Consentia on Multidisciplinary Research

Dead but Not Forgotten: Proposals for Imposing Liability for Defamation of the Dead – An Indian Perspective

Part 1: Introduction

This project aims to study the article “Dead but Not Forgotten: Proposals for

Imposing Liability for Defamation of the Dead” by Lisa Brown and give an Indian perspective of the issue.

Modern civil law is characterised by its dynamic interpretation and application. But the archaic principle against liability for defamation of dead people has defied this system since centuries, without exception.

But even today, people affected by the defamation of the deceased continue to question the application of the rule, but without any success.

This negative response has resulted in countless futile attempts to change the rule, notably in the state of New York where there had been several attempts to introduce a bill in the senate to make wrongdoers liable for defamation of the dead. These attempts were vain mainly due to aggressive lobbying by the communication industry.

Due to the principle’s long standing inelasticity, very few people have seriously questioned the rationale behind it, and the issue is still casually dismissed in a couple of lines in most legal writings.

The common law principle is based on the view that the reputation of a person dies with him, and does not consider the real impact that the defamation of the dead has on the family and estate of the deceased, as well as the society. Also, it is the state’s responsibility to encourage media responsibility, a fact that outweighs the rationale behind the common law principle.

Part 2: Traditional Rationales against Liability for

Defamation of the Dead

A. Bases of Actions for Defamation of the Living

To establish a defendant’s liability for defamation, a plaintiff generally must prove four elements:

1)      There was a “publication” by the defendant of a false statement of fact

2)      the statement was clearly “of and concerning” the plaintiff,

3)      The statement impaired or destroyed the plaintiff’s standing in the community or his ability to maintain or enter into advantageous relationships with third parties.

4)      The defendant acted with a certain level of culpability

The status of the plaintiff in society has an impact on the liability, as well as the burden of proving culpability of the defamer.

The main driving force behind a defamation suit is Protection of reputation.

Courts rely on three primary rationales in rejecting causes of action for defamation of the dead:

(1) The cause of action for defamation is a personal one that does not survive death.

(2) The boundaries of such a cause of action would be difficult to ascertain.

(3) Allowing a cause of action for defamation of the dead would hamper historical research.

These reasons have led most courts to believe that cases for defamation of the dead are complicated and ungainly, and not worthy of critical study.

Legislative position of liability for defamation of the dead in India

There are no specific legislations regarding defamation in India.

Section 499 of the Indian Penal Code defines defamation as, ‘whoever, by words either spoken or intended to be read, or by signs or by visible, representations makes or publishes any imputation concerning any person intending to harm, or having reason to believe that such imputation will harm the reputation of such person, is said except in cases here in after expected, to defame that person.’ The section further elucidates on the topic of defamation of the deceased “To impute anything to a deceased person, if the imputation would harm the reputation of that person if living and is intended to be harmful to the feelings of his family or other near relatives”.

Chapter XXI, Section 501, and 502 of the IPC deals with the punishment for defamation. The provisions of these sections are as follows –

Section 501: Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Section 502: Whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to two years or with fine or with both.

Judicial decisions on liability for defamation of the dead

Courts in India do not impose liability for defamation of the dead.

One of the best comments on this issue was given by honourable Justice R Basant in the landmark case Raju vs. Chacko on 5 September, 2005 (Equivalent citations: 2005 (4) KLT 197) “A claim for compensation for defamation under the civil law may not be maintainable in respect of defamation of a deceased person on the principle that a personal right of action dies with the person. (Actio personalis moritor cum persona). But still the law makers felt that defamation of a deceased person can legitimately give rise to a criminal prosecution for the offence of defamation against a deceased person.”

The honourable court further elucidated “Any person may get triggered to commit offences and thus cause breach of the peace if a deceased member of his family or other near relative of his were defamed. Accepting this reality in life, Explanation-I has been added to Section 499 IPC to ensure that defamation of a deceased person is also culpable.”

The Honourable court further explained who has the cause of action “The offending publication should not only be defamatory to the deceased. It must also be intended to be hurtful to the feelings of his family or other near relative, it is stipulated. Every lineal descendant or every person interested in the deceased cannot complain of defamation against the deceased. Firstly, such complainant must be a member of the family of the deceased or must be a near relative of his. The words “family or other near relative” significantly are not defined in Section 499 IPC. Such expressions are not defined in the Indian Penal Code. The expressions “family” and “other relative” are expressions which can have different shades of meaning depending on the circumstances and the purpose which a statutory provision is intended to achieve. Any attempt to understand the sweep, width and amplitude of the expressions “family or other near relative” must certainly be made conscious of the purpose which Section 499 IPC and Explanation-I thereto have got to achieve.”

 In the landmark case Mrs. Pat Sharpe vs Dwijendra Nath Bose on 12 July, 1963 the Honourable court held that Even if Netaji is dead, it is defamation because the imputation would have harmed his reputation if alive and the imputation must be said to have been intended to be hurtful to the feelings of his family or other near relatives, Thus in any view of the matter the words used do amount to defamation.”

 Basant Kumar Birla & Ors vs. Prakash Jha & Ors on 11 October, 2012

. No action in defamation lies against any libel or slander against dead persons. So the cause of action is of the present members of the family, who are the plaintiffs.

Mahtab Singh vs. Hub Lal And Anr. on 13 May, 1926 A reference has been made on behalf of the appellants to Section 89 of the Probate and Administration Act which has now been replaced by Section 306 of Act 39 of 1925. This provision however only authorizes an executor or administrator to recover all demands due to a deceased parson, and to enforce all rights to prosecute or defend any suit or proceeding in favour of or against the person at the time of his decease, except causes of action for defamation, assault or other personal injury not causing the death of the party concerned, and except also cases where after the death of the party the relief sought could not be enjoyed or the granting of it would be nugatory.

Suggestions

A. Modern Remedies in Lieu of a Cause of Action for Defamation of the Dead

Since courts today are not willing to impose liability for defamation of the dead, plaintiffs bringing action for the same have the option of 2 remedies available –

(1) Damages for emotional harms suffered because of the publication.

(2) Damages for financial losses resulting from the publication.

(3) A judicial declaration that the defamatory statement is false.

The plaintiff’s odds of being successful in each of these remedies are discussed in this part.

This analysis further brings to light the need to impose liability for defamation of the dead, as these measures are inadequate in modern society.

B. Legislative Solutions for Defamation of the Dead

 The defamation of the dead is considered a very serious issue by some citizens and legislators, who still try to change the ancient rule through legislation, not deterred by the failed attempts to do the same in the past, such as in New York.

This Part debates various conceivable legislative solutions to the issue.

It further emphasises the need to balance between freedom of speech and protection of individual rights, along with the appropriate relief.

 This section further independently analyses each of the alternate relief options discussed previously in light of the duty of the state to maintain balance between individual and societal interests.

 

 

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