Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Order reserved on: 08.07.2013
% Order delivered on: 07.11.2013
+ CS(OS) 290/2010
KHAWAR BUTT
..... Plaintiff
Through: Mr. Manish Kaushik, Advocate with
Mr. Vivek Singh, Advocate
versus
ASIF NAZIR MIR & ORS
..... Defendant
Through: Ms. Manmeet Arora, Ms. Mansi
Sharma and Ms. Nidhi Parashar,
Advocates
CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
O R D E R
VIPIN SANGHI, J.
I.A. No. 13629/2011 (U/O 7 rule 11(a) read with Section 151 CPC by the
defendant)
I.A. No. 13630/2011 (U/O 6 Rule 16 read with Section 151 CPC by the
defendant)
I.A. No. 14479/2011(U/O 7 Rule 11 and Section 151 CPC by the
defendant)
I.A. No. 8404/2013(U/O 6 Rule 17 CPC read with Section 151 CPC for
amendment of plaint by the plaintiff)
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1. By this common order, I proceed to dispose of the aforesaid four
applications.
2. The plaintiff has preferred the present suit to claim damages of Rs. 1
crore and for mandatory injunction. Initially, there were two defendants in
the suit – defendant No. 1 being Asif Nazir Mir, and defendant No. 2 being
Mrs. Shaziya Shaw. Defendant No. 2 was the wife of the plaintiff at the time
of filing of the suit. In a nutshell, the case of the plaintiff -as originally
pleaded in the plaint, was that defendant No. 1 was having an adulterous
relationship with his wife-defendant No. 2. In the plaint, the plaintiff goes
on to narrate as to how he came to learn of it; how others came to learn of it;
the conduct of the two defendants, and; the actions alleged to have been
taken by the two defendants in collusion with each other with a view to
harm the good name and reputation of the plaintiff, and to induce divorce
between the plaintiff and defendant No. 2. The plaintiff pleaded that
defendant Nos. 1 and 2 colluded to post false allegations against the
plaintiff - of his being in an illicit relationship with the wife of defendant
No. 1. These allegations were posted on the Facebook page of the wife of
defendant No. 1, Mrs. Shazia Bakshi. According to the plaintiff, the wife of
defendant No. 1, Mrs. Shazia Bakshi was in touch with the plaintiff so as to
keep the plaintiff informed of the conduct of the two defendants.
3. After the filing of the suit and upon issuance of summons in the suit,
the plaintiff moved I.A. No. 10296/2010 under Order 23 Rule 1 CPC to give
up his claim against defendant No. 2 – then his wife, Mrs. Shazia Shaw.
Along with the application, the plaintiff filed the agreement/settlement deed
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dated 17.06.2010 entered into between the plaintiff and defendant No. 2.
This application was allowed on 06.08.2010.
4. Upon service of defendant No. 1, he has preferred the aforesaid two
applications under Order 7 Rule 11 CPC. In the first application i.e. I.A.
No. 13629/2011, the submission of defendant no. 1 is that since the plaintiff
has given up his claim against defendant No. 2, and the cause of action
against both the defendants is the same, i.e. the alleged act of adultery
between the two defendants, the plaintiff cannot proceed against defendant
No. 2. The submission of the defendant is that in the absence of defendant
No. 2, who has been voluntarily dropped from the array of defendants by the
plaintiff as a consequence of withdrawal of the suit against her
unconditionally, the allegations of adultery cannot be examined by this
Court. According to the defendant, the defendant No. 2 is a necessary party-
since the examination of the said issue would necessarily impinge on the
conduct, name and reputation of the erstwhile defendant No. 2. Therefore,
even if no relief is claimed against defendant No. 2 -who already stands
deleted, in her absence, the aspect of adultery cannot be examined by this
Court and the suit cannot proceed. The defendant also seeks to argue that
the postings on the Facebook page of Mrs. Shazia Bakshi do not make any
allegation against the plaintiff, since his name is not mentioned.
5. The second application under Order 7 Rule 11 CPC i.e. I.A. No.
14479/2011, has been preferred by the defendant with the plea that the claim
of damages, as well as for mandatory injunction, arise out of the alleged
libelous posting, as aforesaid, on the webpage of Mrs. Shazia Bakshi for
which, inter alia, the defendant is allegedly responsible. The submission is
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that the said publication took place, allegedly, on 26/27.10.2008. Reference
is made to the averments in the plaint, according to which, the acquaintances
of the plaintiff learnt of the same on 28.10.2008, 30.10.2008 and
05.11.2008. The plaintiff also claims the publication of certain libelous
pamphlet, allegedly by the defendant on or about 25.12.2008. The
submission of the defendant is that the limitation prescribed for preferring a
suit to claim compensation for libel is one year from the date when the libel
is published, in terms of Entry 75 of the Schedule to the Limitation Act,
1963. Therefore, the said period of limitation expired, at the latest, on or
about 25.12.2009. However, the present suit has been preferred only on
11.02.2010. Therefore, the suit is barred by limitation. It is also argued that
the relief of mandatory injunction sought by the plaintiff - to require the
defendant to tender an unconditional apology by publishing notice in two
national dailies, and relevant sites on the internet, is not maintainable under
Section 39 of the Specific Relief Act, 1963.
6. The application under Order 6 Rule 16 CPC being IA No. 13630/2011
has been preferred by the defendant for deletion of various averments made
by the plaintiff in the plaint, qua the erstwhile defendant No. 2. These are
allegations at the erstwhile defendant No. 2 having an adulterous
relationship with the defendant. The submission of the defendant in this
respect is the same as made in support of the first application under Order 7
Rule 11 CPC, i.e., since the erstwhile defendant No. 2 is no longer a party
to the suit, the allegations made against her, being scandalous, cannot be
permitted to be retained on the record.
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7. The plaintiff has moved the application for amendment under Order 6
Rule 17 CPC i.e. I.A. No. 8404/2013 with a view to delete certain
allegations made against the erstwhile defendant No. 2. According to the
defendant, the plaintiff would continue to retain several averments directed
against the deleted defendant No. 2, even if the said amendment is allowed.
8. Learned counsel for the plaintiff, firstly, submits that the cause of
action pleaded in the present suit is not only the libelous publication but also
the conduct of the defendant No. 1 in having an adulterous relationship with
his wife, which caused pain and mental agony to the plaintiff and lowered
his reputation in the society. In this regard, reference is made to the
averments made by the plaintiff as to how one of his drivers, namely, Sanjay
witnessed the illicit relationship between the defendant No. 1 and deleted
defendant No. 2. Reference is also drawn to paragraph 42 and 43 of the
plaint which has also been incorporated in paragraphs 32 and 33 of the
proposed amended plaint filed by the plaintiff along with the application
under Order 6 Rule 17 CPC.
9. Learned counsel for the plaintiff submits that the publication of the
posting on the Facebook gives right to a continuous cause of action, since it
tantamounts to a fresh publication every moment the offending material
remains on the website. He seeks to distinguish publication in a printed
journal or a book, from publication on a website on the ground that a
publication on a website can voluntarily be withdrawn by the publisher,
unlike publication in print media, which, once published cannot be
withdrawn. Learned counsel, therefore, submits that the suit cannot be said
to be barred by limitation. Learned counsel further submits that since the
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plaintiff is seeking composite damages of Rs. 1 crore for the tortuous act of
the defendant in having an adulterous relationship with his wife i.e. the
erstwhile defendant No. 2, and in making the libelous publication, the suit
cannot be said to be barred by limitation since the claim of tortuous liability
can be made within three years from the date when the cause of action arose.
Learned counsel for the plaintiff has sought to place reliance on Order 1
Rule 2 CPC to submit that it is up to the plaintiff to chose as to who are to be
joined as party defendant(s) to the suit. Therefore, the defendant cannot
seek to take advantage of the fact that the erstwhile defendant No. 2 stands
deleted from the suit.
10. Learned counsel for the defendant in support of her submissions qua
the first application under Order 7 Rule 11 CPC ( IA No. 13629/2011) and
the application under Order 6 Rule 16 CPC has placed reliance on the
judgment of the Division Bench of the Karnataka High Court in Arun
Kumar Aggarwal Vs. Radha Arun and Another AIR 2003 Karnataka 508 ,
and of this Court in Manjit K. Singh Vs. S.Kanwarjit Singh 58(1995) DLT
208 . She has also referred to the Delhi High Court Rules relating to the
filing of matrimonial proceedings under The Hindu Marriage Act, 1955, The
Indian Divorce Act, 1869 and The Special Marriage Act, 1954 which require
that in a claim for divorce on the ground of adultery, it is necessary to
implead both the parties allegedly involved in the adulterous relationship.
Learned counsel submits that the said Rules have been framed keeping in
view the fact that a declaration with regard to such conduct in respect of any
person cannot be made behind his back, as it would impinge on that person’s
good name and reputation. Learned counsel for the defendant submits that
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the second relief sought in the suit i.e. for a mandatory injunction to require
the defendant to tender an unconditional apology by publication of a notice
in two national dailies and relevant sites on the internet, thereby
withdrawing the allegedly false and malicious allegations against the
plaintiff (i.e. of his having relationship with the wife of the defendant Mrs.
Shazia Bakshi), cannot be sustained as such a relief is beyond the scope of
Section 39 of the Specific Relief Act, 1963 which provides that, “When, to
prevent the breach of an obligation, it is necessary to compel the
performance of certain acts which the court is capable of enforcing, the
court may in its discretion grant an injunction to prevent the breach
complained of, and also to compel performance of the requisite acts.”
11. Learned counsel submits that the defendant owes no obligation to the
plaintiff - contractually or otherwise, and consequently there is no question
of the court issuing a mandatory injunction to the defendant to prevent the
breach of such an obligation, or compel performance of a non-existing
obligation.
12. Learned counsel for the plaintiff submits that his wife i.e. the
erstwhile defendant No. 2, admitted having committed adultery while
entering into the settlement/agreement dated 17.06.2010 above referred to.
She has admitted to committing mistakes. She has also admitted that the
plaintiff did not have any illicit relationship with the wife of defendant No.
1-Mrs. Shazia Bakshi.
13. With these submissions, learned counsels have prayed that respective
applications be allowed, and those of the opposite party be dismissed.
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14. I first proceed on to determine the legal issue: Whether, the leaving of
the allegedly defamatory material on the internet/facebook page gives rise to
a fresh cause of action every moment the said offending material is so left
on the webpage – which can be viewed by others at any time, or whether the
cause of action arises only when the offending material is first posted on the
webpage/internet.
15. Learned counsel for the plaintiff has not substantiated his aforesaid
submission with any case law or other academic discussion on the subject. I
have, therefore, endeavored to examine the issue on my own. I have not
come across any Indian case law on the subject, vis-à-vis internet
publications. I have, therefore, proceeded to go beyond the Indian
boundaries to see as to how this issue has been dealt with in other
jurisdictions. In a nutshell, there are two conflicting legal positions, one
being followed in U.K till recently - and this is still followed in Australia,
Canada and Germany, and the other in U.S.A., France and, now the U.K.
The earlier U.K. view was based on a long standing rule in defamation
cases- that every time an article or statement is published or republished, it
creates an individual, discrete, actionable, defamatory statement upon which
one can sue, generally known as the “multiple publication rule”.
16. The multiple publication rule was first developed in England in the
case of Duke of Brunswick v. Harmer , (1849) 14 QB 185. In 1847, the
Duke was given a copy of the newspaper that contained material defamatory
of him which had been published 17 years earlier. While upholding the
claim for damages as being within limitation, the Court held that the
limitation period of 6 years re-started when Duke viewed the publication. In
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Godfrey v. Demon Internet Limited , (2001) QB 201, the same rule was
applied to the internet. Moorland J observed:
“ In my judgment the defendants, whenever they transmit and
whenever there is transmitted from the storage of their news
server a defamatory posting, publish that posting to any
subscriber to their ISP who accesses the newsgroup containing
that posting .”
17. The U.K. Government in a consultation paper – (the Multiple
Publication Rule CP 20/09) describes the multiple publication rule as
follows:
“ The effect of the multiple publication rule in relation to online
material is that each “hit” on a webpage creates a new
publication, potentially giving rise to a separate cause of
action, should it contain defamatory material. Each cause of
action has its own limitation period that runs from the time at
which the material is accessed. As a result, publishers are
potentially liable for any defamatory material published by
them and accessed via their online archive, however long after
the initial publication the material is accessed, and whether or
not proceedings have already been brought in relation to the
initial publication .”
18. The effect of the Multiple Publication Rule is that the limitation
period runs from the date of the last publication of the defamatory statement,
allowing the affected party to sue many years after the statement was first
made. In the case of archived materials, an action could follow decades
after the original publication of the material.
19. The Multiple Publication Rule has been followed by the Australian
Courts in Dow Jones & Co. Inc v. Gutnick , (2002) HCA 56. The High
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Court of Australia explicitly rejected calls to abolish the said rule in favour
of the Single Publication Rule. The court rejected the argument that the
Single Publication Rule be adopted for policy reasons, as it would be
impossible for a publisher on the internet to protect itself against all the laws
in every jurisdiction of the world. The High Court held that defamation
proceedings sought to strike a balance between both - the rights of the
publisher and the person who is the subject of the publication and whose
rights would be severely constrained by the Single Publication Rule
advocated by the applicant Dow Jones & Co. Inc.
20. There were several occasions when the English courts rejected the call
to abandon the Multiple Publication Rule. Reference may be made to
Berezovsky v. Michaels , (2001) WLR 104 and Loutchansky v. Times
Newspapers Ltd. , (2002) QB 783. Lord Philips of Worth Matravers MR,
while delivering the court’s judgment observed:
“We do not accept that the rule in the Duke of Brunswick
imposes a restriction on the readiness to maintain and provide
access to archives that amounts to a disproportionate
restriction on freedom of expression. We accept that the
maintenance of archives, whether in hard copy or on the
Internet, has a social utility, but consider that the maintenance
of archives is a comparatively insignificant aspect of freedom of
expression. Archive material is stale news and its publication
cannot rank in importance with the dissemination of
contemporary material. Nor do we believe that the law of
defamation need inhibit the responsible maintenance of
archives. Where it is known that archive material is or may be
defamatory, the attachment of an appropriate notice warning
against treating it as the truth will normally remove any sting
from the material.”
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Leave to appeal to the House of Lords was rejected.
21. An appeal was then preferred before the European Court of Human
Rights (ECHR), seeking to enforce the newspapers right to freedom of
expression under Article 10 of the European Convention of Human Rights
(reported as Times Newspapers Ltd. – (Nos.1 and 2) v. United Kingdom
(2009) EMLR 14 ). While recognizing the importance of the press in
disseminating information and acting as a public watchdog, the ECHR
observed that the press also had the responsibility to protect the rights and
reputations of the private individuals about whom it wrote. It was held that
the interference with the rights of the press, in the facts of that case, was not
disproportionate. It was held that the newspapers could have continued to
maintain its archive without fear of litigation, had they placed a notice with
the archived material thereby indicating that it was the subject of litigation,
or had been found to contain defamatory comments - a solution offered by
the Court of Appeal in that case. Since the action had been initiated within
18 months of the publication taking place, it was held that the defendant had
not been required to defend an action many decades after the first
publication had been made. Significantly, the court held:
“ The Court would, however, emphasise that while an aggrieved
applicant must be afforded a real opportunity to vindicate his
right to reputation, libel proceedings brought against a
newspaper after a significant lapse of time may well, in the
absence of exceptional circumstances, give rise to a
disproportionate interference with press freedom under Article
10 .”
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22. Therefore, even though the ECHR did not interfere with the decision
of the English Court in the facts of the case, it did indicate that if the action
was brought after a significant lapse of time, the situation could well have
been different.
23. The Canadian Courts have also followed the earlier British Multiple
Publication Rule. In Carter v. B.C. Federation of Foster Parents
Association , 2005 BCCA 398, the court of appeal for British Columbia
preferred to follow the then prevailing English legal position over the
American view by observing:
“ 18. … …. Although it is difficult to find an express statement in
the Canadian cases about the single publication rule, the clear
tendency of the authorities in my view is in favour of the
English and the Australian position and not in favour of the
American position ”.
24. I may also refer to the decision of the Court of Appeal for Ontario in
Shatif v. Toronto Life Publishing Co. Ltd. , (2013) ONCA 405. While
considering the issue, section 6 of the Libel and Slander Act, R.S.O 1990
c.L. 12 was considered by the court, which reads as follows:
“ An action for a libel in a newspaper or in a broadcast shall be
commenced within three months after the libel has come to the
knowledge of the person defamed , but, where such an action is
brought within that period, the action may include a claim for
any other libel against the plaintiff by the defendant in the same
newspaper or the same broadcasting station within a period of
one year before the commencement of the action ”. (emphasis
supplied)
25. The court rejected the Single Publication Rule - applied by the
American Courts, with the following observation:
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“[31] However, the single publication rule has been
rejected in England: see Berezovsky v. Michaels , [2000] 2 All
E.R. 986 (H.L.); Loutchansky v. Times Newspapers Ltd. ,
[2002] Q.B. 783 (C.A.); in Australia: see Dow Jones and Co.
Inc. v. Gutnick , [2002] H.C.A. 56, 2010 C.L.R. 575; and by the
British Columbia Court of Appeal: see Carter v. B.C.
Federation of Foster Parents Assn. ,2005 BCCA 398 (CanLII),
2005 BCCA 398, 257 D.L.R. (4th) 133. And the motion judge
refused to apply the rule in this case.
[32] I, too, would not apply the single publication rule for
three reasons. First, the rule does not fit comfortably with the
words of s.6 of the Act. The single publication rule is based on
publication of an alleged libel. Successive publications are
considered a single publication and the date of the first
publication triggers the running of the limitation period. Under
s. 6 of Ontario’s Act, the date when the libel first came to the
plaintiffs’ knowledge, not the date of publication, triggers the
running of the limitation period.
[33] Moreover, the recapture provision in s. 6 is
inconsistent with a single publication rule. A simple example
will illustrate the inconsistency. Take a case where the same
libel is published and later republished, and the plaintiff sues
for damages for the republished libel. Section 6 would allow
the plaintiff to recapture the earlier libel. In effect, s.
6 recognizes two separate libels; the single publication rule
recognizes only one.
[34] Second, the jurisprudence of this court has, implicitly
at least, rejected the single publication rule. In Weiss v.
Sawyer, (2002) 61 O.R. (3d) 526 (C.A.), at para. 28,
Armstrong J.A. affirmed the traditional English rule: “Every
republication of a libel is a new libel.”`
[35] Third, even if we were to consider a single publication
rule in Ontario, I would not apply it across different mediums
of communication. In my opinion, it would be unfair to
plaintiffs to apply the rule to publications that are intended for
different groups or that may reach different audiences. Even in
American states that apply the single publication rule, at least
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one state, California, has rejected its application for reprinting
or republication in a different form: see Kanarek v.
Bugliosi (1980), 108 Cal. App. 3d 327. Also, the Restatement
of the Law, Second: Torts (American Law Institute, 1977)
states that the single publication rule does not include separate
aggregate productions on different occasions. If the
publication reaches a new group, the repetition justifies a new
cause of action. See s. 577A.
[36] Applying the single publication rule where, as in this
case, the original publication is in print and the republication is
on the internet could create a serious injustice for persons
whose reputations are damaged by defamatory material. A
plaintiff may not want to expend the time and resources to sue
for an alleged libel in a magazine, which has a limited
circulation and a limited lifespan. The plaintiff may consider
the magazine’s circulation insufficient to warrant a lawsuit.
[37] However, a plaintiff may well want to spend the time
and money to sue if the alleged libel is on the magazine’s
website and accessible on the internet. Unless the article is
removed from the website, its circulation is vast, its lifespan is
unlimited, and its potential to damage a person’s reputation is
enormous. Yet, if a single publication rule is applied, the
plaintiff’s claim may be statute barred before real damage to
reputation has occurred ”.
26. At this stage, I may note that the decision in this case was, inter alia,
based on, firstly, the express language of section 6 of the Libel and Slander
Act, as set out herein above, as also the fact that after the original
publication had been made in print, the same was re-published on the
internet. The re-publication of the same article on the internet would
constitute a fresh publication, as it was directed towards a different set of
people than those covered by the first publication in print media.
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27. In Ireland, the Multiple Publication Rule was abolished by the
introduction of the Defamation Act, 2009. The Government appointed legal
advisory group of defamation, 2003 advocated, inter alia, introduction of the
Single Publication Rule. Section 38(1)(b) of the Defamation Act, after
amendment, reads as follows:
“ For the purposes of bringing a defamation action within the
meaning of the Defamation Act 2009, the date of accrual of the
cause of action shall be the date upon which the defamatory
statement is first published and, where the statement is
published through the medium of the internet, the date on
which it is first capable of being viewed or listened to through
that medium ”.
28. Recently, in the United Kingdom, the law has changed with the
enactment of the Defamation Act, 2013. Section 8 has introduced the Single
Publication Rule, which reads as follows:
“8. Single publication rule
(1) This section applies if a person—
(a) publishes a statement to the public (“the first
publication”), and
(b) subsequently publishes (whether or not to the
public) that statement or a statement which is
substantially the same.
(2) In subsection (1) “publication to the public” includes
publication to a section of the public.
(3) For the purposes of section 4A of the Limitation Act 1980
(time limit for actions for defamation etc) any cause of action
against the person for defamation in respect of the subsequent
publication is to be treated as having accrued on the date of the
first publication.
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(4) This section does not apply in relation to the subsequent
publication if the manner of that publication is materially
different from the manner of the first publication.
(5) In determining whether the manner of a subsequent
publication is materially different from the manner of the first
publication, the matters to which the court may have regard
include (amongst other matters)—
(a) the level of prominence that a statement is given;
(b) the extent of the subsequent publication.
(6) Where this section applies—
(a) it does not affect the court’s discretion under
section 32A of the Limitation Act 1980 (discretionary
exclusion of time limit for actions for defamation etc),
and
(b) the reference in subsection (1)(a) of that section to
the operation of section 4A of that Act is a reference to
the operation of section 4A together with this section ” .
29. Therefore, the Multiple Publication Rule followed in the United
Kingdom by the courts since Duke of Brunswick (supra), has statutorily
been overruled. It would be interesting to observe the course of
developments that may now take place in other commonwealth jurisdictions
like Australia and Canada, post the aforesaid development in the United
Kingdom.
30. As noticed above, the second principle is what the American Courts
call the “Single Publication Rule”. It states that the publication of a book,
periodical or newspaper containing defamatory material gives rise to only
one cause of action for defamation, which implies, that the limitation period
starts to run at the time the first publication is made, even if copies continue
to be sold several years later. The rule has a long history. It was first
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developed in 1938 in respect of newspapers, in Wolfson v Syracuse
Newspapers , Inc (1939)279 NY 716. Then it was applied to books in 1948
in the case of Gregoire v G.P Putnam’s Sons (1948) 298 NY119 . The facts
of this case were that a book was originally put on sale in 1941. It had been
reprinted seven times, and was still being sold from stock in 1946. The New
York Court of Appeals held that the limitation period started to run in 1941 ,
when the book was first put on sale.
31. In Gregoire (supra), the New York Court did not accept the rule as set
out in Duke of Brunswick (supra), as it had its origin in an era which long
antedated the modern process of mass publication. The said rule, it was
held, was no longer suited to modern conditions. The court held that under
such a rule, the period of limitation would never expire so long as a copy of
the published material remained in stock and is made by the publisher, the
subject of a sale or inspection by the public. Such a rule would thwart the
purpose of the legislature which is to bar completely and forever all actions
which overpass the prescribed limitation period.
32. The Single Publication Rule is encapsulated in the American Law
Institutes Uniform Single Publication Act, 1952. It is set out in Article
nd
577A of the 2 Restatement of Torts (197) as follows:
“ (1) Except as stated in subsections (2) and (3), each of several
communications to a third person by the same defamer is a
separate publication.
'(2) A single communication heard at the same time by two or
more third persons is a single publication.
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'(3) Any one edition of a book or newspaper, or any one radio
or television broadcast, exhibition of a motion picture or
similar aggregate communication is a single publication.
'(4) As to any single publication, (a) only one action for
damages can be maintained; (b) all damages suffered in all
jurisdictions can be recovered in the one action; and a
judgment for or against the plaintiff upon the merits of any
action for damages bars any other action for damages between
the same parties in all jurisdictions. ”
33. In 2002, the New York Court of Appeals, applied the single
publication rule to a website publication in Firth v State of New York
(2002) NY int 88 . This appeal presented the first occasion for that court to
determine how the defamation jurisprudence, developed in connection with
traditional mass media communications, applies to communications in a new
medium- cyberspace- in the modern information age. In this case a report
had been published at a press conference on 16.12.1996, and placed on the
internet on the same day. The Claimant, however, did not file a claim for
over a year. The Court found that the limitation period started when the
information was first placed on the website, and not from each “hit”
received. Levine, J. observed that “ In addition to increasing the exposure of
publishers to stale claims, applying the multiple publication rule to a
communication distributed via mass media would permit a multiplicity of
actions, leading to potential harassment and excessive liability, and
draining of judicial resources (see Keeton v. Hustler Mag., Inc., 465 US
770, 777 [1984] )”. The court further held that the policies impelling the
original adoption of the single publication rule “are even more cogent when
considered in connection with the exponential growth of the instantaneous ,
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worldwide ability to communicate through the internet.” The alternative
would give “even greater potential for endless retriggering of the statute of
limitations, multiplicity of suits and harassment of defendants.” The court
further observed that if the single publication rule is not upheld with regard
to internet publications, then “ Inevitably, there would be a serious
inhibitory effect on the open, pervasive dissemination of information and
ideas over the internet, which is, of course, its greatest beneficial
promise.”
34. The court also rejected the argument that re-publication re-triggered
the period of limitation. The court observed that re-publication occurs:
“ upon a separate aggregate publication from the original, on a
different occasion, which is not merely "a delayed circulation of
the original edition" (Rinaldi v Viking Penguin, Inc., 52 NY2d
at 435; Restatement [Second] of Torts § 577A, Comment d, at
210, supra). The justification for this exception to the single
publication rule is that the subsequent publication is intended
to and actually reaches a new audience (see Rinaldi, 52 NY2d
at 433 [citing Cook v Conners, 215 NY 175 (1915)];
Restatement, Comment d). Thus, for example, repetition of a
defamatory statement in a later edition of a book, magazine or
newspaper may give rise to a new cause of action (seeRinaldi,
52 NY2d at 433-435 [hard-cover and paperback editions of the
same book]; see also Cook v Conners, 215 NY at 179 [morning
and afternoon editions of newspapers owned and published by
the same individual]).
The mere addition of unrelated information to a Web site
cannot be equated with the repetition of defamatory matter in a
separately published edition of a book or newspaper, as
in Rinaldi and Cook. The justification for the republication
exception has no application at all to the addition of unrelated
material on a Web site, for it is not reasonably inferable that
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the addition was made either with the intent or the result of
communicating the earlier and separate defamatory
information to a new audience ”.
35. In 2005, the Superior Court of New Jersey, Appellate Division, in
Scott Churchill & Anr v State of New Jersey , 378 N.J. Super. 471,478
(App. Div. 2005) discussed elaborately on the question of whether the
“single publication rule” applies to publication on the internet. It was held
that:
“ New Jersey follows the single publication rule for mass
publications under which a plaintiff alleging defamation has a
single cause of action, which arises at the first publication of an
alleged libel, regardless of the number of copies of the
publication distributed or sold. Barres v. Holt, Rinehart &
Winston, Inc., 131 N.J.Super. 371, 374-375, 379, 390 (Law
Div.1974), aff'd o.b., 141 N.J.Super. 563, (App.Div.1976), aff'd
o.b., 74 N.J. 461, (1977). See also Restatement (Second) of
Torts § 577A(3) (1977) ("Any one edition of a book or
newspaper, or any one radio or television broadcast, exhibition
of a motion picture or similar aggregate communication is a
single publication."). In adopting the single publication rule for
mass publications, New Jersey rejected the traditional multiple
publication rule under which each repetition of a libel, for
example, each sale of a publication, would create a new cause
of action. Barres, supra, 131 N.J.Super. at 374-375,”
The single publication rule prevents the constant tolling of the
statute of limitations, effectuating express legislative policy in
favor of a short statute of limitations period for defamation. It
also allows ease of management whereby all the damages
suffered by a plaintiff are consolidated in a single case, thereby
preventing potential harassment of defendants through a
multiplicity of suits. Id. at 379, 387-388. Accord, Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 777, 104 S. Ct. 1473,
1480, 79 L. Ed. 2d 790, 799 (1984); Gregoire v. G.P. Putnam's
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Sons, 81 N.E.2d 45, 47-49 (N.Y. 1948); Restatement (Second) of
Torts, supra, § 577A. Finally, the single publication rule is
more consistent with modern practices of mass production and
widespread distribution of printed information than the multiple
publication rule. Barres, supra,131 N.J. Super. at 380-381
(citing Gregoire, supra, 81 N.E.2d at 46-47).
36. The question was again addressed by the superior court of New
Jersey, Appellate Division, in a recent case entitled, Soloman v Gannett
Co. Inc (Docket No. A-6160-11T4) decided on 26.06.2013 . In this case, the
plaintiff was subject of a news article posted on the internet which he
alleged to be defamatory. However, he filed a suit, beyond the period of one
year after the initial publication on the website. The plaintiff took the
position that it was not time barred because it had been republished each
time the Defendant changed advertisements on the site to reach a new or
broader audience. The Court disagreed, and determined that the case was
time barred under the principle enunciated in Churchill (Supra) .
37. In formulating my view, I have benefitted from the articles by Ursula
Connolly titled “Multiple Publication and Online Defamation – Recent
Reforms in Ireland and the United Kingdom” published in 2012; the article
published in Harvard Law Review, Vol.123:1315 titled “The Single
Publication Rule and Online Copyright : Tensions between Broadcast,
Licensing and Defamation Law”, apart from the U.K. Government
consultation paper – “The Multiple Publication Rule CP 20/09”.
38. I am of the view that the Single Publication Rule is more appropriate
and pragmatic to apply, rather the Multiple Publication Rule. I find the
reasoning adopted by the American Courts in this regard to be more
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appealing than the one adopted by the English Courts, prior to the
amendment of the law by the introduction of the Defamation Act, 2013. It is
the policy of the law of limitation to bar the remedy beyond the prescribed
period. That legislative policy would stand defeated if the mere continued
residing of the defamatory material or article on the website were to give a
continuous cause of action to the plaintiff to sue for defamation/libel. Of
course, if there is re-publication resorted to by the defendant - with a view to
reach the different or larger section of the public in respect of the
defamatory article or material, it would give rise to a fresh cause of action .
39. The alleged libelous posting on Facebook, as averred in the plaint,
was posted on around 26.10.2008, 27.10.2008 and even the booklet
containing the allegedly defamatory material concerning the plaintiff is said
to have been circulated around 25.12.2008. In view of the same, the
limitation period for the suit expired on 25.12.2009.
40. Since the suit to claim damages for libel has not been filed within the
period of limitation of one year from the date when the cause of action
arose, i.e. when the libel was published, the said claim is barred by
limitation.
41. The second relief sought by the plaintiff is that the defendant be
mandatorily injuncted to tender an unconditional apology by publication in
two national dailies/sites on the internet, stating that they withdraw the false
and malicious allegations made against the plaintiff. Firstly, this relief is
also barred by limitation, because the cause of action arose, as aforesaid, on
or about 26.10.2008, 27.10.2008 or 25.12.2008 and expired on 25.12.2009.
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The grant of the said mandatory injunction is premised on the foundation
that the alleged postings on the facebook page or the printed materials was
libelous qua the plaintiff. The said issue cannot be examined – the suit not
having been filed within the period of limitation of one year from the date of
publication. Consequently, the relief of mandatory injunction is also barred
by limitation. Secondly, to claim this relief, the plaintiff has to establish that
the defendant owes an obligation to the plaintiff, and to prevent the breach
of the said obligation, it is necessary to compel the performance of requisite
acts (See Section 39 Specific Relief Act, 1963). In the present case, even if
it were to be accepted that the defendant owed a legal obligation to the
plaintiff not to make or publish libelous statements against the plaintiff, the
said obligation already stands breached according to the plaintiff.
Therefore, there is no question of now preventing the breach of the said
obligation. It is not a case where the plaintiff has approached the Court
before the alleged publication of the libelous materials (as claimed by the
plaintiff), and the plaintiff is seeking a preventive injunction, or a mandatory
injunction to prevent the breach of the defendants legal obligation not to
defame the plaintiff. Consequently, the said relief sought by the plaintiff
cannot be granted in the facts of the present case, even if all the material
averments of the plaintiff are accepted as correct-which this Court must
assume to be true at this stage while dealing with the applications. I also
find merit in the defendants other application under Order 7 Rule 11 CPC
being I.A. No.13629/2011. In Arun Kumar Aggarwal (supra) , the court
held as follows:
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“6. Section 13(1)(i) provides that any marriage solemnized,
whether before or after the commencement of this Act, may, on
a petition presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the other
party has, after solemnization of the marriage, had voluntary
sexual intercourse with any person other than his or her
spouse. A petition under Section 13(1)(i) necessarily therefore
involves an allegation of voluntary sexual intercourse by the
spouse with a third party. Where such adulterer is named in the
petition and evidence is let in to show that the spouse had
intercourse with such person, the Court will have to record a
finding that the spouse had voluntary sexual intercourse with
such named person. There is no gainsaying that such a
finding/decision will adversely affect the reputation of the
person who is alleged to have committed the adulterous act.
Public interest and principles of natural justice require that
the person concerned should have an opportunity to defend
his reputation before such a finding is recorded. It is precisely
for this reason that Rules framed by several High Courts
(Allahabad, Andhra Pradesh, Mumbai, Delhi, Gujarat,
Himachal Pradesh, Kerala, Chennai, Orissa, Patna, Punjab
and Rajasthan) specifically require that the alleged adulterer
should be impleaded as a co-respondent in a petition under
Section 13(1)(i) of the Hindu Marriage Act, even though no
relief may be claimed against him. ..As observed by a Division
Bench of Calcutta High Court in Sikha Singh v. Dina
Chakrabarty and Ors., : AIR1982Cal370 the rule requiring
joinder of the adulterer as a co-respondent proceeds on a
public policy to prevent collusion and character
assassination”. (emphasis supplied)
42. In Swaran Kumari Malhotra v Amir Chand Malhotra ( 1970) ILR
Delhi 673, the husband in his divorce petition had not complied with rule 10
of the Rules framed by the Delhi High Court in exercise of the powers
conferred on it by section 21 of the HMA, and had not impleaded all the
alleged adulterers as co-respondents. The question that arose was whether -
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in view of the rule made by the High Court, such a petition would be
incompetent. The court held as under:
“(6) The word "adulterer" used in singular in this rule will
include the plural of this word also (vide section 13 of the
General Clauses Act) with the result that in case of a petition
filed on the ground of adultery where adultery is alleged with
more than one person, the petitioner is bound to implead all the
adulterers as a party to the petition. The use of the word "shall"
in this provision further makes it clear that this requirement is
mandatory. The reason for it appears to be obvious. It is the
basic principle of jurisprudence that no person shall be
condemned unheard. In the case of a petition for divorce on
the ground of adultery the petitioner does not seek any direct
relief against the adulterer but the character, and conduct of
the alleged adulterer is very much before the court and the
court is called upon to pronounce judgment over it. In
keeping with the principles of natural justice the adulterer
should, therefore, be a party to these proceedings and this is
what the rule has provided. A petition framed in disregard of
this rule is defective and should not be allowed to be proceeded
with and should be rejected by the trial court unless the
petitioner claims to be excused from impleading the adulterer
specifically on the grounds mentioned in clauses (a), (b) and (c)
of the rule.” (emphasis supplied)
43. In M. K Kunhiraman v Santha @ Devaki , AIR 1998, Ker 189 , the
Kerala High Court, held that a petition for divorce under Section 13 (1) of
HMA, is not maintainable without impleading such person as a respondent
with whom adultery is alleged to have been committed. The court held that
in absence of the adulterer, who is a “necessary party”, the petition is in
contravention of the provisions of the HMA and the rules framed by the
High Court.
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44. In Mirapala Venkata Ramana v Mirapala Peddiraju , AIR 2000 AP
328, the Division Bench of the Andhra Pradesh High Court on a similar
question held that:
“In a case for divorce basing on adultery , the adulterer is a
necessary party and ought to be made second respondent in the
instant case. But, the respondent/husband had failed to implead
the alleged adulterer and as such the OP is hit by non-joinder
of necessary party.”
45. In M Mallika v M. Raju & Anr , 2005 (2) CTC 28 , the Madras High
Court upheld the order of the lower court that presence of the adulterer as a
Co-respondent was necessary to adjudicate dispute of divorce based on
adultery . The Court further held that in divorce proceedings, the adulterer
was necessary party and should have been named and made party in
proceedings. In a recent decision of the Andhra Pradesh High court in Smt.
Ch. Padmavathi v Ch. Sai Babu , 2013 (1) ALD 165 , the Court has held that
the alleged adulterer is a necessary and proper party to a proceeding under
Sec 13(1)(i)of the HMA Act.
46. From the above catena of decisions, it is well settled that in a suit
wherein the plaintiff alleges adulterous relationship against the defendant,
both the parties allegedly involved in such adulterous relationship, of
necessity, must be parties. The plaintiff cannot choose to implead only one
of the two parties involved in the alleged adulterous relationship as a party
defendant, while not proceeding against the other. In the present case, the
plaintiff consciously impleaded his wife Mrs. Shazia Shaw as defendant
no.2. Subsequently, he has voluntarily sought to withdraw the suit qua Mrs.
Shazia Shaw by moving I.A. No.10296/2010 under Order 23 Rule 1 CPC on
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the basis of the agreement/settlement deed dated 17.06.2010. Having done
so voluntarily, the plaintiff cannot seek to proceed with the suit against the
defendant – the alleged adulterer, to establish the conduct of the sole
defendant vis-à-vis, the erstwhile defendant no.2 and his ex-wife Mrs.
Shazia Shaw. This is so, because, it would also be the conduct of Mrs.
Shazia Shaw which would be under scrutiny and her reputation would also
be at stake, if the suit were to proceed to determine the primary issue as to
whether, or not, the sole defendant and Mrs. Shazia Shaw were in an
adulterous relationship. Such a finding cannot be returned in the absence of
Mrs. Shazia Shaw. It would have been one thing if the suit had originally
been filed by the plaintiff against the sole defendant Mr. Asif Nazir Mir.
The objection regarding maintainability of such a suit in the absence of Mrs.
Shazia Shaw could have been met by impleading Mrs. Shazia Shaw as a
party defendant subject, of course, to the law of limitation. However, in the
present case, Mrs. Shazia Shaw was initially impleaded as defendant no.2
and was voluntarily and unconditionally deleted from the array of
defendants by the plaintiff, by giving up his claim against Mrs. Shazia Shaw.
Therefore, once having given up his claim against Mrs. Shazia Shaw, the
plaintiff cannot seek to bring her back as a party defendant. Any such move
would not only be hit by Order 23 Rule 1 CPC, which not only bars the
plaintiffs relief qua Mrs. Shazia Shaw, but would also be contrary to the
settlement arrived at between the plaintiff and the erstwhile defendant no.2
Mrs. Shazia Shaw contained in the application under Order 23 Rule 1 CPC
being I.A. No.10296/2010. The purport of the said settlement is that the
plaintiff gave up his right to seek a trial of the issue whether the erstwhile
defendant No. 2 was in an adulterous relationship with the defendant. The
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plaintiff, who is shown as the second party in the agreement/settlement
dated 17.06.2010, inter alia, expressly agreed to withdraw the present suit
being Suit No.290/2009 pending in this court against the first party i.e. Mrs.
Shazia Shaw. Consequently, the plaintiff cannot be permitted to proceed,
either, by impleading Mrs. Shazia Shaw, or in her absence against the sole
defendant, as the nature of allegations against the sole defendant impinge on
the name, reputation and conduct of Mrs. Shazia Shaw. The plaintiff should
have been mindful of this consequence when he entered the settlement deed
dated 17.06.2010 with Mrs. Shazia Shaw. He did so voluntarily and at his
own peril.
47. In view of the aforesaid, I.A no 13629/2011 and 14479 /2011 are
allowed and the suit is dismissed as being barred by limitation and also as
not being maintainable against the defendant. Accordingly, I.A
No.13630/2011 and I.A. No. 8404/2013 also stand disposed of as having
become infructuous.
VIPIN SANGHI, J.
NOVEMBER 07, 2013
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