Tort of Malicious Falsehood
Tort of Malicious Falsehood
MITHAPUR, PATNA-80001
SUBMITTED TO:
Mrs. SUSHMITA SINGH
FACULTY OF LAW
SUBMITTED BY:
VISHWAN UPADHYAY
ROLL NO.: 1864
BBA L.L.B
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CHANAKAYA NATIONAL LAW UNIVERSITY,
MITHAPUR, PATNA-80001
1ST YEAR
ACKNOWLEDGEMENT
THANK YOU
NAME: VISHWAN UPADHYAY
ROLL NO: 1864
SEMESTER- 1ST
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CHANAKAYA NATIONAL LAW UNIVERSITY,
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TABLE OF CONTENTS
1. INTRODUCTION
2. ESSENTIALS OF TORT OF MALICIOUS FALSEHOOD
3. SLANDER OF TITLE OR SLANDER OF GOODS
a. POINTS TO BE PROVED IN AN ACTION FOR SLANDER OF
GOODS OR TITLE
b. REMEDIES
4. PASSING OFF GOODS
a. POINTS TO BE PROVED IN PASSING OFF GOODS
5. IMITATION OF THE NAME OF ANOTHERS BUISNESS
a. REMEDIES
6. OTHER FORMS OF MALICIOUS FALSEHOOD
7. CONCLUSION
8. BIBLIOGRAPHY
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INTRODUCTION
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CHANAKAYA NATIONAL LAW UNIVERSITY,
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Important form of this wrong are slander of title and slander of goods. In the
wrong of slander of title, there is a malicious statement about a persons property or
business and does not relate necessarily to his personal reputation, but to his title to
property or his
business or generally to his material interest.3 For example, a false assertion that the
defendant has alien over the plaintiffs good or he has a better title to them than that
of plaintiff is slander of title. When the malicious statement relates to goods, then it is
known as slander of goods, For example allegation of defects in the goods
manufactured by plaintiff. The obvious defect of such statement is to depreciate the
value of the plaintiffs good. The law permits making of statement, however false and
malicious, whereby a trader claims his good to be better than those of his rival traders
but makes it actionable when there is false and malicious depreciation of the quality
of anothers goods.
33. P.K. Oswal Hosiery Mills vs. Tilak Chand, A.I.R.1969 Punjab 150, 159
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OBJECTIVES OF STUDY
The objective of study is to find out that how does Malicious falsehood differs from
defamation and what are the different forms of this wrong. What are the remedies
available under the present legal system? To find out the cases related to this is also an
objective of the researcher.
RESEARCH METHODOLOGY
The researcher has primarily relied on the Doctrinal Method. The research is based
on comprehensive study of online journals, documents, books and cases. Uniform
citation method has been used throughout the project report.
HYPOTHESIS
Malicious falsehood is the type of the statement, which are made intentionally to
harm the interest of another. It is different from deceit and defamation in certain ways.
RESEARCH QUESTIONS
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1. MALICIOUS PUBLICATION
The defendant must have intended to publish the statements complained of,
and have done so with an improper motive. Evidence of malice might include
proof:
That the defendant knew the relevant statements were false;
That the defendant was reckless as to the truth or falsify of the
statements when publishing them, or;
That, even though the defendant believed the statements to be true,
their dominant motive in publishing the statements was to injure the
claimants interests.
2. FLASITY
It is up to the claimant to prove that the statements complained of were untrue
unlike in defamation claims, where the falsity is presumed and the burden falls
on the defendant to prove that the statements are true. Furthermore, the
statements complained of, even if false, must be more than mere puff
between trade rivals, such ass that often seen in comparative advertising.
There is no defense equivalent to the honest opinion defense available in
defamation. This means that the defendant cannot contend that the interference
is one that the honest person could have believed to be true.
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SLANDER OF TITLE OR SLANDER OF GOODS
The phrase slander of title was formerly used to refer to disparagement of a
persons title to real property 4, but is now a days a generic name for the
disparagement of property movable or immovable, corporeal or incorporeal. 5
The disparagement need not necessarily relate to title but may be of any
description, e.g., a false statement that a persons house, which he was proposing
to sell, was haunted6. Slander of title is a false malicious statement about a
persons property or his business or relates to his material interest. 7 The phrase
slander of goods is used when the disparagement relates to goods. The
disparagement may be depreciating the quality or pointing out some other
defects, e.g. A false statement alleging As goods to be an infringement to Bs
trademark and warning As customers not to buy them. The leading case of
Ractliffe vs. Evans is an instance of a false representation about business. The
defendant was held liable for publishing in his newspaper a false statement that
the plaintiff has ceased to carry on his business and that his firm didnt then
exist, and thereby causing loss of customers to the plaintiff.
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(B) Disparagement:
That the said publication disparaged the plaintiffs property or business. If it
disparaged also his reputation directly or indirectly, then an action for defamation also
lies. The principle applicable to the interpretation of alleged defamatory statement
also applies here.10 A person is entitled to puff his own goods, e.g. by saying that his
goods are the best in the market or even that they are superior to the plaintiffs. No
action lies for such a statement because a purchaser doesnt usually rely on them to
the exclusion of his own judgment. Besides if an action were allowed it would enable
traders to use it as a means of advertisement. In White vs. Mellin, 11 the defendant, a
chemist was not held liable for such kind of statement. However if the defendant
makes any untrue statement of fact about plaintiff, then it is another matter.12
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(C) DAMAGE
That the said publication caused special damage as a natural consequence, e.g.;
the loss of business, customers, a bargain, property, income or profits, or costs
incurred by being compelled to defend his title.
(D) MALICE
That the statement was published maliciously, 13i.e. Out of some motive other
than a bona fide claim of right. 14 Absence of belief in the truth of the statement
will be conclusive evidence of malice, but a merely careless publication of its not
by itself enough,
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habit of putting on his bottles, a label with the words nourishing stout could
not restrain another brewer from using these words on his labels. 28 However
even a descriptive name may acquire a special and exclusive application to a
persons goods. In that case he has a right to restrain anothers use of it. In
Reddaway vs. Banham,29 the words camel hair belting were held to have
acquired a special application to the plaintiffs goods of that description, and the
defendant was restrained for using those words for article. It is not merely exact
but even a colorable imitation of a mark or name that will be restrained if it has a
tendency to mislead the public. A name, which has a special and secondary sense
with reference to a persons goods, may cease to have it and become one of
general application by being employed by others. If , however it is ambiguous
whether a name is a distinctive or general one , it is the duty of the person
adopting it to take care that he does not mislead. For instance, the plaintiff used
the name corona for a long as a distinctive of a brand of cigars. It was held that
the name being ambiguous, the defendant should be restrained from selling a
cigar of any other brand as corona unless it was made clear to the customers
that it was not the corona brand. Whether the plaintiff has established a
reputation for the name, mark, etc. is so similar as to mislead purchasers would
depend on all the circumstances of the case. The plaintiffs were manufacturing
cycle bells under the trade mark B.K. which was seen by the public. If the
defendants were allowed to make cycle bells under the mark B.K-81 there was
likelihood of diversion of trade from the plaintiffs to the defendants. It was an
injury against which the plaintiffs were entitled to injunction. If intent to
defraud were shown, it would of course go a great way to prove probability of
deception. A manufacturers of goods as well as their importer or vendor can
acquire a right to an exclusive name, mark etc. 30 a person who himself has pirated
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anothers trademark can not complain of an infringement of it. 31 The above
principle applies to the names, titles of books, periodical, newspapers etc. an
author can restrain the publication in his name of a book not written by him.
Foreign trademarks and trade names are protected in courts of this country by
reason of an international convention for protection of industrial property. In a
Bombay case, the high court allowed an action filed by pujaris or priests of a
village temple for an injunction to prevent the defendants from installing an idol
with the same name in another temple. This action bears no analogy to a passing
off action but could be regarded as one for a disturbance of the plaintiffs
enjoyment of their religious office and its emoluments. On this ground, this case
falls outside the principle of free competition recognized in the old case of the
Gloucester grammar schoolmaster.
Plaintiff popularized the trademark Annapurna from his product, Atta from
March 1995. In fact, that trademark was being used by defendants for his
products like salt etc, much prior to the plaintiffs product came into market.
Defendant started using that trademark for Atta also subsequent to the plaintiffs
production in the name of Annapurna. It was held that defendant was entitled to
use his trademark and the court refused to grant injunction in favor of the
plaintiff.32
31 The leather cloth co. vs. American leather cloth co. (1863) 4 De GJ & S 137
32 M mahendra shaw vs.tiruchy floor mills, trichy 1997(2) ALD 251
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On principles similar to those of an action for passing off, an action will lie
against a person for imitation of the name of anothers business if it is likely to
mislead the public.33 When a person uses his own name simplicities for his
business, there can be no right of action against him unless intent to mislead is
also present. If however, he uses an added or abbreviated form of his name, he
will be restrained on the proof of probability of deception. The Indian companies
act enacts that a company cannot be registered in a name identical with
anothers or so closely resembling it as to calculate deceive. The national bank of
India got an injunction against a new bank started under the name of The
National Bank of Indore.34
If there is no chance of deception or confusion by the use of a name, the action
for passing off doesnt lie.
USE OF A NAME
A person has no right to sue when the use of his name or that of his property by
another does not injure his trade or business. An action to restrain the defendant
from using a the name for his villa similar to that of plaintiffs was dismissed,
though such use might cause inconvenience to the plaintiff35. Similarly a person
who was using the word street London as his telegraphic address failed to get
an injunction to prevent a bank using the same words 36. However an action will
lie to restrain the use of anothers name, real or assumed if it is a business
name.37 This assumes that the business is similar. A radio artist giving programs
Under the fancy name uncle Mac could not get an injunction to restrain a
manufacturer marketing a food product under the name uncle Macs puffed
wheat.38 The use of a persons name by another may be defamatory as where the
name of a doctor of repute is used without his authority to puff some quack
33 Leather cloth co. vs. American leather cloth co. (1865) 11 HLC 523
34 National Bank of India vs. National bank of Indore (1922) 24 Bom LR 1181
35 Day vs. Brownrig (1878) 10 Ch D 294
36 Street vs. Union bank of pain (1885) 30 Ch D 156
37 Hinnes vs. Winnick (1947) Ch 708
38 McCullock vs. Lewis May ltd. (1947) 2 ALL ER 845
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medicine.39 A person cannot be prevented from use of his name, unless some
special manner of using it affects anothers business.
REMEDY
The civil remedy is an action for passing off. Besides this, a criminal prosecution
is also available for the offence of using a false trademark or property mark, 40 but
not if the person using the mark had no intent to defraud. 41
In the action for passing off, the plaintiff can ask for:
(A) Damages
(B) Injunction
(C) Other appropriate reliefs like delivering up the counterfeited articles .
Damages represent the actual loss suffered by the plaintiff. He may elect between
damages and an account of the profits obtained by the defendant after
commencement of the wrong. However, neither damages nor profits are available
against an innocent defendant who was not aware of the plaintiff in the
particular name or mark at the time of the infringement. However, an injunction
is available against him.
There can be no claim foe penal and exemplary damages. The plaintiff is not
bound to wait till the infringement of a trademark is repeated or till he gives
warning and it is disregarded, because, the life of a trademark depends upon the
promptitude with which it is vindicated.
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The court has also power to grant other appropriate relief. if the defendant is
found to have spurious articles marked with the false mark in his possession, he
can be ordered to remove the marks or deliver up the articles. 42
Apart from the above-discussed forms of malicious falsehood, an action would lie
for intentionally causing damage to a person by making any false statement or
representation to another.43 For instance, in an early case44, damages were
awarded for a false statement made by the defendant to a person to whom the
plaintiff was engaged to be married, that the plaintiff was a married woman and
his own wife, then as a result plaintiff lost the marriage. In another case, 45 the
plaintiff recovered damages for loss of business due to the defendant publishing
a false statement that the plaintiffs wife who was assisting him in his shop was
guilty of adultery. Similarly, an action would lie for loss due to a false statement
that one of the assistants in the plaintiffs shop had a contagious disease. These
statements though not defamatory of the plaintiff are actionable under the
category of malicious falsehood. However, no action will lie if there is no malice.
Where the plaintiff, a professional pianist, sued the proprietors of a music hall for
a certain week, whereby she lost engagements else where, it was held that the
defendants made a bona fide mistake and were not liable. 46
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CONCLUSION
The words published have caused special damage or financial loss to the
claimant.
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BIBLIOGRAPHY
1. http://www.withyking.co.uk/uploads/news/857//defamation_&-
malicious_falsehood.pdf
2. http://catalogue.pearsoned.co.uk/assets/hip_gb_pearsonhighhered/samplechapt
er/140825414X.pdf
3. www.thompsons.law.co.uk/factsheets/thompsons-defamation-factsheet.pdf
4. http://www.agc.gov.my/akta/vol.%206/act%20286.pdf
5. www.legislation.gov.uk
6. www.5rb.com
7. www.carruthers-law.co.uk
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