Indian courts are ordering highest speech restrictions (prior restraints and content removal) by testing lower thresholds such as (1) prima facie defamation, (2) balance of convenience, and (3) irreparable injury, which are further often untested in cases brought by private individuals in interim injunction suits.
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A recent trend of defamation suits in India depicts a worrying pattern of court-granted interim injunctions. The inherent nature of an ad-interim relief means that a court is empowered to pass an order without a trial; thus, it intervenes after taking a prima facie view on alleged defamatory statements.
At this stage, a list of problems emerges: (1) the court can prevent the defendant from publishing defamatory statements in the future, that is, order a prior restraint measure, (2) grant injunctions in ex-parte hearings (see here, for example), and (3) the actual trial may take so long that the ad-interim injunction may effectively decide the suit.
In three recent instances of rejection of ad-interim injunctions in online defamation suits, the courts showed a deference to free speech.
In the context of online defamation, in some cases, courts have prevented defendants from further using social media to post defamatory statements. This article investigates the standards as per which a high degree interference with online speech is made, and whether they are actually followed through. It demonstrates that while online defamation suits are subject to the same standard as offline defamation suits, interim injunctions ultimately granted differ as per the party defamed.
The three-part test
To grant an interim injunction in a defamation suit, a court must test three factors: (1) whether the plaintiff has made a prima-facie case, (2) who the balance of convenience lies with, and (3) whether the plaintiff will suffer irreparable loss and injury if the injunction is not granted.
While these factors are tested in all ad-interim injunction suits, the manner in which these standards have been applied in online defamation suits depict an inconsistent pattern through which these standards have been effectively lowered.
In Tata Sons Ltd. versus Greenpeace International (2011), the defendant, independent global campaigning network Greenpeace made an online game called “Turtle vs. Tata” to highlight the damage on Olive Ridley turtles by the plaintiff company’s activities. The plaintiff subsequently sued for defamation.
The Delhi High Court went beyond the three part test and relied upon the ‘Bonnard principle’, as per which interim injunctions should not be granted unless the court was certain that the defendant would fail at trial. The principle emphasises that the “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.” (emphasis supplied)
Thus, the high court emphasised the use of a standard higher than the three-part test for defamation suits. While considering the defendant’s use of the Tata mark as demonic, the court observed that it was “prima facie exaggeration or hyperbolic, in respect of matters of public concern.” (emphasis supplied)
In context of online defamation, the plaintiff argued that since the game was available online, higher viewership would be an additional factor while weighing the balance of convenience and irreparable hardship. It relied upon the ruling by a Canadian court in Barrick Gold Corp. versus Lopehandia (2004) in which it was ruled that internet publication should be an additional factor while determining damages.
However, the high court observed that it did not advocate for a separate standard for granting an injunction. It observed that publication on the internet, despite its unique characteristics of wider viewership or degree of permanence, remained a medium of expression, and thus called for no different standards for grant of interlocutory injunction. It held that any other view would “result in disturbing the balance between free speech and the interest of any individual or corporate body in restraining another from discussing matters of concern, so finely woven in the texture of the Bonnard ruling.” (emphasis supplied)
Irreparable harm
A similar view was taken by the Delhi high court in March, in Kailash Gahlot versus Vijendra Gupta. This case concerned defamatory tweets by one legislator against another, accusing the latter of corruption. The tweets were not held to be prima facie defamatory, given the backdrop of a Central Bureau of Investigation inquiry and the findings of an independent committee set up to investigate the allegations of corruption. The court found that the imputations concerned a public figure, who can be subjected to closer scrutiny. It also observed that since there was no injury which could not be compensated by damages at a later stage (the plaintiff himself quantifying the damages at five crore rupees), the plaintiff failed to demonstrate an irreparable harm; thus, the defendant could not be restrained from tweeting or publishing in the future, nor could his tweets be taken down.
In online defamation suits brought by private individuals, the three-part test applied by courts is significantly different. The three-part test is diluted in such instances.
The single bench order observed that restraining the defendant from further commenting on this issue would amount to a gag order. Recently, the plaintiff appealed against this order, but the division bench of the high court expressed discomfort in prolonging this issue. It expressed that the defamatory statements are in public domain and the court cannot undo it, so it encouraged the parties to settle.
In another instance, the Bombay High Court in Lodha Developers Ltd. versus Krishnaraj Rao & Ors. (2019) rejected the plea for an ad-interim injunction, finding that the prima facie view was that the statements made by a journalist-consumer against the developer about the quality of their flats (which had gone viral online) was a potentially fair comment and not defamatory. The court observed that no different standard applies to online speech, and in fact advocated for greater tolerance of divergent opinions online:
“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.”
The above cases are three instances of rejection of ad-interim injunctions in online defamation suits. In these cases, the three-part test operated thus: (1) statements were not held to be prima-facie defamatory. Instead they were matters of public interest/fair comment; (2) the balance of convenience tilted towards the speaker since the plaintiffs requesting an injunction were corporations and a public figure; (3) damages which were quantified could be paid at a later stage; hence, there was no irreparable injury. While the courts showed a deference to free speech in such matters, Indian courts have displayed an opposite trend when it comes to cases of defamation suits against private individuals.
Also read: Arrest Warrant Against Journalist Paranjoy Guha Thakurta in Adani’s 2017 Defamation Case
A different threshold against private individuals
An explicit difference was observed by the Delhi high court in Ritesh Properties & Industries Ltd. versus Youtube LLC & Ors. (2019) – that the seeking of take down orders for anonymous videos alleging fraud against a real estate company was different from instances of sexual harassment allegations made online, since allegations of that nature could not be easily disproved, and the plaintiff cannot defend themselves in online fora. The high court observed:
“The case of the plaintiff cannot be equated to other cases coming up before this Court of character assassination without the complainant/accuser disclosing own identity even. Generally such accusations are of sexual harassment … suits have been entertained and ex parte orders issued to social networking sites, for taking down the impugned content and to disclose particulars of the uploader of such content. The reason which prevailed was, none can be condemned publically, without having an opportunity to defend him/her self … the accuser, in the matter of own complaint/grievance, cannot also be the judge and pronounce the accused guilty publically. However while it is not possible for a person who is accused of sexual harassment/misconduct, to prove the negative, that he/she is not guilty of what he/she is accused of in public domain by unknown persons who want to hide behind the veil of an electronic identity, when a person in the market, selling real estate … is accused … it is essential to satisfy the Court of falsity of the allegations and which can easily be done by producing documents …”
In Dr. Vikram Sampath versus Dr. Audrey Truschke & Ors. (2022) the plaintiff, a popular historian, sought to injunct the defendant, an American historian, from making allegations of plagiarism against him. The Delhi high court made no reference to the Bonnard Principle, and directed Twitter to take down five tweets, in view of the fact that “despite the ad-interim injunction passed by the court”, the defendant continued to publish defamatory statements. Once again, the prima facie finding of defamatory statements was enough. The court did not go into “irreparable injury” which cannot be compensated by damages at a later stage (see, for a contrasting example, here) even though damages were quantified (to two crore rupees).
The Madras High Court, in Susi Ganesan versus Leena Manimekalai (2022), considered allegations of sexual harassment against a renowned filmmaker during the #MeToo movement, and the threats/harassment which followed thereafter, to be prima facie defamatory. It observed that irreparable injury would be caused to the filmmaker if, after trial, no truth was found in the statements (the reasons for this are not supplemented in the order). It further restrained the defendant from talking to the press, and restrained both parties from tweeting since the matter was sub judice.
By ordering content-removal, collective memory is substantially affected, when even in the online space a perfectly adequate remedy is retraction of statements or apologies/admissions without content-removal. However, to remove content is to deny that an event ever happened.
The high court, while finding “irreparable injury”, does not seem to conduct an effects-test at all, as only finding the nature of statements as defamatory is seen as enough.
Another example is the case of Amy Rohinton Dastur AKA Amyra Dastur versus Luviena Lodh AKA Varsha Sumit Sabherwal (2020). The challenged speech were tweets which claimed that the plaintiff-actress used drugs (during the much-publicised controversy over drug abuse in Bollywood). The Bombay high court passed an injunction stopping the defendant from publishing and republishing any defamatory comments till the matter was subjudice. The three-part test is merely stated and found to be proved, without demonstrating any part thereof.
These cases demonstrate that in online defamation suits brought by private individuals, the three-part test applied by courts is significantly different: (1) statements are found prima facie defamatory, allegations of sexual harassment/assault are not a matter of public interest (some academics have argued that sexual harassment allegations are matters of public interest), or academics alleging plagiarism is not fair comment; (2) the balance of convenience does not tilt towards the speaker when private individuals are defamed; (3) irreparable loss/injury is not demonstrated but presumed. Thus, the three-part test is diluted in such instances.
And while the standard of granting an injunction is lowered for online defamation against private individuals, content-removal and prior-restraint orders are added to the list of traditional interim reliefs. A content-removal order is second to an account suspension. Should such a casual erasure of statements in a public forum happen at the ad-interim stage? By ordering content-removal, collective memory is substantially affected, when even in the online space a perfectly adequate remedy is retraction of statements or apologies/admissions without content-removal. However, to remove content is to deny that an event ever happened.
One may argue that the continued publication may tarnish the reputation of the affected person in the public eye; however, the public itself, under Article 19 of the Constitution, has the right to view the defamatory statement, the retracted statement/apology and form an independent opinion of their own, instead of viewing a “Error 404: page not found” disclaimer. Such blanket anticipatory directions have been understood to amount to a gag order earlier this year in the case of Mohammed Zubair versus State of NCT of Delhi & Ors.
While defamation jurisprudence in offline speech also treats defamed private and public entities differently, the medium of online speech has allowed the court to add to what it can do during an interim stage. Indian courts are ordering highest speech restrictions (prior restraints and content removal) by testing lower thresholds such as (1) prima facie defamation, (2) balance of convenience, and (3) irreparable injury, which are further often untested in cases brought by private individuals in interim injunction suits.
As the internet affords everyday Indians a greater, real-time freedom of speech, interim injunctions in online defamation suits provide for an effective horizontal censorship between citizens, which must be closely watched.
