Timely restatement

Supreme Court makes a case against pre-trial restraint on journalistic content

Arestatement of basic principles of law is always welcome, especially if there are judicial orders that seem to ignore them. The Supreme Court’s recent order cautioning courts against granting pretrial injunctions against the media in civil suits for defamation is a reminder that such orders could have severe ramifications on the freedom of speech and may impair the public’s right to know. “Granting interim injunctions before the trial commences, in a cavalier manner results in the stifling of public debate,” the Court observed, while setting aside a Delhi lower court order, also confirmed by the Delhi High Court, that directed news outlet Bloomberg to take down an article concerning Zee Entertainment Enterprises Ltd. within a week for being allegedly defamatory. The brief order has not only reiterated the standard threefold test for granting interim injunctions in general, but reminded the judicial officers that the “constitutional mandate of protecting journalistic expression cannot be understated” when it comes to cases against the media. The admonition against courts mechanically applying the three limbs of the test — whether there is a prima facie case, whether the ‘balance of convenience’ is in favour of an interim restraint, and lastly, whether not granting it will cause “irreparable loss or harm” to the plaintiff — by merely recording that these grounds have been satisfied is quite apposite. The courts granting an injunction are also expected to record reasons by analysing the facts.

However, it is with unfortunate frequency that one hears of three kinds of judicial orders that place questionable curbs on journalistic publications: outright gag orders banning any publication of information related to cases being heard by the courts, omnibus prior restraint orders against all media houses based on a plaintiff’s fear that a defamatory statement may be repeated by others and, finally, pretrial orders to specific media houses to take down an article and refrain from further publication. Such orders will not be possible unless one ignores the common law principle in Bonnard vs Perryman, which lays down the standard that there can be an injunction in a defamation suit only if the court feels that the content is defamatory and that there can be no way the publication can be justified during trial, for instance by pleading the defence of truth and public interest. The latest order also contains a reminder that those with influence and economic power can resort to ‘SLAPP’ (Strategic Litigation/Lawsuit against Public Participation), a tactic often used to stifle public criticism of projects and companies. The Court has struck the right note when it warns that an early injunction in what could be a prolonged trial acts as a ‘death sentence’ against the material to be published.