We must decriminalise defamation
At a time when the credibility of the media, especially television news is quite low, it takes gall (and something that rhymes) to suggest defanging defamation law. Not long ago, the Supreme Court took up the issue of media oversight. The information and broadcasting minister has spoken of minimum qualifications and licenses for journalists. The chairman of the Press Council doubts the intellectual caliber of journalists and their knowledge quotient. An industrialist and law maker has dragged a big broadcaster to courts accusing it of using blackmail to shore up revenue – a model that has been the staple of municipal rags.
Television has been intrusive. In Assam, TV channels went to town when a lady MLA was beaten up by a mob for alleged bigamy with headlines such as ‘Ek Phool Do Mali.’ In Hyderabad, networks acting as moral police, tried to pass off law students emerging from a night party in trendy clothes, as women of easy virtue. And in Delhi, the CEO of a news channel got a school teacher nearly lynched with a fabricated prostitution story in a bid to jump up the rating charts upon debut.
Many in India have suffered the excesses of the media without redress. If a poll was to be held, majority opinion might favor stricter laws to rein it in.
But society must see decriminalising defamation law as a service to itself, not a concession to journalists. Criminal proceedings are a fetter on free speech that are often used to deter inconvenient opinion, at taxpayers’ cost because the state prosecution apparatus kicks in. The report, ‘Bully Tactics’ on this website documents how Times Publishing House and Arindam Chaudhuri of Indian Institute of Planning and Management have used libel law to obtain silence. Chaudhuri has also invoked the country’s geography to his advantage. He has secured injunctions from courts as far away as Silchar in Assam. This is painful for those who have annoyed him because they have to be personally present in court for the hearings. “Call me ugly and I will damage your business, I will sue you,” Chaudhuri said during a debate on CNN-IBN, after he got a Gwalior court to order the blocking of 78 websites, including that of the University Grants Commission. (The injunction was vacated by the Madhya Pradesh High Court).
It is for this reason that United Kingdom made a root and branch amendment of its defamation law in April this year. Criminal penalties have not been imposed since the late 1970s says Peter Noorlander of Media Legal Defence Initiative (MLDI), which helps journalists and media outlets defend their rights. (For decades UK has not invoked its sedition law either). But the statute was being cited by Commonwealth countries to retain their archaic legislations.
Before the law was changed, UK was the hub of libel tourism. From Russian oligarchs to Nigerian kleptocrats, British courts were used to intimidate. A Ukrainian energy tycoon (Rinat Akmetov), for example, successfully sued Ukrainian internet journals (Kyiv Post and Obozrevatel) for articles published in that country in Ukranian.
In 2010, Kathmandu’s Nepali Times newspaper was threatened with defamation and copyright violation in Britain for an online story on resettlement of British’s Army’s ex-Gurkha soldiers. MLDI had to requisition the pro-bono services of a lawyer to defend the newspaper.
“Our case proves libel tourism is alive and kicking and, as more and more content goes online, how anyone anywhere in the world is vulnerable to self-censorship due to libel threats in UK courts,” the news agency Inter Press Service quoted Nepali Times editor Kunda Dixit as saying.
The Financial Times reported that Rachel Ehrenfeld, an author based in New York lost a 2005 case to Saudi businessman Khalid bin Mahfouz, whose family she accused of funding terrorism in her book. The British courts ruled in favour of bin Mahfouz because 23 copies of the book were sold in England, and some parts of it were available online, the daily said.
Citing such cases, New York passed the ‘libel terrorism protection act’ in April 2008 to prevent the assets of its residents from being seized under judgments given in countries that do not measure up to the US in free-speech safeguards.
Three years ago, UK’s Libel Reform Campaign (LRC) started mobilising public opinion to amend the libel law. This was the outcome of a year of inquiry by PEN (short for poets, playwrights, editors, essayists and novelists) and Index of Censorship. They found that English libel law curtailed freedom of expression. Defendants were assumed to be guilty, the law was used to make money than save reputations, the cost of defence was prohibitive (on an average it costs £ 800,000 per case, says Noorlander), fair comment and public interest were not recognised as defence and there were few alternatives to a full trial. LRC said the law belonged to the pre-Internet age.
To win over public opinion the campaign included not only the journalistic fraternity (dented by scandals like the hacking controversy) but also artists, academics, scientists and patients who were prevented from discussing and debating (by, say, pharmaceutical companies) under threat of libel.
Heeding the reformers, the British Parliament passed the amendment in April after a year of debate. The UK law now balances the right to expression with the protection of reputation. It requires serious harm to be shown before a case is filed. It removes the current preference for jury trials. A defence of ‘responsible publication’ and ‘matter of public interest’ can be entered. Operators of websites cannot be held liable for user-generated content, provided they have followed prescribed procedures. It introduces truth and fair comment as defences. Like in Australia, a company employing more than 10 persons has to prove that libel has caused deep financial harm.
Peter Noorlander calls criminal defamation ‘a fifteenth century solution to a fifteenth century problem.’ It made sense when the code of honour required damaged reputations to be redeemed by duel. A law, though harsh, that spared blood and gore was preferable.
Information and Broadcasting minister Manish Tiwari supported decriminalising defamation at a debate on the issue organised by the Observer Research Foundation in August. But he wants stiff damages to be provided. "I am absolutely one with the media that section 499 and 500 should be removed from the Indian Penal Code. I would be the first person to recommend that there should not be criminal penal provisions, with regard to defamation. But concurrently, the tort of civil defamation has to emerge. Compensatory damages which are appropriate and adequate should be there to correct a wrong or harm caused," the Times of India (ToI), quoted him as saying.
The Times of India supported the proposal in an editorial. Though Times Publishing House has used the threat of civil and criminal defamation to stifle criticism of its dispute with Financial Times of London, Times Now channel has been successfully sued for Rs 100 cr in damages by a former justice of the Supreme Court. The channel has appealed, but it has to deposit Rs 20 cr in cash and give bank guarantees for the rest.
Filing criminal defamation charges costs nothing, and are often used as intimidatory tactics against the media, the ToI said. In civil defamation, this is much less likely because the complainant has to deposit a percentage of what is claimed as damages for the case to be taken up by the courts. Hence, there is a cost to filing a case, which automatically gets rid of most frivolous cases, the ToI observed.
While calling for the law to balance free speech with the right to reputation, media will also have to devise ways of holding itself accountable. Very often it gets away with inaccuracies and worse because few can match the legal heft of media corporations. It is doubtful whether the news channel which defamed the Delhi school teacher would have settled her suit out of court, if not for Section 500 of the Indian Penal Code which prescribes a jail term. After settling the suit, the CEO of the channel got embroiled in an extortion case with the editor of another news channel!
India needs an effective body to redress grievances against the media. UK has the Press Complaints Council. The Press Council of India lacks legal teeth. So does the National Broadcasting Association, a self-regulating industry body, though under the guidance of the late Justice J S Verma it was able to get its members to behave.
The IPC was a British-era law, but the Information Technology Act which came into force in 2000 provides for a stiffer three years in jail for online defamation. Perhaps this is meant to deter smears under the cover of Internet anonymity. Chinmayi Arun of Delhi’s School for Communication Governance compares faceless speech to graffiti.
A thick skin is essential gear in a free society. That is too much to expect in a country where a sharpened sense of identity means offence quickly taken.
In the UK, meanwhile, privacy has become the next battleground.
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