The Tort of Malicious Falsehood in Comparative Context

In contrast with libel, the tort of malicious falsehood protects the reputation of property and goodwill, rather than personal reputation. Owing to the difficulty in establishing malice, textbooks describe the tort as ‘severely restricted’ and ‘very rarely used’. Following the recognition of non-classical forms of trade mark infringement in contexts involving comparative advertising or unsavoury references, the High Court of Justice has remarked that it is ‘difficult to imagine a case where, given a valid trade mark registration…a claim of malicious falsehood can add anything.’ In contrast, malicious falsehood claims have been frequently and successfully employed in India to protect brand reputation, with courts diluting the malice criterion. My paper criticises the Indian standard for having a chilling effect on free speech. However, I also argue that, with the rise of online disinformation, it may be helpful to reinvent the tort with a diluted standard of malice in a narrow band of cases.