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Bloggers and Defamation

February 25, 2009

Justice Balakrishnan, in refusing to quash criminal proceedings against a nineteen year old blogger, says that any blogger posting material on the web should be aware of the reach of the internet and hence also be willing to face the consequences of such action. This sounds fair enough, and it would seem that if bloggers are exercising their right to freedom of speech and expression, then they should be subject to the same norms as a newspaper or magazine would, including the possibility of legal action being taken against them.

This sentiment reminds me of Anatole France’s famous statement that the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread. The quick equation of an individual blogger with the might of a newspaper or a magazine is a little troubling. Individuals do not have the same kind of power, money or reach to be able to defend themselves in the way that newspapers may be capable of.

Legal action against an alleged defamatory act can either be in the form of criminal action (Sec. 499 of the IPC) or a civil action under common law for damages. The main difference between the two is that while criminal defamation seeks to punish the offender, the civil action seeks compensation in the form of monetary damages. It is also important to note that while intention of the defaming party is relevant for any action brought under Sec. 499 of the IPC, it is irrelevant for the purpose of any civil case. Furthermore, a criminal action and civil action for defamation are not mutually exclusive, and both can be pursued simultaneously. While there are a number of defenses available against a charge of criminal defamation, that is rarely the point, since it is the procedure itself that is the punishment. Added to this is the fact that a defamation case can be filed at any place where the publication was available, which in the case of the internet can mean that a case can be filed just about anywhere. There is, by now, a pretty long history of the use of defamation laws by corporations to silence any form of critique, or action by activists. This has even been acknowledged by the Supreme Court in the past. In Indian Oil Corporation v. NEPC (2006),  the court observed that there was

“a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged.”

Citing G. Sagar Suri vs. State of UP [2000 (2) SCC 636], this Court observed :

“It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.”

While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant.

It seems that in refusing to quash the proceedings against Ajith, Justice Balakrishnan has applied Anatole France’s ironic dictate and ignored previous cases that clearly recognize the misuse of criminal defamation. When organizations like the Shiv Sena and the Sri Ram Sene start using defamation laws, it smacks of chutzpah to me. The definition of Chutzpah is a person who kills his parents, and then claims clemency on the grounds that he is an orphan. What other way can we describe the bizarre situation of the violence prone macho men, who suddenly run around screaming about the violation of their legal rights and the slurring of their reputation?

So we find ourselves in a slightly tricky situation. On the one hand we have an increase in corporate crimes, organizations capable of taking the law in their own hands, and when individuals respond through their writing, they then have the long hand of the law to contend with. This mode of silencing through the legal process is quite well known. At the global level the Mac Libel case has been documented in some great detail. Even though the case was won by MacDonalds, it turned out to be a PR fiasco for them, with the kind of adverse media attention that they received.

In India we have had a similarly chequered history of the use of defamation by corporations and right wing organizations. In 1984, Campa Cola obtained a ‘gagging order’ on India Today (S. Charanjit Singh v. Aroon Purie, (1983) 4 DRJ 86; In 1982 the Madhya Pradesh High Court injuncted the Weekly Gwalior Reporter from publishing defamatory and insulting material; Han Shankar v. Kailash Narayan. AIR 1982 MP 47; in 1987, the Karnataka high Court injuncted the publication of the novel ‘Avasthe’ and its being converted into a film on the basis that the contents were not very flattering to the memory of a ‘new-deceased’ socialist leader; Sonakka Gopalagowda v. LLR.Anantha Murthy, AIR 1988 Kar 255; In 1988, the Delhi High Court injuncted advertisements about the sale of ‘Garden’ sarees as hurting the business interests of the manufacturer Garden Silk Mills Ltd, Vasdev Motwani, AIR 1989 Del 46; In 2003, the S. Kumar corporate conglomerate building the Mahabaleshwar dam successfully injuncted the Narmada Bachao Andolan from exposing financial dealings even from public records. (Source: Rajeev Dhavan, Harassing Hussain, Safdar Hashmi Memorial Trust, 2007, See also, Rajeev Dhavan, Whistles, Stings and Slapps, The Hindu, Friday, December 12th, 2003)

These are merely an illustrative set of cases highlighting the misuse of criminal defamation, and there are many other cases which have are not even reported, or where the cease and desist notice has served its purpose. Recently Ranjan Kamath received a notice from Tata and Sons threatening him with legal action against his letter for the cellular silence day. Arindam Chaudhy, he, of the count your chicken before they hatch, and get a free laptop fame threatened  legal action against Gaurav Sabnis, a blogger, for his comments on the tall claims of the IIPM. And most recently, the Fomentos have filed a case against Sebastian Rodrigues in the Calcutta High Court, claiming damages of Rs 500 crores, for his writings in his blog, expoising the mining industry in Goa. Sunita Narain says that “companies who file SLAPP cases rarely win in court, but achieve their real objective to discourage others from speaking out.” United Phosphorous filed a case against Umendra Dutt of the Kheti Virasat Mission for discussing in public the ill-effects of pesticide exposure, and followed this up with a case against the Times of India for publishing a report quoting Dutt.

So rather than seeing this as an issue of the privilege of bloggers v. newspapers, it might make sense to locate the history of criminal defamation within the larger context of free speech as it affects different kinds of practitioners. And it might make sense for bloggers to also get a little organized in their responses to censorship of bloggers, because this is indeed one of those cases where an attack on one will eventually be an attack on all.

15 Comments leave one →
  1. Aditya Nigam permalink*
    February 26, 2009 4:31 PM

    Justice Balakrishnan’s advice to Ajith is truly amazing. Thanks Lawrence for also bringing in the wider context of the misuse if the defamation law. What is intriguing is that, as your post itself shows, the courts themselves are aware of the widespread misuse of criminal defamation generally. It is also clear that in most of the cases you have cited, the mala fide nature of the complaint is itself quite evident – whether or not it constitutes ‘prima facie’ in legalese is for the legal experts to decide. One thing is clear – this could not have been offered in a state of absent-mindedness. That is the worry.
    At a slightly different level, on a lighter note: Starting from Ramadoss’s determination to ban cigarette smoking in films and elsewhere through Law to these various instances where the higher judiciary even entertains cases that are evidently frivolous, it seems ‘we’ have suddenly woken up with a vengeance to the Lack of that we had hitherto suffered from: that of a State and Law. We TOO have IT!

  2. February 27, 2009 1:30 AM

    While there are a number of defenses available against a charge of criminal defamation

    Lawrence, could you enlighten us a bit more on this? I believe there are ten defences available, truth being the first one. Is there a problem with the defamation law in its spirit or the case laws?

    What other way can we describe the bizarre situation of the violence prone macho men, who suddenly run around screaming about the violation of their legal rights and the slurring of their reputation?

    The logical corollary of this would be that organisations like the Shiv Sena should not have the right to go to court, because surely, given their aims, all petitions by them would be, at the very least, frivolous? I buy the point that a frivolous complaint is prima facie exploiting the law to intimidate a 19 year old Orkut member. But hey, we don’t know what the charges are exactly!

  3. Shashwati permalink
    February 27, 2009 12:25 PM

    Lawrence, could you talk a bit about why there seems to be no consequences for those who bring wrongful criminal cases. E.g, giving false evidence to the police and court etc.

    False criminal cases seem to be fairly common in poorer communities and work as a form of blackmailing your relatives to give you resources. The police seldom does a proper investigation, and if the case goes to court and gets dismissed, the accuser doesn’t face any consequences.

  4. Shashwati permalink
    February 27, 2009 12:44 PM

    Also, from what I understand the kid has a discussion group on Orkut and not a blog. Doesn’t this muddy the waters a bit- since Orkut is somewhere in there with its legal liabilities etc.

    Maybe the Judges don’t know the difference between a social networking site and a blog, or maybe TOI doesn’t so they are conflating the two.

  5. February 27, 2009 2:16 PM

    Well.. fre- speech comes with a social responsiblty. From what i have seen, most bloggers adher to this ( barring a few.. but then they are private blogs — as far as i know )

    Like saraswathi — i too have my doubts.. To name a few ,
    {quote from my post }

    Dear Judges ,

    * Did you visit blogs prior to hearing this case (or, any case on blogs) ?
    * Do you remember the concept of the very first blog you visited ? ( movies , books, personal.. etc etc).
    * Do you personally read blogs, or depend on your secretary to give you the information from blogs ?
    * Does this mean, “Freedom of speech” comes with a Damocles sword?, at the bloggers own discretion ?

  6. rajanikanth permalink
    July 3, 2009 1:50 PM

    I suggest yahoo, google & other service providers should rethink on defamatory blogs. no doubt the service of yahoo, google is comendable and they are doing great service to the field of information technology but still onus is on them to stop misusing their services.

Trackbacks

  1. Restricting Freedom with Excuses of Responsibility
  2. Bloggers and Defamation | DesiPundit
  3. Shiv Sena’s Orkut Campaign: The Limits to Freedom of Expression in an Intolerant India | Gauravonomics Blog
  4. Global Voices Online » Shiv Sena’s Orkut Campaign: The Limits to Freedom of Expression in an Intolerant India
  5. links for 2009-03-05 « Unjustly
  6. Indian bloggers’ rights to free expression-Global Voices « FACT - Freedom Against Censorship Thailand
  7. Freedom of speech in India is for the rich and the powerful « Kafila
  8. On the Unfortunate Rise of the Indian SLAPP Suit | The Free Speech Initiative
  9. Defamation (Citizens, Society and the Media) | Teaching and Learning Resources

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