Pre-trial injunction on article publication may hit freedom of speech: Supreme Court [27.3.2024]

The Supreme Court has recently said that the grant of a pre-trial injunction by courts 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.

A bench of Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra noted that 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.

It 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.

"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 bench said in its recent order.

It has set aside a trial court's order directing international media group Bloomberg to take down an allegedly defamatory news article against Zee Entertainment.

The order of the apex court came on a plea filed by Bloomberg against the March 14 order of the Delhi High Court, which dismissed its appeal against the trial court order.

"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. In other words, 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 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 apex court stated in its order.

The bench stressed that in suits concerning defamation by media platforms and/or journalists, an additional consideration is "balancing the fundamental right to free speech with theright to reputation and privacy" must be borne in mind.

"The constitutional mandate of protecting journalistic expression cannot be understated, and courts must tread cautiously while granting pre-trial interim injunctions," it added.

Bloomberg had approached the apex court, and the single-judge bench of the High Court had said there was no ground to interfere with the ex-parte interim order passed by the Additional District Judge (ADJ) on the lawsuit by Zee Entertainment Enterprises Limited (ZEEL) over the article published on February 21 and ordered Bloomberg to comply with the direction in three days.

On March 1, the ADJ directed Bloomberg to take down the allegedly defamatory article within a week while saying Zee had established a "prima facie case for passing ad-interim ex-parte orders of injunction."

The court had said the balance of convenience was in Zee's favour and irreparable loss and injury might be caused to the company if the injunction was not granted.

The court made the observations in a case concerning an article published by Bloomberg that alleged that a $241 million accounting irregularity had been found in the books of ZEEL by the Securities and Exchange Board of India (SEBI).

After the article was published 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.

27 Mar 2024