The 2011 judgment of Pune Trial Court holding the Times Now TV guilty of defaming Justice P B Sawant and imposing damages of ` 100 Crore is unprecedented and affects the constitutionally secured freedom of speech and Expression.
The House of Lords in the 1910 case of Hulton and Co v. Jones granted to Arthemus Jones the damages sought for referring to his name in a fictitious report. In this case, the House of Lords introduced the ‘if the cap fits’ theory imposing a kind of ‘strict liability’ for defamation for unintentional reference to a person whose existence was not known to the publisher. This judgment brought the name of “Gold Digging Litigation” to defamation cases. The Times Now judgment given by the Pune Trial Court revives this century-old English principle, even while the law of defamation over the years has substantially changed through judicial pronouncements.
The Times Now channel reported a scandal involving several judges including some from higher judiciary in the heartless siphoning-off of the PF money of Class III and Class IV employees of the Ghaziabad Court from 2000 to 2008. The CBI chargesheeted 78 persons including three former judges of Allahabad High Court and three former district judges of Ghaziabad for “fraudulently and dishonestly” withdrawing Rs. 6.58 Crore from district treasury as GPF withdrawals.
The sixth Joint Civil Judge, Senior Division, Pune, Smt. V K Deshmukh wrote in the judgment delivered on 26th April, 2011: “Times Now Channel started reporting all the developments relating to PF scam. Amongst the judges, allegedly involved was Justice P.K. Samantha (Retd.) Judge of the Calcutta High Court. On 10.9.2008, while the News relating to this scam was being telecast, a photograph of Justice Sawant was shown even as the name of Justice P.K. Samantha was being mentioned”.
It is claimed that flashing that photograph created a false impression amongst ‘all the viewers in India and abroad’ (a claim to be proved) and that Justice Sawant was involved in PF Scam is per se highly defamatory. Though the channel stopped the publication of the photograph when the mistake was brought to their notice, it was complained that no corrective or remedial steps were taken to undo the damage. After five days on 15th September 2008, Justice Sawant sent a notice demanding an apology and payment of ` 50 Crore as compensation. Times Now replied on 25th September, 2008 stating that a corrigendum was published on 23rd September, 2008 and also tendered an apology. Times Now contended that it was an unintentional and inadvertent error, and was flashed only once for a short duration without malice. It was corrected by withdrawing thephotograph from all subsequent news bulletins. On 29th September, 2008 Justice Sawant described the apology as neither early nor sincere and enhanced demand to ` 100 Crore.
How important is this judgment for the media industry?
Well, despite being the most important defamation case against a media house in recent times, the judgment delivered by a Pune court has not been analysed and talked about in the mainstream media the way it should have been. This judgment is very important, particularly given its implications for the media industry as a whole.
Perhaps one reason why it was not discussed in great detail in the mainstream media – both print and electronic - operating from the national capital was the unavailability of the judgment. Secondly, many journalists were shocked at the quantum of damages awarded by the Pune court to Justice P.B. Sawant.
But you have read the judgment. In your opinion, what are the flaws in the judgment?
You see, the civil law on defamation is not codified in India and subject to statutory exceptions; we follow the British Common Law. One of the requirements for a suit of defamation to succeed is that the statement in question must refer to the plaintiff. In this case Justice P.B. Sawant. But after reading the verdict I am not convinced that the Ghaziabad Provident Fund story telecast by Times Now referred to Justice Sawant.
In fact it referred to a retired judge of the Calcutta High Court, although the photograph inadvertently flashed on the screen was that of Justice Sawant. I am not commenting much because now the matter is pending before a superior court, which is expected to rectify the errors in the judgment.
What about the quantum of damages? Do you think the amount of Rs. 100 crore is far too high and unjustifiable in this case?
As I said to you in the beginning, many journalists were shocked at the quantum of damages awarded in this case. I feel the judgment lacks sense of proportion. Do you know what was the compensation awarded to those who lost their loved ones in Uphaar fire tragedy in Delhi?The family of deceased above 20 years got Rs 10 lakh each and for those below 20 years the compensation was Rs 7.5 lakh.
The purpose of defamation law is to protect an individual’s reputation and the damages awarded are only incidental to it. Damages awarded, particularly against newspapers and TV channels, should not be punitive because it could have implications for media freedom, which is vital for survival of our democracy. There have been defamation cases where people claimed a token amount as damages. In fact, in para 39 of the judgment the trial court itself acknowledged this proposition and went on to say that defendant’s financial soundness cannot be a ground to justify the plaintiff’s Rs 100 crore claim. But then it goes on to award Rs 100 crore as damages. Let’s wait for the next verdict.
What are the lessons journalists can lean from this case?
There is only one lesson i.e. we have to be accurate and flawless in our reporting and output whatever may be the circumstances. The final verdict in this case will be keenly awaited. I think it would be a watershed in the history of media laws in India
The Civil Judge reasoned “…So if by the wrongful act is found to be committed the person who feels it is affecting his reputation, it amounts to defamation for which he becomes entitled for damages.” The fact that the Judge ‘felt’ that he was defamed was neither examined nor established. Nowhere in the world is the ‘feeling’ of plaintiff an accepted criterion for determining ‘defamation’. This is a fundamental flaw of this judgment.
Then judge referred to a definition, ‘a defamatory statement is a statement calculated to expose a person to hatred contempt or ridicule or to injure him in his trade, business, profession, calling or office or to cause him to be shunned or avoided in the society.’ This is taken from the second part of the definition by Underhill, while conveniently omitting its first part, i.e., ‘defamation is the publication of a false and defamatory statement concerning another without just cause or excuse, whereby he suffers injury to his reputation(not to the self-esteem)’. Injury to self esteem is not defamation, and just cause and excuse can remove that liability. The plaintiff has to prove that the wrongful reporting was calculated to expose him to hatred, contempt or ridicule, and he faced such exclusion due to exposure. This judgment nowhere states that such fact is proved. It is an internationally known principle, and also basic, that intention is not essential for the tort of defamation. Assuming that this wrong principle is correct, absence of intention in flashing the wrong photo was clearly proved and judgment cannot stand on that point.
The criterion propounded by the famous jurist Salmond for defamation, upheld in several judgments (for example in Sim v Stretch, 1936 2 All England Reporter, 1237 HL [Lord Atkin]) is: the publication which would ‘tend to lower the plaintiff in the estimation of right thinking members of society generally’ is defamation. To prove that estimation of right thinking members of society about Justice Sawant is lowered, the court has to examine the following: the chances of watching the photograph; recognizing, ascertaining and identifying it not with the name mentioned simultaneously but with that of plaintiff etc. When it was flashed for a few seconds, a very small number of viewers might have watched it, a few of them might have recognized it and a few of those might have identified him, while those unacquainted with the photo of Justice Sawant might have thought that it was the photo of Justice Samantha only. Those who knew Justice Sawant definitely understood that he was not Justice Samantha; and so even among those who know him Justice Sawant’s estimation was not lowered. General people would have understood his photo to be that of name mentioned.
In Partington v. Bugliosi, 56 F.3d 1147, 1153 (9th Cir.1994), the US judge held that totality of circumstances around disputed comment should be considered for ascertaining the defamatory character of that statement.
The second essential reference to the plaintiff in this case is doubtful and just a possibility, much less a factually proven fact. When the photo was shown, Justice Samantha’s name was referred. Those who knew both the judges understood it was a mistake. Viewers, who thought it wasJustice Samantha, could have never understood it as referring to Justice Sawant. Where is the reference then? In this case neither the defamatory character nor the reference was proved. Third, essential ‘publication’ is also not established satisfactorily. The fact that this PF scandal involved some judges, including higher court judges, was the truth borne by CBI’ charge-sheet. While reporting this scandal, mentioning it as a ‘charge’, if not as proven crime, clearly amounts to reporting truthfully, except showing of the plaintiff’s photo mistakenly
General class of damages is generally based on proof of loss. Grant of huge exemplary damages could be justified only by showing gross and deliberate malice or reckless disregard to truth on part of the publisher, not just an inadvertent error. Though intention is not essential for the tort of defamation, it is certainly relevant in quantifying damage. The apology, even though not accepted by petitioner, could be a significant mitigating factor, which was ignored. Undoubtedly Times Now should have been cautious but such an error could not be equated with crime.
On the face of it, the words used clearly must have defamed defendant for making it actionable per se (Bala Ram v. SukhSampatLal (AIR 1975 Raj 40). While accepting the citing of R.K. Karanjia v. K.M.D. Thackersey (AIR 1970 Bom 424) in which it was observed that if falsehood was proved, malice could be presumed in defamation, the court again ignored the fact that mistake was not falsehood which could be equated with malice. The Supreme Court of India in R. Rajagopal v. State of Tamilnadu (JT 1994 (6) SC 514), quoted at length from the landmark judgment of the US Supreme Court in New York Times v. Sullivan (376 US 254 (1964) which concluded that a public official could only recover damages for libel if a publication was false and made with reckless disregard for the truth. Assumption that former judge was defamed, that too to the tune of 100 cr. rupees reflect ‘bias’. It is not based on sound legal principles or on actual proof of facts. This wrongful judgment on mistaken judgment of a medium raises a question: what is remedy to ill-effects of mistaken judgment? Free speech now looks protection from wrongful judicial process.
www.grandmasters.in | 8 Years & Counting
www.rcls.in | 8 Years & Counting
www.itlegalsummit.com | 8 Years & Counting
www.bfls.in | 8 Years & Counting
www.maels.in | 8 Years & Counting
www.plcs.co.in | 8 Years & Counting
Copyright © 2020 Lex Witness - India's 1st Magazine on Legal & Corporate Affairs Rights of Admission Reserved
