Commercial Speech, Content Regulation / Censorship, Defamation / Reputation
R. v. Guignard
In Progress Expands Expression
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The Delhi High Court held that the right to comment on content created on social media or on television channels was a facet of the right to free speech and expression guaranteed under the Indian Constitution. A media company operating a number of television news channels sought an injunction preventing a rival online news company from broadcasting material it believed was copyrighted and defamatory. The rival news company argued its broadcasts were covered by the defences of fair use and truth. The Court held that as the determination of the nature of the rival company’s content was a factual one it could only be determined in a full trial, and so refused the application for an interim injunction.
TV Today Network is an Indian company operating prominent television channels, “Aaj Tak”, “Aaj Tak HD”, “India Today Television” and “Good News TV” and is a part of the “India Today Group” [p. 14]. TV Today described its channels and allied services as having become “household names” and gaining immense print and social media “recognition” through social media followers with 47.9 million subscribers on YouTube and 14.7 million followers on the “@aajtak” Twitter handle. The channels had also received various awards such as “Best Hindi News Channel” from the Indian Television Academy and the Exchange4media News Broadcasting Award [p. 15-16].
TV Today filed a case against News Laundry Media Private Limited, a digital news platform, for defamation and copyright infringement, in respect of various videos and articles News Laundry had broadcast on its own channels.
Justice Asha Menon of the Delhi High Court delivered the judgment. The central issue for consideration before the Court was whether an interim injunction could be granted to TV Today who had alleged copyright infringement, defamation and commercial disparagement against News Laundry.
TV Today argued that News Laundry had ridiculed and defamed it by publishing content which had false, malicious, defamatory and derogatory information. It referred to language used by News Laundry to describe TV Today like “shit programme” and remarks on their revenue model and capacity of TV Today’s anchor to create a riot and submitted that the false and defamatory statements “lowered the reputation of [TV Today] in the eyes of the right-thinking members of the society……and have seriously caused prejudice to their commercial reputation and goodwill” [p. 20]. TV Today argued that the defamation was accompanied by the infringement of the copyrighted content of TV Today. TV Today submitted that 90% of News Laundry’s programmes (‘TV Newscance’, ‘Criticles’ and ‘NL Tipani’) comprised of content taken from TV Today’s news channels. It referred to the Indian cases of Hubbard v. Vosper,  2 Q.B. 84 and Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd., 2010 SCC OnLine Del 2086 and argued that “reproduction of a small part of the content may not amount to a copyrighted infringement, but the reproduction of large portions of [TV Today’s] content to create a programme by [News Laundry] on their platform clearly was impermissible” [p. 24]. TV Today submitted that it had spent a significant amount of time, money, and intellect promoting its different brands and services, and that the management and the news anchors of their company were people who had received great recognition for their news coverage, reporting, creative programming and anchoring.
News Laundry argued that it had only commented on TV Today’s reporting quality and used its content for “criticism or review” and so it did not constituted a copyright infringement [para. 30]. It submitted that their use of TV Today’s content was covered under “fair use” since they had given due credit to TV Today and that their actions had not led to commercial disparagement [p. 21]. In respect of the defamation allegations, News Laundry relied on the “defence of truth” and submitted that “fair criticism in harsh words would not amount to defamatory statements” and that no plea of defamation could be contested against the satirical nature of the programme [p. 31]. News Laundry maintained that “there was nothing in the videos that would show ‘disparagement’, as whatever was being said was to indicate that [TV Today’s] channels had a bias, including of hesitancy to criticize the Government” [p. 33-34]. It added that, in the absence of any evident malice, their right to create such programmes based on their fundamental right to free speech could not be curtailed [p. 33-34].
The Court considered these arguments against the backdrop of section 39 and section 52 of the Copyright Act, 1957. Section 39 establishes conduct that falls outside the purview of the infringement of broadcast reproduction right or performer’s right. Section 52 also creates exceptions for certain acts such as fair dealing, criticism or review, and bona fide use by educational institutions which cannot be considered copyright infringement [p. 59]. The Court observed that criticism or review of the TV news programme both on content and the reporting of current affair would be covered under “criticism” or “review” under section 39 and section 52 of the Copyright Act and would be protected against allegations of infringement [p. 61]. However, it stressed that more factual consideration was needed to decide whether News Laundry were protected under these two provisions, which could only be ascertained in a trial [p. 61].
The Court examined whether News Laundry could use the defence of “fair dealing” and “fair comment” [p. 63]. It referred to the UK case of Slim and Others v. Daily Telegraph Ltd. and Others  2 Q.B. 157 where Lord Denning had stated that “the question of such defences of ‘justification’ and ‘fair comment’ would have to be founded on an absence of dishonest motives and bad faith” and that “even if the words conveyed derogatory imputations or the information was exaggerated or prejudiced or very badly expressed, allowing the people (here the viewers/users) to read all sorts of innuendos into the badly expressed opinion, nevertheless, the defence of ‘fair comment’ would be a good defence” [paras. 64-65]. The Court noted that “fair dealing” and “fair comment” could be decided only after considering parameters like “whether the comments were devoid of malice; they were honestly made; and in public interest; the reproduction was of short excerpts; there was some creative input of the copier/reproducer; they constituted criticism and review, and there was no blatant act of copying” [p. 69]. The Court held that more factual consideration was needed to decide this issue as well which could only be decided in a trial [p. 69].
In respect of the defamation claim, the Court recognized that TV Today and News Laundry were competitors since both were available to social-media users (apart from the fact that TV Today also broadcast through television channels). This meant that commercial disparagement would occur “when one player in the field derides a rival and belittles or discredits or detracts from the reputation of such a rival in respect of its products, services or business. While claiming to be the best, any statement about a competitor’s goods, which could be untrue or misleading and is made to influence or tend to influence the public, would amount to disparagement” [p. 71]. The Court acknowledged that advertising was essential for economic activity and commercial speech constituted a part of the freedom of speech and expression guaranteed under article 19(1) (a) of the Indian Constitution, but emphasized that this did not extend to calling a rival’s products poor or making untrue statements or misstatements about the rival’s services. In a field of copyright and broadcast rights, such comments would make a defendant liable for defamation.
The Court examined News Laundry’s reliance on the case of Indibily Creative (P) Ltd. v. State of W.B., (2020) 12 SCC 436 in their argument that they sought the “fullest liberty to critique and criticize, through satire, the [TV Today’s] programmes” [para. 85]. It found that “while freedom of expression would include the art of satire, it must be evident that what was being presented is indeed satire. It must be self-evident and by its very character can never be a case of copyright infringement or defamation or even disparagement” [para. 85]. The Court characterized the intention of satire as “to simultaneously highlight an action and its negative fallout, so that rectificatory action could be taken” and stressed that it “is never intended to disparage or harm reputation and thus is completely devoid of malice” [para. 85]. The Court noted that the determination of whether a comment was satirical or malicious was a factual one and therefore, could only be determined at the trial stage.
The Court emphasized that the right to freedom of speech and expression includes the right to acquire information, right to disseminate ideas, right to broadcast programmes, as well as the “right to publish and circulate one’s ideas, opinions and views with complete freedom and by resorting to the available means of publication” available not only to the electronic media and television channels, but also social media platforms [p. 77]. It noted that “the availability of a multitude of reporting styles” is in the public interest and that the public also has an interest in broadcasters providing fair comment on current events and criticizing other programmes [p. 82]. However, the Court also highlighted the importance of protecting reputations under Article 21 of the Constitution”and called for a balance between the constitutional rights.
The Court then considered the three conditions necessary for the granting of an interim injunction: the presence of a prima facie case; irreparable loss and injury; and the balance of convenience. The Court noted that although News Laundry had raised “truth” and “justification” as defences which would have made a grant of injunction to TV Today difficult, their programme was merely on “opinion” and determination of whether the opinion was in the public interest, and an honest and fair comment, required a trial procedure [p. 86].
The Court rejected News Laundry’s argument that their “right to comment” was in the public interest as they were trying to “steer the media into communicating and disseminating information correctly, without bias” [para. 79]. The Court found that it “cannot accept this self-appointment by [News Laundry] as “Regulators” of the content of the media……every individual or organization cannot claim the authority to regulate” and held that there was no public interest in News Laundry’s particular programming [p. 79]. The Court did comment that “the right to comment on content created on social media or on T.V. channels has also to be recognized as a facet of the right to free speech and expression under Article 19(1)(a)” [para. 82].
The Court held that a prima-facie case was disclosed by TV Today as News Laudry had not sought any licence for reproduction of TV Today’s content, and that the use of words such as “shit standards”, “shit playing” on the channel, “shit reporters”, “shit show” and “other suggestive comments … would be commercial disparagement” [p. 87-88].
However, the Court found that the other two requirements for an interim interdict were not fulfilled as the “balance of convenience” would tilt in favour of News Laundry if they were able to establish justification, fair comment and fair dealing. In addition to this, some of the videos and articles in question had been in existence since 2018 and so there was no real urgency to issue a mandatory injunction to take them down. The Court also found that if News Laundry succeeded in their defence, the harm caused to them would outweigh the loss caused to TV Today and no “irreparable loss or injury” would be caused to TV Today that could not be recompensed by damages in the absence of the interim injunction [p. 91].
Accordingly, the Court refused TV Today’s application for an interim interdict against News Laundry’s broadcasting of content from their network and making allegedly defamatory comments.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although this case involved interim proceedings, the Delhi High Court’s confirmation that the right to free speech and expression under article 19(1)(a) of the Indian Constitution includes the right to publish and circulate one’s ideas, opinions and views with complete freedom not only through electronic media and TV channels only but also through social media platforms expands expression. The judgment also discusses the nature of satire, emphasizing that statements made with malice can never constitute satire.
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.
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