India’s rambunctious media industry is grappling with concerns over defamation and the inadequate legal protection of serious journalism

There has been outrage in the Indian press about one of India’s leading English-language news channels, Times Now, being asked to pay ₹1 billion (US$19 million) as damages for defamation. Several editorials and opinion pieces have argued that damages such as these could weaken media organizations and cripple the freedom of the press.

The facts of the case, Times Global Broadcasting Co Ltd and Anr v Parshuram Babaram Sawant, are well documented. Times Now ran a news story on 10 September 2008 about the involvement of a judge in a provident fund scam. While doing so, it mentioned Justice PK Samanta, a Calcutta High Court judge, but carried the photograph of Justice PB Sawant, a former Supreme Court judge.

Owning up

Subsequent events suggest that Times Now treated this mistake casually, although the media have been playing this down. Despite two letters from the incensed judge pointing out the error, it took Times Now almost two weeks to televise an apology and clarification.

An article in India Today, titled “War on Media”, says Times Now editor-in-chief Arnab Goswami sought to meet Justice Sawant, but cancelled a meeting citing a medical procedure he had to undergo. This did not stop Goswami from anchoring his daily show on the day of the proposed meeting, India Today reported.

Times Now’s actions are particularly difficult to understand as it was dealing not only with a judge but with a former chairman of the Press Council of India. Justice Sawant says that Times Now televised its apology and clarification only after he issued a legal notice and it became clear that a lawsuit might cost them heavily. The apology and clarification, when it finally came, was aired for five days.

Passing the order for damages on 26 April, Judge VK Deshmukh of Pune civil court described Times Now’s attitude as “extremely casual, callous and cavalier”. Noting that the defendant had allowed the defamation to go uncorrected for 13 days and that Times Now has a substantial viewership, the judge concluded: “Under the circumstances, from the evidence, documents and citations relied upon by both parties, the plaintiff is entitled to damages of ₹100 crores.” However, the judge did not explain how she arrived at the ₹1 billion figure.

On 11 November the Supreme Court said it would not interfere with a Bombay High Court decision to admit an appeal against the Pune order only on the condition that Times Now deposit ₹200 million with the court and provide a bank guarantee for the remaining ₹800million.

Over the top?

Views differ on the whether this case is an example of media bashing, but observers agree that the damages are disproportionate to the offence, which appears to have been an inadvertent mistake with no malicious intention. The law makes it clear that the absence of malicious intent serves to limit the damages awarded.

No other defamation case in India’s recent history has resulted in a plaintiff being awarded such an extraordinary sum. Even in cases of death caused by criminal negligence, Indian courts have handed out a fraction of this amount. This has led many to argue that the Pune judge had shown sympathy for the plaintiff as he had been a senior member of the judiciary.

Writing in The Hindustan Times, Arun Jaitley, a Bharatiya Janata Party leader and prominent lawyer, said: “If a former judge is entitled to ₹100 crores for his photograph being flashed erroneously on account of being mistaken with another phonetically similar name, will this precedent be applied by Indian courts to other ordinary mortals who complain of loss of reputation on account of far more serious allegations? I am not aware of a single case where even 1% of this amount has been awarded to an ordinary citizen or a public person for loss of reputation.”

The Editors Guild of India, an organization of senior editors of news organizations, struck a similar note: “An unintentional error because of a technical mix-up is in a different category from malicious or intentional libel. If inadvertent errors were to be met with punitive fines, it would make it difficult and indeed hazardous for journalists and media organisations to carry out their professional duties.”

Criticizing the ruling, the executive director of the International Press Institute, Alison Bethel McKenzie, said: “In the United Kingdom, the recent campaign that eventually led to a reform of the UK libel law called for capping damages at £10,000 [US$15,000], noting that excessive damages traditionally awarded for libel had led to abuse of that specific law for the purpose of personal economic advantage.”

Calls for reform

This case has resuscitated a long-standing demand by the media for the reform of India’s defamation laws. In India, defamation is an offence punishable under section 500 of the Indian Penal Code, 1860 (IPC), with imprisonment for up to two years and/or a fine. Defamation proceedings can be initiated in a criminal court, a civil court, or in both, either together or in sequence.

While most other democratic countries have done away with criminal proceedings for defamation, in India the defendant in a criminal case, who is often a journalist, faces prison unless they can prove that their actions fall under one of the 10 exceptions provided in section 499 of the IPC.

Charges of criminal defamation have been used by the rich and powerful to muzzle the press. In Tamil Nadu between 2003 and 2004, the government of the chief minister, J Jayalalitha, filed 125 criminal defamation cases against The Hindu and other publications. All were subsequently withdrawn.

While section 500 of the IPC is criticized as an archaic, draconian legacy of the British Raj, the Information Technology Act, 2000, also provides for imprisonment for defamation. Section 66A of the act makes defamation though the internet and other electronic means punishable with up to three years’ imprisonment and/or a fine. Several bloggers have been targeted using this provision.

Shoe on the other foot

Observers point out that the media have used a double standard in their demand for the reform of defamation law.

When blogger Chyetanya Kunte wrote a scathing piece titled “Shoddy Journalism”, on how one of India’s most prominent television journalists, NDTV reporter Barkha Dutt, had covered the November 2008 terrorist attacks on Mumbai, NDTV sued him for defamation and threatened punitive damages. Kunte issued an apology, but the blogosphere erupted with criticism about journalists who use the law to suppress freedom of speech.

There are more examples of the media’s inconsistencies. The Hindu – a family-owned and run newspaper – had argued in 2004 while fighting J Jayalalitha’s defamation suits against it, that India’s defamation laws violate the freedom of speech guarantee under article 19 of the Indian constitution. But in March 2010, when details of its editor N Ram’s attempts to fill the board with loyal family members were revealed in the Indian Express – in a piece cheekily titled “Battle for control breaks out in The Hindu very divided family” – Ram threatened civil and criminal defamation proceedings against the newspaper, its editor and the reporter who broke the story.

Unlike the criminal provisions of defamation law, which are codified in the IPC, defamation under civil law is not codified. Instead, judges rely on precedent to decide such cases. Often the rulings, especially in lower courts, have been arbitrary and damages awarded unreasonable.

A recent example of an attempt to take advantage of this can be seen in the case of Indian Institute of Planning and Management [IIPM] v Caravan. In this case, a controversial business school with headquarters in Delhi sued Caravan for an article it published in February that allegedly defamed IIPM’s founder. Arindam Chaudhury. The IIPM is seeking damages of ₹500 million, but even though Caravan is also based in Delhi, the case was filed in a lower court in Silchar in Assam, which is some 2,000 kilometres away.

This was not the first time that IIPM has used a lower court in the northeast of India to prevent the publication and circulation of writings that challenge claims it makes. In 2005, it used the courts in Silchar to file a defamation case against a blogger. In 2009, in a dispute with Careers 360 over an article titled “IIPM – Best Only in Claims?” IIPM used the courts in Kamrup, also in Assam. In both these cases, IIPM obtained orders for the removal of the articles in question.

However, IIPM’s luck appears to have run out. On 8 August the Supreme Court stayed the latest proceedings in the civil court in Silchar, accepting Caravan’s plea for a transfer of the case to Delhi High Court.

Getting it right

While there is a case for decriminalizing defamation and codifying the civil law relating to it, it is imperative to strike a balance between ensuring freedom of speech for the media and offering sufficient, meaningful protection to the likely victims of defamation.

Coincidentally, a similar debate about the need to reform defamation laws is being played out in the UK, where laws are seen as being skewed in favour of the plaintiff. In March the UK government published a draft Defamation Bill that attempts “to strike the right balance between protection of freedom of speech and protection of reputation”.

Currently in the UK, a person alleging libel need not prove their case as the burden of proof lies with the defendant. A plaintiff usually need not prove they were damaged, either, as the court will presume that damage has occurred.

This differs fundamentally from the approach in the US, where the libelled person must prove that a publication was factually wrong and that their reputation was damaged. This fundamental difference in approach has resulted in English libel law imposing unwarranted and disproportionate restrictions on expressing opinions and criticisms – both of which are seen as a cornerstone of free speech.

Fact v opinion

The case of Simon Singh v British Chiropractic Association (BCA) demonstrates this imbalance. In 2008 the BCA sued Singh for a piece he had written in The Guardian’s comment pages. In it he criticized the association for defending chiropractors who claimed they could treat children with conditions such as colic and asthma.

An early ruling went against Singh. Much criticized at the time, it held that Singh had been stating facts, which he would have to prove in his defence, rather than voicing an opinion. It also held that Singh had implied the members of the BCA knowingly promoted what he called “bogus treatments”.

The tables were turned on 1 April, when the Court of Appeal granted Singh the right to rely on the defence of fair comment. Making that ruling, the judges noted: “It is now nearly two years since the publication of the offending article. It seems unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ. Accordingly this litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices about the possible use of chiropractic.”

In another scathing indictment of English libel law, the editor of The Guardian, Alan Rusbridger, said his newspaper decided to partner with The New York Times in publishing the Wikileaks revelations because: “We suspected that, if we went it alone under the framework of laws governing newspapers in this country, we simply wouldn’t be allowed to get away with it. We would be sued or injuncted or prosecuted, or all three. It seemed a good idea to harness the whole exercise to a country with extremely robust media laws rather than risk it all on the quicksands of the British legal system.”

Indeed, London has come to be known as the world’s libel capital. The rich and powerful from around the world have invoked privacy laws in the UK to restrain publication of articles that they didn’t like and seek large amounts in damages.

Drawing parallels

It is against this backdrop that the UK’s draft Defamation Bill is being debated. The proposed changes would make public interest a defence against alleged violations of privacy.

This would bring the law in England more in line with the approach in the US, which is based on principles set out in the 1964 US Supreme Court case of New York Times v Sullivan.

This landmark judgment essentially gives American journalists the right to be wrong, as Rusbridger has put it. It acknowledges that journalism about matters of high public importance ought to be protected, not chilled; that journalists can and do make honest mistakes; and that the first amendment to the US constitution, which protects free speech and freedom of the press, is a rock on which to defend free expression. So, to recover damages for libel in the US, a public figure must prove “actual malice”.

It is against this complex landscape that the Indian media is grappling with issues of free speech and defamation.

And while the Times Now defamation case has turned the spotlight on media accountability, it is also refocusing attention on a worrying trend of decreased freedom and protection for serious journalism.