Gag orders on the media have to go

During this election season, a controversy arose when a trial court in Bengaluru issued an ex parte injunction at the behest of Tejaswi Surya, a BJP Lok Sabha candidate. The order required 49 named media houses to desist from publishing “malicious, defamatory, or derogatory” material about the politician. The order was passed in the wake of various #MeToo allegations surfacing about Surya, which the court found suspicious, as they coincided with the start of the election season.

While the order of the trial court was set aside within two weeks by the High Court of Karnataka on April 12, its conduct in this case was not a one-off. Increasingly, trial courts across the country have been seen to grant similarly worded injunctions on the very first day of hearing, before the other side is present. On being shown some articles or newspaper reports, these courts pass a sweeping order restraining named (or unnamed) entities from publishing “defamatory” material against the plaintiff, until further orders.

There are many things that are wrong with orders of this kind. The first is the very manner in which they are framed. According to the civil law of defamation, a statement is “defamatory” if it lowers the reputation of the plaintiff. However, that does not mean that the offence of defamation is automatically completed. A defendant has numerous defences available — for example, she could argue that her statement was true, or that it was a fair comment. If any of these defences succeeds, then for obvious reasons, there shall be no liability, even though the statement was defamatory.

Therefore, when a court passes an injunction preventing anyone from making a “defamatory” statement, what does that mean? Read literally, it would prohibit any statement that lowered the reputation of the plaintiff, even if that statement was true or a fair comment. This would effectively mean a blanket shut down of all discourse that is not complimentary or neutral towards an individual — something that has far-reaching consequences, especially where politicians or other powerful public figures are concerned. It also has the bizarre effect of prohibiting people from making statements even though such statements do not constitute any offence in the eyes of law.

Another way of reading such orders is that they prohibit people from committing the offence of defamation. However, that would make them self-contradictory and self-defeating. It would also betray a misunderstanding of the basic principles of tort law, and of the civil offence of defamation: the appropriate civil remedy, in case defamation is established, is that of compensation. Unlike criminal law, for example, which also expresses a moral disapprobation of the crime (apart from penalising it), tort law simply sets a price upon certain activities: defame if you wish to, just be ready to pay the price for it.

This brings us to the second important problem underlying orders of the kind that the Bangalore trial court passed in Surya’s case. Because of the civil nature of the offence, injunctions in defamation cases are supposed to be issued only in the rarest of rare cases. Defamation law strikes the balance between the freedom of expression and the right to reputation in the legal remedy of compensation, in case defamation is proved at trial. For this reason, an injunction is to be granted only if, at any stage, it becomes abundantly clear that even prima facie, the defendant has no case at all — that in no conceivable circumstances could the statement be true, or a fair comment, or fall within other available defences. As long as the defendant pleads a defence, the court is meant to let the trial continue, and not stifle expression in the meantime. This is the accepted position in common law, and was affirmed in 2011 by Justice Ravindra Bhat of the Delhi High Court, in a lawsuit brought by the Tatas against Greenpeace.

Consequently, wide-ranging trial court orders prohibiting the media (and others) from making “defamatory” statements (especially about public figures) are not only draconian, but also go against well established principles of defamation law and free speech. The Karnataka High Court’s order in Surya’s case is welcome, but the problem is systemic, and needs to be tackled at the level of the trial courts, ensuring a fair and uniform application of the law.

Gautam Bhatia is an advocate in the Supreme Court

The views expressed are personal

First Published: May 01, 2019 03:15 IST