Zee-Bloomberg case: how the top court is defending the fourth estate

In a recent spat between a news media giant and an entertainment behemoth, the top court was faced with a rather peculiar situation. A journalistic article alleging financial irregularities at Zee Entertainment Enterprises Ltd. was directed to be removed from the former’s website through an ex-parte interim order of a trial court.

An ex-parte interim order refers to an interim relief that is granted in the absence of one of the parties before the final verdict in the matter is delivered.

The article, in question, was published on Bloomberg LP’s website, and it said that SEBI had uncovered financial irregularities to the tune of $241 million at Zee.

The peculiarity of the situation did not sprout from the fact that it was issued in Bloomberg’s absence or because it was directed to be taken down before a final hearing took place, but because the top court found that the trial court had passed the order without an “application of mind”.

The court said that the trial court order was passed without even cursorily dwelling on the merits of the case.

What made the situation even more glaring was the fact that the trial court’s perversity in dealing with the matter got a quick stamp of approval from the Delhi High Court!

This entire fiasco led the matter to land up in the hallowed halls of the Supreme Court, and the court had to underline the principles applicable while considering cases for a grant of interim relief, especially in matters pertaining to journalistic freedom of speech and expression.

Test For A Grant Of Interim Relief
The top court highlighted the three-fold test for a grant of interim relief.

The court said that the three-fold test of establishing: (i) a prima facie case, (ii) balance of convenience and (iii) irreparable loss or harm, for a grant of interim relief is well-established.

However, it said that this principle must not be applied mechanically. “While granting interim relief, the court must provide detailed reasons and analyse how the three-fold test is satisfied. The court must explain how the test is satisfied and how the precedents cited apply to the facts of the case,” the court said.

In addition to this often-repeated test, the court said that additional factors such as whether irreparable or serious mischief will ensue if the relief is not granted, or whether the refusal of an ex-parte injunction would involve greater injustice than the grant of it would involve must also be factored in.

Protection Of Journalistic Expression
The apex court also said that in suits concerning defamation by media platforms or journalists, an additional consideration of balancing the fundamental right to free speech with the right to reputation and privacy must be borne in mind.

The constitutional mandate of protecting journalistic expression cannot be understated, and courts must tread cautiously while granting pre-trial interim injunctions.

Supreme Court of India
In essence, the court said that an injunction, particularly ex-parte, should not be granted without establishing that the content sought to be restricted is “malicious” or “palpably false”, as granting interim injunctions in a cavalier manner results in the stifling of public debate.

Subsequently, the court said that the grant of an interim injunction before the trial commences often acts as a “death sentence” to the material sought to be published well before the allegations have been proven.

The court also highlighted that the concept of “SLAPP” suits is picking up speed across jurisdictions.

The term ‘SLAPP’ stands for Strategic Litigation Against Public Participation and is an umbrella term used to refer to litigation predominantly initiated by entities that wield immense economic power against members of the media or civil society.

Therefore, the court remarked that while granting ad-interim injunctions in defamation suits, the potential of using prolonged litigation to prevent free speech and public participation must also be kept in mind by courts. NDTV Profit