatory

A defamatory statement is one which injuries a person’s reputation. There is no necessity for there to be a disparagement of the moral or intellectual character of the person concerned.[8]  The statement must be read as a whole and in its particular context. What may be defamatory of one person may not necessary be defamatory of another. For instance a statement that a barrister “knows as much law as a jackanapes” would not be defamatory of a lay person.[9]The statement must be understood in its ordinary and natural meaning which would be given by reasonable person of ordinary intelligence and not be given some unusual meaning.[10]  

Where the statement in its natural meaning conveys a defamatory imputations, such as a charge of murder robbery or theft the defendant would be liable unless he is able to establish that the person or persons to whom it was published did not understand it in that sense because of some facts which imparted a special meaning.[11]  Where a newspaper announced that engagement of a married man with a particular woman, his wife succeeded in an action for defamation on the ground that from such a publication, her friend understood that she was living with him in sin.[12]

The name of well-known singer was placed third in a list of four musicians in a musical journal. She was able to establish in an action for defamation that by placing her name in the middle position, the journal had sought to portray her in an inferior light and that injured her reputation.[13]

It was held that since the publisher, when he published the news item did not know of the existence of the plaintiff and had later published a correction in his paper he was not liable for defamation.[14]

 

  1. The statement must refer to the plaintiff

In every action for defamation the plaintiff must prove that stamen refers to him.

It is not necessary that there should be any peg or pointer in the defamatory words nor is it necessary to even show that the defendant intended it to refer to the plaintiff. It is enough for the plaintiff to show that any person to whom the statement was published reasonably thought that the plaintiff was the person referred to.[15]

In knupffer v. London Express Newspaper[16], it was held by the court that, it is essential element of the cause of action in defamation that the words complained of should be published of the plaintiff.

In Cassidy v. Daily Mirror Newspaper ltd.[17], the defendant published in their newspaper photographs of the plaintiff’s husband with an unnamed lady, announcing that they were engaged. Even though the defendants had no reason to defame the plaintiff who was not even mentioned in the paper, the plaintiff was entitled to damages since the publication was capable of bearing the meaning that the plaintiff was not married to her husband and was living him in sin. It is equally irrelevant that the defendant intended to refer to another person of whom the words were true.[18]

  1. The statement must be published by the defendant

Communicating
 defamatory
 matter
 to
 some
 person
 other
 than
 the
 person
 of
 whom
 it
 is
 written
 is
 publication
 in
 its
 legal
 sense.
 In
 other
 words, publication
 means
 making
 known
 the
 matter
 to
 some
 person
 other
than
the
plaintiff.

B.
v. 
Adams[19], the 
defendant 
wrote 
a 
letter 
to 
virtuous 
and 
modest woman 
soliciting
 an
 immoral
 intercourse
 with
 her.
 He
 enclosed
 it
 in
 an
 envelope
 properly
 fastened
 and
 addressed
 to
 her.
 The
 defendant
 was
 held
 not
 liable
 for
 defamation,
 because
 there
 had
been 
no
 publication.

Arumuga
 Mudaliar
 v.
 Annamali
 Mudaliar[20], 
Two
 persons
 jointly
 wrote
a
 letter
 containing
 defamatory 
matter about
 the
 plaintiff
 and
 sent
 the
 same
 to
 the
 plaintiff
 by
 registered
 post.
The
 Court
 held
 that
 there
 was 
no
 publication
 by one
 tort‐
feasors to
 the 
other, as
 there
 could
 be
 no
 publication
 between
 joint
 tort‐feasors.
 It
 would
 not
 amount
 to
 publication
 even
 in
 that
 case
 where
 the
 registered
 letter
 addressed
 to
the plaintiff
 goes
 in
the 
hand
 of
 a
 third
 person,
 who
 reads
 it
 out
 in
 an
 unauthorised
 manner.

 

  1. The statement must be false

Tumber
 Dass
 v.
 Dwarka
 Prashad[21], Making
 and
 publicly
 exhibiting
 an
 effigy
 of
 a
 person,
 calling
 it
 by
 the
 person ʼs
 name,
 and
 beating
 it
 with
 shoes,
 are
 acts amounting
 to
 defamation.

Shoobhagee
 Koeri 
v.
 Bokhori
 Ram[22],  A 
wrote 
letters
 to
 the 
husband of 
X, in
 which 
he
alleged
 X 
was 
a 
witch 
and
 had
 by
 her
 sorcery
 caused
 the
 death
 of
 some
 relations
 of
 A.
 He
 also
 made
similar statements 
to 
their
 castemen.
 It
 was
 held
 that
 A
 was 
liable.

Noor
 Mohd.
 v.
 Mohd.
 Jiauddin[23], Bridegroom 
and 
his
 father
 refused
 to
 take
 the
 bride
after
 marriage
 with
 them
 before
 a
 number
 of
 guests.
 The
 act
 was
 considered
 to
 be
 defamatory
 and
 both
 were
 held
 liable.

Gourantla
 Venkateshwar 
v.
 B.
 Demudu[24],   Allegations 
that
 the 
plaintiff
 managing
director
 of 
a
 Co‐operative
 Society
 indulged
 in malpractices
 and
 was
 having
 illicit
 intimacy
 with
 several
 ladies
 were
 held
 to
 be 
per
 se
 defamatory.


CASE ANALYSIS

Facts

The plaintiff has stated that, he is the retired Judge of the Supreme Court of India. he is the former chairman of the Press Council of India, the former president of the World Association of Press Councils. The plaintiff has an impeccable reputation amongst the world and in the legal fraternity in particular.

Defendant is a duly incorporated company in the business of news reporting and broadcasting. It belongs to well known “Times Group”. It runs a news channel by the name “Times Now”. It is a leading 24 hours English News channel having an extreme viewership in India and abroad.

In the month of June /July 2008 the infamous provident fund scam in Ghaziabad District Court started This scam became sensational as number of judges were involved, comprising higher judiciary. The public at large and the legal fraternity across the world watched the scam.

The defendant i.e. Times Now Channel started reporting all the developments relating to PF scam. On 10.9.2008, while the News relating to this scam was being telecast by the said channel, a photograph of the plaintiff was flashed as that of Justice P.K. Samantha.

The said flashing of photograph created false impression amongst all the viewers in India and abroad that plaintiff was involved in PF Scam which is per se highly defamatory.

 

Though the said channel stopped publishing the photograph of the plaintiff when the mistake was brought to their notice, no corrective or remedial steps to undo the damage caused to the reputation of the plaintiff were taken by the defendants on their own. This tortious act of the defendants has enormously and irreparably damaged the reputation of the plaintiff.

ISSUES

  • Was the telecast per se defamatory of the plaintiff?
  • Whether intention or mens rea is essential for the tort of defamation?
  • Whether the suit is maintainable?
  • Does the plaintiff prove the said telecast caused damage to the reputation of the plaintiff?
  • Whether the plaintiff is entitled to damages?

RULES

  • Article 19 Constitution of India,
  • Code of Civil Procedure, Order 41 Rules 1,
  • Code of Civil Procedure, Order 41 Rules 1(3),
  • Code of Civil Procedure, Order 41 Rules 5,
  • Code of Civil Procedure, Order 41 Rules 5(5).


ANALYSIS

A defamatory publication is actionable without proof of either intention or special damage it must be shown that a substantial tort has been committed. Plaintiff contended that the defendants have failed to exercise such care and caution. The tortious acts commissions of the defendants have caused mental anguish to the plaintiff. The acts have also damaged the reputation.

The defendant contended that they have not defamed the plaintiff in any manner, in relation to the news telecast on its channel. Showing of the photograph of the plaintiff was an unintentional and inadvertent error and the defendants at no point of time had any intention of defaming the plaintiff. The photograph of the plaintiff was only flashed only once for a short duration. It was without malice and without any intention.

Defendants have corrected the mistake by withdrawing it from all subsequent news on the channel. Therefore, the act of the defendants was quick and therefore denied carrying any defamation. The claim with regard to compensation is baseless and therefore is liable to be dismissed.


MY OPINION

In India defamation is both a civil tort where monetary compensation can be claimed and a criminal offence. The verdict of this case is also expected to encourage more number of people to file defamation case for damages. The case concerned an unintentional defamation by the publication of a photograph for a very short period of time. I think the judgment given by the court is great as this gives a message to the media that they need to act in a good manner even though they are working for the society, but the laws are same for all and if you do wrong you will be punished.

The defendant is a duly incorporated company in the business of news reporting and broadcasting. It belongs to well known “Times Group”. It runs a news channel by the name “Times Now” and while broadcasting the news it the duty of the defendant to act in a reasonable manner as they are broadcasting news which is to be seen by millions of people so they need to cross check the things which they are broadcasting and the penalty imposed by court in this case is reasonable.

 


CONCLUSION

Every man has a right to have his reputation preserved inviolate. This right of reputation is acknowledged as an inherent personal right of every person. It is a jus in rem. So if by the wrongful act is found to be committed, the person who feels it is affecting his reputation, it amounts to defamation for which he becomes entitled for damages.

A defamatory statement is a statement calculated to expose a person to hatred contempt or ridicule or to injure him in his trade, business, profession, calling or office or to cause him to be shunned or avoided in the society. In an action for defamation the plaintiff must show that the defamatory statement refers to him.

The behavior of the defendants as admitted by the defendants in their letter date-25.09.2008 the defamatory news item was telecast on 10.09.2008 and the plaintiff had written the first letter to the Defendants on 15.09.2008 which was admittedly received by the defendants on 18.09.2008.

It is further clearly admitted by the defendants that the scroll of apology was circulated only on 23.09.2008. The defendants have claimed that they took the corrective action on their own and not on any prompting of the plaintiff or because of the phone call made by Mr. Kamath. Therefore, clearly the defendants have allowed the defamatory news to remain uncorrected for a period of thirteen days i.e. from 10.9.2008 to 23.09.2008 and in any case for a period of five days after the receipt of the first letter of the plaintiff.

This clearly shows that the attitude of the defendants was extremely casual, callous and cavalier. It is clear from the sequence of correspondence between the plaintiff and the defendants that the defendants had no intention of arriving at a compromise with the plaintiff and all the defendants wanted was the plaintiff to chase the defendants.

Under the circumstances, from the evidence documents relied upon by both the parties, the plaintiff is entitled to damage for Rs.100 Crores. Plaintiff has also claimed interest @ 12% p.a. on the damages awarded. However, plaintiff has not shown as to how he is entitled for interest, more so for the interest @12% p.a. Hence, prayer of the plaintiff about the interest cannot be granted.


BIBLIOGRAPHY

Books Referred

Divan, M. (2006). Facets of media law. Lucknow: Eastern Book Co.

Sites

Legalindia.in, (2013). Media & Tort of Defamation. [online] Available at: http://www.legalindia.in/freedom-of-media/ [Accessed 10 Mar. 2015].

Inforrm’s Blog, (2011). Case Comment: Sawant v Times Global Broadcasting Limited – an extraordinary award of compensatory damages by an Indian court. [online] Available at: https://inforrm.wordpress.com/2011/11/27/case-comment-sawant-v-times-global-broadcasting-limited-an-extraordinary-and-unjustified-award-of-compensatory-damages/ [Accessed 10 Mar. 2015].

 

END NOTES

[1] Sim vs Stretch (1936) 52 TLR 669

[2] Nevill v. Fine art general ins,(1897) AC 68,p.72

[3] Under section 499 of Indian Penal Code

[4] Gulabchand vs. state of Gujarat, AIR 1970 guj 171.

[5] R vs. Adams, (1882) 22 QBD 66.

[6] Under section 499 of Indian Penal Code

[7] State of Bihar vs. lal Krishna advani

[8] Ridde vs. English illustrated magazine, (1913) 29 TLR 592.

[9] Palmer vs. boyer, (1594) Cro Eliz 342.

[10] Morris vs. Sanders universal products, (1954) 1 ALL ER 47.

[11] Toddings vs. gibbons, AIR 1949 PC 30.

[12] Cassidy vs. Daily mirror newspaper ltd. (1929) @ KB 331.

[13] Russell V. Notcutt, (1896) 12 TLR 195.

[14] Secretary of state vs. Rukminibai, AIR 1937 Nag 354.

[15] Hulton v. Jones, (1910) AC 20.

[16] (1994) AC 116.

[17] (1929) 2 KB 331

[18] Newstead v. London Express newspaper ltd. (1940) 1 KB 377.

[19] (1888)
22
QBD
66

[20] (1966)
2
MLJ
223

[21] (1870)
2
NWP
435

[22] (1906)
4
CLJ
393

[23] 
AIR
1992
MP
244

[24] AIR
2003
AP
252

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