By Adv. R. S. Agrawal :
The HC has granted certain reliefs with the observation that “the line between freedom of Press and Right to Privacy will have to be balanced. It is possible that freedom of speech may have to be narrowly tailored. But it is not possible to ignore the constitutional pinning of privacy nor to say that if a person is a public figure, that person is deemed to have sacrificed his right to privacy.
JUSTICE Gautam S. Patel, at the Bombay High Court in Mumbai, has passed an order on July 30, 2021, in the Rs 25- crore defamation suit filed by Shilpa Shetty against 29 defendants, in connection with her husband Raj Kundra’s arrest for his involvement in a pornography racket, underlining the need to strike balance between Freedom of Press and Right to Privacy. These 29 defendants include several websites, NDTV, Free Press Journal, Clapping Hands Private Ltd., Peeping Moon.com, Facebook, Instagram, Google etc. At the very outset the HC has clarified that “No part of this (Order) shall be construed as a gag on the media”. The HC has granted interim relief in favour of the plaintiff –actor against three defendants – Capital TV, a channel from Uttar Pradesh, Heena Kumawat, who claims to be a friend of Shetty and Suddh Manoranjan, a You Tube channel. The HC has granted certain reliefs with the observation that “the line between freedom of Press and Right to Privacy will have to be balanced. It is possible that freedom of speech may have to be narrowly tailored. But it is not possible to ignore the constitutional pinning of privacy nor to say that if a person is a public figure, that person is deemed to have sacrificed his right to privacy”. The HC has added that it believes that some of the issues, this suit raises will require a closer scrutiny, because it is not possible to say at this stage that all the statements by all the defendants are of the same defamatory stature. Senior Advocate Birendra Saraf appearing for Shetty had complained that videos uploaded on the Internet by Capita TV, Shuddha Manoranjan, Heena Kumawat and Peep Moon are out and out defamatory.
The HC has directed that the impugned video uploaded by Capital TV be taken down, while Heena Kumawat from Film Window and Shivkant Gautam of Shuddha Manoranjan should not re-upload their videos (had already pulled down the videos before the hearing) as these are prima facie defamatory in nature. About the conduct of the Capital TV, The HC has stated that “Unfortunately Capital TV has in the latter part gone ahead to make a statement about Ms Shetty’s reaction which clearly portrays her as being duplicitous at a personal level. This is, in my (Court’s) view, is transgressing any permissible limit as Ms Shetty seems to have been found guilty by whom, no one knows and of what, no one knows and for what reason, no one knows”. Regarding the video uploaded by Shuddh Manoranjan channel, the HC has observed, “Transcript of this video shows that what is included in the course of the video is a statement on moral standing of Shetty. He went on to the quality of her parenting to her minor child. Whether this malicious or made knowingly to be false statement is a matter of consideration”. But the Court was informed that the defendant has taken down (this) video this morning.
The Court has specifically directed that none of the publications should be involved with the publication of Shetty as a parent to minor children. In the HC’s order, counsel of Kumawat’s intimation to the court finds clear mention that he (Kumawat) has undertaken to see that the impugned video has been already taken down and it would not be uploaded again. The court has stated that though it was not making any order, but this is also not refusal to grant interim or ad interim order. The material posted by these two defendants seems to be prima facie defamatory even at this stage. Certainly Ms Shetty was not approached for her comments. During the hearing, the court observed that the news reports were pertaining to an episode that allegedly happened between Shetty and her husband in their house. However, the same had happened in the presence of others.
The Judge has stated that “There is some tension between what is mentioned in the Puttuswamy case and the right to speech and expression” in this case. At this stage, Shetty’s lawyer Saraf said that he was only asking for these defendants be directed to take these posts down. Responding to this, the court remarked that reporting of something that the Crime Branch said or a police source said is never defamatory. The court added that, “What you asking me to do can have a very chilling effect of the freedom of the Press.” The court asked the Senior Counsel Saraf, as to how a blanket restraint order can be passed against unknown persons who are yet to be named as defendants. When Saraf pointed out to certain defamatory reports, the Bench said that each report has to be analyzed individually on its own merits. The court will not rely upon one defendant’s view to apply it to all others.
In the suit filed by Shetty, it has been alleged that ever since Kundra’s arrest, several social and electronic media and news websites have resorted to sensationalism and are focused on smearing her reputation to increase the readership and free-ride on her popularity. Shetty has further alleged in the suit that once besmirched by an unfounded allegation in print media and its quadrupled circulation on the electronic media, a reputation can be damaged forever, especially there is no opportunity to vindicate one’s reputation. The plaintiff-actor had sought ad-interim reliefs of restraining defendants from publishing defamatory content in any manner whatsoever, directing the concerned media organisations to delete defamatory articles forthwith and issue an unconditional apology, admitting that the articles were unsubstantiated.
She has accused media houses with invading her privacy and interfering in her personal life by publishing incorrect and derogatory statements concerning her life and relationship with her husband. Shetty has pointed out to the court that these websites of the defendants are freely accessible by any and every person and there is no requirement of any prior subscription to access the articles and comments posted on the defendant’s website. Thus, the defamatory content published by the defendants as set out in the plaint is freely available to the world at large. She has prayed to the court for holding all concerned organisations liable and be ordered and decreed to pay jointly and severally Rs 25 crores by way of damages to her, together with 18 pc per annum interest thereon from the date of filing of the suit till payment, by way of final reliefs.