Libel: is saying sorry better than coughing up?
In a recent judgment, Justice Endlaw of the Delhi High Court dismissed a defamation lawsuit against Outlook magazine and others. The lawsuit was filed in 1998 and had been languishing before the High Court till May 1, 2017 when it was finally dismissed for not revealing a cause of action against any of the defendants.
In other words, the court was of the opinion that the plaintiff was unable to demonstrate that the defendants had made even prima facie defamatory statements. The allegedly defamatory news article was on the issue of fake and counterfeit products and photographs of the plaintiff’s product featured in the article.
In a subsequent issue, Outlook had published a clarification that the plaintiff’s product was “inadvertently shown as a part of the counterfeit products” but nevertheless the plaintiff persisted with the lawsuit for 20 years until the judge finally dismissed it.
The important aspect of this case is Justice Endlaw’s ruling that apologies were preferable to damages as a remedy in defamation lawsuits because the latter could cause financial ruin to the media and limit further speech. This conclusion was quite irrelevant to this case given that he was dismissing it for a lack of cause of action but nevertheless, since the door has been opened, let’s dig deeper. Justice Endlaw states:
“In my opinion, the harm done by defamation being to the reputation of a person, a direction to issue a public apology or a direction to correct the errors, if any, particularly in defamation arising out of libel by media appears to be a more appropriate relief than a relief of monetary damages.
‘’Compensation in monetary damages can never set the record straight or restore the damaged reputation caused by a libellous news report. The person aggrieved by a libellous news report having a large circulation can never exactly know who all have had access thereto and cannot possibly go to each and every one of those persons with the judgment of award of compensation to him.
‘’Reputation of an individual is not something which can be measured or equated in money. It is only a written apology contained in the same media which may reach the same people who may have had access to the libellous material earlier published and that alone can restore the reputation.
“Not only so, award of damages, particularly in large amounts, against media houses may also have a chilling effect on the media. In some cases, payment of such amount of compensation, if unable to afford, may compel the media to shut down or may make the media over conscious and thereby fail in its duty to report news on contemporaneous subjects of public interest.”
A lot of what Justice Endlaw has said above will instinctively appeal to most people. Proving damages is usually difficult when it comes to defamation since it is difficult to weigh the worth of one’s reputation. And in cases where a court does decide damages, the magnitude of the damages can bankrupt a media company or at any rate affect the financial health of the media company.
Take, for example, the declaration of bankruptcy by Gawker Media after a jury in Florida awarded Hulk Hogan damages of $140 million in a defamation lawsuit that he had filed against Gawker. Closer home, Times Now was ordered to pay a retired judge of the Supreme Court a record Rs. 100 crores in damages for defamation – the appeal in that suit is pending. When contrasted with these scary figures, an apology is simpler and saves time and effort for all parties involved.
But the issue of apologies is not that simple. There are larger issues at play. The first is whether it is legal for the court to compel an apology from a reluctant defendant? Courts in several countries, especially civil law countries like Japan and China, routinely order defendants to issue apologies in defamation cases.
Indian courts are known to have granted some orders compelling apologies but to the best of my knowledge these orders are not granted frequently. The important question here is whether such orders offend the fundamental right to free speech under Article 19(1)(a) of the Constitution? The right to free speech is now well understood to include the right to keep silent and not say anything.
The issue was touched upon in the Bijoe Emmanuel case where three students were expelled from a school for refusing to sing the national anthem. They were Jehovah’s Witnesses and argued that it was against the tenets of their religious faith to worship anybody but Jehovah. While one issue was the right to practise their religion, the other was their right to free speech under Article 19(1)(a).
To begin with, the Court pointed out that there was no law per se that required students to sing the national anthem and that the circulars which mandated the singing were not ‘law’ because these circulars were merely drafted by the government and weren’t backed by statute.
The case could have ended there but the Supreme Court also proceeded to declare the circulars as being in violation of Article 19(1)(a). The Supreme Court said that “we have no option but to hold that the expulsion of the children from the school for not joining the singing of the National Anthem, though they respectfully stood up in silence when the Anthem was sung, was violative of Art. 19(1)(a).”
There are also some American Supreme Court judgments which speak of a right to refrain from speaking at all. One such judgment stated “The right of freedom of thought and of religion, as guaranteed by the Constitution against State action, includes both the right to speak freely and the right to refrain from speaking at all, except insofar as essential operations of government may require it for the preservation of an orderly society - as in the case of compulsion to give evidence in court.”
Questions of legality aside, it is also important to ask whether compelled apologies are an effective remedy? For an apology to mean something, should it not necessarily be voluntary? There is a school of thought that believes forced apologies often lose their moral dimension. These are issues worth considering before departing from long standing precedent.
The author is a Research Associate at School of Law, Singapore Management University