I read with interest Latha’s post published yesterday on why the ‘Bearded Chokra’ would be liable for disparagement even under the ‘actual malice’ standard. Needless to say, I disagree because it is an incorrect understanding of the ‘actual malice’ standard that undermines the essence of the fundamental right to free speech under Article 19(1)(a) and goes against one of the core values that have sustained SpicyIP since its inception. I am yet to find an instance in our young history where we supported behemoth corporations in their quest to legally pummel citizens for exercising their fundamental right to free speech. That is because the right to free speech and a commitment to transparency have been the only values that have unified the contributors of this blog. We do not agree on anything related to the theory and practice of IP and therein lies the masala that has sustained this blog. Now that I have finished grandstanding, let me get back to debating the law with Latha.
The core of our disagreement appears to be around the issue of ‘actual malice’. As per my understanding of the law, whether or not a particular statement is uttered with ‘actual malice’ depends on the intent with which it has been uttered. The burden of proving such intent is on the person claiming to be defamed and because proving the ‘intent’ behind a statement is so difficult, it is quite rare for a person to be held liable under this standard. Merely because a person profited out of the publication or through advertisements, is entirely inconsequential to the analysis of malice. The ‘actual malice’ standard can be met only if it can be established that the statement was uttered with reckless disregard of the truth and knowledge that it was false. Mere unintentional errors do not meet this standard. If ‘actual malice’ can be proved, a defendant can be held liable for defamation even if he does not profit from the speech.
Perhaps a quick recap of the U.S. Supreme Court’s judgment in the landmark case of NYT v. Sullivan may help clarify this position of law. The venerable New York Times (NYT) was sued by a public official because of certain factual errors in an advertisement published in the paper (photo left) on behalf of the Committee to Defend Martin Luther King. The great civil rights activist was being prosecuted in Alabama for alleged perjury and the advertisement had made certain factual errors regarding the number of times the state had arrested Martin Luther King as well as the manner of the arrest. The Public Safety Commissioner of Alabama sued the NYT claiming damages for defamation because of the factual errors. The courts of first instance found NYT liable for damages. However when the case reached the Supreme Court of the United States, the court overturned the existing law on defamation, under which the NYT would have been liable, to conclude that public officials would have to prove that the media acted with actual malice in order to succeed in a defamation action. The judgment basically protected inaccurate speech that contained mere factual errors. This clear shift away from the old standard where even factual errors would have led to liability was key to invigorating the First Amendment in the United States. As a result of its contribution to bolstering free speech this judgment has been voted as one of the most influential judgments of the US Supreme Court in its history. With time, this standard was applied to all public persons and corporations and is one of the reasons that the #metoo movement succeeded in the United States unlike European countries which have far more stringent defamation laws..
That the ‘actual malice’ standard has been accepted in India, is obvious from the fact that it was applied in the Parachute case by Justice Kathawala, albeit incorrectly as I explained in the previous post. Instead of asking Marico to establish the malicious intent, Justice Kathawala asked the ‘Bearded Chokra’ to prove that he did not act with malice.
With regard to Latha’s argument, she presumes malice on part of the ‘Bearded Chokra’ because although he claims to have used organic coconut oil in his video, he allegedly states in his affidavit that he used virgin coconut oil. The Division Bench dismissed this as a trivial error and Latha disagrees on the grounds that the ‘Bearded Chokra’ would not have been able to illustrate his claims regard impurities if organic coconut oil had actually been used. The fact that these videos are the source of his livelihood, according to Latha, adds to the case that he acted with malicious intent.
While she presents an interesting hypothesis, the fact of the matter is that Justice Kathawala failed to apply the test correctly by directing Marico to lead evidence that the ‘Bearded Chokra’ acted with ‘actual malice’ and had not committed a trivial error. The burden of proof was not on the ‘Bearded Chokra’ as claimed by Justice Kathawala. For Marico to have been able to prove that the ‘Bearded Chokra’ deliberately (rather than mistakenly) used one oil, instead of the other, would have been close to impossible. Short of smoking gun evidence that the defendant had entered into a conspiracy with Marico’s competitors to defame its Parachute oil, it would have been impossible for Marico to meet the ‘actual malice’ standard.
Unlike the many trademark lawyers who are likely seething at this judgment, I take special comfort in the outcome of this case because it enables free speech and holds the powerful accountable. The world would have been a far more boring place without the “actual malice” standard.
Image from here
1 thought on “Parachute Disparagement Case: A Trivial Error or Actual Malice?”
Hi Prashant! Read your post. While let’s agree to disagree on our respective opinions expressed here, I just want to clarify to the readers that, “the core of our disagreement”, as you state in your post, is not “the issue of actual malice”. As the caption of my post suggests, I am discussing how the Division Bench wrongly characterised as a “trivial error”, the projection of a falsehood as fact by the blogger…. While I also stand by my “hypothesis” on actual malice discussed there, it is only a small part of the post…. 🙂