Jus Rerum 2020-09-23: 10 Min

MALICIOUS FALSEHOOD

Author: Suhani Gupta

Student of University of Petroleum and Energy Studies, School of Law

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INTRODUCTION AND DEFINITION 

Malicious falsehood exists to protect in opposition to statements which themselves are not defamatory but are untrue and can result in damages. It is possible to have a word which isn't defamatory, and libel or slander claim would not succeed, but the claimant still has acclaim in malicious falsehood.[1]

In other words, it is a false statement which is not defamatory because it does not harm the person's reputation. For example, if a piece of incorrect information is made that an opera singer has retired from practice then, as a consequence, the sale of his or her tickets would go down and cause financial loss. In this example, it is not defamatory; however, there is some damage to the person, but it does not suggest anything terrible about the singer.

The claimant needs to prove the statement untrue and published maliciously to get the claim for malicious falsehood, or the claimant needs to demonstrate that the defendant intended to publish the information complained of and did so with improper motive or malice. Malice is defined as the statement made by one person who knows that the statement is false.   

The authorities established that under the tort of malicious falsehood, the claimant bears the burden of proving the falsity of the statement.[2]

The person claiming has to prove that he has suffered the damage or loss to be able to bring an action for malicious falsehood as they accepted. It is not necessary to prove actual damage if the words in dispute are calculated to cause financial damage to the claimant and are published in permanent form or writing and also in respect to his or his professional calling, office, trade or business. The limitation period for malicious falsehood is one year. If the person makes a statement published correctly and realizes later that there was some error in the statement, then it will somehow decrease the prospects of a successful claim by the claimant to be able to show malice.[3]

LIBEL AND SLANDER

Slander is a false and defamatory statement by spoken words or gestures tending to injure the reputation of another. Slander is a civil wrong only. Where any document containing defamatory statements is published and read out to a third person, or where the publication of a defamatory statement specifies to whom it is dictated, the communication, in either case, amounts to slander and not to libel.

SLANDER COMPONENTS:

Slander and slander

Per se are the two kinds of slander. In the case of slander, the plaintiff needs to prove that the defendant had made a defamatory statement which at least one person knows and that the plaintiff suffered special damages due to defamation. These special damages cause actual harm, like financial loss or loss to the customer, etc. Whereas in slander per se, the plaintiff does not require to prove special damages because it involves those defamatory statements that are presumed to damage the reputation of the plaintiff.

LIBEL:

A libel is an infringement of a right, and there is no need to prove special damage to sustain an action. In common law countries, slander is actionable only when the special damage can be proved. It is in the permanent form: in writing or painting and the action may be maintained for defamatory words reduced into writing, which would have been actionable if merely spoken.[4]

Elements of libel:

The statement falls into the category where the plaintiff only needs to prove three essential elements:

  1. The defendant published a defamatory statement about the plaintiff in written or permanent form. 

  2. It must refer to the plaintiff.

  3. Other people were exposed to the statement.

DISTINCTION BETWEEN LIBEL AND SLANDER:

  1. In libel, the defamatory matter is in the permanent form: in writing. For example, a statute, caricature, signs on the wall, etc.  Slander is, in its nature, transient and is in the form of gestures or spoken words.

  2. In civil law country, libel is actionable per se and slander is not actionable per se in civil matters. Whereas in criminal cases, libel is an offence and slander is not an offence.

  3. A libel leads to breach of peace, but slander does not. This distinction is recognized in English law and is severely criticized by the frames of the Indian Penal Code.[5]

  4. To constitute slander, there should be slander occurring in the heat of the moment or a sudden provocation; the reduction of the charge into writing and its subsequent publication in permanent form show greater deliberation and raise a suggestion of malice.[6]

LIBEL, SLANDER AND DEFAMATION:

It might seem challenging to publish a statement which would cause serious harm or would cause damage to one's reputation or would be considered maliciously false.

  1. In libel, a person has to prove allegations which are published by the defendant, refer to him or her, causing harm. The burden of proving lies is on the defendant.

  2. Malicious falsehood can be proven by the person if there is an improper motive. Suppose one is gaining by what the others say then one needs to be careful while whatever he says is true.

Hence, slander and libel are a type of defamatory statement. In contrast, malicious falsehood is a broad category which can give rise to a civil lawsuit for either slander or libel. In other words, malicious falsehood is a false statement that can give rise to a defamatory statement.

DEFENCES AND REMEDIES

As in the case of Thornton v Telegraph Media Group[7], The plaintiff claimed against the telegraph media group that there was a book written by the author, Dr Thornton, called "seven days in the art world". Lynn Barber wrote a review of it in "daily telegraph" which had some false statements in it, which led to the loss of the plaintiff. Dr Thornton sued the defendant.

The court held that there is no defamation or not severe enough to qualify as defamatory. However, the author took the claim of malicious falsehood. As a result, the defendant relied upon the defense of "honest comment". But this defense was rejected by the court, and it was held that in malicious falsehood "truth" or "honest comment" cannot be a defense.

However, the researchers strongly believe that 'truth" should be a defense under the law of malicious falsehood as the law itself says that the innocent should not be prosecuted for the wrong that a person has done. 

As according to the Defamation Act of 1996, the limitation period (amount starting from the date of publication, in which to make a claim) for malicious falsehood is one year. As earlier, the claimant could get legal aid for malicious falsehood cases, but later, according to the Justice Act of 1999, no legal assistance will be provided.

CONCLUSION

In my view, the tort of malicious falsehood has not been developed at a greater extent as compared to defamation. The recognition given to it is still less as no legal aid I provided in the cases of malicious falsehood.

The researcher through this article explores that the vital ingredient for malicious falsehood is malice, and they also get to know the different meanings of this concept. Statutory provisions like libel and slander primarily overshadow this tort s of limited use and the free speech has been considered as vital issue ort and confinement of its application is also little. The relationship of this tort to the unlawful means tort and torts of defamation and passing off analyzed. The essentials of malicious falsehood are that there should be a false statement made by the defendant that leads to some loss to the plaintiff. However, the degree of this loss is minimal and hence getting legal aid is also very difficult.


End Notes

[1] Malicious falsehood: Carruthers Law

[2] DHKW Marketing and another v Nature’s Farm Pte Ltd [1998] 3 SLR(R) 774

[3] Osborn v Thomas Boulter & Sons (1930) 2 KB 226

[4] Thorley v Earl of Kerry, (1809) 3 Camp. 214 n.

[5] Ratanlal and Dhirajlal, Law of Crimes, 23rd edition, section 499

[6] Clement v Chivis (1829) 9 B & C 172

[7] Thornton v Telegraph Media Group (No. 3) [2011] EWHC 159 (QB)


Bibliography

1.     E-Journals

a. Defamation & Malicious Falsehood by Lewis Silkin © 2016 Lewis Silkin LLP, readable at file:///C:/Users/User/Downloads/Defamation%20%20Malicious%20Falsehood%202016.pdf

b.   Comparative Advertising and the Tort of Generic Disparagement, Journal of Intellectual Property Law & Practice, Vol. 2, p. 291, 2010,  24 Oct 2010 Last revised: 26 Oct 2010 readable at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1697043

c. DEFAMATION LAWS AND JUDICIAL INTERVENTION: A CRITICAL STUDY, ILI Law Review, Summer Issue 2016 readable at http://ili.ac.in/pdf/paper10.pdf

2.     E-Books

a.      Law of Defamation & Malicious Prosecution (Civil and Criminal) 60th Year of Publication

3.     Case Laws:

a.      Thornton v Telegraph Media Group (No. 3) [2011] EWHC 159 (QB)

b.      Tesla v BBC case ([2012] EWHC 310 (QB))

c.      Clement v Chivis (1829) 9 B & C 172

d.     Osborn v Thomas Boulter & Sons (1930) 2 KB 226

e.      Thorley v Earl of Kerry, (1809) 3 Camp. 214 n.

f.    DHKW Marketing and another v Nature’s Farm Pte Ltd [1998] 3 SLR(R) 774


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