Malicious Falsehood in Tort

 Malicious falsehood is a tort or a civil wrong. Malicious falsehood referred to an act

of maliciously publishing dishonest or false statement concerning the claimant, his
business, property or other economic interests, and that lead third person to act in a
manner causing the claimant pecuniary loss or damage. Malicious falsehood is also
commonly called as an injurious falsehood. Injury to reputation is not a necessary
element to this tort. The objective of the law of malicious falsehood is to protect the
commercial or economic interest of the claimant. This law makes it possible to bring
a cause of action against a defendant where statement themselves are not defamatory
and defamation suit is not appropriate but words made are false and causes damage to
the claimant. Thus, malicious falsehood is an alternative for a defamation suit.
Illustrations

• When a person makes a dishonest statement to the third party that the chatter accountant has retired from his
practice. As a result, he faces pecuniary loss. Although the statement is not defamatory as it does not suggest
any degradable remarks about the chatter accountant but the statement is false.​
• When a company makes false allegation regarding its competitor’s product as a consequence financial loss
occurs. Therefore, the cause of action in malicious falsehood arises against the company.​
• When a person makes a false statement to third parties that the house of the claimant is not available for the
tenancy barring them to occupy the house and causing damage to the claimant.
Defamation and Injurious falsehood

 Injurious falsehood is akin to defamation because in this case, as in defamation, a statement made to
a third person, causes damages to the plaintiff. However, the injurious falsehood and defamation are
much different. In defamation, the plaintiffs interest affected is the reputation, in malicious or
injurious falsehood, it is the pecuniary interest. Further, in defamation , malice in the sense of an evil
motive is one of the essential ingredients of the wrong.
 CONT..

 malicious falsehood would be if it was said that a solicitor had retired from practice. Consequently, this could
cause financial loss through lost trade. It is a false statement; it is not defamatory because it does not suggest
anything bad about the solicitor, only that he is not now practicing. Another example might be a comparative
advertisement; a false statement about your competitor’s products is unlikely to be defamatory but, if false,
may well give rise to an action in malicious falsehood.
Deceit and injurious falsehood

 Deceit or fraud may be defined as a false representation made knowingly or without belief in its truth
or recklessly or carelessly whether it be true or not. Injurious or malicious falsehood has a common
point with the wrong of deceit and that is, the false statement made by the defendant, causes loss to the
plaintiff. But these two wrongs are to be distinguished by the fact that in deceit, the statement is made
to the plaintiff himself who suffers by acting upon it whereas in malicious falsehood, the false
statement is made to the third party in a way that proves injurious to the plaintiffs pecuniary interest.
 Essential elements of malicious
falsehood
There are four prerequisites to prima facie establish a case of malicious falsehood
 False statement: There shall be a dishonest statement concerning the claimant or his business or profession
or his property
 Publication to the third party: The defendant has published a false statement to a third party 
 Malice by the defendant: The statement was maliciously published with the intention of causing harm to
the claimant. Malice would be proved when the defendant knew that the statements were false and the
claimant will naturally face loss.
 Special damage: That the claimant suffered special damage and such damage has followed as direct and
natural consequences of the defendant’s publication. In legal term, special damages refer to actual economic
damages.
Form of the wrong of injurious falsehood

 Slander of title – There is a false and malicious statement about a person’s 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.
 Slander of goods – Anything uttered by the defendant to a third person describing the goods of the
plaintiff as of lower standard, defective and are not useful, such statement is a slander of goods,
for example, allegation of defects in the goods manufactured by the plaintiff. The obvious effect
of such statement is to depreciate the value of the plaintiff’s goods.
 Orion Pet Products Pty Ltd v Royal Society for the Prevention
of Cruelty to Animals [2002] FCA 860; (2002) 120 FCR 191

 Facts: Orion Pet Products Pty Ltd manufactured and sold electronic dog collars for training dogs, in
Australia. The products bear the brand names “No-Bark Collar”, “Smart Dog Containment System”, “Home
Free Containment System” and “Smart Dog Remote Trainer”. In this case, the representatives of the RSPCA
made several statements in the media that electronic dog collars of Orion inflict burn upon dogs,
administered a 3,000-volt shock upon dogs, and damage brain of the dogs and caused death in some cases.

 Held: The court observed that the statements made were factually incorrect and would be likely to damage
the business of the plaintiff, which was a major supplier of these collars. However, the court was satisfied
that the statement made was false but not with malicious intent. The representatives of the RSPCA
genuinely believed that the words stated by them were true. The claim was unsuccessful.
De Beers Abrasive Products Ltd. vs International
General Electric Co. of New York Ltd. (1975

 Mere boasting, comparing, and making statements in favour of own product

against others do not hold the defendant liable for injurious falsehood. This
privilege is conditional and exists only in injurious falsehood. Business
competitors use this in advertising their products.

 To advertise the product, it is allowed to show one’s product as the best product
among all. But, it is not acceptable to devalue the rival’s product with an untrue
and derogatory statement to gain undue profit. Such a case would be held liable
for injurious falsehood
DSG Retail Limited v Comet Group plc
[2002] All ER (D) 112
 Facts: The Comet Group plc released a series of promotional advertisements.
Comet maliciously made the false claim that their prices were comparatively
lower than those of Currys. It was established that contrary to fact.

 Held: The Court held that the statements were aimed at the Claimant, were untrue
and had been deliberately designed to deflect trade away from the Claimant. An
injunction was granted accordingly
Defences

Truth is a defence to a malicious falsehood claim.

Absolute privilege is a defence to malicious falsehood, but honest comment is not a defence.

If the party making a statement publishes a correction quickly and realises their error, it will go
some way to reducing the prospect of a successful claim by the claimant and of being able to show
malice.
SOURCES

 https://www.ejusticeindia.com/malicious-falsehood-in-tort/
 https://aishwaryasandeep.com/2021/09/20/malicious-falsehood/
 https://blog.ipleaders.in/the-tort-of-passing-off/
Passing Off

 Passing off is a common law tort, which can be used to enforce unregistered trademark rights. The
law of passing off prevents one person from misrepresenting his goods or services as that of another.
 In the Trademarks Act, passing off is defined in section 27 (2), 134 (1) (c) and Section 135. The
jurisdiction or power of the district courts in the matter of passing off suits, to try the suit or issue
injunction is referred in section 134(1)(c). Establishment of the case and the irreparable injury or loss
causes is done by the plaintiff.
 No person is entitled to represent the goods of another person as his own. Using of any signs,
symbols, marks, devices or some other means wherein a direct false representation to a person is
permitted.
Essentials of Passing Off

 To make one liable for the tort of passing off, the plaintiff must prove the following-

 His goods were known to the public by some mark, distinctive name, appearance,
get up, or badge.
 The defendant made a spoken or written representation by the conduct of others or
by word of mouth.
 The use or initiation of the name by the defendant misleads the public and made
them believie that the goods by the defendant were of the plaintiff.
 In the ordinary course of business, the defendant’s conduct is likely to mislead or
deceive the public at least in case of unwary or incautious, if not the intelligent or
careful purchaser.
Reckitt & Colman Products Ltd v Borden
Inc


 1- Goodwill owned by a trader: Firstly the plaintiff must establish reputation or

goodwill attached to his services or goods in a suit for passing off.

 2- Misrepresentation: The plaintiff must prove a misrepresentation to the public by the

defendant. That means that it must be likely to lead the public into believing that the
plaintiff has offered the goods and services.

 3- Damage to goodwill: The plaintiff needs to demonstrate that a loss has been suffered
due to a belief that the services and goods by the defendant are those of the plaintiff.
Honda Motors Co. Ltd V Charanjit Singh
& Others

 Facts: Plaintiff was using trademark "HONDA" in respect of automobiles and

power equipment. Defendants started using the mark "HONDA" for its pressure
cookers. Plaintiff bought an action against the defendants for the passing of the
business of the plaintiff.

 Held: It was held that the use of the mark "Honda" by the defendants couldn't be
said to be an honest adoption. Its usage by the defendant is likely to cause
confusion in the minds of the public. The application of the plaintiff was allowed.
Rupa & Co. Ltd v. Dawn Mills Co. Ltd
Akash Arora vs. Yahoo Inc

 this case the court held that the yahooindia is creating confusion in the mind of
the people. And the defendant’s yahooindia is the same as the plaintiff’s yahoo.