Remedies in Defamation, Prior Restraint, and the Balance Between Reputation, Privacy and Freedom of Speech

Damages are the ordinary remedy in defamation and an injunction the exceptional one. The reason is that an injunction granted before trial silences a publication which has not yet been shown to be untrue, and so decides the case against the defendant before he has been heard on the merits. The English rule in Bonnard v. Perryman has long said that such an injunction should not be granted where the defendant intends to plead justification, and the Supreme Court restated and adopted that position in Bloomberg Television Production Services India v. Zee Entertainment, decided in March 2024.

The heads of damages, mitigation, the 2024 decision on prior restraint, and the competing rights

1. General Damages

• They are presumed from the publication itself, because libel and, in India, slander are actionable per se.
• They compensate three things: the injury to reputation, the distress and humiliation suffered, and the vindication of the plaintiff's good name, so that the award itself answers the charge.
• The assessment takes account of the gravity of the imputation; the extent of the publication and the standing of those who read it; the standing of the plaintiff and of the defendant; whether an apology was made and how; and the conduct of the parties before and during the trial.
• Indian awards have historically been modest by comparison with English ones, though the amounts claimed in recent corporate and media litigation have risen sharply.

2. Special, Aggravated and Exemplary Damages

3. Mitigation

• An apology, if prompt, full, unqualified and given the same prominence as the original publication.
• A retraction, or the publication of the plaintiff's version of the facts.
• Provocation by the plaintiff, where the publication was a response to his own attack.
• The plaintiff's existing bad reputation in the relevant sector of his life. Evidence of general bad reputation is admissible; evidence of specific unproved misconduct is not.
• Damages already recovered for the same publication from another defendant.
• And the absence of malice, where the defendant published honestly and on reasonable grounds, though that is not a defence in itself.

4. Injunction and Prior Restraint

• The practical effect is that an ex parte take down order in a defamation suit is now very difficult to obtain, and an order granted without reasons is liable to be set aside.
• A perpetual injunction after trial stands on an entirely different footing, since the statement has by then been found to be defamatory and untrue.
• The jurisdiction to restrain before trial is not abolished, and remains available where the defendant has no intention of justifying and the falsity is plain.
• And R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 had already held that neither the Government nor its officials may impose a prior restraint on publication in anticipation of being defamed.

5. Defamation and Privacy

6. Defamation and Freedom of Speech

• Article 19(1)(a) guarantees the freedom of speech and expression, and Article 19(2) permits reasonable restrictions on specified grounds.
• Defamation is named in Article 19(2) in terms. Defamation law is therefore not an exception to free speech that has to be justified from outside the Constitution: it is a restriction the Constitution itself contemplates.
• Subramanian Swamy v. Union of India, (2016) 7 SCC 221 upheld criminal defamation on that footing, holding that the right to reputation is part of the right to life under Article 21 and that the restriction is a reasonable one.
• But the balance is struck in the detail and not in the label. R. Rajagopal protects reporting on the official conduct of public servants; fair comment protects criticism; and Bloomberg protects the publication itself from being silenced before it has been found to be untrue.
• The direction of the recent decisions is toward procedural protection of speech rather than substantive narrowing of the tort. The ingredients and defences of defamation are much as they were; what has changed is the reluctance of the courts to stop publication in advance, and their insistence on reasoned orders when they are asked to.

7. The Position Stated Shortly

1. General damages are presumed from the publication, and compensate injury to reputation, distress, and the vindication of the plaintiff's name.

2. Special damages are actual pecuniary loss, which must be pleaded and proved, and are not essential in India.

3. Aggravated damages are awarded where the defendant's conduct increased the injury; exemplary damages where he calculated that publication would profit him more than it cost.

4. Mitigation includes a prompt and full apology, a retraction, provocation, existing bad reputation, and damages already recovered.

5. An injunction before trial is exceptional, because it silences a publication not yet shown to be untrue.

6. Bonnard v. Perryman holds that until it is clear that a libel is untrue, it is not clear that any right has been infringed.

7. Bloomberg Television v. Zee Entertainment, 2024 INSC 224, adopts that rule and holds that the three fold test must not be recited as a mantra.

8. An order granting an injunction must set out the facts, the defendant's contentions and the reasons, because unreasoned censorship cannot be countenanced.

9. Defamation requires falsity and privacy does not, and the two protect different things: what others think, and what others are told.

10. Article 19(2) names defamation as a ground of reasonable restriction, and Subramanian Swamy upheld criminal defamation on the footing that reputation is part of Article 21.