Mere Fact That Defamatory Statement Was Earlier Made In A Pleading In Court Is No Defence For Repetition: Bombay High Court

Publication of a defamatory statement on the ground that a similar statement was mentioned in a judicial pleading is not a valid defence to justify repetition of that statement, the Bombay High Court has held.

Only those documents which are read or recorded during the course of judicial proceedings can be repeated, Justice Riyaz Chagla observed in the detailed order granting interim relief to vaccine manufacturer Serum Institute of India (SII) and its CEO Adar Poonawalla in a defamation suit.

“It is well settled that absolute privilege only applies to fair reporting of proceedings “by news papers”. Only documents read/recorded in course of actual open judicial proceedings can be repeated. The mere fact that the defamatory statement might have been made in a pleading/affidavit filed in the course of judicial proceedings does not give any entitlement to the Defendant to repeat the same,” the bench observed in the order.

Accordingly, the court directed Youtuber Yohan Tengra and one Ambar Kori who featured in the videos, to take down the prima facie defamatory videos and issue an unconditional apology in the suit filed by SII. The plaintiff has sought a permanent injunction and Rs. 100 crore in damages as final reliefs.

The plaintiffs represented by Senior Advocate Aspi Chinoy argued that the defendant in his Youtube channel was seen inciting anger and hatred among the general public against the Plaintiffs by influencing them that the Plaintiffs have allegedly committed a murder. A video was also circulated on WhatsApp whereby the defendant was seen gathering people to seek the plaintiff’s arrest.

During arguments, the defendants had taken the defence of justification. They claimed that similar statements had been used in the four petitions filed against SII, especially the one by Dilip Lunawat. Lunawat claimed his daughter died due to SII’s Covishield vaccine. And since no action was taken against Lunawat, SII’s suit wasn’t maintainable.

At the outset the bench noted that in Lunawat’s petition the court had merely issued notice. It rejected the argument that the plaintiffs were barred from taking action.

“I do not find any merit in the submission on behalf of the Defendants that though in the Lunawat Writ Petition, similar words have been used viz. “mass murderers” with reference to the Plaintiffs which amounts to publication and which the Plaintiffs allege herein as being per se defamatory, the Plaintiffs having not taken any action against that publication and hence would be barred from taking action herein.”

The court noted that republication of a defamatory statement is also defamatory and each publisher was answerable to the same extent. Moreover, criminal prosecution for defamation could be initiated against defamatory statements made in court pleadings under sections 499 and 500 of the IPC.

“However, these statements made in pleadings are protected by absolute privilege and cannot be made the subject matter of a Civil Suit of defamation claiming damages…The Defendants have no immunity in an action for defamation. It has been held in Stern vs. Piper & Ors. that every republication of a libel is a new libel and each publisher is answerable for his act to the same extent as if the defamatory statement originated with him,” the court observed.

Case No. - SUIT (L) NO. 33253 OF 2022

Title - Serum Institute of India Pvt. Ltd. & Anr. Vs Yohan Tengra & Ors.

Appearances- Sr Adv Aspi Chinoy, Adv Chetan Kapadia, Adv Hitesh Jain for SII

Adv Changez Keswani i/b Economic Law Practice for Google and Youtube

Advs Vijay Kurle and Nilesh Ojha for defendants 2 and 3 respectively

Click Here To Read/Download Judgment