TOPIC - In the time of #MeToo, judiciary must provide media houses

adequate protection against defamation cases

#MeToo has taken India by storm. In spite of certain hindrances, this dynamic development is
at full swing and there are high expectations that this will prompt an improve in the public eye.
The participants of this movement ought to be acknowledged for their strength in talking up in
spite of the incredulity, harsh threats and different repercussions that will undoubtedly pursue.
Media houses have been to a great degree instrumental in giving a stage to this development,
where the unfortunate casualties have possessed the capacity to approach, recount their story
and be heard.

The defamation law in India is guided by common law principles in matters relating to civil
liability and Section 499 of the Indian Penal Code (IPC) in cases of criminal liability. Media
houses or their journalists have no special protection under defamation laws in India despite
stern attempts being made by the Editors Guild of India to decriminalise defamation for
journalists.

However, recently the Supreme Court had held that every instance of wrong reporting by
journalists cannot be equated to defamation. The case related to an appeal recorded in the
Supreme Court against a choice of the Patna High Court which had held a defamation case
against senior columnists Rajdeep Sardesai and Raghav Bahl to be indefensible. In that case,
the petitioner had brought action against the defendants for a 2011 report accusing her of being
involved in a land allotment scam. The then Chief Justice of India, Dipak Misra had observed,
"In a democracy you must learn to tolerate. The case has continued since 2011. The persons
have spent a lot of time and money in defending themselves. Defamation may be
constitutionally valid. But an alleged incorrect news item about a scam does not amount to
defamation."

While this may be a silver covering for media houses, India still neglects to give solid assurance
to them through a clear law. On this point, the law in the United Kingdom is better developed.
The House of Lords on account of Reynolds versus Times Newspapers Ltd, 2001 had advanced
the idea of open intrigue resistance. This enabled columnists to distribute any matter of open
significance decisively as they couldn't be held at risk regardless of whether the claim ended
up being false.

Further, 10 codes were enlisted to satisfy the criteria for responsible journalism in the
judgment, some of which were seriousness of the allegation, nature of the allegation, steps
taken to verify the source, and urgency of the matter. This defence of public importance is now
known as the 'Reynolds Defence’ in the legal sphere. Recently, in 2013, the UK legislature
gave its sanction to the defence by codifying this in its Defamation Act of 2013.

The US has also, as far back as in 1964, recognised special rights for its journalists in matters
of public importance. In New York Times Co versus Sullivan, it was set up that a malice
standard must be met before reports of the press against open figures could be held to be
abusive. The perniciousness standard given that if a slander case is identified with wrongdoings
of an open figure or specialist then the press must be held to be at risk for any announcement
on his offenses on the off chance that they realized that the announcement was false or in the
event that they acted in heedless negligence to reality. Something else, media houses were not
to be held subject for any announcements.

The media was furnished with further insurance by the courts in 1986, when in Philadelphia
Newspapers, Inc versus Hepps, it was held that in a slanderous suit filed by a private person
against a daily paper, the burden of proof lay on the individual to demonstrate the deception of
the defamatory statements. This implied the courts needed to assume the truthfulness of each
article distributed by a daily paper of national significance. Significantly more, for this
situation, the courts proceeded to expand the standard set down in the Sullivan case to private
figures if they were making a speech of public concern.

The Fourth Estate has the vital function of providing for the free flow of information from their
source to the public. If the standards of defamation are kept the same, then it will result in a
chilling effect on free speech of the press due to which the news that may trigger a radical
change in the society might never see the light of the day. If the 'Reynolds Defence' of public
interest gets accepted by our judiciary, then there will be better chances of the press being able
to exercise its freedom of speech and expression without any fear of deterrence.