Authored By Kushagra Aman (Principal Associate, S&A Law Offices)
Introduction:
Seeking interim injunction in civil proceedings is one of the most common remedies sought by parties in India. The test for grant of interim injunction by the courts in India is well established where the party seeking interim injunction must satisfy the court on three counts; (i) whether there is a prima facie case in favour of the plaintiff, (ii) the balance of convenience lies in whose favour i.e., who will be at more inconvenience if the interim injunction is not granted, and (iii) whether irreparable injury shall be caused to the plaintiff if the interim injunction is not granted 1. While every party in a civil proceeding seeking interim relief has to satisfy the court on the above three-part test, in defamation suits, the threshold for granting interim relief has been set slightly higher because of the rights involved in these matters, the nature of the dispute and the cause of action and also due to the rapid development in technology, especially due to widespread access to social media platforms.
In defamation suits, for the grant of interim injunction, reliance has been placed by the courts on the Bonnard Principle2 according to which interim injunction shall not be granted in defamation suits where a plea of truth has been taken by the defendant and unless the court is of the opinion that the defendant is certain to fail at trial. Further, the alleged defamatory content should be ex facie defamatory. Also, while granting interim injunction in defamation suits, the courts have also endeavored to balance the two conflicting fundamental rights i.e., the right to freedom of speech and expression and the right to privacy/ damage to reputation.
The test for grant of Interim Injunction in Defamation cases:
For the grant of interim injunction in defamation suits, the court must examine the three elements/ tests as mentioned above. Also, it is the plaintiff who is saddled with the burden to prove the three-part test mentioned above. Before proceeding further, it is important to understand the ingredients constituting a case for defamation:
- publication of information;
- the person being defamed was identified by the statement ;
- the remarks had a negative impact on the person's reputation;
- the information / statement published is demonstrably false;
- the information/ statement must have been published with malicious intent.
Various judicial precedents have settled the defences available to the defendant in defamation cases3 which are as follows:
- defence of justification of truth;
- defence of fair comment issued in the interest of public at large; and
- defence of priviliege
While granting/ refusing to grant interim injunction in defamation suits, the courts are generally guided by the aforementioned ingredients, defences and tests. However, in recent times, the approach of the courts in granting interim injunction has slightly changed due to an increase in cases of online defamation with the brisk pace at which the access to internet has grown.
Evolving Judicial views in grant of interim relief in defamation cases:
A noteworthy and landmark judgment while examining the changing approach of judiciary and the evolving judicial trends in granting interim injunction in defamation suits is Tata Sons Limited v. Greenpeace International4. In the above case, the plaintiff brought a suit for defamation and also sought interim injunction against the actions of the defendant wherein the defendant, in order to highlight the damage to Olive Ridley turtles, created an online game titled "Turtle v. Tata".
While refusing to grant interim injunction in the above case, the High Court of Delhi not only relied on the three-part test but also placed reliance on the Bonnard Principle, emphasizing on the use of a higher standard.
The plaintiff, in the above case argued that the game being available online, a higher viewership should be considered as an additional factor while examining the criteria of balance of convenience and irreparable injury. The plaintiff based its above argument on a Canadian court ruling in Barrick Gold Corp. versus Lopehandia5 which held that publication on internet should be considered as an additional factor while determining damages.
However, the above argument and the ratio laid down by the Canadian court was refused by the High Court of Delhi which stated that there should not be a separate standard for granting interim injunction in online defamation cases. It was further observed by Delhi High Court that despite the characteristic of wide viewership and degree of permanence in cases of internet publication, such publication still remained a medium of expression and thus required no additional or different standard for grant of interim injunction. It further held that any different view would "result in disturbing the balance between free speech and the interest of any individual or corporate body in restraining another from discussing matters of concern, so finely woven in the texture of the Bonnard ruling."
It is also pertinent to consider the judgment of High Court of Bombay inLodha Developers Ltd. v. Krishnaraj Rao and Ors.6 (involving alleged defamatory statements against a developer company), where the Court, in relation to online publication, made an interesting observation:
"31...............The only difference is that online media allows for plurality of voices. Online, everyone is a journalist, or a potential journalist. Of course, every online user is bound to the same law and the same standards. He or she runs the same risks. But that does not mean that voices must be silenced because they are online. To the contrary : it demands that we must all learn to be significantly more tolerant of opposing opinions. If there is a greater plurality of voices online this is something to be devoutly wished for, not to be suppressed. If in particular there is online comment and it can be said to be fair comment about any product or offering, then there is no reason why it should be forced to be shut down, or why the person who said it should be silenced.............."
From the above cases, it is clear that in cases involving corporations as plaintiffs in defamation suits, the Courts have applied a threshold higher than the three-part test when it comes to granting interim injunctions in defamation cases.
Different threshold in cases involving private individuals
In the matter of Dr. Vikram Sampath v. Dr. Audrey Truschke and Ors.7 the plaintiff alleged that the defendant is defaming him by making tweets imputing plagiarism on part of the plaintiff, who is a popular historian. The Hon'ble Delhi High, considering the widespread reach of social media, directed the social platform X (then Twitter) to take down the tweets. In the above case, the prima facie finding of the statement being defamatory was enough. Even though the plaintiff had quantified the damages at two crores in the suit, the enquiry into 'irreparable loss' was not done by the Court.
Similarly, in the case of Smriti Zubin Irani v. Pawan Khera8, the Hon'ble High Court of Delhi on the finding of prima facie defamation and observing that the three-part test has been satisfied, granted ad-interim injunction to the plaintiff and directed the defendants to remove the defamatory content from all social media platforms such as Twitter, Yotube, Facebook, Instagram etc. The High Court further directed the social media platforms to remove the defamatory content or any content linked to the defamatory content from their respective platforms. In the above case, the three-part test is merely stated and found to be proved, without demonstrating any part thereof. Further, the High Court did not make any mention of Bonnard Principle in the above case.
It is clear from the above judgments/ cases that the threshold applied by the courts in cases involving private individuals is significantly different: (1) statements are found prima facie defamatory, allegations of sexual harassment/assault are not a matter of public interest, or academics alleging plagiarism is not fair comment; (2) the balance of convenience does not tilt towards the speaker when private individuals are defamed; (3) irreparable loss/injury is not demonstrated but presumed. Thus, the three-part test stands diluted in cases of involving private individuals. Further, not only has the standard for granting interim injunction in defamation cases has been lowered for individuals, the relief of prior-restrain and removal/ takedown of defamatory content has been added to the list of traditional interim reliefs.
Orders directing global removal of content
In the case of Swami Ramdev & Anr. v. Facebook Inc. & Ors.9, the High Court of Delhi was faced with a situation where an injunction was sought by the plaintiffs against social media platforms Google, Youtube, Twitter and Facebook, seeking directions from the Court for removal of links to a video circulated globally, which was alleged to be defamatory. The Hon'ble Court while dealing with the interim injunction application filed by the plaintiffs, pondered over the question of whether the URLs to the video deserve to be blocked globally by way of an injunction. The Delhi High Court, while observing that the position related grant of interim orders of taking down the defamatory content globally is not fully settled, directed the defendants i.e., social media platforms to take down, remove block, restrict/ disable access to all such videos/ URLs, globally. However, post the Swami Ramdev case (supra.), there have been several instances/ orders10 which show that orders directing removal of online content (alleged to be defamatory) may be passed only with respect to Indian domain.
Conclusion:
It is clear from the afore-cited judicial precedents that the standard of grant of interim injunction in defamation cases is well established. However, with the changing circumstances, especially the rapid and widespread reach of social media, the Courts have endeavored to read into the established standards for grant of interim injunction because of the wider reach of social media and the consequent impact on public at large. Also, the threshold for granting interim injunctions in cases involving corporations as plaintiff are slightly higher as compared to cases where private individuals are seeking interim injunction in defamatory cases which goes on the show the consideration given to courts towards balancing of two contrasting fundamental right i.e., right to free speech and right to privacy/ right against reputational damage.
However, issues arise while considering grant of global injunction in defamation suits, which could potentially give rise to a repressive trend of curbing different views. Therefore, the courts need to be more careful in granting interim injunction in online defamation cases and opt for a delicate and balanced approach to ensure that right against reputational damage, right to privacy and right to freedom of speech and expression can go hand in hand and not at the cost of each other.
Footnotes
1. Gujarat Bottling Co. Ltd. v. Coca Cola Co. 1995 5 SCC 545
2. Bonnard v Perryman, [1891] 2 Ch 269
3. Ram Jethmalani vs. Subramaniam Swamy, 126 (2006) DLT 535, Joseph M. Puthussery v. T.S. John, (2011) 1 SCC 503
4. 2011 SCC OnLine Del 466
5. 2004 CanLII 12938 (ON CA)
6. 2019 SCC OnLine Bom 13120
7. CS(OS) 95 of 2022
8. 2022 SCC OnLine Del 2310
9. 2019 SCC OnLine Del 10701
10. Order dt. 15.11.2019 in Google LLC v. Swami Ramdev & Ors., FAO(OS) 222/2019; Order dt. 1.06.2020 in Patanjali Ayurved v. Sobhagya Media., CS(OS) 135/2020; Order dt. 15.07.2020 in Dr. Gaurav Dahiya v. Mrs. Leenu Singh, CS(OS) 174/2020
Disclaimer: This article was first published in the S&A Law Offices - 'Indian Legal Impetus' newsletter in December 2024.