With the intention of protecting media houses from powerful entities, the Supreme Court has asked courts to “tread cautiously” while passing restraining orders against them, saying it should be done only in “exceptional cases”.
SC said a court should refrain from passing an ex-parte restraint order against media houses without examining prima facie merits of the allegations.
The court passed the order on a plea filed by Bloomberg Television Production Services, which approached it against Zee Entertainment Enterprises challenging orders of a trial court and Delhi HC. The HC had directed it to take down an article against Zee and also restrained it from posting, circulating or publishing the article. Allowing the plea, SC quashed the HC order.
“Grant of a pre-trial injunction against publication of an article may have severe ramifications on right to freedom of speech of the author and public’s right to know,” the apex court said.
“The constitutional mandate of protecting journalistic expression cannot be understated and courts must tread cautiously while granting pre-trial interim injunctions,” it said.
An injunction, particularly ex-parte, should not be granted without establishing that the content sought to be restricted is ‘malicious’ or ‘palpably false’. This is to ensure that public debate is not stifled.
Courts should not grant ex-parte injunctions except in exceptional cases where the defence advanced by the respondent would undoubtedly fail at trial. In all other cases, injunctions against 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 submissions, the top court said in its order.
The bench, comprising CJI Chandrachud and Justices J B Pardiwala and Manoj Misra, referred to the concept of ‘SLAPP Suits’, which had been recognised either by statute or by courts across various jurisdictions.
The term ‘SLAPP’ stands for ‘Strategic Litigation Against Public Participation’ and refers to litigation initiated by entities that wield immense economic power against members of the media or civil society, to prevent the public from knowing about or participating in important affairs in public interest, the court stated.
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 SC observed.
The court said that in suits concerning defamation by media platforms and/or journalists, an additional consideration of balancing fundamental right to free speech with the right to reputation and privacy must be borne in mind.
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