E. HULTON AND CO. v. JONES AND DEFAMATION ACT, 1952

INTRODUCTION

The case of E. Hulton and Co. v. Jones was a suit of Defamation filed in the courts of Britain. The judgement in the case led to widespread criticism of the rule of English law wherein, the intention of the defendant to cause defamation was considered irrelevant if the defamatory character of the statement in question was established. Subsequently, the British Government formed a committee to look into the validity of intent in cases of Defamation under English Law. The report of the committee ultimately led to the creation of the Defamation Act of 1952 which altered the law so as to allow a defence for innocent publication of defamatory content.

Facts

In this case, the defendants published a fictional article in a newspaper by the name of ‘Sunday Chronicle’ of which they were the proprietors, printers and publishers.[1] The article was written by a French Correspondent and described the scenes from a motor festival organised in Dieppe. It talked about a fictional character by the name of ‘Artemus Jones’, who was stated to be a churchwarden at Pekham and cast some aspersions on his moral character.[2] On the basis of the defamatory material in the aforementioned article, one Artemus Jones, who was a barrister, filed a suit against the defendants claiming that the article published by them, referred to him. He claimed damages from the defendants for the loss of repute he suffered because of their publication. The defendants pleaded innocence before the court and asserted that ‘Artemus Jones’ was supposed to be a fictional character and that the name was made up. They also stated that they were not aware that a man by that name existed and therefore, they had no intention to cause defamation to the plaintiff.

Issue

In this matter, the court had to decide whether the intention to defame was necessary to hold a person guilty or if a plea of innocence in the matter was enough for the plaintiffs to avoid liability.

Judgement

Notwithstanding the arguments put forth by the defendants, the court held them liable. When the matter was taken up by the Court of Appeals, the Court upheld the judgement and ordered the defendants to pay damages. Lord Alverstone, C.J. stated in his judgement that if libel speaks of a person without mentioning his name, the plaintiff must prove that the statement is understood by members of the society as referring to him. In his opinion, if the plaintiff was able to prove that a substantial number of persons, who knew him, regarded the statement as referring to the plaintiff, then a suit for defamation was maintainable and the intent of the defendant while publishing the defamatory statement was immaterial to the case.[3]

In the same case, Fletcher Moulton L.J. took an entirely different view. According to him, it was a standard practice of law that a person cannot be held liable for any defamatory statement made by him if it doesn’t concern the plaintiff. He, therefore, contended that in the present case, the defendant did not make any imputation specific to the plaintiff and that holding the defendant liable in such a scenario would be unfair. He asserted that if the court started holding people liable for every application of their words that bear in the minds of different persons, who possess knowledge that the defendant himself doesn’t, then it will be too huge a burden to be borne by the accused.2

When the case went up to the House of Lords, Loreburn L.C. stated that a person charged with libel cannot defend himself by stating that he tried his best not to defame or did not intend to defame the plaintiff.[4] He reasoned that the publication of the defamatory statement nonetheless, caused injury to the reputation of the plaintiff and that such injury is irrevocable. Thus, it remains irrelevant whether the plaintiff made the defamatory statement in good faith or innocently.

Similarly, in the case of Newstead v. London Express Newspapers Ltd.,[5] the defendants published news of a person who was convicted of bigamy. The article referred to the convict as “Harold Newstead, a Camberwell man”. The article was genuine and the information held true for Harold Newstead, a Camberwell Barman. But an action for defamation was brought by another Harold Newstead who was a barber in Camberwell. As the words were considered to be defamatory, the defendants were held liable despite the fact that they did not refer to the plaintiff.

In the aforementioned cases, it was established that in cases of defamation, the intent of the defendant to defame the plaintiff is irrelevant while ascertaining his liability. The only fact relevant is whether the statement is defamatory towards the plaintiff or not. This resulted in a lot of hardship for many innocent publishers, writers and editors as there was no way that they could avoid liability in cases wherein defamation was caused due to reasons which were not known to them. This hardship can easily be observed if we look at the aforementioned cases of E. Hulton v. Jones and Newstead v. London Newspapers Ltd. where the defendants were held liable for defamation despite the fact that their articles didn’t refer to the plaintiffs. The criticism meted out to these cases led to the constitution of the Porter Committee which was tasked to review the Law of Defamation and to recommend the changes required if any.

Porter Committee

The committee was appointed in 1939 and was named after its chairman, Lord Porter. The committee submitted its report in 1948 with recommendations covering 15 different topics related to the substantive law of defamation and matters of practice and procedure.[6] The topic of Unintentional Defamation was also discussed in the report. As a consequence of the report, the Defamation Act of 1952 was passed. The act sought to eliminate the hardships that had been created for innocent persons. Section 4 of the bill laid down the procedure following which, an innocent person could escape liability.

Defamation Act, 1952

One of the most important recommendations of the committee was to eliminate the injustice caused by punishing people who had caused defamation unintentionally. While formulating the procedure to deal with the issue of unintentional defamation, the committee tried to create a balance between the protection of the person innocently defamed and the innocent publishers. Under Section 4 of the act, the publisher can avoid liability against the statement alleged to be defamatory, by making an offer of amends.[7] The offer of amends should be made as soon as the publisher becomes aware of the defamatory character of his statement. The publisher must also issue suitable corrections and render a sufficient apology to the aggrieved party. The offer of amends must be accompanied by an affidavit stating the facts on which the publisher relied while framing the contentious statement. 

If the offer is accepted by the aggrieved party and is executed properly, no action for defamation may be instituted against the publisher with respect to the publication in question. If however, the offer is not accepted, the aggrieved party is free to bring a suit against the publishers. To avoid liability in such a scenario, the defendant will have to prove that the contentious statement was made innocently and that an offer of amends was made as soon as he became aware that his words had resulted in injury to the reputation of the plaintiff. An offer of amends made by the publisher thus acts as a defence. No evidence other than the affidavit prepared by the defendant, as part of the offer of amends, shall be admissible to prove that the words were published with bona-fide intent.

The procedure laid down under Section 4 of the Defamation Act, 1952 can only be employed as a defence in cases where the defamatory words were published innocently. The section also defines the basic requirements for a statement to be considered ‘innocent’. The plaintiff needs to prove: (i) that his words were not meant for the person concerned and that he wasn’t aware of the circumstances that led to the statement being understood as referring to the plaintiff; or (ii) that his words were not prima-facie defamatory and the publisher wasn’t aware of the circumstances by virtue of which the statement gained defamatory character. In either case, the publisher is required to exercise reasonable care towards his publication.

Conclusion

With the passage of the Defamation Act of 1952, the controversial position of law on the relevance of intention while deciding cases of defamation was cleared. This effectively removed the unbearable burden that was earlier placed on authors, publishers and editors and protected them from actions that could have been instituted against them, had the earlier rule of law prevailed.

Author(s) Name: Garv Sood (University Institute of Legal Studies, Chandigarh)

References:

[1] Jeremiah Smith, ‘Jones v. Hulton: Three Conflicting Judicial Views as to a Question of Defamation’ (1912) University of Pennsylvania Law Review and American Law Register Vol. 60, No. 6 Pg. 373

[2] Dr. R.K. Bangia, Law of Torts (Allahabad Law Agency 2021) 156

[3] T.V. Ramasubha Iyer v, A.M.A Mohindeen A.I.R. 1972 Mad. 398 : (1972) 1 M.L.J. 508

[4] Dr. R.K. Bangia, Law of Torts (Allahabad Law Agency 2021) 157

[5] Newstead v. London Express Newpapers Ltd. (1939) 4 All E.R. 391 : (1940) 1 K.B. 377

[6] E. Hall Williams, ‘Committee on the Law of Defamation: The Porter Report’ (1949) The Modern Law Review Vol. 12, No. 2 Pg. 217,223

[7] Defamation Act, 1952

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