Content Regulation / Censorship, Defamation / Reputation, Licensing / Media Regulation
Editorial Río Negro S.A. v. Neuquén
In Progress Expands Expression
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The Delhi High Court set aside an ex parte injunction which had prevented the publication of information which seemed to demonstrate bias in one of India’s prominent media houses. The media house had obtained the injunction from a single judge of the High Court after it argued that the publication would be irrevocably prejudicial to it. The Court referred to Indian and foreign jurisprudence which established that an extremely high threshold needed to be met for a court to allow pre-publication restriction of potentially defamatory material, and remitted the case back to the single judge for reconsideration.
On May 10, 2018, Dainik Bhaskar Corp. Ltd, a media house that publishes 62 daily newspapers around India and operates radio, digital and mobile applications, received an email from the website “Cobrapost.com”. The email informed Dainik Bhaskar that it had a recording which showed eight persons of the Dainik Bhaskar group agreeing to accept money to present news on their platforms with a partisan ideology. Pushp Sharma, a journalist associated with the Forum for Media and Literature (the Forum) which operates Cobrapost.com, had recorded the undercover videos of the agreements and had turned them into a documentary, “Operation 136: Part-II”, which he planned to screen to the public on May 25, 2018, at the Press Club of India in New Delhi. Before the documentary screening Dainik Bhaskar received inquiries from members of the public and media asking about the veracity of Sharma’s claims which indicated to the media house that Sharma had already made his claims public.
Dainik Bhaskar sought a permanent injunction against the screening of the documentary in the Delhi High Court under Order 39, Rule 3 of the Code of Civil Procedure, 1908. The media house submitted that the supposed revelations were “based on blatant falsifications/deceptive operations to defame the plaintiff” [para. 5].
On May 24, 2018 a single judge of the Delhi High Court granted an ex-parte (hearing only one side) injunction ordering that the documentary and the email from May 10, could not be released in the public domain until further orders of the Court.
The Forum and Sharma appealed this order before a two-judge bench of the Delhi High Court, characterizing the injunction as a “super-injunction” because of the impact it had in freezing publication of the allegations for the duration of the legal proceedings [para. 8].
Bhat J delivered the judgment of the two-judge bench. The central issue for the Court’s determination was whether the injunction had been correctly granted without there having been discussion on the merits of the case.
Dainik Bhaskar argued that the supposed revelations were malafide, deceptive, based on blatant falsifications and were aimed at defaming the company. It submitted that their publication would not be in the public interest and that it “raises certain moral and ethical questions” [para. 5]. The media house submitted that an injunction should be granted as screening the documentary would cause “irreparable loss and injury to the goodwill and reputation of the plaintiff”, and that even if it were assumed that such conversations took place, they “would reveal the views of the respective individuals in the videos and not that of the [company]” [para 5]. Dainik Bhaskar argued that the individuals in the recorded conversations were responsible for the sale of advertising and so had no involvement in the publication aspect of the business, and stated that those individuals had denied the allegations [para. 6]. In respect of the argument that the single Judge had insufficient evidence before them to make the decision to grant the injunction, Dainik Bhaskar argued that the evidence was sufficient to demonstrate that the publication of the material would be irrevocably prejudicial. The media house also submitted that even if the assertions were correct it would not be acceptable to publish because the individuals who had been recorded were not part of the editorial or publishing units [para. 12].
In response, Sharma argued that the injunction must be set aside since “it did not discuss, even to the bare minimum extent, the prima facie strength of the plaintiff’s case, nor did it deal with hardship or balance of convenience” and that the injunction “amounted to impairing the valuable right to free speech” by freezing news for the entire duration of the suit [para. 8]. He emphasized that as even the Parliament and Executive cannot pre-censor the media, the courts, “considered the guardian of the liberties,” could certainly not pre-censor by way of an injunction [para. 9]. Sharma highlighted that India, like other free democracies, has an “extremely high” threshold to allow pre-publication censorship, and with reference to the U.K. case of Bonnard v. Perryman 1891-95 noted that Dainik Bhaskar had been given an opportunity to state their position but declined to do so. Sharma also characterized the injunction as “blanket censorship” which should not be accepted in a “free country which cherishes its liberties and free speech” [para. 11].
The Court identified that the two areas of importance were whether the injunction had been correctly granted given that it did “not discuss or dwell upon cursorily even, the facts or merits” and then the prima facie strength of the allegations themselves [para. 14]. The Court held that, clearly, it was impermissible for the lower court to grant an ex-parte injunction [paras. 15-16]. It added that, in line with Khushwant Singh v. Maneka Gandhi AIR 2002 Del 58 which had applied the principle established in the Bonnard case, “the threshold for granting an ex-parte relief where the plaintiff seeks pre-publication injunction, is necessarily of a very high order” [para. 17]. The Court approved the application of the Bonnard principle which created this high threshold and referred to the judgment in Fraser v. Evans 1969 (1) QB 349 which had held that the pre-publication of defamatory material cannot be censored if the publisher is seeking to make fair comment on a matter of public interest. Although it recognised that “[n]ew technology undoubtedly possess new challenges” this “per se ought not to dilute valuable right of free speech which … is the lifeblood of democracy” [para. 22]. The Court emphasized, with reference to Rajagopal v. State of T.N (1994) 6 SCC 632, that “[t]he salutary and established principle in issues that concerned free speech are that public figures and public institutions have to fulfill a very high threshold to seek injunctive relief in respect of alleged libel or defamation” [par.22]. The Court quoted the case of Kartar Singh v. State of Punjab 1956 SCR 476 which had commented that “those who fill public positions must not be too thin-skinned in respect of references made upon them” [para. 22].
The Court stressed that if the judiciary did not follow those established principles of requiring a very high threshold for pre-publication censorship then it risked stifling public debate and, as in this case, prevent fair comment being made in respect of public institutions [para. 23].
The Court set aside the injunction on the grounds that the high threshold for pre-publication injunction had not been met, and remitted the case back to the single judge for reconsideration on the merits of the case. The Court explicitly stated that its judgment did not “reflect on the merits of the facts which are yet to be decided by the learned Single Judge” [para. 24].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The High Court in Delhi, India confirmed that Courts should not easily grant pre-publication injunctions as there is a high threshold to be met for any pre-publication restrictions. The Court cautioned against stifling public debate and characterized a pre-publication injunction as achieving something that is not permissible in law indirectly through the judicial system which is an impermissible violation of the right to freedom of expression.
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, arising out of a division bench of the Delhi High Court, establishes a binding precedent for all single-judge benches of the Delhi High Court and all lower courts throughout the National Capital Territory of Delhi.
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