As is quoted above, the right to protect ones reputation is an inherent right personal right of every man – a jus in rem. "A man's reputation is his property, more valuable than any other property. "1 To say the least, an injury to one's reputation is more harmful than any materialistic loss that might be suffered. While a material loss can be recompensed easily enough, this doesn't hold true for a loss of reputation. Tort law concerning defamation has had a long and twisted history.
While in most countries two forms of defamation: libel which is of the written for and slander which is oral; are recognised, the distinction between these two which developed in Common Law has been abolished in most countries. The reason given is that the distinction is absurd on all counts given modern times and circumstances. In this paper, the researcher aims to examine the long standing debate regarding the tort of defamation – "the need for the existence of a distinction between the two forms of defamation 'Libel' and 'Slander'" and conclude as to the need and justification for such a distinction.
Research Methodology AIMS AND OBJECTIVES: The primary aim of this paper is to examine the distinction between the two forms of defamation – Libel and Slander, and the position of law regarding the above in England and India. Further, a normative analysis of this distinction shall be made. SCOPE AND LIMITATIONS: The scope of the project extends to examining the positions of law in England and India on the two type of defamation and the development of the same in other nations has not been examined. METHOD OF WRITING:
A descriptive and analytical style of writing has been employed. CHAPTERISATION: The paper is divided into 3 major chapters: The first chapter traces the history of the law of defamation and its current position in Common Law. The second chapter examines the position of the law of defamation in India. The third chapter is a comparison between the position of law in the two countries and a normative analysis of the existence of a distinction between libel and slander. RESEARCH QUESTIONS: The researcher has answered the following questions in the course of this project:
1. What is the position of law as regards libel and slander in England? 2. What is the position of law as regards the same in India? 3. Should the distinction between libel and slander exist? SOURCES OF DATA: Secondary sources of data such as articles, books, reports have been used. MODE OF CITATION: A uniform mode of citation has been followed throughout the project. Chapter 1 From Slander to Libel and the English Law How did the distinction between libel and slander evolve and subsequently what is the current position of law as regards the same in England?
"Defamation is the publication of a statement which reflects on a person's reputation and tends to lower him in the estimation of the right thinking members of society generally or tends to make them shun or avoid him. "2 Before the sixteenth century the jurisdiction over libel and slander extended to the manorial courts and the ecclesiastical courts. 3 During this period the King's court exercised no authority over such cases. It was only when the manorial courts began to dissolve that the King's Court extended it's jurisdiction over cases of defamation.
4 The early common law developed many technical rules to demarcate the jurisdiction of the two courts. The requirement to prove a "temporal loss" for an action in the king's court developed into the concept of special damages to be present for an action for slander to be maintained. On the other hand where there was no temporal damage so to speak the clergy was still the proper forum for redress. 5 However certain exceptions were made, where the words were actionable per se.
According to March, such words which imputed a crime punishable by imprisonment; a contagious disease that led to exclusion from society; imputed unfitness to carry out one's profession or trade or misconduct in an office of profit were actionable. 6 These categories developed and came to be accepted widely over time. Insofar as the principles based on which they were enunciated, the categories are in themselves not unreasonable. However their extremely restricted and skewed interpretation and implementation; caused mainly due to a flood of frivolous claims, was what led to the wholly unsatisfactory law of defamation that developed.
The hasty steps taken to mitigate the claims did ultimate harm to the development of common law action for defamation. 7 Very fine and highly absurd distinctions, resulting from the rule to take the imputation in 'mitiori sensu'8 made by the courts rendered recovery of damages by the claimant practically impossible. For example to say, "Thou art a thief and thou hast stolen my trees," was actionable, but to say "thou art a thief for thou hast stolen my trees" was not because in the last words in the latter statement were explanatory and did not show the commission of a crime.
A study of the cases that follow make it quiet clear that the application of such fine distinctions by the judges as to the actionable quality of words made it something of a lottery whether a particular statement or words would be taken as defamatory or not. The researcher must state here however that in principle the rule of mitiori sensu was not flawed. Had it been applied to those cases where there was a genuine doubt as to the meaning of the words no trouble would have occurred, but the judges of the time applied it indiscriminately to every case and created an absolute mess of the law.
At this time there was practically no difference between written and oral defamation. The law of slander was applicable even to written defamation. 10 This distinction developed in the Court of the Star Chamber where criminal cases were tried. Libel, then was defined to include writing, such as "an epigram, rhime or other writing… composed or published to the scandal or contumely of another or pictures or signs which could be libellous though containing no written words. "11 And it was probably this dichotomy of the criminal law that spilled over to the civil law after the Star Chamber was abolished.
12 The civil courts decided to maintain status quo and treat written defamation as actionable per se. 13 The earliest decision in this aspect was that of King v. Lake. 14 Hale C. B. for the first time used the libel – slander distinction in a civil case and held that, "Although such general words spoken once, without writing or publishing them would not be actionable; yet they being writ and published, which contains more malice, than if they had but been once spoken, they are actionable.
"15 The next case to base its decision on the distinction was Austin v.Culpepper. 16 In the next seventy five years two cases followed which largely embedded the distinction between libel and slander. These were Harman v. Delany17 and Villers v. Monsley. 18 However it is interesting to note that one of the Judges in Villers, believed that the distinction between libel and slander was very fine. 19 This thought finds a repetition in the case of Kaye v. Bailey tried in the Court of the Exchequer Chamber where a dissent was expressed against the distinction. 20 However, in Thorley v.
Kerry21 which followed three years later, the distinction between libel and slander was so firmly embedded in English law that there has been no changing it. A bizarre fact of this decision is that Sir Mansfield, when deciding for the plaintiff honoured a doctrine in which he did not believe and ended up precluding anyone else from making modifications in the future. 22 In contemporary England the law still remains as before. Libel is actionable per se23 and is a criminal wrong as well as a civil wrong. On the other hand slander is actionable on proof of special damages and is only treated as a civil wrong.
The special damage must not be too remote but a legal and natural consequence of the words spoken. 24 The common law also provides for four exceptions where slander is actionable per se. These are; (1) the imputation is of a criminal offence punishable with imprisonment, (2) the imputation of a disease that will lead to exclusion from society, (3) imputation of uncastity to a female which was made actionable per se by the Slander of Women Act 1891 and (4) imputation of unfitness or incompetence in any office, profession, calling, trade or business.
It may be noted that the distinction between libel and slander is heavily criticised and its abolishment was advocated as early as 1843 by the Select Committee of the House of Lords. This was followed up by a similar recommendation by the Faulks Committee report in 1975. 26 But the distinction still persists. As opposed to this certain jurisdictions have done away with the distinction on all counts, India, a common law country and also a colony of Britain being one such country. The following chapter will go on to examine the position of law as regards the libel – slander distinction in India.