'A Statement Is Not True Merely Because It Is In Print;Not False Merely Because It Is Online' : Bombay HC [Read Order]

The Bombay High Court recently declined to restrain a journalist and two flat purchasers from making critical comments against a construction by Lodha Developers of Mumbai.

"Calling out someone, with fair comment and justification, is not defamation. To put it differently: to say the emperor has no clothes is not defamation. It never has been", observed Justice G S Patel, while disposing of the notice of motion filed by Lodha in a defamation suit against journalist Krishnaraj Rao and a couple -Shilpi Thard and Amit Jaisingh- who were flat purchasers.

"On an objective assessment, I find that what Rao has said here is in an opinion, fair comment or argument with some basis in fact. There is no question of an injunction or even of asking if he will volunteer a statement", added Justice Patel.

Case Background

Defendant Krishnaraj is an investigative journalist who has previously written against Lodha criticising the quality of construction in its properties. Between 2011 and 2012, Defendants Shilpi Thard and her husband Amit Jaisingh, purchased two flats in the Dioro building at the Wadala site. Thard and Jaisingh say they have paid Lodha nearly Rs.6 crores for these two flats and a club membership.

Thard and Jaisingh stated that possession was several years late as they had been promised possession in 2015, and the delay itself caused them a loss. Further, the possession was more or less thrust on them without giving them a chance to inspect their flats until they had signed some documents. They claimed that there were several deficiencies in the construction as they noticed leakage and seepage in the monsoon of June 2018. Other flat purchasers too were affected. Attempts to resolve these issues with Lodha were stonewalled. Then, in September 2018, Thard approached Rao, whom she knew of from his previous writings on Lodha projects.

Both Rao and Thard visited the site in September and October 2018, took photographs and made videos. Rao wrote up an article in a blog and Lodha was emailed an advance copy of this material but did not respond. Videos and photographs were uploaded on Rao's blog, "The Brave Pedestrian".

Rao alleged that the case was a SLAPP suit - Strategic Law Suit Against Public Participation.

Fair comment to be protected

The Court examined the nature of opinions made by the defendants and observed "Every latitude must be given to opinion and to prejudice, and then we must see whether a fair or reasonable person would make such a comment. That the comment is independent, bold or exaggerated — or even grossly exaggerated — does not make it unfair."

As to the allegation that Lodha misleads its buyers about the carpet area, Court said-

"Lodha may or may not like the use of the word 'scam'. Courts are not here to pander to Lodha's notions of exquisite linguistic delicacy. If indeed there is this carpet area misstatement in the agreement itself, and obviously that statement was presented by Lodha with purchasers having no say in the matter, then there may be a storm coming with other, far harsher, words looming on the horizon. The statement is not, prima facie, per se defamatory"

Merely because statement is made online it is not suspicious

Dealing with the plaintiff's allegations that the defendant journalist had taken recourse to social media and YouTube to make his comments against the builder, the Court said :

"a statement is not to be viewed as suspicious only because it is not made in print and is made only online, or using one or more of the available modern communications channels or technologies. That new technology may have made us a noisier society. Certainly there may be something to be said about the proliferation of what is known as fake news, but that does not mean that everything about the technology is evil or undesirable. We should not be misled into assuming that every recipient of news or information is completely mindless and will swallow wholeheartedly whatever comes his way. A statement is not true merely because it is in print. It is not false merely because it is online"

"Online, everyone is a journalist, or a potential journalist. Of course, every online user is bound to the same law and the same standards. He or she runs the same risks. But that does not mean that voices must be silenced because they are online", added the Court.

On this premise, the Court declined to pass a take-down order against YouTube with regard to contents posted by Rao.

Read Order