Artistic Expression, Defamation / Reputation, Hate Speech, Political Expression
Case of Jose Miguel Arenas (Valtonyc)
On Appeal Expands Expression
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The Delhi High Court dismissed an application filed by a lawyer, seeking an injunction against Netflix for streaming online content which was derogatory about the legal fraternity. The lawyer argued that dialogue in the Netflix series ‘Hasmukh’ (Series) stigmatized the legal profession and lowered its image in the eyes of the public. The Court held that lawyers as a class are incapable of being defamed. In the absence of any specific imputation either to the Plaintiff or to a definite group of lawyers, a prima facie case of defamation could not be made out against Netflix. The Court held that Series was a satirical comment, a work of art which exaggerated different issues to expose the shortcomings of the profession. Moreover, the “very essence of democracy lies in the fact that its creative artists are given the liberty to project the picture of the profession in any manner, including by using satire, to exaggerate the ills to an extent that it becomes a ridicule.” In denying the Plaintiff’s application, the Court held that an interim injunction in favour of the Plaintiff would be tantamount to interference with freedom of speech and expression, a right guaranteed under Article 19(1)(a) of the Indian Constitution.
The Plaintiff, an advocate by profession, filed a suit seeking an injunction against Netflix, the Defendants, from further streaming of the episodes of a Web-Series called ‘Hasmukh’ (Series) which airs on Netflix. The Plaintiff’s grievance stems in particular from Episode 4 (Episode) of Season 1 of the Series and he argues that it contains derogatory remarks, casts aspersions, brings disrepute to the legal community and stigmatises the image of lawyers amongst the public at large.
The Defendants argued that the Series was themed on satirical jokes and dark comedy where ‘Hasmukh’, the protagonist (Protagonist) pursued a career in stand-up comedy on television shows. The Protagonist successfully performed his stand-up comedy act only after murdering evil and debauched persons whom he came across in his life. The Protagonist’s stand-up comedy act was based on satirical jokes made in relation to his murder victims. In line with this central theme, in the Episode, the Protagonist refers to ‘lawyers in Mumbai’ (a city in India), recording his harrowing experience with an aberrant lawyer (Lawyer). In this Episode, the Lawyer is portrayed as an immoral, dishonest, greedy, violent, terrorising person who even duped the Protagonist into executing unfavourable contracts and coerced the Protagonist to pay 50% of the latter’s earnings from comedy performances on an ongoing basis. [para. 8]
In view of the above theme of the Series, Netflix argued that lawyers cannot be defamed as a class of persons as the imputation against such collection of persons cannot be attributed to a small determinate body or a particular set of persons whose identity could be established. [para. 10] They argued that the Plaintiff had failed to show any prima facie case, which necessarily must be proved for allowing any interim relief. Further, the Plaintiff had failed to show any cause of action in terms of personal injury or irreparable loss or violation of any right entitling him to the grant of any injunction. [para. 7 & 12]
Sanjeev Sachdeva J, dismissed the Plaintiff’s application without granting any interim relief. The Court’s decision was based on two issues: (a) Lawyers as a class are incapable of being defamed and (b) The Series was a satirical comment, a work of art which exaggerated different issues to expose the shortcomings of the profession. In denying the Plaintiff’s application, the Court held that an interim injunction in favour of the Plaintiff would be tantamount to interference with freedom of speech and expression, a right guaranteed under Article 19(1)(a) of the Indian Constitution.
Lawyers as a Class Cannot be Defamed
The Court based its decision on the settled legal position adopted by the different courts across India and outside. According to Asha Parekh and Ors. v. The State of Bihar and Ors. 1977 Cri L J 21, any collective defamation must be against a “small determinate body.” Further, “however reprehensible and morally unjustifiable the words complained of may be, for it to be actionable, it must contain an imputation concerning some particular person or persons whose identity can be established.” [para. 14] The legal community is an “amorphous and indeterminate body” and hence, lawyers taken as a class cannot be identified with any ‘particular’ individual. Therefore, lawyers as a class are not capable of being defamed. [para. 14 & 16]
The Series was a Satirical Comment- A Work of Art
The Court observed that the Series was based on a theme of ‘satirical comedy’ where the Protagonist, a stand-up comedian, exaggerated different fact scenarios/ issues to portray evils and ills of the community. [para. 21- 23] When seen in the backdrop of satirical comedy that the Series fosters, it is evident that the Episode was a work of fiction which portrayed the hardships that the Protagonist suffered at the hands of the Lawyer. The remarks made by the Protagonist were a result of his personal experience with a dishonest and greedy lawyer. The remarks made in the Episode were against lawyers as a class in general and the same was not targeted against any determinate or identifiable group of lawyers. [para. 19 & 20] The Court held that the Protagonist ‘prima facie appeared to be exaggerating the issue for the purpose of highlighting the ills of the profession.’ [para. 23] The Court further reasoned that “one of the satirical techniques to criticise a particular subject or character is to exaggerate it beyond normal bounds so that it becomes ridiculous and its faults can be seen.” Satire, as a work of art, is a “witty, ironic and often exaggerated portrayal of a subject.” [para. 24]
The Court held that an interim injunction would interfere with the freedom of speech and expression of the Defendants which is guaranteed by the Indian Constitution. [para. 25] The Court stressed that the ‘very essence of democracy lies in the fact that its creative artists are given the liberty to project the picture of the profession in any manner, including by using satire, to exaggerate the ills to an extent that it becomes a ridicule.’ [para. 26]
In the present case, Plaintiff had failed to show that the Episode in any manner referred to the Plaintiff or any definite group of lawyers. In the absence of any injury caused to the Plaintiff, the basic principles for grant of interim relief under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 remained unsatisfied. [para. 29 & 31] The Plaintiff further failed to establish a prima facie case in its favour to show that irreparable injury would be caused to the Plaintiff, in the event the Court denied the grant of an interim relief. In view of this, the Plaintiff’s application seeking interim injunction was dismissed by the Court.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the Court expands freedom of expression. The recognition of the fact that ‘creative freedom of artists is the very essence of democracy’ is in consonance with globally accepted norms of free speech. Globally, it has been accepted that freedom of speech and expression not only covers ideas which are favourably received as inoffensive, but also those that offend, shock or disturb. Creative artists have the liberty to paint a picture of the society by using satirical techniques, to criticise a particular subject and exaggerate it beyond normal bounds so that it becomes ridiculous, while exposing the ills of the society at the same time. The portrayal of the society either in the form of a satirical comedy is nothing but an expansion of the freedom of speech and expression which is protected under the Indian Constitution. While the Court has not directly applied the test of legality, legitimacy and proportionality, in denying the grant of interim relief, the Court has upheld the trinity test which forms the minimum threshold for curtailing free speech.
 Handyside v. United Kingdom  72 (ECtHR); Hak-Chul Shin v. Republic of Korea Communication no.926/2000 (UNHRC, 16 March 2004)
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision establishes a binding precedent for all lower courts in the territory of New Delhi. It has a persuasive precedent for all other courts. As this is an interim order, the precedential value of the present will depend on the final outcome of the Court.
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