The law and editors
The law lags behind public opinion and public opinion lags behind social necessities. The soundness of Justice Oliver Wendell Holmes’ warning is felt acutely in the law concerning the press.
It took the courts long to accept that freedom of the press stands on a higher footing than an individual’s right to freedom of speech. In 1980, in the Richmond Newspapers case, the US Supreme Court recognised the media’s claim to be “surrogates for the public”.
However, a colonial law still governs editors in India — the Press and Registration of Books Act, 1867. An editor is defined by Section 1 as “the person who controls the selection of the matter that is published in a newspaper”. The newspaper of 1867 was a slim ancestor of the one we now know. No modern editor “controls the selection of the matter” that goes in all the pages. Two other changes are publication of multiple editions in some of the leading towns and establishment in some newspapers of a separate autonomous editor for each section.
The Act mocks at the realities of modern times. Having defined “editor” it demands that every copy of the newspaper shall contain his name as well as that of the owner. Section 7 fastens on the editor liability not only in civil but also in criminal proceedings on the basis of his being named as such.
It says, “In any legal proceeding whatever, civil as well as criminal… in the case of the editor, a copy of the newspaper containing his name printed on it as that of the editor shall be held (unless the contrary be proved) to be sufficient evidence… that the said person was the editor of every portion of that issue of the newspaper of which a copy is produced.”
The presumption drawn can be rebutted. But is it even fair to draw a presumption which flies in the face of the realities, especially a presumption of liability for “every portion of that issue of the newspaper”?
In 1970, the Supreme Court of India fairly emphasised in the D.P. Mishra vs Kamal Narain Sharma & Ors case, the editor’s actual knowledge; namely that “the publication was to the knowledge of the editor”.
The editor “admitted his responsibility because he was the chief editor” but he said that he “generally laid down the policy of the newspaper and gave general direc- tions”. Publication of reports by correspondents was attended to by the sub-editors.
This ruling was affirmed in 1978. An offensive cartoon was printed in the Muslim League’s official organ, Chandrika, during an election campaign. The League leader, Haji C.H. Mohammed Koya, was named as its “chief editor”. One V.C. Aboobaker was named as the printer, publisher and editor. It was proved that it was he who did the actual editing.
The Supreme Court found that Koya’s name “as chief editor was merely ornamental”. Its ruling is significant. “A presumption under Section 7 of the Press Act could be drawn only if the person concerned was an editor within the meaning of Section 1 of the Press Act. Where, however, a person does not fulfil the conditions of Section 1 of the Press Act and does not perform the functions of an editor, whatever may be his description or designation, the provisions of the Press Act have no application.”
But this ruling, sound as it is, does not touch the related question of one who is in fact editor but is sought to be held legally liable for something published in his paper of which he was not aware and could not, in all reason, be expect- ed to be aware of.
The court ruled later that the designation of one as “chief editor”, “resident editor” or “managing editor” was irrelevant. The presumption is only against one “whose name is printed as editor…”
The Supreme Court’s latest ruling on March 11, 2013, goes against this liberal trend. Its precedents of 1970 and 1978 were not referred to. A complaint of criminal defamation was filed against Sandesh, a newspaper published from different cities, each with a resident editor with an editor stationed at Ahmedabad at the apex. The offending matter was published only in the Baroda edition.
The high court quashed the complaint. The Supreme Court reversed the order on the ground that the editor at Ahmedabad was accused of complicity in the defamation.
Unfortunately, none of the cases noted a ruling by the Chief Justice of England Lord Parker and two distinguished judges on November 27, 1967. The Sunday Times had committed contempt of court. The writer of the article had been warned of the risk of contempt of court by the paper’s legal adviser. The editor, Harold Evans, was not informed. An elaborate system had been devised to prevent publication of libellous and contemptuous matter. It failed.
Lord Parker said: “Any system is liable to break down owing to the human element, and undoubtedly it did so in this case.” And: “So far as Mr Harold Evans is concerned, he, of course, as editor takes full responsibility.”
“On the other hand, when one is considering the question of penalty, one must consider his personal culpability. It is quite clear that he knew nothing about this. It is also quite clear that an editor in his position could not possibly be expected to know everything that was happening. It is quite unnecessary to impose a sentence of imprisonment or in the circumstances of this case any penalty whatever on him.”
The heart of the matter is this: Harold Evans took “full responsibility” as editor. Yet the court recognised that he could not be held responsible for “every portion” of his newspaper.