FACTS OF THE CASE
In this case, the first appellant is the writer and the second appellant is the owner of the daily newspaper ‘The Dinamalar’. They publish news in their daily newspaper on 18 February 1961 that a person from Tirunelveli Dt. Who was exporting scented agarbathis to Ceylon also known as the king of agarbathis has smuggled opium in the form of agarbathis. On getting information the Madras police along with Ceylon police check the parcels and found opium concealed in them.
Police frequently arrested him and he had been bought to Madras. The respondent herein is the partner of the firm known as Ameer and Sons carrying the same business of exporting scented agarbathis to Ceylon, filed a case against the appellant for defamation, and instituted the suit for damages of Rs.5000. He alleged that publication of false statement was understood as being referred to him and Thus, affected his reputation. On the other hand, appellants pleaded that matter published by them was not defamatory as they were not even aware of the existence of the respondent and did not intend to defame him. Moreover, as they came to know of the respondent’s existence they made an apology by publishing a correcting statement on 14-5-1961 stating that the news item did not refer to the respondent. So they pleaded that they should not be made liable.
- Whether appellant was held liable for a defamatory statement published without an intention to defame the respondent? Whether Intention or element of malice will be considered in this case?
- Whether the apology tendered by the appellant reduce the effect of the defamatory statement published earlier?
- How can an innocent party avoid liability if the aggrieved party file the suit even after the apology is tendered?
- Whether we continue to follow ratio decidendi in the case of Hulton and company v. Jones?
IMPORTANT CASE REFERRED
In this case, the defendant published a fictional article in their newspaper ‘Sunday Chronicle’ with the purpose to describe a motor festival at Dieppe. In this, the offending article was published in the name of fictional individual Artemus Jones who was a Churchwarden at Pekham and present in the festival. Seeing the article one Artemus Jones, who was a barrister, filed a suit against the defendants complaining the article referred to him. The defendant pleaded that ‘Artemus Jones’ was an imaginary name created for the purpose of the article and they don’t know about the existence of the plaintiff and have no intention to defame him. Not agreeing with the arguments, Court held the defendant liable. In this case, the House of Lords held that “acting in good faith and without any intention to defame the plaintiff is no defence.” The intention of the writer is immaterial in deciding whether the matter written is defamatory or not.
- One of the most important arguments put forward was that they were not aware of the respondent and did not intend to publish the news item as also accepted by one of the witnesses of the respondent that they also don’t know the appellants. Consequently, there was no malice present also an element of malice was immaterial here.
- Moreover, as soon as they came to know about the respondent’s existence they made an apology by publishing a correct statement.
- Vanamamalai argued that the decision in Hulton v. Jones can’t be applied to Indian conditions. He, therefore, referred to Nagantha Shastri v. Subramania.
- He argued that section 4 of the defamation act 1952 should be applied to the present case.
- At last, he said that appellants were innocent and should not have been made liable for damages at all.
- Respondent lawyers allege that statement published referred to them and led to their defamation.
- Respondent also produce 5 witnesses on his behalf to show that people who knew him understood as news referred to him.
- There are high chances that people may not read the Apology as in the case of 1st witness.
- At last, they claimed damages for the harm of his reputation.
JUDGEMENT OF THE COURT
The lower court after concluding the arguments of both the parties held the appellant to pay damages, relying on the decision of House of Lords in E. Hulton and Co. v. Jones, 1910 AC 20 concluded that intention was not the test of liability so the respondent has been defamed. Moreover, the learned subordinate judge was of the opinion that the respondent has proved that the news item referred to him by producing 5 witnesses. Respondent was awarded damages of Rupees 10 as he said that he was only concerned with a reputation, not with the money. Unsatisfied with the decision of the lower court, the appellant filed an appeal under the learned district judge which was dismissed on 30-3-1967. The learned district judge after referring to the matter and evidence concurred with the decision of the lower court. Later the case was filed in Madras high court and the following principle was used.
The principle used here is one of the essential of defamation i.e. ‘The statement must refer to the plaintiff’. According to this intention does not matter, if the word is understood as referring to the plaintiff and harming his reputation. The same principle was used by the house of lords in 1910 AC 20. This created a lot of hardships for many innocent writers and publishers as we can notice in many cases where innocent was made to pay compensation. The criticism and dissatisfaction from these cases led to the formation of Porter’s committee to consider the law of defamation and to suggest modifications. On the reports of this committee DEFAMATION ACT, 1952 was passed to remove hardship where Section 4 of this act provides a procedure through which innocent person can avoid this liability.
He can avoid liability by:
- rendering a suitable apology to the party aggrieved
- Making an offer of amends accompanied by an affidavit
If the aggrieved party does not accept the offer and file, the suit against an innocent party they can use section 4 of the defamation act as a strong defence. This defence must be available only when the publisher was innocent and did not intend to publish a defamatory statement referring to the plaintiff. Therefore, the Madras high court after concluding the interpretation of various jurists and by referring to the decision of English authorities in E. Hulton and Co. v. Jones, held that ‘Law of Torts as enforced under the common law of England applicable to this country only based on justice, equity and good conscience. There is no statuary law compelling the courts of this country to apply English principles.’ In this case, ratio decidendi evolved in E. Hulton’s case was not found suitable to Indian society. So, this principle was altered and now by applying section 4 of the defamation act it was held that appellants were not held liable.
ANALYSIS AND CONCLUSION
We all know the law is formed to provide justice to innocent people but if justice is not delivered in the right sense then the purpose of law will become self-defeating. In this case decision of the lower court in making an innocent person liable by following provisions of English law was not up to mark. But as the cases came on, we realized that the rule laid in Hulton v. Jones & Co. was against justice morals, and a good conscience and not suitable to Indian society. So, the Indian judiciary takes a drastic move and form Porter’s committee to recommend changes. In its report, we introduce section 4 of the defamation act in India preventing innocent writers from liability. It is to be noted that we also have Section 6 of the Central Provinces Act, 1875 states that courts will follow English law as long it is found suitable to our country. Thus, the Madras court apply a modified rule and held the appellant not liable. At last, the principle was perfectly followed and judgment was delivered. All this shows that the Indian judiciary has become independent and is capable enough to frame laws as required and is assuring justice to the innocent.
Author(s) Name: Khushi Jain (BVP New Law College, Pune)