What’s the news: Right to comment on content created on social media or on TV channels has to be recognised as a facet of the right to free speech and expression under Article 19(1)(a) of the constitution, said the Delhi High Court on July 29.
Judge Asha Menon passed the order while hearing the case against Newslaundry by TV Today Network. The TV channel accused the news portal of defaming and “tarnishing its reputation” using copyrighted content. Meanwhile, Newslaundry said that the content was used under “fair use” for “satire.”
Why it matters: Freedom of speech and expression in India is subject to “reasonable restrictions”. In recent times, an increasing number of people, especially journalists, are being penalised for allegedly ‘abusing’ this fundamental right. The Delhi High Court with this judgement not only acknowledged journalists’ right to critique but also stated that the right to comment is a part of free speech.
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Right to comment enshrined in right to free speech: Judge Menon in her order said that the right to publish and circulate one’s opinions or views via electronic media, TV channels, social media falls under the right to free speech and expression.
“Quite clearly, the right to broadcast programmes would be included in the right to free speech and expression. As has been held in Sakal Papers (P) Ltd. v. Union of India, (1962) 3 SCR 842, the right to free speech and expression carries with it the right to publish and circulate one’s ideas, opinions and views with complete freedom and by resorting to the available means of publication, which, in the opinion of this Court, would also mean and include not only the electronic media and T.V. channels, but also the social-media platforms as the object of publication and broadcast is the same i.e., to reach out to the public,” said the order.
Responding to the decision, Abhinandan Sekhri, Newslaundry Co-Founder and CEO said, “I welcome the decision. I feel it is an important acknowledgement that media critique can also be done. Media cannot be above critique.”
Menon went on to say in the order that a multitude of reporting styles, prioritization and presentation of events that occur daily, always serves public interest “since broadcast is intended to communicate to the public.” Coverage and reportage of different information by many players will result in a better informed society, said the order. Further, different priorities result in a range of information being readily available with regard to current events.
The order said that varied presentations and discussions of news will lead to “several shades of opinion” before the public, who can then come to their own conclusion. As such, Menon said that the right of fair comment on current events and of criticism and review, including of the programmes created by others in the hands of every broadcaster “will definitely be in the interest of the public.”
Satire not intended to defame: In its defence, Newslaundry said that the contentious programme was made with the ‘flavour of satire’ in mind. The court said that satire is included in the freedom of expression. However, “it must be evident that what was being presented is indeed satire.” According to the court, the intention of a satirist is to simultaneously highlight an action and its negative fallout, so that relevant authorities can take corrective measures.
“Since the defendants claim their programme is satire, they need to explain which one of their programmes is “satire”, what portion is “comment” and what justified “criticism”. But whether the comment is satirical or malicious would have to be established as a fact and therefore, would require trial and a presumption either way cannot be drawn at this stage,” said the order.
While it agreed that satirical artists use sharp language to convey a message, the order pointed out that it is done in a cultured and nuanced manner. The high court argued that such a creative genre must be encouraged and protected.
“It is never intended to disparage or harm reputation and thus is completely devoid of malice. Satirists, at all times in our culture, have been greatly respected and there are several art forms in this country that allowed such criticism of even the Rulers in the heydays of Monarchy and which art forms still exist. Examples, that come to mind are “Ottamthullal” and the “Chakiyaarkoothu”, both in Kerala,” said the order.
Again, Sekhri said that the court made a good comment on “satire being an important tool of commentary and critique.”
Balance of convenience in favour of defence: Regarding the call for an interim injunction, the court said the demand will three cardinal requirements, namely, ‘prima facie case,’ ‘irreparable loss and injury’ and ‘balance of convenience.’
However, in this case, the balance of convenience tilts in favour of Newslaundry provided that they are able to establish justification and fair comment and fair dealing. If this is done, the plaintiff will fail both in respect of their claim against copyright infringement/broadcast right violation as also defamation/disparagement.
Further, a mandatory injunction will harm the news portal more than the TV channel if the former succeeds in its defence. This is so because the TV channel will be entitled to be compensated with damages to the tune of ₹ 2,00,00,100. Thus, the plaintiff will not suffer from ‘irreparable loss or injury’ that cannot be recompensed by damages in the absence of the interim injunction.
As for misrepresentation, the High Court said a trial court will be in a better position to consider whether there has been misrepresentation of facts.
“Suffice it to observe that during trial, both sides would have ample opportunity to show the extent of reproduction made by the defendants of the content of the plaintiff, in their own shows/programmes,” said the order.
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