Supreme Court’s Warning on Defamation Suits Involving Media

‘Strategic Litigation Against Public Participation’ vs Right to Publish

Newsreel Asia Insight #173
March 27, 2024

The Supreme Court has asked trial courts to exercise caution when issuing pre-trial injunctions that prevent the publication of media articles, emphasising the potential infringement on the rights to publish and to be informed. The guidance came as the Court addressed the misuse of litigation, particularly by economically powerful entities, to obstruct public access to information on matters of public interest, often referred to as Strategic Litigation against Public Participation (SLAPP).

In a judgment, the Supreme Court, led by Chief Justice D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra, overturned an interim injunction that had ordered Bloomberg to remove an article about Zee Enterprises Ltd, as reported by LiveLaw.

A pre-trial injunction is a legal order issued by a court before the final resolution of a lawsuit. It restrains a party from performing certain actions or requires them to perform specific actions during the period leading up to the trial. The purpose of a pre-trial injunction is to preserve the status quo and prevent irreparable harm or injustice that could occur if the action in question continued or was delayed until the end of the trial.

The Court said the three-fold test for interim relief—prima facie case, balance of convenience and irreparable loss or harm—should not be employed mechanically, as it could unjustly harm the opposing party and, by extension, the public interest.

A prima facie case refers to the requirement that the plaintiff must show sufficient evidence to establish a legally enforceable claim against the defendant. This means there must be enough evidence that, if unchallenged, would lead to a judgment in the plaintiff’s favor. It doesn’t mean the plaintiff has already won, but rather that there is enough evidence to proceed with the case.

The balance of convenience is a legal test used to assess which party will suffer more harm if the injunction is granted or denied. The court weighs the consequences of granting or not granting the injunction on both parties. If the harm to the plaintiff from not granting the injunction outweighs the harm to the defendant from granting it, the balance of convenience favours the plaintiff.

Irreparable loss or harm refers to a situation where the harm or damage that could be inflicted on the plaintiff cannot be adequately compensated by money or where the harm is so unique or severe that it cannot be undone. This concept is crucial in deciding whether to grant an injunction, as it seeks to prevent actions that would cause such harm before the case is fully resolved.

The Court stressed the significance of balancing the fundamental right to free speech against the right to reputation and privacy, especially in defamation suits involving media entities. It pointed out that the constitutional protection of journalistic expression is paramount and that courts must be diligent in granting pre-trial interim injunctions to avoid undue suppression of free speech.

The Supreme Court further elaborated on the severe impact that pre-trial injunctions can have on the freedom of speech and the public’s right to information. It advised against granting ex-parte injunctions without clear evidence that the content in question is malicious or patently false, noting that such actions prematurely stifle public discourse. 

An ex-parte injunction is a legal order issued by a court without hearing or notifying the other party involved in the dispute. This type of injunction is granted when the applicant convinces the court that there is an urgent need for immediate action to prevent significant or irreparable harm, and that notifying the other party could jeopardize the purpose of the injunction.

The Delhi High Court had rejected Bloomberg’s appeal against an ex parte interim order. The order had required Bloomberg to take down an article from their website that was claimed to be defamatory, titled “India Regulator Uncovers $241 Million Accounting Issue at Zee,” as reported by LawBeat. The article, which discussed the merger between Zee and Sony and a SEBI investigation related to Zee, claimed to be factually accurate and uphold journalistic standards. Despite this, the court initially decided to temporarily block the article after hearing only from the opposing side.

Addressing the issue of SLAPP suits, the Supreme Court recognized the growing acknowledgment of this phenomenon in various jurisdictions. SLAPP suits, often initiated by powerful entities against media or civil society members, aim to prevent public engagement in significant matters. The Court warned of the long-term effects of interim injunctions, which can act as a “death sentence” for the content in question, stifling it before the allegations are substantiated.

The Supreme Court criticised the trial judge in the Bloomberg case for not adequately assessing the prima facie strength of the plaintiff’s case or considering the balance of convenience and potential hardship. It emphasised that appellate courts should intervene when interim injunctions are granted arbitrarily, neglecting established legal principles.