Dealing with libel chill

The concept of libel chill is little discussed in India but perhaps it should be as we see more and more evidence of it. Recent examples of lawsuits initiated to thwart or penalise publication fall in two categories. One is legal action aimed at publication in media or broadcasts on TV channels, and the other is increasing instances of books not being published or withdrawn after publication. In the first instance, the action is against a media house or group, in the second, against an individual author.

There is the threat of legal action on grounds of defamation, and there is the seeking of punitive damages whose figures are reaching astonishing proportions. When PB Sawant sued Times Now for damages in 2011 it was not a classic case of libel chill, no publication was sought to be suppressed. Yet it evoked dismay in the media community for seeming to be far out of proportion to the damage caused by the fleeting use of the photograph of a wrong person. Few  noted the irony when the parent group of Times Now later the same year sent legal notices seeking the same sum of  Rs 100 crore in damages from an online publication called The Weekend Leader (in 2011) for an article it carried related to the Chennai Times of India’s coverage of the Mullaiperiyar dam controversy. And from the Hoot for asking how a TV crew from Times Now happened to be present when lawyer Prashant Bhushan was being beaten up in his chamber by goons (also in 2011). 

2012 saw Politician Louise Khurshid claim Rs 100 crore in damages against the TV Today group for telecasting allegations of financial irregularities in a trust run by her and her husband, minister Salman Khurshid.

And 2013 brings us to the other category of libel chill where books are not published or withdrawn after publication because the subjects of their research object to revelations made.  The problem goes beyond free speech to inhibiting research and investigation of corporate misdemeanor and misuse of power by those in office. In the first case, Jitendra Bhargava who retired as executive director of Air India after serving it for two decades wrote a book called Descent of Air India which made some revelations about the way then civil aviation minister Praful Patel  had caused losses to the airline. Patel alleged that the book was defamatory, after it was released in October, and tried to stop its sales. He filed a case in the court of the metropolitan magistrate, Mumbai. The publisher, Bloomsbury Publishing India Pvt Ltd has now apologised to Patel and withdrawn the book, saying it will destroy stocks available with it.

The author told Moneylife, "As everything stated in the book is true, based on documents, I will have the book, 'The Descent of Air India' reprinted either on my own or through a new publisher.”

In the second instance towards the end of last year, Sahara India and Subroto Roy Sahara filed a case against Tamal Bandopadhyay, journalist and author and his publisher Jaico India under clause 12 of the Letters Patent and claims. They asked for damages of Rs 200 crore and a perpetual injunction restraining them from publishing or circulating or releasing the book, 'Sahara : The Untold $tory' in any form.

Bandopadhyay’s book was researched keeping Sahara India and Roy in the picture, his interview with Subrato Roy for the book has already been published in Mint where he is deputy managing editor. Pre-publication, however, the publisher sent a copy of the book to Sahara and Roy who responded with alacrity, seeking to stop the book by filing a case in the Calcutta high court, whereas the author is in Mumbai and the complainant is headquartered in Lucknow.

The complaint filed in the High Court says, “such publication if allowed to be made would permanently damage the goodwill and reputation not only of the plaintiffs but the entire Sahara Group.” The court admitted the lawsuit and granted an ex parte stay on publication in December, there will be further hearings this month.

The plea filed in the Calcutta high court lists in detail several observations in the book which the plaintiffs consider injurious to the reputation of the company and its chairman or Managing Worker as Mr Subrata Roy has styled himself.

The Rs 200 crore suit is the highest damages sought so far from a journalist in India. When the judiciary admits demands for very high damages against an individual author or journalist can it end up thwarting professional journalistic pursuit? Other societies are looking at a cap on how much the media can be sued for so that it does not become a disincentive to investigative journalism or research. English libel law reform campaigners for instance have sought a cap of 10,000 pounds on damages that can be sought for loss of reputation. The judiciary here should consider the same. A judge also has the option of ordering the parties concerned to sit down and negotiate on objections to specific parts of a manuscript rather than allowing a blanket ban on publication.

It can hardly be disputed that Sahara’s business practices are controversial.  The corporation was pulled up by the Supreme Court only a few days ago for stonewalling in response to  information sought by the Securities and Exchange Board of India  about their claim to have returned 90 percent of Rs.24,000 crore collected from investors.

How does a society keep the wealthy and the powerful accountable if the courts allow them to thwart painstaking research on corporate and political misgovernance? If libel chill is allowed to take hold here what price the political reform movement against corruption?