Balance The Line Between Freedom Of Speech And Right To Privacy: Bombay HC

BACKGROUND OF THE CASE

• The Court was hearing a 25-crore defamation suit filed by Shilpa Shetty in connection with her husband Raj Kundra's arrest in relation to pornography racket.
• In this case, 29 defendants were there, which included several websites, NDTV, Free Press Journal, Clapping Hands Private Limited, PeepingMoon.com, Facebook, Instagram, Google etc.

ARGUMENTS BY SARAF

• While appearing for Shetty, Senior Advocate Birendra Saraf, alleged that the videos and materials on the internet published by Capital TV, Shudh Manoranjan, Heena Kumawat and Peeping Moon are per se defamatory.
• The Court agreed with the counsel and directed Capital TV to take down their video, while Heena Kumawat from Film Window and Shivkant Gautam of Shudh Manoranjan were directed not to re-upload their videos.
• In his submissions, Saraf requested to take down the posts and videos.
• He alleged that ever since Kundra's arrest, several social platforms, electronic media and news websites have resorted to sensationalism and are primarily focusing on smearing her reputation toincrease their readership.

SHILPA SHETTY’S PLEA

• Shetty, in her plea, stated that once a person’s reputation has been besmirched by an unfounded allegation in print media and the same is circulated on the electronic media; there is no opportunity to vindicate one's reputation. His reputation is damaged and gone forever.
• Through Parinam Law Associates, Shetty had sought ad-interim reliefs of restraining defendants from publications who were involved in publishing defamatory content in any manner and directing the concerned media organisations to delete the defamatory articles with an unconditional apology, admitting that the articles were unsubstantiated.
• She went further and accused the media houses of invading her privacy and interfering in her personal life by publishing incorrect and derogatory statements concerning her life and relationship with her husband.
• As her final relief, she asked the concerned organisations to jointly pay Rs. 25 Crores by way of damages together with interest of 18% per annum from the date of filing of the suit till payment is done.

COMMENTS BY JUSTICE PATEL

While granting interim relief, Justice Gautam S. Patel observed that,

• In cases of defamation, the consideration and the wide protection recognised for the Freedom of Speech and Freedom of Press must be balanced against the right of privacy.
• The exceptions to free speech can be narrowly tailored. But just because a person is a public figure, it is not possible to sacrifice his right to privacy.
• Some of the issues related to this suit will call for a closer scrutiny, because at this stage, it cannot be said that all the statements by all the defendants are of the same defamatory stature.
• But even at the prima facie stage, the material posted by Defendants 17 and 19 appear defamatory. Although no order is made, but it is also a refusal for interim or ad interim order.
• But under any circumstance, none of this should involve or be allowed to involve Miss Shetty as a parent, because this right is protected under law on privacy.
• Further, he also said that anything said by the Crime Branch or any police source cannot be considered as defamation.
• Justice Patel also said, what Mr Saraf was asking can have a very chilling effect of the freedom of the press and one defendant’s view cannot be considered to apply it for everyone.

OBSERVATION THE COURT

• On Friday, the Bombay High Court ordered to remove certain videos from media platforms and news channels thatprima facieprove to be defamatoryagainst actor Shilpa Shetty Kundra.
• The Court granted interim reliefs against 3 respondents. This included Capital TV which is a channel from Uttar Pradesh; Heena Kumawat who claimed to be Shetty’s friend and Shudh Manoranjan, a YouTube channel.
• But the Court observed that no part of the order should construct a gag on media.
• The Court said that the material in Defendant 17 (Capital TV) is transgressing the stated permissible limit as it seems as if Ms Shetty is found guilty but no one knows for what and by whom.
• Regarding the video uploaded on Shudh Manoranjan channel, it held that, the transcript of this video makes a statement on moral standing of Shetty. Her parenting was put to question, which is clearly defamatory.
• The Court specifically ordered that no publications should get involved with publishing anything that would be derogatory of Shetty as a parent to minor children.
• In relation to Kumawat, the Court recorded an undertaking of her lawyer that the impugned video shall not be uploaded again.

SIMILAR JUDGEMENTS

• In Subramanian Swamy Vs. Union of India, 2016 the Court held that media cannot be exempted or always protected from the defamation charges and the defamation law cannot be used to suppress, silence or gag the press and the media.
• Defamation has the potential to be an unreasonable restriction on the rights of freedom of speech and expression. This is guaranteed by the Constitution of India and the Court owes the duty of care to ensure that defamation law is not exploited.
• Right to freedom of speech cannot be used in a way that a citizen can defame others. Protection of reputation also comes under the human and fundamental right. It is the responsibility of the Court to check the balance the right of reputation with the freedom of speech and expression.
• In a lawsuit filed by leading bollywood filmmakers in November 2020, the Delhi High Court held that irresponsible reporting by certain media houses proves defamatory to others.
• The media houses should not post or display any defamatory contents against anyone. Media can't run a parallel trial side by side. The channels today are pre-judging the things. Bollywood celebrities are also entitled to privacy.

DO YOU THINK COURT GAVE JUSTICE TO SHILPA SHETTY?