[TV Today v Newslaundry] Right to comment, publish on social media part of free speech under Article 19(1)(a): Delhi High Court

The Delhi High Court has held that the right to free speech and expression includes the right to publish and circulate one’s ideas, opinions and views with complete freedom not only through electronic media and TV channels only but also through social media platforms [TV Today Network Limited v News Laundry Media Private Limited & Ors]..Relying on the Supreme Court decision on Sakal Papers case, Justice Asha Menon observed that right to comment on content created on social media or TV channels is a facet of the right to free speech and expression under Article 19(1)(a) of the Constitution.“…the right to free speech and expression carries with it the right to publish and circulate one’s ideas, opinions and views with complete freedom and by resorting to the available means of publication, which, in the opinion of this Court, would also mean and include not only the electronic media and T.V. channels, but also the social-media platforms as the object of publication and broadcast is the same i.e., to reach out to the public.”.Freedom of speech has been found to include the right to acquire and disseminate information and ideas and therefore, quite clearly, right to broadcast programmes would also be included in that, the judge held..Justice Menon made the observations as she refused to grant interim relief to TV Today Network -- owner of news channels India Today and Aaj Tak -- in their defamation and copyright infringement suit against online portal Newslaundry..TV Today's arguments .TV Today had approached the court alleging that Newslaundry tarnished its reputation and infringed its copyrighted content.It was stated that the defendants ridiculed and defamed the plaintiff’s company, its news channels, employees and management and published various videos and articles containing false, malicious, defamatory and derogatory information on their website as well as on various social media platforms.TV Today’s counsel further said that 90 percent of Newslaundry’s programmes – TV Newsance, Criticles and NL Tippani – comprised of TV Today's content..Newslaundry's submissions.Newslaundry argued that that suit is not maintainable as it is not a commercial suit because the dispute is not commercial.It stated that TV Today group has not been able to establish that the videos are indeed defamatory.Newslaundry said that TV Today had edited their videos and only showed the portions which suited their case. They added that the use of plaintiff’s content falls under ‘Fair Use’ as they give due credit and in no manner do they try to portray that it is their content.Senior counsel appearing for the online platform argued that their satire was the flavour of their programming and there can be no defamation against satire.The further argued that the print-media has a watchdog but since electronic media has none, persons like the defendants (Newslaundry and its founding members and journalists) were actually acting in public interest by keeping check on the news channels..Court’s findings.The Court held that Newslaundry’s comments do not seem strictly in public interest “except as part of the larger picture of the right to express an opinion adding to the availability of myriad such opinion to the public at large” and whether these comments constitute honest and fair comment will require trial.It said that the plaintiff has disclosed a prima facie case but disclosure of a prima facie case alone does not entitle them to interim injunction.The balance of convenience in this case falls with the defendants and there is no irreparable loss is being caused to the plaintiff that cannot be recompensed, the court said.It, therefore, denied interim relief to the plaintiffs..Observations against Newslaundry .In her 55-page judgment, Justice Asha Menon has also dealt with a number of other issues. Some of them are explained in brief here:.Newslaundry’s ‘right to comment’In the present case, Newslaundry had asserted that is has unrestricted ‘right to comment’. This right to comment on the content created by others was claimed as an exercise in public interest, they had argued.Its counsel stated that since the media had unbridled power on account of the impact of its broadcast and reach, and since unlike the print media, there was no regulation of the TV channels and also the social-media, an unrestricted right to comment on each other’s content would steer the media into communicating and disseminatingHowever, Justice Menon has held that the Court cannot accept this self-appointment by Newslaundry as the ‘Regulator’ of the contents of the media because mechanisms exist for redressal of grievances related to content of news channels and for social media content.“It is obvious that there can be no “free for all” in the regulatory sphere. Every individual or organization cannot claim authority to regulate – the chaos can be imagined – there will be only regulators and none willing to bide by regulations!!”The judge added that ex facie, there is no public interest in the particular programming of content and broadcast of content by Newslaundry.“Every media house and channel on T.V. or the social-media platforms, including that of the defendants No.1 to 9, have their own philosophy, which gets reflected in the manner of reportage and content of the programmes and that is not necessarily a bad thing,” the single-judge opined.Justice Menon further said that it cannot accept an assertion of supervisory right by one media (in this case Newslaundry) over another.“Also hyperbolic is their claim that it is their criticism of the programmes of the main stream media, including of the plaintiff, that push them into rectifying mistakes and that therefore, their programmes were invaluable in public interest, and as a corollary, therefore, their right to comment and criticize cannot be restricted.”.On Satire .The Court held that satire must be self-evident and by its very character can never be a case of copyright infringement or defamation of even disparagement.“Satire cannot be explained or else it would lose its flavour. Satire allows the satirist to criticize in the harshest of terms and critique actions of all, particularly of those in positions of power and/or authority and leadership. The intention of the satirist is to simultaneously highlight an action and its negative fallout, so that rectificatory action could be taken,” the judgment said. Such creative genre must, without doubt, be encouraged and protected, the court said.It added that it is for Newslaundry to explain which one of their programmes is “satire”, what portion is “comment” and what justified “criticism” at the stage of trial..Advocates Hrishikesh Baruah, Pranav Jain, Radhika Gupta, Sowmya Shikhar and Kumar Kshitij appeared for the plaintiff.Newslaundry, its founders and journalists were represented through Senior Advocate Saurabh Kirpal along with advocates Nipun Katyal, Tahima Gaur and Nikhil Arora.Advocates Mamta Jha, Rohan Ahuja, Shruttima Ehersa, Riya Gupta and Vatsalya Vishal appeared for Google.Advocates Deepak Gogia and Aadhar Nautiyal appeared for Twitter..[Read Judgment]