"Expression Of Opinion Or Criticism Is Not Defamation": Newslaundry Tells Delhi High Court In TV Today's Suit

Online news portal Newslaundry on Wednesday told the Delhi High Court that expression of an opinion does not amount to defamation, thereby opposing the Rs. 2 crores copyright infringement and defamation suit filed against it by TV Today, which owns channels India Today and AajTak.

Senior Advocate Saurabh Kirpal appearing for Newslaundry today made three fold submissions before a single bench of Justice Asha Menon.

Firstly, he argued that the cause of action as disclosed in the plaint was extremely unclear and hence it was not possible for the Court to decide interim application on the basis of the said pleadings. 

Secondly, he argued that even assuming that it was possible to consider some injunctive relief, TV Today had disentitled itself from any interim relief because of the "misleading documents" filed by it.

Thirdly and lastly, Kirpal argued on the aspect of guarantee of free speech.

"Ultimately we are two news media agencies and the attempt by plaintiff to seek injunction is a violation of free speech. Court has always held that there would be no pre publication injunction in matters of free speech," Kirpal said.

Referring to the plaint, it was submitted by Kirpal that the averments made in the plaint were unclear and did not specifically depicted as to how the alleged videos were defamatory.

On TV Today's allegation that Newslaundry made "unfair, untrue and disparaging defamatory remarks" about its anchors as well as the management, Kirpal argued thus:

"I ask myself, what do you say I have defamed? How I have defamed? Who have I defamed and what is, out of 40 videos you have listed which are 30 minutes each which amounts to some 78 hours of programming, are you saying that the entire 8 hours is defamatory? To what extent and which manner? You can't simply say defamed. You need to show how I have defamed. What portion is defamatory."

"My claim on defamation is going to be that ultimately it's a statement of opinion. What I have said is that you have a bad programme. And it is a statement of opinion which is protected. No injunction can follow for an opinion. Defamation is when I say a falsehood, knowing that it's a falsehood. Expression of an opinion is not defamation. So you must in your plaint say that this fact is false, not that you are disparaging me or mocking me. I am allowed to disparage and mock whoever I want to. I am not allowed to say an untruth, that is defamation."

According to Kirpal, every video as alleged by TV Today to be defamatory has to be viewed by the Court on its own merits and that there can be no generalised attempt to curtail Newslaundry's free speech.

"If the argument of the plaintiff (TV Today) is to be accepted, we will have to stop all criticism and review including films. For example if a film journalist sees a film and says it is a horrible film, it is an expression of an opinion. Is that defamation? It's not defamation. Defamation is saying an untruth. So they must point here what is untruth in the video," Kirpal argued.

It was further argued that the present suit required a trial wherein each video and its contents may be examined for the plaintiff's claim of either copyright or defamation or commercial disparagement.

"It cannot be done in a short shrift, summary manner of deciding an interlocutory application," Kirpal argued.

Kirpal also argued that the plaint mentioned that the cause of action in the suit arose on November 12, 2018 while referring to a back dated allegedly defamatory video made by Newslaundry. Questioning the lapse of three years in filing of the suit, Kirpal argued thus:

"This suit is filed in November 2021….. What is the explanation for the delay?"

Furthermore he argued:

"No one likes to be criticised. Can I say that? None of us likes to be criticised. I don't like it I am sure the plaintiff doesn't like it. But if we want to live in a democracy, then we better get used to it. I can understand they don't like it but supposing I am right… My point is what at the end of the day? That my news channel which is based on subscription, I don't take any advertisements. Therefore I say, I may be right or I may be wrong, I say that I am unbiased. What I am therefore saying is that the state of media in the Country today is such."

"Be it the media on the left or right or anybody, everyone is equally blame worthy. Those days of dispassionate reporting have gone. That is my opinion. That is also the opinion of the defendant. So when the defendant makes an opinion and says that there is no longer any dispassionate reporting and the reporting is biased, you may not like it. But is it not for the public to be informed that when you watch the news, be careful because all the news that is coming to you comes through a prism or through some tainted glasses?"

"When I point this out in my programme, how is it not in public interest? And is it correct to give an injunction when I am going to my subscribers. They want to see this. They pay money to see my programmes where I am reviewing other news channels."

Furthermore, Kirpal argued that the media is called the fourth estate for the reason of being a very important limb of governance in the Country for keeping the other three organs in check. He added that there is no mechanism for regulating the media other than self regulation.

Can't Media Houses Comment On Each Other's Work & Keep Free Speech In Check? Newslaundry To Delhi High Court In TV Today's Suit

He said that even the law recognizes that the appropriate forum to ensure that media performs its functions in an efficient manner is through self regulation.

"But if you are saying that every time you're self regulating, you are indulging in commercial disparagement, they will be in lawlessness," Kirpal argued.

He referred to the Press Council of India Act which, he said, is meant to supervise functioning of various press organs. He argued that the same is a mechanism of self regulation which is recognized under Article 19(1)(a) of the Constitution of India to say that media is best governed by itself.

"What I am offering by critique is an attempt to self regulate. Every criticism may not be fair or just or light. But it doesn't amount to defamation. Because I will say on that criticism, that look my criticism is correct. I will plead truth as a defence," he added.

"Law is that the moment you plead truth as a defence, interlocutory injunction will be refused and matter will be sent to trial," Kirpal said.

Kirpal further argued:

"What I am doing is making an honest review of your work in a manner that is satirical. So its satire that I am indulging into. One is direct commentary and the second is satire. I am mocking you."

The matter will now continued to be heard on February 28.

Earlier, Kirpal had argued that while copyright infringement is a commercial dispute, defamation is not and if there are non-commercial causes of action then the suit cannot be called a commercial suit. He stated that if the present suit is declared a commercial suit, it will open floodgates.

About the Suit

The suit alleges that Newslaundry had uploaded various videos on its website including social media platforms, infringing TV Today Network's copyright. It is also alleged that the online news portal also made "unfair, untrue and disparaging defamatory remarks" about its anchors as well as the management.

The company has therefore sought permanent and mandatory injunction against Newslaundry, it's CEO Abhinandan Sekhri and others.

It has been alleged that the impugned acts of the Defendants caused defamation to TV Today Network , its news channels, anchors, employees and management and caused prejudice to their commercial reputation and goodwill.

According to the suit, the unpermitted and unlicensed use of the original cinematograph films and sound recordings of the Plaintiff company by the Defendants is not protected by sec. 52 of the Copyright Act, 1957.

Case Title: TV Today Network Pvt Ltd v. Newslaundry & ORS.