A JUDICIAL APPROACH TO INNUENDO AND CLAIMS ARISING FROM IT
INNUENDO
CASES ON INNUENDO
1.THE CAPITAL AND COUNTIES BANK LIMITED v. GEORGE HENTY & SONS[16]
2. V. SUBAIR v. P.K. SUDHAKARAN[17]
3. MORGAN v. OLDHAMS PRESS LIMITED[18]
4. CASSIDY v. DAILY MIRROR NEWSPAPER LIMITED[19]
Author: ROMIT BHATTACHARJEE,
MAHARASHTRA NATIONAL LAW UNIVERSITY,
NAGPUR.
Defamation Law under Law of Torts is the least ventured subject. And Cases on Innuendo are least in number. But whatever cases are there under Innuendo, they have changed the face of Defamation Law and have brought varied implications. Before we tread into the topic of innuendo, it is important to understand defamation.
In simpler words, defamation means "the action of damaging somebody's good reputation" or "committing any act which brings disrepute to a person".
Now under law of defamation, there is an element called innuendo. It is basically any statement or imputation that appears to be prima facie innocent but has an inner meaning that is defamatory. Very few number of cases are there related to innuendo and this project has tried to cover a great deal on that. The project discusses in detail about innuendo, its implications, claims arising from it. It also forays into the defamation law, types of imputations in defamation: graphical as well as verbal and relative cases that have arisen from them.
Defamation is the wrong done by a person to another's reputation by words, signs, or visible representation[1]. A defamatory statement is a statement calculated to expose a person to hatred, contempt or ridicule, or to injure him in his trade, business, profession, calling or office, or cause him to be shunned or avoided in society. To be defamatory, a statement need only have a tendency to affect a person's reputation: it need not lower it. However the standard to be applied is whether his reputation is affected in the estimation of right-thinking members of the society generally. Mere insult or abuse does not by itself constitute defamation, although it may be offensive to a man's dignity , unless and until it is proved to have lowered his reputation in the estimation of others[2].
According to Section 499 the Indian Penal Code Defamation- "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 knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in cases hereinafter expected, to defame that person.
Explanation 1- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives
Explanation 2- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3- An imputation in the form of an alternative or expressed ironically , may amount to defamation.
Explanation 4- No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers that character of that person in respect of his caste or of his calling, or lowers the credit of that person , or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. The wrong of defamation protects reputation and defenses to the wrong, viz. truth and privilege protect the freedom of speech. No one has the right to cause loss to the reputation of other with mala fide intentions."
The elements to establish defamation are[3]:
1.The statement must be published.
2.The statement must be defamatory
3.The statement must refer to the plaintiff
Types of defamatory imputations
A libel is a publication of a false and defamatory statement tending to injure the reputation of another person without lawful justification or excuse. The statement must be expressed in some permanent form for example writing, printing, pictures, statue, waxwork, effigy, murals, etc. The law of libel originated in the 17th century in England. With the growth of publication came the growth of libel and development of the tort of libel. Libel is a criminal offence as well as civil wrong. Three conditions must be fulfilled for libel: (i) matter should be false;(ii) in writing; (iii) should be defamatory; and (iv) published[4]. For example, if any poster is made which contains any false imputation tagging a person as corrupt then libel is committed. A landmark case of libel is M.J. Zakharia Sait v. T.M. Mohammed[5] where the appellant contested against the respondent. The respondent published a poster of some false allegations against the appellant to reduce his popularity. The respondent was held liable both under tort law as well as criminal law and the appellant was awarded damages.
The common law origins of defamation lie in the torts of slander, i.e., harmful statement in a transient form, especially speech, each of which gives a common law right of action. If the offending material is published in some fleeting form, as by spoken words or sounds, sign language, gestures and the like, then it is slander[6]. A leading case establishing slander is Brahma Prakash Sharma v. State of UP[7]. In this case the appellants, six in number made some remarks which were defamatory against the Judicial Magistrate and were held under Contempt of Court. They were further held liable under defamation law for slander and compensation was claimed.
Innuendo is a legal concept that is related to tort a
nd personal injury law. The word is derived from "innuere", in Latin which means "to nod forward". In legal terms, innuendo is used in a lawsuit to describe defamation from libel and slander. It usually depicts that the plaintiff had some bad comments made about him and the comments were in fact defamatory[8].
An Innuendo may be defined as a hint , rather an imputation, in which the intention is to defame or insult somebody in such a way wherein the words are prima facie innocent. In other words, innuendo is a hint of denigrating nature made in a way wherein the words are literally innocent or at least may appear to be innocent in the first place.
Then the natural and ordinary meaning is not defamatory but the plaintiff wants to bring an action for defamation, he must prove the latent or second meaning, i.e., the innuendo, which makes the statement defamatory. Even a statement of commendation may be defamatory in the content in which it is said. Even Y is a saint might be slander if the statement was understood to refer to a criminal gang known as "The Saints"[9].
Similarly, to say that X is an honest man and he never stole my watch may be defamatory statement if the persons to whom statement is made understand from this that X is a dishonest man having stolen the watch. The statement that a lady has given birth to a child is defamatory when the lady is unmarried. Similarly, the statement that A is like his father may be defamatory if it is likely to convey the impression that he is a 'cheat' like his father[10].
The innuendo is usually just used in actions for slander. An innuendo can be only explanatory of some other matter expressed. It must also serve to apply the given slander to the precedent matter, white not enlarging, extending, or changing the idea of the previous words. Innuendo typically refers to a condition where a person explains a factual situation, yet an incorrect interpretation is derived from it. Furthermore, the issue to which the innuendo alludes to must always show from the antecedent end of the indictment or declaration. Innuendo cannot be always derived from libel and slander itself. If innuendo enlarges the idea of the words, it can impair the legal validity of indictment or declaration. But if the new matter stated within an innuendo does not need to support the action, it can be rejected as surplusage[11].
There are two major types of innuendo. The first one is (i) false innuendo. It is a defamatory statement made that has an implied meaning, so only individuals who have the necessary contextual knowledge can appreciate and understand that the comment is defamatory[12]. This may require some sort of cultural, geographic information[13].
The second one is (ii) legal innuendo. While this is not defamatory on its face, a legal innuendo statement can be defamatory when combined with certain extrinsic or outside circumstances. This contextual information may cause a statement to be considered defamatory in a certain jurisdiction while not another[14].
When looking at a legal precedent, strict liability rule is applied to legal innuendo. This is the standard level of liability that specifies what makes an individual legally responsible. Strict liability requires imposing liability on a particular party without finding a reason for fault, such as tortious intent or negligence[15]. In this situation, the defendant must have been proved to be responsible and the tort in question must have happened.
The defendant wrote to their customers saying ' Henty & Sons hereby give notice that they will not receive in payment cheques drawn on any of the branches of the Capital and Counties Bank'. The contents of the circular became known and there was a run on the bank. The bank claimed they had been defamed. The circular became known to other persons# there was run on the bank and loss inflicted. The bank having brought an action against Henty & Sons for libel, with an innuendo that the circular imputed insolvency
The plaintiff's appeal failed. In their natural meaning the words were not capable in law of being defamatory. Lord Selborne LC said: "The test, according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libelous sense. In their natural meaning the words were not libelous: that the inference suggested by the innuendo was not the inference which reasonable persons would draw that the onus lay on the bank to show that the circular had a libelous tendency; that the evidence, consisting of the circumstances attending the publication, failed to show it; that there was no case to go to the jury; and that the defendants were entitled to judgment." The case lacked credential to go to the jury.
The petitioner, an Editor, Printer and Publisher of a daily 'Al Ameen'. The issue of the newspaper dated 25-08-1978 carried a report from Chokly (Ext.Pl(a)), that a young lady of the locality consulted a local medical practitioner for an ailment of her child, and the physician wanted to examine her. Despite her protestations that she was in no need for medical attention, and had no money to pay for the same, she was persuaded to submit to a clinical examination. It turned that the woman had to flee from the practitioner to save her honour. The report goes on to say, that the medical practitioner who was rendering free treatment on Saturdays had weakness for comely woman and that as a result of his attentions, a woman patient was put to the necessity of an abortion.
It was considered as an innuendo towards the respondent due to which he was under disrepute. The courts below concurrently found the petitioner guilty of the offence punishable under Section 501 of the IPC, and sentenced him to pay a fine of Rs.300/-, in default to undergo imprisonment for 3 months
The defendant was a journalist collecting material on a dog-doping gang story, whereby he put witness (who agreed to talk to him) under his surveillance while investigations were ongoing. The witness left the defendant's lodgings to spend a few days with the claimant with whom she was seen in public. The witness was later taken back to the defendant's lodgings until after some of the gang members have been convicted. The defendant published his story, which included a photograph of the witness with her name also indicated. A later article suggested that the witness was kidnapped by members of the gang – the article did not mention the claimant by name or description. The claimant brought an action for libel, arguing that by innuendo the article associated him with the dog doping gang and thus the kidnapping. At trial, the judge put the case before the jury as words of the article were capable of being understood as referring to the claimant. The jury found in favour of the claimant. The defendants appealed. The Court of Appeal allowed their appeal. It held that any reasonable man would have been prevented by the discrepancies in the story from thinkin
g that the article referred to the claimant. It also held that in order to become defamatory, the article should have contained some clear indications that it referred to the claimant – which was not the case here. The claimant appealed to the House of Lords.
The House of Lords held that one must first consider the nature of the article and the class of readers likely to read it. Then, one might go on to determine the impression the article would have had on the mind of the ordinary sensible reader, who read the article casually and not in expectation of precision. The Court held that the article would be defamatory if it contained defamatory imputations and pointed to the claimant as the person to be defamed. The Lords were of the view that in the present case the article complied with these requirements and was thus defamatory.
The claimant was known as the lawfully wedded wife of a famous race-horse owner and former General of the Mexican Army. The claimant and her husband lived separately but he often visited her at her workplace. The defendant newspaper published a photograph of the claimant's husband with a woman labelled as Miss X, to whom – as alleged by the attached article – he was engaged. The claimant argued that the publication caused damage to her in that it was intended to imply that her husband was living with her immorally. The defendants denied any such intention and even the possibility of their publication having such a meaning. The defendants refused to admit, even after seeing evidence thereof, that the claimant was married to the subject of the publication. The trial judge found that in the circumstances of this case, the publication could be seen as having a defamatory meaning. He directed the jury that what mattered was the perception of the reasonably minded person who knew the circumstances of the case. The jury found in favour of the claimant.
The Court of Appeal held, affirming the lower court's decision, that the publication in question was capable of constituting defamation. It found that the jury was right to find that the publication made the reasonably minded person believe that the claimant's moral character was questionable.
It may be thus concluded that to understand whether any imputation is an innuendo or not, the latent meaning of the statement is to be understood first. Cases on innuendo are so less that a lot is still required to be developed in this area of Tort Law. Innuendo imputed at times gets overlooked just because people don't really follow the averment in the statement and a single statement has varied implications. But it is quite clear that if a case comes up where innuendo is involved, the claims arising can be compensation for damages and sentence. In case of sexual innuendo, the sentence and the amount of unliquidated damages may be greater. Lack of knowledge of law also contributes to why cases on innuendo are so less.
[1] A LAKSHMINATH AND M SHRIDHAR, RAMASWAMY IYER
'S LAW OF TORTS 362 (10th ed. 2007).
[2] RATANLAL & DHIRAJLAL, LAW OF TORTS 268 (27th ed.2016).
[3] (Aug 12, 2018, 08:20 PM) https://www.law.cornell.edu/wex/defamation.
[4] Supra, note 1.
[5](1990) 3 SCC 396.
[6] Brette Sember, DIFFERENCES BETWEEN DEFAMATION, SLANDER, AND LIBEL (Aug 13, 2018, 09:32PM) https://www.legalzoom.com/articles/differences-between-defamation-slander-and-libel.
[7] 1954 AIR 10.
[8] (Aug 15, 2018, 02:40 PM) https://defamation.laws.com/innuendo/.
[9] Daniel H. Wegner, INNUENDO AND DAMAGE TO REPUTATIONS (Aug 15,2018, 04:34 PM) https://www.acrwebsite.org/volumes/6333.
[11] Supra, note 8.
[14] (Aug 16, 2018, 07:32 PM) https://www.eff.org/issues/bloggers/legal/liability/defamation.
[15] Ryland v. Fletcher [1868] UKHL1.
[16] HL 1882 7 App Cas 741.
[17] (2007) SCC 4 KLT 865.
[18] [1971] 1 WLR 1239.
[19] [1929] 2 KB 331.
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