In the time of #MeToo, judiciary must provide media houses adequate protection against defamation cases

#MeToo has taken India by storm. Despite certain speed bumps, this progressive movement is at full swing and there are high hopes that this will lead to a change for the better in society. The participants of this movement should be appreciated for their courage in speaking up despite the disbelief, harsh threats and other repercussions that are bound to follow. Media houses have been extremely instrumental in providing a platform for this movement, where the victims have been able to come forward, tell their story and be heard. This brings to the fore the question of liability of these media houses: To what extent are they liable for the stories that they publish in good faith? Will the defamation standards that are applied in ordinary cases also apply in these situations? The defamation law in India is guided by common law principles in matters relating to civil liability and Section 499 of the Indian Penal Code (IPC) in cases of criminal liability. Media houses or their journalists have no special protection under defamation laws in India despite stern attempts being made by the Editors Guild of India to decriminalise defamation for journalists. [caption id=“attachment_5279131” align=“alignleft” width=“380”] Representational image. AP[/caption] However, recently the Supreme Court had held that every instance of wrong reporting by journalists cannot be equated to defamation. The case pertained to an appeal filed in the Supreme Court against a decision of the Patna High Court which had held a defamation case against senior journalists Rajdeep Sardesai and Raghav Bahl to be untenable. In that case, the petitioner had brought action against the defendants for a 2011 report accusing her of being involved in a land allotment scam. The then Chief Justice of India, Dipak Misra had observed, “In a democracy you must learn to tolerate. The case has continued since 2011. The persons have spent a lot of time and money in defending themselves. Defamation may be constitutionally valid. But an alleged incorrect news item about a scam does not amount to defamation.” While this might be a silver lining for media houses, India still fails to provide strong protection to them through a definite law. On this point, the law in the United Kingdom is better evolved. The House of Lords in the case of Reynolds versus Times Newspapers Ltd, 2001 had evolved the concept of public interest defence. This allowed journalists to publish any matter of public importance without hesitation as they could not be held liable even if the allegation turned out to be untrue. Further, 10 codes were enlisted to satisfy the criteria for responsible journalism in the judgment, some of which were seriousness of the allegation, nature of the allegation, steps taken to verify the source, and urgency of the matter. This defence of public importance is now known as the ‘Reynolds Defence’ in the legal sphere. Recently, in 2013, the UK legislature gave its sanction to the defence by codifying this in its Defamation Act of 2013. The US has also, as far back as in 1964, recognised special rights for its journalists in matters of public importance. In New York Times Co versus Sullivan, it was established that a malice standard had to be met before reports of the press against public figures could be held to be defamatory. The malice standard provided that if a defamation case is related to misdeeds of a public figure or authority then the press can only be held to be liable for any statement on his misdeeds if they knew that the statement was false or if they acted in reckless disregard to the truth. Otherwise, media houses were not to be held liable for any statements. The media was provided with further protection by the courts in 1986, when in Philadelphia Newspapers, Inc versus Hepps, it was held that in a defamatory suit filed by a private person against a newspaper, the burden of proof lay on the person to prove the falsehood of the defamatory statements. This meant that the courts had to presume the truthfulness of every article published by a newspaper of national importance. Even more, in this case, the courts went on to extend the rule laid down in the Sullivan case to private figures if they were making a speech of public concern.

It is the need of the hour for India to start providing media houses with such extended protection in matters concerning the public at large.

The Fourth Estate has the vital function of providing for the free flow of information from their source to the public. If the standards of defamation are kept the same, then it will result in a chilling effect on free speech of the press due to which the news that may trigger a radical change in the society might never see the light of the day. If the ‘Reynolds Defence’ of public interest gets accepted by our judiciary, then there will be better chances of the press being able to exercise its freedom of speech and expression without any fear of deterrence. Raghav Pandey is an Assistant Professor of Law at Maharashtra National Law University, Mumbai and Neelabh Bist is a Fourth Year student of Law at Maharashtra National Law University, Mumbai