By Eshanya Mishra
Section 499 of the IPC deals with the Defamation where in it is stated that —”Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person”.
The following section further includes certain explanations with illustrations to clearly define the offence.The following case at hand touches upon one the forms of defamation that is written defamation- Libel and specifically to the discussion of one of the defences available to the defendant ie - Qualified privilege. The court finally explicitly laid down grounds when the defence can be availed.
Keywords: defamation;imputation;libel;slander;qualified privilege
Coram: Justice D.G. Palekar and Justice V.D Tulzapurkar
Citation: AIR 1970 Bom. 424
Case No. : Appeal No. 20 of 1965 and Suit No. 319 of 1960
Court: High Court of Bombay
Parties:
1- KMD Thackersey (Plaintiff / Respondent)
2- Rustom K Karanjia (Defendant No.1 / Appellant)
Subject: Defamation- Libel- Tort Law
Rules/ Acts Applicable:
1-The Indian Penal Code, 1860 (IPC)- Section 499,Section 500, Section 501, Section 502
2- The Civil Procedure Code- Rules 4 and 33 of Order 41
3- Law of Torts
Background-
The appeal was filed by the defendants1 (Rustom K Karanjia,Editor of the “Blitz”) and 2( Private Limited Company owner of the newspaper “Blitz”) arising out of a libel suit filed by the plaintiff-respondent No. 1(KMD Thackerey), on the original side of the Bombay High Court in respect of an article published in the English Weekly “Blitz” in its issue of 24th September, 1960.
The plaintiff was a prominent businessman and industrialist of Bombay. At the time of the suit he was a partner in a firm which had been carrying on the business of Managing Agents of four textile mills. He was a Director of the Bank of India and of several other well-known companies. He was also the Chairman of the Textile Control Board which had been set up by the Government during the last World War. He was also the Chairman of the Indian Cotton Mills Federation.
Defendant No.1 is the Editor of the “Blitz” and has accepted responsibility for the Article referred to above. Defendant No. 2 is a Private Limited Company which owns the newspaper. Original defendant No. 3, with whom we are no longer concerned, was the printer of the issue of the “Blitz”, but since at an early stage of the suit he tendered an apology, the plaintiff withdrew his suit against him. Defendant No. 4 was joined subsequently in the suit as a joint tort-feasor since it was, principally, upon material furnished by him and with his agreement that the article was published in “Blitz”.
Issues Raised-
1- Whether the defence of qualified privilege claimed by the defendants for which the appeal has been filed is maintainable or not?
2- Whether the claim demanded by the plaintiff against the defamatory article ,if proved, is excessive and disproportionate?
Arguments of the Appellants-
The appellant in this case are the ones who have filed an appeal against the plaintiff’s claim sought to recover Rs. 300,000/- as general damages and an injunction.
Mr. Chari on behalf of the defendants therefore, contended that plaintiff’s act of evading taxes and involvement in unfair trade practices gave the newspaper “Blitz” a privileged occasion, that is to say, an occasion giving rise to a duty on the part of the newspaper to address a communication to its readers, the citizens of India, who were interested in receiving the communication. Therefore, any defamatory matter incidental to the subject-matter of the communication was protected by law unless express malice was proved by the plaintiff.
Mr. Chari in his address assured the court that he would stick to this defence as set out in the written statement. The law with regard to “qualified privilege”, which holds good to this day, has been stated by Parke B. in Toogood v. Spyring[1] as follows:
“In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.”
Arguments of the Respondents-
Details in the article were false and malicious, and as a result of the same, the plaintiff/respondent was injured in his character, credit and reputation and in the way of his business and had been brought into public hatred, contempt and ridicule. Therefore, he alleged, he had suffered damages which he assessed at Rs. 3,00,000/-. As the Article itself showed that the defendants contemplated publishing a series of similar articles, the plaintiff further asked for a permanent injunction.
The plaintiff sought to recover Rs. 300,000/- as general damages and prayed for an injunction.
Qualified Privilege-
A privileged occasion cannot be created by a person for himself to enable him to publish a defamatory statement which he cannot sustain or justify. According to him, a man publishing, without undertaking an obligation to justify, that on his own investigation he had found a public officer to be corrupt cannot claim immunity from liability for defamation by saying that he published it on an occasion of qualified privilege. If the contrary were true, he urged, public or private life would become impossible, because a journalist claiming to investigate for himself facts about an individual in his private or public affairs would be entitled to publish grossly defamatory statements about him on the ground of public interest and claim protection under the principle of qualified privilege.
Rationale and Judgment by Hon’ble High Court of Bombay
It will be seen that although a long time had elapsed after 1947 before the article was written in suit, defendant No. 1 must have been very grievously conscious that he had been made to apologize to the plaintiff in the complaint filed before the Presidency Magistrate in 1947, most undeservedly, especially, as his impression about the plaintiff as a black-marketeer had been confirmed after 1947. He carried the worst impression of the plaintiff even before defendant No. 4 came to him with his material. As a matter of fact, the very alacrity with which defendant No. 1 decided to publish a series of articles on the plaintiff would go to show that the episode of 1947 had not been forgotten by him. His own evidence goes to show that sometime in July 1960 defendant No. 4 saw him with his material. His first interview lasted for about two hours. Most of the time was occupied in questioning defendant No. 4 and trying to understand his case. He had hardly any time to go through the voluminous documentary material that defendant No. 4 had brought.
He had asked Mr. Homi Mistry prepared a series of articles, “because his mind was made up to expose the plaintiff”. All this shows that the reason for writing this article was not mere public interest but a malicious intent.Having, therefore, given careful consideration to the article and the aspects of malice put before the court by learned counsel for the plaintiff, the court was satisfied that the whole article was conceived in express malice and, therefore, no qualified privilege can at all be claimed.
Contentions regarding damages - The amount of damages awarded by the learned trial Judge were to be reduced.The court thought that the proper damages to be awarded should be Rs. One and half lakhs. The decree will have to be modified to that extent.
Concluding Remarks -
Involved in this is the question of the subject-matter being such as there exists a duty to communicate. If the communication is to the public, this question may be whether the matter is of public interest or not. Therefore these case laws and these contentions bring to the point that there should be a primary duty on the part of the person who wants to avail this defence. Duty to communicate to the public, duty to publish for public good is extremely necessary to take defence. Simply quoting the defence without establishing the duty as in the case of the present case where the newspaper editor simply appealed before the court and couldn't establish solid reasons to prove his point that he possessed primary duty. Lack of giving evidence led the judges to pinpoint on that fact and explicitly define the boundaries of the defence.The reasoning given by the judges is absolutely agreeable because in a criminal defamation suit, intention was of prime importance. However if this would have been under Tort law then intention would not have been of prime importance. Malice existed on part of the defendant while publishing the second article because the newspaper editor had to apologize to the plaintiff for wrongful publishing of facts hence that hatred existed in him which was later seen in his second article.
This article is authored by Eshanya Mishra
[1] Toogood v. Spyring, (1834) 149 ER 1044, at p. 1049
The views represented in this article are of the Author(s). The moral rights are vested in the Author(s)
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