Introduction:
In civil proceedings in India, the standard for grant of interim injunction, is well established. The aggrieved party, seeking an injunction, must establish a three-part test to the satisfaction of a court of law, that is, (i) a prima facie case; (ii) balance of convenience; and (iii) irreparable harm/loss. While the three-part test remains applicable in defamation cases (including through offline and online media), for granting interim injunction, the threshold is slightly advanced due to the nature of dispute, rights involved, continuous cause of action (reputational damage if the publication is ex facie defamatory) and due to the advent of technology and widespread access to internet.
Communication through internet is instantaneous and has a wider impact on the public at large. Considering the change in technology, the courts are now required to be more practical than ever, especially in considering grant of interim injunction, restraining alleged defamatory content. The courts have increasingly relied on the Bonnard Principle[1], which in essence means that a court should not grant an interim injunction in respect of an allegedly defamatory publication when the defendant takes a plea of truth of the content as justification and the court thinks that the defendant is not certain to fail at trial. Also, there is an additional requirement of the alleged defamatory publication being ex-facie defamatory and not prima facie. Further, given that right to privacy is a fundamental right[2], it has resulted in an approach change toward defamation cases involving private individuals. Depending on the nature of rights and remedies, we have seen certain improvisations on part of the courts to balance out conflicting rights (right to freedom of speech and expression, right to privacy/ right against reputational damage) and various considerations while deciding interim injunction applications in defamation cases, including the aspect of take down of content globally.
This article seeks to analyse the standard(s) for grant of interim injunction in defamation suits (by way of offline and/ or online media).
THE STANDARD TEST FOR GRANT OF INTERIM INJUNCTION IN DEFAMATION CASES
It is a well settled position of law that for grant of interim injunction in defamation cases, there are three elements/ prerequisites that a court must examine[3]. It is imperative to note that the burden is on the plaintiff to prove the requirements in his favour and accordingly the courts guided by the three parameters, decide cases, depending on the peculiar facts of each case.
It is also equally important to understand the essential ingredients which constitute a case for defamation, which are[4]:
- The statement (made), pertaining to the plaintiff, should be understood by others.
- The publication should be made out to a third party. There is no liability if the defendant did not intend the publication to be viewed by anyone other than the plaintiff.
- The plaintiff must establish some extent of fault or negligence on the part of the defendant in publishing statements (A plaintiff, who is a public figure, will have to show that the statements were malicious. The burden of proof is less demanding in case of a private individual).
- The statements must result in actual or presumed damage.
The valid defences available to the defendant, as enunciated in various judgements[5], are as follows:
- defence of justification of truth;
- defence of fair comment in issues involving larger public interest; and
- defence of privilege.
The courts are normally guided by the above-mentioned ingredients while deciding defamation suits and grant of interim injunction therein. However, with the rapid growth of internet and media, the approach of the courts in deciding defamation suits, especially the aspect of grant of interim injunction, has undergone a slight change, which is being discussed in the present article.
THE VIEW TAKEN BY THE COURTS IN DEFAMATION CASES INVOLVING ONLINE MEDIA
To gauge the parameters of granting interim injunction in defamation cases, it is imperative to examine the case of Tata Sons Limited v. Greenpeace International[6]. The Hon’ble Delhi High Court was dealing with a case wherein Greenpeace India, an Indian affiliate of Greenpeace International, was alleged to have widely circulated defamatory content through an online video game. The online game indicated TATA’s involvement in an industrial project, which allegedly had a fatal effect on the nesting and breeding of “Olive Ridley Turtles”. The main question before the Hon’ble Court was that whether it can give a direction, under the law, for grant of an interim injunction and damages before a full trial takes place. The Hon’ble Court while examining this aspect placed reliance on the Bonnard Principle.
The essence of the Bonnard Principle can be boiled down to two crucial requirements, that is,
(i) whether the impugned content is manifestly defamatory; and
(ii) whether there is a sustainable defence or whether the defence of the defendant is certain to fail at trial.
In other words, the principle substantially means that “the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong.”.
Considering the facts of the case, the Hon’ble Court observed that the established three-part test would still apply to online publications, despite its peculiar character. The Court observed that even if the content is ex-facie defamatory (different from a prima facie view) and the defendant has pleaded/ offered justification for the truth of the alleged defamatory content, then the courts should not readily grant interim injunction to restraint the content. The Hon’ble Court, ultimately, took a view that it would not be prudent to restrain freedom of expression by directing an interim injunction that curbs the publication of the alleged defamatory content or awards damages, without a full trial in which the parties can rely on additional evidence.
The Hon’ble Delhi High Court in Kailash Gahlot v. Vijendra Gupta[7], was dealing with a factual matrix, wherein a legislator was accused of making defamatory statements (via tweets) against another legislator relating to corruption. The Hon’ble Court observed that no irreparable harm was caused given the facts of the case, since the tweets were not prima facie defamatory and further that there was no injury which could not be compensated by damages at a later stage. The Hon’ble Court observed that the established three-part test in defamation, involving online media is slightly different, especially in cases where there are allegations against a public figure.
The Hon’ble Bombay High Court in Lodha Developers Ltd. v. Krishnaraj Rao and Ors.[8] (involving statements made against a developer company), made an interesting observation in relation to defamation involving online media, which is extracted below:
“31. …………..The only difference is that online media allows for plurality of voices. Online, everyone is a journalist, or a potential journalist. Of course, every online user is bound to the same law and the same standards. He or she runs the same risks. But that does not mean that voices must be silenced because they are online. To the contrary : it demands that we must all learn to be significantly more tolerant of opposing opinions. If there is a greater plurality of voices online this is something to be devoutly wished for, not to be suppressed. If in particular there is online comment and it can be said to be fair comment about any product or offering, then there is no reason why it should be forced to be shut down, or why the person who said it should be silenced…………..”
In the recent case of Dr. Vikram Sampath v. Dr. Audrey Truschke and Ors.[9],there were certain allegations against the Defendant, who is an American historian, of making tweets imputing plagiarism on part of the plaintiff, who is a popular historian. The Hon’ble Delhi High, considering the widespread reach of social media, directed the social platform X (then Twitter) to take down the tweets.
The above-mentioned cases indicate that in defamation cases involving online media, there have been certain aspects that have been looked into, in addition to the established three-part test, while deciding interim injunction applications, viz.:
(1) whether the statements were matters of public interest/ fair comment;
(2) whether damages/ harm which were evaluated could be paid at a later stage;
(3) whether the defendant has offered justification for the truth of the content and whether the case of the defendant is certain to fail at trial.
Further, it can be observed from various judicial pronouncements that the courts are inclined towards showing deference to right of free speech and expression in matters involving a corporate party, however, when it comes to cases of defamation proceedings against private individuals, courts are more circumspect because right to privacy and right to freedom and speech have to be balanced.
TAKE DOWN OF ONLINE CONTENT GLOBALLY – AN ISSUE VIS-À-VIS DEFAMATION INVOLVING ONLINE MEDIA
The Hon’ble Delhi High Court in Swami Ramdev and Another v. Facebook, Inc. and Others[10], was dealing with a case wherein an injunction was sought by the plaintiffs against Facebook, YouTube, Google and Twitter, directing them to remove/ pull down the links to a video, which was alleged to be defamatory. The Hon’ble Court while dealing with the interim injunction application filed by the plaintiffs, pondered over the question of whether the URLs to the video deserve to be blocked globally by way of an injunction. Although, the Hon’ble Court observed that insofar as taking down of content globally is concerned, the position is not fully settled, however, it ultimately directed the defendants to take down, remove block, restrict/ disable access to all such videos/ URLs, globally.
However, there have been several orders[11] post the Hon’ble Delhi High Court judgement in Swami Ramdev (supra), which show that orders directing takedown of any online content (alleged to be defamatory) may be passed only with respect to the Indian domain.
Since the law on taking down of articles globally is not yet clear, there may be cases wherein a court, at the interim stage and even before it has formed a prima facie view that an online publication is defamatory, may direct de-indexing (not searchable on search engines such as Google, etc.) of an online publication. Any direction of such a nature may prove to be counterproductive and prejudice the case of a party to a defamation suit even before the trial has begun.
DEFAMATION AND RIGHT TO PRIVACY
In this internet age and with increasing advancement in technology, defamation, irrespective of the fact that it is through online or offline media, has created close ties with the right to privacy enshrined as a fundamental right under the Constitution of India. More so, because defamation relates to the reputation of a person, while invading the private space that an individual has. In Subramanian Swamy v. Union of India[12],the Hon’ble Supreme Court has observed that the reputation of an individual cannot be tarnished by another individual and further that the reputation and privacy of a person is an integral part of an individual’s life and liberty. The advent of deep fake cases targeting specific celebrities has the effect of defaming the concerned person and violating the right to privacy of that individual. The present existing law on defamation, prevalent in India, may need to undergo a change since the present structure does not provide complete and adequate protection to aggrieved persons. One solution could be to read the provisions of the Information Technology Act[13], along with the defamation law in India to tackle such cases of cyber defamation.
CONCLUSION:
From the aforesaid, it is evident that the standards for grant of interim injunction against defamatory statements made or published are well established in defamation cases. However, with change in circumstances due to the widespread reach of social media, there has been an endeavor to read into the established standards for grant of interim injunction, a slightly different threshold, because of the consequent impact on public at large because of this wider reach. The grant of interim injunction also depends and differs on the party defamed (i.e., a private party or a corporate party). Further, issues arise while considering grant of global injunction in defamation suits, which could potentially give rise to a repressive trend of curbing different views. There is also a need to balance the right to privacy vis-à-vis right to freedom of speech and expression. These aspects need a delicate and balanced approach to ensure that right against reputational damage, right to privacy and right to freedom of speech and expression can go hand in hand and not at the cost of each other.
For further information, please contact:
Vikash Kumar Jha, Partner, Cyril Amarchand Mangaldas
vikashkumar.jha@cyrilshroff.com
[1] Enunciated in the case of Bonnard v Perryman, [1891] 2 Ch 269 and adopted by Indian Courts including in Tata Sons Limited v. Greenpeace International, 2011 SCC OnLine Del 466; Kailash Gahlot v. Vijender Gupta, 2022 SCC OnLine Del 679.
[2] Justice K.S. Puttaswamy (Retd) Vs Union of India, (2017) 10 SCC 1.
[3] Gujarat Bottling Co. Ltd. v. Coca Cola Co. 1995 5 SCC 545; (i) A prima facie case in favour of the plaintiff; (ii) Whether the balance of convenience tilts in favour of the plaintiff and against the defendant(s); and (iii) in case the interim injunction sought is not granted, the plaintiff will suffer irreparable harm.
[4] Tata Sons Limited v. Greenpeace International, 2011 SCC OnLine Del 466.
[5] Ram Jethmalani vs. Subramaniam Swamy, 126 (2006) DLT 535; Joseph M. Puthussery v. T.S. John, (2011) 1 SCC 503; Dainik Bhaskar v. Madhusudan Bhaskar, AIR 1991 MP 162; M.G. Perera v. Andrew Vincent Peiris, AIR 1949 PC 106.
[6] 2011 SCC OnLine Del 466.
[7] 2022 SCC OnLine Del 679.
[8] 2019 SCC OnLine Bom 13120.
[9] CS(OS) 95 of 2022.
[10] 2019 SCC OnLine Del 10701; global injunction order presently in appeal before a division bench of the Hon’ble Delhi High Court.
[11] Order dt. 15.11.2019 in Google LLC v. Swami Ramdev & Ors., FAO(OS) 222/2019; Order dt. 1.06.2020 in Patanjali Ayurved v. Sobhagya Media., CS(OS) 135/2020; Order dt. 15.07.2020 in Dr. Gaurav Dahiya v. Mrs. Leenu Singh, CS(OS) 174/2020.
[12] (2016) 7 SCC 221.
[13] Information Technology Act, 2000.
