Last week, we received a legal notice from Star India asking us to not make “repeated references” to Peter Mukerjea as the former CEO of Star India, in the context of the case of a case involving his wife Indrani Mukerjea. A copy of the legal notice is below, and the notice was particularly strange given the fact that we’ve not reported on this particular case because of its lack of relevance from a digital ecosystem point of view.
After we pointed out to Star India that the last MediaNama story to reference Peter Mukerjea on MediaNama was in 2013, (and, by the way, even that only referred to Peter Mukerjea as the founder of INX Media), Star India withdrew its notice.
A quick opinion on how the notice (a copy below) might be viewed in the context of defamation, from Apar Gupta.
— Apar Gupta (@aparatbar) September 4, 2015
However, we thought we’d use this as an opportunity to discuss criminal defamation and legal notices, especially in the context of the Internet.
Chilling effect of legal notices
There are threats of legal action (we’ve received some while working on some stories), legal notices (we got one from Monster for this story) and then there are lawsuits. Each of these makes people err on the side of caution: it means I’ll be afraid to say something, even though it may not violate any law: a form of self censorship. I might also see someone else be sent a legal notice, and be afraid to do something similar.
A legal notice is merely a warning (a threat), but what it does is cause a chilling effect. Just as Amit Bhawani took down his consumer poll at AmazonVsFlipkart.com on receiving a legal notice from Flipkart, most publications, on receiving such a notice will, most likely, stop referring to Mukerjea as the Former CEO of Star India, even though that is factually correct.
Criminal Defamation and the Internet
That being said, truth is (bizarrely) not always applicable as a defence in case of criminal defamation. Nandita Saikia, who has a detailed writeup on defamation here, writes:
“As far as the ‘truth defence’ is concerned, although ‘truth’ is generally considered to be a defence to defamation as a civil offence, under criminal law, only truth is a defence to defamation as a crime (assuming, of course, that it is demonstrably true) only in a limited number of circumstances. This can make persons particularly vulnerable to being held guilty of having committed defamation under the IPC even if the imputations the made were truthful.“
Note that MediaNama has made a (verbal) representation to the Law Commission of India against Criminal Defamation, especially given the fact that many users may be held criminally liable for comments made online. From a half completed written submission (which we never got around to completing, and hence didn’t submit):
A personal reputation cannot be restituted by imprisoning a journalist, especially in a country where individuals are as prickly as ours, and the process of being acquitted (when innocent) is punishing, and a punishment in itself that is disproportionate to the complaint. Criminal trials are often about harassment and intimidation, rather than actual punishment. The best recourse is for monetary damages.
The Law Commission must also take into account the dual nature of the Internet: it is both a means of personal communication and publishing, and often, there is little different between the two. On Twitter, Facebook and Google+, people communicate by publishing responses.
What is meant to be communication essentially becomes publishing, and often public. The other aspect of the internet is this inherent sense of anonymity. Internet protocols do not force users to identify themselves (the adage: “On the Internet, nobody knows you’re a dog”), and most people feel more open and free to voice an opinion that they might otherwise not feel is appropriate when communicating in person. The sense of security in anonymity is important because it often allows people to be more open and free in voicing their true feelings. There is a flip side, no doubt, and while with freedom comes responsibility, the Law Commission should take into account that the Internet, when seen through the myopic viewpoint of being limited to publishing (and not communicating), opens up a large number of people – potentially over 100 million Indians – to Criminal Defamation.
In addition, we do not believe that the Law Commission should merely exempt journalists from Criminal Defamation. On the Internet, on social media platforms such as Facebook and Twitter, everyone is a journalist. News breaks first on Twitter across the globe. Citizens publish photos and videos on social networks from war zones. How does one define a journalist in today’s day and age? As a publication run by journalists, we are opposed to being given any special treatment, and strongly feel that Defamation shouldn’t be Criminal.
Effect on parody: It is in the interest of free speech, that on digital platforms like the Internet and the Mobile Internet, news developments are free for being parodied. Parody today is a recognized and accepted form of criticism, but due to the inherent nature of parody, which involves making fun of individuals, corporates and those involved in news developments, it is most susceptible to charges of Criminal Defamation. In our opinion, parody should be exempt from Criminal Defamation.
Despite all of this, it’s important to remember that the Internet is still a space where authenticity of information is often in question, the sources of that information are not always easy to identify, and when it spreads, it’s difficult to figure out where it all started from. There are no easy answers here, and possibly the only way to address this is to counter misinformation with authenticated information.
The text of the legal notice we received (which was withdrawn by Star India)
20 A Rajpur Road,
Civil Lines, Delhi-110054
Re:News Reporting – Events related to Mr. Peter Mukerjea
We write on behalf of our client – Star India Private Limited
We reference the various news articles that you have been publishing relating to alleged actions/omissions of Ms. Indrani Mukerjea, from time to time over the last few days. In such articles, there are several references to Mr. Peter Mukerjea.
We note that is these articles, a deliberate reference is being drawn to Mr.Peter Mukerjea being the “Ex-CEO of star India” / “Former CEO of Star India”.
Our client strongly objects to such repeated references being made to Mr. Peter Mukerjea’s historical association with Star India, even though the association with Star India ended more than 8 years ago, and has no connection to the alleged offences committed by Ms. Indrani Mukerjea and others.
It is submitted that,such repeated references being drawn to connections between Mr.Peter Mukerjea and Star India, which have no connection to the news events, is defamatory to Star India, and would cause harm to the reputation and goodwill of Star India. Whilst we respect your ability to report news events,it is also incumbent that you report such news events without defaming reputed corporates like Star India, which carry enormous public goodwill, especially when Star India is not in any way connected to the alleged crimes of Ms. Indrani Mukerjea and others.
Going forward, you are requested,to refrain from drawing connections between Mr.Peter Mukerjea and Star India in all your news reports relating to the alleged offences committed by Ms. Indrani Mukerjea and others.
Image credit: Flickr user Maia Weinstock