From the words of Alexander Pope, “The flying rumors gather’d as they roll’d, Scarce any tale was sooner heard than told; And all who told it added something new, And all who heard it made enlargements too; In ev’ry ear it spread, on ev’ry tongue it grew” (The Temple of Fame).
The roots for tort of defamation trace back to an era when harmful speech predominantly found expression in books, magazines, newspapers, and other printed materials.[1] Core doctrines preceding the establishment of this tort, including concepts like publication, fault, defamation per se, presumed damages, and republication liability, were grounded in the assumption that the primary medium for the dissemination of defamatory content would be through written forms in published works.
Similarly, the substantial legal limitations on defamation liability, influenced by a sequence of constitutional precedents from the Supreme Court, which included restrictions on prior restraint, elevated standards for fault, expanded criteria for defining “public” figures, the delineation between “fact” and “opinion,” and the burden-shifting principle concerning the establishment of “truth” or “substantial truth,” were all developed within a context predominantly dealing with defamatory statements presented in traditional printed formats. While someone intentionally spreading false rumors is clearly liable, what about an individual conveying defamatory information sincerely, believing it to be true and relying on the source’s credibility? Additionally, clarity is needed on the impact of republication on the originator’s liability and the potential increase in damages. If the statute of limitations has expired for the original defamation, does republication by a third party create a new legal action against the originator?
In the age of the internet, the rapid dissemination of content poses challenges to traditional defamation laws, which were originally crafted in a world where the sharing of information was not as instantaneous. Under common law, liability for republication is strict, meaning anyone repeating defamatory content can be held responsible, regardless of their role as the originator or transmitter. This creates a dilemma, especially in cases where the original defamatory words are newsworthy, involving public figures or matters of intense public interest.
In the digital era, traditional defamation laws face challenges due to the rapid sharing of content online. Unlike print publications, which carefully avoid defamation, the instant nature of social media and online publishing can lead to the spread of defamatory content. The pressure to generate web traffic often results in hasty publication without thorough verification, even by reputable sources.
Today, traditional news outlets extend beyond print to websites, blogs, Twitter feeds, and other social media platforms. This push for rapid publication, driven by the accelerated pace of the internet, sometimes compels even respected publications to bypass thorough fact-checking, raising concerns about the unchecked spread of potentially defamatory information in the digital realm. The “tale bearer” is as liable as the “tale maker.”[4] The published a report based on Assembly proceedings, including the complainant’s involvement, was accurate and based on a government inquiry. If the accused published it in good faith believing it to be true, focusing on the conduct of public servants and public funds, it does not constitute intent to defame the complainant.[5]
According to the sociological school of jurisprudence, laws should prioritize societal benefit. Therefore, republication of factual statements, regardless of their nature, serves to inform the public and should not be considered an offense. This aligns with John Rawls’ concept of justice, where actions already accepted by society should not be penalized, as the primary responsibility lies with the initial instigator, “The basic structure is a public system of rules defining a scheme of activities that leads men to act together so as to produce a greater sum of benefits and assign to each certain recognized claim, to a share in the proceeds.” Reprinting or rebroadcasting already accepted information should not be an offense; the initial instigator bears the responsibility, ensuring equality under the law. Defamation laws aim to prevent individuals from unjustly losing public respect due to another’s words, which is ethically unjust. If a person is not offended by statements from individual A in public, they shouldn’t be offended by the same words from another person, B, whom they don’t know. Punishing B should involve holding A accountable first, as B’s basis may have been A’s statements, ensuring equality under the law. While defamatory statements are punishable, if based on factual information beneficial to society, they shouldn’t be deemed defamatory, as justice must be equitable regardless of one’s status.
The article discusses liability for republishers and originators under United States and international laws, aiming to establish clearer rules. It emphasizes foreseeability as key in determining originator responsibility for third-party republications, regardless of defamation form. It advocates for aligning legal principles with tort liability norms and considering potential damages in jurisdictions allowing only one legal action.
The responsibility of the originator for a defamatory remark extends to subsequent republications by them. However, this may not be the case if the republication is done by someone else. Cases in this context vary between two extremes. Liability is established when an agent republishes under the originator’s direction or authorization, or when others, not classified as agents but intended by the originator to republish the remarks, engage in republication. The increased likelihood of written defamation being republished underscores the ease with which repetitions are viewed as natural consequences of libel, in contrast to slander. Courts, recognizing this distinction., often exhibit reluctance in imposing liability for potential republication of slander. Nevertheless, the substantial potential damage arising from libel introduces a challenge, prompting a consideration of limitations on recovery amounts or the number of actions for republication. This deliberation gives rise to the concept of a unitary cause of action, commonly referred to as the “single publication” rule.
The liability of both the originator and republisher in defamation cases is closely linked. If the republisher is not held accountable, there’s more reason to pursue the originator. The development of defamation law, influenced by English nobility, highlights the importance of identifying the source when repeating defamatory statements. This disclosure could impact the credibility of the claims and provide a legal remedy against the originator, rather than solely targeting the republisher.
In the development of defamation law influenced by English nobility, the Earl of Northampton’s case introduced the doctrine of multiple publication, emphasizing the importance of disclosing the source of defamatory statements.The Earl of Northampton’s Case rule, once influential, is now largely historical and discredited in the United States. Presently, republishers are typically held accountable, even if they disclose their sources, with exceptions for privileged republications or lack of awareness. Liability usually mirrors that of the originator, regardless of innocence or belief in the statement’s truth.
In India, republication of libel remains actionable, even if attributed to a specific source. Similarly, repetition of slander is also actionable, as each instance is considered a willful publication, unless privileged. If an individual is guilty of slander, someone else repeating it cannot evade responsibility by claiming they merely repeated a slanderous statement made by another. Those making slanderous statements may face punishment when discovered and tried, but another person has no right to repeat an unjustified slanderous statement. The republisher remains liable, even if they present the defamation as a mere rumor. In the case of Watkin v. Hall, the statement “Have you heard the rumor that the plaintiff is insolvent” was deemed actionable.
Justification for a defamatory statement by referring to its presence elsewhere or circulating rumors is not valid. Every repetition of a libel is treated as a distinct libel, and each publisher bears responsibility for their actions as if the false statement originated from them, regardless of whether they initiated it or merely echoed it. The Court held that offense of defamation comprises three key elements: (1) making or publishing an imputation about a person, (2) such imputation being conveyed through spoken or written words, signs, or visible representations, and (3) the imputation being made with the intention to harm the person’s reputation or with knowledge that it will cause harm. Thus, the intent to cause harm is crucial for an offense under Section 499 IPC. Additionally, in this instance, the press was owned by a company in Calcutta and merely engaged in routine printing as part of its daily operations.
While the court might initially consider the unauthorized repetition of a libel as a novus actus interveniens, disrupting the causal link between the original publication and the resulting harm, under specific circumstances, the reiteration of the libel’s essence by an unauthorized third party can be regarded as a foreseeable and likely consequence of the original publication. In such cases, the original publisher could be held liable for damages related to the repetition, depending on the particular details of the case.
The individual responsible for initiating defamation, whether through spoken or written means, should assume accountability for all subsequent republications that naturally and foreseeably result from the original act. However, this liability should constitute a singular cause of action, encompassing statutes of limitations, venue considerations, and other legal aspects relevant to seeking redress for actual injuries or those anticipated in the future. Furthermore, the option for injunctive relief against further republication should be available when there is an opportunity to evaluate triable issues of fact.
Republishers of defamation are typically held liable to a similar extent as the originator, except when they are unaware of the defamatory nature of the content. This includes entities such as local newspapers that receive news releases from national services. Exceptions may apply for unverifiable news causing undue disruption. Radio and TV broadcasters are also subject to liability, except for extemporaneous defamations by non-employee individuals, particularly if unforeseeable or unpreventable.
Riddhi Goyal is an Associate at the Chambers of Mr. Salman Khurshid, Senior Advocate, while Amisha Priyadarshini Dash & Mohd. Ali Hasnain Niazi are law students currently in their 4th and 3rd year respectively.
Daniel Hemel & Ariel Porat, Free Speech and Cheap Talk, 11 J. LEGAL ANALYSIS 46, 52 (2019).
Snyder v. Phelps, 562 U.S. 443, 451 (2011) (holding that the Free Speech Clause of the First Amendment can serve as a defense in some tort suits, including those suits for intentional infliction of emotional distress)
William H. Painter, Republication Problems in the Law of Defamation, 47 VA. L. REV. 1131, 1152 & n.77 (1961) (reporting that a republisher could “protect itself by a contract of indemnity with the news service . . .” or by purchasing liability insurance).
Barry v. Time Inc., 584 F. Supp. 1110, 1122–23 (N.D. Cal. 1984).
AIR 1998 SC 2117
John Rawl, A Theory of Justice, 84 (Universal Law Publishing Co., New Delhi, 6th Indian Reprint, 2013).
Duke of Brunswick & Luneberg v. Harmer, 14 Q.B. 185, 117 Eng. Rep. 75 (1849), is the earliest leading decision. As indicated by the discussion in section II infra, the doctrine there enunciated has given rise to a host of similar decisions with the result that a modification of this principle, known as the “single publication” rule has been developed. See 1 HARPER & JAMES, TORTS ?? 5.16, 5.18 (1956) [hereinafter cited as HARPER & JAMES]; Prosser, Interstate Publication, 51 MicH. L. REV. 959 (1959). See generally notes 21-29 infra
E.g., Draper v. Hellman Commercial Trust & Sav. Bank, 203 Cal. 26, 263 Pac. 240 (1928); see PROSSER, TORTS 600 (2d ed. 1955); cf. Bander v. Metropolitan Life Ins. Co., 313 Mass. 337, 47 N.E.2d 595 (1943).
The Earl of Northampton’s Case, 12 Co. Rep. 132, 77 Eng. Rep. 1407 (Star Chamber 1613).
G. Chandrashekara Pillai v. G. Raman Pillai, 1964 Ker LT 317
(1868) 3 QB 396
Chandrashekara v. Kartikeyan, AIR 1964 Ker 277 : (1964) 2 Cr LJ 549: 1964 Ker LJ 422 : ILR (1964) 2 Ker 231 ; Harbhajan Singh v. State of Punjab, AIR 1961 Punj 215 : (1961) 1 Cr LJ 710.
AIR 1968 Calcutta 266
Slipper v. British Broadcasting Corp., (1991) 1 AIR ER 165