News based on FIR not in good taste

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Investigative journalism enjoys no special protection; public interest does not permit publication of defamatory material without any basis in truth: Bombay HC

Case Title: Khanjan Jagdishkumar Thakkar vs Wahid Ali Khan & Ors 2024

The Bombay High Court emphasised the importance of balancing freedom of the press with the right to reputation of an individual, saying that though investigative journalism plays an important role in society, it cannot be at the cost of defaming individuals.

As a journalist, though he may be bound to apprise the public with facts and figures which are of interest to them, it certainly cannot be attempted at the cost of defaming the plaintiff. Freedom of the press, which is evolving into a free speech, has to be balanced with the right to reputation of an individual, the court said.

15] In words of Cave, J in Scot vs. Samson , 1882 (8) QBD,
The Law recognizes in every man a right to have the
estimation in which he stands, in the opinion of others,
uneffected by false statement to his discredit.
Every man possesses an inherent personal right to have his
reputation reserved inviolate.
Any imputation which may tend to lower the image of a
person, in the estimation of right thinking members of society
generally or to expose him to hatred, contempt or ridicule is
defamatory to him. The publication of words defamatory of the
Plaintiff, give rise to prima facie cause of action and the law
presume in favour of such a party, that the words are false unless
the Defendant proves to the contrary.
16] The Tort of Defamation, may be committed either by way of
writing or by way of utterances, and the term libel is used to
describe the former, kind of utterances, whereas, the term
slander is for the later.
A libel is defamation in some permanent form, for eg. a
written or printed defamation, whereas, slander is defamation in
transient form for eg. spoken words, gestures etc.
Cyber defamation is an emerging challenge in the digital era,
it refers to an act of defaming someone online through social
medial, websites, or any other available digital platform.
17] The Law of Defamation, like every other branch of Law of
Torts , expect balancing of interest, between the right of a person
to enjoy his reputation being juxtaposed against freedom of
speech and expression, available to another. The Law of
Defamation protects reputation and the defences to the wrong
namely the truth and privilege stand protected by exercising the
freedom of speech.
Words are prima facie defamatory, if their natural, obvious
and primary sense is defamatory. However, words prima facie
innocent are not actionable unless their secondary or lateral
meaning is proved by the Plaintiff to be defamatory and then the
burden is cast on the Plaintiff to make out the circumstances,
which make them actionable and he shall establish, the
defamatory statement attributed to these words. Such
explanatory statement, referred to as innuendo, is created
where the imputation is made in an oblique way or by way of
question, exclamation or conjecture.

The cause of action based on a true or legal innuendo arises
when reliance is placed or some special circumstances, which
convey to some particular person or persons knowing the
circumstances a special defamatory meaning. In such a cause of
action, there is no exception in case of a publication in media,
because the words would not be so understood by the world at
large, but only by the particular person or persons who know the
special circumstances.

......

19] Under the Law of Defamation, the test of defamatory nature
of a statement is its tendency to insight an adverse opinion on
feeling of other persons towards the Plaintiff. The words must
result in the Plaintiff to be looked upon with the feeling of hatred,
contempt, ridicule, dislike or to convey an imputation to him or
disparaging him or his office, profession, calling, trade or
business.
In India, like most other common law countries the burden
is proof is on the Defendant to show that the statement is true or
the publication was not intentional.
In S. Puttaswamy vs. Union of India1, a 9 Judge Bench of
the Highest Court has authoritatively held that right of privacy is
a fundamental right and the only permitted exception is where,
there is counter veiling public interest, which in particular
circumstances is strong enough to outweigh it.
20] What the Defendant No.1 is attempting, is investigative
journalism, which is definitely not in the interest of general public
at large, as a Journalist, though he may be duty bound to appraise
the public, of the facts and data which is in their interest, it
definitely cannot be attempted at the cost of defaming the
Plaintiff. The freedom of press, which is being evolved as a species
of speech, definitely will have to be balanced against a right,
which an individual has to his reputation.
Justification by truth is a well accepted defence, which is
available to answer the action, as truth of defamatory words, is
accepted as defence to an action of libel or slander, though not in a
criminal trial. However, what is important is, that the Defendant
must make clear, the particulars of justification and the the case
which he is seeking to set up and justify.
21] In the present case, Mr. Waahiid Khan has not offered a
single justification of truth, but what is asserted by him, is the
right to give his audience an objective and fair view.
A reference is made to an interview with accused No.13
Amit Majethia, but in any case, such disclosure is merely hearsay.
In fact, in the reply filed,what is disclosed is the FIR
registered with Matunga Police Station, where the Plaintiff is one
of the accused and reference is also made to revelations by Mr.
Amit Majethia to him, where he exposed the Plaintiff as gambling
tycoon of India and disclosed that the Plaintiff was in charge of the
alleged criminal activities in Dubai and his uncle was in charge of
the same in Mumbai.
22] It is highly surprising, that a responsible Journalist,
without asserting the truthfulness of the statement, from Amit
Majethia who was interviewed by him, has thought it fit to put
the revealation on public platform and in public domain
including Shawn TV, instagram account. Though a feeble attempt
is made by Defendant No.1 to assert that he had no intention to
defame or harm the reputation of the Plaintiff, but he has
accepted to bring some important facts to light, burden is upon
him to establish that the Plaintiff is associated with criminal
activities or that he is involved in any sort of hooking. Obviously,
the Defendant has not taken a reasonable precaution of
ascertaining the truth before publication of the interview, by
casting imputations which prima facie amount to defamatory
statement.

23] The question as regards grant of interim relief in formof an
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injunction restraining the Defendants from publishing the
defamatory Article on the public platform, it is a trite position of
law in India, that a mere plea of justification would not be
sufficient for denial of interim relief and the Defendant No.1 apart
from it will have to show that the statements were made bonafide
and were in public interest and reasonable precaution was taken
to ascertain the truth and the statements were based on sufficient
material which could be tested for its veracity.
24] The above position of law is well settled in India and is at
variance with the principles of law in England, where in an action
for defamation once a Defendant raise a plea of justification, at
interim stage, the Plaintiff is not entitled for an interlocutory
injunction, but the same not being the position in India, where the
Court is entitled to scrutinize the material tendered by the
Defendant, so as to test its veracity and to ascertain, whether the
statements are made bonafide and whether they are in public
interest.
Thus, in India, even at the interlocutory stage, the Court is
very much entitled to look at the material which is alleged to be
defamatory in nature.
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25] As a result of position of Law which has evolved in India,
the truth of defamatory words is a complete defence to an action
of libel and slander, but a Journalist or Reporter is not expected to
transgress the limits of his right of speech and expression and
cannot claim protection by simply stating that the information,
was provided to him by someone and it is in public interest to
divulge the same, on the pretext that duty lies in giving out that
information to the public.
Investigative Journalism definitely does not enjoy any
special protection and the umbrage of public interest definitely do
not permit a publication, which would amount to lowering down
the reputation of any person , in any manner particularly without
justifying the publication on the basis of its truthfulness. Just
because, the Defendant No.1 is interested in ascertaining the
truth or is interested in going to roots of the complaint that is
filed, resulting into an FIR, do not necessarily mean that the
publication is in public interest and particularly when the
complaint is under investigation.
26] A write up which contain imputations and insinuations
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against the character of the Plaintiff, particularly when they are
baseless and reckless, as in response to the Interim Application,
except stating that it is based on the First Information Report
and an interview of some third person, no justification is offered,
by the First Defendant.
A publication by a Journalist who claim to have exposed
many scams definitely do not authorize him to publish a column/
article, which may result into hatred, ridicule or contempt of the
Plaintiff and he may not escape the consequences, merely on the
pretext that it is in public interest.
If a CR is registered on a complaint and it is under
investigation, the Defendant No.1 has offered no justification for
running a story, which according to the Plaintiff tends to lower
his image in the public.
27] Reliance placed by Mr. Rizwan Merchant on the order
passed by the Delhi High Court in the case of
Mahua Moitra vs.
Directorate of Enforcement and others2,, is a completely different
situation and what is sought by the Plaintiff/Applicant is a
2 2024 SCC OnLine Del 1264
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restraint order from publishing the false and defamatory
statement/ writing, which tend to injure his reputation without
lawful justification or excuse by using the platform on social
media.
28] Recently, the Apex Court in case of
Bloomberg Television
Production Services India Pvt. Ltd. & Ores. vs. Zee Entertainment
Enterprises Ltd.3,, observed in Para 7 and 8 as under :-
7. Significantly, in suits concerning defamation by
media platforms and/or journalists, an additional
consideration of balancing the fundamental right to free
speech with the right to reputation and privacy must be
borne in mind. The constitutional mandate of protecting
journalistic expression cannot be understated, and courts
must tread cautiously while granting pretrial interim
injunctions. The standard to be followed may be
borrowed from the decision in Bonnard v. Perryman.
This standard, christened the Bonnard standard, laid
down by the Court of Appeal (England and Wales), has
acquired the status of a common law principle for the
grant of interim injunctions in defamation suits. The
Court of Appeal in Bonnard (supra) held as follows :
.. But it is obvious that the subject-matter of an action
for defamation is so special as to require exceptional
caution in exercising the jurisdiction to interfere by
injunction before the trial of an action to prevent an
anticipated wrong. The right of free speech is one which
it is for the public interest that individuals should
possess, and, indeed, that they should exercise without
impediment, so long as no wrongful act is done; and,
unless an alleged libel is untrue, there is no wrong
3 2024 SCC OnLine SC 426
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committed, but, on the contrary, often a very wholesome
act is performed in the publication and repetition of an
alleged libel. Until it is clear that an alleged libel is
untrue, it is not clear that any right at all has been
infringed; and the importance of leaving free speech
unfettered is a strong reason in cases of libel for dealing
most cautiously and warily with the granting of interim
injunctions.
8. In Fraser vs. Evans, the Court of Appeal followed
the Bonnard principle and held as follows :
...in so far as the article will be defamatory of
Mr.Fraser, it is clear he cannot get an injunction. The
Court will not restrain the publication of an article even
though it is defamatory, when the defendant says he
intends to justify it or to make fair comment on a matter
of public interest. That has been established for many
years ever since (Bonnard v. Ferryman, [1891] 2
Ch.269). The reason sometimes given is that the
defences of justification and fair comment are for the
jury, which is the constitutional tribunal, and not for
Judge. But a better reason is the importance in the
public interest that the truth should out..
29] The position in India, being evolved to the effect that it is
open for the Court to pass a restraint order, but it shall be passed
with great caution and the Plaintiff must prove that the words
complained of, are untrue and any subsequent publication would
be malafide.
The case of the Plaintiff falls within these four corners, as
the defence of truth if permitted to be availed at the stage of trial,
which in this country will be long wait, would have the desired
effect of maligning the image of the Plaintiff and without any
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sufficient cause/justification being offered by any supporting
material.
30] For the above reasons, I am convinced to grant the reliefs
in the Interim Application, to the following effect :-
(a) That pending the hearing and final disposal of the Suit,
the Defendant No.1 is restrained by temporary injunction from
printing, publishing, selling and/or exhibiting, circulating the said
articles and streaming and sharing the video on any social medial
platform or any other platform in public domain and from doing
any other act, deed or thing that may amount to defamation of the
Plaintiff.
(b) The Defendant No.1 is directed to forthwith
remove/delete permanently the following defamatory Articles:-
..