INTRODUCTION:
Tortious liability is the legal responsibility that arises when someone fails to fulfil a duty required by the law, which is owed to others in general. This duty ensures that people do not harm one another through actions or omissions. This comprehensive exploration delves into the complex dimensions of tortious liability concerning intangible harms – privacy, reputation, and mental distress.
TORTIOUS LIABILITY:
Winfield’s definition of tort was as follows:
“Tortious Liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.” [1]
Here, ‘the breach is redressable by an action for unliquidated damages’ refers to the fact that when someone violates a duty, which one owes to others, then the injured person has the right to take legal action and ask for compensation which may be in the form of liquidated or unliquidated damages. A claim is said to be liquidated when it is specific, predetermined and readily calculable. Unliquidated damages refer to damages that are not predetermined or easily calculated, the court determines it based on the extent of the harm suffered.
TORTIOUS LIABILITY IN CASE OF PRIVACY:
Tortious Liability in the case of privacy refers to the legal responsibility or obligation that a person or entity may incur for committing a wrongful act that may violate an individual’s right to privacy.
With the increase in technological innovation, massive data breaches affecting various entities have exposed considerable private information. In some cases, social websites have inadvertently shared their subscribers’ data with third parties, contrary to the intended restricted access.[2]
This issue also came into discussion recently in the Cambridge Analytica scandal, occurring in 2018, which involved the British firm Cambridge Analytica and Facebook. It exposed how the firm acquired personal data from millions of Facebook users without proper consent through a third-party app. Cambridge Analytica used this data to create psychological profiles and allegedly influenced political campaigns, including the 2016 U.S. presidential election. The incident highlighted data privacy concerns, user consent, and the misuse of personal information, which are relevant to the torts of privacy. It led to discussions about the need for better protection of individuals’ right to privacy and the responsibility of companies in handling sensitive data, emphasising the significance of safeguarding personal information in the digital era.[3]
Compensatory damages for misuse of private information aim to acknowledge the defendant’s wrongdoing and provide compensation for the loss of control over private information, along with the emotional distress and harm caused. When assessing these damages, judges should consider similar awards in personal injury cases. For instance, in the case of Mosley v News Group Newspapers, an award of £60,000 was given, which was once considered close to the maximum. However, in Gulati v MGN Ltd, awards ranging from £72,500 to £260,250 were granted for extensive and severe phone hacking.[4]
In India, The Right to Privacy is also a fundamental right included within the right to life and personal liberty under Article 21 of the Indian Constitution. It was held after the landmark judgment of Justice K.S. Puttaswamy (Retd.) v. Union of India. [5]
TORTIOUS LIABILITY IN CASE OF REPUTATION:
Every individual has an inherent and fundamental right to protect their reputation. Reputation is considered a valuable personal asset, even more valuable than tangible property. 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 society for maintaining a suit for defamation, the plaintiff must have suffered some injury to his reputation.[6]
Defamation may either be committed by way of writing, or by way of speech. The written defamation is known as libel i.e., publication of false and defamatory statements in permanent form to harm the reputation of another person without any lawful justification. The defamation by way of speech is referred to as slander, it is a defamatory verbal statement which is put out to injure the reputation of another person. The difference between libel and slander matters less now because of the 2013 Defamation Act.[7]
The tortious liability in defamation is caused when there is unjustified criticism of the claimant to another, which makes society think less of the claimant. It’s the claimant’s reputation and not injured feelings that the torts aim to protect.
The plaintiff in case of defamation can claim monetary compensation from the defendant. To illustrate, in the case of D.P. Choudhary v/s. Manjulatha,[8] a local newspaper, Dainik Navjyothi, published a false news item claiming that the plaintiff, a 17-year-old college girl, eloped with a boy after lying about attending lectures. This misleading publication negatively affected her reputation and adversely affected her chances of getting married. The court deemed it as actionable per se, and as a result, she was granted Rs. 10,000/- as damage.
TORTIOUS LIABILITY IN CASE OF MENTAL DISTRESS:
The concept of the tort of mental distress, also known as emotional distress or psychological harm, is indeed distinct from the traditional concept of trespass to the body, which primarily deals with physical harm. Trespass to the body includes torts like assault, battery, and false imprisonment, which all focus on direct physical interference or harm to a person’s body. These traditional torts are concerned with the physical aspect and danger posed to the physical well-being of an individual. However, the tort of mental distress recognizes the importance of a person’s mental and emotional well-being and provides a legal avenue for seeking compensation when a person suffers severe emotional harm due to the actions of another person or entity. [9]
This infliction may be subjective, and to find the same, the court examines the defendant’s intention by looking for signs of wrongdoing or malice and whether there was a mens rea (guilt minds) that shows harmful intent. Sometimes, the defendant’s actions are so extreme that they alone demonstrate malicious intent. The courts decide if the intention can be recognised from the conduct or if the defendant knew the consequences of their actions. This means the defendant, when doing such acts, should have known that they could cause mental and emotional pain to the plaintiff. This legal claim allows a person who has suffered severe emotional distress due to the intentional or reckless actions of another to seek compensation for the harm caused. The primary purpose of this tort is to ensure that a person’s mental and emotional well-being has legal importance.
CONCLUSION:
In conclusion, tortious liability encompasses various aspects, each critical component of our legal framework. Winfield’s definition of tortious liability provides a foundational understanding, emphasizing that it arises from the breach of duty towards others and is redressable through actions for damages. The discussion of privacy as a tortious liability highlights the evolving challenges in the digital age, where personal data breaches and privacy concerns have become prevalent. The need for legal safeguards emphasizes the importance of preserving individuals’ rights despite technological advancements. Furthermore, exploring defamation as a component of tortious liability highlights the significance of one’s reputation and the legal remedies available to protect it. Defamation, whether through libel or slander, can cause harm to a person’s reputation. Lastly, recognizing mental distress as a distinct tort acknowledges the importance of emotional well-being in our legal system. It allows individuals to seek compensation when they suffer severe emotional harm.
Author(s) Name: Sanah Dhawan (Symbiosis Law School, NOIDA)
References:
[1] Goudkamp J, ‘Introduction’, WINFIELD ANDJOLOWICZ ON TORT (twentieth, Thomson Reuters 2020)
[2] Kenneth S. Abraham & G. Edward White, ‘Torts without Names, New Torts, and the Future of Liability for Intangible Harm’ (2019) 68 Am U L Rev 2089
[3] Sun S [2020] Cambridge Analytica: A Property-Based Solution <cognitio-zeitschrift.ch/2020-1/Sun> accessed 19 October 2023
[4] Goudkamp J, ‘Defamation, privacy and related matters’,13-148, WINFIELD ANDJOLOWICZ ON TORT (twentieth, Thomson Reuters 2020)
[5] Justice K. S. Puttaswamy (Retired) and another v Union of India and others, 2018 Indlaw SC 898
[6] Singh A and Kaur H, Introduction to the Law of Torts and Consumer Protection (third, LexisNexis 2013)
[7] Goudkamp J, ‘Defamation, privacy and related matters’, WINFIELD ANDJOLOWICZ ON TORT (twentieth, Thomson Reuters 2020)
[8] D.P. Choudhary and Ors. vs. Kumari Manjulata, Rajasthan High Court, 4 April 1997, 0038 (India)
[9]Nimavat R, ‘ A Comparative Analysis of the Tort of IIED’ (2021) 4 International Journal of Law Management & Humanities 1537
