How to repair a reputation
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The filing of a criminal complaint in this case also reminds us of the frequency with which criminal proceedings are instituted in defamation cases. It is indicative of the failure of the civil remedy to provide redress. Civil suits drag on endlessly and the prospect of receiving damages quantified today, 20 years hence, is hardly encouraging.
There was, however, one notable exception last year. In the Times Now case, a former judge succeeded in obtaining a decree for damages of a staggering Rs100 crore against a news channel for mistakenly flashing his photograph while reporting a scam. The scale of damages was unprecedented. Also remarkable was the speed with which the trial was concluded. Others are not quite so fortunate and are left with little choice but to opt for what is perceived as the quicker fix, a criminal complaint.
The criminal law of defamation, codified in the Indian Penal Code of 1860, is a colonial legacy. But contemporary trends in English law are quite different. In the United Kingdom, it is only when a libel is of such enormous gravity that it cannot be monetarily compensated and deserves to be punished as a crime, would prosecution ensue. Criminal libel in the UK is now regarded as an archaic offence that conflicts with human rights laws. Under English common law, the essence of the crime of private libel is its tendency to cause a breach of peace. It is essentially a public order offence and its threshold is therefore difficult to meet. Attempts to invoke criminal defamation have misfired. In 1990, soon after the furore that followed the publication of The Satanic Verses, the British Board of Film Classification sought to ban a Pakistani video, International Guerrillas, which vilified author Salman Rushdie as a sadistic terrorist devoted to the destruction of Islam. The fictionalised Rushdie is shown maiming and murdering mujahideen and subjecting Muslims to readings of The Satanic Verses. The film ends dramatically with Rushdie's defeat. Three giant Qurans appear from the sky and shoot lightning bolts which incinerate him. Indefatigable defender of free speech Rushdie opposed the use of criminal libel against the authors of the video. He threatened that if criminal proceedings were commenced on his behalf, he would proceed to give evidence on behalf of the defence! The ban was promptly abandoned.
The difficulty with the criminal law remedy being invoked much too loosely is that it could have a chilling effect on good journalism. While there is no gainsaying that malicious and false reporting must be taken to task, the prospect of criminal conviction and a jail term can deter investigative journalism in the public interest. While breaking a story of public importance, it may be difficult to completely verify the authenticity of all the facts. Recognising this difficulty, the English courts fashioned a new public interest defence for the media. In Reynolds vs Times Newspapers Ltd and later in Jameel vs Wall Street Journal, the English courts held that if it is shown that the research is careful, the treatment fair and the statements honestly believed to be true, the media may be protected by the public interest defence.
In the United States, in the celebrated case The New York Times vs Sullivan the Supreme Court went so far as to hold that a libel action could not succeed if the claimant was a public figure and the allegation was honestly and diligently made. The court introduced the actual malice standard, which requires that a party complaining of defamation prove that the publisher knew that the statement was false or acted in reckless disregard of truth. At the time this judgment was delivered in 1964, there were about US $ 300 million in libel actions outstanding against media organisations which made it very difficult for publications to report on civil rights cases without risking being held guilty of libel. This ruling was regarded as a liberator for the American media and enabled it to fearlessly probe scandals such as Watergate. At the same time, it left public persons quite vulnerable in the face of defamation.
In India, civil remedies must be prioritised and sped up. Speedy damages and costs can be an effective deterrent, rather than criminalising the media or public spirited persons. There must be provision for a mechanism that ensures timely publication of corrections and counter statements. In the age of the social media, reputations are more vulnerable than ever before. While the right to reputation, a facet of the right to life under Article 21, must be protected, so must free speech be liberated from the constant threat of criminal law. The recent attempt to criminalise cartoonists in Kolkata and Mumbai tells us just that.
Divan is an advocate, Supreme Court of India, and author of 'Facets of Media Law'