Pachauri Defamation Suit: Court Rejects Interim Gag Order Plea

By Aditya Singh Chawla

The Patiala House court at Delhi has rejected R. K. Pachauri’s plea for an interim gag order against NDTV, Bennett Coleman and Co., and the India Today Group. The media houses had been made defendants in a defamation suit filed by him in 2016.

In 2015, an FIR had been filed against Pachauri by a woman employee of TERI (The Energy and Resources Institute, of which he was then the Chief) accusing him of sexual harassment. Following these allegations, several other women had spoken out about similar experiences while they had worked at the organization. The allegations and ongoing proceedings had received extensive coverage in the media.

Pachauri filed for defamation against multiple parties, including the media houses, one of the women who had spoken out, as well as her lawyer. He sought a gag order against the media houses, and damages of Rs. 1 Crore from the victim and her lawyer.

We have written previously about how suits such as these are in the nature of ‘SLAPP’ suits – Strategic Lawsuits Against Public Participation. These are cases where powerful individuals and corporations use litigation as a way of intimidating or silencing their critics. The defendants are usually media houses or individuals who are then forced to muster the resources to mount a legal defense. Even if they are able to secure a victory in Court, it is at the cost of a protracted and expensive process.

The court has now refused to grant an interim injunction against the media houses, noting the right of the public to be aware of the developments. It further noted that public figures can be held to a higher degree of scrutiny by the public. However, it has also held that further reportage must also carry Pachauri’s views, and indicate that the matter is still pending before the Court. The text of the order may be found here.

Aditya is an Analyst at the Centre for Communication Governance at National Law University Delhi

Facebook and its (dis)contents

By Adhitya Singh Chawla

In 2016, Norwegian writer Tom Egeland, uploaded a post on Facebook, listing seven photographs that “changed the history of warfare”. The post featured the Pulitzer-winning image, ‘The Terror of War’, which depicts a naked nine-year-old running from a napalm attack during the Vietnam War. Facebook deleted the post, and suspended Egeland’s account.

A Norwegian newspaper, Aftenposten, while reporting on the suspension, used the same image on its Facebook page. The newspaper soon received a message from Facebook demanding that the image be either removed, or pixelated. The editor-in-chief refused to comply in an open letter to Mark Zuckerburg, noting his concern at the immense power Facebook wielded over speech online. The issue escalated when several Norwegian politicians, including the Prime Minister, shared the image on Facebook, and were temporarily suspended from Facebook as well.

Facebook initially stated that it would be difficult to create a distinction between instances where a photograph of a nude child could be allowed. However, due to widespread censure, the platform eventually decided to reinstate the image owing to its “status as an iconic image of historical importance.”

This incident brought to light the tricky position Facebook finds itself in as it attempts to police its platform. Facebook addresses illegal and inappropriate content through a mix of automated processes, and human moderation. The company publishes guidelines about what content may not be appropriate for its platform, called its ‘Community Standards.’ Users can ‘flag’ content that they think does not meet the Community Standards, which is then reviewed by moderators. Moderators may delete, ignore, or escalate flagged content to a senior manager. In some cases, the user account may be suspended, or asked to submit identity verification.

As evident from the ‘Terrors of War’ incident, Facebook has often come under fire for supposed ‘wrong’ moderation of content, as well as opacity in how its community review process comes to be applied. It has been argued that content that is evidently in violation of Community Standards is often not taken down, while content that should be safe is censored. For instance, Facebook courted controversy again, when it was accused of blocking content and accounts documenting persecution of the Rohingya Muslim community in Myanmar.

Closer home as well, multiple instances of Facebook’s questionable moderation practices have come to light. In October 2017, Raya Sarkar, a law student based out of the United States, had created what came to be called, the List. The List named over 70 prominent academics that had been accused of sexual harassment. The approach proved extremely controversial, sparking debates about due process, and the failure of institutional mechanisms to address harassment. Facebook blocked her account for seven days, which proved equally contentious. Sarkar’s account was restored only after Facebook staff in Palo Alto were contacted directly. Similar instances have been reported of seemingly arbitrary application of the Community Standards. In many cases accounts have been suspended, and content blocked without notice, explanation or recourse.

Content moderation inherently involves much scope for interpretation and disagreement. Factors such as context, as well as cultural differences, render it a highly subjective exercise. Algorithms don’t appear to have reached sufficient levels of sophistication, and there exist larger issues associated with automated censoring of speech. Human moderators are by all accounts burdened by the volume and the psychologically taxing nature of the work, and therefore prone to error. The way forward should therefore be first, to ensure that transparent mechanisms exist for recourse against the removal of legitimate speech.

In light of the ‘Terror of War’ incident, Facebook responded by updating its community standards. In a statement, it said that it would allow graphic material that would be “newsworthy, significant, or important to the public interest — even if they might otherwise violate our standards.” Leaked moderator guidelines in 2017 opened the company up to granular public critique of its policies. There is evidently scope for Facebook to be more responsive and consultative in how it regulates speech online.

In June 2017, Facebook reached 2 billion monthly users, making it the largest social network, and a platform for digital interaction without precedent. It has announced plans to reach 5 billion. With the influence it now wields, it must also embrace its responsibility to be more transparent and accountable to its users.

Aditya is an Analyst at the Centre for Communication Governance at National Law University Delhi

When the Empire SLAPPs Back

By Aditya Singh Chawla

“Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined”

-Nicholas Colabella J. of the New York Supreme Court, in Gordon v Marrone.

The above statement vividly describes what has come to be called a SLAPP suit – Strategic Lawsuit Against Public Participation. The term was coined by University of Denver Professors Penelope Canan and George Pring in their book ‘SLAPPs: Getting Sued for Speaking Out’.[1] SLAPPs are generally characterized by deep-pocketed individuals or entities pursuing litigation as a way of intimidating or silencing their critics.

The suit likely may have no merit, but the objective is primarily to threaten or coerce critics into silence, or in the alternative, impose prohibitive costs on criticism. SLAPPs also have the effect of suppressing reportage about initial claims.  Even if defendants win a lawsuit on merits, it would be at an immense cost in terms of resources. This experience is likely to deter them, and others from speaking out in the future. Faced with an uncertain legal process, defendants are also likely to seek settlement. While this allows them to avoid an expensive process, it usually entails them having to abandon their opposition as well.  By in effect chilling citizen participation in government, SLAPP suits strike at the heart of participatory democracy.

SLAPPs have also come to be employed in India, in a number of instances. These are usually large corporates, powerful individuals, and even private universities, dragging media houses and journalists, or academics to Court for unfavorable reportage. Recent instances indicate that SLAPPs can also be employed by influential people accused of sexual assault or harassment. The aim appears to be to suppress media coverage, and deter victims from publically speaking out.

Defamation suits tend to be the weapon of choice for SLAPPs. In India, where defamation can also be a criminal offence, this can be a particularly effective strategy, especially since it may be pursued concurrently with a civil claim. Another tactic to make the process more punitive, is to file the suit in a remote, inconvenient location where the offending publication may have been made available. In the context of the internet, this could theoretically be anywhere.

There have not been many instances where the judiciary have demonstrated awareness of this phenomenon. In Crop Care Federation of India v. Rajasthan Patrika, reports had been published in the Rajasthan Patrika about the harmful effects of pesticides. Crop Care Federation of India, an industry body of pesticide manufactures, sued the newspaper and its employees for allegedly defaming its members. In response, the defendant filed an application for the rejection of plaint, under Order 7 Rule 11 of the Code of Civil Procedure, 1908. It was argued that the plaintiff was an association of manufacturers, and not a determinate body, which was a necessary requirement to constitute a cause of action in a defamation suit. Justice Ravindra Bhat dismissed the suit on the above ground but also explicitly called out the petitioner’s suit as a SLAPP, with a reference to Justice Nicholas Colabella’s dictum in Gordon v. Marrone. He went on to note that, “in such instances the plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate.”

Several jurisdictions have enacted ‘anti-SLAPP’ legislations in an attempt to protect defendants from such practices. Broadly, such legislations provide the defendant an opportunity to seek dismissal of the suit early in the proceedings. In most anti-SLAPP statutes in the United States, if the defendant demonstrates that the statements were within the exercise of free speech, and on matters of legitimate public interest, the burden shifts onto the plaintiff to establish a probability of success of their claims. Failing to do so would lead to a dismissal, with the petitioner having to compensate the defendant’s legal costs. Typically, the discovery process is halted while the motion is being adjudicated upon. This further mitigates the financial toll that the proceedings might otherwise take.

In a similar vein, one of the recommendations in India has been to introduce procedure into Order 7 Rule 11 that allows suits that bear the mark of a SLAPP to be summarily dismissed. Broader reforms to the law of defamation may also limit the impact of SLAPPs. It has been proposed that Sections 499 and 500 of the Indian Penal Code, 1860, which criminalize defamation, should be repealed. It is widely held that, despite the Supreme Court’s contrary view, the imposition of penal consequences for defamation runs counter to the free speech ideals enshrined within our Constitution. There are also suggestions to codify civil defamation, with higher thresholds for statements regarding public officials or public figures, as well as a stricter requirement of demonstrating harm. There are also proposals to allow for corrections and apologies to be offered as remedy, and for damages designed to be primarily restorative, and not punitive.

According to Pring and Canan, SLAPPs are a way for petitioners to transform a “a public, political controversy into a private, legalistic one.”[2] Defamation, and SLAPP suits in general, have become a tool to deter public scrutiny and criticism of those in power. Drawing reasonable inferences from fact is essential to the functioning of the press, and the internet has provided citizens an avenue to express their opinions and grievances. Both are likely to limit the legitimate exercise of their free speech if they run the risk of being dragged to court to mount a legal defense for their claims. Our legal framework seeks to deliver justice to all, but must also be cognizant of how it may be subverted towards nefarious ends.

[1] Penelope Canan and George Pring, SLAPPs : Getting Sued for Speaking Out (Temple University Press, 1996).

[2] Id., at 10.

Aditya is an Analyst at the Centre for Communication Governance at National Law University Delhi

NDTV India Ban: A Case of Regulatory Overreach and Insidious Censorship?

By Kasturika Kaumudi 

In a highly contentious move, the Ministry of Information and Broadcasting (‘MIB’) issued an order banning the telecast of the Hindi news channel ‘NDTV India’ on 9^th November, 2016. The MIB imposed this ‘token penalty’ on NDTV India following the recommendation of an Inter-Ministerial Committee (‘IMC’). The IMC had found the channel liable for revealing “strategically sensitive information” during the coverage of Pathankot terrorist attacks on 4^th January, 2016. The ban has, however, been put on hold by the MIB after the Supreme Court agreed to hear a writ petition filed by NDTV India against the ban.

The order passed by the MIB raises some important legal issues regarding the freedom of speech and expression of the press. Since the news channels are constantly in the race for garnering Television Rating Points, they may sometimes overlook the letter of the law while covering sensitive incidents such as terrorist attacks. In such cases, regulation of the media becomes necessary. However, it is tricky to achieve an optimum balance between the various concerns at play here – the freedom of expression of the press and the people’s right to information, public interest and national security.

In this post, we discuss the background of the NDTV India case and the legal issues arising from it. We also analyze and highlight the effects of governmental regulation of the media and its impact on the freedom of speech and expression of the media.

NDTV Case – A Brief Background:

On January 29, 2016, the MIB had issued a show cause notice to NDTV India alleging that their coverage of the Pathankot military airbase attack had revealed vital information which could be used by terror operators to impede the counter-operations carried by the security forces. The notice also provided details regarding the alleged sensitive information revealed by NDTV India.

In its defence, the channel claimed that the coverage had been “balanced and responsible” and that it was committed to the highest levels of journalism. The channel also stated that the sensitive information allegedly revealed by the channel regarding critical defence assets and location of the terrorists was already available in the public domain at the time of reporting. It was also pointed out that other news channels which had reported on similar information had not been hauled up by the MIB.

However, the MIB, in its order dated January 2, 2016, held that NDTV India’s coverage contravened Rule 6(1)(p) of the Programme and Advertising Code (the ‘Programme Code’ or ‘Code’) issued under the Cable TV Network Rules, 1994 (‘Cable TV Rules’). In exercise of its powers under the Cable TV Networks (Regulation) Act, 1995 (‘Cable TV Act’) and the Guidelines for Uplinking of Television Channels from India, 2011, the MIB imposed a ‘token penalty’ of a day’s ban on the broadcast of the channel.

Rule 6(1)(p) of the Programme Code:

Rule 6 of the Code sets out the restrictions on the content of programmes and advertisements that can be broadcasted on cable TV. Rule 6(1)(p) and (q) were added recently. Rule 6(1)(p) was introduced after concerns were expressed regarding the real-time coverage of sensitive incidents like the Mumbai and Gurdaspur terror attacks by Indian media. It seeks to prevent disclosure of sensitive information during such live coverage that could act as possible information sources for terror operators.

Rule 6(1)(p) states that: “No programme should be carried in the cable service which contains live coverage of any anti-terrorist operation by security forces, wherein media coverage shall be restricted to periodic briefing by an officer designated by the appropriate Government, till such operation concludes.

Explanation: For the purposes of this clause, it is clarified that “anti-terrorist operation” means such operation undertaken to bring terrorists to justice, which includes all engagements involving justifiable use of force between security forces and terrorists.”

Rule 6(1)(p), though necessary to regulate overzealous media coverage especially during incidents like terrorist attacks, is vague and ambiguous in its phrasing. The term ‘live coverage’ has not been defined in the Cable TV Rules, which makes it difficult to assess its precise meaning and scope. It is unclear whether ‘live coverage’ means only live video feed of the operations or whether live updates through media reporting without visuals will also be considered ‘live coverage’.

Further, the explanation to Rule 6(1)(p) also leaves a lot of room for subjective interpretation. It is unclear whether the expression “to bring terrorists to justice” implies the counter operations should result in fatalities of the terrorists or if the intention is to include the coverage of the trial and conviction of the terrorists, if they were caught alive. If so, it would be highly impractical to bar such coverage under Rule 6(1)(p). The inherent vagueness of this provision gives wide discretion to the governmental authorities to decide whether channels have violated the provisions of the Code.

In this context, it is important to highlight that the Supreme Court had struck down Section 66A of the Information and Technology Act, 2000 in the case of Shreya Singhal vs. Union of India, on the ground of being vague and overboard. The Court had held that the vague and imprecise nature of the provision had a chilling effect on the freedom of speech and expression. Following from this, it will be interesting to see the stand of the Supreme Court when it tests the constitutionality of Rule 6(1)(p) in light of the strict standards laid down in Shreya Singhal and a spate of other judgments.

Freedom of Speech under Article 19(1)(a)

The right of the media to report news is rooted in the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. Every right has a corresponding duty, and accordingly, the right of the media to report news is accompanied by a duty to function responsibly while reporting information in the interest of the public. The freedom of the media is not absolute or unbridled, and reasonable restrictions can be placed on it under Article 19(2).

In the present case, it can be argued that Rule 6(1)(p) fails to pass the scrutiny of Article 19(2) due to inherent vagueness in the text of the provision. However, the Supreme Court may be reluctant to deem the provision unconstitutional. This reluctance was demonstrated for instance, when the challenge to the constitutionality of the Cinematograph Act, 1952 and its attendant guidelines, for containing vague restrictions in the context of certifying films, was dismissed by the Supreme Court. The Censor Board has used the wide discretion available to it for placing unreasonable restrictions while certifying films. If the Supreme Court continues to allow such restrictions on the freedom of speech and expression, the Programme Code is likely to survive judicial scrutiny.

Who should regulate?

Another important issue that the Supreme Court should decide in the present case is whether the MIB had the power to impose such a ban on NDTV India. Under the current regulatory regime, there are no statutory bodies governing media infractions. However, there are self-regulatory bodies like the News Broadcast Standards Authority (NBSA) and the Broadcasting Content Complaint’s Council (BCCC).The NBSA is an independent body set up by the News Broadcasters Association for regulating news and current affairs channels. The BCCC is a complaint redressal system established by the Indian Broadcasting Foundation for the non-news sector and is headed by retired judges of the Supreme Court and High Courts. Both the NBSA and the BCCC regularly look into complaints regarding violations of the Programme Code. These bodies are also authorized to issue advisories, condemn, levy penalties and direct channels to be taken off air if found in contravention of the Programme Code.

The decision of the MIB was predicated on the recommendation made by IMC which comprises solely of government officials with no journalistic or legal background. The MIB should have considered referring the matter to a regulatory body with domain expertise like the NBSA that addresses such matters on a regular basis or at least should have sought their opinion before arriving at its decision.

Way Forward

Freedom of expression of the press and the impartial and fair scrutiny of government actions and policies is imperative for a healthy democracy. Carte blanche powers with the government to regulate the media as stipulated by Cable TV Act without judicial or other oversight mechanisms pose a serious threat to free speech and the independence of the fourth estate.

The imposition of the ban against NDTV India by the MIB under vague and uncertain provisions can be argued as a case of regulatory overreach and insidious censorship. The perils of such executive intrusion on the freedom of the media will have a chilling effect on the freedom of speech. This can impact the vibrancy of the public discourse and the free flow of information and ideas which sustains a democracy. Although the governmental decision has been stayed, the Supreme Court should intervene and clarify the import of the vague terms used in the Programme Code to ensure that the freedom of the press is not compromised and fair and impartial news reporting is not stifled under the threat of executive action.

Kasturika Kaumudi is a Programme Officer with the Centre for Communication Governance at National Law University Delhi