Expanding Contours Of Defamation Law In Employment Setting

**Vaibhav Mishra

Introduction: 

In a landmark development for Indian defamation jurisprudence, the Delhi High Court (‘HC’) in the case of Abhijit Mishra vs. Wipro Limited (Wipro Ruling) for the first time in India, has given recognition to Doctrine of Compelled Self-Publication (Doctrine) – a concept emanating from American Jurisprudence. Under this Doctrine, an employer is held liable for the defaming employee, where employee would be ‘compelled’ to repeat a defamatory statement of employer to the third party. In this case, the court interpreting a private-employment contract, granted protection to the employee from the defamatory contents in the termination letter, even though the employer didn’t communicate the defamatory statement to any third party. 

In this case, the court interpreting a private-employment contract, granted protection to the employee from the defamatory contents in the termination letter, even though the employer didn’t communicate the defamatory statement to any third party. Thus, Wipro Ruling shifts the traditional interpretation of ‘Publication’ requirement – an essential condition to establish defamation, to its broadened scope. This could have implications well beyond the contours of employer-employee relationships.

 In this article, author examines Wipro Ruling’s application of the Doctrine in the Indian Context & the US Jurisprudence on the Doctrine, while also offering critical recommendations to strengthen evolving jurisprudence of defamation in Employment context. 

Understanding the Background & Judgment Of The Case 

In this case, a suit was filed by Abhijit Mishra, an employee, against Wipro Limited regarding his termination from the company. The primary issue stemmed from the language adopted by Wipro Ltd in its termination letter. The termination letter included words like ‘malicious conduct’ ‘complete loss of trust and confidence’ for the employee, while alleging him for breaking the employer-employee relationship. Abhijit claimed that the contents of the termination letter were defamatory in nature and could affect his reputation and professional integrity. 

From issues that emerged from this factual scenario, The HC was tasked with two important aspects, firstly, question of determinability of contract between Wipro & Abhijit Mishra and Lastly, question of determining Whether the contents of the termination letter issued by Wipro Ltd constitute an act of defamation against employee, i.e. Abhijit Mishra. 

Determinability Of Contract: Delhi Hc’s Interpreataion Amid Conflicting Approaches

A contract is determinable when either party has power to terminate the contract. Section 14 of Special Relief Act, 1963 (Act) posits that a contract of determinable nature can’t be enforced. In the instant case, court has crucial task of determining whether contract between Abhijit Mishra & Wipro Ltd was determinable in nature. The key to its conclusion was interpretation of terminable clause of the contract that gave power to the either party to do away with contract by prior-notice without need of disclosing reason. This implied either party could terminate the contract at their own will. Thus, court placing reliance upon Section 14(d) of the Act, concluded existence of determinable contract between the parties. Therefore, relying on SC’s judgment in Binny Ltd v Sadasivan, which barred courts to offer public law remedy for determinable private-employment contracts, the employee was denied reinstatement in the company.  

Interestingly, HC has recently, in Gaurav Rajgaria v. Maruti Suzuki India has held mere presence of termination clause whether with or without requirement of disclosure of reason would make a contract determinable and unforceable under Section 14(d) of the Act. However, in Wipro Ltd case, contract was only held determinable due to no requirement of disclosing reason either by employee or employer prior to termination. An approach similar to Wipro Ruling could be observed in TO Abraham v. Jose Thomas case, where court held that requirement of ‘show cause’ prior to termination could be a deciding factor of determinability. Similarly, Bombay High Court, in Narendra HIrawat v. Sholay Media Entertainment, held that determinability depends upon ‘sweet will of parties’ and arises when termination is not backed by requirement of disclosing reasons, circumstance etc. 

Therefore, there exists conflicting approaches as to whether mere presence of termination clause would make a contract determinable or the requirement of disclosing reason or circumstances for termination is a deciding factor for contract’s determinability. This newly evolved restrictive approach to determinability is more commercially sound as it helps the parties to enforce commercial contracts and mere presence of ‘termination clause’ doesn’t hinder its enforcement. Despite long quest to settle jurisprudence on deteminability of contract vis-à-vis SRA, issue remains unresolved. The duty rests with Supreme Court to settle the jurisprudence on the issue.

Reassessing Scope Of ‘Publication’: HC’s Endorsement Of Compelled Self-Publication 

Publication is one of the essential conditions to establish defamation under Section 356 of Bharatiya Nyaya Sanhita. The requirement of ‘publication’ implies communicating a defamatory statement to a third party. In the instant case, the termination letter was not published. However, the contents of the termination letter were not communicated to the third party. Thus, going by traditional interpretation, the requirement of publication wasn’t fulfilled. However, HC’s interpretation tweaked the traditional understanding of ‘publication’. The court held that a compulsive disclosure by an employee of defamatory content in search of a new job would constitute ‘publication’. 

The Court’s approach marked the first application of the Doctrine in Indian jurisdiction. The traditional interpretation of ‘publication’ as evinced from Lord Asher’s observation in Pullman v. Hill, is that a defamatory statement needs to be communicated to any person other than the plaintiff. Even Salmond and Winfield’s definition of defamation is structured around ‘publication’ of a defamatory statement in society i.e. making a defamatory statement known to a person other than the aggrieved. The Kochi High Court recently quashed the defamation proceedings against two dance artists as the complainant was unable to produce the proof of publication of defamatory statements. 

However, due to Wipro Ruling’s, for defamation, employer need not himself communicate defamatory words to a third party. As an employee is himself compelled to produce a defamatory statement to prospective employers, the employer is held liable for defamation. Therefore, HC’s judgment adopting an expansive interpretation of the ‘publication’ requirement effectively protects employees’ right to reputation.

Analyzing The Fragmented interpretation of doctrine in US

The Doctrine of compelled self-publication began to emerge in the US around 1980s. As early in 1946, in Colonial Stores v. Barett,  the colonial stores – employer, issued a defamatory certificate against his employee on termination, which prevented him from being hired by other employers. The Georgian court held it to be a publication, as it was ‘reasonably foreseeable’ with the colonial stores that employee would have to show a certificate to prospective employers. Similarly, in Grist v Upjohn, the Supreme court of Michigan again noted, publication may be concluded if the defendant has ‘reason to forsee’ that the matter would eventually have to be repeated to a third person. The analysis of this line of cases by US courts demonstrates the requirement of ‘foreseeability’ standard, a relatively easier standard from the employee’s perspective. Under this approach, employer’s liability is triggered due to mere anticipation, thereby expanding the employer’s exposure to defamation suits. 

However, a contrasting trend developed with the Minnesota court’s landmark ruling in the case of Lewis v Equitable Life Assurance Society, later also relied on by the Wipro Ruling case, where an employer was denied ‘absence of publication’ defence due to ‘compulsion’ on the employee to disclose the reason of termination. Affirming the ‘compulsion requirement’, in 2020, in Tilkey v Allstate Insurance, the California Court awarded damages to a salesman due to his ‘compulsion’ of repeating defamatory statements of his employer to prospective employers. 

Unlike the earlier approach, this line of cases adopts the ‘compulsion standard’, which makes employer liable, only if the employer can foresee a ‘reasonable compulsion’ of the employee to repeat a defamatory statement. This excludes liability in scenarios where the plaintiff himself chooses to voluntarily publish defamatory statements made about him thereby protecting the employer from malicious suits. 

Notably, apart from a differing approach to Doctrine’s application, the US has still not uniformly accepted the Doctrine. For example, in  Sullivian v Baptist Memorial Hospital, the Supreme court of Tennessee refused to recognise this Doctrine. It held that even compelled publication doesn’t fulfil the requirement of publication. Similarly, in Deborah Gore v. Health-Tex case, the court refused the plea of defamation by Deborah Gore against his employer. He was accused by his employer of falsifying the company records due to his failure to disclose his health condition. The court clearly refused to accept the Doctrine, concluding that compulsion to repeat wouldn’t be considered as publication. Interestingly, the court categorized the communication between the past and prospective employer about the employee under ‘conditional privilege’, thereby refusing to consider the instance as ‘publication’.  

Therefore, underlying rejection of Doctrine within US suggests two-fold split i.e on the basis of threshold of liability under Doctrine due to forseebility vis-à-vis compulsion standard and the very recognition of Doctrine itself. Thus, reliance upon fragmented American jurisprudence holds crucial lessons for the India. 

Key Recommendations

The aforementioned analysis highlights the complex jurisprudence evolved over the Doctrine in US. Therefore, application of doctrine in Indian context could create legal uncertainty. The author provides following recommendations to further develop Indian Defamation Law vis-à-vis employer-employment relationships:

Firstly, the broader application of Doctrine could open floodgates of litigation against the employer. As rightly highlighted by the Massachusetts court, in White v. Blue Cross, it refused to accept the Doctrine, citing its incompatibility with the at-will employment system, i.e a system where employers can terminate employment contracts without any cause. 

The underlying concern, as highlighted above, is that termination in case of private-employment contracts doesn’t come within the purview of administrative and public law principles, thereby barring court from determining the validity of termination. However, the doctrine’s application could open employer’s liability in the post-termination stage, which frustrates the purpose of keeping private-employment contracts outside the court’s purview. Thus, Indian courts must clarify the contours of the Doctrine’s application to the employer to maintain a balance between employees’ right to reputation vis-à-vis avoiding undue burden on the employer. 

Secondly, Post-Wipro Ruling, the Employer might face heightened compliance burdens. While precedents bar courts from assessing the termination on grounds of natural justice or other principles, the employer might still face consequences in case of the employee’s integrity is violated. They now need to reassess their termination procedures. The termination or relieving letter needs to be carefully drafted, which also protects the employee’s fundamental right of reputation under Article 21 of the Indian Constitution.

Lastly, the Wipro ruling highlights the underdeveloped nature of the Indian legal framework in dealing with employment-related defamation cases. In this case, HC had to rely on American doctrine to uphold the employee’s integrity against a defamatory termination letter. Thus, Indian legislators need to rethink whether the existing framework is sufficient to address complex factual scenarios of defamation cases. A comparative study offers critical guidance. The UK has adopted Defamation Act of 2013 (Act) clearly defines the requirement of publication under Section 8 of the Act, while Section 15 lays the scope and meaning of word ‘Publication’. India, by learning from it could also adopt separate legislation that addresses employment-related defamation disputes, clarifies the contours of the requirement of ‘publication’, extent of applicability of the Doctrine, etc. 

Conclusion: 

The Right to reputation has also been affirmed by various international forums. Article 12 of Universal Declaration of Human Rights, posits that no one shall be subjected to attacks on person’s reputation and honor, which would also cover employee’s reputation. Similarly, Article 8 of European Convention of Human Rights deals with respecting ‘private’ and family rights.  Article 8 also includes right to reputation under umbrella of ‘private rights’ as held by European Court of Human Rights, in Axel Springer AG v. Germany. Thus, analysis of international frameworks unanimously affirms reputation as a core human right even in context of employment setting. 

Therefore, in light of the above, the Wipro Ruling by HC is a welcome step as it reinforces employees’ right to reputation and safeguards professional standing in front of prospective employers. However, in case the Indian judiciary chooses to move forward with the Doctrine, its continued application of the Doctrine demands clarification for balancing the employer’s interest with employees’ rights. 

**Vaibhav Mishra from Hidayatullah National Law University, Raipur is in the BA LLB course.

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.