It is definitely most significant to note that the Apex Court in a remarkable, robust, rational and recent judgment titled Bloomberg Television Production Services India Private Limited and others vs Zee Entertainment Enterprises Limited in Petition(s) for Special Leave to Appeal (C) No.6696/2024 (Arising out of impugned final judgment and order dated 14-03-2024 in FAO No.79/2024 passed by the High Court of Delhi at New Delhi) that was pronounced as recently as on March 22, 2024 has very commendably urged the Trial Courts to be cautious while granting pre-trial injunctions against the publication of media articles and journalistic pieces in defamation suits. The top court very rightly reminded that an interim injunction to take down an article not only impacts the author’s right to publish but also the public’s right to know.

We need to note here that while setting aside a Trial Court’s order directing international media group Bloomberg to take down an allegedly defamatory news article against Zee Entertainment, the Supreme Court has very rightly affirmed that injunctions against the publication of material should be granted only after a full fledged trial. We also need to note that the Apex Court was hearing a plea that had been filed by Bloomberg against the March 14 order of the Delhi High Court which dismissed its appeal against the Trial Court order.

To recapitulate, it may be very rightly recalled that on March 1, the ADJ had directed Bloomberg to take down the allegedly defamatory article within a time period of a week holding explicitly that Zee had established a prima facie case for passing ad-interim ex-parte orders of injunction.

It may also be recalled here rightly that Hon’ble Ms Justice Shalinder Kaur of the Delhi High Court had said in her judgment that there was no ground to interfere with the ex-parte interim order that had been passed by the Additional District Judge (ADJ) on the lawsuit that had been filed by Zee Entertainment Enterprises Limited over the article published on February 21 and ordered Bloomberg to comply with the direction in three days.

The three-Judge Bench of the Apex Court minced just no words to hold that the error committed by the Trial Judge had been perpetuated by the High Court and also pointed out that the order of the Trial Judge does not discuss the prima facie strength of the plaintiff’s case nor does it deal with the balance of convenience or the irreparable hardship that is caused.

While reacting on the Apex Court order, the Bloomberg News spokesperson said that:
We are very encouraged by today’s decision from the Supreme Court of India and we continue to stand by this story. The top court granted liberty to Zee to approach the Trial Court afresh with its prayer seeking injunction.

At the very outset, this learned, laudable, landmark, logical and latest judgment authored by a three-Judge Bench of the Apex Court comprising of Hon’ble The CJI Dr DY Chandrachud, Hon’ble Mr Justice JB Pardiwala and Hon’ble Mr Justice Manoj Misra sets the ball in motion by first and foremost putting forth in para 1 that:
Leave granted.

To put things in perspective, the Bench envisages in para 2 while recalling the facts of the case that:
On 01 March 2024, an ex-parte ad interim order was passed by the ADJ 05 of the South Saket Courts, New Delhi (trial judge) directing the appellants (a media platform, one of its editors, and the concerned journalists) to take down an article dated 21 February 2024 published on their online platform within a week. The appellants were also restrained from posting, circulating or publishing the article in respect of the respondent-plaintiff on any online or offline platform till the next date of hearing.

As we see, the Bench then observes in para 3 that:
The order of the trial Judge indicates that the discussion, after recording the submission of the respondent, commences at paragraph 7. The only reasoning which is found in the order of the trial Judge is in paragraphs 8-9, which read as follows:

8. I have noticed that in Dr. Abhishek Manu Singhvi (Supra), Chandra Kochar (Supra), Swami Ramdev (Supra), ex-parte ad interim injunction was passed, considering that the contents of the material in question was per se defamatory.

9. In my view, the plaintiff has made out a prima facie case for passing ad interim ex-parte orders of injunction, balance of convenience is also in favour of plaintiff and against the defendant and irreparable loss and injury may be caused to the plaintiff, if the injunction as prayed for is not granted. In view thereof, defendant no.1 and defendant no.2 are directed to take down the article dated 21.02.2024 (page 84 to 86 of the plaintiff’s document) from online platform within one week of receipt of this order. The defendants are further restrained from posting, circulating or publishing the aforesaid article in respect of the plaintiff on any online or offline platform till the next date of hearing.

Briefly stated, the Bench observes in para 4 that:
The order of the trial Judge has been upheld by a Single Judge of the High Court of Delhi by order dated 14 March 2024.

Quite significantly, the Bench specifies in para 5 that:
The three-fold test of establishing (i) a prima facie case, (ii) balance of convenience and (iii) irreparable loss or harm, for the grant of interim relief, is well-established in the jurisprudence of this Court. This test is equally applicable to the grant of interim injunctions in defamation suits. However, this three-fold test must not be applied mechanically, (Delhi Development Authority v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622, para 38.) to the detriment of the other party and in the case of injunctions against journalistic pieces, often to the detriment of the public. While granting interim relief, the court must provide detailed reasons and analyze how the three-fold test is satisfied. A cursory reproduction of the submissions and precedents before the court is not sufficient. The court must explain how the test is satisfied and how the precedents cited apply to the facts of the case.

To put it very briefly, the Bench then underscores in para 7 that, Significantly, in suits concerning defamation by media platforms and/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. (R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.). The constitutional mandate of protecting journalistic expression cannot be understated, and courts must tread cautiously while granting pre-trial interim injunctions. The standard to be followed may be borrowed from the decision in Bonnard v. Perryman (1891) 95 All ER 965.

Most significantly, the Bench minces just no words to mandate in para 9 what constitutes the cornerstone of this notable judgment that:
In essence, the grant of a pre-trial injunction against the publication of an article may have severe ramifications on the right to freedom of speech of the author and the public’s right to know. An injunction, particularly ex-parte, should not be granted without establishing that the content sought to be restricted is ‘malicious’ or ‘palpably false’. Granting interim injunctions, before the trial commences, in a cavalier manner results in the stifling of public debate.

In other words, courts should not grant ex-parte injunctions except in exceptional cases where the defence advanced by the respondent would undoubtedly fail at trial. In all other cases, injunctions against the publication of material should be granted only after a full-fledged trial is conducted or in exceptional cases, after the respondent is given a chance to make their submissions.

It must be noted that the Bench in para 8 cites the relevant case law in Fraser v. Evans, [1969] 1 Q.B. 349 in which the Court of Appeal followed the Bonnard principle.

Most forthrightly, the Bench then propounds aptly in para 10 that, Increasingly, across various jurisdictions, the concept of ‘SLAPP Suits’ has been recognized either by statute or by courts. 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, to prevent the public from knowing about or participating in important affairs in the public interest. (Donson, F.J.L. 2000. Legal Intimidation: A SLAPP in the Face of Democracy.

London, New York: Free Association Books.). We must be cognizant of the realities of prolonged trials. 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. 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.

It is worth noting that the Bench notes in para 11 that:
The order of the trial Judge does not discuss, even cursorily, the prima facie strength of the plaintiff’s case, nor does it deal with the balance of convenience or the irreparable hardship that is caused. The trial Judge needed to have analysed why such an ex parte injunction was essential, after setting out the factual basis and the contentions of the respondent made before the trial Judge. The trial Judge merely states, in paras 7-8, that the court has gone through the record available as on date and noticed certain precedents where an ad-interim injunction was granted. Without even cursorily dwelling on the merits of the plaint, the ad-interim injunction granted by the trial Judge amounts to unreasoned censorship which cannot be countenanced.

Be it noted, the Bench then notes in para 12 that:
Undoubtedly, the grant of an interim injunction is an exercise of discretionary power and the appellate court (in this case, the High Court) will usually not interfere with the grant of interim relief. However, in a line of precedent, this Court has held that appellate courts must interfere with the grant of interim relief if the discretion has been exercised arbitrarily, capriciously, perversely, or where the court has ignored settled principles of law regulating the grant or refusal of interlocutory injunctions.

(Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel, (2006) 8 SCC 726, para 128; Shyam Sel & Power Ltd. v. Shyam Steel Industries Ltd., (2023) 1 SCC 634, para 37). The grant of an ex parte interim injunction by way of an unreasoned order, definitely falls within the above formulation, necessitating interference by the High Court. This being a case of an injunction granted in defamation proceedings against a media platform, the impact of the injunction on the constitutionally protected right of free speech further warranted intervention.

Most remarkably and as a corollary, the Bench postulates in para 13 that:
In view of the above, the High Court ought to have, in our view, also at least prima facie assessed whether the test for the grant of an injunction was duly established after an evaluation of facts. The same error which has been committed by the trial Judge has been perpetuated by the Single Judge of the High Court. Merely recording that a prima facie case exists, that the balance of convenience is in favour of the grant of injunction and that an irreparable injury would be caused, would not amount to an application of mind to the facts of the case. The three-fold test cannot merely be recorded as a mantra without looking into the facts on the basis of which an injunction has been sought. In the absence of such a consideration either by the trial Judge or by the High Court, we have no option but to set aside both the orders of the trial Judge dated 1 March 2024 and of the Single Judge of the High Court dated 14 March 2024. We do so accordingly.

For clarity, the Bench clarifies in para 14 that:
Since the proceedings are now listed before the trial Judge on 26 March 2024, we direct that it would be open to the respondents to renew their application for injunction, on which the trial Judge shall pass fresh orders after hearing the parties and bearing in mind the observations which are contained in the above segment of the judgment and order. All the rights and contentions of the parties are kept open in that regard. In the event that the appellants seek to contest the application for injunction, they shall file their reply before the trial Judge before the next date of listing.

What’s more, the Bench further clarifies in para 15 that:
It is clarified that the above segment of the judgment and order may not be construed as a comment on the merits of the present case. The purpose of the above segment is to provide the broad parameters to be kept in mind while hearing the application for an interim injunction.

In a nutshell, we thus see that the Apex Court has made it indubitably clear that the Trial Courts and the High Courts must always bear in mind that pre-trial injunctions against media platforms should be exceptional. It was also made clear by the top court that the Courts must also see the impact of such pre-trial injunctions on freedom of speech and take it into account before arriving at any decision. Very rightly so!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh