Pre-trial injunctions against media impede free speech: Supreme Court in Zee v. Bloomberg

The Supreme Court recently emphasised that courts must be cautious in passing injunction orders to restrain the publication of media articles, particularly when it is yet to be proved whether the content of such articles is malicious or false [Bloomberg vs Zee Entertaintment Enterprises Limited]..A bench of Chief Justice of India (CJI) DY Chandrachud with Justices JB Pardiwala and Manoj Misra noted that passing any such restraining order or injunction order could stifle public debate and have huge ramifications on the freedom of speech and expression."The grant of a pre-trial injunction against the publication of an article may have severe ramifications on the right to freedom of speech of the author and the public’s right to know. An injunction, particularly ex-parte, should not be granted without establishing that the content sought to be restricted is ‘malicious’ or ‘palpably false’. Granting interim injunctions, before the trial commences, in a cavalier manner results in the stifling of public debate," the Court said. .The top court added that courts should only grant ex-parte injunctions (or injunctions granted without hearing all parties to a case) in exceptional cases."Courts should not grant ex-parte injunctions except in exceptional cases where the defence advanced by the respondent (the author or publisher of the allegedly objectionable media article) would undoubtedly fail at trial. In all other cases, injunctions against the publication of material should be granted only after a full-fledged trial is conducted or in exceptional cases, after the respondent is given a chance to make their submissions," the March 22 judgment stated..The top court also dwelt on the concept of Strategic Litigation against Public Participation (SLAPP) suits. SLAPP suits is an umbrella term used to refer to litigation predominantly initiated by influential entities against members of the media or civil society to prevent the public from knowing about or participating in important affairs of public interest."We must be cognizant of the realities of prolonged trials (in SLAPP cases). The grant of an interim injunction, before the trial commences, often acts as a ‘death sentence’ to the material sought to be published, well before the allegations have been proven. While granting ad-interim injunctions in defamation suits, the potential of using prolonged litigation to prevent free speech and public participation must also be kept in mind by courts," the Court observed. .The Court made the observations in a case concerning an article published by Bloomberg which alleged that a $241 million accounting irregularity had been found in the books of Zee Entertainment Enterprises Limited (ZEEL) by the Securities and Exchange Board of India (SEBI)..After the article's publication on February 21, Zee filed a defamation suit before a Delhi district court against Bloomberg and its journalists Anto Antony, Saikat Das and Preeti Singh.The trial court passed an ex-parte injunction order, directing Bloomberg to take down its article. On March 14, the Delhi High Court upheld this injunction order. Bloomberg was given three days' time to comply with the takedown directive by the High Court.This High Court decision was then challenged by Bloomberg before the Supreme Court..On March 22, the Supreme Court set aside orders passed by a trial court and the Delhi High Court. In doing so, the top court also expressed dissatisfaction with earlier orders passed by the High Court and the trial court."Writing five pages does not mean application of mind," CJI Chandrachud had orally remarked during the hearing..Supreme Court sets aside orders directing Bloomberg to take down story against Zee Entertainment.This concern was also reflected in the final judgment passed by the top court, which noted that, "The ad-interim injunction granted by the trial judge amounts to unreasoned censorship which cannot be countenanced."The bench added that the error committed by the trial Judge was perpetuated by the High Court in its March 14 order. The Supreme Court proceeded to set aside both orders, and reiterated that three tests must be satisfied to pass an injunction order, namely: that (i) a prima facie case exists, (ii) that the balance of convenience is in favour of the grant of injunction and (iii) that an irreparable injury would be caused if no injunction is granted. "The three-fold test cannot merely be recorded as a mantra without looking into the facts on the basis of which an injunction has been sought," the Supreme Court added, before setting aside the orders of the courts below. .Senior Counsel and former Attorney General Mukul Rohatgi appeared for Bloomberg.Bloomberg was also represented by a team from Kochhar & Co comprising Managing Partner Rohit Kochhar, Partners Shiv Sapra, and Samiron Borkataky, and Associates Rajat Gava, Ikshvaaku Marwah, Sanskriti Shrimali, and Vishal Singh.Advocates Mahesh Agarwal, Madhavi Agarwal, Shashwat Singh, and EC Agrawala appeared for ZEEL..[Read order]