Given even a Delhi High court's restraint couldn't stop the spread of a video clip of Congress leader Abhishek Manu Singhvi, should courts even bother with restraints on media when it can't be ensured that it can be implemented?
Leader of the BJP in the Rajya Sabha and senior lawyer Arun Jaitley has argued in an editorial that courts need not pass orders in cases restraining the media from broadcasting material given authorities can no longer ensure the orders are implemented, especially on social media and other internet-based media.
In the editorial in today's Indian Express , the BJP leader argues that it is nearly impossible to completely restrain digital and electronic media from broadcasting material and courts should ensure that injunctions imposed on the media shouldn't breach constitutional guarantees like freedom of speech and expression.
Singhvi had obtained a restraint against media houses and his former chauffeur from broadcasting and making public a clip which allegedly showed him in a compromising position. However, despite the court order and reaching a settlement with the chauffeur who had obtained the clips, the video went viral on social media like Facebook and Twitter.
Singhvi had subsequently alleged that the clip was fabricated and was being spread on the internet and social media by an organised gang to defame him.
However, referring to Singhvi's attempts to restrain traditional media from telecasting the clip, Jaitley says:
A pre-publication injunction can only be granted in the rarest of rare cases. The jurisdiction to grant such injunction is a very narrow one and can be exercised with great caution specially in a case of libel and slander. A restraint can only be granted if an atrocious libel is wholly unjustified, causing serious injury to the plaintiff and it appears to a court that the defence of privilege or justification is just not possible.
Jaitley argues that the loss of reputation is a private interest but if it serves public interest the broadcast should be permitted unless "justification of truth appears almost impossible to be sustained".
We could perhaps look at what happened in United Kingdom where individuals were allowed to get super-injunctions against traditional media publishing articles that could defame them or showed them in compromising positions. Media were not even allowed to report who had sought the super-injunction, something that led to a lot of speculation with many celebrities having to defend their reputations despite not having taken a court order. And just in case you don't know about super-injunctions, here's a primer.
However, others like footballer Ryan Giggs who had obtained a super-injunction against reportage of an extra marital were unable to restrain social media like Twitter and an outspoken parliamentarian from spreading the news despite a court order in his favour.
So does Jaitley have a point? Should courts stay out of trying to restrain the media and allow broadcast of news first following which those affected to defend their reputations?
Or should they be able to restrain media despite no firm guarantee of its implementation?