Shilpa Shetty defamation case: Bombay HC refuses to pass ‘gag’ order

The Bombay High Court observed Friday that the “right to privacy is required to be balanced with the freedom of the press” and refused to pass any blanket “gag” order granting an interim injunction against media organisations and private persons allegedly uploading “defamatory” content on actor Shilpa Shetty, wife of businessman Raj Kundra who was arrested by the Mumbai Police in the adult films case.

The court, however, asked the defendants to ensure the “defamatory” videos made against the actor, which they have taken down, is not uploaded again. It also directed a TV channel from Uttar Pradesh, one of the defendants in the case, to take down a disputed video uploaded on a social media platform.

Passing a blanket gag order on the media against reporting anything against Shetty, the court said, will have a “chilling effect on the freedom of the press” and would amount to “pre-censorship” as it was constrained to decide on what amounted to good and fair journalism.

A single-judge bench of Justice Gautam S Patel was hearing Shetty’s interim application in a defamation suit seeking damages of Rs 25 crore seeking to restrain various media organisations from publishing any “incorrect, false, malicious and defamatory” content against her on social media and websites in connection with the arrest of Kundra.

Perusing the plea, Justice Patel initially observed, “Your (Shetty) case that Google, YouTube, Twitter, etc, shall exercise control over editorial content is dangerous. The plaint is like if you (media) are not going to say nice things about me, do not say anything at all. You choose a life in the public eye, part of it will come under the territory. Your life will come under the microscope. What you are asking me to do can have a chilling effect on freedom of the press.”

The court asked senior counsel Birendra Saraf, for the plaintiff, to point out specific instances of organisations or individuals uploading “defamatory” content with “salacious purpose” or “mischief”.

Justice Patel stated that he was not inclined to grant any interim relief at the present stage as allegations raised in the suit required scrutiny and it was not possible to assess if all statements of all defendants were indeed defamatory. The bench clarified that no part of the order should be construed as a gag on the media, except specific 2-3 instances.

“None of this (alleged defamatory content) should involve parenting of her children. That part is protected by her right of privacy under the wide protection recognised by the constitution and freedom of press be balanced with the right to privacy,” the bench noted.

Justice Patel went on to note, “It is possible that freedom of speech may have to be narrowly tailored. But it is not possible to ignore the constitutional pinning of privacy nor to say that if a person is a public figure, that person is deemed to have sacrificed his/her right to privacy.”

The court directed all defendants in the suit to file their affidavits in reply and posted the further hearing to September 20.